The Sharia and Siyar in the Development of the Law of

Nations

Javaid Rehman, Brunel University,

BIICL 3 December 2007

Objective of this presentation:

• Highlight considerable inter-action Siyar and Sharia with International law

• Highlight Siyar’s contributions towards international law (and in so doing criticise the ‘eurocentric’ approaches of international law)

• Briefly identify controversies with Sharia and Siyar on• Jihad • Freedom of Religion• Concluding observations

Defining Sharia and Siyar

• What is Sharia?

• Islamic law often referred Sharia. But Sharia, not confined to legal norms, but provides a more holistic, broader picture–

• (Arabic translation of Sharia is ‘the road to the watering place’)

Sharia?

• Sharia (unlike Canon law) does not simply represent religious laws, but covers range of secular laws and ordinances.

• Include diverse eg international commercial law, criminal law, constitutional and administrative law, humanitarian and human rights law.

Defining Siyar

• Aspects of Sharia regulating international law and the conduct of States towards each other

• Variously described as ‘relationship of Muslim communities with non-Muslim communities’; ‘Islamic law of Nations’; ‘Islamic International law’

Defining Siyar

• Professor Hamidullah, Siyar as

‘[t]hat part of the law and custom of the land and treaty obligations which a Muslim de facto or de jure State observes in its dealings with other de facto or de jure States’.

Qualities of Siyar

1. Different from western counter-part (recognised as integral part of Sharia)

• Khadduri: ‘[t]he siyar, if taken to mean the Islamic law of nations, is but chapter in Islamic corpus juris, binding upon all who believed in Islam and upon those who sought to protect their interests in accordance with Islamic justice’

• 2. Siyar, like Roman or Medieval Christian law advocated theory of a Universal State & Subjugation of Other legal systems to Sharia

• Division Dar-ul-Islam (territory of Islam) Vs. Dar-ul-Harb (enemy territory)

Qualities of Siyar

• Ultimate Objective of Siyar – Prevail and implement Global Sharia

• (But with recognition of Permanence of Non-Muslim territories Siyar developed principles of inter-action between nations and communities)

Siyar and Law of Nations

• Numerous Contributions (though not often recognised)

1. Sanctity of Treaties:

• Principles within Islamic Law –

(a) Treaty obligations to be respected & followed in good faith (pacta sunt servanda)

(b) Genuine consent of parties

Contributions of Siyar

(c) Provisions must not be coercive, unjust or oppressive towards one party

2. Trade and Commerce

Principles within Islamic Law –

Prophet’s Sunna – custom (personal life: marriage to Khatija – business women/Financier)

Contributions of Siyar

• Trade and Commerce: Substantial Imprint on Western/European lawsEg Bills of Exchange & assignment of debts (hawalah) practiced by Islamic States during 8th Century adopted subsequently by western Europe

Aval of medieval French law derived from hawalah

partnership laws, including the mufawada (unlimited, universal partnership) and inân (limited investment partnerships).

Common law doctrine of ‘Trust’ derived from Sharia principle of Waqf.

Contributions of Siyar

• 3. Contributions to law of Diplomatic Immunities

• Pledge of aman – ensured safety for Non-Muslims in foreign lands (also applicable to Diplomats)

• 4. Arbitration• Sunna of Prophet

Contributions of Siyar

• 4. Arbitration:

• Principles within Islamic Law –

• (a) free selection of arbitrators

• (b) parties to agree to submit dispute to arbitration

• ( c) parties bound by decision

• (d) parties comply with the decision

Controversies with Sharia and Siyar

• Jihad –

• while forming Integral part of Jihad, aggressive use of force only one (and indeed limited) aspect of Jihad.

Controversies with Sharia and Siyar

• Freedom of Religion and Rights of Minorities

• Classical Sharia discriminatory, but within Islam (Quran and Sunna) principles of providing rights for religious minorities

Conclusions

• (1) Sharia and Siyar considerable contributions in the Development of Law of Nations

• (2) Contributions often not-acknowledged

• (3) Aspects of classical Sharia and Siyar contravene modern international law (eg rights of minorities) though possibilities of reform.