Islamic International Law: Historical Foundations and Al-Shaybani’s Siyar

320 Pages·2018·1.495 MB·English

by  Khaled Ramadan Bashir

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Islamic International Law
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This book is dedicated to:
RamadanAli Bashir;
My father, who taught me that nothing is more valuable than knowledge.
Ghazala MAlhdiri;
My mother, who taught me that nothing is impossible.
SamiraAbubaker;
My mother-in-law, who taught me that motherhood does not have to be
biological to guarantee love and respect.
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Islamic International
Law
Historical Foundations and Al-Shaybani’s
Siyar
Khaled Ramadan Bashir
The University of Aberdeen, UK
Cheltenham,UK+Northampton,MA,USA
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©KhaledRamadanBashir2018
Coverphoto:DanielBurkaonUnsplash
Allrightsreserved.Nopartofthispublicationmaybereproduced,storedina
retrievalsystemortransmittedinanyformorbyanymeans,electronic,mechanical
orphotocopying,recording,orotherwisewithoutthepriorpermissionofthe
publisher.
Publishedby
EdwardElgarPublishingLimited
TheLypiatts
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Cheltenham
GlosGL502JA
UK
EdwardElgarPublishing,Inc.
WilliamPrattHouse
9DeweyCourt
Northampton
Massachusetts01060
USA
Acataloguerecordforthisbook
isavailablefromtheBritishLibrary
LibraryofCongressControlNumber:2018944788
Thisbookisavailableelectronicallyinthe
Lawsubjectcollection
DOI10.4337/9781788113861
ISBN9781788113854(cased)
ISBN9781788113861(eBook)
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Contents
Foreword vi
Preface ix
Acknowledgements x
Glossary xi
List of abbreviations xiv
1 Introduction 1
2 Reading historical sources 49
3 The law of war 98
4 Rules on the consequences of war 180
5 The law of peace 216
6 Conclusion 267
Bibliography 279
Index 289
v
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Foreword
Irarelygettheopportunitytointroduceaworkthatshouldjustlyredefine
an entire field of study. But Khaled Ramadan Bashir’s book on Islamic
International law is such a work. For many years, the standard work in
the West on Islamic International law has been that of Majid Khadduri,
who had written on the Siyar of Shaybani and the Islamic law of war and
peace. And for better or worse, Khadduri has influenced generations of
scholars who have taken his representations of Islamic international law
to be established truth. But Khadduri’s failures in understanding and
representing the nuances of Islamic legal discourses have contributed to
the dissemination of entrenched false paradigms about Islamic Inter-
national law. The current book by Khaled Ramadan Bashir does not only
surpass the achievement of Khadduri, but materially reforms and in many
regards, nullifies and negates it. The truth is that Khadduri’s writings on
the Siyar are so incomplete as to be seriously flawed. The present work
by Bashir comes as an urgently needed corrective, not just to Khadduri’s
work but to all previous scholarship on Shaybani and his transformative
contributions to the law of nations. No scholar can afford to write on the
subject of Islamic International law or indeed the history of the law of
nations without referring to Bashir’s authoritative study. Bashir convinc-
ingly demonstrates that Shaybani’s discourse on the law of nations not
only pre-dated Gratian, Aquinas, and Vitoria but it was much more
comprehensive, developed, and complete. Shaybani’s work is comparable
only to Grotius’famous treatise, The Law of War and Peace, except that
Shaybani wrote his work in the eighth century while Grotius wrote his
treatise in the 17th century. Bashir’s scholarship forces us to reconsider
the often-repeated thesis that the law of nations is rooted exclusively in
the Christian Natural law tradition and to acknowledge the pivotal
significance of the Islamic contribution to the law of nations as a
discipline and field. Bashir’s scholarship will also challenge all those
who are prone to the argument that the roots of the law of nations can
only be found in the Judeo-Christian tradition. It is due time that the
Islamic contribution to the field of international law be given its full
weight and credit, but in order for this to take place, the history of the
law of nations must be substantially re-thought and re-written but from a
vi
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Foreword vii
non-Eurocentric perspective. However, a fair and inclusive historiography
of the law of nations is not possible unless Western writers resist the
temptation of triumphalism, and civilizational and cultural puritanism.
Aside from the issue of historical lineage and recognition, Bashir’s
meticulous analysis of Shaybani’s seminal work, the Siyar, challenges all
stereotypical caricatures of the Islamic law of nations as being purely
functional or pragmatic. It is abundantly clear that Shaybani, like
generations of classical jurists after him, wrestled with what they
perceived as a supreme Higher law, the Law of God, that governs the
interactions and struggles of human kind, and that this law was seen as
imposing moral standards beyond the simply opportunistic or pragmatic.
It is axiomatic in Shaybani’s thought that the prevention of conflict and
the avoidance of war and wanton destruction is the calling of the Higher
law. The same can be said about what Shaybani deontologically saw as
the rules of honor, chivalry, and conduct becoming a Muslim. Shaybani
struggled with striking the balance between a lawless world in which
God and God’s Higher law would cease to exist, and an inflexible and
blind adherence to ideals that could be unworkable. If the ideals of the
Higher law were invoked and asserted dogmatically, these ideals would
be liable to being entirely ignored by the political authorities of Shay-
bani’s day and age. Shaybani did not fossilize Islamic International law
into a set of immutable and eternal rules. Rather, he searched for the
balance between eternal and supernal principles, and functional and
practical applications. As such, Shaybani’s impressive corpus of work is
really a study in the methodology of Islamic legal thinking and the
dynamism and creativity of Islamic law.
The inestimable value of Bashir’s book is not just that it challenges
simplistic historical outlooks that anchor the growth of international law
solely in European narratives, or that imagine that there is a fundamental
civilizational breach between Islam and the West, but Bashir’s work also
reminds Muslims of the rootedness of international law principles in
Islamic normativities. Shaybani was a prominent judge of the Hanafi
School who played an influential role in the early Abbasid dynasty
during the reign of the famed Caliph Harun al-Rashid.Yet Shaybani was
not the first jurist to write on Islamic international law. The Syrian
Awza‘i has reportedly pre-dated him in writing on the Islamic law of
nations although his works have been lost. Some of Awza‘i’s positions
and arguments have reached us only through the rebuttals of his
opponents.ButotherthanAwza‘i,thereiscumulativeevidencetosuggest
that early Muslim jurists such as al-Shaabī, Sufyān al-Thawrī, and Abū
Hanīfah made critical contributions to the discourses on the Islamic law
of nations. Moreover, Shaybani’s own discourses continued to evolve and
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viii Islamicinternationallaw
develop through the centuries in the works of generations of jurists who
were forced to wrestle with historical circumstances and contexts that
were very different than those that Shaybani dealt with. What does
remain constant through the centuries of jurisprudential discourses is the
innate understanding that there are basic universal laws that call upon
human beings to temper the vicissitudes of power struggles and human
conflict through the application of higher ethical principles. This is
indeed the basic premise at the heart of all efforts at accomplishing a
regime of international laws applicable to all humankind. The very fact
that generations of Muslim jurists insisted on subjugating politics and
war to the rule of law is a profound civilizational achievement. The
development and persistence of this intellectual and moral enterprise
throughout the existence of the Islamic civilization is a stark reminder
that far from endorsing the logic of unfettered political opportunism or
all-out warfare, Muslim jurists consistently searched for the boundaries
that demarcate the difference between ethical and unethical conduct.
Khaled Ramadan Bashir’s invaluable study offers us the first real
opportunity to properly value Shaybani’s contributions to the develop-
ment of the law of nations as a principled human engagement. But more
than this, Bashir’s work comes as a stark reminder that international law
is truly the collective inheritance of the entire human race.
Khaled Abou El Fadl
Omar and Azmeralda Alfi Professor of Law,
University of California, Los Angeles, School of Law
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Preface
MohammadAl-Shaybani is one of the greatest scholars of Siyar (Islamic
international law). His book, Al-Siyar Al-Kabīr, is an eighth-century
textbook on international law. In this work I present and discuss the
precise nature ofAl-Shaybani’s contribution compared to the other great
contributions on international law made by Augustine, Gratian, Aquinas,
Vitoria and Grotius. I affirm the view that Al-Shaybani made a major
contribution to the theory of international law that had been unacknowl-
edged for a long time, and unjustly so, by scholarship.
Al-Shaybani’sbookwasacomprehensivetreatiseonthelawregulating
international relations from the Islamic perspective. It was the first
attempt to produce such a book on international law as a discipline
distinct from other legal fields. In terms of legal complexity, it can only
be compared to Grotius’s greatest book on the subject, The Law of War
and Peace. In the area of humanitarian law, the only other writer with
whom he can be compared is Vitoria, although even Vitoria does not go
into the same depth of complexity. Al-Shaybani dealt with war carefully
and limited cases of justified wars in his time to just three categories. He
offered many rules restricting cruel practices in the treatment of enemy
personnelandprisonersofwar.Thenatureofpeaceandhowitcouldbest
be achieved was fully considered. Rules on treaties, diplomacy, travel,
trade and more were discussed in a way that would best give rise to the
peaceful coexistence between nations. Detailed legal rules with the
purpose of guaranteeing the continuity of peace are suggested in his
work. In contrast, Augustine, Gratian and Aquinas engaged only in
limited discussions on some of the subjects of the law of war. Vitoria’s
contribution on these matters was more extensive, but even he lagged far
behind Al-Shaybani.
The work of Al-Shaybani was certainly as detailed, complex, compre-
hensive and useful as that of Grotius on international law. Besides the
presentation and discussion of the merits of his work, a central purpose
of this book is to argue that any future work on the history of
international law has to consider Al-Shaybani’s contribution for it to be
complete.
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Acknowledgements
Iamgratefultomygrandparentsfortheirimmeasurablefavoursuponme.
I am also grateful to:
+ Professor Anthony Carty who encouraged me, made valuable
comments and gave great support. He was most caring and always
supportive;
+ Professor Khaled Abou El Fadl to whom I am grateful for writing
the foreword and for his support and encouragement (University of
California, Los Angeles);
+ Professor Jean Allain who generously offered valuable comments
on the first two chapters (Monash University);
+ Associate Professor Marie-Luisa Frick who kindly wrote an
endorsement for this book (University of Innsbruck);
+ Associate Prof. Mohd Hisham Mohd Kamal (International Islamic
University Malaysia);
+ Dr Rohimi Shapiee (Universiti Kebangsaan Malaysia);
+ Professor Peter Duff (University of Aberdeen);
+ Dr ZerayYihdego (University of Aberdeen);
+ Professor Robin Evans-Jones (University of Aberdeen);
+ The Very Reverend Nicholas Coulton and Professor Nigel Biggar
(Christ Church, Oxford);
+ Imam Mohammad Almahdi Shari-Aldeen (Al-Azhar Mosque);
+ Professor Ahmed Abou-El-wafa (Cairo University); and
+ Sheikh WahbahAlzuhalili, the great scholar (University of Damas-
cus).
Thanks also go to all members of my family and my friends who have
always been supportive and encouraging; they will always be valued and
loved, and no thanks could be enough for their care, patience and
support.
I am also grateful for the support, care and attention of the wonderful
team at Edward Elgar.
Thank you all!
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