Theories of Interpretation: Islamic Law v. International Law

Yorum Teorileri: İslam Hukuku ve Uluslararası Hukuk

Haitam SULEIMAN, Hatice AKTÜRK

Whereas Europeans exercised influence over Muslim areas in the last century, Muslim countries and its legal systems were expected to be considered and to interact with international rules. The Hague Conferences of 1896, 1902 and 1905 were established for the purposes of developing agreement on private international law. These conferences did not invite Muslim countries though these states situated outside Europe could have treaties applied on their territories when they were under the jurisdiction of European states. In the same line several conferences and arenas have called and recommended the study of the Islamic legal rules. For example, case the judge argued that the principle of ‘sovereign equality’ protected in Article 2(1) of the United Nations Charter, necessitates the court to refer not only to European legal traditions but also to Islamic legal principles when seeking for a general principle of law. This paper argues that the Islamic law has its unique methodologies of interpretations, can share common views compared to the rules of interpretations in international law, and can offer unprecedented solutions to many international disputed issues. This article questions the ways in which the international scholarship and legal community could benefit from such an ‘exquisite understudied art.’

Interpretation, Theories of Interpretation, Methodology, Islamic Law, International Law.

Avrupalılar geçtiğimiz yüzyılda Müslüman bölgeler üzerinde nüfuz sahibi olduklarından, Müslüman ülkelerin ve onların hukuk sistemlerinin uluslararası kurallarla birlikte kabul görmeleri ve onlarla etkileşime girmesi beklenmiştir. 1896, 1902 ve 1905 yıllarında yapılan Lahey Konferansları, uluslararası özel hukuk alanında anlaşmaların geliştirilmesi amacıyla yapılmıştır. Avrupa dışında yer alan Müslüman ülkeler bu konferanslara davet edilmemelerine rağmen Avrupalı devletlerin yetkisi altında oldukları için topraklarında bu anlaşmalar uygulanabilmiştir. Bunun yanında birçok konferans ve arenada İslam hukuk kurallarının incelenmesi çağrısında ve tavsiyelerinde bulunulmuştur. Örneğin, Kuzey Denizi davasında yargıç, BM Şartı'nın 2(1) Maddesinde korunan 'egemen eşitlik' ilkesinin, mahkemenin, bir hukuki çözüm ararken yalnızca Avrupa hukuk geleneklerine değil, aynı zamanda İslam hukuku ilkelerine başvurması gerektiğini savunmuştur; ki bu esasen genel bir hukuk ilkesidir. Bu makale, İslam hukukunun kendine özgü yorum metodolojilerine sahip olduğunu ve uluslararası hukuktaki yorum kurallarına kıyasla sıklıkla ortak görüşler paylaşılabildiğini ileri sürmektedir. Aynı şekilde İslam hukukunun birçok uluslararası tartışmalı konuya benzeri görülmemiş çözümler sunabileceğini iddia etmektedir. Bu noktada ortaya çıkan esas mesele, uluslararası alanda çalışmalar yapan akademisyenlerin ve hukuk camiasının bu denli “az çalışılmış bir sanattan” nasıl yararlanabileceğidir.

Yorum, Yorum Teorileri, Metodoloji, İslam Hukuku, Uluslararası Hukuk.

INTRODUCTION

No doubt, examining Islamic Shari’a law in the context of a modern topic such as diplomatic and international relations is highly significant when addressing the current Islamic principles in comparison with the principles of international law. The decrees of Islam and its unique laws has many influences on the general laws and policies of each of these states. Addressing, however, questions of diplomatic and international relations, while disregarding the relevant moral, historical, conceptual, and legal background of Islam, will only provide a slanted view of the study. It is relevant at beginning to shed light on the noted interaction and overlapping norms between Islamic law and international law. The basis to assessing the relationship between Islamic law and international law is to understand the nature and origin of Islamic law, its features, and uniqueness. Also, its compatibility and incompatibility with international law will be discussed. The starting point is the investigation of whether Islamic law can be viewed as a legal system. Another issue may be raised, which is whether or not this legal system is in any way comparable to the rules of international law. With some 1.6 billion people of the Islamic faith worldwide, the effects of Islamic law or Shari’a are now inescapable worldwide. After civil law and common law systems, Shari’a is now a major legal system in the world.¹ Law exists in the form of customs, traditions and practices which govern all society members. A law may be in the form of orders and prohibitions issued by an authoritative person, such as a tribal chief or king, or in the form of instructions issued by a body to which society has entrusted the right to issue laws. The source of these various types of law (whether in relation to domestic or international affairs) is human beings. So, it is called positive law. There are laws whose source is not human beings. They are rendered by the Creator of human beings. They are divine laws. Human beings are aware of these different types of law: the positive laws established by human beings, and the divine laws made and inspired by Allah (the Creator).² Shari’a is law derived directly from the word of Allah as was revealed in the Qur’an to the Prophet Muhammad and in the Sunna. Islamic scholars ascribe the term Shari’a as the revealed or canonical law of Islam.³ In this sense, Shari’a represents a series of rules, either identified directly in the Qur’an, or in religious sources. Islamic law, through Islamic jurisprudence, also has plenty of room for jurists to interpret the primary sources of the Qur’an and the Sunnah using methods such as Ijtihad (which involves interpreting a text in such a way as its legal implications became apparent) and comparative Qiyas (which is concerned with deriving a particular ruling from general statements; or adopting a specific interpretation). These methods eventually became known as the secondary sources of Islamic law, which are applied to new areas of law where there is no applicable text in the Qur’an or the Sunnah concerning the area in question.

Much of this element of Shari’a is largely historical and may be traced back to around the Ninth Century.⁴ Unlike most other religions, Islam is wholly embedded in every aspect of its followers’ lives. For those who practice Islam it is ‘a complete way of life: a religion, an ethic and a legal system all in one.’⁵ Sir Thomas Walker Arnold⁶ stated in his book, The Caliph, that ‘Islam is a religion and government, belief and law’. Professor Joseph Schacht⁷ says ‘Islam is not just a religion but more than a religion’. Professor Stratham wrote ‘Islam is a religious and political phenomenon and the Messenger of Islam; Prophet Mohammad was not just a prophet but also a wise politician and a statesman’. Sir Hamilton RA Gibb⁸ wrote that ‘Islam is not just an individual religious belief, but it required establishing an independent society having its own style of government, its own rules and regulations’. Also, Professor Louis Gardier stated that it is a religion and includes in its basic teachings a community which defines to all of its members equally the conditions and rules of life according to the rules of Islam: family life, social life, political and religious life. Islamic Law (Shari’a) is therefore the law upon which Muslims legislate. It is wider in meaning and denotation than the European meaning of law. Islamic law includes all Islamic law provisions related to faith, morals, worship or transactions, while jurisprudence is part of Islamic law. Jurisprudence means the knowledge of the practical provisions of Islamic law, either worship or relationships. Jurisprudence means the science of Islamic law.⁹ Islamic law includes subjects discussed by positive laws and other subjects not addressed by these laws. Therefore, the Orientalist Carlo Alfonso Nallino¹⁰ argued that the word Islamic Fiqh (jurisprudence) has no comprehensive equivalent term in Western languages. He says that the term Fiqh means Islamic law (Shari’a) which searches for a Muslim’s relationship with Allah, with himself and with all mankind. He added that jurisprudence includes more than the law does in the West. Nallino says, ‘worships are mentioned in jurisprudence and they include several things some of them are available to us in the form of general rights’.¹¹ In juristic terminology, Islamic Shari’a means the provisions of Islam including rules of belief, morals and human actions, including worship and transactions taken from the Holy Qur’an and the Prophetic Traditions.¹²

I. UNIVERSALITY AND RECOGNITION OF ISLAMIC LAW

People in the East and the West, in the past and the present, have researched Islamic legislation. They commended it, showed its advantages, and proved its precedence over other legislation on the basis of several principles, and formed the view that the benefits of Islamic legislation are for humanity as a whole. Examples are numerous; Bowen¹³ argues: