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 laws
Eg 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 NonMuslims 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.