Abstract
Islam began in Mecca as a religion, became a state in Medina and then spread as a culture.
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References
Proudhon, La Guerre et la Paix, F.I. p. 110.
Arabia knew these principles before Islam but they were of rather tribal scope.
This idea will be treated fully in the third part of this book.
To mention but a few examples: “The people of Shazzar (Laissa) went out to meet him (Khalid ibn al Walid) accompanied by players on the tambourines and singers and bowed before him. ” “A statement attributed to the people of Hims is representative of the sentiment cherished by the native Syrians towards the new conquerors: We like your rule and justice far better than the state of oppression and tyranny under which we have been living.” Hitti, op. cit., pp. 152-3.
For instance, in 640 the Arab troops were facing the 20,000 men Byzantian garrison at Babylon in the West, whilst other troops were forcing their way to the province of Pars (Persia proper) in the East.
Of course there were precautions against expected Bedouin raids, but those precautions could not be understood as defensive measures against prospective invasion.
Pirenne, op. cit., pp. 147-9.
Vasiliev, A. A., “Byzantium and Islam,” an article in Byzantium — An introduction to the East Roman Civilization, Oxford paperbacks 1961.
A.D. 632-61 = 11-40 A.H.
A.D. 661-750 = 41-132 A.H.
A.D. 750-1258 = 132-656 A.H.
The Muslim advance was checked in 732 between Tours and Poitiers by Charles Martel, mayor of the Palace at the Merovingian Court. This defeat, known to the Muslims as Balatul-shuhadā’, Pavement of Martyrs, was in fact a turning point in the Arab conquests. “Gibbon, and after him other historians, would see in Paris and London mosques where cathedrals now stand, and would hear the Koran instead of the Bible expounded in Oxford and other seats of learning, had the Arabs won the day.” Hitti, op. cit., p. 501.
The Umayyad dynasty of Cordova lasted from A.D. 756 (138 A.H.) until A.D. 1027 (418 A.H.). By the end of the ninth century disturbances overwhelmed Spain and the Umayyad power collapsed, among which featured, in particular, the Jahwarids, the A bbassids of Seville, the Murabids and the Muwahids.
These European possessions were recaptured by the Normans (1060–1091).
The first of the Turks to appear in the history of Islam were the Saljuqs, named after Saljuq the chieftain of the Turkoman tribe Ghuzz from the Kirghis Steppes of Turkestan. The power of the Saljuqs came to its zenith in 1091 when they moved to Baghdah where they held the real authority leaving the caliph as puppet. These Turks are not to be confused with the Ottoman Turks who were kinsmen of the Mongols.
Mahmud of Ghannah (999–1030), of the Turkish Ghaznawid dynasty, was the first in Islam to be designated sultan.
Under Sulayman (1520–66) the Turkish empire extended from Baghdad to Budapest and from Aswan to the strait of Gibraltar.
Sultan is “a title which first appears in the fourth (xith) century in the sense of a powerful, an independent sovereign of a certain territory … The word and its meaning was undoubtedly borrowed from the Syriac sultānā which has the meaning of power, and although rarely, also that of the wielder of power … The transition in meaning from an impersonal representative of political power to a personal title in a development the stages of which are difficult to follow … very probably that the Saldjuks were the first for whom Sultan had become a regular title for a ruler. Sultan immediately became the highest title that a Muslim prince could obtain … In Turkey sultan had been an elevated title. In addition to rulers, it was borne by princes.” The Encyclopaedia of Islam, vol. IV, Leyden & London 1934, edited by M. Th. Houtsma and H. J. Wensinck.
Fenwick, op. cit., p. 27. See infra, part II, Ch. 2.
Phillipson, op. cit., pp. 49-50.
Maine, Sir Henry, International Law, London 1888, p. 8.
Russell, Bertrand, Power, 3rd edit., 1963, p. 25 (Unwin Books).
The idea of “chosen race” still survives, in some way, in the present international practice under the formula of “big powers” who claim legal exclusive rights and, consequently enjoy a favoured position as regards other states. A significant example is the legal status which the Charter of the United Nations accords to the five big world powers.
Phillipson, op. cit., pp. 61-2.
See infra, Part III.
Laurent, op. cit., vol. I, p. X.
Bentwich, Norman, The Religious Foundations of Internationalism, 2nd ed., 1959, p. 7.
Khadduri maintains that “The Muslim law of Nations, in contrast to almost all other systems, was designed to be a temporary institution until all people, except perhaps those of the tolerated religions, would become Muslims.” Khadduri, op. cit., p. 44.
Phillipson, op. cit., p. 51.
For more details on the definition of Muslim international law see Chapter II, Part II of this study.
Nussbaum, op. cit., p. 44. We will see that classical Muslim international law of peace was the intra-Muslim group law.
In Western international law, the unique position of the Pope in the Christian community induced Western writers to recognize him as an international person. Compare Kunz, Joseph L., “The Status of the Holy See in International Law,” A.J.I.L., vol. 46, 1952, pp. 308-14.
In that pledge the Medinans gave Muhammad their allegiance on the basis that they would protect him as they would their own women and children. The Pledge should not be construed in the traditional sense as a procedure for electing a chief since the Apostle had been chosen by God. It only meant submission to the authority of God and His Messenger. Its significance here lies in the fact that Muhammad individually was the one party and the independent tribes were the other in a politico-religious agreement.
Guillaume, A., The Life of Muhammad, a translation of Ishàc’s Sirat Rasūl Allah, 1955, p. 199.
Hamid Allah, Muhammad, Majmu’at al-Watha’iq al-Siyassiyah Li’l’ Ahd al Nabawi wal Khilafah al-Rashidah, 2nd ed., Cairo 1956, pp. 42–5. Hamid Allah introduces the second pledge of al-’Aqaba as the third pledge (p. 7).
Nizamuddin al-Qummi, Tafsīr Ghara’ib al Qur’ān, Cairo, XXX.
The Negus was Ashamah who had been sold to a Damrite Arab and served for him as a shepherd in the valley of Badr. That may be the reason why the Prophet sent to him a Dam-rite ambassador, ’Amr ibn Umaiyah in about the year 624 to marry the Prophet in absentia with the Muslim widow, Umm Habībah.
A recueil of those documents was compiled by Hamid Allah, Majmu’at al Watha’iq, op. cit., pp. 15-283 and 365-399. It is true that the pagan Meccans refused to accord the title of prophet or apostle when concluding the truce of Hudaybiyah, but this individual incident does not involve any absolute denial of the existence of the right since, at least implicitly, other political entities such as Abyssinia, Egypt and Byzantium recognized it through the friendly attitude with which they apparently received the message of the Prophet.
Al-Gahiz classified the imams, heads of state, into three categories, apostle, prophet and imam. The apostle is both prophet and imam, the prophet is imam but not apostle, the imam is neither apostle nor prophet. He may have in mind, in this classification, the pre-Islamic prophets. See al-Gahiz, Letters, 247 seq. Ibn Khaldun in his Muqaddima, Prolegomena, on analyzing the notion of sovereignty (Mulk) cites, as one of its forms, the sovereignty instituted by divine revelation in Islam which had for its subject the government of the community spiritually as well as temporally. He called this “al-Siyasa al-shar’eyya.”
Spiropoulos, Jean A., L’Individu en Droit International, Paris 1928, p. 32.
Sørensen, Max, “Principes de Droit International Public,” R.C.A.D.I. col. 101, (1960 III), p. 127.
Nørgaard, Carl Aage, The Position of The Individual in International Law, Copenhagen 1962, p. 32.
Guillaume, op. cit., p. 208.
This document was drafted in a conference, presided over by the Prophet which took place at the house of Anas. It is noteworthy that this document represents the first written constitution that history has ever preserved for us. Some doubt the authenticity of this document but according to the prevailing idea, it is an authentic one although there is uncertainty about its date; so we accept it as a basis for discussing the political and legal situation in Medina. See Watt, M. W., Muhammad at Medina, Oxford 1962, pp. 225–6.
This division was done by Welhausen who was the first to translate the document into an European language. Hamidullah believes that it comprises fifty-two Articles. Hamidullah, Le Prophète de l’Islam, Paris 1959, vol. I, p. 124.
It is noteworthy that the Covenant did not include expressively the names of the three main Jewish clans, an-Nadīr, Qurayzah and Qaynūqa’. As the last of these clans was liquidated in 627, some hold that the Covenant was drafted after that date, otherwise it would have referred to the said clans. It sounds more likely that it was drafted at the beginning of the Medinan period because this is its natural place, but it might have taken its definite shape by stages. This view will be further illustrated when we talk about the Jewish problem.
This quotation seems to be a bit vague. It means actually “each clan according to their former condition.”
Glubb, Sir J. B., The Great Arab Conquests, London 1963, p. 68. A group of Jews continued to scandalize a Muslim woman and, in her defence, a Muslim killed the Jewish aggressor and the Muslim himself was killed.
The tribe of’ Amir had been divided into sections, one of which was in alliance with the Muslims. In June, 625, at the well of Ma’unah, some of the hostile section attacked a group of Muslims and killed all except two who managed to flee. One of the two who escaped met two men of’ Amir and killed them in revenge, not knowing that they were from the allied section. So the Muslims had to pay a blood wit for the two murdered at Ma’unah.
Khan, Muhammad Zafrulla, Islam: Its Meaning for Modern Man, London 1962, pp. 50–51. The liquidation of Banu Qurayzah will be dealt with later on.
It is noteworthy that, before Islam, the Medinan Leader ‘Amr ibn Annu’man seriously thought of deporting an-Nadir and Qurayzah because of their hostility to the other Arabs of Medina. As for the assessment of the conduct of the Islamic state towards the Jews of Medina, on the whole, see pp. 56-61.
Khan, op. cit., p. 41.
Arnold, T. W., The Preaching of Islam, pp. 30-31.
Watt, Muhammad at Medina, op. cit., pp. 47-48.
Arabi, Abdul Rahman, L’Islam et la Guerre à l’Epoque du Prophète Mahomet, Ambilly 1954, P. 30.
Arabi, op. cit., p. 17.
The message is compiled and photographed in Hamid-Allah, Majmu’-at al-Watha’iq, op. cit., pp. 43-5. For its authenticity see Hamid-Allah’s article in Jars, London, January 1940.
In fact the stand which the Byzantine emperor took in this incident could be described as friendly with a pinch of salt. We will mention later on more details on this issue.
To this effect see the data mentioned in Hamid-Allah Majmu’at al-Watha’iq, op. cit.
Hitti, op. cit., pp. 169-72.
cf. pp. 24-5.
The strongholds that guarded Mesopotamia were named al thughur al Jaza’iryah and those that guarded Syria were called al thugur al Shamiyah.
Diehl, Charles, Histoire de L’Empire Byzantin, Paris 1920, p. 53. and Ostrogorsky, George, History of the Byzantine State, translated by Joan Huxley, Oxford 1956, p. 112.
Eventually, the Jarjimah emigrated to the inner and coastal parts of Asia Minor.
Vasiliev, op. cit., pp. 311-12.
Pirenne, Henri, Mohammed and Charlemagne, Lond‘uo 2nd ed., 1940, p. 160.
In fact, Harun al-Rashid hoped to gain the help of Charlemagne against his rivals, the Umayyads in Spain, whereas Charlemagne regarded Harun al-Rashid as a prospective ally against Byzantium.
The king meant here is Harun. Apparently the author took him for the king of Persia because his capital, Baghdad, is situated in ex-Persian territory.
Eginhard, Vie de Charlemagne, edited and translated by Louis Halpern, Paris 1923, p. 47.
Eginhard, op. cit., pp. 48-9 (comments).
On the facts of handling the key of the Holy Sepulchre Eginhard and the Royal Annals do not agree. Eginhard (p. 47) cites that Harun “renonça au profit de Charles à la domination sur ces lieux sanctifiés,” whilst the Annals refer the fact of handing the keys of the Holy Sepulchre to the Patriarch of Jerusalem. It is most likely that the keys were handed by the Patriarch at the order of Harun.
Kleinclausz, La Légende du Protectorat de Charlemagne sur la Terre Sainte, Syria 1926, pp. 211–233.
Bedier, “Charlemagne et la Palestine,” Revue Historique, vol. CLVII, 1928, pp. 277–291.
Pirenne, op. cit., p. 256.
Pirenne, op. cit., p. 207.
Tata, it will be recalled, together with King Ramiro II, in 939, encountered Abdel Rahman in a battle at Alhandega where the latter suffered a serious defeat, the first in his twenty-seven years of constant warfare.
The author means that the Caliph’s name should be mentioned in the ceremony.
Vasiliev, op. cit., p. 317.
Stevenson, W. B., The Crusaders in the East, Cambridge 1907, (The Preface) p. v.
Stevenson, op. cit., p. 84.
Stevenson, op. cit., pp. 143-45.
Stevenson, op. cit., pp. 269-70.
Stevenson, op. cit., pp. 328-9.
Levy, op. cit., pp. 266-9.
Nys, op. cit., p. 161.
The examples cited in the text are just for illustration. A complete historical review of Islamic-Christian peaceful relations seem to be beyond the scope of our study.
Testa, Le Baron I. De, Recueil des Traités de la Porte Ottomane, Paris, MDCCCLXIV, p. 15.
Nys, Ernest, Les Origines du Droit International, 1894, p. 161.
Testa, op. cit., vol. I, p. 118. It is to be noted here that the title is emperor of the Muslims and not of the Turkish empire, a factwhich has its significance as we have indicated in the text.
For fuller information see Le Tèvre, G. J. S. Baron Eversely, The Turkish Empire from 1288 to 1922, London 1923.
A detailed compilation of these documents is to be found in Testa, op. cit., 10 volumes.
To this effect, the text of the Treaty states that the European group of Nations “déclarent La Sublime Porte admise à participer aux avantages du droit public et du Concert Européen.”
See Wood, Hugh McKinnon, “The Treaty of Paris and Turkey’s Status in International Law,” A.J.I.L., vol. 37, 1913, pp. 262–74.
In fact the Arab countries, after World War I, were virtually spheres of influence for both Great Britain and France. North Africa was a French protectorate, with the exception of Lybia which was an Italian colony and Egypt which was a British protectorate. Syria and Lebanon were under French mandate whereas Palestine, Transjordan and Iraq were under British mandate. Up till now a part of the Arabian peninsula, known as the Trucial States, is still under the British influence. The Arab independent countries are, at present, members of one League; namely, the Arab League. However, this League is a response to the idea of Arab nationalism which envisages elements other than religion. Consequently, the Constitution of the Arab League mainly contains precepts of modern international law. However, this League manifests a certain degree of solidarity among Arab countries which is, as we will see, an imperative of Islam as well.
The first draft of the Pakistan Constitution was derived from orthodox Islamic conceptions. The present Constitution is also inspired by Islamic views.
Guillaume, op. cit., p. 208.
Tradition reports that the Prophet charged Ka’b ibn Malik with putting signs to delimit the territory of Medina. Hamidullah, Le Prophète de l’Islam, op. cit., vol. I, p. 127.
In fact the document, among other topics, dealt with defence, legislation and administration of justice.
We give, as example, the regulations relevant to marriage, succession and the tax called sadaqah.
The city-state of Medina, during the lifetime of Muhammad, maintained the federal structure and did not achieve the unitary form because both the Emigrants and the Helpers kept some sort of internal autonomy and individual responsibility, as each tribe was to pay, as before, for the delinquencies of its members and for the ransom of kinsmen who were prisoners. But two new principles were introduced, namely, (i) The obligation of every tribe to produce anyone of its members who commits a wrong to a member of another tribe for vengeance to be exacted. (ii) The ultimate authority rested not with the chieftains but with Muhammad and, beyond him, God. This attitude was conspicuous in the discussions about the succession to power that took place immediately after the death of the Prcphet.
Guillaume, op. cit., p. 504.
Montgomery, Muhammad, op. cit., pp. 22-23.
The bay’a, pledge, to Abu-Bakr, although given by a limited number of the electorate in Medina, was construed as binding on all the Arabs. Such was the interpretation at least as regards the first three righteous caliphs. Tyan, op. cit., pp. 166-176.
Watt, Muhammad at Medina, op. cit., p. 217. When Muhammad died his coat was found pledged to a Jewish merchant in Medina.
Our view is based on the reports of ibn Manzur-Lisan al-’Arab’, and Abu Dawūd-Sunan; referred to by Hamidullah in his work on Le Prophète de l’Islam, op. cit., vol. I., p. 128.
The incident of Ka’b ibn al-Ashraf could be cited as an example. After Badr, he paid a visit to Mecca and was thought to have encouraged the leaders of Quraysh against the Muslims.
Montgomery, op. cit., pp. 84-8.
This could be inferred from Article 50 of the Conventions which states that “No collective penalty, pecuniary or otherwise, shall be inflicted upon the population on account of acts of individuals for which it cannot be regarded as collectively responsible.”
For details see: (i) Greenspan, Morris, Modern Law of Land Warfare, California 1959, pp. 407–13. (ii) Castren, Erik, The Present Law of War and Neutrality, Helsinki 1954, pp. 60-72.
Castren, op. cit., pp. 77-8.
Castren, op. cit., p. 69.
Ameer Ali, op. cit., p. 80.
Lane, Poole, Selections from the Koran, Introduction, p. IXV.
Expulsion was the punishment inflicted on the Nadir although they were accused of attempting an assault on the Prophet. When the Prophet heard the sentence he murmured “It is their destiny decided by the God of the seven heavens,” a reaction which shows that he did not applaud it. Anyhow, in his powers as head of state, the Prophet granted free pardon in some individual cases. Hamidullah, Le Prophète, op. cit., p. 389.
The Deuteronomy is “the fifth book of the Pentateuch, called in Hebrew Debarim (words) … It is composed in the main of the discourse which Moses is represented as having delivered, immediately before his death on the other end of Jordan, for the purpose of teaching the Israelites the laws which they have to obey and the spirit in which they were to obey them when they should be settled in the Promised Land.” The Jewish Encyclopaedia, New York and London, MDCCCVII, vol. IV, pp. 538-9.
Deut., XX: 10–15 — The Holy Bible, The British and Foreign Bible Society, London 1955, pp. 201-2.
This is not a case of applying the Jewish law to Muslims. Here Muslim private international law tolerates the application of a foreign law due to the existence of a foreign element in the conflict on whom law is to be inflicted.
Paret, R. Umma, an article in the Encyclopaedia of Islam, London and Leyden 1934, vol. iv, p. 1015.
Qur’ān; II: 143.
Qur’ān; III: 110.
This conception was implied in ’Umar’s policy when he reorganized the Muslim state.
Watt, Muhammad at Medina, op. cit., p. 241.
The delicate concept of ummah is used at present to show the modern national divergences of the Muslims. In this sense we speak, for example, about the Arab ummah.
Qur’ān; IV: 59.
Levy, R., The Social Structure of Islam, Cambridge 1957, p. 276. Levy, in a footnote on the same page, compares the Muslim state, in that respect, with the Ancient Israelite community, and adds that in Roman jurisprudence the ius sacrum was part of the ius publicum, while the emperor was also “pontifex maximus.” Subtle differences render this comparison rather unacceptable. The Jewish community was split into two co-existing kingdoms, that of Jadah and that of Ephraim. “The two seats were rarely friendly.”
Although under the principles of modern international law, a fixed territory is a substantial prerequisite for an entity to claim to be a state, yet writers are not agreed on the legal nature of that territory.
Khadduri provides that “We may argue from a philosophical viewpoint, that Islam, as a universal religion, laid emphasis on individual allegiance to a point which recognized no boundaries for its kingdom, for under a system which claims to be universal territory ceases to be a deciding factor in the intercourse among people” — Khadduri, op. cit., p. 46. This interpretation is obviously inspired by the idea of the universal state which will be a topic of discussion later.
Fenwick, op. cit., p. 105.
Hall, International Law, p. 81 — quoted by Fenwick, op. cit., p. 105 (in the footnotes).
In Arabic literature and tradition “mastery” implies only the su’udud, supremacy and prestige. But mulk or sultan less satisfactorily translated “royalty” and more precisely “monarchy” indicates the political authority and right to enforce the chief’s will, which amounts to the powers of the state in modern terminology. Ibn Khaldūn, Prolegomena, p. 139
Carlston, Kenneth S., Law and Structures of Social Action, London 1956, p. 58.
Tyan, op. cit., pp. 382-85. But that does mean the caliph was a kind of pope with the spiritual jurisdiction over the Muslims.
Here the legal status of the caliph could be compared with that of the Basileus of Byzantium.
The Sunnis are the party to whom the historical caliphate belongs. “The majority of Muslims are Sunnis claiming that they follow the sunnah, the habitual usage of the Prophet, of his companions, of the first four rightly guided caliphs and of the immediate successors.” Dermenghim, Emile, Muhammad and the Islamic Tradition, New York and London 1958, p. 66. The Shi’is believe in’ Ali and his sons as the true imams. The Shi’is split into different camps on some issues. They assigned to the Imam an exalted authority as an exponent of divine truth. The Kharijis formed the earliest religio-political sect and adopted the motto: La hukma illa li-Allah and became ruthless opponents of both the Sunnīs and the Shī’īs. For more information on this subject see: Arnold, Sir Thomas W., The Caliphate, Oxford 1924; El-Sanhoury, Abdel Raziq, Le Caliphat; Ridda, Muhammad Rashid, Al Khilafa aw al-Imamah al-Kubra, Cairo.
In our view, this tripartite division of the Muslim State was a de facto division if we consider the allegations of each of the three caliphs.
Some writers adopted a tripartite division: The World of Islam, the World of War and the World of Covenant. We will refer to this discussion in more detail, in the third part of this study.
“Arabism fell, but Islam continued, and under the guise of international Islam, Ira-nianism marched triumphantly on” Hitti, op. cit., p. 207.
The Fatimid caliphate, which transferred its main seat to Cairo in A.D. 969 was a Shi’i one.
This was repeated in 1922, when the Turkish Abdul-Majid was made caliph with no political powers whatever until the caliphate was definitely abolished by the Kemalist government in March 1924.
The Turkish law of nationality, for example, Turkey under the influence of the European powers, introduced the principle of jus loci instead of jus religionis. This is no doubt a nationalistic trend which, in the course of time, became emphasized, as shown in the history of Turkey. Gardet, Louis, La Cité Musulmane (Vie Sociale et Politique), Paris 1954, p. 29.
Duguit, Leon, Traité de Droit Constitutionnel, vol. I, Paris 1927, pp. 453, 536-7.
Reglade, Marc, “Perspectives qu’ouvrent les Doctrines du Doyen Duguit pour un renouvellement et l’Étude du Droit International Public,” R.G.D.I.P., vol. XXXVII (1930), pp. 396 et seq.
Scelle, George, Manuel de Droit International Public, 3rd éd. Paris 1948, p. 507.
Krabbe, Hugo, The Modem Idea of the State, English translation, New York and London, 1927, p. 241.
Kelsen, Hans, General Theory of Law and State, translated by Anders Wedverg, Stockholm 1945.
Verdross, Alfred, “Règles Générales du Droit International de la Paix,” R.D.G.A.D.I., vol. 30, (1929 V), pp. 275–507.
Guggenheim, Paul, Traité de Droit International Public, Genève 1953/54, vol. I, pp. 171, 210 et seq., 283, 284 et seq., 305 and 310 et seq.
Lauterpacht, Sir Hersch, International Law and Human Rights, London 1950, p. 38. See infra, Part II, Ch. 3.
The authenticity of Muhammad’s message to the Persian emperor is accepted by many authorities on the subject. To this effect see the data mentioned in Hamid-Allah, Majmu’at al-Wathā’iq, op. cit., p. 76. The Persian emperor was likely to have reacted to it in a hostile manner since it was a message sent by an Arab individual who dared to challenge the emperor’s supremacy. Presumably the emperor must have shown his belligerent sentiments on this occasion.
Phillipson, op. cit., vol. I, pp. 309, 329, 330 and 332.
Arberry, A. J., The legacy of Persia, Oxford 1953, pp. 1–38.
Phillipson, op. cit., vol. II, pp. 205-6.
Watt, Muhammad at Medina, op. cit., p. 345.
Phillipson, op. cit., vol. II, p. 187-88.
The Prophet’s ambassador to the Ghassanid prince, a feudatory of Byzantium, was cruelly murdered. “This wanton outrage on international obligations became eventually the cause of war which placed Islam in conflict with the whole of Christendom.” Ameer Ali, op. cit., p. 90-91.
Taub, op. cit., p. 366.
Roux, Jean Paul, L’Islam en Occident (Europe-Afrique), Paris 1959, pp. 68–9.
See the third part of this study about the adaptability of the Islamic law to the uses of peace.
Nassbaum, op. cit., p. 107.
The comparison between the Muslim doctrine and the modern international law will be reviewed in the third part of the present study.
The Muslim theory of international law will be scrutinized in the third part of the present work.
Al-Sarakhsee was called Shamsul a’imma (the Sun of Leaders). He died in 671 A.H.
The view above mentioned of al-Sarakhsee is quoted in ibn Abdīn-Radd el-Muhtăr, part III, p. 29.
Ibn Abdullah, Al Hassan in his book entitled Athārul-Uwal fi Tartibel-Duwal, Cairo 1295 A.H. The book was originally written in A.H. 708.
Khadduri, War and Peace, op. cit., p. 70 (note 45).
Khadduri, War and Peace, op. cit., pp. 70-1.
Laurent, op. cit., vol. 7, p. 255.
Nys, op. cit., p. 157.
Nys, op. cit., p. 159.
Nys, op. cit., p. 158.
Gilbert de Noget, quoted in Laurent, op. cit., vol. 7, p. 266.
“C’est une inspiration de la divine Providence qui a forcé les ordres militaires, le Christ a maintenant ses chevaliers, qui peuvent en toute conscience frapper les ennemis, car ils combattent au nom de Dieu.” Nys, op. cit., p. 142.
Ameer Ali, op. cit., pp. 207 and 220-21. Words between brackets are quoted from Draper, History of Intellectual Development of Europe, vol. ii. p. 22.
Laurent, op. cit., vol. 7. p. āāā.
Qur’ān; IX; 10.
Al-Sarakhsee, op. cit., vol. I, p. 31.
Qur’ān; IX; 8.
Watt, Muhammad at Medina, op. cit., p. 244.
This meaning could be inferred from the letter of the Prophet to the tribe of Ghifar “the Prophet covenants (’ahada) to them the dhimma of God and the dhimma of His Messenger.”
As was the case, for example, in the letter of the Prophet to the clan of Hadas of Lakhm: “who performs his duties is secure by the dhimma of God and the dhimma of Muhammad, but if he apostasizes the dhimma of God and the dhimma of Muhammad His Messenger is free of him.”
Watt, Muhammad at Medina, op. cit., p. 246.
Al Sarakhsee, op. cit., vol. I., p. 31.
Nys, Ernest, Les Origines du Droit International, Bruxelles et Paris 1894, pp. 269, 271.
Watt, Muhammad at Medina, op. cit., p. 244.
cf. Part Three of this study for more details.
Capitulations in Iran were abolished in 1928.
Daftary, op. cit., pp. 25-7.
This came into practice only when the Islamic state was strong enough to enforce its conditions on its adversaries.
“Fight against such of those who have been given the Scripture as believe not in Allah nor the Last Day, and forbid not that which Allah hath forbidden by His Messenger, and follow not the religion of truth, until they pay the tribute (jizya) readily, being brought low.”
“Or dost thou ask of them (O Muhammad) any tribute? But the bounty of thy Lord is better, He is best of all who make provision.”
Hitti, op. cit., p. 171.
The law in Saudi Arabia still confines the right of citizenship to Muslims only. Non-Muslims could not acquire the Saudi nationality. Hence, all dhimmis residing in the Saudi territory are nationals of foreign states.
Kroff, Baron S. A., “An Introduction to the History of International Law,” A.J.I.L., vol. 18, No. 2. p. 247.
Hitti, op. cit., p. 643.
Taub, op. cit., p. 393.
Hamidullah, Muslim Conduct, op. cit., p. 64.
Taub, op. cit., p. 392.
Nys, Ernest, Les Origines, op. cit., pp. 209, 210.
Taub, op. cit., p. 394.
This aman was often granted even to the Crusaders, with whom “soon agreements were entered into so that hunting parties may be free from danger of attack. Safe-conducts for travellers and traders were often exchanged and usually honoured by both sides.” Hitti, op. cit., p. 643.
Some writers go so far as to assert that the institution of aman is of Roman origin. We believe that this assertion is wrong. The Islamic aman is the development of the pre-Islamic Arab system of jiwar.
Abdulla, Muhammad, Al Muqaranat al Tashrī’iyah, Cairo, 4 vols. 1947. As an example, compare the Islamic dictum “al-’aqd shari’at al-muta’qidīn” — the contract is the Shari’a, or sacred law, of the contracting parties — with the French expression of the same principle in Article 1134 of the French Civil Code: “Les conventions légalement formées tiennent lieu de loi entre les parties contractantes.”
Islam caused a rupture in the European equilibrium which resulted in the establishment of the Empire of Charlemagne and consequently gave an opportunity for Germanism to play its part in history. Now a Romano-Germanic civilization developed. This paved the way for the Renaissance.
James Brown Scott called Vittoria the founder of International law. Scott, Discovery of America and its Influence on International Law, p. 7.
Some called Gentili the real father of international law because of his achievement in the method of writing on international law which was far more realistic than that of any of the other classical writers since he restored contemporary practice as a source of law. This tendency is ikely to be due to an Islamic influence. Muslim jurists dedicate to practice a considerable room among sources of law.
Hamidullah, Muslim Conduct, op. cit., p. 65.
De Santillana, D., Law and Society in the Legacy of Islam, ed. Sir Thomas Arnold and Alfred Guillaume, Oxford 1931, p. 310.
Habachy, Saba, An introduction to the work of Professor J. N. D. Anderson entitled “Islamic Law in the Modem World” London 1959, p. X.
Khadduri, Islam and the Modern Law of Nations, op. cit., pp. 362, 364.
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© 1968 Martinus Nijhoff, The Hague, Netherlands
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Al Ghunaimi, M.T. (1968). Evolvement of Muslim International Law. In: The Muslim Conception of International Law and the Western Approach. Springer, Dordrecht. https://doi.org/10.1007/978-94-011-9508-9_3
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