Islamic Law and Transnational Diplomatic Law: A Quest for Complementarity in Divergent Legal Theories

293 Pages·2016·3.641 MB·English

by  Muhammad-basheer .A. Ismail

Islamic Law and Transnational
Diplomatic Law
Philosophy, Public Policy, and Transnational Law
PHILOSOPHY, PUBLIC POLICY, AND TRANSNATIONAL LAW seeks, uniquely,
to publish new and innovative arguments about global law and policy that
transcend realist/positivist assumptions and the conventions of current legal/
policy discourse. This series means to encourage the application of system-
atic philosophical and theoretical arguments to practical policy and legal
issues that combine domestic, comparative or international law. We will pur-
sue scholarship that integrates the superstructure of the positive law with its
philosophical and public policy substructure, and which, in this way, pro-
duces a more three dimensional understanding of transnational law and its
evolution, meaning, imperatives and future. We seek dissertations, solo and
edited volumes, as well as innovative reports that integrate new methods,
epistemologies and interdisciplinary perspectives with practical issues on the
full range of policy and legal dilemmas challenging transnational relations.
Principle Editor:
JOHN MARTIN GILLROY, Professor of International Law, Philosophy,
and Public Policy, & Founding Director of Graduate Studies, Environmental
Policy Design Programs, Lehigh University, USA.
Editorial Board:
R. PAUL CHURCHILL, Elton Professor of Philosophy, George Washington
University, USA.
SERGIO DELLAVALLE, Associate Professor of Public Law at the Faculty of
Law of the U niversity of Turin, Italy.
ROGER O’KEEFE, Professor of Public International Law, University College
London, UK.
THOMAS SCHULTZ, Reader in Law, King’s College London, UK.
MAURICE WADE, Professor of Philosophy, International Studies, and
Public Policy Studies
Co-Director of the Institute for Interdisciplinary Studies, Trinity College, USA.
An Evolutionary Paradigm for International Law: Philosophical Method,
David Hume, and the Essence of Sovereignty
By John Martin Gillroy
Radicalizing Rawls: Global Justice and the Foundations of International Law
By Gary Chartier
Hegemony and Global Citizenship: Transitional Governance for the 21st
Century
By Robert C. Paehlke
Islamic Law and Transnational Diplomatic Law: A Quest for Complementarity
in Divergent Legal Theories
Muhammad-Basheer .A. Ismail
Islamic Law and Transnational
Diplomatic Law
A Quest for Complementarity in
Divergent Legal Theories
Muhammad-Basheer .A. I smail
I SLAMIC LAW AND TRANSNATIONAL DIPLOMATIC LAW
Copyright © Muhammad-Basheer .A. Ismail 2016
Softcover reprint of the hardcover 1st edition 2016 978-1-137-55876-3
All rights reserved. No reproduction, copy or transmission of this
publication may be made without written permission. No portion of this
publication may be reproduced, copied or transmitted save with written
permission. In accordance with the provisions of the Copyright, Designs
and Patents Act 1988, or under the terms of any licence permitting limited
copying issued by the Copyright Licensing Agency, Saffron House, 6-10
Kirby Street, London EC1N 8TS.
Any person who does any unauthorized act in relation to this publication
may be liable to criminal prosecution and civil claims for damages.
First published 2016 by
PALGRAVE MACMILLAN
The author has asserted their right to be identified as the author of this
work in accordance with the Copyright, Designs and Patents Act 1988.
Palgrave Macmillan in the UK is an imprint of Macmillan Publishers
Limited, registered in England, company number 785998, of Houndmills,
Basingstoke, Hampshire, RG21 6XS.
Palgrave Macmillan in the US is a division of Nature America, Inc., One New
York Plaza, Suite 4500, New York, NY 10004-1562.
Palgrave Macmillan is the global academic imprint of the above companies
and has companies and representatives throughout the world.
ISBN 978-1-349-56416-3 ISBN 978-1-137-55877-0 (eBook)
DOI 10.1057/9781137558770
Distribution in the UK, Europe and the rest of the world is by Palgrave
Macmillan®, a division of Macmillan Publishers Limited, registered in
England, company number 785998, of Houndmills, Basingstoke,
Hampshire RG21 6XS.
Library of Congress Cataloging-in-Publication Data
Ismail, Muhammad-Basheer Adisa, author.
Islamic and transnational diplomatic law : a quest for complementarity
in divergent legal theories / by Muhammad-Basheer A. Ismail.
pages cm.—(Philosophy, public policy, and transnational law)
Based on author’s thesis (doctoral - University of Hull, England, 2012)
issued under title: Islamic diplomatic law and international diplomatic law.
Includes bibliographical references and index.
1. International law (Islamic law) 2. Diplomatic and consular service,
Islamic countries. I. Title.
KBP2400.I86 2015
342(cid:2).0412—dc23
A catalogue record for the book is available from the British Library.
This book is dedicated to the blessed memory of
my beloved mother, Madam Riskat Ogunbiyi
(Nee Animashaun), to whom I am greatly indebted
for giving me the opportunity to
become what I am today.

Contents
Series Editor Foreword ix
Foreword
Niaz A. Shah x i
Preface xiii
Acknowledgments x vii
1 Introduction 1
2 Historical Overview of the Universality of Diplomatic Practice 19
3 Sources of Islamic and International Diplomatic Law:
Between Tension and Compatibility 4 9
4 A General Overview of Diplomatic Immunity in International
Diplomatic Law and Islamic Law 7 9
5 Diplomatic Immunity in Muslim States: Islamic Law
Perspective on Muslim State Practice 1 13
6 Terrorist Attacks on Diplomatic Institutions: Jihad and
Islamic Law Viewpoints 139
7 Conclusion 1 65
Table of Cases 171
Table of Treaties and Statutes 1 73
Abbreviations 1 75
Notes 177
viii Contents
Glossary of Selected Arabic Terms 241
Bibliography 243
Arabic Bibliography 2 67
Index 2 69
Series Editor Foreword
In the practical reality of the world in 2015, I can think of no more
important legal matter than the implications of Muslim-Islamic law for
international common law and the future of relations between the West
and the Muslim world. A basic consideration of this age of “terrorism”
is whether the fundamental law of diplomacy, upon which all the rest of
the contemporary international legal system is built, is compatible with
Islamic law or can be made so. With the growing responsibility of states
to temper their sovereignty and their cultural-religious prerogatives for
the sake of transitional cooperation and nonviolent change, this study
on the theoretical and practical comparison of Islamic and conventional
transnational diplomatic law could not be more timely.
What is especially important about this effort is that it begins with
the normative principles that both undergirds approaches to the law and
proceeds on the assumption that these are the key to finding the points
of compatibility between the two systems of law. To this theoretical
commitment, Muhammad-Basheer Ismail adds a dedication to under-
standing the historical development of both sets of principles, setting the
evolution of the theory and practice of the law within the context of the
development of diplomatic law from ancient times. Focusing particularly
on the contribution made by Islamic civilization to modern diplomatic
practice, he finds both the convergence and the profound influence of the
former on the latter. On one level, this argument adds much to the his-
tory, theory, and practice of the law of diplomatic immunity, while more
universally, it places into context the profound influence of conventional
diplomatic law and its capacity to integrate what superficially seem like
diametrically distinct lines of legal practice.
With this approach, emphasizing the determinate influence of
core principles on the history of practice, which is at the core of this
book series, Muhammad-Basheer Ismail has moved the entire field of
both comparative and international law ahead both theoretically and