Meet the Book Author: Human rights commitments of Islamic states: Sharia, treaties and consensus

Paul McDonough, Cardiff University

In our Meet the Book Author Series, the Journal of Law and Society and the Centre of Law and Society provide first-hand accounts from authors who have recently contributed notable socio-legal books to their respective fields. In this post, we hear from Paul McDonough, who’s book Human rights commitments of Islamic states: Sharia, treaties and consensus was published at the end of 2020 with Hart.

Human rights commitments of Islamic states: Sharia, treaties and consensus, was published by Hart at the end of 2020 – just in time for REF. The REF impetus moved the project along. The team at Hart guided the process so that my final manuscript deadline allowed just enough time for copy and proof editing, compilation of indexes, and so on, for December publication. The result is a reasonably complete and up to date (as of 2020) overview of the constitutional structure and formal international human rights commitments of today’s Islamic states.

What is the book about?

The book considers Islamic law and international human rights law through the lens of the constitutions and treaty commitments of Islamic states. Defining an Islamic state as one whose constitution either proclaims itself as such, or designates Islam as the state religion, yields a study set of 24 constitutions, plus recent draft constitutions of Libya and Yemen. Most of these states adhere to most of the main UN human rights treaties, and their constitutions incorporate both Islamic law and international law to some degree. This raises the question of how an Islamic constitutional order can resolve conflicts of law that might arise, should international law and Islamic law diverge in their interpretations of a human right protected by an international treaty.

Treaty commitments bind an Islamic state as a matter of Islamic law as well as international law. The monograph proposes that an Islamic state that adheres to a human rights treaty provision intends to satisfy rules of both Sharia and of international law, using the interpretive flexibility intrinsic in each system of law to find a mutually compatible interpretation. The book presents an overview of classical Sunni Islamic law, and relates it to international human rights law, then analyses how Islamic constitutions allocate state power among institutions, and where they place Islamic law and international law in the hierarchy of laws. Using patterns of UN human rights treaty reservations and objections to identify points where Islamic states appear to diverge from other states in their understanding of human rights, the book suggests paths by which the two traditions could reach similar substantive conclusions of law, without having to transgress basic principles.

Why did you write it?

I took on too large a topic for my PhD thesis, so continued it into a book. Following my supervisor’s observation that many modern Islamic constitutions protect international human rights as civil rights, I set out to examine how Islamic constitutions treat rights of freedom of expression and religious practice, and civil equality. This required assessing each right in terms of both Islamic and international law, with reference to the constitution, and to a basic analytical approach: an Islamic state’s human rights commitments are defined by its treaty adherences, and the consensus of the international community of Islamic states, in light of the state’s constitutionally adopted approach to interpreting Islamic law.

The thesis proposed an approach and demonstrated it through the ICCPR and ICESCR; the monograph extends this to an examination of all UN human rights treaty commitments of Islamic states. Combined with structural analyses of Islamic constitutions that shows the standing of Islamic law in the national legal order, and what approach the state takes to the interpretation of Islamic law. The end result, ironically, amounts to a more detailed and precise restating of the original research questions, though at least arguably a complete one.

How did you research it?

The research approach was straightforward: literature review for each main question, applied to primary sources. The monograph presumes the truth of the Sunni Islamic narrative: that God revealed the Quran and Sharia to the Prophet Mohammed, who demonstrated Islamic law to his community by word and deed. It then largely adopts the conclusions of recognised scholars regarding Islamic law, reserving its original analysis for matters of public international law, with Islamic constitutions and the UN treaty archives as the main sources. Insofar as there was a research strategy, it centred on delineating the area of research. The monograph proposes an original argument, but its greater service may be in its definition of a question, and aggregation of resources to apply to try to answer it.