Justice in Post-Conflict Settings: Islamic Law and Muslim Communities as Stakeholders in Transition

Author:Corri Zoli, M. Cherif Bassiouni, Hamid Khan
Position:Director of Research Institute for National Security & Counterterrorism/Assistant Professor, Maxwell School of Public Affairs, Syracuse University, US/Emeritus Professor of Law, DePaul University, US/Adjunct Professor, University of South Carolina, US
Pages:38-61
Corri Zoli, M. Cherif Bassiouni and Hamid Khan, ‘Justice in Post-Conict
Settings: Islamic Law and Muslim Communities as Stakeholders in Transition’
(2017) 33(85) Utrecht Journal of International and European Law pp. 38–61,
DOI: https://doi.org/10.5334/ujiel.382
UTRECHT JOURNAL OF
INTERNATIONAL AND EUROPEAN LAW
RESEARCH ARTICLE
Justice in Post-Conflict Settings: Islamic Law and
Muslim Communities as Stakeholders in Transition
Corri Zoli*
, M. Cherif Bassiouni and Hamid Khan
This essay is one of the rst collaborative eorts to identify the underlying norms embedded
in diverse traditions of Islamic law as these apply to contemporary Muslim communities
experiencing conict or transitioning from conict. This long overdue endeavor draws upon
comparative legal analyses, postconict justice traditions, global governance, and empirical
conict studies to explore why Islamic legal norms are not often used as a resource for restraint
and guidance in contemporary conict settings. In exploring this puzzle, the authors make
the case for strengthening commensurate Islamic and international conict norms for complex
conicts and postconict tradition. We also situate Islamic p ostconict justice norms—which
are too often conned to religious and natural law discussions—into contemporary problems of
security policy, conict prevention, and problems of governance. We indicate the many benets
of such a comparative approach for citizens of diverse Muslim and Arabs states and communities,
trying to build pathways out of conict, and for humanitarian and human rights practitioners
working in such arenas toward similar goals. An additional, important benet in excavating
such
shari’a
norms is in providing the intellectual basis to counter politicized, extremist, and
instrumentalist uses of Islamic law to justify extreme uses of political violence across the
Middle East, Central and South Asian, and African regions.
Keywords: Postconict justice; postconict transition; Islamic law; norms; shari’a; governance;
conict; conict prevention; international law; international humanitarian law; international
human rights law; the laws of armed conict; extremism; political violence; Islamism
Introduction
Identifying the norms underlying diverse traditions of Islamic law, especially as these apply to Muslim com-
munities experiencing conflict or transition from conflict, is a long overdue endeavour. As one of our co-
authors, M. Cherif Bassiouni has written, contemporary Islamic legal thinking in the vital area of post-con-
flict justice ‘has been impaired by the lack of development in the techniques and application of. . . the goals
and policy of the shari’a.1 Such a needed contribution would benefit citizens in Arab and Muslim-majority
nations trying to build locally intelligible pathways out of conflict. It would also help humanitarian and
human rights practitioners working in conflict zones toward similar ends and aid international lawyers try-
ing to bridge the gap between international law and Islamic law paradigms in conflict settings.
Yet, perhaps a far more transformative benefit of excavating shari’a norms lies in their ability to provide
the intellectual basis to counter contemporary extremist and instrumentalist uses of Islamic norms to justify
political violence toward innocents across the Middle East, Central and South Asian, African regions, and
beyond. The largely exegetical task of identifying and clarifying such norms is, however, beyond the slim
scope of this essay—and beyond the work of any single individual author. Rather, the purpose of this essay
is to explore why—using interdisciplinary social science and comparative international legal analyses—
such Islamic legal norms are not often invoked as a resource for restraint and guidance in conflict and
* Director of Research Institute for National Security & Counterterrorism/Assistant Professor, Maxwell School of Public Affairs,
Syracuse University, US.
Emeritus Professor of Law, DePaul University, US.
Adjunct Professor, University of South Carolina, US.
1
M. Cherif Bassiouni, Shari’a and Islamic Criminal Justice in Time of War and Peace (Cambridge University Press 2014) 253.
Zoli et al 39
post-conflict settings. Not only do the authors explore this puzzle, we make the argument for strengthening
commensurate norms governing conflict in both Islamic and International Humanitarian Law traditions.
To do this, our approach situates religious and natural law discussions in contemporary problems of
security policy and governance.2 That makes this collaborative work cross-cultural, reliant on legal
pluralism, and also interdisciplinary, in ways reflective of ‘policy-relevant scholarship’ in the international
law and security arenas.3 It is worth recalling that such border-crossing and translational work has shaped
breakthrough moments in intellectual history: the late medieval recovery of Aristotle in the Latin West, for
instance, which went on to spark modern philosophy, including the philosophy of law, occurred by virtue of
Averroës’ Aristotelean commentaries, which made possible Aquinas’s own influential conception of natural
law that came to anchor the universal idea of the rule of law captured in legitimate governance.4
As the ‘religious’5 or ‘sacred’6 law of Islam, shari’a is often defined as ‘an all-embracing body of religious
duties, the totality of Allah’s commands that regulate the life of every Muslim in all its aspects’.7 This body
of norms places ‘on an equal footing ordinances regarding worship and ritual, as well as political and
(in the narrow sense) legal rules’.8 In the contemporary post-9/11 moment, it is critical to recognise two
assumptions that have—for better or worse—framed Islamic legal scholarship. First, on the negative side,
scholars have too often approached Islamic law within theological terms, even conflating law with theology,
despite the fact that discourses of religion and law function in profoundly different ways in society. Law—no
matter how important its inspiration—amounts to a system of rules enforced through social and political
mechanisms and institutions to govern human, worldly behaviour.
Second, on the positive side, scholars have routinely noted that shari’a does not comprise the whole
of Islamic law—far from it. As John Esposito explains, Islamic law refers to both shari’a and qh (Islamic
jurisprudence), as well as other doctrinal sources and opinion (such as hadith), whereas shari’a is God’s
‘divine law’ contained in the Qur’an and Sunna. Fiqh refers to earthly efforts by jurists to interpret shari’a.9
Islamic law is grounded in the shari’a and derived from it through interpretation by jurists, and hence,
shari’a is a normative source of Islamic law, not its entire body.10 To make a comparison, if public international
law generally is comprised of agreements between states, customary rules considered by states to be legally
binding (i.e. opinio juris), case law, and general principles, shari’a amounts to the “general principles” of
Islamic law—the legal precepts and touchstones that orient different schools of thought, juristic opinion,
and state-specific implementations of Islamic norms. While there is no question that religious ideals frame
such precepts—the divine, the afterlife, moral standards of behaviour, the good life—these questions by no
means exhaust the legal content of shari’a principles, which at bottom are resolutely practical.
We, therefore, use Islamic law to refer to all elements of the shari’a and other manifestations of fiqh,
and we reserve shari’a itself for the core, transcendental principles evident in the corpus and sources of
Islamic law. Notably, Islamic law has different internal legal regimes and schools that cover most aspects of
human conduct, both collective and individual, and it includes many legal techniques for prevention and
punishment, victim remedies, and reconciliation.11 What one might call the policy dimensions of shari’a
reflect core principles and historical priorities evident in Islamic law applied (however badly) in practice.
2
For background on legal pluralism, religion, and policy, see Brian Z Tamanaha, ‘The Rule of Law and Legal Pluralism in Development’
(2011) 3 Hague Journal on the Rule of Law 1–17; Bryan S Turner & Berna Zengin Arslan, ‘Shari’a and Legal Pluralism in the West,’
(2011) 14 European Journal of Social Theory 139–159; Paul Schiff Berman, Global Legal Pluralism: A Jurisprudence of Law beyond
Borders (Cambridge University Press 2012); and Sherman Jackson, ‘Legal Pluralism Between Islam and the Nation-State: Romantic
Medievalism or Pragmatic Modernity’ (2006) 30 Fordham Int’l LJ 158.
3
See Paul Schiff Berman, Global Legal Pluralism: A Jurisprudence of Law Beyond Borders (Cambridge University Press 2012).
4
For Thomas Aquinas’s Aristotelian-inspired shift from revealed to natural theology in Summa Theologica (1273), see the text
itself, Part II: Ethics, and Robert Pasnau, Thomas Aquinas on Human Nature: A Philosophical Study of Summa Theologiae 1a 75–89
(Cambridge University Press 2002); for a discussion of Ibn Rushd’s role in the western dissemination of Aristotle, see Robert
Pasnau, ‘The Islamic Scholar Who Gave Us Modern Philosophy’ (2011) 32 Humanities. (Noting by the mid-13th century, the
philosophical curriculum at emerging European universities ‘had become thoroughly Aristotelian, and the great guide to Aristotle
was none other than Averroës, who became known in the Latin West as simply “the Commentator,” which “remained the case all
the way into the modern era”)’.
5
Wael B. Hallaq, The Origins and Evolution of Islamic Law (Cambridge University Press 2005), 1. See also, Mohammed Hashim Kamali,
The Introduction to the Shari’āh (Oneworld Publications 2008) and Mohammed Hashim Kamali, Principles of Islamic Jurisprudence
(I.B. Tauris & Company 1999); Abbas Amanat & Frank Griffel eds, Shari’a Law in the Contemporary Context (Stanford University Press
2007).
6
Gerhard Bowering, ed, The Princeton Encyclopedia of Islamic Political Thought (Princeton University Press 2012) 497.
7
Joseph Schacht, An Introduction to Islamic Law (Oxford University Press 1982) 1.
8
ibid.
9
John L. Esposito, Oxford Dictionary of Islam (Oxford University Press 2003) 148.
10 Bassiouni (n 1) 13–15; 40–43.
11 ibid 39.

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