Contested Universalities of International Law: Muslim Law And The Struggle with Modernity

This article explores the validity of Muslim claims for a particularistic Islamic law of nations. Such claims include the normative rejection of current international law in whose creation and continued development colonised peoples had little active role. Yet irrespective of its geographic origin and alleged normative shortcomings, international law is primarily a modern phenomenon serving functional needs not attainable by pre-modern precursors. Discussing the nature of religious law and examining the incomplete reception of the institutional “package” of modernity, the article aims to highlight why historical models of Muslim international relations share the same shortfalls as other unilateral attempts by “universal states” to regulate inter-group relations. The demand for greater recognition of religious law both domestically and internationally is a phenomenon driven by dissatisfaction with the costs of the modernisation process. The appeal of religious law is based on its perception as a language of justice. Nevertheless, reliance on religious law is unlikely to yield satisfactory results in either practical or intellectual terms, and is unlikely to resolve the contradictions of the global modernisation process.

Muslim Law And The Struggle with Modernity

Modernity and International Law Critiques of the alleged narrow cultural outlook of current international law often point to historical precursors as evidence of the rich traditions around the world that were cast aside by colonialism and the distinctly Christian basis on which Western European states had organised their affairs.1 Such critiques miss the fundamental epistemological and normative character of today’s international law as a primarily modern phenomenon. International relations began as soon as at least two polities came into social, economic or military contact. It is reasonable to expect that such contacts would eventually lead to the establishment of certain standards of appropriateness in interactions. Pre-modern cultural centres that conceived of themselves as “universal states”, i.e. as the respective centre of the known universe over which they had mutually exclusive, comprehensive ambitions,2 displayed early types of “inter-group normativity” characterised by their unilateral form and substance, flowing from a civilised core to regulate relations with outside barbarians: “However, the predominant approach of ancient civilisations was geographically and culturally restricted. There was no conception of an international community of states co-existing within a defined framework.”3 The recognition of formal equality is a decisive characteristic of modern international law, constituting a departure from the mutually exclusive claims of universal authority distinctive of pre-modern conceptions of international relations:


Muslim Law And The Struggle with Modernity

The religious wars in Europe were fought precisely over the claim of exclusive superiority of one ideological system over another. Their crippling cost and inconclusive outcome led to the principal normative basis of the Westphalian system: the coexistence of distinct entities quite indifferent to each other’s internal constitution. Modern international law can therefore be conceptualised as a functional response to the demise of the normative unity of the Church in the wake of the Reformation and the devastation of the Thirty Years War.5 Modern international law is inter-state law properly speaking because it accepts the formal equality of different units that dispute each others’ normative vision and substitutes consensually agreed rational norms for the divinely sanctioned, undisputed normative unity characteristic of Western Christendom prior to the Reformation.6 This reflects the loss of moral certainty and the realisation after the inconclusive religious wars “that a certain degree of right might exist on both sides.”7 This formal-rational character of modern international law is intimately tied to the development of the institutionally organised bureaucratic state (Anstaltsstaat) and its underlying conceptions of sovereignty and territorial integrity as they emerged from the Westphalian peace. It is thus correct that the modern conception of international law developed among Christian nations and certainly contains religiously inspired concepts. But what makes it “modern” and constitutes its most distinguishing characteristic is the repudiation of a normative certainty emblematic of pre-modern universal states and their unilateral universalist ambitions. What is crucial is thus not the choice between Christianity or other religious beliefs, but between religion or reason as the main ordering principles, i.e. between their respective “sacred laws”8 or the formal rationality of modern, secular and bureaucratic law.9 Johansen’s discussion of the sacred character of Muslim jurisprudence (fiqh) builds extensively on this insight:

Muslim Law And The Struggle with Modernity

Max Weber analyzes the fiqh as a “sacred law”, a category under which he subsumes Islamic and Jewish law, Hindu law, medieval canon law and, in general, all legal norms controlled and applied by “priests”. In Max Weber’s theory, the concept of sacred law seems to fulfil a triple function: it makes norms of behaviour in different civilizations available as points of comparison for a theory on the history and evolution of the rationalization of the law in modern Europe. At the same time it helps to explain why civilizations with a sacred law cannot enter the process of modernization. Such a law, according to Max Weber, is considered to be “one of the most important barriers against the rationalization of the legal order and of economy”. The sacred law, therefore, serves to mark off the limit between a modern and a pre-modern society and this may, in fact, have been the main function of this category in the context of Weber’s theory.10


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