The Classical Conceptions Of Treaty, Alliance And Neutrality In Sunni Islam

452 Pages·2008·22.87 MB·English

The Classical Conceptions Of Treaty, Alliance And
Neutrality In Sunni Islam
by
Ahmed Mohammed Masri
NEWCASTLE UNIVERSITY LIBRARY
097 52886 0
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••••
Thesis presented to the University of Newcastle in partial
fulfilment of requirements for award of the degree of
Doctorate of Philosophy
June 1998
Department of Politics
The University of Newcastle
Newcastle upon Tyne, England
This copy has been supplied on the understanding that it is copyright
material and that no quotation from thesis may be published
without proper acknowledgement.
TABLE OF CONTENTS
Number Page
Chapter I: Introduction
1.0) Presentation 1
1.1) Aim and purpose 1
1.2) Period of study 1
1.3) The problem 2
1.4) The Islamic State and its relations 4
1.5) The literature review 6
1.6) The significance of the thesis 13
1.7) Orientation and methodology 16
1.8) Hypotheses 17
1.8.1) Hypotheses related to Islamic
international relations theory 17
1.8.2) Hypothesis relating to treaties 18
1.9) Contents of the thesis 19
Chapter II: The Islamic Law and Fiqh
2.1) Introduction 22
2.2) The origin of Islamic Law Usul al-Shari 'ah and Usul al-Fiqh 23
2.2.1) The primary sources 27
a. The Holy Qur 'an 27
b. The prophetic tradition Sunnah 31
2.2.2) The secondary sources 37
a. The exercise of judgement Ijtihad 37
b. Consensus of juristic opinion Ijma' 41
c. Analogical deduction Qiyas 43
2.3) The schools of rationalists Ahl al-Ra'i and the traditionalists
Ahl al-Hadith 45
2.4) The four Sunni Schools of Jurisprudence 48
2.4.1) The Hanafite School 50
2.4.2) The Malikite School 51
2.4.3) The Shafei' ite School 53
2.4.4) The Hanbalite School 54
2.5) Disagreement among the four Sunni Schools of Thought 55
2.6) The impact of the main origins Usul on Muslim thought 59
2.7) Islamic Law Shari 'ah and contemporary issues 61
2.8) Public interest and welfare Maslaha 65
2.9) Islamic Law Shari 'ah and modern International Law 69
2.10) Summary and conclusion 71
Chapter III: Islamic International Relations in Classical Fiqh
3.1) Introduction 75
3.2) Monotheism al-Towhead 78
3.3) The Islamic concept of International relations 83
3.3.1) The normality of war and peace 88
3.3.2) The Domain of Peace Dar al-Islam 101
3.3.3) The Domain of Hostile Dar al-Harb 107
3.3.4) The Domain of Pledge Dar Al-` Ahd 110
3.4) Ummah, the main body of the Islamic community 113
3.5) The Islamic State, its nature and duties 120
3.6) Groups of non-Muslims 145
A. The People of the Book 146
B. The Sabine 148
C. The Magians 149
D. The Polytheists 149
E. The Atheists 150
F. The Apostates 151
3.7) Summary and conclusion 154
Chapter IV: Dhimmis and Musta'min in the Islamic State
4.1) Introduction 159
4.2) Shari ' ah and the relations of Muslims and non-Muslims 160
4.3) Safeguard Aman 164
4.4) Covenant Ahd al-Dhimma 176
4.4.1) The Tribute Jizyah 183
4.4.2) The land tax al-Kharaj 193
4.4.3) The commercial tax al-Aushur 196
4.5) Summary and conclusion 197
Chapter V: Classical Concept of Treaty in Sunni Islam
5.1) Introduction 201
5.2) Definition of treaty 202
5.3) Incentive of treaty 206
5.4) Legitimate prerequisites for concluding treaties 209
5.4.1) The authority 209
5.4.2) Terms of the treaty 213
5.5) Stages of treaty 218
5.5.1) Negotiation 218
5.5.2) Written the treaties 218
5.5.3) Signing treaties 219
5.5.4) Ratification of the treaties 220
5.5.5) Exchange and deposit of the treaties 220
5.5.6) Legitimacy of the treaties 221
5.5.7) Termination of treaties 227
5.6) Kinds of treaties 233
5.6.1) Treaties of friendship and commodities exchange 234
5.6.2) Truce treaty 237
5.6.3) Conciliation treaty 241
5.7) Jurisdiction of criminal law and extradition treaties 244
5.8) Summary and conclusion 248
Chapter VI: Legitimacy of Neutrality in Fiqh
6.1) Introduction 254
6.2) Definition of neutrality 258
6.3) Legitimacy of neutrality in Islam: the sources 259
II
6.3.1) The Holy Qur'an 259
6.3.2) Neutrality in the Sunnah 262
6.4) Neutrality among the Muslims 264
6.5) Neutrality among the Muslims and non-Muslims 266
6.5.1) Status of Abyssinia, Ethiopia 266
6.5.2) Status of Nubia 269
6.5.3) Cyprus 274
6.6) Rights and duties of neutrals 277
6.7) Islamic system of neutrality 279
6.8) Summary and conclusion 283
Chapter VII: Classical Concept of Alliance in Sunni Islam
7.1) Introduction 288
7.2) Alliances in the Jahiliyyah and Islam 291
7.3) Legitimacy of alliances 293
7.3.1) Alliances among Muslims 294
7.3.2) Alliances with the non-Islamic entities 297
7.4) Aims of alliance 309
7.5) Methods of alliances 314
7.6) Elements and requirements of alliance 317
7.7) Disintegration of alliances 318
7.8) Summary and conclusion 320
Chapter VHI: Case Study, The Military Alliance of 1990-1991
8.1) Introduction 323
8.2) The military alliance 328
8.3) The Ummah's reaction 332
8.4) Shari 'ah and Legality of the Iraqi Invasion 342
8.5) 1990 alliance under the Islamic conditions 353
8.6) Summary and conclusion 362
Chapter IX: Conclusion
9.1) Introduction 365
9.2) The Findings 367
9.3) Recommendations 376
Appendices
I) The Constitution of Madinah 378
II) The Prophet's treaty with the people of Maqnah 382
III) Tribe in Arabia during the first century AR 622-718 AD 383
IV) Armed Forced of Iraq and Saudi Arabia in 2 August 1990 384
V) The Military Forces of Iraq, Saudi Arabia, The GCC,
Egypt and Syria 1990 385
VI) The Islamic forces in the Gulf war 1990-91 386
VII) The Muslim World League statement about the
Gulf crisis 1990-91 387
VIII) Fatwa of the Saudi Supreme Council of Senior
Ulama about the Iraqi invasion of Kuwait 392
Bibliography 393
III
ABSTRACT
The purpose of this thesis is to examine a major segment of Islamic international
relations theory as expounded by Sunni jurists of the classical period of the Islamic
Fiqh (661-1258 AD). It consists of that portion which is concerned with peaceful
relations as distinct from that other major segment which is about Jihad or Islamic
warfare. The thought of Muslim scholars on this topic provides a major part of an ideal
model for political life under Islam, and its appeal has continued to exert a strong
influence on the lives and thoughts of all Muslims throughout the centuries. Within this
segment of Islamic international relations theory attention is focused on the key
concepts of treaties, including alliance, and neutral status. One part of this is, however,
omitted. It is what in Western political philosophy would be called private (not public)
relations, and which in an Islamic classical Fiqh context - where the private/public
distinction, it will be argued, is absent - can be termed social relations.
The argument put forward will be that Islamic international relations are the totality
of relations between Muslims and non-Muslims, and never relations between Muslims.
Islamic law, it will be argued, governs this relationship, ensuring Islamic international
relations theory is essentially normative. The thesis will further suggest that Muslim
relations with non-Muslims are fundamentally pacific, not hostile, if the legitimate
purposes of Jihad are properly assessed. The thesis will also be concerned to assess the
extent to which peaceable Muslim relations with non-Muslims can be organised
through the different forms of treaty which are recognised in classical Sunni Fiqh. It
will be argued that the anti-Iraq coalition alliance of 1990-91 fulfilled the conditions of
a genuine Islamic alliance treaty, contrary to the view of numerous contemporary
Muslim scholars and publicists. Finally, it will be argued that neutrality, as well as
neutralisation, were possible during the period of classical Sunni Fiqh.
IV
ACKNOWLEDGEMENTS
I wish to express my sincere appreciation to all who provided their support and
encouragement to me during my study. First, my extreme thanks to Allah, the Most
Generous, who supported and provided me with the ability to complete this thesis. I
would like to express my great thanks to my supervisor Mr. David George for all his
valuable and conscientious assistance in supervising this thesis, which, I believe,
without his efforts, assistance and encouragement this work would not see the light. I
would like to express my sincere and deep thanks to my mother, which with her prayers
and encouragement I reached my goal. My extreme acknowledgements and
appreciation to my wife for all her generous and noble assistance, help and
encouragement during my study. Lastly, my deep thanks to Mrs. Victoria George for
her assistance and help in checking the English language of this thesis.
V
INTERPRETATION OF THE ARABIC LETTERS
Arabic Letter Translation
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GLOSSARY OF ARABIC TERMS
' Aqd Contract
Ahl al-Hal wa al-`Aqd Electors
Amir al-Mu'minin Commander of the faithful
' Aushour The commercial tax
Bait al-Mal State treasury
Bay'ah Pledge of allegiance
Dar al-Islam Abode of Islam
Dar al-Harb Abode of war
Dar al-`Ahd Abode of covenant
Dawla State
Dean (Din) Religion
Dhimmi Non-Muslim citizens of the Islamic State
Fay' booty
Faqih Muslim Jurist
Fiqh Islamic Jurisprudence
Fitna riot
Fotohat Conquests
Harbi Individual belongs to the abode of war
Hukm Sovereignty
Ijma' Consensus
Ijtihad Creative interpretation
Imam The head of the Islamic State
Kharaj Land tax
Mathhab Rite
Maslaha Interest
Mulk Kingship
Qadi Muslim judge
Qiyas Analogy
Ulama Muslim scholars
Ra'i Opinion
Sultan Supreme
Shurah Consultation
Towhead God's unity
Ummah The Muslim Community
LIST OF ABBREVIATIONS
ACC Arab Co-operation Council
AD Anno Domini
AH Anno Hegira
AL Arab League, or the League of Arab States
AIOC Anglo-Iranian Oil Company
ANZUS Australia-New Zealand-United States Security Treaty
CENTO Central Treaty Organisation
CIA Central Intelligence Agency
COMECON Council for Mutual Economic Assistance, or
GCC Gulf Co-operation Council
GNP Gross National Product
IGO Inter Governmental Organisation
IJC Islamic Jurisprudence Council
I I L Islamic International Law
IIOIT International Institute Of Islamic Thought
KNOC Kuwait National Oil Company
ME Middle East
MWL Muslim World League
NAS No author submitted
NATO North Atlantic Treaty Organisation
NDS No date submitted
NGO Non-Governmental Organisation
NPS No publisher submitted
OAS Organisation of American States
OAU Organisation of African Unity
OIA Organisation of Islamic Conference
OPEC Organisation of Petroleum Exporting Countries
PIL Public International law
PLO Palestine Liberation Organisation
SEATO South-East Asia Treaty Organisation
UAE United Arab Emirates
UAR United Arab Republic
UK United Kingdom
Ulama Traditional Scholars of Islam
UN United Nations
USA United States of America
USSR Union of Soviet Socialist Republics
WTO Warsaw Treaty Organisation (Warsaw Pact)
WWI World war one
WWII World war two