Remembering the Other's Others: Theorizing the Approach of International Law to Muslim Fundamentalism
University of California, Davis - School of Law
Columbia Human Rights Law Review, Vol. 41, pp. 635-698, 2010
Rutgers School of Law-Newark Research Paper No. 075
Muslim fundamentalist movements pose major challenges to international law. Yet, the field of international law has failed to offer a significant response. Seeking to provide simple counter-narratives to the admittedly problematic narratives of some governments in the context of the "war on terror", international lawyers have often omitted discussion of Muslim fundamentalism altogether. While Edward Said's notion of Orientalism may manifest in stereotypical approaches to fundamentalism, it may also surface in the refusal to address the question at all because it is deemed to be embedded in Muslim culture.
The silences of international law with regard to Muslim fundamentalism speak volumes about the discipline. There are a number of explanations for such lacunae. These include decreasing confidence in universality, the misapplication of legitimate concerns about discrimination, and narrow discourses about victimhood. Whatever their causes, the result of these silences is that international legal scholarship and the human rights policy it informs may misrepresent significant global controversies. For example, the admittedly flawed "war on terror" becomes solely a misguided assault on an undifferentiated Muslim population (which it sometimes has been, sometimes not), while the existence of an organized jihadist international, the "other" side of the "war on terror," is disappeared. Such narratives undercut opponents of fundamentalists in Muslim populations.
Why does any of this matter? Consequently, the very governments that international lawyers seek to constrain may cease to take us seriously. Potential allies among anti-fundamentalists of Muslim heritage (whose projects are critical to the success of international law) may be further disempowered. Worse still, international law may be misused to the benefit of social movements antithetical to its goals. To better respond to the challenges posed by Muslim fundamentalism, international lawyers must apply their discipline's universalist principles with scrupulous consistency. Moreover, they need to confront the complexity of international law and construct a non-discriminatory, yet unashamedly critical, human rights account of Muslim fundamentalism.
Ultimately, international lawyers need to reconceptualize international law's world. They must cease opposing Samuel Huntington's problematic paradigm of the "clash of civilizations" with what is simply a post-colonial inversion of this same construct. By accepting his basic binary dividing "the West" and "Islam," even in the name of "difference," this approach actually reifies Huntington's notion of immutable inter-cultural fault lines that delimit the contemporary moment. The only way to refute Huntington is to recognize that the clashes about international law and human rights within civilizations, such as those between fundamentalists and their opponents, are as determinative as those between civilizations.
Number of Pages in PDF File: 65
Keywords: international law, human rights, universality, religious extremism, fundamentalism, Islam and human rights, religious discrimination, terrorism, victimsAccepted Paper Series
Date posted: June 19, 2010 ; Last revised: August 29, 2010
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