Palestine, Jus Cogens, Maqasid al Shari’ah, and The Abraham Federation

by Dr. Robert D. Crane

  The question is whether Palestinians have an inalienable right to govern themselves, and, if so, what makes such a right inalienable.  In other words, is there such a thing as natural law transcending manmade law?  This is the subject of jus cogens, which literally from the Latin means “compelling law”.

  When I founded the Harvard International Law Society at Harvard Law School more than half a century ago, there was no such concept in international law or any other Western legal system.  Jus cogens is a modern concept, borrowed originally from the normative jurisprudence in Islamic thought, known as “natural law” in the West, even though Western jurists would deny that they have ever borrowed anything.

  The last great advocate of natural law in America, which is the same as the classical Islamic maqasid al shari’ah, was Chief Justice Joseph Story, perhaps the most brilliant of all American Supreme Court justices (he joined the Court in 1811 at the age of 32), who died not long before the American Civil War.  To its everlasting ignominy, Harvard Law School formally suppressed natural law theory and imposed positivist law as its opposite on whole generations of American leaders when it replaced Story Hall with Austin Hall as its brain center.  Harvard thereby inaugurated a century of Austinian jurisprudence which placed man at the center of the universe as the source of all ultimate truth and legitimacy.  The very concept of justice disappeared from public life, though it survived sub rosa under the cover of enlightened theories of freedom.

  By upending American jurisprudential theory and eliminating the natural law paradigm of justice, Harvard thereby repudiated the fundamental basis of the Great American Experiment, represented by the Preamable to the American Constitution, which placed justice as the source of security, domestic order, prosperity, and freedom.  If American jurisprudence ever recovers from this debacle, one source of constitutional renewal may come from recovery of the Islamic jurisprudence that first gave rise to the initial flowering of normative international law in Western thought shortly after the final demise of Islamic Andalusian civilization five hundred years ago.

  The entire concept of jus cogens or transcendent normative law in the Western World was borrowed from the Islamic maqasid al shari’ah by the Spaniards Vittorio and Suarez shortly after Columbus “discovered” America.  This holistic, normative law formed the original basis of Western international law.  Almost immediately, however, this was dropped like a hot potato after the Europeans started their colonial conquests in America in favor of “might makes right.”  From then on group rights did not exist nor did any higher norms from either divine revelation or human reason.  The native nations in America, Africa, and Asia simply did not exist.  Golda Meir typified this approach to international law when she spoke of Palestine as “a land without people for a people without land.”  Nationhood was separated from statehood, and the sovereignty of statehood belonged formally and exclusively to whatever power exercised physical control over more than 50% of a given territory.

  Jus cogens, as it applies to the Palestinians, may be considered to be a form of international customary law to the extent that all nations recognize it as consisting of the most basic human responsibilities and rights, like the right not to be tortured or to not to be bombed with phosphorous bombs, as we have seen in Gaza this month, or to be denied the results of free and responsible elections.  Nevertheless, jus cogens is a unique category of law because it exists apart from the consensual nature of international law, which obtained until recently, and therefore is distinct from both treaty law and customary law.  It is unique also in that it trumps all other manmade laws, but has never been codified, nor should it ever be. 

  One might say that the modern International Criminal Court, which came into being only a decade ago, depends primarily on jus cogens because it has jurisdiction over the inherent rights and responsibilities of both states and individuals, a concept that fifty years ago was a really oddball idea, and is the primary forum for adjudicating crimes against humanity.  This concept of crimes against humanity supposedly was invented at the Nurnberg Trials, where I spent considerable time in 1948 for my research on the spiritual dynamics of resistance against the totalitarian state.  Actually such a legal concept has been known in Islamic thought for more than a thousand years and is called hiraba, which is also another term for terrorism.

  The official debut of jus cogens in the modern world may be traced to the decision of Judge Tanaka in a precedent-setting case at the International Court of Justice in 1966 (Southwest African Cases, ICJ, Rep. 6, page 298), in which he wrote: “If we can introduce in the international law field a category of law, namely, jus cogens, recently examined by the International Law Commission, a kind of imperative law, which constitutes the contrast to jus depositivum capable of being changed by way of agreement among States, surely the law concerning the protection of human rights may be considered to belong to jus cogens.”   

  The newest issue in international law is whether jus cogens embodies the concept of self-determination by groups or nations that are not recognized by the “international community” as sovereign states.  This was the focus of my article forty years ago, entitled “The Politics and Dynamics of Human Rights,” published in the July 1969 issue of The American Journal of International Law.  In this I noted the brilliant Jewish advocacy of group rights and its complete disappearance from the literature in favor of sovereign state rights immediately after Israel won the 1967 war and no longer needed or even wanted jus cogens to justify its existence and policies.

  Of course, jus cogens can be manipulated politically instead of being merely denied, which is why it must be anchored within the natural law paradigm of peace, prosperity, and freedom through compassionate justice.  In recent years some theoreticians, including Henry Kissinger, appeal to the equivalent of jus cogens in arguing for the inalienable right of the United States to govern the globe by installing a New World Order in defense of “freedom.” 

  When the elder President Bush started to use the term Pax America and then Pax Universalis, as a substitute for New World Order after the implosion of Communism in 1990, Kissinger consistently rejected these terms, because he said their use was premature.  He first used the term New World Order in his op-ed position paper in the Washington Post on August 12, 2002, in which he said that the United states must invade Iraq for five reasons, in which the most important reason for the invasion was to launch a New World Order legitimating the right of unilateral preemption against universal chaos.
 
  Kissinger did not use this term again, however, until January 19, 2009, when he published a new position paper in the International Herald Tribune proposing a “New World Order” of “globalism,” as the only means to restore order from the financial chaos that had begun the previous year.  He critiqued the naivete of so-called self-regulating capitalism and instead prescribed new political institutions: “an international political regulatory system with the same reach as that of the economic world.” 

  This was based on his immediate post-1990 theory of global balance among what the Marxists used to call “the commanding heights” of economic power.  He is urging President Obama to base his foreign policy on a trans-Atlantic “reality” in which the United States combines economically and politically with the European Union, and a trans-Pacific “reality” in which the United states combines with China.  This, of course, is based not on any abiding principles of justice, but on an existential fear of global chaos unless the commanding heights led by their apex in America can impose a new world political order.

  The only systematic treatment of jus cogens as a source and expression of universal inalienable principles of justice was developed over a period of four centuries during the height of the Islamic civilization.  This scholarly endeavor by some of the world’s best minds over a period of centuries reached its peak in the writings of the Andalusian scholar from Grenada, Al Shatibi, who died in 1388 (790 AH).  We may call this the classical Islamic period.  Unfortunately, its peak coincided with its end, because it died out almost immediately thereafter and was not revived until the Grand Mufti of Tunisia, Ibn Ashur, began to revive it with his work on the maqasid in 1946.  The International Institute of Islamic Thought (IIIT) has now translated a number of books building on Ibn Ashur’s work.  We may regard jus cogens as merely a Latin term for the maqasid al shari’ah or universal principles of justice.  The sooner Western scholars admit this the better, because the militantly secular definitions of human rights, including the U.N. Declaration, over which the Soviet foreign minister, Maxim Litvinov exercised veto power, do not begin to match in sophistication what preceded them by almost a thousand years. 

  Jus cogens as it applies to the Holy Land also calls for economic justice as the source and basis of political justice, because whoever controls the creation of money and credit and the resulting ownership of wealth controls the laws that sustain them.

  Muslims often think they can solve all problems with a bumper sticker that reads “Islam is the solution.”  The University of California at Berkeley is holding a conference on February 28, 2009, entitled” Islamic Finance: Resilience in a Time of Financial Crisis.”  Unless it addresses the fundamental issues of money and ownership, the institution of Islamic finance may be able to offer only hope, not fact, because even the best policies within a flawed system of money and credit are limited in their resilience. 

  Eliminating interest burdened finance and its monetization through a chain of untraceable derivitives is a big step in the right direction.  Even more important, however, as an important benefit of Islamic finance, is the basic Islamic position on the creation of money (with or without interest) as a means of exchange for assets with real value, in accordance with the Real Bills doctrine, rather than for debt with negative value.  A third major benefit is recognition that wealth in a capital intensive economy is created overwhelmingly by tools (including managerial expertise) or capital, not by exclusively by labor, as in the Marxist and Keynsian theories taught in most universities. 

  A third way of justice is needed to overcome both the naivete and envy in which socialism is rooted and the naivete and greed, which formed the power behind so-called 19th-century capitalism.  This third way is known as binary economics, which recognizes both capital and labor as sources of wealth, as spelled out so insistently by Grand Mufti Ibn Ashur of Tunisia in the first half of the 20th century. 

  This recognition is perhaps the most important key to the normative law of Islamic economics, which emphasizes the bedrock Islamic principle of equal opportunity.  This gives rise to the universal human right of every human being to have individual ownership not merely of one’s own labor but of the means of production.  The entire system of money and credit if it is to be Islamic must function to broaden capital ownership, which is what binary economics is all about in its popular slogan, “Own or be owned”.

  Of course, all the rulers in the Middle East, whether nominally democratic or not, need to recognize this higher law, because it teaches that they are criminals for denying both political and economic justice.  They all deny the self-determination of both individual persons (haqq al nafs) and the communities that derive from the sacred nature of the human person (haqq al nasl), which are the two basic components also of political freedom (haqq al hurriyah), including the rights of nations that are not recognized as states.  These local tyrants also deny economic justice by maintaining mixed economic regimes of warlord politics and warlord capitalism.

  The long-run solution for peace, prosperity, and freedom for the persons and peoples of the Holy land is neither one religious state, nor two secular states.  Instead it requires a third solution of political and economic justice, which might be known as the Abraham Federation, as proposed by the inter-faith organization, The Center for Economic and Social Justice, on its website, http://www.cesj.org, as well as at http://www.theamericanmuslim.org.

  Jus cogens is the basis for the federation of two nations, when neither a single state nor two separate states appears to be feasible.  Jus cogens provides the legal basis for an Abraham Federation in the Holy Land.