Article Review   Khaled Ramadan Bashir   22^nd December 2008

 Ebrahim Afsah, ‘Contested Universalities of International Law. Islam’s Struggle with Modernity’, Journal of the History of International Law 10 (2008) 259–307 

At first glance, the title of this article may seem, to those who work in related fields, imposing.  This feeling might change however, after reading just the first few lines of it.  “The demand for greater recognition of religious law both domestically and internationally is a phenomenon driven by dissatisfaction with the costs of the modernisation process.”[1]  The idea of modernity is, and remains, unclear throughout the whole article; the reader is left wondering how modernity can be interpreted to mean International Law.  If you assume it is contemporary International Law, while reading you will no doubt think that this law is actually the outcome of another ancient practice (Christendom).  For the sake of understanding the rest of the work, we shall assume that the legal structure of the Westphalian time is similar to the modern structure.  The author, quoting Khadduri, explains the Islamic struggle with modernity and its difficulty to accept the notion of equality between states derived from Westphalia.[2]  A deep look at the ‘modern International Law’ can only confuse the reader further.  Equality in International Law in its contemporary form is a vague term that can only be understood after a diagnosis of the Balance of Power theory.  One look at the UN Charter, where only five out of more than 190 members enjoy untold privileges for life, can override the whole theory of Equality that states, hypothetically, enjoy in the ‘modern’ International Law.                

 In the same line, the author, after claiming that modern international Law is built on equality of nation-states, asserts that in this system you can only succeed, as a state,  if you acquire both military and economic power (according to the Realpolitik theory). [3] 

From another angle the author supports Weber’s claim that “modernity, characterised primarily by rationality, developed in Western Europe and nowhere else” [4] i.e. due to rationality and by not being held back by divine laws in this part of the world.[5]  This blind belief held by both scholars demonstrates two facts:  first, neither of them have a genuine understanding of Islamic International Law (IIL); otherwise they would not have ignored the rule of rationality and juristic reasoning deeply incorporated in it. The fact that they have failed to recognise this reality of IIL is an unforgettable mistake on the part of two ‘specialised’ scholars.  Islamic International Law is built on a few general principles of divine rules; it is one of the very few areas of Shari’a where ‘lawyers’ have the chance to use rationality rather than having to completely adhere to certain fixed terms.  For example the main work on IIL As-Siyar Al-Kabir, written by A-Shaybani in the eighth century, is a clear demonstration of the wider role of juristic opinion in the law making procss of IIL.[6]  Secondly, the author and Weber's statement suggests that only Western Europe had the method which gave birth to modern International Law; it indicates that divine Law is the obstacle preventing the rest of the world’s advancement towards rationality and consequently complying with modernity.  Since the reason for ‘backwardness’ is the place given to divine laws and since it is only the western states who are at ease with modernity, the statement implies that the rest of the world is governed by divine Law.  Consequently, we should either think of the rest of the world as a world of divine laws or as a Muslim world.  Unfortunately neither of these thoughts is factual; therefore the content of the author’s argument is illogical.

 It is clear that the Author falls into a contradictory argument repeatedly.  He asserts that: the reason behind not accepting modernity in the developing world (not only in the Islamic one) is the fact that it was alien to these societies and normally imposed by/after colonisation.  In addition “this external imposition entailed a very rapid modernisation process often overwhelming the capacity of local institutions to adapt.”[7]  Using the term ‘developing world’ indicates the fact that the intended ‘modern International Law’ is facing the same problem both in Islamic and non-Islamic states. This makes the whole argument of attributing the Islamic states’ attitude to modernity to their divine legal system of quite uncertain application.  Moreover, this raises the question: if the author confesses the opposition to modern International Law in the entire developing world, why search for a separate explanation in the Islamic-states and not look at reasons for International Law’s wider dissatisfaction in the developing states in general?

 The author’s claim that the Muslim world seeks to apply IIL to Muslims and non-Muslims alike is defeated by the fact that obeying Islamic Laws is only a duty of those who believe in Islam.  In the Quran, which is the core of Islamic Law, when God orders people to abide by a rule, he orders only those who believe; using common phrases such as: O you who believe; Say to those who believe.[8]  In contrast, the term ‘O people’ is normally used when God is calling people to monotheism, when reminding them of God’s favours upon them or to remind them of the Day of Judgment, for example.  Furthermore when you read the Quran it is undeniable that God made it clear to Mohammad that his mission is to preach the message and not to impose it.  This is found in many verses of the Quran such as: “Say: O people! indeed there has come to you the truth from your Lord, therefore whoever goes aright, he goes aright only for the good of his own soul, and whoever goes astray, he goes astray only to the detriment of it, and I am not a custodian over you.”[9]

The idea of suggesting IIL as an international tool is only to give an alternative to what could be considered in many ways as the failure of modern International Law.   Hence, non-Muslims like, The President of the International Court of Justice, Judge Weeramantry went even further with his preference for applying many concepts of IIL to the Western ones in some cases.[10]  Ironically, the final justification of Afsah’s rejection of Judge Weeramantry’s advice to create “an appreciation for the civilisational contribution of Islamic Law”[11]  is that the latter requires a different style of reasoning than that of modern international law. He alleges, “Engaging in a jurisprudence discourse with adherents of the system of sacred law requires approaches quite at variance with those familiar to Western lawyers.”[12]  His explanation of that is a difficulty that might face “someone not steeped in a religious belief system to accept divinely ordained limitations and attendant restrictions they are claimed to place on the exercise of rational argument.”[13]  Talking of rationality in arguments, the author’s main point here is that it is difficult to accept some basic divine restrictions.  Meanwhile, he is claiming that we (all of mankind) should accept the Western module, which is human made. As it is, such a claim is clearly irrational.  Since we are not all Muslims nor are we all Westerners, I believe that we should be examining what is in those legal systems and use rationality to infer, together, what could be our true equality-based international law. After all there is no rationale behind imposing the Western system, or any other regional system, as a yard stick to measure what is rational and what is not.

 For the sake of argument we shall agree that divine law in the Muslim World is the cause of clashes with ‘modern International Law’.  However, as abovementioned, what is the cause of the dissatisfaction with the latter by many other states in the developing world? This is a question that demands an urgent answer. Further, what is the reason for a famous Japanese International Lawyer like Yasuaki Onuma to reject the Western notion of International Law?[14]  And what is the philosophy behind the prominent Western scholar Carty’s disappointment with it.[15] Islam can not bear responsibility for all of this.  It is time that we address the main cause of the international ubiquitous disillusionment with modern International Law and use rationality to accept the ideas of others for the sake of advancing this system even if we do not want to acknowledge this borrowing.                      

In his attempts to explain the Islamic states’ failure to adopt modernity, the author quotes Weber saying that: sacred law is “one of the most important barriers against the rationalisation of legal order and economy.”[16]  This claim can only be true if the following are so: firstly, all, or at least most, of the Islamic states are currently governed by Shari’a; Secondly, Islamic states have never been successful as glorious civilisations for hundreds of years in history, while they apply Islamic Law. Neither of these two assumptions is proven by the author. Therefore, it would be naïve and unscientific to blame divine law for causing a situation that it did not cause. In fact the absence of divine law in present Islamic states, which are certainly living in difficulties, represents only good memories to Muslims when they compare their fascinating past, living under the justice of divine law to their present, when sacred law is normally absent.

 In her seminal work, K. Basko[17] (2006) points out the fact that the books which people read about Islam in the West are full of misinterpretation of the Arabic and Islamic culture. She describes them as prejudgemental and as promoting of the clash of civilization.[18] Unfortunately, this article too shows a continuity of a sweeping movement by some scholars who are still, as it is demonstrated in the theory of Orientalism, exhibiting the ‘Others’ with a picture that even they failed to recognise after awhile.  For example, the stereotyped ideas of Islam being the religion against science, against innovation and against justice is dominantly present in this article, and as usual, without any genuine proof. [19]

 Be that as it may, the claim that the Islamic world rejects the very idea of modern international law, just so as to reinstall IIL requires evidence. An-Na'im speculates that “the relationship between Islamic law and international law should be seen in terms of a more inclusive approach to the latter, rather than conflict or competition between the two.” [20] Furthermore, history shows that Muslim states did not hesitate for a moment to join the United Nations, for example.  The hesitance of Muslim states as well as many non-Islamic ones started when modern international law came to be unshelled from its main elements.  Namely, when the principle of non-interference in domestic affairs started to contract, states both Muslims and non-Muslims began to develop a wary sense against this originally alien system of international law.  This is because interference in domestic affairs affects the cultural givens within those states, a matter that they were not prepared to accept when they joined the UN.  Furthermore, modern international law built on nothing but powerful states’ own desire and interest has brought untold sorrow into the world of small and weak entities, whose hope in the modern international law was to enjoy an equality that was never granted.  The barbaric use of force continued to be used by strong states. The absence of change in the many developing states that adapted modern international law and the unremitting self-interest-motivated interventions of the strong states in the domestic affairs of the weaker ones made modern international law fail its own test.  Modern international law is now far from complying with the Westphalian system praised by the author.

 This attempt to clarify the alleged clash between Islamic International Law and modernity has negatively contributed to the confusion of understanding this system in the West more than ever before. This is clear on many occasions where the author contradicts his own statements in the same work to describe Islamic Law.  On the one hand, for example, throughout his article the author tried to demonstrate that Islamic Law is divine law and therefore there is no room for human reasoning or rationality in it; on the contrary he asserts that both fiqh as well as siyasa “are ultimately man made.”[21]  A reader of such an article can only seek refuge in reading another one to understand the misconceptions about Islamic Law contained in it.

While trying to prove that Islamic International Law As-siyar (siyar) is not capable of addressing our needs today, the author (merely) addresses it as a pre-modern normative system.[22]  He spares no time in discussing the essence and objects contained in Islamic International Law, even when refuting the claim that it is likely to be compatible with modern international law.   Indeed the author manifestly fails to give the correct Islamic interpretation for Quranic verses when he does quote them.  In an attempt to argue that Islamic International Law is warlike and that coexistence does not exist in it, he quoted “if there were two gods, the universe would be ruined” from the Quran.  The full verse in the Quran reads: “If there had been in them any gods except Allah, they would both have certainly been in a state of disorder; therefore glory be to Allah, the Lord of the dominion, above what they attribute [to Him]”.[23]  When you come to know this verse you can see it stands for the godly call to humanity to believe in one god,[24] by signifying the heavens and earth are perfect only because they are governed by one being. Islam shares with Christianity the monotheism which is the essential ground of the principle of universality.  The principle of peaceful coexistence existed in Islam before it was known in the west.  Not only has Islam prevented wars whenever possible, it has also prioritised some peaceful methods of conflict resolutions, even if a war has started or is about to start. [25]  Hence, the fact that this writer is dealing with the subject today makes it ever so clear his lack of thorough understanding of Islamic Law in virtually almost the only concrete case he cites of what he thinks is Islamic international law.  

          In summary, at the beginning Islamic states have accepted, adopted and applied ‘modern’ International Law in its Western form. Yet the failure, corruption and unfairness of the latter in many cases especially at present in Palestine and Iraq, have yielded the desire to retreat to the justice of Islamic International Law in the Muslim world.  Furthermore, if the desire to apply Islamic International Law was the drive behind Muslims’ desire to abandon ‘modern’ International Law, what is the reason for the identical attitude by many other non-Islamic states?  As for the unique nature of Islamic International Law, it is shocking in the scholarly world to discriminate against a system of justice because of its origin, nature or name.  To make matters worse the author’s lack of understanding of the criticised subject and indeed his lack of engagement with the details of this subject is clear in many parts of his work.  Islamic International Law, as well as any other legal system, should be entitled to the right to be studied and deeply analysed before being prejudged over and over again.  Finally, given the fact that this article is published in one of the best International Law journals, it shows that a thorough study to introduce a system such as IIL, that has been judged by many and read by few, is greatly needed.