Islamic International Law and States of the Islamic Milieu

It is important to keep in mind that Muslim-majority states—as members of the international system—are subject to influences of power and interest. Indeed, these states, regardless of their embeddedness in the Islamic legal tradition make their decisions in the world of strategy.

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PictureIslamic International Law and States of the Islamic Milieu

Classical international law is shaped by the Western legal doctrine.1 Yet, the Islamic legal tradition present in some form of fashion in states of the Islamic milieu, has historically embraced its own, unique and—to a degree distinctive—way of conceptualizing international law.2 Islamic international law, siyar, is a part of Islamic law.3 As Bassiouni writes, “International law, from the perspective of Muslim jurists, was simply another topic within the Islamic legal system, a fact that gives Islamic international law a monist character: it applied as part of an Islamic State’s domestic legal order, whether or not non-Muslim States accepted it as binding.”4 Siyar as a system of norms and rules developed relatively early owing to important pragmatic considerations. Simply put, Islamic collectivities were in need of legal regulations to conduct dealings with non-Muslim states and other entities. Consequently, Islamic scholars arduously worked to assemble wide-ranging manuals that addressed in detail the conduct of Muslim collectivities with outsiders. Aside from interactions between Muslim and non-Muslim collectivities, rules were constructed to regulate interactions with religious minority populations residing inside Islamic collectivities.5 In the process of amassing Islamic international law, scholars looked for its principles in Islam’s textual sources. Moreover, when that was not feasible, scholars relied on the process of analogical reasoning or resorted to established customary norms or practices.

One can understand Islamic international law as a system of norms that governs behavior of states representing the Islamic legal tradition as well as behavior of individuals in the international sphere. Scholars define this body of law in a variety of ways. Khadduri, for instance, refers to siyar as “the law governing the conduct of the Islamic State with other communities.”6 Bsoul writes that “siyar is the body of laws that concerns relations between Muslims and non-Muslims in times of peace and war, although the classical literature mostly deals with their relations within the confines of dār-al-Islām.”7 Hamidullah proposes that Islamic international law is “that Part of the law and custom of the land and treaty obligations which a Muslim de facto or de jure State observes in its dealings with other de facto or de jure States.”8 Al Ghunaimi notes that while “a large element in Muslim international law in increasingly conventional,” it is also crucial to take into consideration “the usul, sources of the Shari’ah, for primary evidence of the Muslim law of nations.”9 Al Ghunaimi also adds that Muslim international law can be understood as “the sum total of rules and practices which Islam ordains or tolerates in international relations.”10 To Fadel, “Islamic rules of international law are best understood as providing legal baselines that were to regulate the conduct of the emerging Islamic State in the absence of treaty commitments with non-Muslims, while at the same time enabling that state to enter into peaceful relations with non-Muslims.”11

In essence—and perhaps from a more historical perspective—it is informative to think of Islamic international law as a normative system that has developed as the counterpart of the Western concept of international law. As siyar continued to mature throughout time, it covered a wide range of topics pertaining to international aspects of state and human interactions. Similar to classical international law, Islamic international law regulates a variety of topics including treaty obligations, maritime exploration, and protection of diplomatic agents. Interestingly, the Islamic legal tradition has produced several extensive treatises on Islamic international law. For instance, Mohammed ibn al-Hasan al-Shaybani, a prominent Islamic jurist of the Hanafi school, penned the Kitab al-Siyar al-Kabir, or Introduction to the Law of Nations, at the end of the 8th century, long before the systematization of international law in Europe by Grotius and other Western scholars. It is important to remember that Hugo Grotius’s On the Law of War and Peace was published in 1625.

Unfortunately, when compared with other substantive areas of Islamic law, Islamic international law as a normative system has received relatively little scholarly attention.12 Consequently, from a systemic perspective, rules that govern state relations in the Islamic milieu frequently lack overarching coherence. Indeed, according to some, modern time efforts at compiling a unified, coherent body of contemporary Islamic international law are rather unlikely.13 Instead, the trend seems to be for the Islamic scholars to debate whether specific actions of Muslim-majority states are reconcilable with their own interpretation and understanding of the Islamic legal tradition.14 It seems that the Islamic milieu would benefit greatly if additional scholarly efforts led to more comprehensive treatments of Islamic international law. At the very least, it would be useful if general rules pertaining to modern global dealings of states within the Islamic milieu were given more serious scholarly consideration.

Speaking from a historical perspective, it is also important to emphasize that the introduction of the concepts of nation-state and that of state sovereignty posed a challenge to the Islamic legal tradition. Islamic international law and Islamic scholars—who derive the specific rules of the law—had to acculturate to the new realities of how international relations are conceptualized. Consequently, as in the times of Islam’s early development, there is an ongoing dialogue between Islamic law’s sources and modern interstate relations. This dialogue has been largely possible because of the evolving nature of the Islamic legal tradition. Indeed, it is the inherent dynamism embedded in the Islamic legal tradition that constitutes a vehicle for conversation between new situations that call for legal regulation and God’s revelations.

The Islamic legal tradition continues to provide an important context for domestic and international politics in the Islamic world. In several Muslim-majority societies, tenets of Islam reach deeply into the socio-economic, cultural and political fabric of the population. As a result, policymakers are frequently expected to consider the Islamic legal tradition—however embodied in the context of a particular society—as they engage with their domestic constituencies. Additionally, Islam may at times provide context for global politics. This is particularly the case for Muslim-majority countries where the presence of the Islamic legal tradition is particularly strong not only on the societal level, but also within the domestic legal system.

However, when one considers the influence of Islam on international relations, it is important to keep in mind that Muslim-majority states—as members of the international system—are subject to influences of power and interest. Indeed, these states, regardless of their embeddedness in the Islamic legal tradition make their decisions in the world of strategy. Muslim-majority states operate in the framework of classical international law, which is to provide standards of behavior for all states, regardless of their own domestic legal system, culture, and so on. It is therefore, crucial to understand the intricate web of rules, norms, and standards that Muslim-majority states operate in. The influence of the Islamic legal tradition on these states’ international relations occurs alongside multiple sources of influence. Yet, states of the Islamic milieu are somewhat unique in their rootedness in Islam. Such rootedness is at times deep. Sensibilities of the Islamic legal tradition—and its interaction with modern international law—to an extent mold Muslim-majority states’ global affairs. At times, precepts of international law are allowed to play the main role. However, at other times, traditions, norms, and the awareness of the Islamic legal tradition seem to overrule certain aspects of modern international law.

Endnotes

1. Bassiouni 2013, Powell 2015, 2016, 2018, Roberts 2017.

2. Though there exists one Islamic legal tradition, it gets expressed differently across the Islamic world (See, among others, Ahmed 2016). States of the Islamic milieu are not Islamic to the same degree or in the same way. Saudi Arabia, Iran, Jordan, Malaysia, etc.—though part of one Islamic legal tradition—differ in their interpretation of the Islamic legal tradition. Consequently, these states also differ in their attitudes toward modern international law. Additionally, the Islamic schools of jurisprudence (Shii, Sunni, Ibadi) constitute an important part of the legal landscape in the Islamic milieu.

3. Also see Al Ghunaimi 1968; al-Zuhili 2005; Bassiouni 2013; Fadel 2010; and Hamidullah 2001.

4, Bassiouni 2014, 158.

5. See Afsaruddin 2013.

6. Khadduri 1984, 164.

7. Bsoul 2008, 7.

8. Hamidullah 2012, 3. Also see al-Zuhili 2005.

9. Al Ghunaimi 1968, 95.

10. Al Ghunaimi 1968, 96.

11. Fadel 2010, par. 57.

12. See Bassiouni 2014 and 2015.

13. Fadel 2010.

14. See Fadel 2010.

References

Afsaruddin, Asma. 2013. The Siyar Laws of Aggression: Juridical re-interpretations of Qur’ānic Jihād and Their Contemporary implications for International Law. In Marie-Luisa Frick and Andreas Th. Müller, eds., Islam and International Law. Leiden, The Netherlands: Koninklijke Brill, pp. 46–63.

Ahmed, Shahab. 2016. What Is Islam? The Importance of Being Islamic. Princeton, NJ: Princeton University Press.

Al Ghunaimi, Mohammad Talaat. 1968. The Muslim Conception of International Law and the Western Approach. The Hague, the Netherlands: Martinus Nijhoff.

Al-Zuhili, Sheikh Wahbeh. 2005. “Islam and International Law.” International Review of the Red Cross 87(858): 269-283.

Bassiouni M. Cherif. 2014. The Shari'a and Islamic Criminal Justice in Time of War and Peace. New York: Cambridge University Press.

Bassiouni M. Cherif. 2015. Misunderstanding Islam on the Use of Violence. Houston Journal of International Law 37(3): 643-677.

Fadel, Mohammad. 2010. International Law, Regional Developments: Islam, par. 1-60 in Max Planck Encyclopedia of Public International Law. Oxford: Oxford University Press.

Hamidullah, Muhammad. 2012. The Muslim Conduct of State. Selangor: Malaysia: Islamic Book Trust.

Khadduri, Majid. 1984. The Islamic Conception of Justice. Baltimore, MD: The John Hopkins University Press.

Powell, Emilia Justyna. 2018. Islamic Law and International Law: Peaceful Resolution of Disputes. University

of Notre Dame, IN, USA, Book Manuscript.

Powell, Emilia Justyna. 2016. “Islamic Law States and the Authority of the International Court of Justice: Territorial Sovereignty and Diplomatic Immunity.” Law and Contemporary Problems, 79(1): 209–236.

Powell, Emilia Justyna. 2015. Islamic Law States and Peaceful Resolution of Territorial Disputes. International Organization, 69(4):777–807.

Roberts. Anthea. 2017. Is International Law International? Oxford: Oxford University Press.

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