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Thesis proposal

Is it legal and/or (morally) right for another law to question or pass judgment on another law that have an entirely different source? The relationship between International law and Islamic law has been one of criticism. International law was created in recognition to the ideas of human dignity, justice, individual accountability, protection of basic rights, rule of law, ratiocination and freedom of consciousness. Islamic law is derived from the teachings of the Qur’an and other religious teachings like Sunna and doctrines while international law is one passed on the grounds of preserving the natural rights of the human race and incidentals thereto (for instance environment and trade).

Countries guided by Islamic law have been perceived by the European and Western countries as undemocratic, discriminatory towards women, catalyst for political violence and to some extent conducive for proliferation of terrorism and terrorists (Masud 1). These negative attributes have been blamed on the laws (Islamic laws) and the international forum seeks to have the countries separate religion from state. The international law
seeks to hold states responsible for acts or omissions of its member states organs or agents.

Islamic law is distinct from international law especially in structural; International laws have a vast legal force but are more of an interaction with domestic legal systems. Substantially, Islamic law is concerned with instance law and individual conscience while international law has focus
on broad areas of the law-sea, business, co-operation, among other (Chase 380-382).

The relationship between Islamic law and International has always been reduced to the religious affair versus secular affair or medieval laws versus modern laws. Islamic laws is viewed as medieval in that it refuses to recognize modern changes and let women enjoy the contemporary rights like universal suffrage, non-discriminatory practices at work, freedom of expression, and discrimination on grounds of race, sex, religion among other medieval ‘injustices’ (Chase 377). Another potential source for the conflicts is the notion of sovereignty. International law calls for no reservation in ratification of a treaty whilst (Islamic laws) countries feel this is a deprivation of the sovereignty as they cannot be bound by a treaty they feel obliged to decline.

Islamic law countries are obliged to the Sovereignty of Allah and the supremacy of Qur’an. Any injustice in the Islamic countries is justified by the Sharia laws which are basically Allah guided/Islamized laws (Musad 1). Islamic law criticizes International law which incorporates both natural law theory and positivism law theory to enact laws that check on the arbitrary powers of domestic laws. This is evident in the Universal Declaration of Human Rights, which encompasses both John Locke’s theory of the autonomy and Rousseau social contract. The UDHR has some aspects of religious norms-unalienable rights endowed by the creator.

Positivism of UDHR is in instances of binding the signatories through treaties and agreements (Chase 382-383). Islamic law is a natural law
order and reflects a degree of tension towards positivists, what they referred to as secular laws. Thus Islamic law and International law on human rights fail to be fully compatible on the ground that the Qur’an contradicts with some edicts in the UDHR to what some fundamentalists may
refer to as blasphemy or apostasy (Chase 384-385).

Islamic laws have been regarded as divine and thus cannot be subjected to amendments; there have been epistemological crisis where Sharia laws have been amended to incorporate the modern concepts of jurisprudence and justice which is considered secular by Islamic beliefs/laws. Globalization has a hand in the way some Islamic laws have been amended; Muslims who have settled in non-Muslim countries have questioned the personality of the Sharia laws. Globalization poses the questions of pluralism and thus Islamic laws are exercised on Muslims alone; in the international commerce arena, Muslims may choose to be guided by international business law rather than Sharia law (Musad 1).

The harsh criticism of Islamic law has been blamed on the fact that the critique is ‘orientalist problematic’. Orientalism is an expression that represents cultural and ideological discourse in support of an institution, imagery, doctrines and bureaucracies. It is more of a power struggle and superiority between Western and European countries over the Middle East bloc who subscribe to Islamic laws. Author, Strawnson John argues that Western countries have the ability and power to command attention and superiority and in holding non-western laws in an orientalist gaze, they find the laws to be arbitrary. Strawnson holds the view that the western laws are imprisoned within provincialism camouflaged as universalism (Chase 390-392).

The criticisms are based on unfortunate events that have involved Muslim fanatics/fundamentalists and thus Islamic laws have been painted as violent and cruel. He cautions that in study of Islamic laws by international students, Islamic laws should be viewed from a legitimacy view rather that sociological classification of juristic though; Muslims perceive Sharia law as a duty to mankind, moral, ethical and a spiritual aspiration that is ritualistically observed (Strawson 1).

Nevertheless, Islamic and International laws have norms that are complementary to each other than conflicting; Islamic laws on abidingness of treaties and the rules on self defense are similar to the provisions of International law. Modes of dispute settlement are quite similar as they both aim at reducing the tension. When it comes to religious interpretation, both forum allow for a plurality of valid interpretation for a happily co-existence.

The major difference and cause of criticism between the two forums is the human rights thus for a better co-existence, the differences should be recognized as not insurmountable. A new paradigm should be created that do not dwell on the universalism of the international law or the culturalism of Islamic law, as this would be questioning the validity of either law resulting in no progress for co-existence (Chase 485).

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