Thursday, October 30, 2014

International law and Theocracy : A Proposal

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The legal validity of theocracy in international law

Bismillah Ar Rahman Ar Raheem

1.0  Introduction & background

“Theocracy is a form of government in which official policy is governed by immediate divine guidance or by officials who are regarded as divinely guided, or is simply pursuant to the doctrine of a particular religion or religious group” (Merriam-Webster, 2007). Democracy has become the dominant form of government in the world. Even though there are many other forms of governments recognized by political science, people’s ignorance and/or inapplicability of those in the state level, have made them only academic studies. One of the most persuasive and once dominant forms of government is theocracy. It finds its validity in religious texts. How successful can it be in people’s hearts? How can it reconcile with secular freedom? And the most important question is how much legal validity does it have in international community? This last question above all needs to be answered in light of the research.

1.1 Need for the research

History has seen many wars especially in the middle ages, wars which were fuelled by the cause of religion and just cause. Many people have died championing the cause of just wars and religions, but many have also died championing the cause of extremism. Recently in the world the fight for a religious government has emerged in the wake of terrorist attack of 2011. Even though the conflict between secular and religious is an old age rivalry, it has emerged in a new form where the former speaks of preemptive strike and the latter speaks of terrorist martyrdom. Can the differences between the two be resolved through a mutual agreement by international law? I believe my research will be able to in the least propose a solution and a step in the future. By this each faction can understand each other, and international law can play its major role and the primary role of maintaining international peace and promoting friendly relationship among people. It will help people understand that religion is not about impairment of freedom or the government of extremists, but it is more than that. It will help also to diminish an extremist thought in religious governance, and may convince some extremists also that both religious government and modern world can co-exist, peacefully. If it can be shown that international community and in large international law is not the enemy of theocracy and religious government then may be perhaps the tension will slightly lower, and people can see for a new age of religious tolerant governance, appreciating the role of religion and international law. It is based on a normative form of theocracy which I believe International Law allows. 

1.2 Purpose of the research

This research will deal with the legal issues, and discussing the technicalities of international law vis-à-vis theocratic legal systems. It will establish a legal link between theocracy and international law. Theocracy and the harmony with international law, and how to refine the extreme form of theocracy and make it fit in the context of International Law is the main objective of my study.

1.3 Thesis statement

Does international law allow for the existence of a theocratic regime which allegedly is feared to violate human right? I believe that international law allows in its system the existence of a normative theocracy. 

“Normative” meaning refined through international law and having legal injunctions worthy of being a legal system as well as political system yet maintaining the theocratic nature.

1.0  Literature Review: Major theocracies & International Law

I have discussed many forms of theocracies in which writers have endeavored upon either to establish a certain positive claim or a negative one. Due to theocratic legal systems being different its political systems also tend to be different, so I have discussed them in paragraphs.

The following passages will examine the major studies done in the relevant theocracy, and will also touch on the nature of international law dealing with governmental purpose. 

2.1 Jewish theocracy 

The term theocracy did not originate in any religious texts but it represents a form of government which is that of God (Kim 1972). Within this scope lies the definition of all forms of theocracies.  To start with Jewish theocracy would be a facilitator in understanding the divergent nature of theocracy. “Jewish theocracy is inevitably bound to be destructive of a real state in a real world” (weiler, 1997) - a theocracy which at the very onset is against the objective of international law, because international law is all about peaceful co-existence (UN Charter preamble & article 1). Does it mean that Jewish theocracy is not fit to rule or exist in the modern arena of nation states? Jews are a minority, and it would be difficult to exist on such aggressive theocracy for long, if it were to be established, purely. Then what other forms can there be in Jewish theocracy which may be in harmony with the concept of co-existence? Jewish theocracy says weiler is three folded: Anti-political, Rabbinical & anti-democratic anti secular (weiler, 1997). It may be that rabbinical norm which is so much aggressive who may treat the gentiles (non-Jews) in a very discriminatory way. As to the anti-political form would mean simply submitting to a purely religious form of life where the daily activities of life is governed by the government of rabbis and religious rituals, not to say the laws reaching to affect the level of state or existing government.  It could also be argued that the other two forms simply highlight Gentile hatred and Jewish separatism (Spinoza 1670). I believe that in order for Jewish theocracy to exist in a form compatible with international peace and international law, tolerance of the gentiles should be legislated and incorporated in the norm.

2.2 Christian theocracy

God is the only good King (Palmquist 1993). This is the summation of Christian theocracy to the author. On the basis of this the whole concept of Christian theocracy is built by the author. Absolute freedom is in God, he proposes, and that only government which can achieve this is theocracy. Even though he has vehemently opposed democracy, nonetheless democracy is also allowed by international law. It should be no shock that two allowed forms of government be in conflict in international law just as democracy and communism was in the cold war.  The kingdom of the Supreme King is acknowledged through the rule of pious men. In the Old Testament it was the prophets and to him in this present era it would be the church. Unlike secular government and just like other theocracies he foresees a government not of land or state only but of the soul also.  He shuns the isolationist policy that politics is evil and bad on the basis that men who make it bad but politics is a tool to achieve certain aims. He however only foresees bible as the only way of establishing peace in society but not international law. Pacifism is not an option in bible according to him, but what he promotes is just war which would mean also wars of aggression and he proposes a war of retribution for the wrongdoers, retribution of God implemented through the theocrats.  This reminds us of the crusades, wars of the church for a just cause in their theological reasoning, but not a just war so much in the modern sense of international law.

2.3 Islamic theocracy

The term Islamic state was coined by Maududi. He affirms the role of Islam in politics in the modern era, and proposes a theory for Islamic government. He establishes that the state of Islam must be based on unity of Allah Supreme, Prophethood and Caliphate. He proposes Islamic democracy a challenge to western secular democracy (Maududi 1976). He establishes a theocracy of Islam where only Muslims are allowed to rule due to the security issues of the state. “Islamic 'jihad' does not recognize their right to administer state affairs according to a system which, in the view of Islam, is evil. Furthermore, Islamic 'jihad' also refuses to admit their right to continue with such practices under an Islamic government which fatally affect the public interest from the viewpoint of Islam" (Maududi, 1939). He proposes an aggressive war stating “Islam wishes to destroy all states and governments anywhere on the face of the earth which are opposed to the ideology and programme of Islam, regardless of the country or the nation which rules it” (Maududi 1939). However it should be asked that prior to the adoption of UN charter in1945 how much is an aggressive war prohibited? How this sentence from Maududi is reconciled now with UN charter? Maududi proposed the theory of Islamic theocracy and it can be said Khomeini implemented it. Even though not fully clerical theocracy but nonetheless a theocracy was proposed by him stating “"We do not say that government must be in the hands of" an Islamic jurist, "rather we say that government must be run in accordance with God's law” but he encouraged clerical rule for the safety of religious integrity and jurisprudence “Only rule by a leading Islamic jurist  would prevent "innovation" in Sharia or Islamic law and insure it was properly followed” (Khomeini 1981).The concept of human rights is implicit in the Islamic doctrine of obeying Allah Supreme (Khomeini 1981). Thus Islamic theocracy of Iran has adopted the Cairo declaration of human rights. How much international law condones it is analyzed later on.  (For discussion on this see http://islamichumanrights.weebly.com)    

Was there really theocracy in Afghanistan or rule by clerics who implemented something else? Not everyone will believe what I asked, but the contrary to criticize theocracy. Afghanistan says Travis was a hotbed for civil war after the Islamic revolution against the Soviets (Travis 2003). He cited the darker side of a government which fought Soviets, i.e Taliban fighters. Taliban theocracy was vicious and brutal, and was responsible for atrocities and massacre. Taliban was supported by USA, Saudi Arabia and Pakistan and their success largely due to these states, even though USA later renounced it and left it to isolation until 2001. Taliban theocracy was thus to Travis was a failure and more over a form of criminal gang of rulers to implement Islamic law. 

2.4 Rawls on Theocracy   

Theocracy cannot be a positive form of government because it bars people’s rights and does not “guarantee the right of people to choose their own conceptions of the good life” (Roberts, 1998). To Rawls there are no objective moral values which Theocracy proposes. He defines the choices of reasonable people and the form of political doctrine they ought to choose. However to me moral values and political freedom in a state is the matter of the people’s right to consent or not consent. If people consent to the theocracy and to be governed by a set of doctrines which make their lives easier and spiritually positive i.e. spirituality of love and tolerance, along with justice to be understanding and flexible in its application., then theocracy can be a good form of governance, a form which can exist in international relations of states. 

2.5 The return of theocracy

 Religious parties have made a comeback to international sphere and “a new legal order has emerged: constitutional theocracy” (Hirschl 2008). He has discussed the need to study theocracy in the constitutional context, and after studying several constitutions which endorses a religious element he has come to believe that world politics can no longer ignore it. His research has endorsed the importance of acknowledging religious as an important player in forming constitution and state laws in the world, which leads to the need for my research as to how should a theocracy ought to exist on the basis of international legal system?

2.6 The nature of International Law

The main purpose of international law is to establish and maintain world peace and respect for human rights (UN charter 1945 & ICCPR 1966). International legal system tries it’s best to uphold the norms of Jus cogens, and judges on all forms of governments and/or legal systems which violates the Jus cogens norm as well as treaty laws & customary international laws (ICJ, Nicaragua case). Therefore it recognizes any or all governments De Jure or Ipso Facto (Wallace, 2010) provided they also recognize their obligations under international law (ICJ Statute article 36). 

2.0  Methodology

The research is library based, mainly. It also takes in to account media, religious edicts published in leaflets or proposed in parliament. I take in to consideration primary texts on theocracies including its interpretations. As this is a comparative analytical research, the interpretation and juristic opinions regarding the relevant fields of international law is compared with the theocratic laws and political theories, at times scrutinizing each other, and proposing a preferred view in my opinion. Also incompatibilities of the practical with the “ought to be” form are analyzed, and the “whys” and “hows” of such conflict are explained with possible resolutions if any. Also the flexible nature of international law is analyzed to that of inflexible practices of international legal subjects, if any. 

One of the practical approaches will be to take the speeches and quotes of theocratic figures and understand them in context of international law. It is because misunderstanding of such lead to misunderstanding of theocracy in particular and religions in general. What they have to offer is best understood when they are heard and understood. A study of how dominant theocracies of the world governed international relations in the absence of contemporary international law, is also taken.

Interviews with theocrats are done. Their ideas questioned to them, and their thought on co-existence of international law and theocratic government. 

Exemplary questions to be asked for survey:

a)    How theocracy can make a difference towards world stability?

b)    How do you tackle western human rights in conflict with theocratic human rights?

c)     Do you justify wars of aggression to promote just cause? If so, why?

d)    How credible is international law to you as you represent the Divine law?

e)    What if your version of theocracy is incompatible with international law and world community are you ready to wage a holy war?

Questions may be elaborated while in interview.

3.0  Limitations

The limitations rise due to the complete absence of prolonged theocratic rule in the contemporary world. Practical studies are thus limited by this, hence are heavily theory based and analytical. Also access to leading theocrats may be a problem due to their conservatism and suspicion to media and publicity.

Research for theocracy is rare, and most of the researches are against it or at least against its authority.  It is thus difficult to portray what theocratic form in international law is allowed provided the essence of theocracy is not altered. My research will contribute towards this, inshallah. 

4.0  Timescale

The research project is planned to be finished within five to six months, from the date of submission of the proposal.

References Kim, David. Theocracy in the Old Testament. Ashland Theological Journal ATJ 05:0 1972. http://www.galaxie.com/article/34 Weiler, Gershon (1997). Jewish Theocracy. Leiden: Brill Academic Publishing

Silvertone & Israel (Ed.) Spinoza: Theological-Political Treatise. Cambridge, England: Cambridge 2007.   
Palmquist Stepehen (1993). Biblical Theocracy. HongKong: Philopsychy Press.   
Maududi, Abu Ala. Political theory of Islam in Islam: it’s meaning and message. 
Ahmad Khurshid, Ed. London: Islamic Council of Europe, 1976, pp. 159–61.   
Maududi, Abu Ala. Jihad in Islam. Beirut, Lebanon: Holy Quran Publishing house, 1980, p 6, 7, 22.   
Khomeini, Ayatollah (1981). Islam and Revolution: Writings and Declarations of Imam Khomeini. Tehran: Mizan press.   
Travis, Hanibal (2005). FREEDOM OR THEOCRACY?: CONSTITUTIONALISM IN AFGHANISTAN AND IRAQ. Journal of International Human rights, vol 3.   
Robert B. Thigpen (1998). Rawls and the challenge of theocracy to freedom. Journal of Church and State  Vol. 40 Nbr. 4.   
Ran Hirschl, The Rise of Constitutional Theocracy, 49 Harv. Int'l L.J. Online 72 (2008), http://www.harvardilj.org/2008/10/online_49_hirschl/.   
OHCHR (2007). International Covenant on Civil and Political Rights on http://www2.ohchr.org/english/law/ccpr.htm Accessed 29/05/2012 ICJ. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. USA), Merits, Judg. 27 June 1986 ( Reports 1986, p. 14)   
ICJ. STATUTE OF THE INTERNATIONAL COURT OF JUSTICE, article 36.   
Wallace, Rebecca, M M (2010). International Law. United Kingdom: Sweet & Maxwell.      


http://www.orthodoxislam.org/international-law-and-theocracy-a-proposal.html