Human Rights Commitments of Islamic States: Sharia, Treaties and Consensus

Human Rights › Islamic Law

Human Rights Commitments of Islamic States: Sharia, Treaties and Consensus

By Paul McDonough
Hart Publishing December 2020

Specifications

ISBN-13
9781509919703
Publisher
Hart Publishing
Publication
December 2020
Format
Hardback
Jurisdiction
U.K. ? Countri(es) for reference only

Also available as

Paperback

Details

This book examines the legal nature of “an” Islamic state and the human rights it commits to uphold. It offers the first study into Islamic constitutions to map the relationship between Sharia and the state in terms of institutions. This also supports an assessment of the place of Sharia in the national legal order.

The book unites three strands of analysis: the compatibility of Sharia with the rights enunciated in UN treaties; the patterns of adherence of Islamic states to human rights treaties; and the compatibility of international Islamic human rights declarations with UN standards.

By exploring all formal human rights commitments of all Islamic states within a single analytical framework, it will appeal to international human rights and constitutional scholars with an interest in Islamic law and states.

Table of Contents

Introduction
I. Background
A. Methodology
B. Plan of Chapters
1. The History of the Caliphates
I. The First Islamic State
II. Rule by the Prophet
A. The Emergence of Islam
B. The City-State of Medina
III. The Rashidun Caliphate
IV. The Dynastic Caliphates
A. Umayyad Rule
B. Post-Umayyad Caliphates
2. Islamic Law, International Law and Human Rights
I. Islamic law
A. Sources of Law
B. Proofs – Reasoned Law
C. Usul al-fi qh – Methods of Discovering Islamic Law
D. Purposive Law
E. Applying the Law
II. Islamic Law and International Law
A. International Human Rights Law
B. Siyar
C. Siyar and International Law
III. The Islamic Law of Human Rights
A. Human Rights Principles of Sharia
B. Human Rights According to Islamic Law
C. Compatibility of Islamic Law and International Human Rights
3. Islamic States
I. The Caliphate
A. Theory of the Caliphate
B. The Caliph and the Ulama
C. Legacy of the Caliphate
II. Ideas of an Islamic State
A. Islamic Revivalism
B. The Modernist View
C. Islamism
D. Islamic Constitutions
III. Islamic States in the International System
A. Islamic International Law
B. Islamic States and International Law
4. Islam, Constitutions and Democracy
I. Principles of Islamic Governance
A. The Divine Right to Rule
B. Just Rule
C. Shura
II. Assigning the Governing Power
A. Sharia and Constitutions
B. Choosing a Ruler
III. Dividing the Governing Power
A. Separating Civil from Religious Authority
B. Dividing the Executive Power
C. Legislation
IV. Courts and Constitutional Interpretation
V. Conclusion
Appendix
5. Islamic Law and International Law in Islamic Constitutions
I. Limiting Legislation through Sharia
A. Sharia as a Source of Legislation
B. Repugnancy Clauses 4
C. Defining the Limit
II. Sharia in Secular and Religious Courts
A. Islamic Law in the Hierarchy of National Law
B. Dividing Jurisdiction: Sharia Courts and Civil Courts
III. The Integration of Islamic Law and National Law
6. Islamic States and the UN Human Rights Treaties
I. The International Bill of Rights
A. Treaty Partners' Objections
B. A Middle Ground: Pakistan's ICCPR Reservations
II. UN Human Rights Treaties
III. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)
A. General Reservations and Article 2 Reservations
B. Article 9
C. Article 15
D. Article 16
E. Objections to Reservations Regarding Articles 2, 9, 15 and 16
F. Patterns of CEDAW Reservations and Objections
IV. The Convention on the Rights of the Child (CRC)
V. Conclusion
7. Islamic International Human Rights Law
I. An Islamic Human Rights Consensus
II. Human Rights Commitments of Islamic States:
A Three Layer Analysis
A. Sharia and International Human Rights Treaties
B. Sharia and International Islamic Instruments
C. Islamic and International Human Rights Instruments
III. Reconciling Islamic Law and International Human Rights Law
A. Flexibility of Islamic Law
B. Interpreting Sharia for Islamic International Law
IV. Conclusion
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