Muslim International Law
Islam is not only international but universal in its message and approach, and the Muslim community has performed its universal role from the very beginning. The first calls made by the Prophet of Islam (peace be upon him [PBUH]) were addressed to humanity rather than to any particular group of people. We never find that the Qur’an or the Prophet (PBUH), in his recorded sayings, speak exclusively to the Arabs, the Iranians, or other ethnic or linguistic entities. People are addressed either as “O mankind”16 or “O children of Adam.”17 Many verses and important discourses in the Qur’an open with one of these phrases, particularly in the Makkan surahs (chapters). This shows that contrary to the notion of some western writers the approach and message of the Qur’an was universal and pan-human from the beginning of revelation in Makkah.
There is a misunderstanding about Islam and Muslims, particularly in some Western minds that Islam offers a monolithic system; that it does not acknowledge any right to diversity and does not accept any civilizational norm or cultural value outside the ambit of Islam. This perception is not correct. The Qur’an itself draws attention, at times in very moving terms, to the good qualities of other nations.I!i The practical implications of this appreciation for others was elaborated by the Prophet (PBUH), when he declared that wisdom was the common property of human beings, and, therefore, wherever it was to be found, it should be acquired and availed.
This value was reflected in the practices of the Prophet of Islam (PBUH) as well. As a young boy in his early twenties, he had participated with the elders of his family in laying the foundation of an alliance that sought to protect the poor; provide justice to those who were wronged; provide shelter to those who did not have it; and provide succor to the weak. This alliance was not ethnic or parochial in its application; its benefits were available to all, irrespective of tribal or other differences." This alliance is known in Islamic history as Hilf al-Fudul. It was launched more than three decades before the Hijrah (migration of the Prophet [PBUH] to Madinah). After he proclaimed his prophethood, people noticed that his teachings were similar to the principles espoused by the alliance and asked him about it. He said he still relished the good memories of that alliance and, if ever he were to be invited during the days of Islam to join a similar alliance, he would accept the invitation immediately. He added that he would consider participating in such an alliance better than the best of worldly blessings and benefits (or “red camels”, considered the best worldly gain by the Arab Bedouins). This indicates the readiness of true Muslims to participate in international efforts to uphold human rights.
If any doubts remain about Islam’s profound concern for creating a just and tolerant world society and its respect for diversity, they should be dispelled by the Qur’an. Among numerous other relevant verses, the Qur’an addresses the People of the Book with this call: O People of the Book! Come to agree with us on a common objective: to support and promote the freedom of human beings and equality of mankind and to promote those moral and ethical ideals which we jointly and commonly share. It may be pointed out that this call was made by the Qur’an, and by extension the Muslim world, more than 1,420 years ago. And a response to it is still awaited.
It was due to this open encouragement by the Qur’an and the Prophet Muhammad (PBUH) to work with all mankind to promote the humanitarian cause that, in the twentieth century, Muslim countries did not have any hesitation in joining international treaties and organizations, such as the United Nations, the (earlier) League of Nations, the Organization of African Unity, and the Non-Aligned Movement. It is also why one finds Muslim countries actively participating in several international fora today. Beyond any doubt, the Muslim mind has always been ready to cooperate with others for the advancement of common international objectives and to serve humanity as a whole.
Not only does Islam respect the diversity of nations, it also recognizes that other religious beliefs and ideologies exist side by side with it. Recent Muslim jurists have placed special focus on this feature. The Qur’an is perhaps the only Divine Book in the history of religions that has acknowledged the existence of other religions. It refers to the People of the Book, the Christians, the Jews, the Sabians, idolators, atheists, etc. It guides Muslims in how they should conduct themselves with those among these followers of other beliefs who enter into agreements with them, those who prefer to stay away from any kind of relationship, those who wish to remain neutral, and those who wish to enter into a hostile relationship. The fact that these various categories have been mentioned in the Qur’an - and that high moral standards have been declared for Muslims to deal with each of them - indicates that the Qur’an not only contemplates a variety of international relationships but has also taken care of possible avenues of interaction and intercourse between Muslims and non-Muslims.
Practical details of this interaction were demonstrated by the Prophet of Islam (PBUH) through his normative practice, the Sunnah, or the model example.27 Based on the Qur’an and Sunnah, Muslim scholars and jurists of the second century (AH) developed an independent legal-historical discipline known as siyar. Initially a branch of the biography of the Prophet, with emphasis on the wars and other missions and expeditions in which he took part, siyar soon became focused on delineating a set of rules for regulating international conduct. This exercise of second century Muslim jurists yielded many works seeking to codify the part of the Shari’ah that sought to regulate the interaction of Muslims with their non-Muslim contemporaries. Out of these efforts, around a dozen works have come down to us, either fully or in parts. Three of these, which were written by Imam Muhammad ibn Hasan al-Shaibani (d. 189AH), a disciple of Imam Abu Hanifah (d. 150AH), deserve special mention. Shaibani first wrote a relatively brief book, which he called Kitab al- Siyar al-Saghir (meaning, the Shorter Book on International Law). Later on, he wrote a more comprehensive book, which he called Kitab al-Siyar al-kabir (i.e. the Major Book on International Law). Towards the end of his life, he may have felt that the earlier book was too compact and the later one too elaborate for the common student, and undertook the preparation of another book meant for a general readership. It seems that either he could not complete this work or it could not come down to us. An incomplete manuscript is preserved in the Sulemaniye Library in Istanbul, Turkey. We can safely conclude that Shaibani is the first jurist in the history of mankind who wrote three extant books on international law as a distinct and separate subject from other branches of legal thought and activity.
In the West, the Dutch lawyer Hugo Grotius (d. 1645 AD) is considered to be the father of international law. He is the first Western jurist to have left us a comprehensive book, in Dutch, on the law of war and peace. However, 866 years before the birth of this great jurist, Imam Muhammad ibn Hassan al-Shaibani had already written three books in Arabic on the subject of siyar, embodying his own findings and rulings as well as the rulings of his teacher, Abu Hanifah, and other contemporary jurists regarding how the relations of the Islamic state were to be regulated with non-Muslim communities and countries as well as with other non-Muslim entities.
The science of siyar as developed by Muslim jurists of the second century addressed not only the issues related to states and communities, but also the rights of the individual, for example, the individual Muslim living in a non-Muslim environment, and the individual non-Muslim living in a Muslim environment. We may recall that modem international law has only started taking notice of individuals and communities during the last quarter century. However, in the writings of Shaibani and his contemporary jurists, we find that they had recognized, from the earliest times, individuals and communities as subjects of international law. They dealt with the rights and privileges not only of individual citizens of the enemy state, but also of Muslim citizens visiting the enemy territory.
Martin Dixon has enumerated five principles on the basis of which the success or failure of an international law can be judged. According to him, the primary function of international law is to prevent war and control the use of force. If a law fails to achieve this objective, it is a failed law. The five principles are:
- To prevent a war;
- To resolve the dispute peacefully with compromise;
- To contain the war to the minimum;
- To contain the effects of war; and
- To protect the affectees of war.
All of these criteria are found in the Qur’an and the sayings of the Prophet and have further been expatiated upon by Muslim jurists.
It is also noteworthy that the question of the validity of international law, which remains unsettled in the West, did not pose any problems in Islamic international law. From the days of Hugo Grotius up to the middle of the twentieth century, the West heatedly debated the legal character of international law. Some scholars and lawyers have contended that international is not law in the real sense. Among those who thus deny the ‘legal’ character of international law are John Austin, Hobbes, Bentham, to quote only a few.33 Some other scholars say it is a vanishing point of jurisprudence; in other words, it is withering away as a legal authority. Others say it is only a positive international morality. Still others have said that international law is simply a set of international ethical values.
These scholars deny the legal character of international law mostly because:
- There is no recognized body to make or create its rules;
- There is no hierarchy of courts with compulsory jurisdiction to settle disputes under or over these laws; and
- There is no accepted system for enforcing these laws.
Thus, a sizeable community of lawyers and jurists asks how, in the absence of a legal order, a judiciary and an executive, can these principles or rules be considered law? And what is the legality of international law when it has no sanction and no teeth, and no authority to enforce or defend it?
However, the other camp of scholars has always upheld that international law is law in the real sense.
This question was never raised by Muslim jurists. To them, Muslim international law had the same sanction as that enjoyed by the municipal law of Islam. Indeed, both types of law get their legitimacy from the Qur’an and draw their authority from the Sunnah of the Prophet (PBUH), the two perennial sources of Islam, which are considered authoritative and obligatory in character by the Muslim rulers and Muslim masses alike. Therefore, Muslim jurists experienced no problem in deciding whether the international law of Islam was law, or whether it required any separate sanction of its own, and we do not find any controversy regarding this matter in any early book on Muslim international law.
Muslim international law also dealt long ago with the type of new developments crystallizing in Western international law today in the context of the reorganization of Western communities into bodies like the European Union (EU). The critical question being raised by lawyers and jurists in different countries, particularly in Western Europe, is whether the law regulating the EU and the authority exercised by the European Parliament has undermined or is going to deprive the European nation-states of their claimed sovereignty. One may also ask whether the new EU is, in a way, a revival of the erstwhile church state. This question becomes relevant in view of the striking similarities between the two such as common citizenship.
The British Parliament is already supposed to surrender or, at least, share some of its authority and power with the European Parliament; it has compromised the absolute and once acclaimed sovereignty of the British Parliament. This question is being discussed in legal circles around the globe. Answers have been given by British lawyers, emphasizing the sovereignty of British Parliament, despite the fact that they have conceded some of their authority to the European Parliament.
Such questions were discussed by Muslim jurists in the second and third centuries of Hijrah, when two or more administrations had come into existence under the common law of the Dar al-Islam and within the frontiers of the single territory of Islam. We can, to some extent, liken the Dar al-Islam of the third and the fourth centuries onwards with the present European Union, where citizenship has been made common to a large extent, and where many areas once restricted to nationals have been opened up to citizens of other countries, at the cost of the countries’ own identity and, to some extent, their sovereignty. By and large, with some differences, this was the situation and the nature of the relationship between the Dar al-Islam and the different Muslim administrations within it.
The science of siyar developed by the Muslim jurists in the second century and expanded by subsequent scholars also raised some issues that may not appear to be very pertinent now. However, they were very much relevant in those days. This happens to every living and vibrant law. In every legal tradition it is observed that, with the passage of time, some of its contents have become either obsolete or irrelevant to changing requirements. As the needs of the times change, an internal mechanism of the legal system works to exclude outdated issues from the law’s mainstream. This happened in respect of some issues in early Muslim international law. For example, questions related to the distribution of the spoils of war find a significant mention in almost all earlier writings of Muslim scholars, mostly because, in the early centuries, particularly the first two or three centuries, the Muslims did not have regular paid armies. Muslim armies consisted mostly of the volunteers who joined the war either to defend their country or to participate in a jihad and thereby obtain the Divine favor promised time and again in the Qur’an.
In this situation, it was very important for Muslim jurists to consider the question of how the spoils of war were to be distributed to the warriors and to the participants in the jihad. However, when the Muslim governments had regular armies maintained in different regions, the issue lost much of its significance.
Some other issues are also found in earlier works that do not have relevance today. However, a time might come when they become relevant again.
Certain features of Muslim international law distinguish it from the concepts of international laws in other traditions. First of all, Muslim international law is part and parcel of a comprehensive jurisprudential system. It is a comprehensive legal scheme, which is balanced, all-pervasive, and integrative, and which takes care of all possible legal situations in the life of the Muslim community and Muslim individuals. This scheme is anchored in human consideration, ethical values and spiritual foundations. The Islamic law of nations has never been an amoral legal system. It has always drawn its legitimacy from moral principles and its validity from religious foundations embodied in the Qur’an.
Islamic law has been, from the beginning, a multi-ethnic, multi-cultural legal system that provides a practical model and viable paradigm for a pluralistic society. It sought to create spiritual-moral unity in the diversity of human races and legal opinions. It also sought, at the same time, to maintain the diversity and cultural independence of different peoples and nations within the general framework of the unity of Islam. Like other parts of Islamic law, the Muslim international law was based on the Qur’anic concept of justice, which distinguishes between real justice and legal justice. The Shari’ah is perhaps the first legal system in human history that has created a distinction between legal justice, to be imparted by the state, its organs and machinery, and the real justice to be imparted by individuals. At the same time, it acknowledges the contractual foundation of international dealings and transactions.
The Qur’an is full of verses emphasizing the importance of fulfilling obligations. It requires the believers to fulfill their commitments and keep their promises. These Qur’anic injunctions were phrased by the Holy Prophet in a legal maxim. Muslims must abide by the terms and conditions to which they agree. In pursuance of this fundamental legal maxim, Muslim jurists laid down other principles, which have now been acknowledged by different legal traditions of the world and have entered the jurisprudence of all mankind. For example, meaning, “The treachery committed by the ambassador will be taken to be a treachery committed by the state.” The state sending the ambassador must, therefore, take the responsibility of the actions of the ambassador as long as he is serving as an ambassador.
Despite the rich contribution of Muslim international law to the regulation of international relations on sound moral foundations and despite the substantial literature produced by Muslim scholars on this subject from the second century onwards, it is painful to notice that many, if not all, leading and renowned Western scholars absolutely fail to recognize the legacy.
I recall being deeply impressed by Oppenheim’s seminal work, A Treaties on International Law, which I used to read in my student days with much care and respect. The scholarship of the author and the comprehensive nature of the book were awe-inspiring. However, it was a source of great dismay and disappointment to note that even this learned jurist had chosen to ignore the Muslim contribution to international law. Discussing the origins of international law, Oppenheim refers to Greek history, and then talks about the Romans. Afterwards, he takes a jump of more than one thousand years to the modem Western world. Not even a single line has been devoted to the contribution of Muslim scholars, even though their writings were presumably available to him through translations in German, Roman and French. Despite this availability of material, he decided not to make even a passing reference to the Muslim contribution to international law. Regarding the long period of one thousand years during which there was, according to him, no development of international law, he says there was no room and no need for any development. This is how he justifies, in a sentence, a millennium’s ‘gap’ in international law-making.
As the foregoing discussion has shown, the contribution of Muslim jurists to international law was not only highly developed and sophisticated for its own age, it remains relevant both as a source and as a base for further development today. Indeed, in many of its key principles, the international law developed by Muslims more than a millennium ago is closer to and more practically geared for achieving the modem age’s stated ideals of a tolerant and just international society. Revisiting this rich heritage is, therefore, a must, not only for Muslims but for scholars of law in all societies.
Muslims, particularly students of law in the Muslim world, would like to remind their Western friends that, in expanding the law of international dealings and developing new legal thought, regard should be given to the diversity of cultural backgrounds, social patterns, moral ideals and religious beliefs and aspirations that characterize the world community. A law by definition cannot ignore the aspirations and ideals of the people to whom it is to be applied. A law cannot survive if it does not take into cognizance or does not respond to the ground realities. The ground reality is that more than one fourth of the human population shares a distinct culture and a set of ideals and aspirations. Any system of law intended to be universal in its application must take into consideration the ideals and aspirations of one fourth of humanity. This is why the Charter of the International Court of Justice requires the Court to take into consideration the writings of responsible and important jurists in all legal traditions, not just the West’s. Whatever has been written on legal subjects in other leading human traditions and civilizations must be taken into notice before a question is decided. If nothing else, this should suffice to justify a new consideration of Muslim international law.
Islam and the contribution of Muslim jurists provide that missing link of a thousand years that has been ignored by Western scholars, either because of unavailability of material or due to some other considerations. Now, however, the material has become available through translations of important works in leading Western languages. No justification remains for the world’s scholars to ignore the contribution of hundreds, if not thousands, of the best legal minds in human history.
Mahmood Ahmad Ghazi
Source: Essays on Muslims and the Challenges of Globalisation, Institute of Policy Studies, Islamabad. Republished with permission.