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Friday, February 16, 2024

Islamic Law: is it relevant in the post modern world?

Islamic laws and their application and validity in modern times continues to be a hot topic of discussion.

“There will be in the future an increasing need for non-Islamic countries all over the world to negotiate with Islamic countries on a multitude of matters ranging from questions of war and peace to mercantile contracts.” (Weeramantry)

The continued relevance of Islam in the modern world forms perhaps one of the most interesting discussions under all of Islamic Law. The legalities pertaining to areas such as, but not limited to, Islamic family law, Islamic law of inheritance, and Islamic Law of Contract remain deeply embedded within the constitutions and statutes of Muslim majority countries today.

Read more: Does ‘shariah law’ fit in or clash with Western legal system?

In fact, international treaties and conventions too can be seen to uphold the values and laws of Islamic nations worldwide. After all, early Islamic jurists such as Al Shaybani understood the need to maintain relations beyond religious borders in the form of recognising a concept of Dar Ul Harb, or, Islamic International Law.

A look into Islamic International Law and its relevance

In the words of Al- Shaybani, who is considered the father of Islamic International Law, we see issues relating to, inter alia conduct of war, peacetime relations between Muslims and non-musim countries, international treaty rules, territorial jurisdiction, diplomatic relations, and neutrality rules.

The traditional Sharia norms continue to mark family structures all over the Islamic world and that the Sharia criminal law is still applied a few Islamic countries today

One of the most prominent and distinctive features of the religion of Islam is its recognition of international relationships, or more specifically, a concept of ‘siyar’, that is, Islamic international law, which relates to the relationship between the Muslim realm (dar ul Islam) and the non-Muslim realm (dar ul harb). Time and again, however, the relevance and application of Islamic law becomes subject of heated debate, both as regards domestic and international law in the modern world.

Islamic Laws withstanding test of time: still relevant in the post-modern world

Islam plays an evident role in the cultural, political and legal affairs of many Muslim states and societies, both prior to and since the establishment of the UN. Various Muslim majority countries have effectively incorporated within their legal systems constitutional provisions that recognise Islamic law, eg Arts 1-46 of the Saudi Arabian constitution, Arts 4-12 of the Iranian constitution, Art 2 of the Egyptian constitution and Art 227 of the Pakistani constitution.

Baderin too calls it a truism that international law must necessarily interact with the domestic laws of respective states. In fact, he states that “The participation of Muslim nations in the modern international order does not constitute or even demand a departure from the norms of the Islamic law of nations as such.”

Read more: Family Laws in Pakistan: Dissecting the Procedure

Although some commentators have asserted that Islamic law is neither the problem nor the solution to political and social problems in the Muslim world, a careful review of the political and legal developments in Muslim states such as those mentioned above, and even secular Turkey reveals different degrees of Islamic influence in their politico-legal affairs, which impacts, albeit directly or indirectly, on the application of international law in these states.

Islamic Jurists and Commentators on Islamic International Law

Bielefeldt for instance has observed how “the traditional Sharia norms continue to mark family structures all over the Islamic world” and that “the Sharia criminal law is still applied a few Islamic countries today.” Interestingly, nonmuslim UK too allows an application of Islamic laws of marriage when concerned with Muslim marriages.

Additionally, Buskens notes how “in most Muslim societies, it is impossible to speak about family law except in terms of Islam.” (an obvious example is the contract of marriage; dower and maintenance are still integral to all Muslim marriages).

While there are many notable areas of disagreement, such as the conept of jihad in Islam which is internationally prohibited (Art 51), as well as several punishments such as the amputation of hand or flogging etc, apostasy

This, Buskens argues, signifies the cultural and legal influence of Islam on the one hand, and also has significant impact on the application of international law, especially in relation to women’s rights, in the respective Muslim states. Modizareh has thus observed the need to take Islamic law seriously and engage with it one way or another in relation to the promotion and protection of international human rights in the Muslim world.

International Statute and Conventions

Several regional instruments such as the Arab Charter of Human Rights and the Charter of the Organisation of Islamic Conference, inter alia, make reference to Islam as a relevant factor in relation to international law in the Muslim world.

At the UN Level, the OIC has made submissions on behalf of Muslim states regarding proposed reforms of the UNSC to the effect that “any reform proposal which neglects the adequate representation of the Islamic ummah in any category will not be acceptable to the Islamic countries.”

Read more: ‘Sham marriages’: Europe’s strict laws destroying ‘Genuine’ families

Furthermore, Islam constitutes one of the main forms of civilisations and Islamic law one of the principal legal systems of the world referred to in Art 38 of the statute of ICJ. Similar provisions are found in the ICCPR and ICERD.

How Islamic Law can be applied at the UN and global level

While modern international law is generally perceived as a secular international legal system with its foundations lying firmly in the development of western culture and political organisation, it is well acknowledged that its roots generally reach far back into antiquity and can be traced in the history and norms of different religions and civilizations of the world.

In relation to the Muslim world, therefore, Islamic law and the principles of siyar can be very relevant in that regard. The active participation of Muslim states in international conferences, in the league of nations and UN and its agencies demonstrates that the dar al Islam has reconciled itself to a peaceful coexistence with the dar al harb.

“Historical sources indicate that despite the contemporary custom of waging wars, the Prophet developed a policy of maintaining peace alliances with non-Muslim Arab tribes, with Christain and Jewish communities around Madinah and with leaders of other foreign nations up to the time of his death. Involving Islamic law in addressing international terrorism and management of the global environment is an indication of how it may assist in addressing, on a long term basis, wider issues of international concern.” (Baderin)

Read more: Saudi Arabia’s first Halal nightclub couldn’t fight Islamic laws, closes on first night

A Naim observes the need for the international law to be ‘truly international’, as does Zuhili who observes that “the Islamic system provides for many rules of international relations similar to those under modern international law, such as principles relating to human brotherhood, honoring of human beings and preserving human rights, commitment to rules of ethics and morality, justice and equality, humanitarianism and on warfare”.

“Thus, the 20th-century endeavor to establish an international community, under the auspices of the UN, restricting warfare and promoting internationalism on the basis of peace and cooperation, is not alien to the legal theories and practices of the Islamic law of nations.” (Baderin)

In conclusion, it is quite evident just how Islamic law is still relevant in the modern world. While there are many notable areas of disagreement, such as the conept of jihad in Islam which is internationally prohibited (Art 51), as well as several punishments such as the amputation of hand or flogging etc, apostasy, the ban on hijab in some areas, and the legalization of same-sex marriages, the increasing role of Islam in world politics and the escalating presence of Muslims in Europe and North America underlies the need for common discourse about ethics, morality and law altogether.

Read more: Ban on hijabs, turbans and kippahs: Canada’s secular law under fire

International Lawmakers and commentators have understood and continue to exercise the need to not only consider, but also maintain the application of Islamic Laws internationally; evidence of this comes in the form of treaties and conventions such as those identified above. Hence, the relevance of Islamic Law today is not only a matter of fact, but also pertinent in contemporary society.