Muslim International Law - The Dawn of the Fifteenth Century of Hijrah

Western writers on the history of international law generally believe that the Dutch jurist, Hugo Grotius (d. 1645 CE), is generally the father of the independent discipline called international law. To them this science is the product of the Christian civilization of Europe which was passed by circumstances to develop a set of rules and principles to regulate the relations among the Christian nations, of medical Europe. Such a contention might be true about the European international law as developed approximately during the last one hundred years, but it certainly fails to account for development of international law in the world of Islam.

In medieval Europe, international law did not recognize the existence of any non-European and non-Christian power as a subject of such law. For, as we know, prior to the middle of the nineteenth century, no Asian of African state was considered worthy of enjoying any rights or privileges. It was in 1856 that a non-Christian, albeit half European, state-Ottoman Turkey- was partly recognized as a subject of international law, through some jurists still contented that the treaty of Paris (March 1856) simply recognized Ottoman Turkey as a European power, but not as a subject of international law. Thus, the rest of the world was excluded from the so-called comity of nations because it comprised a group of ‘uncivilized’ and ‘barbarian’ nations.

This set of rules, which later developed into the corpus of international law, was initially developed to look after the mutual interests of the Christian nations of Europe vis-à-vis the non-Christian ‘barbarians. These considered mostly of the Muslim neighbors of Europe who were considered the objects, rather than the subject of those rules. Those rules, however, continued to govern the relationship of European nations inter se and, with the passage of time, became a distinct subject of legal studies, which soon developed into an independent legal discipline and came to be known variously as droit de gens, droit du genre humain, law of nations, law of foreign policy, etc.

In spite of the rapid expansion of literature on international dealings and their legal aspects resulting in the emergence of good many scholarly writings on the subject, Western scholars of international law have continued to differ on the very fundamental question whether international law was really law or not. Some of them refused to accept the set of rules governing international relationships between states as law proper since it lacked the basic elements of what could be considered law: it was not promulgated by a define legislator; it was not enforced by a competent and effective judicial body; and, above all, it was not backed by the sanction to award punishment in the event of its violation. International law, therefore, had to face strong criticism challenging its very existence. It was called the vanishing point of jurisprudence, law only by courtesy, or just quasi law. Several modern western scholars of international law appear to be uncomfortable with its present character. A feeling has emerged that international law fails to meet the real needs and requirements of the human race in our time. Basic changes have, therefore, been suggested to emphasize the need of recast the entire corpus of international law and to transform it into a truly transactional law, a common law of nations, a world law, a unified inter-social law.

On the other hand, Muslim international law “Siyar” as it was called, was accepted as law in every sense of the term from the very beginning. From the early stages of its emergence, it has had all the characteristics of law which the European International law lacked. As I’ll discuss later, Muslim international law never faced the problem of lacking proper sanction and judicial forum to adjudicate dispute under it.

Before I proceed further to discuss the early history and development of “Siyar” as an independent legal discipline, separate and distinct from other branches of law, we may profitably analyze its content, and identify the main questions which were discussed in the authoritative works on the subject during the early centuries of Islam.