International Law and Islamic Law

Mashood A. Baderin, MashoodA. Baderin

• Publisher: Routledge
• Year: 2017
• Print ISBN: 9780754627159
• eBook ISBN: 9781351562324
• Edition: 1
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

The relationship between modern international law and Islamic law has raised many theoretical and practical questions that cannot be ignored in the contemporary study and understanding of both international law and Islamic law. The significance and relevance of this relationship in both academic and practical terms, especially after the terrorist attacks of 11 September 2001, is now well understood. Recent international events in particular corroborate the need for a better understanding of the relationship between contemporary international law and Islamic law and how their interaction can be explored and improved to enhance modern international relations and international law. The articles reproduced in this volume examine the issues of General Principles of International Law, International Use of Force, International Humanitarian Law, International Terrorism, International Protection of Diplomats, International Environmental and Water Law, Universality of Human Rights, Women's Rights, Rights of the Child, Rights of Religious Minorities, and State Practice. The essays have been carefully selected to reflect, as much as possible, the different Islamic perspectives on each of these aspects of international law.

Part I
General Principles of International Law

[1]
Islam and the Modern Law of Nations

BY MAJID KHADDURI
School of Advanced International Studies, The Johns Hopkins University

Muslim states have shown in recent years eagerness to participate in international organizations and co-operate with other Powers to promote international peace and security. This is a significant phenomenon in the behavior of states whose traditional law of nations is so radically different from the modern law of nations and the principles implied in the United Nations Charter.

Islam, emerging in the seventh century of the Christian era as a conquering Power with world domination as its ultimate objective, refused to recognize legal systems other than its own. It was willing to enter into temporary peaceful relations with other states pending consummation of its world mission. The “temporary” period endured for centuries, and it proved itself more permanent than originally contemplated. During this period Islam gradually tried to accommodate itself to the new conditions of life, and its changing attitude helped to integrate the Muslim nations into the larger community of nations. Thus Islam provides a precedent for a prolonged period of hostile co-existence until accommodation has been achieved. It is proposed to discuss in this paper the fundamental concepts of the Muslim law of nations and the changes that have taken place which made possible the integration of Muslim states into the modern community of nations.

I

In contrast with the modern law of nations, which presupposes the existence of a family of nations composed of states enjoying sovereign rights and equality of status, the law of Islam recognizes no other nation than its own. Similar to the law of ancient Rome and the law of medieval Christendom, the law of Islam was based on the theory of a universal state. It assumed that mankind constituted one community, bound by one law and governed ultimately by one ruler. The aim of Islam was the proselytization of the whole of mankind. Islam’s law for the conduct of the state, accordingly, was the law of an imperial state which would recognize no equal status for the party (or parties) with whom it happened to fight or negotiate. It follows therefore that the binding force of such a law was not based on mutual consent or reciprocity, but on the state’s own interpretation of its political and religious interests, since Islam regarded its principles of morality and religion as superior to others.¹

Islam, probably more than any other religion, has the character of a jural system which regulates the life and thoughts of the believer according to an ideal set of rules regarded as the only correct and valid one. This system, unlike positive law, proceeded from a high divine source embodying God’s will and justice. As the expression of the will of God, the law of Islam (known as the Shari’a) is regarded as the most perfect, eternal and just, designed for all time and characterized by universal application to all men.² The law that regulates the conduct of the Islamic state is called the siyar, based on the same sources and having the same character as the shari’a. In theory the siyar was designed to be only a temporary institution, on the assumption that Islam was ultimately to correspond to the then known world, but failure to achieve this rendered the siyar a permanent and an integral part of the sacred law. This law was based on the Qur’anic revelations, Muhammadan tradition, analogy and consensus. These sources are not unlike the sources of the modern law of nations. The Qur’an represents the authoritative source of law; traditions are equivalent to custom; rules and principles expressed in treaties with non-Muslims fall in the category of agreement; and the opinions of the caliphs and jurists, based on legal deduction and analogy, may be regarded as reason.³

On the assumption that the aim of Islam was the whole of mankind, the world was sharply divided, under the law of Islam, into the dar al-Islam (abode or territory of Islam) and the dar al-harb (abode of war or enemy territory). The first corresponded to the territory under Islamic sovereignty. Its inhabitants were Muslims, by birth or conversion, and the people of the tolerated religions (Jews, Christians and Zoroastrians) who preferred to remain non-Muslims at the sacrifice of paying a poll tax.⁴ The dar al-harb consisted of all the states and communities outside the territory of Islam. Its inhabitants were called harbis or people of the territory of war.

In theory the dar al-Islam, was always at war with the dar-al-harb. The Muslims were under legal obligation to reduce the latter to Muslim rule in order to achieve Islam’s ultimate objective, namely, the enforcement of God’s law (the Shari’a) over the entire world. The instrument by which the Islamic state was to carry out that objective was called the jihad (popularly known as holy war), which was always just if waged against the infidels and the enemies of the faith. Thus the jihad was the Islamic bellum justum.⁵ But the jihad did not always mean war, since Islam’s objective might be achieved by peaceful as well as violent means. Thus the jihad may be regarded as an intensive religious propaganda which took the form of a continuous process of warfare, psychological and political, no less than strictly military. From a legal viewpoint it meant a permanent state of war between Islam and enemy territory. But this state of war should not be construed as actual hostilities; it was rather equivalent, in Western legal terminology, to non-recognition. This, however, did not imply, as in the modern law of nations, the impossibility of initiating negotiations and concluding treaties, for such actions were considered neither to imply equality between the two contracting parties nor necessarily to possess a permanent character. The nearest equivalent, perhaps, to this situation is the recognition of insurgency which neither precludes an intention of later de facto or de jure recognition nor approval of the regime under insurgency; it merely means that an authority to enforce the law in a certain territory is needed under certain circumstances.⁶ The Islamic state, in like manner, in entering into diplomatic negotiations with a non-Muslim state, did not intend to recognize that state, but merely to admit that a certain authority or authorities were needed in the dar al-harl so long as it remained beyond Muslim sovereignty.

Peace was the short interval when the jihad was in suspense. This period, according to the most liberal estimate, was not to last more than ten years. Permanent peace was to be achieved only when the dar al-harl) would have been reduced to non-existence and thus the raison d’étre of the jihad, except perhaps for combatting Islam’s internal enemies, would eventually have disappeared. The Islamic law of peace, which was originally designed to regulate the relations of Muslims with enemy territories during non-hostile periods, was in theory only a temporary institution until dar al-Islam should comprise the whole world. In practice, however, the jihad underwent certain changes in its meaning to suit the changing circumstances of life. Islam often made peace with the enemy, not always on its own terms. The jurists began to interpret the law with a view to justifying suspension of the jihad. The new conception of the jihad did not necessarily imply the abandonment of the jihad duty; it merely meant the entry of the obligation into a period of suspension. It assumed a dormant status, from which the head of state may revive it at any moment he deems necessary. In practice, however, the more habituated the Muslims became to a dormant jihad, the more reconciled they tended to be to the permanency of a law of peace.⁷

II

The rise of the Ottoman Empire (A.D. 1300) revived Muslim power and gave fresh impetus to the development of the Muslim law of nations. The Ottoman sultans followed the practice of issuing decrees, having the force of law, which supplied valuable additions to Islamic law and helped to accommodate it to the new circumstances of the Muslim world. This method of legislation enabled the sultans to regulate their relations with the Christian Powers with whom they had become closely connected after Islam’s expansion into Eastern Europe. When the Portuguese and Spanish explorers diverted European commerce from the Eastern Mediterrean by their new discoveries, the Ottoman sultans offered liberal terms in their commercial treaties with European states in order to revive commercial relations with Europe.⁸ The Treaty of Alliance between Sultan Sulayman the Magnificent and Francis I, King of France, signed in 1535, although not the first treaty that helped to attract Western merchants, was by far the most important.

The treaty of 1535 provided innovations in the relations between Christian Powers and Islam in early modern times.⁹ The preamble treated the King of France and his representatives as equals with Sultan Sulayman and his representatives. Article 1 provided for the establishment of a “valid and sure peace’’ (bonne et sure paix) between the Sultan and the King “during their lives,” and granted reciprocal rights to the subjects of each monarch in the territory of the other. The French were to enjoy exemption rights from the poll tax, the right to practice their religion, and the right of trial in their own consulates by their own law. The King of France was also given the right to

send to Constantinople or Pera or other places of this Empire a bailiff — just as at present he has a consul at Alexandria. The said bailiff and consul shall be received and...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• Acknowledgements
• Series Preface
• Introduction
• PART I GENERAL PRINCIPLES OF INTERNATIONAL LAW
• PART II INTERNATIONAL USE OF FORCE
• PART III INTERNATIONAL HUMANITARIAN LAW
• PART IV INTERNATIONAL TERRORISM
• PART V INTERNATIONAL PROTECTION OF DIPLOMATS
• PART VI INTERNATIONAL ENVIRONMENTAL AND WATER LAW
• PART VII UNIVERSALITY OF HUMAN RIGHTS
• PART VIII WOMEN’S RIGHTS
• PART IX RIGHTS OF THE CHILD
• PART X RIGHTS OF RELIGIOUS MINORITIES
• PART XI STATE PRACTICE
• Name Index