Islamic Law and International Law:

Peaceful Resolution of Disputes Emilia

Justyna Powell
Visit to download the full and correct content document:
https://ebookmass.com/product/islamic-law-and-international-law-peaceful-resolution-
of-disputes-emilia-justyna-powell/
Islamic Law and International Law
 Islamic Law and
International Law
Peaceful Resolution of Disputes

EMILIA JUST YNA POWELL

1
 1
Oxford University Press is a department of the University of Oxford. It furthers
the University’s objective of excellence in research, scholarship, and education
by publishing worldwide. Oxford is a registered trade mark of Oxford University
Press in the UK and certain other countries.

Published in the United States of America by Oxford University Press

198 Madison Avenue, New York, NY 10016, United States of America.

© Oxford University Press 2020

All rights reserved. No part of this publication may be reproduced, stored in

a retrieval system, or transmitted, in any form or by any means, without the
prior permission in writing of Oxford University Press, or as expressly permitted
by law, by license, or under terms agreed with the appropriate reproduction
rights organization. Inquiries concerning reproduction outside the scope of the
above should be sent to the Rights Department, Oxford University Press, at the
address above.

You must not circulate this work in any other form

and you must impose this same condition on any acquirer.

CIP data is on file at the Library of Congress

ISBN 978–​0–​19–​006463–​1

1 3 5 7 9 8 6 4 2

Printed by Integrated Books International, United States of America

Dla moich córeczek, Scarlett Sophii i Saski Emilii
And for Charles
 CONTENTS

List of Figures  ix
List of Tables  xi
Acknowledgments  xiii

1. Introduction  1

2. International Law, Islamic Law, and Islamic Law States  25

3. Islamic Law and International Law: Similarities and Differences  86

4. A Theory of Islamic Peaceful Resolution of Disputes  125

5. Islamic Law States and Peaceful Resolution of Territorial

Disputes  164

6. Islamic Law States and the International Court of Justice  202

7. Legal Schools and Regions  239

8. Conclusion  272

References  293
Index  311

vii
 LIST OF FIGURES

2.1 Map of Islamic law states 51

2.2 Muslim population in ILS and non-​ILS 51
2.3 Sharia/​Islam in ILS’ constitutions 63
2.4 Sharia/​Islam in ILS’ constitutions, relative counts, 1945–​2012 64
2.5 Holy oath in ILS’ constitutions, 1945–​2012 66
2.6 Muslim head of state requirement in ILS’ constitutions,
1945–​2012 67
2.7 Supremacy of sharia in ILS’ constitutions, 1945–​2012 68
2.8 Islam/​sharia education in ILS’ constitutions, 1945–​2012 70
2.9 Customary law in ILS’ constitutions, 1945–​2012 71
2.10 Rule of law in ILS’ constitutions, 1945–​2012 73
2.11 Supreme Courts in ILS’ constitutions, 1945–​2012 74
2.12 ILS with secular courts, 1945–​2012 75
2.13 Women in the judiciary, 1945–​2012 76
2.14 Peaceful resolution of disputes in ILS’ constitutions, 1945–​2012 77
2.15 Education in ILS’ constitutions, 1945–​2012 78
5.1 Settlement attempts during the Bahrain-​Qatar dispute 175
5.2 ILS’ attempts at peaceful resolution: ILS and non-​ILS addressee,
1945–​2012 182
6.1 Islamic law at the International Court of Justice,
1945–​2014: jurisprudence 213
6.2 Islamic law at the International Court of Justice,
1945–​2014: summary 213
7.1 Islamic schools of jurisprudence: map 243

ix
 L I S T O F TA B L E S

2.1 Presence of Islamic Law and Secular Law/​Shared Features

in ILS, 2012 80
5.1a ILS’ Peaceful Resolution Proposals in Territorial Disputes,
1945–​2012 168
5.1b Non-​ILS’ Peaceful Resolution Proposals in Territorial Disputes,
1945–​2012 169
5.2 Peaceful Resolution Attempts by ILS, 1945–​2012 172
5.3a ILS’ Attempts at Arbitration and Adjudication, 1945–​2012 181
5.3b Non-​ILS’ Attempts at Arbitration and Adjudication, 1945–​2012 181
5.4 Descriptive Statistics: Islamic Law and Secular/​Shared
Legal Features 184
5.5 Multinomial Logistic Regression: Peaceful Resolution of ILS
Territorial Disputes 190
5.6 Substantive Effects: Peaceful Resolution of ILS
Territorial Disputes 191
5.7 ILS and Non-​ILS: Peaceful Resolution of Territorial Disputes 200
6.1 ILS Cases at the International Court of Justice, 1945–2014 209
6.2 Islamic Law at the International Court of Justice,
1945–2014: Details 215
6.3 ILS’ Commitments to the International Court of Justice,
1945–​2012 219
6.4 Descriptive Statistics: Islamic Law and Secular/​Shared
Legal Features 221
6.5 Logistic Regression: ICJ Compulsory Jurisdiction, 1945–​2012 223
6.6 Negative Binomial Regression: ICJ Compromissory Jurisdiction,
1945–2002 225
6.7 Logistic Regression: ICJ Compulsory Jurisdiction, All States,
1945–​2012 234

xi
xii List of Table s

6.8 Negative Binomial Regression: ICJ Compromissory Jurisdiction, All

States, 1945–2002 235
7.1 Islamic Schools of Jurisprudence: Distribution 244
7.2 ISL: Regional Distribution 250
7.3 Multinomial Logistic Regression: Peaceful Resolution of
ILS’ Territorial Disputes, 1945–​2012, Islamic Schools of
Jurisprudence 257
7.4 Substantive Effects: Peaceful Resolution of ILS’ Territorial Disputes,
1945–​2012, Islamic Schools of Jurisprudence 259
7.5 Negative Binomial Regression: ICJ Compromissory Jurisdiction,
1945–2002, Islamic Schools of Jurisprudence 261
7.6 Number of ILS Compromissory Treaties by Madhhab,
1945–2002 263
7.7 Multinomial Logistic Regression: Peaceful Resolution of ILS
Territorial Disputes, 1945–​2012, Regions 265
7.8 Substantive Effects: Peaceful Resolution of ILS’ Territorial Disputes,
1945–​2012, Regions 266
7.9 Negative Binomial Regression: ICJ Compromissory Jurisdiction,
1945–2002, Regions 268
7.10 Number of ILS’ Compromissory Treaties by Region, 1945–2002 270
 ACKNOWLEDGMENTS

I have been thinking about the relationship between the Islamic legal tradi-
tion and international law for some time. Many conversations with colleagues,
friends, family members, policymakers, and practitioners of Islamic law have
deeply influenced my views of the way that the Islamic legal tradition operates.
I am in particular most grateful to Charlotte Ku, John Vasquez, Imam Ibrahim
Amin, Tom Ginsburg, Daniel Philpott, Krista E. Wiegand, Judge Awn Shawkat
Al-​Khasawneh, Elihu Lauterpacht, Adnan Amkhan Bayno, Omar Naas, Talal
Al-​Azem, Mohammed Al Qasimi, Omar Rifai, Nawaf Alyaseen, Aida Othman,
Hans Corell, Michael Feener, Bob Hefner, Bishop Matthew Hassan Kukah, and
Radwan Ziadeh. I am pleased to gratefully acknowledge Julia Oksasoglu and
Robert O’Brien for committing much time and effort to this project as my re-
search assistants. While at Notre Dame, Rob and Julia worked tirelessly to make
this project a reality. I also thank Justine Uy, Benedikt Graf, Ilana Rothkopf, and
Steven McDowell for excellent research assistance. Les Harris has provided me
with invaluable insights into this project and helped me to express my ideas
clearly. I am also grateful to David McBride at Oxford University Press for the ex-
cellent editorial guidance. Several institutions and organizations have supported
this project, including Institute for Scholarship in the Liberal Arts, Kroc Institute
for International Peace Studies, Kellogg Institute for International Studies, and
Nanovic Institute for European Studies, all at the University of Notre Dame;
Oxford Centre for Islamic Studies; and iCourts, the Danish National Research
Foundation’s Centre of Excellence for International Courts at the University of
Copenhagen.
Finally, and above all, this project would not be possible without the con-
tinuous support from my family. My husband Charles Wesley Powell has tire-
lessly supported me throughout this research project. He took care of our two
daughters, Scarlett Sophia and Saskia Emilia, when I was conducting research
all around the world, often for long periods of time. Thank you for believing in

xiii
xiv Acknowledgments

me, my abilities, and my ideas. My father, Jerzy Szymański traveled with me to

the Middle East several times to assist me with conducting in-​depth interviews
with policymakers and scholars of the Islamic legal tradition. My mom Elżbieta
Milan-​Szymańska’s unceasing enthusiasm for my research and life in general
continues to inspire me. My grandmother Zofia Milan has always taught me to
learn from others and be open to what others have to say. My dear Parents, thank
you, dziękuję, for enthusiastically supporting me all the way through my legal
education in Poland. Thank you, dziękuję, for showing me how to learn and how
to appreciate knowledge. After all, it is my love for legal traditions that inspired
me to appreciate the Islamic legal tradition. My family has taught me to see
the world in a certain way, one that has shaped my perception of international
law and the Islamic legal tradition. Several of my previous publications laid the
groundwork for the theory and empirical analyses in this book. Some parts of
­chapters 4, 5, and 6 were originally developed in Emilia Justyna Powell, “Islamic
Law States and Peaceful Resolution of Territorial Disputes,” International
Organization, 69, no. 4 (2015): 777–​807; and Emilia Justyna Powell, “Islamic
Law States and the International Court of Justice,” Journal of Peace Research, 50,
no. 2 (2013): 203–​217.
 1

Introduction

The Importance of Understanding Islamic Law

in the Context of International Disputes
There are twenty-​nine Islamic law states (ILS) in the world today, and they con-
stitute not only a substantial portion of the United Nations’ membership, but a
significant voice in today’s international relations.1 The total Muslim population
in these countries is over 900 million. Moreover, almost 700 million Muslims
live in the non-​Islamic parts of the world, coming to a total of over 1.6 billion, or
nearly a quarter of the earth’s total population.2 To some extent, each adherent
to the Muslim faith is ethically, morally, doctrinally, or politically committed
to sharia.3 Islamic law constitutes an important part of the domestic legal sys-
tems in many of the ILS, displacing secular law in state governance.4 ILS have
been and still are engaged in many interstate disputes. A great deal about the
Islamic milieu is well known and there has been an upsurge in scholarly interest

1
In this book, I define an Islamic law state as a state with an identifiable substantial segment of
its legal system that is charged with obligatory implementation of Islamic law in personal, civil, com-
mercial, or criminal law, and where Muslims constitute at least 50 percent of the population. This
definition does not depend solely on the religious preferences of citizens, but rather fundamentally
relies on the characteristics of the official legal system upheld by the state. I elaborate extensively on
this definition, its constitutive parts, and potential objections that others may have with regard to the
ILS category in the Islamic Law States subsection of ­chapter 2.
2
Pew Research Center, Religion & Public Life, April 2, 2015, available at http://​www.pewforum.
org/​2015/​04/​02/​religious-​projections-​2010-​2050/​.
3
I am keenly aware that sharia cannot be reduced to a system of laws. In c­ hapter 2, I present the
various definitions and meanings of sharia—​as offered by the scholarship. I also elaborate on sharia’s
characteristics, constitutive elements, and the relationship between sharia, secular institutions, and
Islamic law. In addition, I describe the concept of a domestic legal system and a legal tradition.
4
Hirschl 2010. My book acknowledges a strong debt to Islamic studies, Islamic law, and compar-
ative law scholarly literatures, all of which tackle and map out important aspects of sharia and, more
broadly, the Islamic legal tradition (see c­ hapter 2 for more discussion of the relationship between
sharia and secular law and governance).

Islamic Law and International Law: Peaceful Resolution of Disputes. Emilia Justyna Powell, Oxford
University Press (2020). © Oxford University Press.
DOI: 10.1093/oso/ 9780190064631 .001.0001
2 Introduction

in Islam.5 Yet, what is much less well understood—​especially in the empirical

sense—​is how these states view international law and international peaceful res-
olution venues. Do Islamic law states avoid international courts? Is the Islamic
legal tradition ab initio incompatible with international law? More specifically,
how can we frame, understand, and define the relationship between the Islamic
milieu and international law in the context of peaceful resolution of disputes?6
Historical patterns seem, at first, unhelpful in providing any solid answers in
this regard, delivering perhaps little more than underdeveloped spotty hints. In
fact, analytically, there seems to be no one easily identifiable attitude shared by
all ILS toward the various methods of international conflict management: ad-
judication, arbitration, mediation, and negotiations. In other words, there is
no consistency in how the Islamic milieu tries to solve its contentions. Some
disputes over highly salient issues eventually end up at arbitration tribunals or
international courts. This was the case in the Pakistan-​India disputes over the
Rann of Kutch and Kashmir,7 as well as the Bahrain-​Qatar dispute over the
Hawar Islands.8 Apparently, the perceived clash between the Islamic legal tradi-
tion and international law does not stop some ILS from submitting their salient
feuds to international courts that adjudicate according to Western-​based inter-
national law. Yet, other ILS, such as Saudi Arabia, seem to avoid international
courts even for interstate disputes of relatively low salience, preferring instead
bilateral negotiations and mediation. During a 2013 meeting with the president
of the International Court of Justice (ICJ), Saudi Prince Bandar bin Salman bin
Mohammed mentioned training courses in Islamic law intended for judges in-
side and outside the Kingdom offered by the Saudi Custodian of the Two Holy
Mosques, should the Court be interested.9 This interaction is a definite indica-
tion of Saudi apprehension toward any international court, whose judges either
do not understand or choose to pay no attention to sharia.
Can we empirically articulate the relationship between ILS and international
conflict management venues? Why do some ILS seem friendly toward interna-
tional courts and others avoid them? Is it possible to identify general patterns that

5
For discussion about conceptualizing Islam, see, among others, Ahmed 2016; Asad 2009;
Aydin 2017; Hodgson 1974; Voll 1994.
6
In this book, I will be using the term “Islamic milieu” as a stand-​in for the category of Islamic law
states. I purposefully avoid the term “Muslim world,” recognizing its shortcomings and its simplistic
and misleading nature (see Aydin 2017).
7
The Indo-​Pakistan Western Boundary Case Tribunal (Award February 19, 1968).
8
Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain),
International Court of Justice Judgment of March 16, 2001. The dispute concerned several other ter-
ritories including the island of Janan/​Hadd Janan, the shoals of Fasht ad Dibal and Qit’at Jaradah, as
well as Zubarah—​a townsite on the northwest coast of Qatar (see Schulte 2004).
9
Taha 2013.
 Int roduc tion 3

apply to all these states? Interestingly, most Western scholarship does not recog-
nize any variance within the Islamic milieu. Rather, a not uncommon attitude to
Islam has often served to create the presentiment of a vast dichotomy between
the Islamic legal tradition and international law across the entire Islamic mi-
lieu.10 All ILS are not only frequently considered simply Islamic, but also Islamic
in the same way, to the same degree. Sharia carries a distinctive understanding
of what governance is, where it comes from, and how it should be: according to
Muslims, it is God’s perfect will for humanity. Despite its historical connection
to the Christian legal thought, modern international law, by contrast, is secular
and strives to offer legal solutions that are considered just and optimal within a
rational, secularist framework.11 In the literature, blanket claims are made about
the attitudes of all ILS toward international law. As an illustration, some argue
that the Islamic milieu or some of its constitutive parts—​like the Middle East—​
have emerged as “the underclass of the international system, wherein law is
utilized in an instrumental manner.”12 Whereas the West is portrayed as the main
supporter of international law, ILS are from time to time depicted as a threat
to secularism and legal reason. Western governments, universities, and political
and social movements project their own understandings of sharia, as if there is
no diversity within the Islamic milieu.13 All ILS are oft perceived as being ipso
facto unfriendly toward international law, and, specifically, toward international
courts.
This expectation of antipathy continues to surface in the scholarly literature
on international disputes. Why would any ILS consult international law? The
international community—​both scholars and policymakers—​seems surprised
any time ILS decide to use international courts or arbitration tribunals in an
effort to solve an interstate contention. Indeed, such attempts are at times met
with cynical skepticism. Islamic law has been criticized as being irrational and
cryptic. Its deeply religious nature is routinely interpreted as being opposed
to secular international law. But, as Awn Shawkat Al-​Khasawneh, former vice

10
See, for example, Westbrook 1992–​1993.
11
Frick and Müller 2013. In this book, I recognize that juxtaposing Islamic law and secular law
constitutes inherently an oversimplification. There are important aspects of Islamic law that are ipso
facto secular (i.e., do not entail much, if any, reference to religious texts or doctrines). For instance,
nafaqa, or the husband’s obligation to maintain (support) his wife and children during wedlock and
for a period after the dissolution of a marriage (alimony), has arguably a purely secular nature. There
are many studies that specifically focus on the process of secularization and the definition of religion
as a separate aspect of modern societies and its relation to secular institutions of state governance
(see Agrama 2012; Asad 2003; Hussin 2016; Lapidus 1996). I elaborate on the relationship between
the secular law and religious law in ­chapters 2 and 3.
12
Allain 2004, xv.
13
For an interesting discussion of this topic, see Bassiouni 2014, 2015.
4 Introduction

president of the ICJ and former prime minister of Jordan once told me, “So con-
trary to the perception, Arabs have been going to the International Court of
Justice in various forms.”14 In fact, there actually are a number of international
adjudication cases involving states of the Islamic milieu, which is more than can
be said for some non-​Islamic states such as China, Russia, Argentina, or Poland.
This book introduces variance into the Islamic milieu, because the Islamic
legal system does not operate in a binary manner: Islamic or non-​Islamic. Each
domestic legal system in the ILS amalgamates secular law with religious law in a
different way, and this reality—​I argue—​fundamentally shapes these states’ views
of international conflict management.15 Whether Islamic law is compatible with
international law and whether this relationship is constant for every one of the
ILS is an open question. This book tackles it. Sharia continues to be an authori-
tative symbol in many ILS. Religious laws and practices are intertwined in state
governance, customary law, and other aspects of human life.16 Sharia is woven
together with purely secular laws. Islamic non-​state actors, governments, polit-
ical parties, and scholarly and intellectual leaders—​despite weighty differences
among them regarding the interpretation of sharia—​agree that sharia provides
a rich legal, anthropological, and cultural background in the Islamic milieu. In
fact, the strength of Islam appears to be on the rise. The powerful voice of sharia
is particularly apparent in the wake of the recent events of the Arab Spring, when
several countries in the Islamic milieu experienced a wave of political protests
and turmoil, contesting the overlapping roles of religion, religious authority, and
the state.17 As Hallaq argues, “One of the fundamental features of the so-​called
modern Islamic resurgence is the call to restore the Sharia, the religious law of
Islam.”18 However, providing an authoritative symbol is not the same as being
incorporated into a state’s official legal system. Law has the power to formally
structure, shape, and dictate a state’s domestic relations. Law has the power to
legitimately set the stage for a state’s international behavior. Law is an organizing
principle for state governance; a structure that can be remarkably resilient in
the face of inside and outside pressures. Law can be a state’s credible commit-
ment to act in a certain way. Law is powerful. Sharia, however interpreted, if

14
Author interview with Judge Awn Shawkat Al-​Khasawneh, conducted in Amman, Jordan,
February 20, 2015.
15
See Agrama 2012; Asad 2003; Hussin 2016; Lapidus 1996 for excellent discussions of the rela-
tionship between the secular and the religious in the Islamic milieu.
16
Shakman Hurd (2015, 7) proposes that religion, in general, “cannot be singled out from these
other aspects of human experience, and yet also cannot simply be identified with these either.”
17
In this context, it is important to emphasize that political Islam as a concept or a movement
does not constitute just a simple protest against modern ways of governance with hopes of bringing
back the traditional ways of sharia.
18
Hallaq 2005, 1.
 Int roduc tion 5

implemented as official law, has a different status than sharia as a symbol.19 This
book studies this power of domestic law in the context of ILS.
Peacefully resolving disputes constitutes an important goal for the interna-
tional community. In this regard, there is an increasing need for the non-​Islamic
states to cooperate with ILS on a wide multitude of issues stretching from trade
to questions of conflict and peace. For these intercultural dialogues to be suc-
cessful, a much deeper understanding of Islamic law—​including its variance
and development—​is absolutely crucial. As Bassiouni writes, “For Muslim and
non-​Muslim states and individuals to address their contemporary public law
obligations and challenges, states must understand Islam’s theological and legal
doctrinal evolution.”20 One cannot explain ILS’ behavior without at least a basic
comprehension of how secular laws and religious laws amalgamate within do-
mestic legal systems of these states.21 I argue that it is the balance of secular laws
with religious laws in the context of ILS that can explain their preferences for
international conflict management methods. Of course, one may argue that in
all legal systems—​domestic and international—​religion and law are somehow
connected, albeit in a very subtle way. In one way or another, religion and moral
considerations find a way to trickle into the legal system, at least via providing
some foundational values. However, in much of the world, religion or reli-
gious principles at best motivate certain laws, principles, legal language, or the
state’s vision of the legal system.22 That is certainly true for international law.
International law has evolved from its religious origins to a largely secular legal
system. In contrast, the connection between religion and law is hardly subtle
in traditional sharia: law is centered on religion, religious texts, and doctrines.
Governments across the Islamic milieu deal differently with this reality by
allowing various ways of amalgamating secular laws with religious laws, and this,
I argue, has important consequences for ILS’ attitudes toward international con-
flict management.23

19
There is a vast debate in the scholarly literature that addresses the issue of whether any aspects
of sharia can be included in state governance (see “Broader Significance of This Project” section that
follows for more discussion).
20
Bassiouni 2014, 25.
21
The secular-​religious dichotomy is problematic in conceptualizing Islam (see Agrama 2012;
Ahmed 2016; Asad 2003; Aydin 2017; Hussin 2016; Lapidus 1996; Siddique 1981). I elaborate on
this point in ­chapters 2, 3, and 4.
22
There is an extensive literature on the historical interaction between political and religious au-
thority in the Islamic milieu (see Eickleman and Piscatori 1996). As Shakman Hurd (2015, 6) notes,
“religion is too unstable a category to be treated as an isolable entity, whether the objective is to at-
tempt to separate religion from law and politics or design a political response to ‘it.’ ”
23
As Otto (2010b, 27) notes, “the modalities of incorporation” differ substantially across time
and space in the Islamic milieu.
6 Introduction

This book proposes that important insights are lost when we look at ILS’ inter-
national behavior as detached from their domestic legal systems. Searching be-
neath materialistic considerations such as power and strategy ensures that other
factors do not fall by the wayside. To this end, this work focuses on discovering
the key areas of conflict and convergence between Islamic law and international
law within the context of each of the ILS, both historically, over time, and geo-
graphically, across the Islamic milieu. I identify institutional features of Islamic
law that facilitate the ILS’ openness to international law and international courts.
It should be stressed at the outset that this work is principally about interna-
tional law and how it is perceived via the lens of the Islamic legal tradition.
The intent of the book is a constructive one. I make the case that the Islamic
legal tradition is not ab initio, across the board, in fundamental contradiction
with international law. Too often, the scholarship and the policy world have
created an artificial division between these two legal systems. Quite the oppo-
site is in fact true: these two inherently dynamic and ever-​evolving legal systems
share more similarities than they are given credit for by the policy world and by
many scholars. This key point, which carries crucial policy ramifications, might
be rather surprising news to some. This research has indispensable implications
for scholars and practitioners of international law, judges of international courts,
and people working for nongovernmental organizations that promote peaceful
conflict management. At the most rudimentary level, this book underlines
how important it is to incorporate non-​Western—​in the context of this book,
Islamic—​understandings of law and justice and modes of legal thinking into in-
ternational resolution venues. International law is indeed inherently a compara-
tive enterprise, whereby different legal cultures and traditions see international
law differently. The need of expanding international law’s “plurality,” that is, of
accepting how various legal traditions interpret international law, has the po-
tential to bring about a more justifiable and legitimate global order.24 The world
encompasses countries that espouse divergent understandings of what law
is and how it is to be executed on the domestic as well as international arena.
International law’s authority can expand if the law itself and its interpretation
and practice are increasingly informed by domestic legal systems. The Islamic
legal tradition is up to the challenge. In the words of Abou El Fadl, “the Islamic
tradition is rich and complex enough to offer flexible paradigms that could be
utilized to address the challenges posed to Islam by the modern age.”25 Several of
my interviewees described sharia or Islam in a similar way. According to Nawaf
Alyaseen, “Islamic sharia rules are very flexible and there is a very large space

24
See Roberts 2017.
25
Abou El Fadl 2003a, 179.
 Int roduc tion 7

to move. It gives us general rules with general meaning: we should be honest,

we should be fair, we should not take other people’s property or harm them. In
other words, it gives us some details but not in all issues.”26 Omar Naas stated
that “Islam is a way of life. It is not just rules ‘do this, do not do this.’ No. You can
do anything if it is good for the people.”27
States within the Islamic milieu, like other states, are to an important extent
subject to social mechanisms that promote compliance with widely accepted
norms of behavior. ILS largely conform to Western-​inspired, classical interna-
tional law. These are the rules of the game. ILS strategize; they also mimic cer-
tain practices of non-​ILS to maximize their participation in global politics.28 At
times, ILS may use Islamic law in a strategic way to protect state institutions
from criticism. The point is that international rules constitute the existing com-
munity standards, and ILS must—​to an extent—​abide by rules of international
law. It is thus not the case that ILS are so peculiar as to be immune from all the
other streams of influence that shape the actions of states. Yet the standards set
forth in international law, as well as considerations of power and strategy, are
not always able to override Islamic norms and values that are deeply embedded
in ILS. International law’s power of persuasion has limits in the Islamic milieu.
Simply put, ILS are less motivated than other states to indiscriminately accept
the legitimacy of international law across the board. In a way, certain concepts
stemming from the Islamic legal tradition continue to be salient in ILS’ global
dealings.29 ILS exist in a world with two normative frameworks: that of interna-
tional law and that of Islamic law. These states are to an important extent unique
in their embeddedness in an additional normative system, that of the Islamic
legal tradition, and this is what this book is about.

A Theory of Islamic Peaceful Resolution

of Disputes
How ILS view international conflict management methods is at the core of this
study. This book introduces nuance into any blanket claim about the relation-
ship between the Islamic milieu and international law and its institutions. This
relationship is context specific: it hinges fundamentally on the domestic legal

26
Author interview with Dr. Nawaf Alyaseen, a Kuwaiti legal practitioner, Future Law Firm;
Legal Consultants, Arbitrators and Mediators, Kuwait City, Kuwait, December 13, 2017.
27
Author interview with Omar Naas, member of Libya’s Constitutional Drafting Assembly,
Kuwait City, Kuwait, December 11, 2017.
28
See Goodman and Jinks 2013.
29
See Fadel 2010 for more discussion.
8 Introduction

system of each of the ILS. Different international conflict management methods

appeal to different ILS, depending on each one’s domestic legal system. I argue
that the answer to the “sharia-​international law nexus puzzle” lies in the diversity
of how secular laws and religious laws fuse in domestic legal systems across the
Islamic milieu. In other words, all ILS are not Islamic to the same degree or in
the same way. Traditional Islam itself dictates a uniform attitude toward interna-
tional law. What varies is the extent to which Islamic law is commingled with sec-
ular institutions within a domestic legal system. In an important way, the Islamic
law/​secular law balance as articulated in a domestic legal system provides an
institutional space that interacts with international law and its institutions.

The Diversity
Each of the ILS embraces a unique relationship between secular laws and re-
ligious laws in its governance.30 Some states officially rely on, incorporate, and
implement Islamic law—​however interpreted—​to a much higher degree than
others.31 As noted earlier, sharia provides a powerful symbol in some of these
states and gets implemented in a fragment of the domestic legal system, while
in other states, the principles of sharia regulate extensive parts of domestic
law, playing a formative role in most of state governance.32 For instance, Saudi
Arabia claims to follow the ancient sharia in its purest form. The Saudi 1992
Basic Law of Governance declares that “Almighty God’s Book, The Holy Qur’an,
and the Sunna” are its constitution.33 In Iran, the Guardian Council consisting
of Muslim jurists is the most powerful body in the country, and it has the power

30
There is also a considerable doctrinal difference within the ILS category, and the Islamic schools
of jurisprudence constitute an important part of the legal landscape within the Islamic legal tradition.
The Shii schools include Jafari, Ismailis, and Zaidis, and the Sunni schools are Hanafi, Maliki, Shafii,
and Hanbali (see Hallaq 2005). There is also the school of law adhered to by the followers of the Ibadi
sect. The strand of Ibadi Islam predates the Shia and Sunni sects, but has a limited reach in the Islamic
milieu. Various ILS represent different schools of jurisprudence. For instance, Saudi Arabia embraces
the Sunni Hanbali school, Oman the Ibadi, Iran the Jafari, Morocco the Maliki, and Malaysia the
Shafii. I consider the doctrinal divergence within the ILS category in c­ hapter 7.
31
As an illustration, as of 2012, the constitutions of Indonesia, Algeria, and Morocco do not even
mention Islamic law, while those of Iraq, Iran, and Egypt all do. I address this variation in much
greater detail in ­chapter 2. For an interesting review of the relation between state and religion in
Islamic societies, see Lapidus 1996. Lapidus argues that “there is a notable differentiation of state and
religious institutions in Islamic societies” (p. 4). For more insights into the concept of the secular, see
Agrama 2012; Ahmed 2016; Asad 2003; Aydin 2017; and Shakman Hurd 2015.
32
The feasibility of including principles of sharia as a part or the basis of modern-​day state
institutions is debated among laymen, policymakers, and scholars alike. For more discussion, see
Ahmed 2016; Hallaq 2013; and Platteau 2017. I address this issue in ­chapters 2 and 3.
33
The Basic Law of Governance of the Kingdom of Saudi Arabia, March 1, 1992.
 Int roduc tion 9

to approve or veto bills passed by the legislature on the grounds of consistency

or inconsistency with Islamic principles. At the other end of the spectrum is
Malaysia, where the provinces determine how much Islamic law gets incorpo-
rated into official local laws. Thus there is not one Islamic law, but many “Islamic
laws”—​depending on how it is interpreted and amalgamated into a particular
domestic legal system within the ILS. Sharia has remade and reconfigured itself
over time as well as throughout the Islamic milieu. My view of Islamic law as a
living legal system, one that can be—​to an extent—​incorporated into modern
structures of state governance, sets this book apart from a view of Islamic law
as an unchanging legal tradition, one that has been calcified in sacred texts and
traditions.34 I believe that in order to appreciate and understand the modern-​day
Islamic legal tradition, it is crucial to perceive it in the context of contempo-
rary societies and their lived experiences. The effects of colonization and the rise
of nation-​states were in many ways shattering for the tradition of Islamic law.
Nevertheless, elements of Islamic law appear in modern structures of state gov-
ernance and thus continue to play an influential role in shaping and reflecting
the preferences and behavior of modern states, societies, and communities.
Islamic law—​however interpreted—​provides the lens through which ILS see
international dispute settlement.
I recognize that sharia is much more than a system of laws. This book attempts
to measure the presence of Islamic law in officially recognized state law; these
efforts should not be taken as equating sharia merely with a system of laws.
Most importantly, I fully recognize that sharia of the past is different from sharia
of the present. I conceptualize the Islamic legal tradition as an ongoing, con-
stantly evolving entity. This continuous evolution is reflected in the domestic
legal system of ILS on the constitutional as well as sub-​constitutional levels.
Thus, in trying to understand what sharia is—​or perhaps what it is not—​it is
vital not only to examine Islam’s foundational sources and pre-​modern jurispru-
dence, but also to make allowance for change. Put differently, the contemporary
study of Islam’s foundational sources should be cognizant of the various societal
milieus and practices that have historically developed in various places that the
Islamic legal tradition is lived.35 There exists one Islamic legal tradition, but it
gets expressed quite differently across states of the Islamic milieu. The ways in
which Muslims understand Islamic law, Islamic justice, morality, and ethics have
always been diverse. As Abou El Fadl writes, “there is considerable flexibility
and variation in how Shari’ah is implemented from one culture to the next, from
one country to the next—​indeed, from one generation to the next.”36 Societal

34
See Hefner 2016; Hussin 2016.
35
See Hefner 2016.
36
Abou El Fadl 2003a, 201.
10 Introduction

engagements with Islam’s textual sources and jurisprudence are to a significant

degree reflected in ILS’ domestic legal systems. Collectively, these engagements
reflect what the Islamic legal tradition is now. The ILS category, fundamentally
embracing this view as it does, allows me to step away from an idealized under-
standing of how text works, and instead provides a useful comparative space to
articulate the considerable degree of legal and institutional divergence across all
these states.37 I rely on the ILS category, recognizing the imperfect relationship
between the societal belief and practice of sharia and the written letter of the law
but maintaining that a greater investment in Islamic law’s presence in a country’s
legal system is a signal of a commitment to a specific identity.
Although this project deals with Islamic law, it is first and foremost a study
on the workings of modern international law in the area of peaceful resolution
of disputes. Taking the diversity of Islamic law into consideration, this project
tackles the following research questions: Does the balance between secular law
and Islamic law in ILS’ domestic laws influence these states’ preferences toward
specific peaceful resolution venues? What factors can explain that some ILS
choose resolution methods that heavily rely on international law, such as inter-
national courts and arbitration tribunals? Why, on the other hand, are some ILS
drawn to non-​binding third-​party methods, such as mediation or conciliation?
In a more policy-​oriented way, I consider whether we should pay sustained atten-
tion to the differences between Islamic law and international law as having the
power to pull the Islamic milieu away from international law and its institutions,
or whether these differences can be mitigated. The main claim of the book is
that in many instances Islamic law points in one direction and Western-​based,
secularized international law points in another direction. Yet this conflict is par-
tially softened by the reality that Islamic law itself has elements fundamentally
compatible with international law.

The Argument in Short

There is a variety of conflict management mechanisms available to states, and all
states, ILS and non-​ILS, are uncertain when choosing a forum to resolve their
disputes. In hopes of reducing uncertainty, states look for clues that help them
form expectations about the settlement outcome. Uncertainty peaks when a dis-
pute is delegated to a third party, especially to an international court or an arbi-
tration tribunal. Whereas non-​legal resolution options do not have to rely on
international law, adjudication and arbitration produce binding decisions based

37
Hamoudi (2010b) discusses the presence of sharia in modern ILS’ governance, emphasizing
legal “selectivity of state processes in giving voice to shari‛a” (p. 300).
 Int roduc tion 11

on law. But in no case can a state be absolutely certain about such a decision.38
Law is subject to interpretation, and many factors complicate the parties’ ability
to forecast the court’s or the tribunal’s legal reasoning. Judges who sit on interna-
tional courts often come from different legal backgrounds, and litigants cannot
be sure which set of principles will provide the basis for the judgment. It is also
unclear if a domestic legal system or systems will guide the court in interpreting
general principles of international law. All states encounter these hurdles.39
Faced with uncertainty and at the same time driven to win cases, states engage
in strategic behavior when seeking out a resolution venue. States forum shop.
The goal is to carefully select a forum that will not only yield the most-​preferred
outcome for a disputant, but also reduce uneasiness associated with the resolu-
tion process itself. The domestic legal system provides a state with clues about
what international resolution forum to choose. Similarity between a disputant’s
domestic legal system and a forum’s institutional design increases predictability
of an outcome.40
The Western-​based legal design of international settlement venues elevates
ILS’ uncertainty associated with settling disputes. For the most part, ILS have
not participated in the creation of international law and its institutions. Thus,
these states had no chance to embed elements of Islamic law into international
conflict management venues. Consequently, issues of uncertainty play a role in
how ILS choose among available forums. There is no automatic international
equivalent for sharia-​based domestic conflict management. The Islamic legal
tradition embraces a specific approach to conflict management, a distinct logic
of social interaction in dispute resolution. This logic fundamentally shapes
the Islamic milieu’s venue choices in the international arena. Sharia-​led social
interaction—​in the domestic or international sphere—​is characterized by four
distinct features: a unique logic of justice, nonconfrontational dispute settle-
ment, collective embeddedness of the third party, and incorporation of Islamic
principles in the resolution process. In place of Western formal approaches to
conflict resolution, traditional Islamic law uses reconciliation, apology, and
constructive dialogue between disputants. Islamic jurisprudence teaches that
amicable informal settlement without resort to formal venues such as courts
constitutes a righteous and morally superior method of seeking justice.41 This
traditional Islamic logic of conflict management delimits venue options for
ILS, at the same time heightening the degree of uncertainty they face in dispute
settlement.

38
Bilder 1981.
39
See Powell 2013a, 2016; Powell and Wiegand 2010 and 2014; and Wiegand and Powell 2011.
40
Mitchell and Powell 2007 and 2011; Powell 2018b.
41
Othman 2007.
12 Introduction

But the presence of sharia-​inspired features of conflict management on the

international level is not equally important to all ILS. I theorize that ILS whose
domestic legal systems are highly infused with a version of sharia will most
firmly adhere to Islamic law–​inspired elements in the international arena. This
expectation holds for substantive law as well as procedural law. International
non-​binding third-​party venues such as mediation and conciliation are proce-
durally similar to sharia-​based dispute resolution. Via these methods, Islamic
law can potentially constitute the basis for settlement if so desired by the parties.
Thus, ILS most committed to the Islamic legal tradition domestically are natu-
rally attracted to mediation and conciliation.42 This subset of ILS can fulfill its
preferences regarding the nature of social interaction by engaging in a broth-
erly solution approach to settlement and by incorporating principles of sharia
in dispute resolution.43 International legal mechanisms, courts and arbitration
tribunals, are unlikely to bring to bear these expectations of ILS about how dis-
pute settlement should be carried out. These legal means of settling disputes
yield binding decisions and are firmly anchored in international law that is
largely based on the Western legal logic. For ILS whose domestic legal systems
incorporate strong secular laws, by contrast, these legal mechanisms constitute
acceptable settlement venues. Secular laws embedded in these ILS’ domestic
laws form a natural bridge with international courts and arbitration tribunals.
The central point is this: there are no general patterns that define the Islamic
milieu’s choices of international conflict management venues. Different ILS are
attracted to different international forums. The balance between Islamic laws
and secular laws within ILS’ domestic legal systems predisposes some of these
states to specific international conflict management venues.

Broader Significance of the Project

To my knowledge, this is the first book in the English language to investigate
empirically whether similarities and differences between Islamic and interna-
tional law matter in shaping ILS’ attitudes toward international conflict manage-
ment venues. In the international relations scholarship, there is a daunting lack
of empirical studies focusing specifically on the Islamic milieu’s view of conflict
management venues. There are important works in the law and Islamic studies
literatures, but most describe Islamic law in the context of its origins, historical

42
I am keenly aware that a heightened presence of Islamic principles in a state’s constitution or
its sub-​constitutional legal system does not automatically indicate compliance with sharia across all
aspects of governance. See ­chapter 4 for more discussion of this important issue.
43
See Powell 2015 and 2016.
 Int roduc tion 13

development, substantive as well as procedural rules, and specific countries.44

Furthermore, traditionally, much of this literature has been primarily descrip-
tive, providing insights into the theory and practice of sharia in the domestic
and international realms. While the law literature—​both comparative and
international—​has produced scholarship that is rich, enlightening, and theoret-
ically innovative, as well as useful in explaining the details of Islamic law by going
beyond the analysis of contracts, obligations, and constitutional and criminal
law, it has not engaged in much systematic empirical analysis.45 In a way, em-
pirical study of these states’ international relations is usually considered to fall
outside of the law’s purview. Granted, there are several pivotal works that tackle
Islamic international law, and hence address the issue of international relations,
international peaceful resolution of disputes, international treaties, Islamic mar-
itime law, humanitarian law, and so on. Again, however, the approach taken is, in
a majority of cases, descriptive and normative, providing a wealth of description
of the dynamics and spirit of Islamic law.46 Intensive case studies on individual
ILS abound. What is missing are the questions of how and why. The theme of
this book is how the variance in Islamic law’s presence in ILS’ domestic legal
systems affects these states’ views of international conflict management venues.
Thus, this book is not purely about law—​international law or Islamic law—​in a
constricted, narrow sense. I am interested in law as a vehicle and as an expression
for ILS’ preferences.
The international law scholarship has also been prolific in producing literature
on peaceful settlement of international disputes in general and on specific inter-
national settlement venues, including the ICJ; its predecessor, the Permanent
Court of International Justice (PCIJ); the World Trade Organization dispute
settlement; and international mediation.47 Most writings on the structure and
practice of these institutions are similar in nature and provide detailed accounts
and explanations of procedural rules and, where appropriate, the substance of
international law. Yet, there is a gap between the general international dispute
settlement literature and the scholarship on Islamic law. To be sure, there is a fair
amount of work that addresses the Islam–​international law nexus in the context

44
Hallaq 2005, 2009b; Mallat 2007; Otto 2010a; Sadeghi 2013; Schacht 1964; Vikør 2005;
Weiss 2006. Additionally, there are illuminating works in the comparative constitutional law litera-
ture that in detail analyze and ponder constitutional politics, history, and legal structures present in
the Islamic milieu. See Brown 2002; Feldman 2008; and Hirschl 2010.
45
Mallat (2007) chooses to use the term “Middle Eastern Law.”
46
See Baderin 2008; Bsoul 2008; Foda 1957; Frick and Müller 2013; Hashmi 2002a, 2002b;
Kelsay 2007; Weeramantry 1988; Yazbeck Haddad and Freyer Stowasser 2004.
47
Aljaghoub 2006; Brown 1997; Collier and Lowe 1999; Klein 2014; Merrills 2017; Shaffer and
Meléndez-​Ortiz 2014; Spiermann 2005.
14 Introduction

of international courts and other venues for peaceful settlement.48 Again, al-
though informative, most of these studies descriptively tackle the relation be-
tween specific rules of Islamic law and international law, without taking up the
question of the underlying logic, mechanisms, causal explanation, and empirical
investigation.
I should like to emphasize that there are a handful of studies attempting to
quantify certain aspects of Islamic law in the context of peaceful resolution of
disputes, such as quantifying sharia’s presence in the jurisprudence of the ICJ.49
Yet, much more empirical work, especially of a quantitative nature, has been
done in other substantive areas of international law, primarily with regard to
human rights law and constitutional law.50 The issue of ILS’ views of interna-
tional conflict management venues has largely remained uncharted by empirical
investigation. In fact, very few books within the Western international relations
scholarship mention Islamic international law, let alone acknowledge it as a
factor important to the Muslim world. Additionally, as Glenn posits, “Everybody
outside of islam has heard bits and pieces of islamic law. They are usually rather
spectacular bits and pieces, viewed from another tradition.”51 This observation
is certainly true for Islamic law as a whole, but even more so for Islamic interna-
tional law. As a result, and with the descriptive/​normative approach leading the
discourse, a gap has opened between the scholarly portrayal of Islamic law and
its application in the international arena.52
Furthermore, no study takes into consideration important differences that
exist within the Islamic legal family, such as the balance between religious laws
and secular laws in each of the ILS. The Islamic legal system does not operate
in a binary manner: Islamic or non-​Islamic. It is, therefore, problematic to cap-
ture the presence of sharia in domestic laws via a dichotomous variable. A de-
piction of any legal system in a categorical way certainly has its merits, but such
an approach breaks down specifically in the case of ILS. Numerous legal details
and nuances beg attention if one is to paint a complete picture of how Islamic
law operates in the domestic context of each of the ILS. One cannot attempt to
understand ILS’ preferences toward international conflict management without

48
Brower and Sharpe 2003; Cravens 1998; Khaliq 2013.
49
Most notably, see Lombardi 2007.
50
Ahmed and Ginsburg 2014; Kalanges 2012. For an excellent data collection on constitutions,
see the Comparative Constitutions Project [website], at http://​comparativeconstitutionsproject.
org/​.
51
Glenn 2014, 190.
52
See, however, Hassner (2007) who reminds us that the knowledge of Islamic legal thought is
important in formulating policies and political doctrines with regard to the Muslim milieu (see also
Hassner 2016, 2009).
 Int roduc tion 15

taking a deep plunge into the many applications of sharia in the specific local
settings of each of the ILS.
Modern discussions regarding the specific character of Islamic law prompt
questions about the nexus of religious law and secular law. The more we com-
prehend and appreciate this practical variation, the better we are able to examine
the relationship between ILS and international law, especially in the context
of conflict management. To reflect on these issues in an empirical way, the re-
search presented here is based on original data on the characteristics of the legal
structures in thirty Islamic law states (1945–​2012). These characteristics, or
variables, capture the degree of interconnectivity between religious and secular
law. To my knowledge, this is the first dataset that contains this important in-
formation and goes beyond coding constitutional features.53 The legal system
as a whole—​including constitutions and what lies beyond constitutions—​
may either constrain or sustain sharia’s de facto role. It is the amalgamation of
constitutions and laws of lower status that fundamentally defines a domestic
legal system in ILS. My data capture not only the cross-​sectional variation within
the ILS category, but also patterns of change over time.54 Most importantly, my
effort to describe Islamic law in a quantitative way allows me to link features of
sharia to specific international conflict management venues.
Data on ILS’ domestic legal systems required coding information from 172
constitutions and major constitutional amendments. Quantification of Islamic
law’s presence beyond constitutions was far more challenging and required an
in-​depth examination of legal practices and institutions across space and time
in thirty ILS. Undoubtedly, there are limits to the information that such data
can provide.55 But these data reveal some interesting patterns that slip through
the cracks of a purely qualitative case-​studies approach. As Simmons notes, “To
quantify is hardly to trivialize; rather, it is an effort to document the pervasive-
ness and seriousness of practices under examination.”56 However, rather than
relying solely on abstract knowledge and statistical data, my theoretical argu-
ment, as well as empirical implications of the book, are embedded in in-​depth
qualitative interviews with Islamic law scholars and practitioners of interna-
tional law, including judges of the ICJ, States’ Legal Counsels in the ICJ and
international arbitration tribunals, the Legal Advisor of the United Nations, and
several policymakers and religious leaders performing various functions in ILS
and non-​ILS. These interviews greatly enrich the qualitative aspect of the book

53
See, for example, Ahmed and Ginsburg 2014; Ahmed and Gouda 2015.
54
See Varol 2016 for an excellent discussion of patterns of change in constitutions over time. See
also Elkins, Ginsburg, and Melton 2009.
55
See ­chapter 8 for an in-​depth discussion of this issue.
56
Simmons 2009, 11.
16 Introduction

and allow me to examine causal factors and mechanisms shaping ILS’ attitudes
toward international conflict management venues. In-​depth conversations with
people who practice or write about Islamic law and international law are the
backbone of my theory. This is also true for the book’s empirical chapters—­​
­chapters 5, 6, and 7—​where references to these conversations make the theory
and statistical results less abstract. Insights from interviews allow me to observe
the broader influences of sharia on the Islamic milieu’s view of international law,
beyond specific cases, issues, and disputes.
References to real disputes involving ILS are the a priori mainstay of this book.
I believe that the nexus of Islamic law and international law must be explored
scientifically in a dynamic way, one that presents both these legal systems as
uniquely rich and vibrant, and as dynamic systems that have changed over time
and will continue to evolve. To this end, the incorporation of both quantitative
and qualitative methods of scientific inquiry provides a means to understand the
strategic interaction between domestic and international legal institutions. Such
a multi-​method approach is ideal since “social science research should be both
general and specific: it should tell us something about classes of events as well as
about specific events at particular places.”57 I am able to test hypotheses flowing
from my theoretical expectations in a rigorous scientific manner, applying sta-
tistical techniques to large datasets, at the same time controlling for a host of
confounding factors. The qualitative in-​depth interviews, by contrast, allow me
to see the general statistical patterns in the context of specific ILS and specific
social environments.58 My hope is that by using quantitative data alongside qual-
itative examples of causal factors, I will encourage at least some audiences to take
this book’s findings into consideration when writing about the Islamic milieu’s
attitudes toward international law.
This book fills the lacunae of the literature by, first of all, going beyond histor-
ical and normative description and moving toward developing a generalizable
theory. In building my argument, I draw on an amalgamation of my own primary
research: novel data on ILS’ domestic legal systems and qualitative interviews, as
well as secondary sources spanning various scholarly disciplines: political science,
international law, comparative law, and Islamic studies literatures. More specifi-
cally, within political science, I build upon the international relations scholarship
that illuminates the role of domestic institutions in affecting the design/​effec-
tiveness of international settlement venues59 and the literature on institutional

King, Keohnane, and Verba 1994, 43.

57

See Shaffer and Ginsburg 2012, 3–​4.

58

59
Alter 2014; Alter and Helfer 2017; Helfer, Alter, and Guerzovich 2009; Mitchell and
Powell 2011.
 Int roduc tion 17

design.60 My book also advances international relations and international law

literatures that elaborate on how international law works in different contexts
and different substantive issue areas.61 Because I embrace the empirical ap-
proach to international and comparative law, this research furthers the “empir-
ical turn in international legal scholarship” in the effort to scientifically assess the
nexus between ILS and conflict management venues.62 Rather than bemoaning
the theoretical discrepancies between international and Islamic law, I investigate
causal factors and ask whether and under what conditions specific ILS use inter-
national peaceful resolution venues.
I introduce a theory that constitutes a theoretical leap forward in the study
of the Islamic milieu. The theory is broad enough to explain ILS’ views of all
conflict management venues, including bilateral negotiations and non-​binding
as well as binding third-​party methods. It offers new lines of sight into ILS’ spe-
cific preferences for nonconfrontational dispute settlement that diverge from
the Western-​based espousal of litigation. Our knowledge of the Islamic mi-
lieu is increased as a result of thinking differently about the ILS category and
disaggregating it across space and time. My goal is not, however, to present a grand
meta-​theory, but a midrange theory about conditions under which international
law “has effects in different contexts, aiming to explain variation.”63 My context, of
course, is the ILS category. In doing so, I believe that in developing such a theory,
one cannot separate law from political considerations, especially when trying to
inquire into the reasons standing behind countries’ actions in the international
arena. Thus, throughout the book, I weave together insights from academic schol-
arship as well as the policy world to illuminate theoretical as well as more practical
dimensions of interstate conflict management. This research as a whole is in no
way a conclusive statement on this topic. Though my theory captures important
aspects of the behavior of ILS, many dynamics remain unexplored. Indeed, the
intricate relationship between law, religion, and politics in the Islamic milieu—​
and its effect on these states’ international behavior—​requires further theoretical
development. Furthermore, no contribution is without shortcomings and limi-
tations. More data on Islamic domestic legal institutions would perhaps support
more comprehensive empirical models of ILS’ preferences. The theory and sta-
tistical results could be further enriched by additional interviews. Nonetheless,
I believe this study constitutes a meaningful primary step to understanding the
Islamic milieu’s view of international conflict management.

60
Abbott and Snidal 1998; Goldstein et al. 2001; Koremenos 2016; Koremenos, Lipson, and
Snidal 2001.
61
Diehl and Ku 2010; Huth, Croco, and Appel 2013; Simmons 2009.
62
Shaffer and Ginsburg 2012.
63
Shaffer and Ginsburg 2012, 1.
18 Introduction

What This Book Is and Is Not Meant to Be

It is crucial to be clear about what this book is not meant to provide or to be.
This book is situated in the political science and international law literatures.
Most importantly, my intention is not to say all that is important about the
Islamic legal tradition or international law, nor to engage with every argument
presented recently in the international law, international relations, comparative
constitutional law, and Islamic studies disciplines. This book does not aspire to
be a textbook on Islamic law. Neither is this book meant to be a detailed histor-
ical account of changes in Islamic law or Islamic jurisprudence. There are many
scholarly works devoted to the Islamic logic of lawmaking, jurisprudence, and
methodology.64 I purposefully avoid focusing on specific contentious issues or
concepts that might come under fire across these disciplines. The number of
examples is virtually limitless, including definitions of the terms “sharia,” “Islam,”
“Islamic,” “Islamic law,” and “secularism,” the division between secular law and
religious law, and the core question of how meaningful it is to talk about Islamic
law’s presence in modern state governance.65 In each of the scholarly disciplines
that contribute to this book’s genuinely interdisciplinary content, these topics
are contested. I deeply acknowledge a strong debt to the literature that addresses
these seminal matters, and thus, throughout the book I refer to the existing
contentions, while leaving to other scholars the arduous task of providing or
questioning definitions. The precise focus of this study is the Islamic milieu’s
preferences with respect to international conflict management venues. Thus,
the workings of international law and how it juxtaposes against the workings
of Islamic law remain at the core of this study. I examine “law on the books” in
various ILS and translate it to “law in action” in the international arena. Hence
my goal is to empirically tackle specific scientific objectives as expressed in my
overarching research questions.
My main goal in writing this book is to challenge some long-​standing
assumptions about the relationship between international law and the Islamic
legal tradition. Again, let me stress that this work is principally about interna-
tional law—​and how it is perceived through the lens of the Islamic legal tra-
dition, especially in the context of peaceful resolution of disputes. In practical
terms, I hope to assist the international law community—​both scholars and
policymakers—​in acquiring an understanding of how the various countries
within the Islamic milieu interpret and view international law and its dispute

Throughout this book, I refer to major works on Islamic law.

64

I elaborate at length on this important issue in c­ hapter 2, particularly in the context of my dis-
65

cussion of the category of Islamic law states.

 Int roduc tion 19

resolution venues. Thus I assess the potential of a fruitful, constructive interac-

tion between the Islamic legal tradition and the international legal tradition. In
an effort to provide a theoretically based and empirically sound assessment of
this relationship, I in no way intend to make a major contribution to the study of
Islamic law. Yet, because of the focus of this book, there is no alternative but to
share with the reader some important details about the Islamic legal tradition.
Consequently, I identify key characteristics of the Islamic legal tradition, based
mainly on extensive secondary research and in-​depth interviews with Islamic
scholars and policymakers. As a social scientist, I believe that I have gathered
enough data of sufficient quality to draw empirically based conclusions to in-
form the reader how different ILS behave with respect to international dispute
resolution venues. Because of the inherent richness, uniqueness, and internal
diversity of the Islamic legal tradition, it is absolutely indispensable to delve
into some of the many particularities—​both substantive and procedural—​of
Islamic law. This necessitates a careful, detail-​oriented presentation of my argu-
ment, which may be somewhat challenging for readers with a background in
international law who are unfamiliar with the Islamic legal tradition. For readers
with a background in Islamic studies, it is important to keep in mind that this
book does not fit squarely in the Islamic-​studies literature. Notwithstanding
its contributions to this literature, this study is intended to add insights princi-
pally to the scholarship on international law, in particular the emerging study of
comparative international law.66 Indeed, understanding how different countries
and—​more broadly—​different domestic legal traditions interpret and conceive
of international law is a scholarly effort worth pursuing. After all, in so many
ways, international law is understood via the lens of those who use it. In the con-
text of this book, the Islamic legal tradition provides the lens.
My research does not directly engage the primary sources of Islam. Instead,
my methodology is truly interdisciplinary and combines the use of secondary
sources, quantitative analysis, and in-​depth qualitative interviews to confirm
and contextualize my theory and findings. Taken together, my original re-
search, conversations, interviews, and a comprehensive variety of secondary
literatures enlighten and alter each other. Particularistic perspectives, lacunas,
and misperceptions are abated by continuous dialogue between these different
methods of scientific inquiry. It has been my most important goal to go beyond
the biases of the authors I cite—​a challenging goal—​particularly because of the
contested topic of this book. I want to present the principles of Islamic law in
neutral, impartial terms, terms that will be simple enough to readers unfamiliar
with Islamic law but at the same time solid enough to those who specialize in

66
Roberts 2017; and Roberts et al. 2018.
20 Introduction

the study of Islamic law. For these reasons, I have decided to minimize the use
of Arabic terms, fully recognizing the challenges that come with translation of
Arabic-​derived words.
The inspiration for this project came out of conversations with practitioners,
scholars of Islamic law, and international policymakers. These conversations re-
peatedly revealed to me the degree to which Islamic law is misinterpreted by
the international community. For every Muslim I spoke with, it was essential
that Islamic law be understood on the international level. All of my Muslim
interviewees saw Islam as a positive, deeply meaningful force in their own per-
sonal life and believed that Islam can carry the meaning of justice into the in-
ternational level. Yet, each person acknowledged an immediate problem: the
resounding difference between what Islam is at its core and how it is perceived
by the international community, especially in the context of dispute resolution.
It is this conundrum that prompted me to write this book. Consequently, this
project is meant to speak mainly to political scientists and to the international-​
law scholarly and policy communities.

Road Map for the Book

The theme of this study is how the changeability of Islamic law’s presence in
ILS’ domestic legal systems affects their views of international conflict manage-
ment venues. In ­chapter 2, I explain concepts fundamental to this study: inter-
national law, Islamic law, and the category of ILS. I present international law and
Islamic law as dynamic systems that have changed over time and will continue
to evolve. I point to several key limitations of canonical categorizations of the
Islamic milieu that arguably have held the scholarship back in efforts to inves-
tigate the relationship between Islamic law and international conflict manage-
ment. The ILS category provides, of course, only one among several theoretical
as well as empirical templates that enable us to understand this relationship. But
I argue that the ILS category offers an efficient and clear-​cut conceptual vehicle
for mapping out the balance between religious law and secular law, and how this
balance translates into ILS’ preferences toward international conflict manage-
ment venues.
In ­chapter 3, I explore in considerable detail differences and similarities be-
tween the Islamic legal tradition and international law. I talk about the historical
interaction between these legal traditions and about the academic conversations
on this topic. There are certainly deep divisions in the literature. Some scholars
portray Islamic law as fundamentally incompatible with classical international
law, while others dismiss existing differences. Mapping the specific character-
istics of Islamic law and international law offers a glimpse of the contrasting
 Int roduc tion 21

paradigms, spirit, and operation of law. I also briefly trace the development of
both Islamic law and international law as legal systems. In essence, ­chapter 3
undertakes a comparative exercise in search of legal areas where the Islamic legal
tradition and international law coexist without conflict, and legal areas where
these two systems diverge. Such discussion of legal traits inherently rests on
heavy description of laws and customs. This chapter identifies three points of
convergence: law of scholars, custom, and rule of law; as well as three points of
departure: the relation between law and religion, sources of law, and religious
features in the courtroom. In an important way, the comparative analysis of
­chapter 3 enables me to lay the groundwork for the theory, which I present in
­chapter 4. It is the matrix between procedural and substantive laws in interna-
tional law and Islamic law that provides the environment in which ILS settle
their international disputes.
In ­chapter 4, I develop the theoretical argument that guides the remainder
of the book. I focus on how and why a domestic legal system reflects the way
that a society regulates and grapples with dispute resolution. Each legal system
advances a different solution to the problem of inter-​societal and intra-​societal
conflict settlement. To that end, Islamic law, as amalgamated into the state law
for each of the ILS, shapes these states’ contemporary dealings. In an important
way, the domestic balance of Islamic law and secular law expressed in each do-
mestic legal system of ILS gets translated into their preferences with respect to
international conflict management venues. My discussion centers on four dis-
tinct legal features that define the most preferred form of social interaction for
ILS: a unique logic of justice, nonconfrontational dispute settlement, collective
embeddedness of the third party, and incorporation of Islamic religious princi-
ples into the resolution process. Ultimately, I argue that however appealing in-
ternational courts and arbitration mechanisms may seem, these venues may face
pushback from ILS whose domestic laws are most infused with tenets of Islamic
law. Such states gravitate toward the third-​party non-​binding methods such as
mediation or conciliation, both of which resemble traditional Islamic law. By
contrast, ILS whose domestic legal systems feature important secular character-
istics are more accepting of international legal mechanisms.
The inherent nature of my research questions requires drawing knowledge
from the legal and political science scholarship. As a political scientist, I am nat-
urally concerned with behavior patterns of ILS. Behavior reflects preferences.
Thus, the next three chapters incorporate a series of statistical analyses to test the
arguments about the Islamic milieu’s preferences with respect to international
dispute settlement. Taken together, c­ hapters 5, 6, and 7 demonstrate that the key
to understanding why some ILS may use international legal mechanisms lies in
the similarities, and not so much in the differences, between Islamic law and in-
ternational law. Despite the fact that these legal systems are frequently depicted
22 Introduction

as diametrically opposed, they are in reality largely compatible. Although the

purpose of the book is to delve into the world of Islamic law to determine if there
is a systematic way to predict behavior in the face of an international dispute,
the book’s empirical chapters offer points of comparison with state behavior
more broadly, including that of non–​Islamic law states. This allows the reader
not only to understand the preferences and behavior of ILS, but to place the
findings in the broader context of institutionalized modes of dispute settlement.
In ­chapter 5, I examine ILS’ decisions to use specific mechanisms for conflict
management in the context of territorial disputes. Perhaps the most intriguing
finding is that similarities between Islamic law and international law matter more
than the differences. However, the empirical patterns support the idea that not all
ILS approach international conflict management in the exact same way. Indeed,
secular legal features, if embedded into the domestic legal system of some ILS—​
in particular, the presence of secular court systems—​have the power to attract
these ILS to legal approaches, arbitration and adjudication. In contrast, media-
tion and conciliation are most appealing to those ILS whose legal systems are
deeply infused with Islamic law. In an important way, there is a synergy between
norms of traditional Islamic dispute resolution and international non-​binding
third-​party mechanisms.
Chapter 6 focuses on the main judicial organ of the United Nations, the ICJ,
and its relation to the Islamic milieu. The Court has been constructed largely
according to the secular, Western legal logic, and thus Islamic law or customs
are not embedded into this international adjudicator. The ICJ as an interna-
tional adjudicator constitutes a particularly interesting case for the study of the
Islamic law–​international law nexus. I ponder whether specific configurations
of Islamic law and secular law within the domestic legal systems of some ILS
can encourage these states to recognize the ICJ’s jurisdiction. Similar to what
I discover in ­chapter 5, ­chapter 6 demonstrates that points of convergence be-
tween the legal system of given ILS and international law—​secular legal features
planted inside these ILS—​can exponentially increase the discovery of shared
legal principles, thereby minimizing discrepancies between these two legal sys-
tems. In particular, the presence of a secular court system and constitutional
mentions of peaceful resolution of disputes promote a favorable attitude toward
the ICJ among its Islamic audience. By contrast, some features of Islamic law, if
embedded into ILS’ domestic legal systems, can discourage these states from
turning to the Court for adjudication. In particular, such seems to be the effect
of sharia-​based education and constitutionally endorsed religious requirements
placed on ILS’ state leaders. Chapters 5 and 6 show that it is impossible to under-
stand ILS’ preferences with respect to international peaceful settlement without
taking into consideration ILS within-​group diversity. Depending on the sec-
ular law/​Islamic law nexus, different ILS are attracted to different international
 Int roduc tion 23

forums, and these differences are washed out by empirical models that try to
measure Islamic legal tradition by a single dichotomous indicator. For instance,
I demonstrate in ­chapter 6 that the ILS category as a group is, speaking in sta-
tistical terms, just as likely as non-​ILS to accept the compulsory jurisdiction of
the ICJ.
Chapter 7 extends the analyses presented in c­ hapters 5 and 6 by focusing
on the Islamic schools of jurisprudence and geographic location. I ask: Do
Islamic schools of jurisprudence matter in how the Islamic milieu views inter-
national conflict management methods? In no other legal system is there such
a diversity of opinion between different schools of law and individual scholars.
Second: Are there regional variations that may be important in this context? The
scholarly literature has been treading behind in pondering whether the regional
particularities of the Middle East, Asia/​Oceania, and Africa, or the doctrines
of specific Islamic jurisprudential schools, contribute to how the Islamic milieu
perceives international conflict management. Thus, much of my discussion in
­chapter 7 is investigative and exploratory in nature. I find that while subscribing
to a specific school of Islamic jurisprudence has no bearing on ILS’ preferences
with respect to international conflict management, regions seem to matter con-
siderably in this regard. While the rise of nation-​states has substantially weakened
the position of Islamic legal schools on the axis of authority, regional customs
and long-​standing traditions continue to play a key role in these societies.
I conclude the book by summarizing the main arguments as well as the main
empirical findings, stressing the timeliness of insights gained through this in-
quiry. I situate the importance of this research in the broader international law
and political science literatures, discussing the implications for policymakers.
Ultimately, I argue that however disconcerting the dissonance between Islamic
law and international law may seem to be, there are more similarities between
these two legal systems than the policy world, as well as the scholarly circles,
account for. Both these legal systems are dynamically evolving and this evolu-
tion has the potential to bring about a much more fruitful conversation between
them. We at the outset of the twenty-​first century seem to be at a loss to sharply
define what Islamic law is, and what might be the most adequate strategies for
understanding how it relates to international law in the context of conflict man-
agement. This book demonstrates that the inherent diversity of the ILS category
should prompt theoretical reflections about how the varieties of Islamic law–​
secular law nexus plot onto these states’ international behavior. International
dispute resolution is what states make of it, and it is up to them to define these
mechanisms. In an important way, international law constitutes a broad enough
framework to grant ILS space to tailor conflict management venues to their own
needs and preferences, as dictated by their domestic legal systems. The issue of
how receptive Islamic law states are to international law and its forums for the
24 Introduction

peaceful settlement of disputes is of great importance for the future of inter-

national law. The question of receptivity is crucial for institutions, such as the
International Court of Justice, specifically created to resolve interstate disputes.
The relationship between the Islamic milieu and the Court—​the main UN ju-
dicial organ—​provides a test for the universality of a major mode of dispute
settlement. International law, including its formalized institutions, continues to
develop and adjust to the requirements of the contemporary international com-
munity. If international law is to be regarded as an effective tool for upholding
global peace, structural biases embedded in peaceful resolution forums must be
mitigated. Effectiveness entails going beyond the power of symbolic authority
and legitimacy, and fostering true agreement and compliance. International law
and the Islamic legal tradition as dynamic and evolving legal traditions both have
transformative potential that if realized can bring about a more peaceful world.
 2

International Law, Islamic Law, and

Islamic Law States

This book deals with how the presence of Islamic law in the domestic legal sys-
tems of Islamic law states (ILS) affects these states’ views of international venues
for dispute resolution. In the introduction, I touched on several core concepts.
It is perhaps easy to rhetorically refer to international law, Islamic law, or states
where Islam plays a key societal role. But what constitutes these categories? My
goal is to select concepts that will not mislead the reader. As Hodgson notes,
“Terms are the units by which one constructs one’s propositions.”1 This chapter
first elaborates on the definition of international law, Islamic law, and Islamic
international law (siyar). I then devote considerable attention to the category of
ILS, providing its definition and explaining its characteristics and internal vari-
ation. In an important way, the ILS category provides a conceptual vehicle that
empirically encapsulates this variance. The ILS category also embodies my be-
lief that in order to comprehend the functioning of the contemporary Islamic
legal tradition, it is crucial to perceive it in the context of current societies and
their lived experiences.2 The Islamic legal tradition should be understood and
debated with a keen consideration for its implementation in the social and polit-
ical world. The reality is that how much Islamic law is infused into a state’s official
legal system varies enormously across space and time. For example, the legal sys-
tems of Nigeria or Lebanon, two relatively secularized countries, are fundamen-
tally different from that of Saudi Arabia or Iran, where specific interpretations
of Islamic law hold a prominent place in the law. The discussion centers on how
the focal point of ILS category—​law—​is distinguished from other like concepts
used in the scholarly literature.

1
Hodgson 1974, 1: 45.
2
See Hefner 2016.

Islamic Law and International Law: Peaceful Resolution of Disputes. Emilia Justyna Powell, Oxford
University Press (2020). © Oxford University Press.
DOI: 10.1093/oso/ 9780190064631 .001.0001
26 Isl amic L aw and International L aw

International Law
To begin, I need to emphasize that this book centers upon public international
law, the law that governs relations primarily between states.3 With time, other
entities were granted the status of subjects of international law—​including in-
ternational organizations, national liberation movements, sui generis entities,
insurgents, and individuals—​expanding international law’s volume, substan-
tive content, and reach beyond the traditional sovereign states. Seagle describes
international law as the “greatest of the empires to be conquered for the reign
of law.”4 Chinkin and Kaldor add that “International law can be described as a
language through which states conduct their relations with other states and in-
deed with civil society, including through institutions. It creates expectations as
to behaviour and thus a predictability in international affairs.”5 Contemporary
public international law covers a vast array of issues such as territorial sov-
ereignty, the environment, trade, human rights, criminal law, and a myriad of
other evolving areas. In the future, international law is likely to cover additional
aspects of state, group, and individual interactions. Private international law is
different in that it regulates private transactions, dealings, and disputes between
legal subjects that involve foreign elements. It becomes applicable when private
parties, such as individuals, companies, and nongovernmental organizations
(NGOs) of different countries, interact with one another. As such, private inter-
national law answers the questions of the application of foreign law to a partic-
ular legal situation and the role of foreign jurisdictions.6
This book focuses on a specific part of public international law—​peaceful
resolution of international disputes—​and conceptualizes how Islamic law and
international law interact in this area. It is a cliché to say that proper conflict
management is critical to global peace. What is more, as Merrills writes, “The
peaceful settlement of international disputes is the most critical issue of our
time. Although human rights, the environment, and economic and financial is-
sues, among other matters, present challenges which must be addressed if our
planet is to have a future, the problems which these subjects pose are always
going to generate an abundance of international disputes.”7 The principle of
peaceful settlement of international disputes, as outlined in the United Nations

3
The term “international law” was first used by Jeremy Bentham. Cassese (2005, 71–​72) lists
states and insurgents as “traditional subjects” of international law, and international organizations,
individuals, and national liberation movements as “new subjects.”
4
Seagle 1946, 349.
5
Chinkin and Kaldor 2017, 24.
6
See Shaw 2003; and von Glahn and Taulbee 2013.
7
Merrills 2017, 328.
 Islamic Law State s 27

Charter, constitutes the backbone of interstate relations and its main objective is
to outlaw self-​help and reliance on force in the event of a disagreement between
states.8 The UN Charter talks about several methods of amicable settlement,
including “a solution by negotiation, enquiry, mediation, conciliation, arbitra-
tion, judicial settlement, resort to regional agencies or arrangements, or other
peaceful means of their [states’] own choice.”9 These methods rest profoundly
on states’ consent, and the disputing parties are at liberty to pick any method
or any settlement venue. Thus states do not have to use international courts or
arbitration tribunals to solve their contentions, but can resort to negotiations
and retain control over the dispute. Often a third party is asked to help in a non-​
adjudicative way as a mediator, conciliator, or a good officer.10 These non-​legal
third-​party alternatives may or may not incorporate international law in the
process of settlement. Arbitration and adjudication constitute the most formal,
binding third-​party methods. Both entail binding decisions rendered in accord-
ance with international law, with disputants agreeing in advance to accept the
award or judgment. These two methods generate an expectation on the part of
the international community that the disputants will abide by the third-​party’s
ruling.11
Some contentions between states deal with questions of law; they are thus
legal disputes. A legal dispute can be defined as “a disagreement on a ques-
tion of law or fact, a conflict, a clash of legal views or of interests.”12 The docket
of the International Court of Justice (ICJ) provides many examples of legal
disputes: disputes over territory, maritime zones, questions of diplomatic im-
munity, and so on. Only legal disagreements fall in the jurisdiction of interna-
tional courts.13 The majority of international treaties stipulate that in the event
of a disagreement over treaty provisions, the parties are to seek peaceful settle-
ment. Often, the parties may choose from a range of methods, and international
courts are usually designated as the final option. However, states’ quibbles are
not always legal in nature, but in some cases deal with political issues. Also,
legal disputes themselves take place in a much larger, political context. In such

8
See Collier and Lowe 1999.
9
UN Charter, chapter VI, Article 33.
10
Via good offices, a third party induces the disputing states to negotiate a settlement. A commis-
sion of inquiry is to ascertain the facts under contention. During conciliation, a third party considers
all elements of the dispute and formally submits suggestions for a settlement. In mediation, the third
party has a very active role in the communication process. Chapter 4 further discusses features of
each dispute resolution method.
11
Simmons 1999. See Powell and Wiegand 2014.
12
ICJ website, http://​www.icj-​cij.org.
13
Such legal disputes are “capable of solution by the application of judicial processes, and suscep-
tible of a decision upon the basis of law” (Collier and Lowe 1999, 14).
28 Isl amic L aw and International L aw

instances, in order for the case to reach the ICJ, it has to be “depoliticised.”14 In
essence, the political and the legal aspects of the case must be separated by either
the Court or the parties.15 Within the ILS category, both types of disputes, legal
and non-​legal, are a mainstay of this book.
International law constitutes a dynamic and ever-​evolving legal system. Its
genesis, as well as subsequent development, stems from a belief that there
exists a universal moral and legal order that should be followed not only in
the context of within-​polity dynamics, but also in the context of between-​
polity dynamics. From very early times, when people started to organize
themselves into tribes and groups, there was a body of norms—​more or less
loosely defined—​that pertained to affairs between these tribes or groups.
Rudimentary norms of inter-​group trade, diplomacy, and conflict emerged
in various communities and across different parts of the globe. These ele-
mentary rules were inevitable, given the coexistence of distinct collectivities.
Bit by bit, unwritten norms and expectations of behavior were systematized,
compartmentalized, and elaborated upon by scholars of international law.
Nowadays, international law, in its various forms and formulas, regulates
the behavior of states and other actors who have been granted the status of
subjects of international law. In its present form and despite its enormous de-
velopment, international law “is not a unified, manufactured system, imposed
upon the world of international or inter-​communal relations.”16 To a large ex-
tent, it continues to grow organically, responding to the needs of the commu-
nity in which it operates, the community of states. At times, the law’s growth
spurts are minuscule. At other times, usually in response to a pressing need,
they are notable and quite radical.
One important development, going back to antiquity, was the emergence of
jus gentium—​in Roman law, the law governing relationships between Roman
citizens and foreigners, and well as relationships between foreigners. Roman
legal scholars introduced the idea that there are two types of laws: one that
each polity creates to regulate inter-​polity relations, jus civile, and another
type that is fundamentally based on ideals of justice that are observed by all
polities, jus gentium.17 The Latin term “jus gentium” translates to “law of na-
tions,” but as used by the Romans it covered relations within a specific polity

14
Merrills 2017, 165.
15
The ICJ addressed the issue of political and legal disputes in the United States Diplomatic and
Consular Staff in Tehran case by stating “legal disputes between sovereign States by their very nature
are likely to occur in political contexts and often form only one element in a wider and long-​standing
political dispute between the States concerned” ([1980] ICJ Rep. p. 3, at p. 20).
16
Lowe 2007, 8.
17
Von Glahn and Taulbee 2013, 25.
 Islamic Law State s 29

and did not fundamentally rest on the assumption that there exists a commu-
nity of states.18 Thus, it is important to keep in mind that the main purpose of
these rules was domestic, not international in the sense that we understand the
term “international” today. The Middle Ages constituted an essential period in
the progression of international law, issuing ultimately in a vaguely defined set
of norms understood as deriving from natural law. Many actors claimed to pos-
sess the authority to govern the legal space that is currently occupied by rules
of interstate interactions. In the Western milieu, the pope, and several orders
prominent within Christendom, asserted privileges over norms governing re-
lations between collectivities such as municipalities and states. During these
times, there was no universal legal order that would apply to all polities and all
institutions. Instead, Christendom and the Islamic milieu saw their relations as
being governed by some sort of supranational rules. In Christendom, the pope,
as the head of the Catholic Church, claimed to have the right to hold authority
over a broad spectrum of international relations. Since then, the position of reli-
giously grounded laws and rules of behavior has changed. Over time, ideas about
international law became increasingly based on reason and scientific evidence.
International jurists saw international law as a separate body of legal norms that
is capable of changing to reflect the conditions of the international system.19 As
Bull writes, “In identifying the sources of the rules by which states are bound,
theorists of international society in the eighteenth and nineteenth centuries
turned away from natural law and toward positive international law; more gen-
erally, they took as their guide not abstract theories about what states should do,
but the body of custom and treaty law that was accumulating as to what they did
do.”20 This evolution has important repercussions for the relationship between
the Islamic legal tradition and international law—​an issue which I address in
much greater detail in ­chapter 3.
International law has since antiquity experienced massive changes.
Globalization accounts for fundamental adjustments in the way that interna-
tional law operates within domestic jurisdictions. There is no reason to believe
that international law as a legal tradition will not continue to evolve, because
states use it as a means to deal with issues they face. As Goodman and Jinks write,
“There are clearly good reasons to think that like-​minded states, at times, coor-
dinate their response to common problems through international law.”21 Every

18
Nussbaum 1954, 9; see also Diehl and Ku 2010, 8. See also Armstrong, Farrell, and Lambert
(2012, 47) for an interesting discussion of the meaning of the phrase “ius gentium” as used by the
Romans.
19
See Diehl and Ku 2010; O’Connell 2008.
20
Bull 1977, 34.
21
Goodman and Jinks 2013, 1.
30 Isl amic L aw and International L aw

era has a different set of common problems. Historically, international law has
grown from a handful of rules and customs to a legal system with immense scope
and reach. This expansion has been occurring not only via increased legalization
of additional areas of substantive law. Modern international law has increased
in scope to govern not only the behavior of states, but also individuals, interna-
tional organizations, and other groups such as national liberation movements,
insurgents, and sui generis entities.22 The increased variety of international ac-
tors has acquired international legal personality, further increasing the reach of
international law. What is more, all these diverse actors have a different set of in-
ternational rights and obligations. Roberts and Sivakumaran address this point
directly in their discussion of the ongoing evolution of international law: “The
concept of subjecthood under international law has widened to include a va-
riety of nonstate entities, such as individuals (particularly under international
human rights, investment, and criminal law) and international organizations
(such as the United Nations). The concept has also become more differentiated;
there is now widespread recognition that different subjects may possess dif-
ferent rights, obligations, and enforcement capabilities.”23 The way that interna-
tional law gets expressed has also changed. In an important way, once clear-​cut
distinctions between the different forms of expression of international law have
become blurred. When actors more frequently resort to soft law, this challenges
the functioning of international law as a legal system based on a traditional set of
legal sources including treaties, custom, general principles of law, and so on. As
Chinkin argues, “international order cannot be viewed on a simple linear scale
progressing from non-​law at one extreme to jus cogens at the other, but rather as a
continuum in which there is a constant complex interlocking between jus cogens
and non-​law or soft law.”24
International relations cannot be predicted in a perfect way; it is therefore
difficult to forecast precisely what the future holds for the development of inter-
national law. Modern international law continues to evolve over time, expanding
its legal authority over a number of substantive issue areas. Procedure in inter-
national institutions changes too. Changes in international law, additional detail
in its rules, and growth in the law’s jurisdiction stem from changes in the in-
ternational system. The world faces different challenges. Law responds to these
challenges. As Shaw writes, “law reflects the conditions and cultural traditions of
the society within which it operates. The community evolves a certain specific
set of values—​social, economic and political—​and this stamps its mark on the
legal framework which orders life in that environment. Similarly, international

22
See Cassese 2005; and Shaw 2003 for detailed discussions of subjects of international law.
23
Roberts and Sivakumaran 2012, 112.
24
Chinkin 1989, 865.
Another random document with
no related content on Scribd:
1.C. The Project Gutenberg Literary Archive Foundation (“the
Foundation” or PGLAF), owns a compilation copyright in the
collection of Project Gutenberg™ electronic works. Nearly all the
individual works in the collection are in the public domain in the
United States. If an individual work is unprotected by copyright
law in the United States and you are located in the United
States, we do not claim a right to prevent you from copying,
distributing, performing, displaying or creating derivative works
based on the work as long as all references to Project
Gutenberg are removed. Of course, we hope that you will
support the Project Gutenberg™ mission of promoting free
access to electronic works by freely sharing Project
Gutenberg™ works in compliance with the terms of this
agreement for keeping the Project Gutenberg™ name
associated with the work. You can easily comply with the terms
of this agreement by keeping this work in the same format with
its attached full Project Gutenberg™ License when you share it
without charge with others.

1.D. The copyright laws of the place where you are located also
govern what you can do with this work. Copyright laws in most
countries are in a constant state of change. If you are outside
the United States, check the laws of your country in addition to
the terms of this agreement before downloading, copying,
displaying, performing, distributing or creating derivative works
based on this work or any other Project Gutenberg™ work. The
Foundation makes no representations concerning the copyright
status of any work in any country other than the United States.

1.E. Unless you have removed all references to Project

Gutenberg:

1.E.1. The following sentence, with active links to, or other

immediate access to, the full Project Gutenberg™ License must
appear prominently whenever any copy of a Project
Gutenberg™ work (any work on which the phrase “Project
Gutenberg” appears, or with which the phrase “Project
Gutenberg” is associated) is accessed, displayed, performed,
viewed, copied or distributed:

This eBook is for the use of anyone anywhere in the United

States and most other parts of the world at no cost and with
almost no restrictions whatsoever. You may copy it, give it
away or re-use it under the terms of the Project Gutenberg
License included with this eBook or online at
www.gutenberg.org. If you are not located in the United
States, you will have to check the laws of the country where
you are located before using this eBook.

1.E.2. If an individual Project Gutenberg™ electronic work is

derived from texts not protected by U.S. copyright law (does not
contain a notice indicating that it is posted with permission of the
copyright holder), the work can be copied and distributed to
anyone in the United States without paying any fees or charges.
If you are redistributing or providing access to a work with the
phrase “Project Gutenberg” associated with or appearing on the
work, you must comply either with the requirements of
paragraphs 1.E.1 through 1.E.7 or obtain permission for the use
of the work and the Project Gutenberg™ trademark as set forth
in paragraphs 1.E.8 or 1.E.9.

1.E.3. If an individual Project Gutenberg™ electronic work is

posted with the permission of the copyright holder, your use and
distribution must comply with both paragraphs 1.E.1 through
1.E.7 and any additional terms imposed by the copyright holder.
Additional terms will be linked to the Project Gutenberg™
License for all works posted with the permission of the copyright
holder found at the beginning of this work.

1.E.4. Do not unlink or detach or remove the full Project

Gutenberg™ License terms from this work, or any files
containing a part of this work or any other work associated with
Project Gutenberg™.
 1.E.5. Do not copy, display, perform, distribute or redistribute
this electronic work, or any part of this electronic work, without
prominently displaying the sentence set forth in paragraph 1.E.1
with active links or immediate access to the full terms of the
Project Gutenberg™ License.

1.E.6. You may convert to and distribute this work in any binary,
compressed, marked up, nonproprietary or proprietary form,
including any word processing or hypertext form. However, if
you provide access to or distribute copies of a Project
Gutenberg™ work in a format other than “Plain Vanilla ASCII” or
other format used in the official version posted on the official
Project Gutenberg™ website (www.gutenberg.org), you must, at
no additional cost, fee or expense to the user, provide a copy, a
means of exporting a copy, or a means of obtaining a copy upon
request, of the work in its original “Plain Vanilla ASCII” or other
form. Any alternate format must include the full Project
Gutenberg™ License as specified in paragraph 1.E.1.

1.E.7. Do not charge a fee for access to, viewing, displaying,

performing, copying or distributing any Project Gutenberg™
works unless you comply with paragraph 1.E.8 or 1.E.9.

1.E.8. You may charge a reasonable fee for copies of or

providing access to or distributing Project Gutenberg™
electronic works provided that:

• You pay a royalty fee of 20% of the gross profits you derive from
the use of Project Gutenberg™ works calculated using the
method you already use to calculate your applicable taxes. The
fee is owed to the owner of the Project Gutenberg™ trademark,
but he has agreed to donate royalties under this paragraph to
the Project Gutenberg Literary Archive Foundation. Royalty
payments must be paid within 60 days following each date on
which you prepare (or are legally required to prepare) your
periodic tax returns. Royalty payments should be clearly marked
as such and sent to the Project Gutenberg Literary Archive
Foundation at the address specified in Section 4, “Information
 about donations to the Project Gutenberg Literary Archive
Foundation.”

• You provide a full refund of any money paid by a user who

notifies you in writing (or by e-mail) within 30 days of receipt that
s/he does not agree to the terms of the full Project Gutenberg™
License. You must require such a user to return or destroy all
copies of the works possessed in a physical medium and
discontinue all use of and all access to other copies of Project
Gutenberg™ works.

• You provide, in accordance with paragraph 1.F.3, a full refund of

any money paid for a work or a replacement copy, if a defect in
the electronic work is discovered and reported to you within 90
days of receipt of the work.

• You comply with all other terms of this agreement for free
distribution of Project Gutenberg™ works.

1.E.9. If you wish to charge a fee or distribute a Project

Gutenberg™ electronic work or group of works on different
terms than are set forth in this agreement, you must obtain
permission in writing from the Project Gutenberg Literary
Archive Foundation, the manager of the Project Gutenberg™
trademark. Contact the Foundation as set forth in Section 3
below.

1.F.

1.F.1. Project Gutenberg volunteers and employees expend

considerable effort to identify, do copyright research on,
transcribe and proofread works not protected by U.S. copyright
law in creating the Project Gutenberg™ collection. Despite
these efforts, Project Gutenberg™ electronic works, and the
medium on which they may be stored, may contain “Defects,”
such as, but not limited to, incomplete, inaccurate or corrupt
data, transcription errors, a copyright or other intellectual
property infringement, a defective or damaged disk or other
medium, a computer virus, or computer codes that damage or
cannot be read by your equipment.

1.F.2. LIMITED WARRANTY, DISCLAIMER OF DAMAGES -

Except for the “Right of Replacement or Refund” described in
paragraph 1.F.3, the Project Gutenberg Literary Archive
Foundation, the owner of the Project Gutenberg™ trademark,
and any other party distributing a Project Gutenberg™ electronic
work under this agreement, disclaim all liability to you for
damages, costs and expenses, including legal fees. YOU
AGREE THAT YOU HAVE NO REMEDIES FOR NEGLIGENCE,
STRICT LIABILITY, BREACH OF WARRANTY OR BREACH
OF CONTRACT EXCEPT THOSE PROVIDED IN PARAGRAPH
1.F.3. YOU AGREE THAT THE FOUNDATION, THE
TRADEMARK OWNER, AND ANY DISTRIBUTOR UNDER
THIS AGREEMENT WILL NOT BE LIABLE TO YOU FOR
ACTUAL, DIRECT, INDIRECT, CONSEQUENTIAL, PUNITIVE
OR INCIDENTAL DAMAGES EVEN IF YOU GIVE NOTICE OF
THE POSSIBILITY OF SUCH DAMAGE.

1.F.3. LIMITED RIGHT OF REPLACEMENT OR REFUND - If

you discover a defect in this electronic work within 90 days of
receiving it, you can receive a refund of the money (if any) you
paid for it by sending a written explanation to the person you
received the work from. If you received the work on a physical
medium, you must return the medium with your written
explanation. The person or entity that provided you with the
defective work may elect to provide a replacement copy in lieu
of a refund. If you received the work electronically, the person or
entity providing it to you may choose to give you a second
opportunity to receive the work electronically in lieu of a refund.
If the second copy is also defective, you may demand a refund
in writing without further opportunities to fix the problem.

1.F.4. Except for the limited right of replacement or refund set

forth in paragraph 1.F.3, this work is provided to you ‘AS-IS’,
WITH NO OTHER WARRANTIES OF ANY KIND, EXPRESS
OR IMPLIED, INCLUDING BUT NOT LIMITED TO
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR
ANY PURPOSE.

1.F.5. Some states do not allow disclaimers of certain implied

warranties or the exclusion or limitation of certain types of
damages. If any disclaimer or limitation set forth in this
agreement violates the law of the state applicable to this
agreement, the agreement shall be interpreted to make the
maximum disclaimer or limitation permitted by the applicable
state law. The invalidity or unenforceability of any provision of
this agreement shall not void the remaining provisions.

1.F.6. INDEMNITY - You agree to indemnify and hold the

Foundation, the trademark owner, any agent or employee of the
Foundation, anyone providing copies of Project Gutenberg™
electronic works in accordance with this agreement, and any
volunteers associated with the production, promotion and
distribution of Project Gutenberg™ electronic works, harmless
from all liability, costs and expenses, including legal fees, that
arise directly or indirectly from any of the following which you do
or cause to occur: (a) distribution of this or any Project
Gutenberg™ work, (b) alteration, modification, or additions or
deletions to any Project Gutenberg™ work, and (c) any Defect
you cause.

Section 2. Information about the Mission of

Project Gutenberg™
Project Gutenberg™ is synonymous with the free distribution of
electronic works in formats readable by the widest variety of
computers including obsolete, old, middle-aged and new
computers. It exists because of the efforts of hundreds of
volunteers and donations from people in all walks of life.

Volunteers and financial support to provide volunteers with the

assistance they need are critical to reaching Project
Gutenberg™’s goals and ensuring that the Project Gutenberg™
collection will remain freely available for generations to come. In
2001, the Project Gutenberg Literary Archive Foundation was
created to provide a secure and permanent future for Project
Gutenberg™ and future generations. To learn more about the
Project Gutenberg Literary Archive Foundation and how your
efforts and donations can help, see Sections 3 and 4 and the
Foundation information page at www.gutenberg.org.

Section 3. Information about the Project

Gutenberg Literary Archive Foundation
The Project Gutenberg Literary Archive Foundation is a non-
profit 501(c)(3) educational corporation organized under the
laws of the state of Mississippi and granted tax exempt status by
the Internal Revenue Service. The Foundation’s EIN or federal
tax identification number is 64-6221541. Contributions to the
Project Gutenberg Literary Archive Foundation are tax
deductible to the full extent permitted by U.S. federal laws and
your state’s laws.

The Foundation’s business office is located at 809 North 1500

West, Salt Lake City, UT 84116, (801) 596-1887. Email contact
links and up to date contact information can be found at the
Foundation’s website and official page at
www.gutenberg.org/contact

Section 4. Information about Donations to

the Project Gutenberg Literary Archive
Foundation
Project Gutenberg™ depends upon and cannot survive without
widespread public support and donations to carry out its mission
of increasing the number of public domain and licensed works
that can be freely distributed in machine-readable form
accessible by the widest array of equipment including outdated
equipment. Many small donations ($1 to $5,000) are particularly
important to maintaining tax exempt status with the IRS.

The Foundation is committed to complying with the laws

regulating charities and charitable donations in all 50 states of
the United States. Compliance requirements are not uniform
and it takes a considerable effort, much paperwork and many
fees to meet and keep up with these requirements. We do not
solicit donations in locations where we have not received written
confirmation of compliance. To SEND DONATIONS or
determine the status of compliance for any particular state visit
www.gutenberg.org/donate.

While we cannot and do not solicit contributions from states

where we have not met the solicitation requirements, we know
of no prohibition against accepting unsolicited donations from
donors in such states who approach us with offers to donate.

International donations are gratefully accepted, but we cannot

make any statements concerning tax treatment of donations
received from outside the United States. U.S. laws alone swamp
our small staff.

Please check the Project Gutenberg web pages for current

donation methods and addresses. Donations are accepted in a
number of other ways including checks, online payments and
credit card donations. To donate, please visit:
www.gutenberg.org/donate.

Section 5. General Information About Project

Gutenberg™ electronic works
Professor Michael S. Hart was the originator of the Project
Gutenberg™ concept of a library of electronic works that could
be freely shared with anyone. For forty years, he produced and
distributed Project Gutenberg™ eBooks with only a loose
network of volunteer support.

Project Gutenberg™ eBooks are often created from several

printed editions, all of which are confirmed as not protected by
copyright in the U.S. unless a copyright notice is included. Thus,
we do not necessarily keep eBooks in compliance with any
particular paper edition.

Most people start at our website which has the main PG search
facility: www.gutenberg.org.

This website includes information about Project Gutenberg™,

including how to make donations to the Project Gutenberg
Literary Archive Foundation, how to help produce our new
eBooks, and how to subscribe to our email newsletter to hear
about new eBooks.