See discussions, stats, and author profiles for this publication at: https://www.researchgate.

net/publication/228229804

13 - The Islamic Law of Nations and its Place in the History of International Law

Chapter  in  SSRN Electronic Journal · October 2011

DOI: 10.2139/ssrn.1941775

CITATIONS READS
3 1,956

1 author:

Jean Allain
Monash University (Australia)
132 PUBLICATIONS   667 CITATIONS   

SEE PROFILE

Some of the authors of this publication are also working on these related projects:

Human Exploitation in Domestic Legislation View project

Business of modern slavery View project

All content following this page was uploaded by Jean Allain on 24 October 2017.

The user has requested enhancement of the downloaded file.

 Acculturation through the Middle Ages:
The Islamic Law of Nations and its place in the History of International Law

Jean Allain∗

Lassa Oppenheim was quoted with authority as late as 1948 stating that “international law as
a law between sovereign and equal states based on the common consent of those states is a
product of modern Christian civilization, and may be said to be about four hundred year
old”.1 Such a statement might have held up to scrutiny in the early years of the United
Nations organisation, which consisted of only 58 Members States in that year and had yet to
go through the decolonisation process. The last sixty years, by contrast, have seen
membership of the United Nations grow more than three-fold to 192; and have taken the
State system, which was comprised in the main of European States and outpost of its
progeny, to one which is truly world-wide. As a result might one not say that international
law is a law between sovereign and equal states, which has only become full function with
the end of the decolonisation process? Can one declare that international law, rightly
understood as a State system including all peoples of the world, is barely twenty years old?

International law, as ‘a product of modern Christian civilization’, only gains traction with
the age of discovery and the European colonial venture which lasted until European States
looked to accommodate non-Christian States from the Treaty of Peace of 1856 settling the
Crimean War onwards, via the medium of the construct of ‘civilisation’. The year after the
publication of the seventh edition of Oppenheim’s International Law, the United Nations
International Law Commission quietly decided to “refrain from using the expression
‘civilized countries’.2 More than sixty years after the first meeting of the International Law
Commission it is clear that it, through its codification of international law – including
framework treaties in such areas as the law of treaties, consular and diplomatic relations, and

∗
Reader, School of Law, Queen’s University, Belfast; Extraordinary Lecturer, Centre for Human Rights,
Faculty of Law, University of Pretoria, South Africa.
1
Hersch Lauterpacht (ed), Lassa Oppenheim, International Law: A Treatise, 1948. Some 45 years later, the
leading French text spoke of a “total rupture” in the evolution of international law as between Antiquity and the
Age of Discovery; noting that “rare are the authors who would espouse a different opinion”; see Patrick Dailler
and Alain Pellet’s Droit International Public, 1994, p. 45.
2
United Nations, International Law Commission, Yearbook of the International Law Commission 1949,
1956, p. 170.

Electronic copy available at: http://ssrn.com/abstract=1941775

the law of the sea – allowed newly independent States the opportunity to participate in the
progressive development of international law, and thus developed international law to
become truly universal in scope and application.

That said, it must be acknowledged that basic tenets of international law which hold today
are grounded in the European experience of not only 1648 Peace of Westphalia but also the
age of discovery inaugurated by the voyages of Columbus and de Gama. But it can hardly be
maintained in the twenty-first century that the Spanish School of International Law, with the
likes of Francisco de Victoria and Francisco Suárez, having lived in a Spain and been of the
generation which witnessed the fall of Granada in 1492 and the end of Islamic rule in
Andalusia, conjured international law into existence. As the previous chapter on
‘International Law Antiquity’ has demonstrated, many of the elements of state practice
regarding diplomacy (the conduct of embassies), sanctity of alliances, and the limits of
warfare were already in evidence more than a millennium before the ‘fathers of international
law’ made their imprints on the subject.3

As part of a Research Handbook, what this chapter seeks to achieve is to draw attention to
an important phenomena which transpired during millennium between Antiquity and the Age
of Discovery, that is: the creation and sustained existence of a self-encompassing, system of
international law meant to govern relations of the Islamic world and its ‘other’. The chapter
demonstrates that the Islamic law of nations took from its predecessors and, through
acculturation, gave to those who came after it, so that the echoes of the Siyar, the Islamic law
of nations, are to be recognised as having been heard in the development of the Christian law
of nations continuing through to contemporary international law. What clearly emerges from
this study is that much research needs to be undertaken to understand the Islamic law of
nations which played out during the Middle Ages and its contemporary relevance both
historically and normatively.

The Historiography and the gap of International Law through Middle Ages

3
Note the comment by Muhammad Hamidullah, Muslim Conduct of State, 1968, p. 63: “Speaking of [the
history of international law], writers habitually begin with the Greek City-States, describe the Roman period as
immediately following, and then all of a sudden talk of modern times, neglecting the gap of almost a thousand
years that intervenes and asserting that during the Middle Ages: [here quoting Oppenheim’s 1928, 4th edition of
International Law] ‘For an International Law there was ... no room and no need’”.

Electronic copy available at: http://ssrn.com/abstract=1941775

To date, much of what we know about international law in the Middle Ages emerges within
an Oppenheim-esque paradigm which focuses on “the contribution of the medieval canon
lawyers to the formation of international law”, taking its lead from the “pioneering work of
Ernest Nys during the last two decades of the nineteenth century”.4 In considering the
historiography of international law focused on the Middle Ages, Professor Emeritus James
Muldoon of Rutgers University noted that Nys, along with Vanderpol and Holland,
“recognized that the medieval canonists did make a contribution, a minor one perhaps but a
real one nevertheless, to the tradition which culminated with the publication of Grotius’ De
jure belli ac pacis”. Though Muldoon adds: “Not being primarily interested in the canonists,
however, none of these scholars clearly distinguished the work of the canonists from that of
theologians and philosophers”.5 While these – in Muldoon’s words – pioneers in the study of
pre-Grotian international law pointed to areas that required further research, the very study of
the history of international law in the early twentieth century was side-tracked by the work of
James Brown Scott who, as general editor, produced the Classics of International Law series
published by the Carnegie Endowment for Peace. As a result a schism developed amongst
the proponents of the Protestant Grotius as the ‘father of international law’, and Scott’s
assertion that it was in fact the Catholic theologians of the Spanish School of International
law – primarily Francisco de Victoria – who should wear the mantle of the originators of
international law.

This sterile debate deflected attention away from considerations of international law
during the Middle Ages in favour of focus being placed on Christian sectarianism of the
sixteenth and seventeenth centuries. As Muldoon relates, the “overall effect of James Brown
Scott’s work was to block serious examination of the pre-Grotian development of
international law and relations”.6 For Muldoon, the likes of Regout, Moreau-Rebel, and
Belch rescue the pre-Grotian era by emphasising that the development of international law
during the Middle Ages should be understood in light of “the notion of a universal society
comprising all men”. For Pope Innocent IV in the thirteenth century, accommodation with
non-Christians (‘infidels’) had to transpire. If not, then the view that “legitimate power could
4
James Muldoon, “The Contribution of Medieval Canon Lawyers to the Formation of International Law”,
Traditio: Studies in Ancient and Medieval History, Thought, and Religion, Vol. 28, 1972, p. 483. Note also
James Muldoon, Canon Law, the Explansion of Europe, and World Order, 2009.
5
Id., p. 486. Of interest may be Theodor Meron, Henry’s War and Shakespeare’s Laws: Perspectives on the
Law of War in the Later Middle Ages, 1993.
6
Id., p. 493.

3
exist only in the hands of Christians prevailed” and this would result in “no international law
or international relations”. With these considerations in mind, James Muldoon set out a
research agenda which is worth considering. He noted, “it might be better, at this stage of
research, to assume that the writers of canonistic tradition from Innocent IV to Vitoria
represent various abortive attempts to create from the canonistic elements of a rudimentary
international law”. Muldoon noted that each of these writers “share one important
characteristic which supports this view. Each man was personally interested in European
contacts with infidel societies”.7

For Pope Innocent IV, contact with infidels was a reality spurn from the crusades,
wherein it had previously been argued that Christians possessed a right of dominium overall
and thus the right to conquer all before them. By contrast Innocent IV argued that the
“legitimacy of the crusades rested on the fact that the Muslims had taken lands from
Christians unjustly and so Christians had a right to reclaim them”. Where Muslim lands had
not been take from Christians, it was to be “safe from Christian attack”. As Muldoon notes in
a more recent piece, the importance of Innocent IV was not restricted to theorising about the
relationship between Christians and its ‘other’; as pope, “he dispatched the first mission to
Mongols in an attempt to find some basis of peaceful relations with the Mongol armies that
were devastating eastern Europe”.8 The significance of the approach of Innocent IV is that
the debate between those that advocated and those that opposed dominium in relation to
‘infidels’ would be at the heart of debates which would transpire during contact and conquest
of the New World and beyond during the sixteenth and seventeenth centuries. The
legitimacy of conquest, wrapped up in the concept of dominium necessitated the
“Requerimento, a document that the conquistadores in the Americas were expected to read to
the Indians before attacking them”; for fear of being heretical in denying the dominium of the
native population.9 Thus, the consideration of Vitoria and the Spanish School (and not to
forget Las Casas and Sepúlveda) owe “a great debt to the work of the canonist” in shaping
the debates which would give rise to what in Europe has traditionally been recognised as
advent of international law.10

7
Id., p. 497.
8
James Muldoon, “Medieval Canon Law and the Formation of International Law”, Zeitschrift (der Savigny-
Stiftung) für Rechtsgeschichte: Kanonistische Abteilung, Vol. 81, 1995, p. 69.
9
Id., p. 73.
10
Id., p. 68.

4
 Yet, it should be recognised that the history of international law has been written by the
victors. Despite this, the decolonisation period and the advent of a international society,
worth of that name, means that new voices are appearing. Most obviously that of TWAIL:
the Third World Approach to International Law. Where the Middle Ages are concerned, a
fruitful area of research may well be that of ‘European contacts with infidel societies’; and
more so the interaction between the Medieval world of both Western and Eastern Christianity
with that of the Muslim world and vice-versa. As, the study of history of international law
during the millennium which was the Middle Ages must first and foremost centre itself on the
Islamic law of nations which was an effective system which materialised and sustained itself
through this time period.

The Islamic Law of Nations and Muhammad Shaybani’s Siyar

The life of the Prophet Muhammad (570-632 CE) was the catalyst which precipitated an Arab
conquest “whose scale was unparalleled in world history” and which, by the early eighth
century, “encompassed the largest empire the world had yet seen”.11 Islam was, for the
millennium under consideration “the greatest and most influential of the world’s monotheistic
religions”, constituting the leading civilisation of the epoch, and included “many of the
world’s great cities and some of its most productive agriculture”.12 At the height of those
conquests, a number of Islamic jurists had devoted themselves to the law of nations as a
separate field of legal inquiry. Thus, some eight hundred years before Grotius brought
together the various tenets of European public law qua Christian law of nations into one text,
an Islamic jurist, Muhammad ibn al- Hasan al-Shaybani, had done the same with regard to
the Islamic law of nations. In the writings of Shayabani we have an acknowledgement of
what must be recognised as a self-encompassing regime of international law which like its
European counterpart, some eight hundred years later, had aspirations of universal
application.

11
Clive Ponting, World History: A New Perspective, 2000, pp. 305-306.
12
Id., p. 301.

5
 Muhammad Shaybani was born in Wasit, Iraq, in 750 CE.13 He grew up in Kufa, Iraq, a
city which, during Shaybani’s life-time, played a fundamental role in the development of
Sharia – or Islamic law – as it was from here that Abu Hanifi developed what would become
his eponymous school of jurisprudence which, along with the Shafi, Maliki, and Hanbali
Schools, form the core of legal thinking within Sunni Islam. Having studied under Hanifi
until his mid-teens, Shaybani would then become a disciple of Abu Yusuf, before embarking
on his noteworthy career as a legal scholar and, for a short period of time, judge.

The Islamic law of nations, or Siyar, developed as a sub-field of Sharia worthy of

independent study only after Shaybani’s fundamental writing brought it to the fore. Although
Shaybani’s magnum opus, the Kitab al-Siyar al-Kabir, is lost to history; its memory lives on
in two surviving commentaries written some three hundred and five hundred years after its
first appearance.14 As for Shaybani’s writings, what survives today is his Kitab as-Asl, a text
translated into English by Majid Khadduri in 1966.15 This earlier consideration of the Siyar
by Shaybani is, in actuality, a text which re-enacts a discourse between Abu Yusuf and his
pupil, wherein the opinions of first and foremost, Abu Hanifi, then Abu Yusuf, and then
Muhammad Shaybani on the law of nations is set out.

The Siyar, like contemporary international law, was meant to be universal in scope;
though it sought to create a Pax Islamica. As set out by Shaybani, his Siyar was “the product
of Islamic juridical speculation at the height of Islamic power”, the so-called Islamic classical
period of the Abbasid dynasty.16 As such, Shaybani’s approach to the Siyar is a ninth-
century vision of a perpetual peace once the on-going Arab conquest brought all of humanity
under the banner of Islam. The Siyar is very much an self-encompassing system of the law of
nations, premised on a fundamental dichotomy between those within the territorial sphere of
Islam and those yet to be incorporated. Whereas the Christian law of nations until 1856 was
in essence interested in the common public law of Europe, a millennium before saw the Siyar
set out a method and understanding of action for the nation of Islam with those nations
beyond its borders.

13
Or, based on the Islamic Calendar: 132 AH; re: Anno Hegirae, ie: the emigration of Muhammad from
Mecca to Medina known in Arabic as the Hijri.
14
Commentaries by Muhammad bin Ahmad Al-Sarakhsi (10th century CE) and al-Jamal al-Husayri (13th
century CE).
15
See Majid Khadduri, The Islamic Law of Nations Shaybani’s Siyar, 1966. Note that Khadduri translated
from a manuscript dated 1240CE/638 AH.
16
Majid Khadduri, The Islamic Law of Nations Shaybani’s Siyar, 1966, 19.

6
 Emanating from a starting point which was the proselytisation of non-believers, the Siyar
was not based on reciprocity or consent, but was meant to be imposed on certain non-
Muslims, both outside the abode of Islam, and within, with regard to non-Islamic religious
communities. Despite schisms developing within Islam during its early years, most notably
between Sunni and Shia, there was recognition that Islam was “not merely a set of religious
ideas and practice but also a political community” and, as such, conceptually does not venture
too far from the modern conception of the ‘State’.17 The Islamic Caliphate, – that territory
where Islamic authority was sovereign – was known in Siyarian Islamic theory as dar al-
Islam, literally the abode of Islam. This was juxtaposed to dar al-harb, the abode of war, –
another concept developed by Islamic jurists – which in combination formed the fundamental
dichotomy of the Siyar. Unlike the division which existed in international legal scholarship
up until very recently as between volumes devoted to war and to peace, the very essence of
the Siyar was more than academic, it was the pivot upon which the Islamic law of nations
functioned.

An example of incorporation through agreement rather than military conquest transpired

in 638CE, when the second successor to the Prophet Muhammad, Umar ibh al-Khattab,
accepted the surrender of the city of Jerusalem on the following terms:

In the name of God, the Merciful, the Compassionate. This is the assurance of safety [aman] which the
servant of God Umar, the Commander of the Faithful, has given to the people of Jerusalem.. He has given
them an assurance of safety for themselves, for their property, their churches, their crosses, the sick and
healthy of the city and for all the rituals which belong to their religion. Their churches will not be inhabited
by Muslims and will not be destroyed. Neither they, nor the land on which they stand, nor their cross, nor
their property will be damaged. They will not be forcibly converted. [...].

The people of Jerusalem must pay the taxes [jizya] like the people of other cities and must expel the
Byzantines and the robbers. Those of the people of Jerusalem who want to leave with the Byzantines, take
their property and abandon their churches and crosses will be safe until they reach their place of refuge. [...]

If they pay their taxes according to their obligations, then the conditions laid out in this letter are under the
covenant of God, are the responsibility of His Prophet, of the caliphs and of the faithful.18

17
Id., p. 10.
18
Hugh Kennedy, The Great Arab Conquest: How the Spread of Islam changed the World we Live in, 2007,
pp. 91-92. Note that Kennedy raises the spectre of the authenticity of the text as emanating from the hand of the

7
 Where the Siyar concerned itself with dar al-Islam, was with regard to the management
of dhimmis, so-called ‘People of the Book’, those religious communities which possessed
scriptures and, finding themselves within the abode of Islam, had accepted its sovereignty.
Unlike Muslims who benefited from full citizenship rights within the abode of Islam,
dhimmis status entitled individuals to the protection of their person and property, and rights
related to professing their religions, though not in a way which might offend Muslims.
Dhimmis were required to wear distinctive dress; and were precluded from building new
houses of worship, riding horses or bearing arms. The incorporation of dhimmis into dar al-
Islam was predicated on submission to Muslim sovereignty. Though, for preferring to
maintain their own religion at the expense of converting to Islam, dhimmis were required to
pay the jizya: an annual protection tax levied against each able bodied man of military age as
compensation for their exclusion from military service.19

Where foreigners were concerned, entry into dar al-Islam was possible, based on the
issuing of a safe-conduct (an aman), either by a representative of the State, these being issued
to visiting emissaries so as to facilitate negotiations; or by any Muslim within dar al-Islam
for, what in essence was, private ends. An aman was meant to last for one year, as beyond
that, the annual poll tax would have to be paid and the foreigner then would become a
dhimmis. Such safe-conducts provided for the protection of one’s family and property during
a sojourn and allowed for the possibility of commerce and trade. When foreigners entered
Islamic territory from dar al-harb, the abode of war, the requirement of a safe-conduct was
essential as failing this, the penalty was death unless one converted to Islam. Marcel Boisard
argues that the “very liberal Muslim legislation facilitated the passage of foreigners across the
Muslim world and that of Muslims to the outside”. This, in turn, allowed for trade links to
establish themselves thus creating the “embryo of an international commercial law”.20

Where the law of treaties is concern, the Arthur Nussbaum, in his seminal A Concise
History of the Law of Nations, writes, this “forms an impressive part of Islamic doctrine”.21
The first successor to Prophet Muhammad, Abu Bekr, gave the following orders to his

Caliph Umar or emerging as a demonstration as to what, in contemporary terms, might be considered ‘best
practice’ as to what should be included in such agreements.
19
See generally Majid Khadduri, War and Peace in the Law of Islam, 1955, pp. 175-201.
20
Marcel Boisard, “On the Probable Influence of Islam on Western Public and International Law”,
International Journal of Middle East Studies, Vol. 11, 1980, 432.
21
Arthur Nussbaum, A Concise History of the Law of Nations,1962, p. 53.

8
soldiers: “Let there be no perfidy, no falsehood in your treaties with the enemy, be faithful in
all things, proving yourselves upright and noble and maintaining your word and promises”.
As will be noted Shaybani’s own writing to be considered momentarily, abrogation of treaties
had to preceded by notice being given. “On the whole”, Nussbaum writes, “the record of
Islam is definitely good on this score. The crusaders, although aggressors, proceeded on the
principle that no faith need be kept with infidels. Says the noted English historian, Lane-
Poole, with an eye to the crusaders, “the virtues of civilization were all on the side of the
Saracens [re: Muslims]”.22

Turning now to give voice to Shaybani’s text, Kitab as-Asl; it will be recalled that the text
reads as a conversation between Shaybani and his mentor Abu Yusuf. The dichotomy
between dar al-Islam and dar al-harb is manifest in this passage where Shaybani asks:

If some of the inhabitants of the territory of war enter [dar al-Islam] under an aman for trade and some of
them were indebted to others, do you think that any of them would be held liable for a debt contracted in the
dar al-harb.

[Abu Yusuf] replied: No.

I asked: Why?

He replied: Because they entered dar al-Islam under an aman, and any arrangement that they may have
entered into in the dar al-harb is none of our concern.23

Khadduri, the English-language translator of Shaybani’s Siyar, notes that the aman “served a
useful purpose for both Muslims and non-Muslims in making possible the establishment of
temporary peace relations”; as the normal state of affairs under the Islamic law of nations was
perpetual war as between the territories of dar al-Islam and dar al-harb.

As the vary basis of the Islamic law of nations, as first set out by Shaybani in the seventh
century was the goal of perpetual peace through the incorporation of humanity into dar al-
Islam. The regulation of foreigners and dhimmis within the abode of Islam was secondary to
the ever-expanding Islamic State at the expense of its neighbours. It was here with in the

22
Id., pp. 53 and 54.
23
Majid Khadduri, The Islamic Law of Nations Shaybani’s Siyar, 1966, p. 171.

9
abode of war, dar al-harb, that a permanent state of war existed. This took place under the
mantle of jihad, the obligation during this era of Islamic expansion, to take the war to the
enemy as a means of incorporating more territory into dar al-Islam, if those within that
territory failed to convert or submit by becoming dhimmis.24 This ‘lesser’ jihad was
predicated on converting pagans to muslims by force if necessary, but through persuasion if
possible; and differs from the ‘greater’ jihad, the Quranic imperative of a spiritual inner
struggle against one’s demons. For Khadduri, the lesser “jihad was therefore employed as an
instrument of both the universalization of religion and the establishment of an imperial world
state”.25

Jihad, as a war of proselytisation, was incumbent on all able-bodied men and served to
both provided a unifying basis and rallying point for an ever-growing Muslim community;
and shifted the battleground from Arab inter-communal and tribal warfare during the pre-
Islamic era, towards the outside world as a means of propagating the faith. A type of
Hobbesian ‘state of nature’ existed during the expansionist periods as those within dar al-
Islam did not recognise any capacity to interact as equals with foreign powers. The
dichotomy was such that you were ‘either with us or against us’; that the precepts of Islam
were that foreigners failed to meet the religo-ethical standards required to be deemed equal.
Shaybani’s Kitab as-Asl deals in large part with conduct of hostiles and the spoils of war.
Here Abu Yusuf in speaking to Shaybani, relates the thoughts of the leader of the Hanifi
School of jurisprudence, Abu Hanifi, as to these issues in general, Shaybani asks:

If the army attacks the territory of war and it is a territory that has received a invitation to accept Islam, it is
commendable if the arm renews the invitation, but if it fails to do so it is not wrong. The army may launch
the attack [on the enemy] by night or by day and it is permissible to burn [the enemy] fortifications with fire
or to inundate them with water. If [the army] capture any spoils of war, it should not be divided up in the
enemy territory until [Muslims] have brought it to a place of security and removed it to the territory of
Islam.

Abu Yusuf said: I asked Abu Hanifi [his opinion] concerning the food and fodder that may be found in the
spoil and whether a warrior in need may take from that spoil [before division] any of the food for himself
and fodder for his mount.

24
See generally, Shaheen Sardar Ali and Javaid Rehman, “The Concept of Jihad in Islamic International
Law”, Journal of Conflict and Security, Vol. 10, 2005, pp. 321-343. For a history of the reinvigoration of jihad
from the 19th century onwards , see Stephen Neff, War and the Law of Nations, 2005, pp. 378-382.
25
Majid Khadduri, War and Peace in the Law of Islam, 1955, p. 51.

10
 He [Abu Hanifi] replied: there is no harm in all that.26

With regard to the spoils of war, Shaybani seeks to deal with the difficult cases:

I ask: In dividing the spoil, how much, do you think, should be given to a horse-rider and how much to a
foot-warrior?

[Abu Yusuf] replied: The horse-rider should be given two shares [one for the mount and one for himself]
and the foot-warrior one. [...]

I asked: Why do you think that the horse-rider should be given two shares and the foot-warrior one?

He replied: Because it has been related to us that this was the practice of [the Caliph Omar bin al-Khattab].
This was also the opinion of Abu Hanifi. [...]

I asked; If a man entered the territory of war as a mounted warrior with the army and if his horse died of
exhaustion or was hamstrung, so that when the spoil as taken to a place of security [dar al-Islam] he was a
foot-warrior – though it was recorded in the [army list] that he had a horse – or if he had brought a horse
before entering the territory of war and it died of exhaustion in the dar [al-Islam], should he be allotted the
shar of a horse-rider?

He replied: Yes.27

As originally conceived the perpetual war as between dar al-Islam and dar al-harb; had to
give way to accommodation as the early success of Arab conquest failed to manifest itself
into the universalisation of Islam. Working within the Islamic binary system of international
relations, accommodation was manifest in peace treaties which suspended hostilities for, at
most, ten years and thus deemed the non-Islamic party to the agreement to be temporarily
part of dar al-Islam.28 More than anything peace treaties from the Islamic perspective were
temporary by their very nature, meant to suspend war, in essence, to allow a regrouping

26
Id., p. 96.
27
Id., p. 107.
28
Note that according to some (though minority of) classic Islamic jurists the possibility existed of a third
territorial situation: dar al-ahd (territory of covenant) or dar al-sulh (territory or peaceful arrangement) wherein
by treaty annual tributes were paid in exchange for recognition, but this territory was to be considered as
independent from dar al-Islam. Note also the granting of neural status to Ethiopia as being “voluntarily
declared to be outside of the bounds of [Islam’s] area of expansion”. Majid Khadduri, War and Peace in the
Law of Islam, 1955, p. 258.

11
before a state of war would once more become the norm. Here Shaybani is interested in the
possibility of abrogating a peace treaty, as he asks:

If some of the inhabitants of the territory of war asked the Muslims to make peace with them for a specified
number of years without paying tribute, do you think that the Muslims should grant the request

He [Abu Yusuf] replied: Yes, provided the Imam has considered the situation and had found that the
inhabitants of the territory of war are too strong for the Muslims to prevail against them and it would be
better for the Muslims to make peace with them

I asked: If (the Imam) made peace with them and found upon reconsideration it was disadvantageous for
Muslims since it was made without any tribute being paid to him, can he give notice, abrogate the peace
agreement, and attack them?

He [Abu Yusuf] replied: Yes.29

Acculturation, Accommodation and the Echoes of the Siyar

It must be emphasised that Shaybani’s exposition of an Islamic Law of Nations in the Siyar
was written during the classical period of Islam, when very little thought was being given to
other polities, as the Arab conquest, continuing as it was unabated, was focused on
incorporating new territories and its populations. Yet, as a recent study by Hassan Khalilieh
shows, by the eleventh century this was no longer possible, instead accommodation was
required, though acculturation transpired. As Khalilieh notes:

It is a truism that the formulation of international law arises from confrontation of alien cultures and their
struggle to forge common principles with which to govern interactions between their peoples. In the cases
where one culture subjugates another and institutes its legal system in place of its predecessor’s, some
degree of assimilation of the legal practices and customs of the subjugated culture inevitably occurs and
establishes its contribution to the ongoing development of the jurisprudence of the region over which it
ruled.30

29
Majid Khadduri, The Islamic Law of Nations Shaybani’s Siyar, 1966, pp. 154-155
30
Hassan Khalilieh, Admiralty and Maritime Laws in the Mediterranean Sea (ca. 800-1050): The Kitab Akriyat
al-Sufun vis-à-vis the Nomos Rodioan Nautikos, 2006, p. xi.

12
In Kalilieh’s consideration of the recently discovered Treatise concerning the Leasing of
Ships and the Claims between (Contracting) Parties by Muhammad Ibn Umar written in the
tenth century, he juxtaposes it against the contemporaneous Rhodian Maritime Law of the
Byzantine Empire by saying that “it is unconvincing to take for granted that medieval
maritime laws owed their origins to Roman law”.31

In his study, Khalilieh considers treatises which are not so much about the governing of
the Mediterranean sea in the sense of the law of the sea, but rather about private maritime
commercial law. What Khalilieh shows is that those Christians who were incorporated into
dar al-Islam of the Southern Mediterranean as dhimmis “preserved the maritime laws
instituted in the [Justinian] Digest, as well as local customs, for over a century”. However,
with the consolidation of Islam and its Schools of jurisprudence “from the eighth century
onwards, many canonical regulations and practices were ‘Islamicized’”.32 Khalilieh’s
explanation of this process is then given over to the great Islamic historian, Ibn Khaldun:

The condition of the world and of nations, their customs and sects, do not persist in the same form or in a
constant manner. […] Such is the case with individuals, times and cities, and it likewise happens in
connection with regions and districts, periods and dynasties. … The new power, in turn, is taken over by
another dynasty and customs are further mixed with those of the new dynasty. More discrepancies come in,
so that the contrast between the new dynasty and the first one is much greater than between the second and
the first one. Gradual increase in the degree of discrepancy continues. The eventual result as there is this
continued succession of different races to royal authority and government, changes in customs and
institutions will not cease to occur. 33

Although limited evidence exists, Marcel Boisard’s tentative consideration of the

“probable influence” of Islam on international law speaks to acknowledging that
acculturation must have transpired over the near millennium of dominance which the Arab
conquest maintained. “It appears impossible, in fact”, Boisard writes,

that the Spanish canon scholars (read: Vitoria and Suárez), and Grotius who succeeded them, should not
have borrowed anything from the Muslim civilisation whose power in the Mediterranean maintained itself
until the end of the sixteenth century. In the field of international relations, we can imagine that there was a

31
Id., p. 256.
32
Id., p. 250.
33
Id., p. 253. See also J. Dawood (ed.), Ibn Khaldun: The Mugaddimah, (Franz Rosenthal translator), 1989,
p. 25-26.

13
 real contribution, since ‘international law’ was an integral part of Muslim legal science and must not have
been unknown to European universities.34

Boisard goes further by pointing to the eleventh century Las Siete Partidas of Alphonse X of
Castile – the first codification of law in Europe – and its consideration of armed conflict
“both in form and content as a direct adaption of Muslim law”.35

Even over the period of Shaybani’s lifetime, the rise of Islam had to accommodate itself
to situations where it bumped up against other polities which could defend themselves against
attempts to impose dar al-Islam. As the tide of conquest turned, and dar al-Islam came under
threat throughout the eleventh to thirteenth centuries by Christian Crusaders and Tartar and
Mongolian invaders, the very nature of the Islamic law of nations was reinterpreted from
being offensive in nature to defensive by necessity. Thus, as Ann Elizabeth Mayer relates,
Muslim states “had to begin to adjust their ambitions and practice to the realities of their
declining prowess and to enter into permanent peace treaties”.36 This transpired at a time
when the Islamic Empire, having grown so vast, started to fragment into its component parts;
while Cordoba in Spain would govern Andalusia, a more fundamental schism developed
between Ottoman Turks (Sunni Islam) and Persia where Shia Islam was the basis of proto-
state formation. The Shafi School of jurisprudence, for its part, recognised the establishment
of a category between dar al-Islam and dar al-harb, that of dar al-sulh where peaceful
coexistence based on “armistice, diplomatic ties, or peace agreements” transpired. As Onder
Bakircioglu notes, dar al-sulh, “despite its controversial and impermanent status, was
adopted in accordance with the Muslim realisation once against that the obligation military
jihad could not be maintained actively against all external enemies who here much stronger
than those faced during the rise of the Islamic faith”.37 It might be noted that the binary

34
Marcel Boisard, “On the Probable Influence of Islam on Western Public and International Law”,
International Journal of Middle East Studies, Vol. 11, 1980, p. 441.
35
Here Boisard makes reference to a rather obscure text entitled the Villayet. See Boisard p.435; and repeated
in Frederic Megret, “A Cautionary Tale from the Crusades? War and Prisoners in Conditions of Normative
Incommensurability”, Sibylle Scheipers, (ed), Prisoners in War, 2008, p. 31, thought this time as ‘Villiyet’.
Firmer ground may be found in Arthur Nussbaum, A Concise History of the Law of Nations, 1962, p. 52; where
Nussbaum states: “Booty had to be delivered to [Islamic] authorities for distribution, the treasury keeping one-
fifth of it – a rule adopted, surprisingly enough, by the Siete Partidas of Alphonse X of Castile”.
36
Ann Elizabeth Mayer, “War and Peace in the Islamic Tradition and International Law”, in John Kelsay and
James Turner Johnson (eds.), Just War and Jihad: Historical and Theoritical Perpectives on War and Peace in
Western and Islamic Traditions, 1991, p. 196. Note also Ahmed El-Kosheri, “History of the Law of Nations:
Regional Developments: Islam”, Encyclopedia of Public International Law, Vol. 2, 1995, p. 810. John Kelsay,
Arguing the Just War in Islam, 2007.
37
Onder Bakircioglu, “A Socio-Legal Analysis of the Concept of Jihad”, International and Comparative Law
Quarterly, Vol. 59, 2010, p. 21.

14
nature of dar al-Islam and dar al-harb provided for the possibility of being excluded from the
abode of war, through a recognition of neutrality in the Islamic war of conquest. Ethiopia for
one, so near the epicentre of Islam, was immune from military jihad in recognition of the
sanctuary it offered to early followers of the Prophet Muhammad.38 By the fourteenth
century, the ability to sustain an offensive jihad was no longer sustainable, in its wake,
Islamic jurists such as Ibn Taymiya reconstituted jihad as “a defensive war against
unbelievers whenever they threatened Islam”.39

Where acculturation may be most evident as between Christian Europe and Islam is during
the Crusades wherein Christian forces were required to interact with Islamic forces in the
carrying out of protracted warfare. Javaid Rehman notes that in Islamic law from its onset
developed “clear rules relating, inter alia, to, notice of commencement of hostilities, effects
of war, methods of warfare, organisation of the army and navy, modes of fighting, time of
fighting, preparation, discipline and regulation of the army”40 In general terms Islamic law
made a distinction between combatants and non-combatants; this is manifest in Shaybani’s
Siyar where the question is posed: “do you think that the blind, the crippled, the helpless
insane, if taken prisoners of war or captured by the warriors in a surprise attack, would be
killed?”; wherein the answer from Abu Yusuf came back in the negative: “they should not be
killed”.41 Likewise where prisoners of war are concerned, Boisard points to Christian
acculturation, stating that “to our knowledge, it is only from the time of the Crusades that the
West seems to have been preoccupied with this problem”.42 If we look to the Graeco-Roman
literature and law in antiquity, there is little resemblance to what emerges from the Spanish
School of International Law, or later Grotius; where hostilities are concerned. 43 However the
various tenets of Islamic law governing armed conflict point to an inter-cultural socialisation
process taking place wherein those elements seen to be useful in inter-state relations were
taken up and, in the opposite fashion of the dhimmis fishermen of the Southern
Mediterranean, the elements of the Siyar were over time ‘Christianised’.

38
See the Chapter of neutrality in Majid Khadduri, War and Peace in the Law of Islam, 1955, pp. 251-267.
39
Majid Khadduri, The Islamic Law of Nations Shaybani’s Siyar, 1966, p. 59. See also Sheikh Wahbeh al-
Zuhili, “Islam and International Law”, International Review of the Red Cross, Volum 87, 2005, p. 277.
40
Javaid Rehman, International Human Rights Law, 2010, p. 767.
41
Majid Khadduri, The Islamic Law of Nations Shaybani’s Siyar, 1966, p. 101.
42
Marcel Boisard, “On the Probable Influence of Islam on Western Public and International Law”,
International Journal of Middle East Studies, Vol. 11, 1980, 432.
43
For the conduct of hostilities in antiquity, see David Bederman, International Law in Antiquity, 2001, pp.
207-266.

15
 We get a sense of an Islamic approach to issues of warfare, by a set of instructions given
by the Abbasid Caliph Qudamah ibn Jafar in 922 CE, which include the following:

He has commanded him to prevent his troops from staying in the house of any subject [...], except if it is by
his permission and willingness, and also from trampling on the cultivation and making it treaded by animals
or rendering it a path to reach his destination. He should not take straw for fodder from those who possess it
except on the payment of the price and the willingness of the owners.44

Beyond this, Muhammad Ashraf enumerates provisions found in Islamic law governing, inter
alia, forbidden acts, spices, uniforms, flags of truce, enemy property, treatment of the dead.45
These items and their content are not dissimilar from the provisions governing the same
elements of the laws of war today. And yet, in their contemporary guise, the roots can be
recognised through acculturation; Boisard notes:

It is in the law of war that we find the best elaborated rules of the West as influenced by the East. Indeed,
various institutions of European medieval civilisation bore an indelible imprint, if not purely and simply of
their oriental origin, at least of their strong dependence on the analogical military institutions of the Muslim
East. This influence, in a period when war played a particularly important role, affected the general
atmosphere as much as the specific dispositions for dealing with the defeated and the attitudes towards
combatants and certain technical clauses, such as the exchange of prisoners and care for the wounded. The
transmission of influence naturally took place where Islam and Christianity confronted each other on the
field of battle; in Spain and in the Palestine of the Crusades. Westerners, who had scarcely any code of
warfare, found that their enemies had extremely elaborate rules of conduct, whether concerning the
declaration of war or means of damaging the enemy. The psychological impact was such that, for a while,
there were two kinds of Christian warrior: those who had been impressed by the chivalric spirit during their
previous encounters with Muslims and those who only knew of the barbaric practices of the Middle Ages.46

For Khadduri, the turning point of the Siyar from being offensive in nature to being
accommodating in reality, is the 1535 Treaty of Alliance between the Ottoman Sultan and the
King of France. In Khadduri’s 1956 article published in the American Journal of
International Law he notes that fundamental tenants of Siyar – those elements not touched by
Quranic imperatives – were reinterpreted so as to allow for the liberalisation of trade in the
face of the opening of the European trade route to Asia via the Cape of Good Hope during the

44
See Form of Instructions to the Commander of Succours and of War, as found in Muhammad Ashraf,
Muslim Conduct of State, 1968, p. 313.
45
See Muhammad Ashraf, Muslim Conduct of State, 1968, p. 313.
46
Marcel Boisard, “On the Probable Influence of Islam on Western Public and International Law”,
International Journal of Middle East Studies, Vol. 11, 1980, 442.

16
Age of Discovery at the expense of the traditional overland route through dar al-Islam via the
South-East Mediterranean.47 Thus, accommodation manifest itself in the Sultan negotiating a
treaty which recognised a formal equality between the parties and opened the possibility of
such agreements being offered to other Sovereigns. Further, that peace could only be limited
to a ten year period was put aside in the 1535 Treaty to allow for the life of the instrument to
run parallel to the lives of the rulers. French subjects were exempt from the local jurisdiction
and from the annual tax required for dhimmis. The 1535 Treaty was thus not only a break
with the past, but the start of the capitulation regime which would persist in areas where
European colonialism was not able to secure a footing.48

While the 1535 Treaty points to a shift in the power relationship between the Islamic
world and Europe which had, by this time, embarked on its Age of Discovery, it should come
as little surprise that the elements of capitulation did not simply appear on the scene in the
sixteenth century, but had been in evidence for some time as creating a link between East and
West. The loss of jurisdiction over dhimmis, in the guise of nascent consular protection, was
to evolve over the latter part of the Middle Ages wherein accommodation made economic
sense in the Mediterranean basin, where a modus operandi emerged between the Italian cities
of Genoa, Pisa, and most importantly Venice, as well as Byzantine ports; and Muslim rulers.
Having gained capitula or brief chapters outlining specific unilateral grants set out in a treaty,
merchants where able to settle in dar al-Islam. The head of foreign merchant enclaves, the
‘consul’ would carry out juridical and administrative functions with regard to his fellow
citizens. Thus through acculturation by accommodation we witness “the foundations of still
existing consular privileges”.49

Conclusion

The basis of international law beyond its European public law qua Christian international law
roots remains shrouded in mystery. The pervasive dominance of the West over the last five

47
Majid Khadduri, “Islamic and the Modern Law of Nations, American Journal of International Law, Vol.
50, 1956, p. 360; as reproduced in Mashood Baderin (ed.), International Law and Islamic Law, 2008, p. 5.
48
For a consideration of the Siyar into modern times see: Christopher Ford, “Siyarization and its Discontents:
International Law and Islam’s Constitutional Crisis”, Texas International Law Journal, Vol. 30, pp. 499-533; as
reproduced in Mashood Baderin (ed.), International Law and Islamic Law, 2008, p. 19-53.
49
Thomas Alfred Walker, A History of the Law of Nations: From the Earliest Times to the Peace of
Westphalia, 1648, p. 116.

17
 hundred years has meant that little energy has gone into encouraging research into
international law before the Age of Discovery. As this study is part of a Research Handbook,
an attempt has been made to give a sense to the Islamic law of nations, which dominated the
millennium between Antiquity and an Europe emerging from its dark ages. It would be
difficult to imagine an area of international law which requires more research and focus of
study; and by the same token has yet to be investigated in any systematic or even meaningful
manner. For those with the linguistic tools necessary, there are libraries in the Islamic world,
including the New Bibliotheca Alexandrina, and beyond awaiting the type of work which
Majid Khadduri and Hassan Khalilieh have done in bringing ancient texts to life and to the
attention of wider audiences. Sources relating to the Crusades, or related to Andalusia and
specifically at the heart of the renaissance of international law, at the University of
Salamanca, should be investigated.

It has now been twenty years since Marcel Boisard spoke of a “probable influence of
Islam” on international law. Today, we have progressed but a short distance indeed. The fact
that the only known law of nations beyond the one currently in force which had universal
aspiration and was fully operational was the Siyar – the Islamic law of nations, remains
shrouded and obscured. This despite the fact that for close to a millennium the Islamic law of
nations governed the largest swaths of the known world. What influence Muhammad
Shaybani’s Siyar might have had on the Spanish School or Grotius in concrete terms has yet
to be investigated in any true fashion and thus remains conjecture. That said, it would appear
that acculturation could not have failed to transpire during the Middle Ages in the sphere of
law. The histories of mathematics, astronomy, and medicine have all acknowledged their
debt to the Islamic world.50 The emphasis of the existence of an Islamic law of nations in a
Research Handbook of this type is but a first step in bringing to light an area of study which
must be recognised as suffering from a severe limitation of primary sources and thus holds
out the promise of research worthy of time and dedication.

50
Consider for instance the more than a dozen volumes of the Zeitschrift für Geschichte der Arabisch-
Islamischen Wissenschaften.

18

View publication stats