1. Introduction: The West and Islam: Juridical Categories in a Transitional Global Scenario

I will explain what I mean with the expression “legal order” in the paragraph dedicated to definitions and terminology. The opinions expressed in the present volume are referred exclusively to his author.

The reference is clearly to Aristotle, Politics I, 2, 1253a2, where the Stagirite defines man as a political animal, or ζῷον πολιτικόν (zôon politikòn).

For a selection of Herder’s writings addressing the political dimension of Volksgeist, see Johann Gottfried Herder, Another Philosophy of History and Selected Political Writings, Hackett Publishing, Indianapolis 2004. With specific regard to Volksgeist as interpreted by the historical school, see Friedrich Carl von Savigny, Vom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft, Mohr und Zimmer, Heidelberg 1814.

What is essential for this introduction, with regard to Savigny’s theory and as Jhering points out, is to notice that the various conceptions of Recht “are not made, but become, they come forth like language and customs from out of the innermost of the life of the Volk and the life of the thought, without the mediation of calculation and consciousness” (Rudolf von Jhering, “Friedrich Karl von Savigny”, in Jherings Jahrbücher für die Dogmatik des bürgerlichen Rechts, vol. V, G. Fischer, Jena 1861, pp. 364–365). See also Roger Berkowitz, The Gift of Science. Leibniz and the modern legal tradition, Harvard University Press, Cambridge 2005, pp. 109 ff. According to Gómez Dávila, from a more radical point of view, law is similar to language in that it is inherited by virtue of a gradual and progressive accrual of traditions and customs. In the words of the author: “The legitimate positive law is not the impossible spawn of an explicit and solemn agreement, but the historical accumulation of rules that an everyday and implicit consensus legitimizes. Men do not go to an abstract and mythical forum to agree on their rights. In the long series of centuries, men find themselves inside the law that governs them, as in the language that they speak. Law, like language, does not have a historical origin. No one invented their law or their language. Even in the Paleolithic horde, the individual was born between rules of syntax and legal rules. The first human cry reverberates between juridical structures. No one lives in a state of linguistic virginity or of juridical innocence. Law is, like language, a human construction, but it is not the intentional product of mankind. Language is a human discovery, but no man invents it” (Nicolás Gómez Dávila [1988], De Iure, trans. Tomàs Molina, in Revista Nova et Vetera, Universidad del Rosario, Bogotà, September 2017, p. 54).

In the past centuries the world has dealt with a certain form of juridical contamination between various legal models and philosophical legal perspectives. For instance, it is possible to recall the multifaceted experience of the reception of Roman law, or the medieval legal order in which multiple normative levels coexisted in a single and comprehensive juridical framework. However, the contemporary scenario presents relevant differences, on the basis of which it is possible to argue that this transitional phase represents a sort of unicum in legal history. In the ancient world, the compresence and coexistence of various models was possible by virtue of a certain level of coordination, provided that the concrete application of a given law was granted by a shared criterion, being it religion, ethnicity, territory. For instance, it is possible to recall the experience of personal status law, which regulated the lives of individuals belonging to determined communities. Nowadays, we witness a new form of contamination in which different models and juridical perspectives coexist without clearly defined conceptual boundaries. For this and other reasons it is not actually possible to define, as some authors do, the present context as a form of neo-medievalism (for instance, see Jörg Friedrichs, “The Meaning of New Medievalism”, in European Journal of International Relations, vol. VII, n. 4, December 2001, pp. 475–502). It is the case of many constitutions of the Muslim world in which a Western-derived conception of law lives along with the Islamic sharīʿa, being part of the same juridical text and being indistinctly enforceable in the same territory and often with respect to the same people.

The English term was first used by Robert Ronaldson and then consecrated in literature by Zygmunt Bauman, who used it to underline the apparent paradox resulting from the combination of two opposite trends: globalization, intended as a force enlarging the horizon of the economic and political relations, and localization, as a force trying to root the productive processes in local realities. With regard to this, see Zygmunt Bauman, “On glocalization: or globalization for some, localization for some others”, in Thesis Eleven. Critical Theory and Historical Sociology, vol. LIV, n. 1, August 1998, pp. 37–49.

This circumstance had already been put in light by Santi Romano in his forward-looking reflection of 1910. According to Romano, the notion of modern statehood, with its fundamental principles, was about to be put in question already at the beginning of the twentieth century because of the emergence of economic transnational entities, all of which “pursue the most disparate special aims, but all have a common character: that of grouping individuals with the criterion of their profession or, rather, of their economic interest” (see Santi Romano, “Lo Stato moderno e la sua crisi. Discorso inaugurale per l’anno accademico 1909-1910”, in Annuario, Università di Pisa, Tipografia Vannucchi, Pisa 1910, pp. 11–40). Again, according to the Italian jurist, while overcoming this fundamental paradigm, it was necessary to understand that the conception of jus should incorporate not only State law—now one of the possible forms of regulation—but “every force which is effectively social, and which therefore comes to be organized”, as stated in his preeminent work, Santi Romano [1918], L’ordinamento giuridico. Studi sul concetto, le fonti e i caratteri del diritto, Sansoni, Firenze 1967, p. 43. For a reflection of a possible future overcoming of the modern State paradigm, see Hedley Bull [1977], The Anarchical Society. A Study of Order in World Politics, Palgrave, Basingstoke-New York 2002, pp. 225–308.

For a farsighted reflection on the intrinsically transnational nature of modern capitalism, see Norman Angell, The Great Illusion, G. P. Putnamn’s Sons, New York-London 1913. According to the author, in “no department of human activity is internationalization so complete as in finance. The capitalist has no country” (ibid., p. 319). Cf. on the same topic, and with a focus on the post-industrial era, Phoebe Moore, The International Political Economy of Work and Employability, Palgrave Macmillan, New York 2010, p. 131.

For a forward-looking and still topical reflection about possible evolutionary trends in the international legal order, see Richard A. Falk, “The Interplay of Westphalia and Charter Conceptions of the International Legal Order”, in The Future of the International Legal Order, vol. I, Trends and Patterns, eds. Richard A. Falk, Cyril E. Black, Princeton University Press, Princeton 1969, pp. 32–72. Consider also, more recently, Rafael Domingo, The New Global Law, Cambridge University Press, Cambridge 2010, pp. 73–77.

With regard to globalization and its possible effects on legal and political theories, and as a cause of the progressive erosion of the model of the Nation-State, see Ulrich Beck, Was ist Globalisierung? Irrtümer des Globalismus — Antworten auf Globalisierung, Suhrkamp Verlag, Frankfurt am Main 1997, especially pp. 13–47.

So far, for structural reasons, the creation of global juridical institutions is to be considered a utopia, as well as something not desirable for its practical and political implications. It is relevant to notice that a “planetary state would set aside exclusion, making legal inclusion essential: one state, one law, one power and, of course, the threat of totalitarianism is more real and tangible than that of its predecessors. We would go from state totalitarianism to global absolutism without turning back” (Domingo, The New Global Law, cit., p. 72). On the contrary, some authors still believe that the present transition will eventually lead to the development of “rules increasingly oriented towards a structuring process for a universal human society”, as stated by Giuliana Ziccardi Capaldo, The Pillars of Global Law, Ashgate, Aldershot-Burlington 2008, especially pp. 19–92. Cf., for a political analysis, Martin Shaw, Theory of the Global State, Cambridge University Press, Cambridge 2000.

As well known, legal pluralism can be defined as a theory according to which the overall dimension of law cannot be resumed by the mere dimension of State law but reflects a more complicated and articulated phenomenon which comprehends a multiplicity of sources. The most important caveat is however related to the necessity of not grounding a reflection on a universalized and Western-derived idea of law. In this last case, the very idea of legal pluralism, notwithstanding the nominal claim to be open to broader analyses, is confined into a philosophical architecture made by Western categories. On the contrary, a real reflection on legal pluralism in a global scenario, instead of being based on substantive concepts of law, should be based on culturally oriented categories and schemes of comprehension. In this sense, and besides the already mentioned work of Menski, see Brian Z. Tamanaha, “Understanding Legal Pluralism: Past to Present, Local to Global”, in Sydney Law Review, vol. XXX, Law Book Co. And Sydney Law School, Sydney 2008, pp. 375–411. One of the most valuable theories on legal pluralism, which correctly takes into account the various philosophical perspectives implied in the juridical reflection has been developed by Masaji Chiba, Legal Pluralism. Toward a General Theory Through Japanese Legal Culture, Tokai University Press, Tōkyō 1989.

The concept of legal translation is particularly interesting, considering that it usually moves from a culturally oriented approach to law and might take into account all those linguistic, religious, social, and cultural elements that sometimes are ignored by other legal disciplines. Therefore, the discourse of legal translation appears to be completed and more forward looking when dealing with opposite and distant legal traditions in dialogue. While comparative legal analyses are sometimes based on the (non)univocal definition of legal notions, whose understanding can be biased by the author’s own cultural perspective, legal translation is based on the more objective and revelatory instrument of language. Regarding this, see Le Cheng, King Kui Sin, Anne Wagner (eds.), The Ashgate Handbook of Legal Translation, Ashgate, Farnhma-Burlington 2014; Simone Glanert (ed.), Comparative Law. Engaging Translation, Routledge, London-New York 2014.

See Jean-François Lyotard, La Condition postmoderne. Rapport sur le savoir, éditions de Minuit, Paris 1979. For postmodernity not just as incredulity, but as fragmentation, see Robert G. Dunn, Identity Crises. A Social Critique of Postmodernity, University of Minnesota Press, Minneapolis-London 1998, pp. 143 ff.

Chiba, Legal Pluralism, cit., p. 11.

Cf. Menski, Comparative Law in a Global Context, cit., pp. 25–28. Riles speaks about a “technocratic devotion to universalism” present in Western legal theories as something potentially creating a conceptual prejudice to the definition of a really contextualized and pluralist theory of legal comparativism (Annelise Riles, “Introduction” to Rethinking the Masters of Comparative Law, ed. Annelise Riles, Hart Publishing, Oxford-Portland 2001, p. 18).

Here I borrow a terminology used by Hans Kelsen [1960], Pure Theory of Law, trans. Max Knight, The Lawbook Exchange, Clark 2008, p. 3, whose position can help understanding the difference between a juridical category as a scheme of interpretation and comprehension, and a substantive norm or principle of law.

It is once again worth remembering the words of Rosen according to whom “law is so inextricably entwined in culture that, for all its specialized capabilities, it may, indeed, best be seen not simply as a mechanism for attending to disputes or enforcing decisions, not solely as articulated rules or as evidence of differential power, and not even as the reification of personal values or superordinate beliefs, but as a framework for ordered relationships, an orderliness that is itself dependent on its attachment to all the other realms of its adherents’ lives” (Rosen, Law as Culture, cit., p. 7).

Chiba, Legal Pluralism, cit., p. 140.

Menski, Comparative Law in a Global Context, cit., p. 26.

The present debate on global constitutionalism can be considered as an example of a universalization process, whose philosophical coherence can be regarded as questionable, even considering its political value from a neutral point of view. On this, see Christine E.J. Schwöbel, Global Constitutionalism in International Legal Perspective, Koninklijke, Leiden 2011; Aydin Atilgan, Global Constitutionalism. A Socio-legal Perspective, Springer, New York 2017.

Legal and sociological literature already explored, with different conclusions, the concept of universalization of Western human rights. Assuming as a starting point the Universal Declaration of Human Rights, adopted by United Nations General Assembly on December 10, 1948, we can easily notice that the standards firstly incorporated in the Declaration have spread progressively their cultural influence throughout the world, however, with a relevant lack of universal application in certain areas of the globe. While this is an unquestionable fact, authors do not agree with regard to the causes of what can be referred to a cultural hegemony, combined with relatively poor outcomes in terms of concrete practice. Some authors state that claims over human rights application genuinely reflect universal values of dignity and tolerance, as Rhoda E. Howard-Hassmann, In Defense of Universal Human Rights, Polity, Cambridge 2018; cf. also Heiner Bielefeldt, “ “Western” versus “Islamic” Human Rights Conceptions?: A Critique of Cultural Essentialism in the Discussion on Human Rights”, in Political Theory, vol. XXVIII, n. 1, February 2000, pp. 90–121. Some other authors, however, argue that “human rights claims are the outcome of power relations” and that “in the current era all issues must be subordinated to imperatives of globalization” (Tony Evans, “Power, hegemony and the universalization of human rights”, introduction to Human Rights Fifty Years On. A Reappraisal, ed. Tony Evans, Manchester University Press, Manchester-New York 1998, p. 12). In this last sense, see Samuel P. Huntington, The Clash of Civilizations and the Remaking of World Order, Simon & Schuster, New York 1996; Makau Mutua, Human Rights. A Political and Cultural Critique, University of Pennsylvania Press, Philadelphia 2002. With specific regard to the Islamic case, see Abdulaziz Sachedina, Islam and the Challenge of Human Rights, Oxford University Press, New York 2009.

For instance, and as Chakrabarty points out, Western imperialism brought about the “universalization of the Nation-State as the most desirable form of political community” (Dipesh Chakrabarty, “L’artificio della Storia”, in Parolechiave, n. 31, Occidentalismi, June 2004, p. 58).

For an in-depth and detailed scholarly study, see Javaid Rehman, Islamic State Practices, International Law and the Threat from Terrorism. A Critique of the “Clash of Civilization in the New World Order,” Hart Publishing, Oxford-Portland 2005, pp. 10–70. Rehman, for instance, while speaking about criminal law, constitutional law, sources of law, and others, assumes that the Islamic legal order could be in some way equalized with the Western juridical thought, without a prior contextualization of the philosophical evolutionary path of the sharīʿa. The same be said about Mohammad Talaat al-Ghunaimi, The Muslim Conception of International Law and the Western Approach, Martinus Nijhoff, The Hague 1968. The interesting work of An-Naʿim, although proposing a possible reformation of Islamic legal thought, uses in my opinion the category of statehood without a proper contextualization, referring to models and historical experiences not always coincident with one another (cf. Abdullahi Ahmed An-Naʿim, Islam and the Secular State. Negotiating the Future of Sharīʿa, Harvard University Press, Cambridge 2008, pp. 45–83). On the contrary, Wood expresses preliminarily all due caution in the terminological equation between sharīʿa and law (cf. Leonard Wood, Islamic Legal Revival. Reception of European Law and Transformations in Islamic Legal Thought in Egypt, 1875-1952, Oxford University Press, Oxford 2016, p. 49).

Again, it is possible to examine juridical literature dealing with sharīʿa and human rights law. Apart from the aforementioned book by Sachedina, whose analysis is properly contextualized, while examining the same topic, some other authors discuss the relationship between human rights standards and the traditional idea of Islamic normativity without a proper philosophical introduction, which should constitute an essential premise for every work about such an issue. For instance, see Nisrine Abiad, Sharia, Muslim States and International Human Rights Treaty Obligations. A Comparative Study, British Institute of International and Comparative Law, London 2008; Shahram Akbarzadeh, Benjamin MacQueen, “Framing the debate on Islam and human rights”, in Islam and Human Rights in Practice, eds. Shahram Akbarzadeh, Benjamin MacQueen, Routledge, London-New York 2008, pp. 1–11; Vida Amirmokri, L’Islam et les droits de l’homme: l’islamisme, le droit international et le modernism islamique, Les Presses de l’Université Laval, Saint-Nicolas (Québec) 2004. For a sociological work, see Irene Oh, The rights of God. Islam, human rights, and comparative ethics, Georgetown University Press, Washington 2007. To summarize, we can argue that the very question of the compatibility between Islamic “law” and human rights, wherever lacking coherent and comprehensive premises, from a juridical point of view would result in a substantial non-sense. On the contrary, an author openly and consciously suggesting the answerability of the question whether sharīʿa is compatible with human rights standards is Dominic McGoldrick, “The compatibility of an Islamic/shariʿa law system or shariʿa rules with the European Convention on Human Rights”, in Islam and English Law. Responsibilities and the Place of Shariʿa, ed. Robin Griffith-Jones, Cambridge University Press, Cambridge 2013, pp. 42–71.

Semitic term meaning Occident, the place where the sun sets in, used by ancient Phoenicians to define the territories at the West of Syria. One of the possible etymologies of Europe links it to this term. It is interesting to note that also the word Asia derives from Phoenician açu, meaning morning. Etymologically speaking, both Europe and Asia derive from the same cultural milieu, denoting respectively the setting sun and the rising sun, the Occident and the Orient. Cf. Karel Blei, Freedom of Religion and Belief. Europe’s Story, Van Gorcum, Assen 2002, p. 4.

Providing an exhaustive definition of Islam is as difficult—or rather impossible—as providing an exhaustive definition of sharīʿa. When referring to Islam as a system of belief, I do not refer to the post-Enlightenment conception of religious reduced in its scope and conceptual boundaries as a way of private spirituality. On the contrary, when I speak of a system of belief, a normative methodology, and a civilization, I intend to define it as an all-encompassing phenomenon, as it will be explained in the following chapters. As Lewis puts it, in one sense “it denotes a religion, a system of belief and worship; in the other, the civilization that grew up and flourished under the aegis of that religion” (Bernard Lewis, The Crisis of Islam. Holy War and Unholy Terror, Modern Library, New York 2003, p. 3).

With regard to this, and with specific attention to the perceived asymmetry between the terms Europe and Islam, see the interesting reflection of Bernard Lewis, Islam and the West, Oxford University Press, Oxford 1993, pp. 3 ff. With reference to the usage of the same terminology, see also the historical notes of Franco Cardini [2007], Europa e Islam. Storia di un Malinteso, Laterza, Rome-Bari 2015, ch. 1, par. 1.

The Roman and Christian heritages appear to be constitutive of the Western conception of law, and although the Christian thought is to be considered eminently non-European in its origin, it is in Europe that it could innervate itself in the Greek and Roman cultural and philosophical backgrounds, laying the foundations for what will be later known as Western world. This point is remarkably explained by Ratzinger, according to whom “it is not surprising that Christianity, despite its origins and some significant developments in the East, finally took on its historically decisive character in Europe. We can also express this the other way around: this convergence, with the subsequent addition of the Roman heritage, created Europe and remains the foundation of what can rightly be called Europe” (Joseph A. Ratzinger [H. H. Benedict XVI], “Faith, Reason and the University. Memories and Reflections”, lectio magistralis given at the Aula Magna of the University of Regensburg, September 12, 2006, published in Islamic Studies, vol. XLV, n. 4, Islamic Research Institute, International Islamic University, Islamabad 2006, p. 600).

Romano had already observed that the idea of legal order cannot be reduced to the specific norms which may constitute it. According to the author, the concept should include, on the contrary, a reflection on the aforementioned elements of society and social order, thus giving it a comprehensive nature. (Romano, L’ordinamento giuridico, cit., pp. 12 ff.) The jurist defines a legal order as an “institution” (ibid., p. 27 ff.), meaning by institution a comprehensive social structure or organization. Given that—as I will explain in the following chapters—the idea of institution cannot be considered as universal, but eminently Western and inscribed in a specific legal order, it is necessary to point out that Romano’s definition of institution does not coincide with the one that will be used in this work.

The idea of the Islamic ummah will be better discussed in the first chapter.

For the romanization of the Arabic terms and to properly render them in the Latin alphabet, I will follow the ALA-LC rules. Whenever not otherwise specified, in direct quotations I will maintain the romanization as provided by the author of the excerpt, without intervening in the text. The same be said about authors’ names.

For instance, I will sometimes use Latin while speaking about jus and lex in order to make a fundamental distinction which cannot actually be made with the same clarity in other languages.

Analyzing the various opinions about sharīʿa would transcend the scope of this work. Nevertheless, it is interesting to point out the differences between the different scholarly positions regarding such a complex and articulated concept. For instance, An-Naʿim states that “Sharīʿa is the door or passageway into being Muslim and does not exhaust the possibilities of experiencing Islam. There is more to Islam than Sharīʿa, though knowing and complying with the dictates of Sharīʿa is the way to realize Islam” (An-Naʿim, Islam and the Secular State, cit., p. 10). Interesting in this latter definition is the essential dimension of sharīʿa in order to “realize” Islam as a comprehensive ideal of life. On the other hand, Otto especially focuses on the moral aspect while describing the abstract and eternal sense of the term, describing sharīʿa as “God’s plan for mankind consisting of His prescriptions for human behaviour” (Jan Michiel Otto, Sharia and National Law in Muslim Countries, Leiden University Press, Leiden 2008, p. 9). Moreover, it is worth reporting the definition proposed by Lambton, according to whom for Muslims “the foundation from which all discussion of government starts is the law of God, the sharīʿa. Theoretically pre-existing and eternal, it represents absolute good. It is prior to the community and the state” (Ann K. S. Lambton, State and Government in Medieval Islam. An Introduction to the Study of Islamic Political Theory – The Jurists, Routledge, London-New York 1981, p. xiv).

Abdullah Yusuf Ali [1934], The Meaning of the Holy Qurʾān, Amana Publications, Beltsville 2004, XLV (Al-Jâthiya), 18, p. 1297, note 4756.

Majid Khadduri [1961], “Introduction” to Muhammad ibn Idrīs al-Shāfiʿī, al-Risāla fī Uṣūl al-Fiqh (Treatise on the Foundations of Islamic Jurisprudence), trans. Majid Khadduri, Islamic Texts Society, Cambridge 1997, p. 3.

“Then We put thee on the [right] Way of Religion: so follow thou that [Way], and follow not the desires of those who know not.” Qurʾān, XLV (Al-Jâthiya), 18 (trans. Ali, p. 1297). While quoting the English translation of the Qurʾān in this work, I will refer to the aforementioned bilingual version by Abdullah Yusuf Ali. It is however important to notice that it is in some way misleading speaking of “translation”: al-Qurʾān meaning “the recitation”, and being intended as a literal revelation in the Arabic language, every translation would unavoidably result in an interpretation, thus not perfectly coherent with the original. It is not by chance that the title of Ali’s version is Meaning of the Qurʼān.

See Christopher Melchert, The Formation of the Sunni Schools of Law. 9th-10th Centuries C.E., Brill, Leinde-New York- Köln 1997; Ahmed Akgunduz, Introduction to Islamic Law. Islamic Law in Theory and Practice, Iur Press, Rotterdam 2010, pp. 147 ff.

To be noted that the Ẓāhirī and Ibāḍi schools continue to exercise a certain influence in some territories and were mentioned as active in the Amman Message issued by Abdullah II of Jordan on November 9, 2004.

About the uncreated nature of the Qurʾān, see Massimo Campanini [2004], The Qurʼān. The Basics, trans. Oliver Leaman, Routledge, London-New York 2007, pp. 13–14, 66; Rafiq Zakaria, Muhammad and the Quran, Penguin Books, London 1991, pp. 88 ff. The implications deriving from the nature of the text are evident, with particular reference to its being created or not. An attempted reform was undertaken by caliph al-Maʾmūn (786–833) of the Abbasid dynasty, who attempted to introduce the doctrine of the created Qurʼān, even though it was soon abandoned after the death of the caliph. With regard to this latter point, see Ira M. Lapidus [1988], A History of Islamic Societies, Cambridge University Press, Cambridge 2014, pp. 104–105, 130, 173; Malise Ruthven [1984], Islam in the World, Oxford University Press, Oxford 2006, pp. 191–194.

Among the extensive literature on the subject, see Yusuf al-Qaradawi, Approaching the Sunnah. Comprehension & Controversy, International Institute of Islamic Thought, London-Washington 2006; Mahmoud Ayoub (ed.), Contemporary Approaches to the Qurʼān and Sunnah, International Institute of Islamic Thought, London-Washington 2012; ʻAlī Nāṣirī, An Introduction to Hadith. History and Sources, trans. Mansoor Limba, Miu Press, London 2013; Harald Motzk (ed.), Hadith. Origins and Developments, Ashgate, Farnham 2004.

For the political implications of the ḥadīth, see Roy P. Mottahedeh, “The Foundation of State and Society”, in Islam. The Religious and Political Life of a World Community, ed. Marjorie Kelly, Praeger, Westport-London 1984, p. 65.

See Ayman Shabana, Custom in Islamic Law and Legal Theory. The Development of the Concepts of ‘Urf and ‘Adah in the Islamic Legal Tradition, Palgrave Macmillan, New York 2010; Haim Gerber, Islamic Law and Culture, 1600-1840, Brill, Leiden-Boston-Köln 1999, ch. 6.