Islamic Law in the Jurisprudence of the International Court of Justice: An Analysis

This Article asks whether ICJ opinions to date suggest that judicial consideration of Islamic legal norms has played, can play, or should play a role in the ICJ\u27s resolution of international legal disputes or in establishing the legitimacy of the results that it has reached. It is structured as follows. Part II gives an initial overview of the ICJ to help us understand how and why judges on the ICJ have reached the answers they have. Part III describes how the ICJ\u27s enabling statute permits the Court, at least in theory, to look at Islamic legal norms. As I will show, the Court\u27s Statute allows it to consider Islamic law in a number of different ways. It could use Islamic law as a source of legal norms, as a factor dictating how norms will be applied in particular circumstances, or it could use references to Islamic law as a tool of legitimation. That is to say, the Court might argue that even if international legal rules do not derive from Islamic sources, they are consistent with Islamic legal norms, and thus they bind all Muslim states. Part IV demonstrates that Islamic law is rarely referred to in ICJ judgments or in separate concurring or dissenting opinion.s Pat V details the different ways in which those few judges who refer to Islamic law have used the Islamic legal tradition. It provides a close reading of the ICJ opinions that do refer to Islamic law, which are almost entirely separate concurring or dissenting opinions. This discussion will make clear that different judges use the tradition for different reasons. Some argue that it should be used as a source of international legal norms; and some suggest that it should informs the Court\u27s application of international legal norms--particularly in resolving disputes between majority Muslim states. Part VI concludes by noting some interesting issues of theory and policy that the ICJ opinions raise and asks if they give us any indication of how often, and for what purpose, Islamic law will be cited in the future

Designing Islamic Constitutions: Past Trends and Options for a Democratic Future

In recent years a growing number of countries have adopted constitutional provisions requiring that state law respect Islamic law (sharia). Muslims today are deeply divided, however, about what types of state action are consistent with sharia. Thus, the impact of a Sharia Guarantee Clause depends to a large degree on questions of constitutional design -- on who is given the power to interpret and apply the provision and on what procedures that they follow when making their decisions. This article explores the trends that gave rise to SGCs and provides a history of their incorporation into national constitutions. It then surveys a number of the remarkably varied schemes that countries have developed to interpret and enforce their SGC\u27s, and it considers the impact that different schemes have had on society. Building on this background, the article considers what type of SGC enforcement scheme, if any, are likely to permit (and ideally promote) a state to pursue democratic policies. As it notes, SGC\u27s are often found in authoritarian or imperfectly democratic constitutions. Unsurprisingly, the designers of SGC enforcement schemes in non-democratic countries have generally tried to ensure that their SGC will be interpreted and applied in a way that permitted or even promoted non-democratic policies. Nevertheless, we can draw from the experience of these countries some important lessons about the types of SGC enforcement scheme that will allow more democratic states to promote both democratic political participation and rights. At the same time, recent debates have erupted in Western liberal democracies about how best to reconcile rights enforcement with democracy. These debates clarify some issues that aspirational Islamic democracies will face as they try to develop SGC enforcement schemes for a democratic society, and they provide insight into the qualities that an institution must possess if it is to address such issues effectively. A number of Muslim countries are currently debating how best to square a constitutional commitment to respect Islam with parallel commitments to democracy and rights. Acknowledging that these countries will need to tailor their SGC enforcement schemes to very different local conditions, this paper describes some basic design features that effective democratic SGC enforcement schemes are likely to share

Can Islamizing a Legal System Ever Help Promote Liberal Democracy: A View from Pakistan

Over the past twenty-five years, academics in Europe and the United States have written a great deal about the relationship between Islam and democracy, and between Islam and human rights. This scholarship often fails to acknowledge or take into account similar debates that occurred earlier during a period of decolonization. This article discusses the work of a Christian judge who served on the Supreme Court of Pakistan. This judge, A.R. Cornelius, was a famous Cambridge-educated legal liberal who courageously tried in the 1950s and 60s to protect human rights as Pakistan came under martial rule. Cornelius came to argue shockingly and controversially in the 1960s and 70s that Islamizing the law of the state not only permits the liberal rule of law to survive, but, under certain narrow circumstances, it can help promote a version of the liberal rule of law. This article discusses the genesis of his thinking, the criticism that it received in Pakistan and discusses briefly how Pakistan\u27s recent history does and does not support his theory

The Marvelous Life of Paul Steven Miller

When I was hired by the University of Washington School of Law in the spring of 2004, I skimmed all of my new colleagues’ biographies, including Paul Steven Miller’s. I don’t remember Paul Steven Miller’s standing out. The biography was short and listed mostly professional positions and publications. It made clear that he had had an important career, but it did not make clear how revolutionary a figure he was

Can Islamizing a Legal System Ever Help Promote Liberal Democracy?: A View from Pakistan

Over the past twenty-five years, academics in Europe and the United States have written a great deal about the relationship between Islam and democracy, and between Islam and human rights. This scholarship often fails to acknowledge or take into account similar debates that occurred earlier during a period of decolonization. This article discusses the work of a Christian judge who served on the Supreme Court of Pakistan. This judge, A.R. Cornelius, was a famous Cambridge-educated legal liberal who courageously tried in the 1950s and 60s to protect human rights as Pakistan came under martial rule. Cornelius came to argue shockingly and controversially in the 1960s and 70s that Islamizing the law of the state not only permits the liberal rule of law to survive, but, under certain narrow circumstances, it can help promote a version of the liberal rule of law. This article discusses the genesis of his thinking, the criticism that it received in Pakistan and discusses briefly how Pakistan\u27s recent history does and does not support his theory

Nineteenth-Century Free Exercise Jurisprudence and the Challenge of Polygamy: The Relevance of Nineteenth-Century Cases and Commentaries for Contemporary Debates about Free Exercise Exemptions

Does the Free Exercise Clause of the U.S. Constitution require judges to exempt religious objectors from the application of nondiscriminatory and otherwise applicable laws? Over the last twenty years, judges and academics have debated fiercely whether the Clause should be interpreted to provide religiously observant citizens with a right to “free exercise exemptions.” The debate has led indirectly to a new interest in nineteenth-century views on free exercise jurisprudence. In this Article, I will examine the scholarship on nineteenth-century free exercise jurisprudence to date and ask what it adds to our understanding of the Clause and the question of exemptions