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The Shorter Book on Muslim International Law: Kitab Al-siyar Al-saghir – Pdf Download

SHORTER BOOK ON MUSLIM INTERNATIONAL LAW
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 Shorter Book On Muslim International Law
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Muhammad al-Shaybani
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147
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SHORTER BOOK ON MUSLIM INTERNATIONAL LAW – Book Sample

PREFACE –  Shorter Book on Muslim International Law

The Muslim world is passing through a crisis that has several dimensions. For it is at once a crisis of identity, a crisis of economic viability and political survival, a crisis of culture and civilization, and, above all, a crisis of thought and belief. It seems that an intellectual void is facing the Muslim ummah which appears hard to be filled. The present conflict and tension in the Muslim world is attributable, in a large measure, to the push and pull of the forces contending to fill this void.

There is a general feeling in the Muslim world that the West is trying to fill this void. Many Muslims around the globe perceive the new world order as merely a neo-colonial project to force the Muslim world into a pre-planned scheme of things in which there will be little scope for them to develop their genius according to their own traditions and values.

It cannot be gainsaid that Muslims are awakening from a deep and long slumber. But at the present they appear to be only half way to a true self-consciousness and meaningful awakening. The effects of centuries-long inaction will certainly take time to overcome.

Many Muslims seem unable to have a clear perception of the future because of the hangover of the past. The Muslims seem at the present to be stumbling around in a condition similar to what a person feels soon after waking up when things appear for a while to be somewhat hazy. They do not have as yet a clear perception of what they ought to do and in which direction they ought to move.

SHORTER BOOK ON MUSLIM INTERNATIONAL LAW

In this situation the Shari’ah has an extremely vital role to play in filling the present void and shaping the future of the ummah. There can be no ummah without Sharf’ah nor could Sharl’ah function in abstraction without a tangible body of the ummah that is committed to apply the Sharf’ah. Both are necessary to each other. At the same time. it is obvious that the pathway of the Shari’ah cannot be trodden without the guiding light of Jjtihad.

In order to make modern life relevant to and compatible with the Sharz’ah and to make the Shari’ah understandable and enforceable in the modern context, bold and innovative steps need to be taken. We are under an obligation to develop and maintain an independent critical attitude towards the social, economic, scientific and other developments in the world around us.

We also need to understand the Shari’ah through its perennial sources in the context of today’s existential facts. At the same time, a restatement of the earlier interpretations has to go side by side with a keen and confident recognition of today’s global realities.

Developing a meaningful understanding of Sharia

The need to develop a fresh, vigorous and meaningful understanding of the Shari’ah has been stressed by several Muslim thinkers, but most notably by Muhammad Iqbal, the foremost Muslim thinker of the twentieth century. Indeed, he was the first jurist in the modem world of Islam who invited the attention of Muslim scholars to the urgency and relevance of this task and to the realization of Muslim ideals as far back as the early twenties of this century.

He advocated a critical study of the legal and juridical concepts of the West with a view to establishing the universal applicability and relevance of the Qur’anic principles to the ever-changing conditions and requirements of human life. This was indeed a colossal task. It required a concerted and dedicated endeavour of several generations of scholars and jurists. Iqbal himself had dreamed to participate in undertaking this pioneering work. He also made an effort to team up competent scholars to be associated with him for this purpose.

Once he tried to persuade the celebrated Indian mu!Jaddith of the twentieth century, Mawlana MuI:iammad Anwar Shah KashnurI, to come over to Lahore and take up this work with him. In his last days, Iqbal tried to attract another young and competent scholar, Sayyid Abu’! A’la MawdudI, to move from Hyderabad to Northern India for this purpose. But no sooner had MawdudI moved to Punjab in response to Iqbal’s invitation than the latter unfortunately passed away. Iqbal’s passionate appeal, however, did not go in vain.

Pioneers in the field

Several scholars both in and outside the Indian Subcontinent undertook this work in their respective areas of interest and specialization. Muhammad Hamidullah, ‘Abd al-Razzaq SanhurI, ‘Abd al-Qadir ‘Awdah, Abu Zahrah, Mu􀀾tara Zarqa and Mut:iammad TaqI AminI are some of the highly respected names to whom goes the credit of pioneering this cause. These illustrious men, among others, have introduced new dimensions to the vast field of Islamic legal thought and research.

Likewise, there is need to restate not only the principles of Islamic jurisprudence but also the corpus Juris of Islam in a manner and a style that would invest the legal scholarship of Islam with greater vitality and ensure an appropriate place for it in the mainstream of legal thinking. At the same time, different branches of Islamic law need to be re-codified

INTRODUCTION – Shorter Book on Muslim International Law

Western writers on the history of international law generally believe that the Dutch jurist, Hugo Grotius (d. 1645 CE), is the father of the independent discipline called international law. To them this science is the product of the Christian civilization of Europe which was pressed by circumstances to develop a set of rules and principles to regulate the relations among the Christian nation􀀝- of medieval Europe.

Such a contention might be true about the European international law as developed approximately during the last fone hundred years, but it certainly fails to account for the 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 or African state was considered worthy of enjoying any rights or privileges. It was in 1856 that a non-Christian, albeit half­European, state-Ottoman Turkey-was partly recognized as a subject of international law, though some jurists still contended 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.

Rules into international laws

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-a-vis the non-Christian (barbarians’. These consisted mostly of the Muslim neighbours of Europe /Who were considered the objects, rather than the subjects 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 ((The word A ‘rab al-Muslimfn has been used in the original which literally means Muslim bedouins or Muslim desert-dwellers. Here the term refers to those Muslim bedouins who preferred to live in their own areas and did not choose to settle down in Madinah as many other migrants did.

Shorter Book on Muslim International Law

In those days the Holy Prophet (peace be upon him) required of every believer to migrate to Madinah where the nascent Muslim community was in need of greater manpower to protect itself from the onslaught of the surrounding hostile tribes. After the conquest of Makkah, this requirement was relaxed. See, for further details, Muhammad Hamidullah, ‘Ahd-i Nabawf Men Niz_.am-i Hukmranf (Karachi, 1981), pp. 262-283.)).  

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 definite 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.3 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 to recast the entire corpus of international law and to transform it into a truly transnational law, a common law of nations, a world law, a unified inter­social law ((According to Abu Yusuf, these directions were given when the Holy Prophet (peace be upon him) was still in the early years of his career in Madinah.

The law of Islam regarding warfare and international relations

The law of Islam regarding warfare and international relations was yet to take a final shape and many of its commandments were yet to be revealed. In that situation it was quite possible that something might be committed in the name of Allah and His Messenger without their having said or ordered it.)).

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 we shall see later, Muslim international law never faced the problem of lacking proper sanction and judicial forum to adjudicate disputes under it.

Shorter Book on Muslim International Law

Before we 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 contents, and identify the main questions which were discussed in the authoritative works on the subject during the early centuries of Islam.

Muslim International law, like other branches of Islamic law, is based primarily on the two fundamental sources – the Qur’an and the Sunnah. Like other branches of Islamic Law, its rules have been developed in…..

CHAPTER I

INSTRUCTIONS OF THE PROPHET ABOUT THE CONDUCT OF WAR  AND INTERNATIONAL RELATIONS

  1. Muhammad ibn al-Hasan al-Shayban narrates from Abu Han’ifah, on the authority of ‘Alqamah ibn Marthad, from ‘Abd Allah ibn Buraydah, from his father [Buraydah] who reports: “Whenever the Messenger of Allah, peace be on him, sent an army or a group of troops he used to admonish its leader to fear Allah in his personal behaviour and to be pleasant to the Muslims who accompanied him”.

Then he would say: “Fight in the name of Allah and in the way of Allah; fight only those who disbelieve in Allah. Do not misappropriate; do not commit treachery; do not mutilate [the dead]; and do not kill a child. When you meet the polytheists who are your enemy invite them to Islam. If they accept Islam, accept it from them and hold yourselves back from them. Then, invite them to move over from their territory to the territory of Muhajirun. If they do that, accept it from them and hold yourselves back from them. In case they do not, tell them that they are like other non-resident1 Muslims: they shall be subject to the injunctions of Allah applicable to other Muslims; however, they shall have no share in fay ‘ ((Fay’ means proceeds of the state from the enemy property other than war booty.)) of the state or in the spoils of war. If they refuse [to accept Islam], invite them to pay jizyah ((Protection tax paid by the non-Muslim citizens to the Islamic state in consideration of the protection provided to them by the state and in lieu of conscription. For details see Muhammad Hamidullah, Muslim Conduct of State (Lahore, 1987), pp. 104, 117, 171, 172, 241, 244.)).

Shorter Book on Muslim International Law

If they do that, accept it from them, and hold yourselves back from them. When you lay siege to the people of a fort or a city and they ask you to allow them to surrender, subject to the commandment of Allah, do not [commit yourselves to] do that, because you might not know what is the commandment of Allah regarding them. Rather, bring them to the acceptance of your own decision, and then decide about them according to your own opinion ((According to Abu Yusuf, these directions were given when the Holy Prophet (peace be upon him) was still in the early years of his career in Madinah. The law of Islam regarding warfare and international relations was yet to take a final shape and many of its commandments were yet to be revealed. In that situation it was quite possible that something might be committed in the name of Allah and His Messenger without their having said or ordered it.)).

When you lay siege to the people of a fort or a city and they ask you to grant them the guarantee of Allah and the guarantee of His Messenger, do not give them the guarantee of Allah or the guarantee of His Messenger; rather grant them your own guarantee and the guarantee of your forefathers for it is less grave if you were to fail to fulfil your guarantee and your forefathers’ guarantee”.

  • 2.             lbn ‘Abbas reports that khums (one-fifth of the war-booty) was divided during the days of the Messenger of Allah (peace be on him) into five shares: one share for Allah and His Messenger, one share for the kith and kin [of the Prophet], one share for the destitute (masakin); one share for the orphans; and one share for the wayfarer. He [lbn ‘Abbas] said: “Thereafter Abu Bakr, ‘Umar, ‘Uthman and ‘AII (may Allah be pleased with them) divided it into three shares: one for the orphans, one for the destitute (masakfn) and one for the wayfarers”.
  • 3.             It is reported that Abu Ja ‘far Muhammad ibn ‘Ali said that ‘An held the same view about khums as was held by his family members. But he disliked acting contrary to the views of Abu Bakr and ‘Umar.
  • 4.             It is reported that Ibn ‘Abbas (may Allah be pleased with them) said that ‘Umar offered to us that we may arrange for the marriage of our unmarried ((In the text, the word ayyim has been used which means any adult person who has no spouse, whether unmarried, widow, widower, divorcee etc. The reference in the text is to the difference of opinion about the management of the property allocated to the Holy Prophet (peace be upon him) as a part of Khums.

Shorter Book on Muslim International Law

‘Umar thought that it should be administered by the successor of the Holy Prophet (peace be upon him) in office while some of his family members, particularly ‘AH and Ibn ‘Abbas, in the beginning, were of the view that its administration be handed over to the Prophet’s family. But it is significant that during his own caliphate ‘AH did not change the practice followed since the days of Abu Bakr and ‘Umar. Abu Ja’far has referred to its reason in para 3 above.)) persons out of khums and pay our debts out of it. We refused to accept this and insisted that it should be handed over to us, and he [i.e. ‘Umar] refused to do so.

  • It has been reported that Sa’Id ibn al-Musayyab has said that the Messenger of Allah (peace be on him) distributed the khums on the day of the conquest of Khaybar ((A battle between the Muslims and Jews in 5 AH.)).  He distributed the share of the kith and kin among Banu Hashim and Banu’l-Mu􀁏􀁏alib. ‘Uthman ibn ‘Affan and Jubayr ibn Mut’im spoke to the Messenger of Allah (peace be on him) about this. They said: “We and Banu’I-Mugalib are equally related to you in kinship and lineage; but you have given them and excluded us!” The Messenger of Allah (peace be on him) said, “We and Banu’I­Muqalib have always been together, in the days of the lgnorance ((Ignorance or Jahiliyyah is a term given by the Qur’an to the un-Islamic state of affairs prevalent before the revelation of the Qur’an. Some recent scholars (e.g. Sayyid Qutb) have given a wider meaning to the term. They use it for a cultural and civilizational pattern different from that of Islam. To these scholars, the Jahiliyyah of pre-Islamic Arabia was only ajahiliyyah but not the Jahiliyyah.)) as well as in Islam”.
  • It is reported that Jabir ibn ‘Abd Allah said: “Khums was used to provide riding animals [to the persons going for Jihad] in the way of Allah. It was also spent in the emergencies faced by the people. But when wealth increased, it was also spent on other things”.
  • It is reported from lbn ‘Abbas that a man found his lost camel in the booty; this camel was earlier captured by polytheists. He asked the Messenger of Allah (peace be on him) about it. He answered: “If you found it before the booty was distributed, it is yours; but if you found it after the booty had been distributed, you may take it by paying its price if you wish”. 8
  • It is reported from Sha’bI that ‘Umar ibn al-Khattab had declared the people of Sawad9 to be the People of Dhimmah.

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