Siyar-Ization and Its Discontents

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Citation: 30 Tex. Int'l L. J. 499 1995

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Siyar-ization and Its Discontents:
International Law and Islam's
Constitutional Crisis
CHRISTOPHER A. FORD t
SUMMARY
1. INTRODUCTION .............................................. 499
II. THE CLASSICAL LEGACY AND ITS CRISES ........................... 500

A. Imperial Islam .......................................... 501
-B. Islam's "NationalitiesProblem" .............................. 505
1. Theocratic Unitarism .................................. 505
2. Islamic Fragmentation ................................. 506
3. Juristic Responses .................................... 507
4. The Paradox of Islamic Nationalism ........................ 509
C. Dividing Theory and Practice .............................. 513
1. Abroad: From Expansion to Accommodation ................. 513
2. At Home: Reform and the Shari'a ......................... 515
ii. ISLAMIC LAW AND INTERNATIONAL JURISPRUDENCE ................... 517

A. Treaty Law: Article 38(1)(a) ............................... 518
B. Custom: Article 38(1)(b) .................................. 522
C. GeneralPrinciples:Article 38(1)(c) .......................... 525
D. Caselaw and Publicists:Article 38(1)(d) ....................... 527
IV. CONCLUSION ............................... ............... 530
I. INTRODUCTION
As this Article was being written, federal officials were prosecuting a motley collection
of alleged conspirators for purportedly masterminding an elaborate terrorism campaign
throughout New York City. The accused were a veritable rogues' gallery of Western
imaginings of Islamic radicalism, and none more so than the blind priest-the so-called
"mad mullah"-said to have been their spiritual counselor who placed the imprimatur of
Islamic holy war (jihad) upon the murderous deeds for which they have been indicted.
Conscientious Western observers remind themselves that these men do not represent Islam,
that the Muslim faith is today a broad umbrella, and that the Muslim world is yet capable
of encompassing such diverse personalities as the hated Ayatollah Khomeini of Iran and the
much-subsidized U.S. ally Hosni Mubarak of Egypt-not to mention hundreds of millions
of ordinary people living quite ordinary lives.
Yet clearly something is afoot with this volatile religion so little understood in the
West. The religious upheavals that have occurred in recent years in the Islamic world,
t B.A., Harvard, 1989; D.Phil. Oxford (Christ Church). 1992; J.D., Yale, 1995. The author wishes to thank
his wife, Jennifer Lynn Davis-Ford. for her boundless love. kindness, and patience.
TEXAS INTERNATIONAL LAW JOURNAL [Vol. 30:499
brought most cruelly to the attention of Americans with the collapse of the Pahlevi dynasty
and the ascendancy of the hostage-taking Iranian clergy in 1979, dramatize the continued
(even increasing) salience of Islam as a force in the international community. To shed light
upon the dynamics which drive this force, this Article attempts to explore Muslim relations
with the non-Islamic world through the mirror of Islamic legal doctrine itself and to offer
an analysis of the doctrinal and political crisis that presently afflicts this most vigorous of
monotheistic faiths.
Part I of this study examines the classical traditions of the Muslim law of nations, the
siyar. The siyar has its origins in the radical monist project of the Islamic faith, which
insisted not just upon the worship of a single god, but also upon the establishment of a
unitary theocratic state encompassing all the earth and fulfilling the precepts of the divine
Law, or shari'a. Over time, this universalist and unitarist aspiration-in its parsimony and
power perhaps early Islam's greatest source of strength-has become the source of Islam's
great crisis. Islamic doctrine has been unable to reconcile itself fully to a Muslim world in
which political power has passed to multiple fractious successor states, each claiming but
not possessing the legitimacy of the caliph's mantle. In its struggles to come to grips with
these changes, both the siyar and the domestic-constitutional precepts of the shari'ahave
only exacerbated a radical bifurcation in Islam between sacred law and secular authority.
This separation lies at the core of modem Islam's constitutional crisis.
Part II attempts to illustrate what these doctrinal dynamics mean with respect to the
siyar, taking as a point of departure some commentators' attempts to depict the siyar as
being congruent with the sources-doctrine of modern international jurisprudence as
understood by the International Court of Justice (ICJ). These attempts merely whitewash
genuine discrepancies between international norms and the principles grounding the siyar-
incongruities which stem ultimately from the constitutional crisis faced by a unitarist Islamic
jurisprudence that finds itself stranded in a fragmented world. The siyar cannot be said to
be genuinely compatible with modem international jurisprudence with respect to treaty
principles, customary law, general principles of law, precedent, or even the teachings of
eminent publicists.
The closing of these gaps must await Islam's more general resolution of its broader
crisis. Ultimately the Article, though it advances some tentative and perhaps overly
optimistic suggestions about how this might be accomplished, suggests that power and
principle will not soon be reconciled in Islamic law. This conclusion is buttressed by the
popularity of Islam's radical revivalism which builds much of its appeal upon offering its
own way across the gulf between real and ideal, but which may well prove powerless to
provide it.
II. THE CLASSICAL LEGACY AND ITS CRISES

In theory, the Islamic law of nations, or siyar, is not a body of law separate from the
rest of Islamic jurisprudence. For Muslims, it is a necessary corollary of monotheism that
the law also be monist. If there is no god but Allah, there can be but one sacred Law-that
of His word as revealed through the Prophet Muhammad and embodied in the holy Qur'an,
in the sunna (the collected "sayings, deeds, or tacit approvals"' attributed to the Prophet),
I. SUBHI MAHMASSANI, THE PHILOSOPHY OF JURISPRUDENCE INISLAM 71 (Farhat J. Ziadeh trans., 1987).
1995] SIYAR-IZATION AND ITS DISCONTENTS
and in jurisprudence based upon the principles contained therein.2 Thus, "[s]trictly
speaking, there is no Muslim law of nations in the sense of the distinction between modem
municipal (national) law and international law based upon different sources and maintained
by different sanctions." 3 Nevertheless, although the siyar is an integral part of the unitary
corpus of Islamic law (the shari'a), the term is taken to mean "the sum total of the
principles, rules and practices governing Islam's relationships with the other nations," 4 and
its development has partaken of custom and reason more than most other areas of Muslim
jurisprudence.'
A. Imperial Islam
The core concepts of the classical siyarresult from the universalist ambitions of Islam:
As the revealed Word of Allah, superseding all previous prophecies and providing the divine
Law to guide all human affairs, Islam recognized no other legitimate legal order.
The basic assumption underlying Islam's external relations with other nations is
the principle that only the community of believers is the subject of the Islamic
legal and ethical system, while all other communities are the object of that
system .... The ultimate objective of Islam was to establish peace within the
territory brought under the pale of its public order and to expand the area of the
validity of that order to include the entire world.6
In theory, therefore, the siyar was to be merely a temporary institution, destined to be

succeeded by a unitary Islamic system as swiftly as the rest of the globe could be brought
within the community of believers ('umma).
The story of the development of the siyar is that of the collision between this
uncompromising hegemonism and the impossibility of conquering or converting the whole
of humanity-in short, of the relationships forced upon Islam by its encounters with
powerful non-Muslim states in the world beyond its Arabian heartland. The temporary
2. Early Muslim jurisprudence permitted ajudge wide discretion in applying the law, leaving ample scope for
the application of personal opinion, or ra 'y. To many jurists, however, it seemed arrogant to give the opinion of
men a status seemingly equal to the divine will, and, during the first 150 years after Muhammad's death in A.D.
632, rival schools staked out positions either for or against the doctrine of ra 'y. See NOEL J. COULSON, CONFLICTS
AND TENSIONS INISLAMIC JURISPRUDENCE 4-5 (1969) [hereinafter COULSON, CONFLICTS]. The doctrinal solution
to this dilemma was provided by Muhammad Ibn-ldris Ash-Shafi'i (b. A.D. 767) who renounced the use of mere
human opinion in giving judgment but permitted jurists to use analogical reasoning, or qias-a methodology by
which principles deduced from one holy source could be applied by analogy in an area not expressly governed by
scripture or Prophetic tradition-as a source of the law. See NOEL J. COULSON, A HISTORY OF ISLAMIC LAW
57-59 (1964) [hereinafter COULSON,A HISTORY]. In this way, at least some accommodation was found between
human reason and divine revelation.
3. MAJID KHADDURI, WAR AND PEACE INTHE LAW OF ISLAM 46 (1979).
4. THE ISLAMIC LAW OF NATIONS: SHAYBANI'S SIYAR 8 (Majid Khadduri trans., 1966) [hereinafter SHAYBANI]
(from the translator's introduction). Unless otherwise noted, all subsequent citations from SHAYBANI will be from
the translator's introduction by Khadduri.
5. Id. at 9; see also Gamal M. Badr, A HistoricalView of Islamic InternationalLaw, 38 REvUE EGYPTIENNE
DE DROIT INT'L 1, 1 (1982) (noting that Islamic siyar is largely ajurist's law and that "[t]here is very little which
is rigid and immutable in Islamic law"). As Shameem Akhtar has noted, the siyar thus developed "elaborate rules
of war, peace, treaty and neutrality governing the relationship of Muslim and non-Muslim states some eight
centuries before Grotius and others wrote their treatises on the Modem Law of Nations." Shameem Akhtar, An
Inquiry into the Nature, Origin and Source of Islamic Law of Nations, 6 Karachi L.J. 63, 71 (1970).
6. Majid Khadduri, The Islamic Theory ofInternationalRelations and Its ContemporaryRelevance, in ISLAM
AND INTERNATIONAL RELATIONS 24. 24-25 (J. Harris Proctor ed., 1965) [hereinafter Khadduri, The Islamic
77teory].
period in which the siyar was to govern relations with the infidel world turned out to be
many centuries long, and "the failure to achieve [hegemony] rendered the siyar a permanent
and an integral part of the sacred law." 7
Both Quranic injunctions and the subsequent traditions of the Prophet envisioned the
world being divided into two territories, the dar al-Islam (the "abode of Islam") and the
dar al-harb (the "abode of war")," each existing in fundamental opposition to the other.
Since it was believed that "the dar al-Islam which, conforming to the ways of Allah,
provide[d] the ultimate and perfect society" 9 -and since it was Islam's mission ultimately
to incorporate all the world-these two regions could never (in theory) achieve a lasting
peace. The siyareven lacked a concept analogous to modern neutrality. In the early Islamic
precedents, no area of the planet was theoretically protected from Islamic expansion; any
neutrality that might exist was temporary, and granted only ex graciaby Islam for reasons
of expediency.'0 Nevertheless, during the brief times of peace that might be necessary
along the journey to Islamic ascendancy, the Islamic state "took cognizance of the authority
or authorities that existed in countries that had not yet been brought under Islamic sovereign-
ty."" It fell to the siyar to regulate Muslim relations with the infidel during this narrow
and temporary interlude.
The instrument by which Islam's hegemony would be achievedwas thejihad,meaning
"exertion" or "struggle"-a term also commonly translated as "holy war." The struggle,
however, did not necessarily have to entail violence. Although it required continual exertion
and a state of unceasing theoretical conflict, participation in this holy endeavor could be
accomplished by the heart, the tongue, and the hands, as well as the sword.' 2 ihad was,
in other words, a state of general conflict "in which other forms of non-violent persuasion
are equally valid."' 3 Applying collectively upon all of Islam, 4 however, jihad was a
duty supported by the Quranic injunction to fight unbelievers "wherever you may find
them." i hadwas, moreover, an exclusive form of Islamic warfare: No warmaking was
7. Majid Khadduri, Islam and the Modern Law of Nations, 50 AM. J. INT'L L. 358, 359 (1956) [hereinafter
Khadduri, Islam and the Modern Law qf Nations].
8. The daral-Islam seems to have been somewhat variously defined, with its classification dependent (in some
scholars' accounts) upon the freedom enjoyed by Muslims in a particular territory to follow the shari'a. (Since
traditional Islamic law-with the exception of some adherents of the Hanafi school-recognized personal but not
territorial jurisdiction, the dar al-Islam need not correspond exactly with geographical divisions of political
authority between "Islamic" rulers and infidel powers.) In the late nineteenth century, some Muslim scholars even
classified British-ruled India as being part of the dar al-islam, on the grounds that even though its ruler was not
Muslim, British law allowed the shari'ato govern most relationships among Muslim subjects. KHADDURI, supra
note 3 at 156-57; SHAYBANI, supra note 4, at 7 (noting that Hanafi jurisprudence considered law to have some
territorial basis).
9. David Bonderman, Modernizationand ChangingPerceptionsof Islamic Law, 81 HARv. L. REV. 1169, 1170
(1968).
10. One possible exception that Khadduri notes is the kingdom of Ethiopia, which for some reason (possibly
related to its early hospitality to Muhammad's followers) was voluntarily declared beyond the reach of Islamic holy
war (ihad). See KHADDURI, supra note 3,at 253-58.
II. Khadduri, The Islamic Theory, supra note 6, at 27.
12. Id. at 29.
13. David A. Schwartz, Note, InternationalTerrorism and Islamic Law, 29 COLUM. J.TRANSNAT'L L,629,
642 (1991). "Thejihad, in the broad sense of exertion, does not necessarily mean war or fighting, since exertion
in Allah's path may be achieved by peaceful as well as violent means. Thejihad may be regarded as a form of
religious propaganda that can be carried 6n by persuasion or by the sword." KHADDURI, supra note 3, at 56,
14. The duty ofjihad, however, was owed collectively rather than individually. There does not appear to have
been any requirement that individual believers necessarily participate. See KHADDURI, supra note 3. at 60-61.
15. SHAYBANI, supra note 4, at 58 (quoting THE HOLY QUR'AN IX:5). Again, it was the jurist Shafi'i who
helped refine the ultimate content of this siyar rule. He formulated the doctrine that the purpose ofJihad was not
just to wage war on unbelievers because they menaced Islam, but rather to wage war on them simply because of
permitted besides that which fulfilled Islam's ultimate purpose. Accordingly, for centuries
jurists regarded non-jihad war (harb) as evil, unnatural, and contrary to God's law. 6
Despite the absolutistic character of what might be called its grand strategy, the jihad
was not without rules. In early Muslim conquests, for example, it was not uncommon for
a military commander to abstain from actual fighting for three days after delivering his
"invitation" (declaration of war) to the enemy. This grace period allowed negotiations to
take place and sometimes resulted in agreements that avoided bloodshed.' 7 Islam also
developed an extensive jurisprudence pertaining to the immunity and safe conduct of
diplomatic emissaries and missions.' Moreover, in land warfare, the siyar suggested a
principle of proportional force which reasoned that since the point of the struggle was the
universalization of the Islamic faith (rather than, for example, the seizure of enemy territory
or property), bloodshed and destruction should be avoided unless necessary to achieve the
paramount goal.' 9 Jurists also developed a body of rules prohibiting certain acts even in
the process of warmaking. 2 Indeed, given the theoretically limitless ambitions ofjihad,
the siyar sometimes seemed eminently pragmatic: Some jurists allowed for the waging of
2
jihad to be stopped and postponed for a certain period 22
' if the Islamic cause suffered a
significant military defeat or some other calamity.
The universalist ambition of Islam, coupled with the centrality of jihad to its
expansionist endeavor, made the classical siyar quite skeptical of accommodations reached
between the leadership of the Islamic state and foreign unbelievers. Such treaties, however,
were indeed possible, but to ensure that Islam never lost sight of its millennial goals and was
their disbelief. SHAYBANI, supra note 4, at 58.

16. See KHADDURI, supranote 3, at 7 1. According to Khadduri, Shi'ite Muslims-that is, those who lent their
allegiance to the Fourth Caliph. Ali (A.D. 656-61), in the civil war against Mu'awiya, then the governor of Syria,
that led to the establishment of the Umayyad dynasty-have a different view ofjihad. For Shi'ites,jihadmay also
be declared against Muslims who fail to obey the Imam (the supreme theocratic leader and successor to the
assassinated Ali as head of the true Islamic state: the infallible interpreter of God's Word on earth). Jihad,
however, can only be declared by the Imam, says Khadduri, makingjihad impossible until the Imam returns from
his centuries-long ghayba (absence) in the capacity of Malidi. Id. at 66-67. Bruce Lawrence, however, disagrees
sharply. By his account Twelver Shi'is (the majority of the Shi'ite community) do not holdjihad in abeyance
pending the return of the Imam, but rather "constantly extol" holy war and permit it to be declared not just by
the Imam but by a representative of the Imam chosen for his scholarship and piety--that is, a Shi'i cleric."
Bruce Lawrence, Holy War (Jihad)in Islamic Religion and Nation-State Ideologies, in JUST WAR AND JIHAD 141,
147 (John Kelsay & James T. Johnson eds., 1991).
17. See KHADDURI. supra note 3, at 98-101.
18. The Qur'an supports such protection in its accountof an exchange of envoys between King Solomon and
Bilqis. Queen of Sheba. See THE HOLY QUR'AN XXVII:23-44. The Quranic commandment seems to suggest that
protection is offered to diplomatic envoys and that diplomats meeting the displeasure of the host ruler should be
expelled rather than killed. The Prophet's own practice in the Hudaybiya Treaty supports this practice. The treaty
was negotiated by an envoy sent from the enemy city under Muhammad's assurance of protection. M. Cherif
Bassiouni, Protection of Diplomats Under Islamic Law, 74 AM. J. INT'L L. 609, 610-11 (1980). See also
KHADDURI, supra note 3, at 239-50 (discussing traditional Muslim doctrines and early practice in this respect).
19. KHADDURI, supra note 3. at 102.
20. See generally id. at 102-08 (describing the prohibited acts).
21. In theory, Islam could come to such an expedient accommodation with an enemy for no more than 10
years-the formal duration of Muhammad's precedent-setting Treaty of Hudaybiya. See id. at 134, 212.
22. As Islam began to encounter non-Muslim powers it could not immediately defeat--such as the Christian
Crusaders and Mongol invaders from Central Asia-some jurists even revisited the question of whetherfihad could
be waged offensively without provocation. For example. ibn Taymiya seems to have felt thatjihad really meant
a defensive war to be conducted against unbelievers only when they posed some threat to the Islamic state. See
SHAYBANI, supra note 4, at 59. Although this idea never acquired much foothold in the classical siyar, it has
proven popular with twentieth-century Muslims eager to depict Islamic law as being compatible with modem
international norms pertaining to the non-use of force. See, e.g., Richard C. Martin, The Religious Foundations
of War, Peace, and Statecraft in Islam, in JUST WAR AND JIHAD, supra note 16, at 91, 108.
not tempted to reach a permanent accord with an infidel power, classical doctrine limited
the permissible duration of any such treaty to only ten years. This figure derives from the
Prophet's own precedent in agreeing to the Hudaybiya Treaty, an agreement of ten years'
duration with the polytheist people of Mecca in the year A.D. 628.23 Thereafter, a truce
could be renewed only for a single additional ten-year period.24
Moreover, as might be expected from a regime which recognized no legitimate legal
order besides itself, treaties reached with infidels were not characterized by the mutuality
and reciprocity associated with transnational agreements in modem international law. On
the contrary, the siyar was
the law of an imperial state which would recognize no equal status for the party
(or parties) with whom it happened to fight or negotiate. It follows therefore that
the binding force of such a law was not based on mutual consent or reciprocity,
but on the state's own interpretation of its political and religious interests, since
Islam regarded its principles of morality and religion as superior to [those of]
others.25
Formally speaking, entities in the dar al-harb "lacked the legal competence to enter into
intercourse with Islam on the basis of equality and reciprocity." 26 Thus, "the incom-
petence of the dar al-harb to possess a legal status under Islamic law" ensured that
agreements were only possible as long as they did not imply legal equality between the
treating partners. 27 This state of affairs has been analogized to the modem international
legal doctrines of non-recognition or merely de facto recognition. 2
23. However, the Meccan treaty never had a chance to expire of its own terms. It was violated after two
years. See KIHADDURI, supra note 3. at 134. 212-13. The Sunni Muslim jurisprudential schools that grew up
around the writings and teachings of Abu Hanifah Nu'man ibn Thabit (A.D. 699-767) (the Hanafi school) and
Malik ibn Anas al-Asbahi (A.D. 713-95) (the Maliki school) held that the duration of a treaty with unbelievers
should be no more than three or four years in all but the most extraordinary circumstances. Schwartz, supra note
13, at 638 & nn.36-37.
24. KHADDURI. supra note 3, at 134. However, treaties with non-Muslim minorities living within the daral-
Islam (dhimmis)-atleast those belonging to the "People of the Book" (traditionally construed to mean Jews and
Christians)-were perpetual in character. Having made their accommodation with Islam and having agreed to pay
the Quranic poll tax exacted of such indigenous non-Muslims, they were granted a legal capacity (of a sort) capable
of sustaining such bargaining. See id. at 221. This rule gains strength from the example of the Prophet's own so-
called "Constitution of Medina." signed upon his arrival in that city in order to establish a modus vivendi between
Muhammad's followers and the various Arab and Jewish tribes living there. The treaty capacity of dhimml
populations within the daral-Islam, however, says nothing about the capacity for unbelievers beyond the frontiers
of the Islamic state to treat with Muslims.
Nonetheless. the siyardid regulate the treatment of unbelievers who enter the territory of Islam. Islamic law
divided non-Muslims into believers (kitaby, or the People of the Book) and unbelievers. Unless granted a
temporary safe conduct (aman)-which, pending its expiration after no more than one year, conveyed the status
of musta'min (a "secured" person)--unbelievers were to be killed on sight unless they agreed to convert. Without
aman they remained in a state of war (harbi) with Islam. Non-Muslim believers were to be treated in the same
way, unless they agreed to stay within Islam as part of one of the protected dhimmi communities paying a poll tax.
However, some jurists preferred expulsion to killing an unsecured harbi on sight. Matthew Lippman. Islamic
CriminalLaw andProcedure: Religious Fundamentalismv. Modern Law. 12 B.C. INT'L & CoMP. L. REv. 29, 60
(1989); KHADDURI. supra note 3, at 163-65.
25. Khadduri, Islam and the Modern Law of Nations. supra note 7. at 358.
26. Khadduri. The Islamic Theory supra note 6. at 26.
27. Id. at 28.
28. Id.
19951 SIYAR-IZATION AND ITS DISCONTENTS
B. Islam's "NationalitiesProblem"
i. Theocratic Unitarism
Islam's radical universalism almost inevitably opposed it to any suggestion that

mankind could exist in anything other than a juridical unity. As with the class-warfare
analysis of orthodox Marxism in more contemporary times, the hegemonist ambition of
Islam ensured a basic theoretical hostility to the idea of the nation-state because Islam could
admit no meaningful legal entity apart from itself. Unbelievers might have "nations" of
their own, but the territories of the dar al-harb could not lay claim to legal legitimacy.
Muslim dealings with infidel powers were merely expedient, a detour along the road to
domination. With respect to Islam itself, the classical siyar admitted nothing short of unity.
The only nation recognized by Islam was the community of believers-the 'umma-itself.
The fundamental unity of all believers in Islam is grounded clearly in the Qur'an which
asserts that "[h]ad thy Lord pleased, He would have made mankind one nation; but those
only to whom thy Lord hath granted his mercy will cease to differ." 29 In the Islamic
tradition, the pre-Muslim world was pluralistic, with certain peoples (e.g., Christians and
Jews) receiving God's word through their own prophets and certain other peoples remaining
benighted. God's revelation to His Prophet Muhammad, however, superseded the teachings
of all the previous prophets and provided God's definitive and final divine covenant with
mankind." This revelation created "an 'umma in distinction from the rest of the
people,"'" a community defined solely and exclusively by belief, and in which all other
loyalties-tribal, racial, class, territorial, sexual, and cultural-were replaced by common
Islamic brotherhood.32
The classical Muslim jurisprudence of governance-what might be called Islamic
constitutional law-predicated its view of political authority upon this overarching religious
unity. Islamic jurisprudence presupposed both religious and political monism; that is "the
Islamic community is, or should be, not only a religious unity but also a political unity,
governed by a single Islamic government headed by the caliph (khalifa) or imam."33
On the supreme constitutional issue of the nature and incidents of political

authority in the Islamic theocratic state the four Sunnite schools of law speak
with one voice. Their doctrine of the Caliphate, of which the central feature is
that the office belongs to a member of the tribe of Quraysh upon election by the
qualified representatives of the community, is based upon their recognition of the
authority of the Medinan, Umayyad and 'Abbasid Caliphs. 4
Shi'ite Muslim doctrine rejects the Umayyad and 'Abbasid legacy and looks for caliphal
legitimacy all the way back to Ali, the Fourth Caliph (A.D. 656-61), 35 but it is equally
adamant on the fundamental political unity required by Islamic doctrine. The pious Shi'ite
29. KHADDURI. supra note 3, at 51 (quoting THE HOLY QUR'AN XI:120).

30. Id.at 8.
31. Id.at4.
32. See id.
33. Fred M. Donner, The Sources of Islamic Conceptions of War, inJUST WAR AND JIHAD, Supra note 16,
at31, 51.
34. COULSON, A HISTORY, supra note 2, at 103.
35. See generally id.
awaits the return of the hidden Imam from his ancient absence (ghayba) to reclaim the
leadership of all Islam.36 In its core of legal theory, however, Shi'ite Islam is no more
capable of acknowledging Islam in multiple nations than is Sunni Islam.
In its classical formulation, therefore, Islam found the idea of legitimate independent
legal-territorial units-let alone a nation-state on the modem model, in which territory,
language, culture, or common descent set one group of people apart from another-
wholly anathema. 8 As the 39 traditional adage had it, al-Islam din wa
dawla- "Islam is
both religion and state.''
2. Islamic Fragmentation
At least under the Medinan caliphs, Islamic practice approached this ideal of religious
and political unity. The death of Muhammad in A.D. 632 left the 'umma with no clear line
of leadership succession, and it was decided (after some debate) that the caliphs who
succeeded him had not inherited his prophetic powers and that the era of divine legislation
had drawn to an end.4 Nevertheless, the succession of concededly legitimate caliphs
preserved the identity between religious and secular authority; as successors to the Prophet,
they enjoyed a legitimate claim to the captaincy of a unitary Islam.
It was not long, however, before the Islamic ideal and the realities of authority in the
Muslim world began to diverge. The civil war between Mu'awiya and the Caliph Ali in the
seventh century A.D. produced the first major schism in Islam, the defection of the Shi'ites
(which, much later, came to be reflected in the geopolitical rivalry of the Sunni Ottoman and
the Shi'ite Persian dynasties). By the end of the eighth century even Sunni Islam had
begun to split, as upon the ascension of the Abbasid dynasty Spain still remained in
Umayyad hands.42 From the tenth century onwards, the fission of the Islamic "nation"
continued further, with increasing numbers of secular rulers competing for power. In 1258,
the Mongols sacked Baghdad -and brought down the last 'Abbasid caliphate, thereby
shattering the last vestiges of the unitary (Sunni) Islamic theocracy. After the disintegration
of the Baghdad Caliphate, repeated efforts were made by secular rulers to lay claim to the
symbolic legitimacy of Muhammad's successors at the head of the Islamic state. These
efforts, however, had little success. Upon the sack of Baghdad, for example, the Mamluk
rulers of Egypt installed an 'Abbasid puppet in Cairo, but the pretender caliph was largely
ignored outside Egypt.4 3 Further attenuating this purported line of succession, the Ottoman
Sultans subsequently claimed their own genealogical link to the Mamluk 'Abbasids until the
Turkish caliphate was formally abolished by Kemal Ataturk in 1924. 44 The real secular
36. See KHADDURI, supra note 3, at 67.

37. P.J. Vatikiotis has observed that "Islam and nationalism are mutually exclusive terms." PANAYIOTIS J.
VATIKIOTIS, ISLAM AND THE STATE 42 (1987).
38. Indeed, Western cartographers introduced the very idea of geographical territorial boundaries as political
and jurisdictional frontiers to the Arabian Peninsula. During the earliest years of Islam in Arabia, there seemed
little point in worrying about abstract lines in the sand when real power stemmed from relationships or tribal
allegiance and the control of particular settlements or trading routes. See Herbert Liebesny, English Common Law
and Islanic Law in the Middle East and South Asia: Religious Influences and Secdarization,34 CLEV. ST. L. Rtv.
19, 31-32 (1985-86).
39. Ann E. Mayer, Law and Religion in the Muslim Middle East, 35 AM. J. COMp. L. 127. 130 (1987).
40. See KHADDURI, supra note 3, at 10-1I.
41. Khadduri. The Islamic Theory, supra note 6, at 32.
42. See Donner, supra note 33. at 51.
43. See KHADDURI. supra note 3. at 269.
44. Bonderman, supra note 9, at 1179 n.23.
SIYAR-IZATION AND ITS DISCONTENTS
power of the 'Abbasid caliphs had crumbled even before the final Mongol invasion, 45 but
after the thirteenth century not even the symbolism of a unitary Islam remained as testimony
to the ambitious supranationalism of the vigorous early faith. The resulting "inconsistency
between juristic theory and political reality" 46 plagues Islamic jurisprudence to this day.
3. Juristic Responses
The Muslim jurists-or mujtahids, those who engage in itihad (the process of
ascertaining the terms of the shari'a) 4 -- struggled inconclusively with the fragmentation
of the Islamic unity. When the 'Abbasid caliphate was beginning to collapse into feuding
power centers (but long before its grim denouement at the hands of the Mongols in 1258),
a debate developed between two juristic schools over how to deal with the progressive
fragmentation of the 'umma. One school insisted upon orthodoxy, proclaiming the need to
retain the monistic authority of a single caliph over all Islam, while a pluralist school
suggested that Islam could be divided into smaller political units where the daral-Islam was
geographically divided by the sea or other major natural obstacles. This pluralist view, very
much at odds with the juristic traditions of unitary authority described above, was rejected.
However, the prevailing orthodoxy was slightly modified by this interaction as jurists like
the scholar Habib al-Mawardi (A.D. 974-1058) of the Shafi'i school came to admit the
possibility of establishing various regional sub-caliphs, each owing allegianceto the one true
caliph.48
More fundamentally, however, the primary juristic vehicle with which the mujtahids
dealt with the disintegration of their ideal theocratic unity was simply that of retreat, of
defining the scope of the shari'a so as to avoid having its unitary precepts seem so
transparently violated by the progressive fragmentation of Islam. As Islam encountered
increasingly formidable infidel foes on the fringes of the (now greatly expanded) dar al-
Islam-opponents like the Crusaders and the Mongols who could not easily be
defeated-somejurists such as lbn Taymiya (d. A.D. 1327) began to reconceptualizejihad
as a purely defensive variety of war.49 As such, jihad was conducted against unbelievers
only when they menaced the Islamic state.5" Of more lasting jurisprudential appeal was
the progressive extension of the idea thatjihadcould go into temporary dormancy.5 This
was a partial solution to the extreme levels of doctrinal dissonance created by geopolitical
stalemate, and one which enjoyed more appeal than Ibn Taymiya's reformulation, since a
merely dormantjihad doctrine is not required to relinquish the theoretical high ground of
universalist aspiration. Thus scholars like lbn Khaldun (d. A.D. 1406) came to view the
quiescence of Muslim warmaking duties as moving Islam from the warlike stage of its
45. Id.
46. Donner, supra note 33, at 51.
47. See COULSON, CONFLICTS. supra note 2, at 41.
48. SHAYBANI, supra note 4, at 21; Khadduri, The Islamic Theory. supra note 6, at 31-32.
49. See SHAYBANI, supra note 4. at 59.
50. Id. It is not clear, however, that this reformulation gained much currency in Islamic jurisprudence, the
orthodoxy of which has shown itself quite resilient even in the face of almost catastrophically divergent practice.
Moreover, Ann Mayer recounts that even Muslim jurists who supported formulations of a defensive doctrine of
jihad still exhibited atendency to define defensive so as to include wars against those who mistreat Muslims beyond
the frontiers of Islam, as well as against those who present obstacles to the spread of Islam or even polytheists
generally. Ann E. Mayer, War and Peace in the Islamic Tradition and InternationalLaw, in JUST WAR AND
JIHAD, supra note 16, at 195, 205.
51. KHADDURI, supra note 3. at 65-66.
development into a higher, more civilized one. - In time, the exceptional and expedient
dormancy ofjihad came to seem more normal than actual warfare. "3
Most of all, however, the doctrinal retreat of the mujtahids in the face of Islamic
fragmentation occurred through the jurists' reconceptualization of Islamic governance.
Rather than question the relevance of unitarist doctrine to a pluralist era, the jurists
articulated a new architecture of power which rationalized the bifurcation between secular
authority and religious propriety. Thejurists preferred the insulation of one from the other
to any serious attempt to reconcile the two. Scholars like Imam al-Ghazali (d. A.D. 1111),
for example, advanced the idea that secular rulers (that is, Muslim autocrats not enjoying
apostolic succession from the true caliphate) were permitted a power to govern in the public
interest.5 4 Legal authority-which is, in Islam, a totalist authority that makes no distinction
between private and public spheres-would be divided between the secular power and the
religious leadership, the 'ulama. The ruler would, therefore, exercise authority over the
(subunitary) Islamic polity, while the 'ulama would confine itself to the realm of religious
affairs. Government, in other words, would be left to the governors.5"
In practicethis meant "that the fiat of the Sultan became buttressed by thejustificatory
rationalization of the religious teacher. The interpreter of the Sacred Law supplied the
needed legitimacy to who[m]ever held and wielded power." 6 In return for this jurispru-
dential capitulation to secular authority, Muslim rulers attempted to compensate for their
lack of religious legitimacy by conspicuous patronage for Islamic scholars and causes.57
The complexity of the resulting relationships left Islam without a definitive model of the
relationship between "church" and "state," 5 " but there gradually developed a marked and
uniform contrast between the ideal of al-Islam din wa dawla"9 and the willingness of the
niujtahids to defer almost unquestioningly to the existing secular authority.6"
52. Id. at 65.

53. Id.
54. VATIKIOTIS, supra note 37. at 39-40.
55. Id. at 39-40; see also SHAYBANI, supra note 4. at 61 (noting acceptance of the principle that "control of
religious doctrines should be separated from that of external relations").
56. VATIKIOTIS, supra note 37, at 39-40.
57. Mayer, supra note 39, at 132. Indeed, Fred Donner suggests that the doctrine of the sources offihad was
thereby turned on its head. "What resulted in practice was a curious inversion of thejuristic ideal: Muslim rulers
did not consult the jurists to discover whether they were legitimate and therefore entitled to wagefihad, but rather
by wagingfihad they offered evidence of the legitimacy of their claim to rule." Donner, supra note 33. at 51.
58. Mayer, supra note 39, at 131-32.
The state, in effect, ceased to lay claim to religious authority which ended in the exclusive hands of
the ilema. State power however was often shared by local satraps. notables, dynasties and others.
The rest of the burgeoning urban society concerned with commercial and other wealth, became non-
political. The separation of central power and society ensued. In fact, ... a disjunction occurred
between the exponents of state authority and those of religion.
VATIKIOTIS, supra note 37, at 26.
59. See supra text accompanying note 39.
60. Indeed, jurists developing the formulations of the scholar al-Mawardi went so far as to theorize that, since
divine authority belonged to the caliph and to him alone, no one but the caliph himself could renounce this
authority-no matter how unjust and oppressive his rule might become. Tyranny. it was decided, was preferable
to anarchy. KHADDURI, supra note 3. at 69. In practice, this meant not only that secular rulers acquired immunity
from religious censure in their conduct of foreign relations, but that they were immunized from criticism at home
as well. Muslim law thus came to include an obligation of acquiescence to established power that would prove
very hard to shake. See also ANN E. MAYER. ISLAM AND HUMAN RIGHTS: TRADITION AND POLITICs 49 (1991)
("[S]hari'a doctrines remained highly idealistic and were not developed to provide institutional mechanisms to deal
with actual situations where governments disregarded Islamic law and oppressed and exploited their subjects.").
This doctrine of juristic acquiescence to power was further developed in the early
twentieth century with the widespread adoption of the theories of the Egyptian publicist
Shaykh Ali Abd al-Raziq by the modernizing governments of Islamic countries such as
Kemal Ataturk's newly-secularist Turkey. Al-Raziq argued that Muhammad did not
originally intend Islam to be the basis of a political system, but ratherthat (like Christianity)
it had its origins as a private faith for the adherents of the Prophet.6' If this were so,
Muslim heads of state should feel free to practice statecraft in accordance with rules and
practices not necessarily derived (or even consistent) with the shari'a.2 AI-Raziq's great
early twentieth-century rival, 'Abd el-Razzaq Sanhuri, disavowed AI-Raziq's repudiation of
the political character of Islam, but still accepted that Muslim rulers could adopt very
flexible norms of statecraft and reshape the siyar through state practice.63 Thus, with
respect to rulers' ability to conduct their relations with the world unfettered by the divine
Law, the capitulation of the mujtahids was complete.
4. The Paradox of Islamic Nationalism
In the nineteenth and twentieth centuries, as Islam came increasingly under the sway
of European power-first in a more Christianized incarnation and later as the standard-bearer
of materialist and secular civilization-Muslims also came to flirt with ideas of nationalism
derived from European political development. Much has been made of broad sociopolitical
theories of nationalism, and particularly (in recent years) of suggestions that American and
European templates of national identity were "modularly" adopted by the intelligentsia of
colonized territories. This adoption enabled these elites to cultivatethe bases of anti-colonial
legitimacy and of a newly "national" self-assertion in a post-imperialist environment
recognizing the nation-state as the primary legitimate international norm." 4 Some scholars
from developing countries have questioned the extent to which third world peoples indeed
did acquire their nationalism entirely "from certain 'modular' forms already made available
to them by Europe and the Americas. "65 Nevertheless, there is little question that
"Islamic" nationalism-an idea which in terms of classical Muslim doctrine is entirely
61. Khadduri, Islam and the Modern Lou' qf Nations, supra note 7. at 369.
62. Id.
63. Id.
64. See BENEDICT R. ANDERSON, IMAGINED COMMUNITIES: REFLECTIONS ON THE ORIGIN AND SPREAD OF
NATIONALISM 113-40 (1991). To summarize (and thereby risk doing some injustice to the subtlety of his
argument). Anderson generally conceives of modem nationalism as having originated in the development of a self-
consciousness in colonial American (English and Spanish), creole elites distinct from that of their ruling imperial
powers. This "model" of nationalism acquired currency in European circles during the nineteenth century, in the
process becoming closely tied to cultural and pseudo-biological conceptions of nationhood. The nationalist model
was, in turn, transmitted to the developing world through the dynamics of imperial conquest, which brought
colonized populations into contact with Europeans who viewed the world taxonomically, in terms of distinct
"nations" and ruled it accordingly. Just as eigthteenth century creole elites in the Americas had acquired a sense
of "national" self by virtue of their rule by a far-off imperial hegemon, so nineteenth and twentieth century third
world elites acquired a distinct "national" perspective--and the seeds were sown for an anti-colonial movement
based upon ascribed "national" identity.
65. Partha Chatterjee. Whose Imagined Conmunnty?, 20 MILLENIUM 521, 521 (1991). Chatterjee argues that
the nationalist project of developing nations-while accepting the realm of material life as one in which conceded
Western superiority must be "carefully studied and replicated"-sets aside "the domain of the spiritual [as] its
sovereign territory," and "launches its most powerful, creative and historically significant project: to fashion a
'modem' national culture which is, nevertheless, not Western." Id at 522.
oxymoronic 66 -had its origins in European models, adopted as a result of the dynamics of
Western encroachment and Islamic decline and insecurity.
The idea of an Islamicized nationalism was, thus, wholly new:
It has only been in modem times, especially under the pressure of modern
material civilization and culture, that the observance of law has been attached to
people in relation to the territory they live in rather than in relation to the group
they belong to.67
The fragmentation of Islam in the centuries following the collapse of the Baghdad Caliphate
"marked the beginning of a change in the conception of the Muslim state (accentuated later
by the Western concept of nationality) from universal to national." 68' The widening gulf
between "the Islamic ideal and the necessity of the reality of the Muslim community's
historical experience" helped initiate this process of cognitive and juridical
''nationalization. ,,69
If the shari'a really did leave governance to the governors, it was inevitable that
Islam's increasing number of competing secular rulers would enforce "Islamic" law
differently within their territorial frontiers."0 Islamic legal doctrine had long recognized
the principle of lakhayyur,7' the ability of believers to follow the jurisprudential school of
their own choosing or even to adopt the teaching of different schools on different issues (as
long as this choosing was made in good faith). 72 Building upon this foundation, the shari'a
came accordingly to permit the secular ruler of a Sunni realm to select an official school of
thought from among the principal Sunni schools-Hanbali, Maliki, Shafi'i, and Hanafi-to
provide the governing Islamic legal rules in that territory. Thus, long before the
influence of nationalist ideologies during the imperial era, political and territorial
fragmentation inevitably led to increasing juridical differentiation.
The advent of Euro-American nationalism as a template for political development,
however, helped further this juridical fragmentation by providing a cognitive framework
capable of both legitimating the fissile territorial residue of the once-unitary dar al-Islam
and providing an ideology around which resistance to colonial control could crystallize.
Weak and divided in the face of seemingly irresistible Western material power, the Islamic
world sampled eclecticallyfrom both nationalist ideology and its shari'atraditions. "In the
absence of guidance from the classical doctrines of Islam, Muslims felt compelled to draw
66. David Bonderman recounts that nationalism is "a concept entirely alien to Islamic political-legal tradition
and theory, which recognized only the umma, the community of believers, and which taught that a Muslim owed
his primary allegiance to his fellow Muslims, and only secondarily to any political entity." Bonderman, supra note
9, at 1171.
67. KHADDURI, supra note 3, at 45.
68. Id. at 270.
69. VATIKIOTIS, supra note 37, at 40.
70. See supra text accompanying notes 37-59.
71. J.N.D. Anderson translates this as the principle of "choice between the rich variety of opinions held by
different schools or jurists." J.N.D. Anderson, Reforms in the Law of Divorce in the Muslim World, 31 STUDIA
ISLAMICA 41, 43 (1970).
72. COULSON, CONFLICTS. supra note 2. at 34.
73. However, rulers often tolerated their subjects' adherence to the rules of another sect as long as these
subjects remained obedient to their demands and paid their taxes. See Mayer, supra note 39, at 133.
74. See WALIED EL-MALIK, MINERAL INVESTMENT UNDER THE SHARI'A LAw 4-5 (1993) (noting that even
though Islam does not recognize the principle of territoriality, "Islamic" law differs greatly from country to
country in practice).
19951 SIYAR-IZATION AND ITS DISCONTENTS
on the experiences of Western nations." '75 Increasingly, they internalized the European-
derived legitimating system of national identity.76
It is worth reemphasizing what a paradox this "Islamic" nationalism presented.
"According to the classical Islamic thesis, the notions of nationality and religion were
entirely synonymous .... Against this classical doctrine of Islamic law, however, is today
opposed a modernist thesis, propounding an entirely different analysis." 77 "Nationalism"
and Islam are strange bedfellows, because
[t]he nation-state is a concept alien to Islam. And if the impersonal legitimate

sovereignty of government arises from popular consent, this is equally difficult
in Islam. The idea of the nation-state therefore remains a European import at
variance with the tradition of Islam .... The umma is not a nation-state; it
refers to a people or group that has been the special recipient of a divine
revelation. 7"
Nations have laws regulating citizenship which include some people by defining them as
citizen-subjects and exclude others. This exclusion of fellow believers from legal citizenship
is as abhorrent to the classical shari'a as is its corollary, the inclusion of non-Muslims as
full legal citizens.79 Secular laws of citizenship thus traduce the traditional jurisprudential
75. SHAYBANI, supra note 4, at 65.

76. David Bonderman. writing in 1968, concluded:
[I]t is obvious ... that the trend in contemporary Islamic law is toward the westernization of those
substantive doctrines of the traditional shari'awhich seem out of place to western-oriented ruling
elites, with the retention of the remainder to form a peculiarly Islamic legal system. And perhaps it
is equally obvious that in so doing, the states have moved away from the traditional concepts of the
unma to an adoption of the western principles of nationalism and statehood and all that this entails
for the relationship among the individual, the government, and the law.
Bonderman, supra note 9. at 1189.

From the perspective of 1995, it is less obvious that westernization is the most appropriate term to describe
juridical trends in the Muslim world. On the contrary, the resurgence of Islamic fundamentalism and other
movements propounding the re-Islamicization of national jurisprudence might suggest the opposite. Nevertheless,
even these Islamic revivalist movements display an odd affinity for the symbolism of national identity.
77. Scion la thse classique, en Islam, les notions de nationalit et de religion sont entiarement confondues.
... A cette these classique sur la nationaliti en droit musultnan est opposge aujourd'huiune thase moderne qui
propose zne analyse tout itfait diffdrente. Mohamed Charfi, L 'influence de la religion dans le droit internal privd
des pays musulmans, 203 RECUEIL DES COURS D'ACADtME DE DROIT INT'L 321, 373-74 (1987) (author's
translation).
So different, in fact, are Western-nationalist and Islamic notions of statehood that Gamal Badr feels Islamic
principles can provide a salutary antidote in international law for the Western, propensity for "'abuses of the
principle of [national] sovereignty." Badr. supra note 5. at 5.
78. VATIKIOTIS. supra note 37, at 38. 46-47.
79. See id. at 27. Whereas most Muslim countries have had little problem excluding fellow believers from
national citizenship, many have had difficulty treating non-Muslims on the basis of legal equality with Muslims
within their national jurisdiction. See generally MAYER. supra note 60, at 143-87. Traditional siyar doctrines
merely tolerated the dhimmis and subjected them to numerous restrictions. For example, one great siyar scholar
of the Hanafi school, Shaybani (A.D. 750-804). taught that, in addition to being forced to pay thejizya (poll tax),
dhimmis should be barred from "imitating" the personal appearance of Muslims and should be obligated to wear
a special girdle around their waist as a distinguishing mark; they could build no new churches or synagogues in
Muslim settlements, and could not even reside inside Muslim cities. See SHAYBANI, supra note 4, at 277-78
(translation of Shaybani's Siyar 1707-1709); see also MAYER, supra note 60, at 148 (recounting disabilities
visited upon dhimnis under traditional shari'a law).
division of mankind into Muslim, tolerated non-Muslim living under Islamic authority
(dhimmi), and infidel inhabitant of the territory of war (harbi).
The great difference between the two notions [of nationality and Islamic identity]
shows the fundamental incompatibility between the State and religion .... [T]he
notion of nationality is already an important innovation in Muslim law, and the
adoption of a law of nationality that fails to refer to religion-that is, which
signifies the repudiation of the ancient tripartite distinction between Muslim,
dhimmi and harbi-is an innovation of even greater import.8"
Nations in the modem world are simply not "coercive power structures in the com-
munity."'" They also lay claim to compelling undercurrents of shared identity that
legitimate the exertion of "sovereign" authority within the peculiar borders they have
inherited. Such ideas rest only most uneasily alongside the Quranic proclamation 82
that
"those only to whom thy Lord hath granted his mercy will cease to differ."
For those states whose post-colonial frontiers were arbitrarily drawn by European
cartographers yet who inhabited a world which recognized the nation-state as the primary
unit of international interaction, it was perhaps inevitable that the fragmented dar al-Islam
should acquire diverse quasi-nationalist characteristics. The importance of Islam in the
history of Muslim countries is such that a nationalism not somehow linked to a shari'a
legacy is inconceivable. The cognitive dissonance arising from this linkage, however, has
been extreme and enduring. Islam has for centuries grappled with a powerful tension
between "unity and diversity;" 83 the admixture of European ideas of nationalism, however,
made this doctrinal tension especially acute.
Traditionally, "Islamic jurists did not treat the conduct of actual states as a source of
law except in the rare case of governments that were headed by exemplary rulers, like the
rightly guided caliphs of the Sunnis and the imams of different Shi'i groups."' 4 This is
consistent with the underlying theory of the divinely-revealed character of Islamic
legislation: Derogation by the practice of political rulers not part of the apostolic succession
of the true caliphate cannot be permitted to change the character of the shari'a. Some
Muslim jurists in the early twentieth century have tried to articulate a norm allowing for
flexible statecraft without regard to shari'a traditions,8" but the basic tension between
universalist ideal and divided and divisive reality, however, remains-and has greatly
exacerbated Islam's ability to come to terms with the fragmentation of the dar al-Islam, not
to mention the even more acute modem paradoxes of nationalism. "State practice has
80.
La grande diffirence entre les deux notions [de la nationalitd et lidentiti Islamique] met en dvidence
IPincompatibilit fondamentale entre I'ktat et la religion .... [L]a riception de la notion de
nationalitd est dijY une innovation importante par rapport au droit inusulman et I'adoption d'un droll
de la nalionalitd qui ne se rd]fre pas b la religion--ce qui signifie la suppression de I'anclenne
distinction tripartite:musulmans, dhimmi, harbi--est une innovation encore plus importante.
Charfi, supra note 77, at 376 (author's translation).

81. VATIKOns. supra note 37, at 41.
82. KHADDURI. supra note 3. at 51 (quoting THE HOLY QUR'AN XI: 120).
83. See COULSON. CONFLICTS. supra note 2. at 21. "Islamic political theory rested upon the ideal of a
universal Muslim community or 'umma, united under a single ruler or Caliph. while in historical reality Islam has
been divided into a variety of politically independent states." Id. at 22.
84. Mayer, supra note 50, at 196.
1995] SIYAR-1ZATION AND ITS DISCONTENTS
relegated much premodern doctrine on war and peace to a condition of desuetude, "86but
the classical doctrines have formally conceded little ground and retain considerable
influence.
C. Dividing Theory and Practice
1. Abroad: From Expansion to Accommodation
Islam can be said to have gone through several stages during its development, evolving
from a mere city-state (the Medinan period, A.D. 622-32), into a young empire (632-750),
and then into an aspiring world hegemon (750-c.900), before enduring a period of
decentralization (c.900-c. 1500), and a period of outright fragmentation (c. 1500-1918),
before entering the present "national" period (1918- )." Islamic approaches to the
practice of international relations-built upon a foundation of siyar law that was expressly
intended only as a temporary expedient pending the conquest of the dar al-harb-were
powerfully conditioned by the international environment confronting Islam.
[A]lthough the Islamic state recognized in theory no state other than itself, it had
to acceptcertain limitations and accommodate itself to the realities of surrounding
conditions. Unable to incorporate the whole of mankind, the state tacitly
accepted the principle of coexistence with other states and conducted its external
relations in accordancewith principles derived not only from Islamic doctrine, but
also from its long experience with other states. The acceptance of the principle
of coexistence compelled Islam to accept territorial limitations.88
However resistant Islamic legal theory may have been to the development of norms of
permanent transnational coexistence, 9 Islamic rulers came to accommodate their practice
to a plural world.
According to classical theory, the treaty-making power of the Islamic state was to
extend to agreements lasting no more than ten years-the specified duration of Muhammad's
Hudaybiya Treaty with the Meccans in the year A.D. 628." In practice, however, Islamic
rulers acted increasingly as pragmatic secular sovereigns, engaging in progressively longer
treaty arrangements as seemed necessary.9 Latin sources suggest that quiet diplomacy was
underway between Pippin III of the Franks and the second 'Abbasid caliph, AI-Mansur, as
early as the year A.D. 765.92 By the thirteenth century it was possible for Don Juan
Manuel, crown prince and nephew of Ferdinand II of Spain, to describe his relations with
Islam in terms rem iniscent ofthe twentieth-century ideological confrontation and geopolitical
stalemate between Marxist-Leninism and democratic capitalism: as a guerrafira, or "cold
war." 93 This unofficial truce took on a more formal cast in 1292, when the Mameluk
86. Mayer, supra note 50, at 197.

87. Khadduri, The Islamic Theory, supra note 6, at 30; see also SHAYBANI, supra note 4, at 20.
88. Khadduri, The Islamic Theory supra note 6,at 31. "When a minimum of rules is deemed necessary for
the cohabitation of territorial groups, a society of nations is bound to develop. Ubi jus ibi societas est."
KHADDURI, supra note 3. at 43.
90. See supra text accompanying note 23.
91. See Khadduri, Islam and the Modern Law,qf Nations. supra note 7. at 360.
92. The 'Abbasids were then engaged in sporadic warfare with the Christian emperors in Byzantium and may
have thought a Frankish alliance appealing. See Khadduri, The Islamic Theory, supra note 3, at 247.
93. Khadduri. The Islamic Theory. supra note 6. at 33.
Sultan of Egypt and Syria, AI-Ashraf Khalil, signed a formal treaty with Don Jaime 11, King
of Aragon (who himself acted also on behalf of the rulers of Castille and Leon and of
Portugal). 4
Most of all, however, it was the Treaty of Alliance in 1535 between the Ottoman
sultan, Sulayman the Magnificent, and Francis I, King of France, that set an example for
Muslim statecraft wholly inconsistent with the classical legacy of the siyar.9" This
agreement contained express terms of duration tied not to the orthodox Hudaybiya limit of
ten years but extending for the lifetime of its signatories. Moreover, the two kings had
reached an agreement predicated upon mutuality of interests and reciprocity-a formal legal
equality between Christian and Muslim rulers absolutely anathemato the traditional doctrines
of Islam.96 The treaty also contained provisions exempting Frenchmen in the sultan's
territories from the poll tax (jizya) upon dhimmis, which amounted to the abrogation of a
specific tradition, or hadith, of the Prophet. 7 This extraordinary agreement illustrates how
far Islamic practice had strayed from Islamic theory even by the sixteenth century."8
As they had with respect to the fragmentation of Islam,99 the mujtahids attempted
inconclusively to reconcile their juristic theory with such radical developments. Some
jurists, predominantly of the Shafi'i school, went so far as to theorize a third primary
division of the world, that of the dar al-sulh (territory of peace) or the dar al-'abhd
(territory of covenant)-corresponding to those territories which enter treaty relations with
Islam.' Since this designation depended upon the treaty relations being conducted upon
the basis of the conveyance of tribute or territory to Islam,'"' however, the dar al-sulh/dar
al-'abhdformulation was inadequateto deal with the radicalism of subsequent developments
such as the 1535 Treaty of Alliance (which contemplated real legal equality and reciprocity
with infidel kingdoms). Moreover, this third-territory formula never really took hold in
mainstream jurisprudence,'0 2 which was becoming increasingly introverted and isolated
from actual diplomatic practice.'0 3
Despite the doctrinal problems associated therewith, in the modem Muslim
world-which has already partly internalized the paradoxical ideology of Islamic
nationalism 04-- rulers appear to have accepted the secularization of foreign relations.
Muslim rulers have been eager to organize "Islamic" conferences, to propound "Islamic"
94. See Badr, supra note 5, at 3.

95. The following account of the 1535 treaty is taken from Khadduri. Islam and the Modern Law qfNatlons.
supra note 7. at 361-62; SHAYBANI. supra note 4. at 62-64; KHADDURI. supra note 3. at 273; KhaddUri, The
Islamic Theory, supra note 6, at 33-34.
97. See, e.g., SHAYBANI. supra note 4, at 76 (translation of Shaybani's recounting of traditions relating to the
conduct of war, ch.1. 1).
98. A similar treaty between the Turks and the Queen Elizabeth I of England was signed in 1580. See Badr,
supra note 5. at 4. In 1606. the Ottomans signed the Treaty of Zsitvatorok with the Holy Roman Emperor. Mayer,
supra note 50, at 196. By the sixteenth century, the Ottomans had also reached an informal regime of coexistence
with the Shi'ite dynasty ruling Persia. Khadduri likens the arrangement to the relations between Catholic and
Protestant princes in Europe after the Peace of Augsburg in 1555 which ended a prolonged period of warfare
between Catholic princes and forces adhering to Martin Luther's Protestantism. The peace enshrined the principle
of cuius regio, eius religio, leaving each secular sovereign free to determine the religious orthodoxy of his realm.
See Khadduri. The Islamic Theory. supra note 6. at 34-35.
99. See supra part I.B.3.
100. KHADDURI, supra note 3. at 144-45; Badr, supra note 5, at 2.
101. KHADDURI, supra note 3. at 145.
102. The Hanafi school had never recognized this third territory, considering the territories paying tribute to
Islam part of the dar al-Islam. See Khadduri, The Islamic Theory, supra note 6, at 26.
103. See supra text accompanying notes 55-60, 84-86.
endeavors in various respects, and to inject "Islamic" perspectives into international

law.'0 5 Such activity, however, is invariably undertaken only when predicated upon the
national-territorial paradigm: Islamic countriesjoin and participate in the deliberations of
the Organization of the Islamic Conference (OIC), Islamic states participate in advancing
Islamic jurists for election to the International Court of Justice,0 6 and so forth. While
ideas of pan-Arabism, which partake as much of a racio-cultural ethic of solidarity as of a
specifically religious one, retained some currency at least into the middle years of the
twentieth century, 0 7 mainstream Islamic diplomatic practice now exhibits less of its
founders' affinity for unitarism and universalism.
2. At Home: Reform and the Shari'a
A similar dynamic of accumulating government power andjuristic concession occurred

with respect to Islamic domestic law, though sometimes much more awkwardly, as the
power of the secular leadership ultimately encroached upon matters such as family law (e.g.,
marriage and divorce), inheritance, and religious foundations (waq.. The doctrinal key to
this development lay in the concept of public interest.
Almost from its very earliest years, Islamic jurisprudence recognized a sort of public
interest doctrine with respect to the judge's actual role in deciding cases. Not long after
Muhammad Ibn-Idris Ash-Shafi'i (b. A.D. 767) articulated the classical doctrine of
sources,' 8 Islamic legal theory allowed for the exercise of istihsan (or "equitable
solution") as a means for judges to depart from the conventional analogical reasoning
(qiyas) when its rigid application would cause hardship or injustice.' 9 It took longer for
the shari'ato develop a doctrine of public interest that privileged the power of the state.
From about the eleventh century, however, Islamic jurisprudence (at least in its Sunni
incarnation) came to accept the idea of siyasashar'iyya,which accords the terrestrial ruler
a reservoir of discretionary power of command in the public interest. If "deviations from
the strict Shari'a doctrine"' 0 were required to protect the public interest in implementing
the guiding principles behind the shari'a,then such deviations were allowed. This expansive
doctrine of government discretion was justified in terms that reflectedthe privileged position
of the caliph as head of state of the Islamic nation. Since caliphs were presumed to possess
keen piety and the ability to engage in itihad,or Islamic legal scholarship, they were also
presumed to be ideally qualified for their office and were to be allowed the discretion to
take such steps as they in their wisdom saw fit."'
With the fragmentation of the dar al-Islam and the development of multiple, secular
sovereigns ruling Islamic realms, the rather idealized and caliph-specific doctrine of siyasa
shar'iyyatook on more dramatic implications. Unsurprisingly, post-caliphate rulers tried to
claim the legitimating mantle of siyasa shar'iyya for themselves. The mujtahids, having
!05. See Khadduri. The Islamic Theory, sipra note 6. at 36; Khadduri. Islam and the Modern Law of Nations,
supra note 7. at 371.
106. According to Article 4 of the Statute of the International Court of Justice, judges are to be elected by the
General Assembly and the Security Council from a list of persons "nominated by the national groups in the
Permanent Court of Arbitration." Statute of the International Court of Justice, June 26, 1945, art. 4, 59 Stat. 1031,
T.S. No. 993 [hereinafter ICJ Statute].
107. See Bonderman, supra note 9. at 1179.
108. See COULSON. CONFLICTS. supra note 2. at 6.
109. Id. at 6-7; see also EL-MALIK. supra note 74, at 21-27.
110. COULSON, CONFLICTS. supra note 2. at 68.
111. COULSON. A HISTORY. supra note 2, at 129.
become accustomed to the insulation of their constitutional doctrines from the actual practice
of governance and statecraft in the Islamic world, did not object. Even though the
legitimate caliph could only exercise his powers of siyasa shar'iyyawhen ideally qualified
for his office, as a practical matter the question of his qualification was injusticiable. As
a result, there were no constitutional limits to the power the ruler exercised on grounds of
the public interest.'t 2 The rout of juridical monism was assured, as various secular rulers
of the divided dar al-Islam each claimed the enormously permissive imprimatur of siyasa
shar'iyya.
Combined with Islamic law's long-standing acceptance of the ruler's power to "limit
the jurisdiction of a particular judge (qadi) or of the qadis in general ""' and his power
to appoint or dismiss them at pleasure," 4 the public interest doctrine of siyasa shar'iyya
made possible the gradual monopolization by the state of most actual adjudication. In
contrast, legal scholarship remained the province of an increasingly isolated and abstract
body of legal scholars (fuqaha'). Over the years, the jurisdiction of state-run courts
expanded to include such fields as criminal law,"' finance, and administration."' Since
the shari'anow seemed to have little to say about matters of constitutional law or foreign
relations in the first place,"' this left the realm of the shari'a and its qadis confined to
such comparatively narrow legal spheres as family law and inheritance." 8
Eventually family law was brought within the province of state authority. In some
jurisdictions, its basis in the shari'a itself was even partially displaced. Much of this
development occurred through the process of codification. Code-driven reform in family
law was possible without formal repudiation of the shari'asince invocation of the principle
of lakhayyur"9 allowed the secular sovereign to prescribe rules for his subjects chosen
eclectically from the often widely-varying positions of the four principal Sunni schools of
thought. 2 ' Thus, for example, the Ottoman Edict of 1915 modified the traditional Hanafi
law of divorce by adopting Hanbali and Hanafi opinions on particular is-
sues12 1-effectively codifying, in each case, the more lenient rule. The Ottomans' Law
of Family Rights of 1917 codified rules of family law in a comprehensive form, and over
the next half-century numerous Islamic countries followed in these Ottoman footsteps. 22
Nevertheless, although the very idea of codification seemed somewhat awkward when
laid alongside the classical tradition of denying mere humans the privilege of legislation,2 3
these codifications still claimed fidelity to the shari'a. In effect, they were efforts to reform
112. COULSON. CONFLICTS. supra note 2. at 69.

113. Bonderman, supra note 9. at 1176.
114. COULSON. A HISTORY. supra note 2, at 122.
115. Coulson recounts that. given the cumbersome nature of sharfa evidentiary rules and legal procedure,
there were compelling reasons of administrative efficiency to recognize ajurisdiction separated from that of the
shari'a court and its presiding qadi. Id. at 126-27.
116. See Mayer, supra note 39, at 134.
117. See supra text accompanying notes 55-63. 110-112.
118. See generally JOSEPH SCHACHT. AN INTRODUCTION TO ISLAMIC LAW 76 (1964); see also Charfi, supra
note 77, at 371: "'Aujourd'hui.partout dans le nionde miusulman . .. des codes modernes ont dtd pronnlguds,
surtout dans les domaines autres que le statut personnel, desjuridictions a conpdtence couvrant Iensenible du
territoire institudes el la justice a did znt/ide dans la phpart des pays." [Today, throughout the Muslim
world... modem codes have been enacted, at least in areas apart from the law of personal status, court jurisdiction
has expanded throughout the territory, and the legal system has been unified in most countries.] (author's
translation).
119. See supra notes 71-72.
120. See COULSON. CONFLICTS. supra note 2. at 34-39.
121. Bonderman. supra note 9. at 118 1.
122. See generally SCHACIIT, supra note 118, at 101-03; Bonderman. supra note 9. at 1181-87.
123. See. e.g.. KHADDUR. supra note 3. at I1 (noting that divine legislation ended with death of Muhammad).
the shari'a from within by picking and choosing particular rules from amongst its diverse
bodies of opinion.'24 Egypt went further in 1956 and abolished the shari'acourts in their
entirety. Although its institutions had been dissolved, Egyptian family law (though
administered by government-appointed functionaries rather than Islamic qadis) could still
claim general fidelity to the shari'a 2" It was not until Tunisia's Law of Personal Status
formally banned polygamy in 1957' 2 6 --a move "obviously contrary to the overriding
Quranic rule" '27 -that an Islamic country took a step that seemed directly to challenge
the legitimacy of the shari'a itself. 28 Because the shari'a courts had never developed a
"position of supreme judicial authority independent of political control,"' 2 9 they were
powerless to resist.
As this brief history suggests, the shari'a not only failed to exert any meaningful
control over Muslim governmental conduct at home, but also served to legitimate the
exercise of domestic authority and encourage obedience to the commands of those in power,
even to the point of legitimating Muslim rulers' departures from the shari'acourts and then
from some core tenets of the shari'a itself.
The sultanate, based on power, was accepted in lieu of the caliphate for the sake
of social peace .... And this has been the foundation of the state in the Islamic
world more or less since. As the political obligation of obedience remained a
religious duty, the legitimacy of the ruler could be rationalized or justified as
necessary for the existence and perpetuation of the 'umma-[and for the sake of
his greater duty of] protect[ing] and enforc[ing] the sacred law .... 130
As one commentator observed, "the scholars half sanctionedthe regulations which the rulers
in fact enacted, by insisting on the duty, already emphasized in the Koran-of obedience to
the established authorities." 3 ' This completed the cycle of secular governmental
ascendancy we have already seen in foreign relations, and while this dynamic did permit a
wave of twentieth century Islamic reformism-in codifying and westernizing legal rules-it
also radicalizedthe divergence between the ideal of unitary, pious, and law-governed Islamic
governance and the reality of unchecked state power that Muslims had to endure.
III. ISLAMIC LAW AND INTERNATIONAL JURISPRUDENCE
Both the similarities and the tensions between the Muslim law of nations and modern
international law must be understood against this doctrinal and practical history of the siyar
and Islamic constitutional law. This Article continues by examining how Islamic
international law is congruentwith the definitive "sources-doctrine " of modern internation-
124. See Bonderman, supra note 9, at 1192-93.

125. Cf id. at 1183, 1193.
126. See Fazlur Rahman, A Survey of Modernization of Muslim Family Law, 11 INT'L J. MIDDLE E. STUD.
451, 457 (1980).
127. Majid Khadduri, Marriage in Islamic La: The Modernist Vieitpoints, 26 AM. J. COMP. L. 213, 215
(1978).
128. Bonderman. supra note 9. at 1193.
129. CoUt.SoN, A HISTORY. supra note 2, at 121.
130. VATIKIOTIS. supra note 37, at 34.
131. SCHACHT, supra note 118. at 84. Ann Mayer argues that this tendency has often played into the hands
of tyrants and other "enemies of freedom." MAYER. supra note 60. at 213. "The heritage of premodern shari'a
law, which still retains prestige in Muslim milieus, can, if selectively employed, buttress authoritarian ideologies
and provide rationales for inequality, discrimination, and denials of freedom." Id. at 210.
al jurisprudence, Article 38(1) of the Statute of the International Court of Justice. 2

Article 38(1) delineates the sources of law to which the judges of the ICJ are authorized to
turn in their considerations of cases submitted for decision:
The Court, whose function is to decide in accordancewith international law such

disputes as are submitted to it, shall apply:
(a) international conventions, whether general or particular, establishing
rules expressly recognized by the contesting states;
(b) international custom, as evidence of a general practice accepted as law;
(c) the general principles of law recognized by civilized nations;
(d) subject to the provisions of Article 59, judicial decisions and the
teachings of the most highly qualified publicists of the various nations,
as subsidiary means for the determination of rules of law.'33
Some commentators on Islamic law have claimed to find these elements of international
sources-doctrine quite compatible with the shari'aand siyar. Of these commentators, Majid
Khadduri is perhaps the most explicit:
In terms of the modern law of nations, the sources of the Islamic law of
nations conform generally to the same categories defined by modem jurists and
specified in the Statute of the International Court of Justice. These may be
grouped under the general headings of custom, authority, agreement, and reason.
The sunna and local practices are equivalent to custom; the Qur'an,the Prophet's
utterances, and the caliph's decisions and instructions represent authority; prin-
ciples and rules enshrined in treaties with non-Muslims fall in the category of
agreement; and juristic writings, based on analogical deduction and other forms
of juristic reasoning in accordance with Islamic legal methodology, may be said
collectively to represent reason.134
This loose analogizing of Article 38(l) and Islamic sources-doctrine, however, may overstate
the degree to which Islamic law can genuinely be reconciled with modem international
jurisprudence.
A. Treaty Law: Article 38(1)(a)
The most ambitious claims about the congruence of Islamic and modem international
legal doctrines have been made in the area of the sanctity of international treaty law. Under
the Article 38 formula, this sanctity derives from the traditional Western doctrine of pacta
sunt servanda, requiring that treaty obligations be fulfilled. Theorists of Muslim jurispru-
dence today place great emphasis upon the degree to which Islamic law replicates this rule.
"[T]he principlepactasuntservanda,"it has been argued, "is ...recognized by all Muslim
jurist-theologians."'' 35 Indeed, "for the. Islamic peoples, the principle, pacta sunt servan-
da, has.., a religious basis."'' 36 The duty of "faithful and forthright fulfillment of pacts
132. ICJ Statute, supra note 106, art. 38.

133. Id. Article 59 provides that-[the decision of the Court has no binding force except between the parties
and in respect of that particular case." Id. art. 59.
134. SHAYBANI, supra note 4, at 9 (footnote omitted).
135. KHADDURI, supra note 3, at 204.
136. Hans Wehberg, PaclaSunt Servanda, 53 AM. J.INT'L L. 775. 775 (1959).
and covenants," it is said, "dominates Muslim international law,"' 37 and "the Islamic
state... has no right to repudiate or amend its obligations unilaterally as long as the other
party is fulfilling its obligations .... The Qur'an lays down the principles of pacta sunt
servanda .... 7138 ,,[T]he legitimate authority of treaties over an Islamic state is... sanc-
tioned by the Shari'ah."' 39
The duty to fulfill treaty obligations is said to stem from both the Qur'an itself 4
and from the Prophet's actual practice-most notably in the Hudaybiya Treaty. 4' These
sacred roots ensure that, for Muslims, a contract is not merely secular law between the
parties but "both a religious and a legal obligation."' 4 In the words of the old Arab43
saying, Al-'Aqd Shari'at Al-Muta'aqdin---"the contract is the shariaof the parties."'
The most widely-cited modem juridical articulation of this idea is found in a 1963 ar-
bitration between Saudi Arabia and the Arabian-American Oil Company (ARAMCO),' 44
where it was declared that:
Moslem Law does not distinguish between a treaty, a contract of public or

administrative law and a contract of civil or commercial law. All these types are
viewed by Moslem jurists as agreements or pacts which must be observed, since
God is a witness to any contract entered into by individuals or by collectivities;
under Moslem law, any valid contract is obligatory, in accordance with the
principles of Islam and the Law of God, as expressed in the Koran: "Be faithful
to your pledge to God, when you enter into a pact."" '
Because Muslim law had apparently never before expressly addressed the issue of mineral
concessions (the object of the ARAMCO arbitration), the arbiter found that the Saudi king
had the authority to fill this lacuna with rules in the public interest, which in this case
included granting of oil concessions. It was held that this exercise of royal discretion was
not contrary to the rules of the Shari'ah ... [because] it is in conformity with
two fundamental principles of the whole Moslem system of law, i.e., the principle
of liberty to contract within the limits of Divine Law, and the principle of respect
for contracts.' 46
Many scholars have cited this arbitration in support of their claims that the pacta sunt
servandaprinciple of Islamic law empowers Muslim rulers to treat freely with non-Muslim
sovereigns.' 47
137. Saba Habachy, Property, Right, and Contract in Muslim Law, 62 COLUM. L. REV. 450, 461 (1962).
138. EI-Malik, supra note 74. at 10, 14.
139. Schwartz- supra note 13, at 637. See also Badr, supra note 5, at 5.
140. See THE HOLY QUr'AN 11:229; V:I; IX:I, 4, 7; XVI:93; XVII:34.'
141. KHADDURI, supra note 3, at 212-13.
142. Mayer, supra note 50, at 201; see also Habachy. supra note 137, at 469.
143. Habachy, supra note 137, at 468-69.
144. Saudi Arabia v. Arabian Am. Oil Co., 27 I.L.R. 117 (1963) (Sauser Hall, Bawadi/Hassan, Habachy,
Arbs.) [hereinafter Aramco].
145. Id. at 163-64; see also Kristan L. Peters Hamlin, Note. The Impact of Islamic Revivalism on Contract
and Usury Law in Iran. Saudi Arabia, and Egypt, 22 TEX. INT'L LJ. 351, 364 (1987) (quoting Aramco); see also
SCHACHT. supra note 118. at 159 (noting that "Islamic law regards as an oath (yamin) every statement or
undertaking which is emphasized by the words 'by Allah' or by a similar formula").
146. Aramco. 27 I.L.R. at 163; see also Hamlin. supra note 145. at 364 (quoting Aramco).
147. See. e.g.. EL-MALK. supra note 74. at 64: 1-abachy, supranote 137, at 469-70: Hamlin, supranote 145.
at 364; Schwartz. supra note 13. at 637 n.33.
There are five principle reasons why this sanguine view may need adjustment. First,
the classical siyar, although holding treaty obligations in enormous esteem, expressly denied
treaty-making with non-Muslims anything more than a temporary character subject to
dissolution the moment Islam's conquest could profitably be resumed. 48 To the extent
that this classical legacy survives in Islamic legal doctrine, there are obviously serious
difficulties equating siyar treaty law with the full breadth of pacta sunt servanda as
understood by conventional international law. Second, the classical siyar resolutely denied
the fundamental basis of modern international treatymaking, understood as taking place
between sovereigns on the basis of equality and reciprocity." 9 While the ambitions of
universalist Islam did permit dealings with non-Muslim powers, such a concession of
legitimacy to infidel rulers of the dar al-harbwas inconceivable within the classical scheme
of Islamic jurisprudence.
Third, however binding treaties with non-Muslim states may be, a closer look at the
classical precedent, said so firmly to ground treaties in the shari'a,revealsthe treaty-making
power to be based perhaps irrevocably upon the principle of Muslim unitarism. The
Prophet's most often-cited precedent for the binding character of state-to-state obligations,
the Hudaybiya Treaty-the vehicle by which the conceded classical Quranic respect for
private contractual duties was translated in the shari'a into a transnational context-was
clearly predicated upon Muhammad's captaincy of all Islam. Formally speaking, the
precedent in the Qur'an and the sunna relates only to "agreement[s]
150
made by the prophet
(p.b.u.H.) in his capacity as the head of the Islamic state."'
It would perhaps be less problematic for modern Islamic international relations to
reconcile the treaty-power precedent and the status of Muhammad as the Islamic head of
state if it were not so difficult for Islamic jurisprudence to deal with the phenomenon of
Muslim political diversity.'' If the very possibility of a divided Islam remains so
doctrinally problematic, how can its secular rulers have succeeded to the caliphate's power
to represent the unitary nation of Islam in dealing with foreign powers? The ARAMCO
arbitration, for example, grounded the Saudi king's power to grant mineral concessions upon
his position of "Imam, i.e., . . . in his capacity as theocratic Ruler."'3 2 The difficulty
with this formulation is precisely that the Saudi king is not a successor to Muhammad's
mantle as the head of the dar al-Islam. The king is an Islamic head of state, but he is not
the Islamic head of state-in other words, he is not a theocrat.' 3 Whatever the treaty-
making authority of the caliphs, therefore, the fragmentation of the dar al-Islam and the
resulting nationalities problem of Muslim jurisprudence powerfully undercuts congenial
scholarly assertions that pacta sunt servanda is firmly grounded in the Qur'an and the
sunna.54 Modem rulers of Islamic countries and their predecessors believe they have
inherited Muhammad's capacity to treat with the infidels; given the classical framework of
the siyar, this is highly questionable.
148. See supra text accompanying notes 8-1 I, 21-24.

150. EI-Malik. supra note 74. at 105. The parenthetical "'p.b.u.H" stands for "praise be unto Him."
151. See generally supra part I.B.
152. Aramco. 27 I.L.R. 117. 163 (1963); see also Hamlin, supra note 145, at 364 (quoting Aramco).
153. The rigidly orthodox Wahabbite regime in Riyadh takes great pride in observing this distinction, Saudi
law, for example, insists upon the classical rule that humans cannot legislate, since law comes only from God, and
the era ofdivine lawmaking ended with the death of the Prophet in A.D. 632. Consequently, the Saudi government
officially makes no laws: The Hanbali 'ulema are reserved the power to make authoritative interpretations of the
shari'a.while the governing royal authorities issue only regulations or administrative orders. See Mayer, supra
note 39, at 134.
154. See supra note 2.
Despite these doctrinal difficulties, many centuries of Islamic political practice illustrate
that, as a practical matter, the secular rulers of Islamic states do have the power to enter into
treaties of indefinite duration with non-Muslim powers on the basis of sovereign equality
and reciprocity. The siyar, after all, is a branch of Islamic jurisprudence commonly said to
be powerfully shaped by custom and practice.-' The answer to Islam's difficulty with the
Article 38(l)(a) invocation of "international conventions, whether general or particular,
establishing rules expressly recognized by the contracting states"' 56 may simply be that
the problematic classical doctrines have become obsolete.
Fourth, even if it were possible to justify secular rulers' derogation by practice from
a divinely-inspired set of shari'a rules enshrined in the Qur'an and sunna, the importance
of "Islamic" legitimacy to modem Muslim govemments-especiallythose facing Muslim
fundamentalist insurgencies-should make these traditional doctrinal difficulties a source of
worry to those eagerto find Islamic law pleasantly agreeablewith modem international law.
Over the centuries, many Muslim jurists have advanced rationalizations for the power of 157
secular rulers to conduct foreign relations unfettered by shari'at second-guessing.
Indeed, modem Islamic statecraft is almost axiomatically predicated upon such formulae."'
The success of commentators' endeavors to find juridical congruence between the siyar and
pacta sunt servanda, it would seem, relies upon Islamic international law having largely
forsaken certain core principles of its origin in favor of an ethic of unblinking deference to
secular authority irrespective of theological propriety. This is unlikely to prove a solid
foundation upon which to build legitimate "Islamic" international relations.
Finally, even the siyar's partial accommodation with post-classical practice seems to
implicate some of these doctrinal difficulties. Even in their most optimistic incarnations,
modem articulations of Islamic legal rules according rulers power to engage in treaty
relations with the daral-harb invariably add the qualification that this treaty power cannot
extend to the point of violating the shari'a-e.g.,this power "can and does have precedence
over all laws except the Koran and the Sunna.'' 'i Ultimately, this argument presumes
its conclusion, as (apparently unintentionally) shown by the ARAMCO arbitration, in which
the king's power to treat with foreign oil companies was justified as being consistent with
the shari'abecause it was "in conformity with the principle of liberty to contract within the
limits of the Divine Law."' 60 The implication of this circularity is unclear, but, given the
clear doctrinal dilemma of the classical siyar, it adds a degree of uncertainty even to the
most modernist of Islamic articulations of the foreign affairs power. Ann Mayer goes so
far, for example, as to suggest that the incongruity between the classical siyar and modem
practice might mean that formal legal "challenges to treaties between Muslim and non-
Muslim6 countries could, at least hypothetically, result from the application of Islamic
law.''' '

156. ICJ Statute. supra note 106, art. 38(1)(a).
159. Bassiouni, supra note 18, at 615. When Muhammad and the early Orthodox caliphs of the Medinan
period delegated to field commanders the power to negotiate pacts with enemies willing to come to terms with
Islam, they always reserved the right to repudiate any treaty incompatible with the principles of God's Law. See
KHADDURI. supra note 3. at 203. Note, however, that some jurists cited the doctrine of maslih mursalah to permit
the ruler to engage in contracts not strictly in conformity with the shari'a. EL-MALIK. supra note 74. at 65.
160. Aramnco. 27 I.L.R. 117. 163 (1963); see also Hamlin, supra note 145. at 364 (quoting Aramco).
16 I. Mayer. supra note 50, at 20!. However. Mayer does opine that *'the likelihood of a Muslim government
using Islam as ajustification for breaking with the system of international law governing the relations among states
is small." Id. at 202. To support this claim, she cites to Iran's rejection of any Islamic justifications for its refusal
to appear before the ICJ in the Iran Hostages litigation. Id.
In short, Islamic law has yet clearly to have escaped the doctrinal constraints of its
classical core, which render its version of pacta sunt servanda somewhat less happily
congruent with modem international treaty law than many scholars would have one believe.
Nor is it entirely clearthat Muslim jurisprudence couldso escape and yet remain "Islamic."
The foreign relations of Muslim states may have become predominantly secularized, and,
to this extent, international norms of treaty-relations would obviously present no theological
difficulties. But to the extent that it remains necessary for the secular rulers of Islamic
states to retain a degree of "Islamic" legitimacy, the ultimate compatibility of the Muslim
law of nations with modem international norms of state interaction will remain, to some
extent, an open question.
B. Custom: Article 38(1)(b)
In asserting the compatibility of modem international law and Islamic jurisprudence,

Majid Khadduri has argued that traditional Muslim doctrine accepts custom as a source of
law in much the same way as does Article 38(1)(b): "The sunna and local practices are
equivalent to custom ....,,,62 Admittedly, the hadiths (traditions of the Prophet) and the
practice of the Medinan caliphs contained in the sunna do indeed represent custom in some
sense. But the sense in which this practice defines rules of law for subsequent generations
is vastly different from the role customary law plays in international jurisprudence. The
traditions of the Prophet and the early caliphs who actually knew him are important custom
in Islam because they provide a window upon the "legislative intent" of the divinely-
revealed Law of the Qur'an. They are perhaps the equivalent, in other words, to James
Madison's notes on the proceedings of the American constitutional convention: a means to
shed light upon the meaning inherent in the grounding document. But this is not at all the
role that custom plays in contemporary international law, since the practice given legal
authority in the sunna is limited to that of the founding generation of Islamic leaders.' 63
Khadduri's reference to the Islamic doctrine of customary law embodied in the sunna by
definition excludes thirteen centuries of the sort of government practice which international
jurists would consult pursuant to Article 38(1)(b).
Turning to Islamic private law and Khadduri's invocation of local practices, it is true
that the shari'aincorporated or at least tolerated many of the pre-Islamic customs of Arabia,
and that as the Islamic world expanded its jurisprudence adopted "diverse elements drawn
from the major civilizations" with which it came into contact.' 64 It is also true that
Islamic law allows contractual obligations to be interpreted in light of the customary
practices prevailing at the particular time and place of contracting,165 and that the legal
systems of Muslim countries commonly allow for the consideration of custom in the giving
of judgment.'66 Such references, however, do not lead to the conclusion that Muslim law
therefore "conform[s] generally ,,17 to the treatment of custom in modern international
162. SHAYBANI. supra note 4, at 9.

163. See, e.g.. text accompanying note 1.
164. Akhtar, supra note 5. at 35.
165. Habachy, supra note 137, at 470-71.
166. See, e.g., Nabil Saleh. The Law Governing Contracts in Arabia, 38 INT'L & Comp. L.Q. 761, 773
(describing reference to custom in Jordan's Civil Code)- Liebesny. supra note 38, at 26-27 (noting similar
references in article I of the Egyptian Civil Code of 1948, the Syrian Civil Code of 1949, and article 1(2) of the
Iraqi Civil Code of 1951); Habachy. supra note 137, at 471 (noting reference to custom in article 36 of the
Ottoman Civil Code (Majalla)). According to Habachy. the Hanafi school of Sunni jurisprudence is particularly
willing to consider custom in judicial interpretation. Habachy, supra note 137, at 471.
167. SHAYBANI, supra note 4. at 9.
law. Significantly, in conventional international law-a body of rules governing the

interaction of numerous jealous terrestrial sovereigns hitherto unwilling to agree among
themselves upon a body of codified, treaty-grounded rules with anything approaching the
depth and sophistication of that regulating domestic regimes-custom is a source of law not
only through its ability to give rise to new norms of conduct but also through its ability to
erode preexisting norms. Thus, for example, a practice hitherto unregulated may become
illegal when customary international practice evolves a new rule rendering it impermis-
sible.16 Conversely, a practice previously proscribed may become permissible as the
conduct of nations illustrates their unwillingness to continue to give its proscription the
legitimating force of opiniojuris."6' As the above discussions should suggest, it is not at
all clear that Islamic law is compatible with this vision.
Muslim jurisprudence does allow custom to be consulted as a source of binding
law-and, indeed, a source sometimes said to rank above analogical reasoning (qiyas) in the
hierarchy of Islamic sources----but it never permits custom to violate a rule laid down
by the sacred Qur'an or sunna. To admit any man-made law to take precedence over the
shari'a"offends the theory of the supremacy of Islamic law. The theory of Islamic law
does not admit that any laws of human origin may override Islamic rules, which are
considered to be divinely mandated. ""' Derogation by practice-such a crucial part of
modem international law-is thus formally prohibited in Muslim jurisprudence, and the
eternal sanctity of shari'a rules are asserted in its place. This reinvocation of the
(theoretically unchanging) shari'a returns us to the doctrinal problems of unitary
universalism discussed above.
Perhaps the only area in which modem international approaches to customary law may
be said to resemble Islamic law is in the application of norms of peremptory law orjus
cogens. This concept is embodied most prominently in Articles 53 and 64 of the Vienna
Convention on the Law of Treaties.'72 Article 53 of this document devotes itself to
"[t]reaties conflicting with a peremptory norm of general international law (/us cogens)":
A treaty is void if, at the time of its conclusion, it conflicts with a peremptory
norm of general international law. For the purposes of the present Convention,
a peremptory norm of general international law is a norm accepted and
recognized by the international community of States as a whole as a norm from
168. See, e.g., The S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (Ser. A) No. 10, at 25 (Sept. 7) (noting that
conclusion of extraterritoriality ofjurisdiction "could only be overcome if it were shown that there was a rule of
customary international law which, going further than the principle stated above, established the exclusive
jurisdiction of the State whose flag was flown").
169. See. e.g.. Anglo-Norwegian Fisheries (U.K. v. Nor.), 1951 I.C.J. 116. 128 (Dec. 18) (holding that
Norway's practice of departing from prior (customary) rule with knowledge and acquiescence of other powers had
robbed rule of its binding force). "In this way, a state departing from a rule-in effect violating it-may build
up what is described as a historic or prescriptive right." INTERNATIONAL LAW: CASEs AND MATERIALS 67 (Louis
Henkin et al. eds., 2d ed. 1987).
170. See, e.g., Saleh, supra note 166. at 783-84 (arguing that custom should control over a conflicting
analogical deduction or subsidiary source of law such as masalih mursalah (public interest) or istihsan (equitable
preference)).
171. Mayer, supra note 50, at 199. All four of the principal Sunni schools-Hanafl, Maliki, Hanbali, and
Shafl'i--require that shari'a respect for the binding force of customary practice be restricted to customs either
actually substantiated by the Quran or sunna or at least not actually invalidated by any provision of sacred text.
See Saleh. supra note 166, at 783.
172. Vienna Convention on the Law of Treaties. opened for signature, May 23, 1969. 11 U.N.T.S. 331, 8
I.L.M. 679.
which no derogation is permitted and which can be modified only 73by a

subsequent norm of general international law having the same character.1
Article 64 of the Convention, discussing the "[e]mergence of a new peremptory norm of

general international law Ous cogens)," adds that "[i]f a new peremptory norm of general
international law emerges, any existing treaty which is in conflict with that norm becomes
void and terminates. "'74 Norms of jus cogens, therefore, are norms from which no
derogation is permitted-an attitude that, superficially at least, recalls Muslim doctrines of
75
shari'a supremacy.1
An analogy between jus cogens and shari'a, however, would be mistaken. Most
fundamentally, modem international law explicitly refuses to accord norms ofjus cogens a
permanent and inalterable validity of the sort given to the shari'a at the core of Muslim
jurisprudence. The drafters of Article 53 of the Vienna Convention emphasized that "[i]t
would clearly be wrong to regard even rules ofjus cogens as immutable and incapable of
modification in the light of future developments. ,,176As the text of Article 53 itself
indicates,' 77 the drafters believed that peremptory law "was not immutable and that the
concept of public order must be free to evolve."' 7' Since a rule of jus cogens would
change if the international community were to agree upon "a subsequent [different]
norm ... having the same character,"" peremptory law would evolve hand-in-hand with
"the international conscience. "ISO
Ultimately, therefore,jus cogens doctrine seems very little like the theory of divinely-
revealed legislation underlying shari'a law. Muslim law, like the Vienna Convention's
articulation of peremptory norms, admits no derogation by practice, but the two approaches
diverge radically thereafter. In modern international jurisprudence, the fundamental rules
of the international system change and evolve with the development of the conscience of the
international community.' In Islamic law, by definition, the fundamental law is
173. Id. art. 53.

174. Id. art. 64.
175. See, e.g., North Sea Continental Shelf (F.R.G. v. Den., F.R.G. v. Neth.). 1969 I.C.J. 3,229 (Feb. 20)
(dissenting opinion of Judge Lachs) ("Nor can a general rule which is not of the nature ofltus cogens prevent some
States from adopting an attitude apart."); Hugh Thirlway. The Law and Procedure of the InternationalCourt qf
Justice 1960-1989: PartOne, 1989 BRIT. Y.B. INT'L L. 1. 102-03 (contrasting ordinary rules of international law
6us dispositivum) with norms of jus cogens which "can in no circumstances be waived or excluded by
agreement"); Sir Gerald Fitzmaurice, The Law and Procedureof the InternationalCourt of Justice, 1954-1959:
GeneralPrinciplesandSources of InternationalLaw. 1959 BRIT. Y.B. INT'L L. 183, 225 (arguing thatjus cogens
permits no "contracting-out").
176. Report of the InternationalLaw Commission, U.N. GAOR, 18th Sess., Supp. No. 9, U.N. DOC. A/5509
(1963).
177. "[A] peremptory norm of general international law is... a norm from which no derogation is permitted
and which can be modified only by a subsequent norm qf generalinternationallaw having the same character."
Vienna Convention on the Law of Treaties, supra note 172, art. 53 (emphasis added).
178. Summary Records of the 15th Session, [1963] I Y.B. Int'l L. Comm'n 63. 43, U.N. Doe. AICNA156
and Addenda (remarks of Mustafa Kamil Yasseen (Iraq)).
179. Vienna Convention on Law of Treaties. supra note 172. art. 53.
180. Summary Records qf the 15th Session, supra note 178, at 63. 143.
181. Indeed, the very notion ofjus cogens itself is historically contingent because it was developed largely
in response to the horrors of blitzkrieg and Holocaust presented by the Second World War. These shocking
developments helped lead international jurists to conclude that there must be some doctrine of fundamental
"boundary rules" defining the outer limits of what international law may legitimately permit traditional state-
contractual relations to condone. See. e.g., id. at 72, 61, (remarks of Antonio de Luna (Spain)) (arguing that,
while a purely contractarian view of international law had been acceptable in the nineteenth century, "when a
phenomenon such as Naziism appeared, the theory became questionable").
inalterable by man: It is God's revealed Word, valid equally and unchangingly for all time.
While a judge applying thejus cogens principles of the Vienna Convention and a Muslim
jurist might in practice agree that a particular action is prohibited by the fundamental law
of the international community, they would be speaking very different jurisprudential
languages.
In both foreign relations and domestic legal affairs, Islamic jurisprudence, although
theoretically committed to a radical state-theological monism, has adapted to the markedly
contrary practice of centuries of political life less by changing its rules than by simply
withdrawing from the field. Rather than accepting derogation by practice, the siyar and the
rest of the shari'a have tended to pull back into the ivory tower of legal scholarship and
renounce any ability to second-guess the legitimacy of the actions of those in authority.
Both at home and abroad, the multahids simply conceded governance to the governors." 2
The result of this dynamic is that Muslim practice has developed in ways fundamentally at
odds with Muslim theory. As with treaty-making in international relations, Islamic nations
may be willing to live in congruence with modern international principles, but it cannot be
said that Islamic law really permits this by anything other than default. To the extent,
especially, that governance in the Muslim world must increasingly rely upon "Islamic"
fountains of legitimacy-and the rulers of some Muslim nations have precious little other
legitimacy upon which to rely-Khadduri's optimism about the shari'a'scongruence with
Article 38(I)(b) must be sharply qualified.
C. General Principles:Article 38(1)(c)
The invocation of "the general principles of law recognized by civilized nations" in

Article 38(1)(c) of the Statute of the ICJ' 3 is the international legal system's attempt to
empower judges "to develop and refine the principles of international jurisprudence "'
by "replenish[ing] ...the rules of international law by principles of law tested within the
shelter of more mature and closely integrated legal systems."' Rather than permit the
International Court to give judgments of non liquet-a finding that the existing law simply
did not cover a particular situation-the drafters of the Statute" 6 aimed with Article
38(1)(c) to give the international bench the ability to fill legal lacunae through their
principled application of legal reasoning."8 7
Can the lex contractus created by the parties validate a contract which is not only contrary to
elementary demands of a domestic ordrepublic, but also violates fundamental human rights? IfNazi
Germany had granted to a Ruritanian corporation the contractual right to carry on commercially some
of her opprobrious activities, would that contract really have been sovereign and could no legal system
have condemned it?
F.A. Mann, The ProperLaw ofContracts Concluded by InternationalPersons, 1959 BRIT. Y.B. INT'L L. 34, 50.
182. See supra text accompanying notes 55-60, 130-131.
183. ICJ Statute, supra note 106, art. 38(l)(c).
184. IAN BROWNLIE. PRINCIPLES OF PUBLIC INTERNATIONAL LAW 16 (1990).
185. Georg Schwartzenberger, Foreword to BIN CHENG, GENERAL PRINCIPLES OF LAW AS APPLIED BY
INTERNATIONAL COURTS AND TRIBUNALS, at xi (1987).
186. The present statute descended with little modification from the Statute of the Permanent Court of
International Justice (PCIJ) established as part of the League of Nations system in 1920.
187. ADVISORY COMMITTEE OF JURISTS FOR THE PERMANENT COURT OF INTERNATIONAL JUSTICE, PROCtS-
VERBAUX OF THE PROCEEDINGS OF THE COMMITrEE, 324-25 (June 16-July 24, 1920) (remarks of Baron
Deschamps) (arguing that "'the conception of justice and injustice as indelibly written on the hearts of civilised
peoples [is]... an indispensable complement to the application of law, and as such essential to the judge in the
performance of the great task entrusted to him"), Michael Akehurst. The Hierarchy of Sources of International
La, 47 BRIT. Y.B. INT'L L. 274, 279 (1975).
This approach finds some parallels in Islamic legal doctrine and in the legal systems
adopted by twentieth-century Muslim governments. To begin with, the classical sources-
doctrine of Muslim law-as most prominently articulated by the great eighth-centuryjurist
(and founder of the Shafi'i school of Sunni jurisprudence) Muhammad lbn ldris Ash-
Shafi'i-repudiated the use of mere human opinion in interpreting the shari'a but accorded
qiyas, or analogical reasoning, an important position in sources-doctrine. Through the use
of qiyas, judges were permitted to deduce guiding Islamic legal principles from one holy
source and apply them, by analogy, to a question for which the scripture or traditions
provided no direct answer.' This methodology does indeed markedly resemble that in
Article 38(I)(c), which permits judges to apply
elements of legal reasoning and private law analogies in order to make the law
of nations a viable system .... An international tribunal chooses, edits, and
adapts elements from better developed systems: the result is a new element of
international law the content of which is influenced historically and logically by
domestic law."8 9
Given Muslim jurists' occasional willingness to allow deviations even from qiyas in the
name of preventing hardship or injustice-the doctrine of istihsan, or "equitable
preference "-Islamic approaches to such reasoning seem closely to parallel modern
commentators' understanding of general principles law.'
Moreover, in their codification projects of the early and middle twentieth-century,
many Muslim countries adopted Article 38-like clauses allowing reasoned judicial gap-
filling. Many of these clauses closely resemble-and were probably adapted from-the very
provisions in European legal systems which may have inspired the drafters of Article
38(1)(c). 9 ' Various legal code provisions in Egypt, Syria, Iraq, Jordan, Kuwait, Qatar,
and the United Arab Emirates, for example, contain provisions for judicial invocation of
such general principles of law as natural justice and equity, good consciencelbonnesmoeurs,
or public order.'92
The difficulty with this general principles analogy is related to the problem of
inconsistency between Islamic ideals and Muslim state practice: The general principles thus
188. See generally COULSON, A HISTORY, supra note 2, at 57-59.

189. BROWNLiE, supra note 184, at 16.
190. See, e.g., H.C. Gutteridge, Comparative Law and the Law ofNations, 21 BRIT. Y.B. INT'L L. 1, 9 (1944):
The object seems to be ... to provide the judge, on the one hand. with a guide to the exercise of his
choice of a new principle and, on the other hand, to prevent him from "blindly following the
teaching" ofjurists with which he is most familiar "without first carefully weighing the merits and
considering whether a principle of private law does in fact satisfy the demands of justice" if applied
to the particular case before him ....
191. By the time the Statute of the PCIJ was drawn up in 1920, the national legal systems of three of the ten
members of the Committee of Jurists drafting its provisions had adopted a general principles of law formulation
in order to fill gaps in their domestic code provisions. BIN CHENG. GENERAL PRINCIPLES OF LAW AS APPLIED BY
INTERNATIONAL COURTS AND TRIBUNALS 18-19 (1987).
192. See Saleh, supra note 166, at 767-74, 777-79 (discussing Jordan. Iraq. Kuwait Qatar, and UAE);
Liebesny, supra note 38, at 26-27 (discussing Egypt, Iraq. and Syria); see generally Charfi, supra note 77, at 402
(noting that Muslim countries routinely have public order exceptions in their legal codes or provisions providing
in conflict-of-laws situations for "'une exception etces rgles en cas d'atteinte b l'ordre public ou aux bonnes
moeurs" (an exception based upon principles of public order or good conscience]) (author's translation).
adhered to include the general principles of the shari'a itselpf9 -and secular general
principles can only be invoked to the extent that they do not violate those principles
underlying the divine Law. Because Islamic jurisprudential gap-filling doctrines only apply
where there exists no directly-applicable shari'a prescription, the sacred texts naturally
provide no direct guidance in such determinations. Since Islamic legal theory has been so
specific with respect to the core of doctrinal principles governing relations with the dar at-
harb, thereby presumably reducing the scope of any doctrinal lacunae which judges may
hope to fill, the degree to which Islamic law admits an analogue to Article 38(l)(c) is
unclear.
D. Caselaw and Publicists:Article 38()(d)
Islamic law contains little analogue to the authorization of reference in Article 38(1)(d)
to judicial decisions, even if such decisions are treated as merely "subsidiary means for the
determination of rules of law."' 9 4 Traditionally, Muslim jurisdictions have not had
hierarchical systems of judicial administration. " The qadis applied the shari'aas courts
both of first and of last resort.'96 This meant both that private shari'a law came to be
quite variously applied,' 97 and that "there was no hierarchy of superior courts whose'
binding precedents might have established the uniformity of a case law system." 98
Indeed, "the qadi had power to review his order and also the judgment of his predeces-
sor." 9 " During the Umayyad period, judges were not
bound by precedents, even their own, hence the same judge [might] give a
different ruling in settling two similar cases if convinced, or at least. . . able to
convey the conviction, that an error was committed in the first place. Therefore
no real organizing function [was] to be expected from the judiciary, except on
occasions, bearing in mind that some countries (e.g. Saudi Arabia) do not even
publicize court judgments."'
193. The Kuwaiti code, for example, specifies the shari'a as -one source of inspiration among those
recommended to the legislator and ... [as] a source of reference that judges may consider inthe process of their
reasoning, provided that no statutory provisions and no custom are available." Saleh, supra note 166, at 771. The
provisions of the Iraqi civil code referring to public policy grounds for the dissolution of contracts do not refer
expressly to the sharia. They do. however, give a list of suggested areas of application that correspond closely
to Islamic law's traditional areas of concern (e.g., religious endowments (waqfi). Id. at 778. The Egyptian Civil
Code of 1948 also refers to the shariain this context, but lists it as a source to be considered after the provisions
and spirit of the Code itself and after a consideration of custom. Id. at 768. Because, however, of the traditional
reluctance of Islamic law to admit derogation by practice-and because of the long-standing claims of Muslim
codifiers that their codes are consistent with the shari'a-itis not clear that this tertiary listing is of much
significance. Most likely, it amounts to little, if anything, more than the UAE's rule that no "public policy"
grounds may be invoked to permit things violative of shari'aprinciples. Id. at 778. Generally, Sunni scholars
have accepted that the notion of public policy subsumes any rule or principle originating from religious
prescription. Id. at 779.
194. ICJ Statute, supra note 106. art. 38(l)(d).
195. Excepting certain secular courts in mazalim (complaints) jurisdiction. See COULSON, A HISTORY, supra
note 2, at 122.
196. See COULSON, CONFLICTS, supra note 2, at 61.
197. COULSON. A HISTORY, suipra note 2, at 33.
198. Id. at 30.
199. Liebesny, supra note 38, at 20.
200. Saleh, supra note 166. at 786.
Even if the early freedom of qadis to develop private law in such a diverse fashion survived
the "closing of the door of itihad" in the tenth century,20 ' Islam still steadfastly refused
to develop a system of precedential case law akin to that possessed by Anglo-American
jurisprudence, which could make possible an Article 38(l)(d) referral to judicial decisions.
This refusal to develop a precedental system was probably the inevitable byproduct of
the revelatory grounding of the shari'a. If the law is the revealed Word of Allah, jurists can
no more change it through the progressive development of case precedents than they could
themselves speak on behalf of the Deity. Divine legislation ended with the death of the
Prophet, leaving subsequent generations with the task merely of applying the sacred Law.
"God proposes: man disposes":
[J]urisprudence in Islam is the whole process of intellectual activity which

ascertains and discovers the terms of the divine will and transforms them into a
system of legally enforceable rights and duties. It is within, but only within,
these strict terms of reference that the tensions and conflicts of Islamic legal
thought arise.20 2
This principled reluctance to accord judges a meaningful role in developing the law was
similar in many respects to the pretensions of jurists in modem European civil law
jurisdictions. European jurists themselves have a tendency to deny any role in law-creation
and pretend that in every case they are merely declaring an invariant preexisting rule.2"'
One important distinction is that in shari'ajurisdiction a judge's transgression of the ban
upon law-creation affronts God Himself, rather than simply the prerogatives of a secular
legislature.
A partial exception, however, to this Islamic abhorrence for precedential case law may
be found in the case of Pakistan." 4 As the rulers of British India administered Islamic
personal law (which applied between Muslim subjects) through a system of British-drafted
codifications of Islamic doctrine 20 ' and a network of common-law courts-which for some
reason equated the Islamic doctrine of taqlid with English principles of stare deci-
201. Noel Coulson. for example, recounts that in the tenth century the Muslim jurists appeared to conclude
that:
the labors of past generations ofjurists had now brought the [Islamic] doctrine to maturity... land]
[flurther Ytihad [juristic law-finding] would be without purpose or profit .... The door of Utilhad,"
as the Arabic expression has it, "was closed." Future generations ofjurists were denied the right of
independent inquiry and were bound instead by the principle termed taqlidto "follow" or "imitate"
the doctrines of their predecessors.
COULSON, CONFLICTS, supra note 2. at 42-43.
202. Id. at 1-2 (emphasis added).
203. See, e.g., Michael Wells, French and American Judicial Opinions, 19 YALE J. INT'L L. 81, 92-108
(1994). Furthermore, even a more secularized approach to law in Muslim countries would mitigate against the
development of ameaningful caselaw system, since "*[m]ostArab countries, by adopting legal systems based upon
French models, have also adopted the attitude toward law reporting that those models engender. Codes are an
anathema to judicial precedent." Ian Edge. Comparative Commercial Law of Egypt and the Arabian Gulf. 34
CLEV. ST. L. REV. 129, 140 (1985-86).
204. Another arguable exception is the case of Egypt, in which the old Mixed Courts and Native Courts
produced a corpus of recorded caselaw that is-by virtue of the paucity of such work ill Islamic
jurisprudence-apparently widely utilized in the Muslim world. Edge. supra note 203. at 140-41.
205. See generally Liebesny, supra note 38. at 32-33 (describing the development of codes written by the
British regime and the corresponding rise in use of precedent).
sis 06-- there developed a fascinating amalgam of Islamic doctrine, customary law,
statutory interpretation, and English common-law principles. In time, this became a
distinctly "Anglo-Mohammadan " body of law.20 7 As a result of this quasi-precedential
legacy, Pakistani courts (succeeding to this body of law upon independence in 1947) have
enjoyed at least some ability to modify the commandments of the shari'a as traditionally
understood. This power has in fact been exercised, at least in the field of divorce law.2" 8
Even in Pakistan, however, this quasi-precedential system does not easily yield any
power to alter core precepts of the shari'a:
[i]udicial decisions in Pakistan have broken the stranglehold of the doctrine of

the medieval legal manuals .... [But] the use of independent reasoning is still
very much the exception to the general rule, and.., the great respect for the
traditional authorities means, as a dictum in one Pakistani case has it, that they
are "not lightly to be disturbed" ..... "'
This dictum, as well as the actual practice of the Pakistani courts in matters of divorce,
suggests that the traditional authorities may at least sometimes be disturbed. Lest this be
taken, however, to imply a strong system of judicial precedent, it is customarily qualified
with admonitions to the effect that any "such enquiry may proceed only within strictly
defined limits. Any proposed departure from the law of the classical authorities must be
firmly grounded upon indications in the Qu'ran or the sunna, or at least not be contrary to
any specific regulation thereof."2 ' In 1980, Pakistan created a Federal Shariat Court,
distinct from its ordinary Supreme Court, possessing the power to review lower court
decisions and even government legislation for compatibility with the Qur'an and the
sunna.2" Especially in contemporary Muslim governments keen to invoke their own
"Islamic" legitimacy, it remains to be seen how consistent even the Anglo-Mohammadan
legal tradition can be with Article 38(1)(d)'s invocation of "judicial decisions ... [as]
' 212
means for the determination of rules of law.
The second part of Article 38(I)(d) authorizes international jurists to turn to "the
teachings of the most highly qualified publicists of the various nations. ' 21 3 In one sense,
this accords well with Muslim practice. Given the relative paucity of specifically legal
Quranic injunctions and the ambiguous and often contradictory admonitions and precedents
of the hadiths (traditions) attributed to the Prophet, Islamic jurisprudence has been
dominated for 1300 years by rival legal scholars and their associated schools of thought,
e.g., Maliki, Hanbali, Hanafi, and Shafi'i. In this sense, perhaps more than any other here
discussed, Article 38's sources-doctrine and Islamic law enjoy a very close affinity.
206. See COULSON. CONFLICTS. supra note 2,at 43. Coulson obviously feels taqid to have been a more
restrictive doctrine than Anglo-American courts usually associate with simple precedent.
207. Liebesny, supra note 38. at 27-28.
208. For example, in the famous case of Balquis Fatimav. Maim al-Ikram Quereshi,the High Court of Lahore
decided to.permit husbands and wives reciprocal rights to repudiate a marriage (to demand khul) through legal
petition. Though initially ignored by Pakistan's Supreme Court, this idea resurfaced-and was upheld-in 1967.
Anderson, supra note 71. at 46-47. The term khulr refers to the process of a wife's "getting rid" of an
undesirable marriage. Traditionally it was restricted to such circumstances as the husband's violation of specific
clauses in the marriage contract. See Rahman, supra note 126. at 460.
209. COUtSON, CONFLICTS. supra note 2,at 56.
210. Id. at 56-57.
211. Liebesny. supra note 38, at 30.
212. ICJ Statute. supra note 106. art. 38(l)(d).
213. Id.
Here also, however, there remain difficulties. To begin with, at least since the
"closing of the door of itihad" in the tenth century, Islamic law has generally been quite
restrictive with respect to which Muslim authorities may be so consulted. For hundreds of
years, jurists were expected to "take the law from the authoritative manuals and not seek
to go behind them."' 4 In recent generations, some Muslim thinkers have attempted to
modernize and liberalize the shari'a and "there is a distinct trend today toward a greater
freedom of independent enquiry to ascertain ... the religious law." 21 But the doctrinal
legacy of Islamic unitarism and universalism clearly bars turning to non-Islamic publicists
of any variety-a proscription which has presumably only been enhanced by the eagerness
of regimes in the Muslim world to buttress their "Islamic" legitimacy in the face of
increasing popular discontent and fundamentalist religious challenges.
Moreover, the publicists to whom Islamic law authorizes recourse are themselves the
heirs to a centuries-old (and largely continuing) tradition of deference to secular power.
This juristic abdication, conceding public affairs to the government in power, has restricted
the work of igtihadto an erudite but increasingly remote body of scholars immersed in "an
introspective science, concerned with the elaboration of the pure Shari'a law in abstrac-
to. ' Of course, the unprincipled government monopolization of foreign relations by
secular authorities does not make the Muslim world unique. Quite the contrary. This
tradition of deference to established authority, however, makes reliance upon these jurists
as a source of international law less useful. While other nations' publicists may have long
failed to impose moral and legal order upon their rules, neither have they been unflinchingly
supportive of their princes' failings. In contrast, with respect to affairs of state, Muslim
jurisprudence has long been to a large extent the apologist for power, not merely
relinquishing its capacity to pass legal and ethical judgment upon authority but actually
rationalizing the duty to obey it.2" 7 Turning to such apologia in the adjudication of
disputes between rival secular sovereigns is of questionable utility."'
IV. CONCLUSION
Islamic approaches to the law of nations are much less congruent with secular inter-
national law than many have supposed. The dilemmas Muslims face in this respect are
powerfully tied to the continuing inability of the mujtahids to reconcile the doctrinal core
of their faith with their rulers' greatly divergent practice. The siyar faces a constitutional
crisis that has festered for centuries without resolution and which has become even more
acute with modernity's admixture of nationalist ideology. To the extent that Islamic law is
faithful to its classical traditions, it will remain deeply at odds with international legal
214. COULSON, CONFLICTS, supra note 2. at 43.

215. Id. at 56.
216. Id. at 60.
217. See, e.g., supra text accompanying notes 130-131.
218. As Ann Mayer has suggested, the promulgation of "Islamic" analogues to conventional international
norms may sometimes simply conceal rather than actually close the real gap between these normative systems.
See MAYER. supra note 60, at 71:
After examining the vague and confused concepts that the authors of Islamic human rights
[proclamations] include in their lists of Islamic human rights, one sees that they have no sure grasp
of what the concerns of human rights are. Their efforts to incorporate elements from the Islamic
sources, relying on Revelation rather than reason to find rights principles, lead them to include
provisions that would be totally out of place in a scheme that shared common philosophical premises
with those of international human rights.
norms. From this perspective, a Muslim law of nations that genuinely does conform
generally 2 9 to the structure of modem international law requires Islam's abandonment of
much of the bedrock of theocratic principle that makes the shari'athe shari'a.
Without the articulation of some genuinely new approach to Muslim jurisprudence,
however, real resolution of the siyar's constitutional crisis may not be possible. Even the
traditions that have allowed the juridical doctrine to coexist with Islam's political reality
may turn out to be inadequate grounding for a meaningful modern law of nations. In an
effort to justify its divergent state practice, Muslim jurisprudence has in the past focused on
the unprincipled application of authority to the objects of that power. This has been done
to such a degree that there is little left to draw upon in articulating an international
normative system whose rules constrain the actions of territorial sovereigns.
Is it possible to imagine a genuinely modernist articulation of "Islamic" norms that
avoids the pitfalls of arrogant hegemonism and unprincipled submission? Can one conceive
of an Islam that both eschews conquest and provides a legal framework against which to
judge the acts of Muslim governments? Perhaps. There is no doctrinal reason why the
multitude of secular rulers must each inherit the power-legitimating mantle of the caliphate.
Indeed, simple logic might suggest that they cannot. How could authority to act in the
capacity of the Islamic head of state pass to someone who merely rules one of many
countries populated by Muslims? And how could it pass, moreover, to dozens of such
rulers? If secular successors do not inherit this power, the doctrinal awkwardness ofjihad
and the restrictive precedents of the early caliphate need not plague modem Muslim
mujtahids trying to fit their traditions into the framework of international law.
Could such large portions of the classical siyar simply have lapsed with the collapse
of the caliphate and the fragmentation of the dar al-Islam? There need be no question of
human alteration or even desuetude of God's Law, merely its inapplicability to the question
at hand. Rules specifically provided to govern the conduct of the unitary Islamic theocracy
have nothing to say about the conduct of secular territories. Thus, what remains of the
shari'amay not provide enough ballast for a framework against which to judge the behavior
of these multitudinous secular kingdoms. Even were Muslim law to have nothing to say
about modem conduct of state, such a circumstance of non liquet might be preferable to
uncritical rationalizations of secular authority-but why not ask more of a religion that
throughout its history has claimed to provide its believers with a complete religious, moral,
ethical, and political system?
If secular governments do not succeed to genuine legal sovereignty-at least not in the
deep sense this word connotes in Islamic law-they could be considered juridical
"individuals" under Islamic private law. That is, the collectivity of state authority would
be subject in its dealings with other such legal "individuals" to the same legal and ethical
obligations that rule individual believers in their mutual relations (or at least those duties that
might intelligibly apply to collective entities: governments do not marry, divorce, procreate,
drink wine, or really decease). Under such a conception, governments would be free to
contract with other governments-and their agreements would acquire the compelling, even
sacred, legal force of ordinary contracts in Muslim law. They might also be capable of
contracting with their own individual citizenry.
If, therefore, classical traditions of theocracy do not apply in the absence of a theocrat,
a normative legal system could be introduced into Islamic jurisprudence that would be
compatible with that of modem international law with respectto both interstate relations and
human rights. Bringing such elements of contractarian relations into the contemporary
219. SHAYBANI. stpra note 4. at 9.

jurisprudence of the siyar could provide coherent grounding for a genuine law of
international relations, and might even introduce the concepts of consent and reciprocity into
the relationship between governor and governed for the first time in Islamic history. The
constitutional crisis of Islamic governance would be resolved and the groundwork laid for
the flowering of an international jurisprudence that still has genuine roots in the teachings
of the Prophet.
Such radical reformism would certainly be optimistic. An approach of this kind would
have to throw off an astonishing weight of historical baggage, even if it merely needed to
persuade the mujtahids themselves. More difficult still would be to persuade governments
who, over the centuries, have accrued dramatic benefits from the legitimacy afforded them
by juristic docility. Convincing ordinary Muslims would be the greatest challenge. Issues
of "Islamic" legitimacy-by which is generally meant fidelity to the classical traditions of
the shari'a-havebecome powerfully wrapped up in various forces, including questions of
national identity, attitudes of "anti-imperialism, " and the economic, social, and political
agendas of various groups in Muslim society. In short, "Islam" has been greatly
ideologized.
Islamization does not involve a simple revival of traditional Islamic values and
classical shari'alaw; Islamic doctrines are being redefined and transformed by
the exigencies of adapting them to the aims of the political programs of various
groups of Muslims and in the course of their codification and application by
governments of nation-states.220
Paradoxical as it might seem given the hostility of the classical siyar to the very idea of
national identity, "today ... Islam signifies liberation, emancipation and the affirmation of
identity ....One cannot exaggeratethe power of the referenceto Islam in modem Muslim
governance. ,221
In Muslim countries, "Islamic" legitimacy has long been bound up with anti-colonial
issues and has become such a part of local nationalist identity that, despite the formal
hostility of revivalist Islamic ideologues like Sayyid Qutb of the Muslim Brotherhood to the
idea of "nationalism," their followers still flirt with the appealing prepackaged identity of
the nation-state.22 2 Even the late Ayatollah Ruhollah Khomeini of Iran-to most
Westerners the very incarnation of radicalized modern Islam-articulated a powerfully
nationalist vision of clerical Shi'ite government (velayat-etzqih) in which the clerical leader
(faqih) seemed also to embody the leadership of the Iranian nationalist cause of "freedom,
independence and territorial integrity of the Islamic homeland." 223'
There is more to these modem dynamics than just the popularization of a markedly
oxymoronic "Islamic nationalism," however. The contemporary Islamic revival also
embodies a distinctly new attempt to reconcilethe age-old tension between the Islamic ideal
of governance and its wildly-derogated reality. It aspires, ultimately, to help heal the
"separation between sanctity and power ' 224 that has characterized Muslim law for so
many centuries and which has produced the siyar's contemporary constitutional crisis.
Revivalist Islam is abandoning the traditional docility of th e mujtahids towards political
220. Mayer, supra note 39. at 184.

221. Ici
doncl'isanitisignifie ibration, imiancipationetaffirinationdidentitd... . [11 nefaut pas exagdrer
la porte de la refdrence I'Islam dans la constitution des pays nntsultnans. Charti, supra note 77, at 345
(author's translation).
222. See VATIKIOTIS, supra note 37, at 69.
223. Mayer. supra note 39. at 157-58.
224. VATIKIOTIS, supra note 37. at 58.
authority. It rejects the medieval jurists' preference for border-at-any-price in favor of a

radically new ethic of Islamic revolution: It revives the doctrine ofjihad, casting it as a
"call to justice" that hopes to restore sanctity to power' 2 -- even if this means destroying
the authority which previous generations ofjurists devoted their careers to upholding. This
is also, perhaps, why revolutionary Islamic revivalism has achieved such a currency among
Shi'ite populations in Sunni-ruled countries. For such groups, the ideologization of "Islam"
is not merely a "call to justice" that sweeps together their particular individual and
collective aspirations; it also resonates powerfully with Shi'ite preachings against a Sunni22 6-
world which destroyed and would deny the legitimate succession to the caliphate itself.
Ultimately, while revivalist Islam gains its strength from the gulf that still separates
power from sanctity in the Muslim world, it cannot resolve Islam's constitutional crisis. The
traditionalist cast of this ideologized shari'a denies its adherents the ability to question
received doctrines at the core of the classical siyar. Yet the classical doctrine is precisely
the locus of the crisis. Absent either a restored caliphate or a radically reformed core of
classical theory-one, for example, that comes to grips with the nationality paradox-Islam
will not be able to square its traditional understanding of the law of nations with the reality
lived by the Muslim world. A Restoration, however, is unimaginable, and the revivalist
ideologues seem incapable of conceptualizing the sort of reform that would be needed.
The Islamic law of nations, therefore, remains perhaps more wracked than ever by the
tensions inherent in its attempts to come to grips with the fragmented world it inhabits. Its
inability to resolve these doctrinal crises and contradictions suggests that the siyar will
neither soon nor easily become genuinely congruentwith modem internationaljurisprudence.
The challenge of ijtihad has in many ways never been greater.
225. See id. at 65-67.

226. Cf Lawrence, supra note 16, at 147 (discussing Shi'ite doctrine offihad).

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Citation: 30 Tex. Int'l L. J. 499 1995

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1. INTRODUCTION .............................................. 499

II. THE CLASSICAL LEGACY AND ITS CRISES ........................... 500

ii. ISLAMIC LAW AND INTERNATIONAL JURISPRUDENCE ................... 517

IV. CONCLUSION ............................... ............... 530

II. THE CLASSICAL LEGACY AND ITS CRISES

In theory, therefore, the siyar was to be merely a temporary institution, destined to be

their disbelief. SHAYBANI, supra note 4, at 58.

Islam's radical universalism almost inevitably opposed it to any suggestion that

On the supreme constitutional issue of the nature and incidents of political

29. KHADDURI. supra note 3, at 51 (quoting THE HOLY QUR'AN XI:120).

36. See KHADDURI, supra note 3, at 67.

52. Id. at 65.

4. The Paradox of Islamic Nationalism

[t]he nation-state is a concept alien to Islam. And if the impersonal legitimate

75. SHAYBANI, supra note 4, at 65.

Bonderman, supra note 9. at 1189.

Charfi, supra note 77, at 376 (author's translation).

C. Dividing Theory and Practice

1. Abroad: From Expansion to Accommodation

86. Mayer, supra note 50, at 197.

94. See Badr, supra note 5, at 3.

endeavors in various respects, and to inject "Islamic" perspectives into international

2. At Home: Reform and the Shari'a

A similar dynamic of accumulating government power andjuristic concession occurred

112. COULSON. CONFLICTS. supra note 2. at 69.

III. ISLAMIC LAW AND INTERNATIONAL JURISPRUDENCE

124. See Bonderman, supra note 9, at 1192-93.

al jurisprudence, Article 38(1) of the Statute of the International Court of Justice. 2

The Court, whose function is to decide in accordancewith international law such

A. Treaty Law: Article 38(1)(a)

132. ICJ Statute, supra note 106, art. 38.

Moslem Law does not distinguish between a treaty, a contract of public or

148. See supra text accompanying notes 8-1 I, 21-24.

155. See supra text accompanying notes 4-5.

B. Custom: Article 38(1)(b)

In asserting the compatibility of modem international law and Islamic jurisprudence,

162. SHAYBANI. supra note 4, at 9.

law. Significantly, in conventional international law-a body of rules governing the

which no derogation is permitted and which can be modified only 73by a

Article 64 of the Convention, discussing the "[e]mergence of a new peremptory norm of

173. Id. art. 53.

C. General Principles:Article 38(1)(c)

The invocation of "the general principles of law recognized by civilized nations" in

188. See generally COULSON, A HISTORY, supra note 2, at 57-59.

D. Caselaw and Publicists:Article 38()(d)

[J]urisprudence in Islam is the whole process of intellectual activity which

[i]udicial decisions in Pakistan have broken the stranglehold of the doctrine of

214. COULSON, CONFLICTS, supra note 2. at 43.

219. SHAYBANI. stpra note 4. at 9.

220. Mayer, supra note 39. at 184.

authority. It rejects the medieval jurists' preference for border-at-any-price in favor of a

225. See id. at 65-67.

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