Islamic International Law (Book)

Author: Mehdi Khosravi Sereshki

• abstract

Islamic International Law (in persian: حقوق بین‌الملل اسلام), is the third volume of the ten-volume series "Political Jurisprudence" by Abasali Amid Zanjani. It critiques both Western and Eastern international legal systems while proposing an Islamic alternative. The book addresses ongoing debates in Islamic jurisprudence and law, such as the role of reason and custom in international law, the system of Imamate and the concept of a unified global community, the historical perspective of Islam concerning international legal norms and principles, the legal and jurisprudential definitions of homeland, country, and state, the jurisprudential classification of Islamic states and territories, the significance and authority of Muslim rulers' opinions, the independence and sovereignty of Muslim states, and the relationship between the Islamic world and the world of disbelief in the context of peace or conflict.

Significance of the book

Each volume of the ten-volume series "Political Jurisprudence," authored by contemporary jurist Abāsalī ʿAmīd Zanjānī (1937-2011), encompasses a significant theme. The third volume specifically addresses Islamic international law, highlighting its importance as it critiques both Western and Eastern international legal systems from a legal and jurisprudential perspective. It presents an Islamic framework regarding international law and the establishment of a unified global community. Additionally, it provides a historical account of Islamic international law from the era of Prophethood to the present day, discussing in detail legal and jurisprudential issues related to homeland, nation, state, and the jurisprudential classification of nations, the distinction between Dar al-Islam and Dar al-Kufr, independence in governance and Islamic sovereignty, and the relationship between the Islamic world and the world of disbelief based on peace and security or jihad and warfare.

The author

Amīd Zanjani (1937 - 2011) the author of the book, was a mujtihid, university professor, and political science researcher. He studied in the religious seminaries of Qom and Najaf under prominent scholars such as Seyyed Hossein Burujerdi, Seyyed Ruhollah Khomeini, Seyyed Abul-Qasem Khoei, and Seyyed Mohsen hakim. The ten-volume series on political jurisprudence, is his well-known work in political jurisprudence, which has been reprinted multiple times. He also had experience in the political arena, having served as a representative in the Islamic Consultative Assembly and the Assembly of Experts.

The thematic structure of the book

The book was published in 1998 by Amir Kabir Publishing in Tehran. This work consists of four sections, with the first section dedicated to international law perspectives, critiquing the international legal system, and presenting a three-stage Islamic framework regarding international law and the establishment of a unified global community.

The second section of the book, titled 'The Foundation of International Islamic Law', addresses the fundamentals, formulation, sources, enforcing guarantees, and historical perspectives of Islam regarding international law. The third and extensive section of the book (comprising over 200 pages) discusses legal and jurisprudential issues related to the definition and recognition of homeland, country, state, and Islamic territories, emphasizing the role of government and independent sovereignty. The final and fourth section focuses on peace, war, and security, proposing the theory that peace is the default state in the relationship between the Islamic world and the world of disbelief, rather than jihad and war.

Jurisprudential approach of the book

In the third volume of Political Jurisprudence, the author presents three main approaches in Islamic international law.

1. The three-phase plan of Islam for a unified global system: In the first section of the book, ʿAmīd Zanjānī critiques current international law perspectives and discusses Islam's three-phase approach to establishing a unified global system and an ideal Islamic system. He asserts that the theory of a global community of a unified ummah, framed within the political system of Imamate, does not imply the negation of nations or the destruction of states. Furthermore, the path to achieving this ideal system is not solely through jihad, as this method does not align with the essence of Islam, the political principles of the Quran, or the practices of the Prophet and the Imams. Consequently, Islam adopts a pragmatic view of global issues and outlines three phases for the establishment of an Islamic global system.

a) Establishing international communications and adhering to a just international legal system b) Utilizing two strategies of invitation to Islam and jihad to raise awareness and liberate nations while dismantling colonialism c) Progressing towards unity in belief and ideals, ultimately realizing the concept of a unified global community in the long term through Imamate harmonious with Ummah (pp. 71-73).

1. The distinction between Islam and Marxism in establishing a global government: Elucidating the foundation of Islamic international law and comparing Islam and Marxism, the author asserts that both schools eliminate the separation between nations and states, yet their approaches to creating a unified global government differ. Islam's framework is founded on the principles of freedom, dignity, and individual choice, addressing both individuals and communities, whereas Marxism focuses solely on society, employing coercive and dictatorial methods. Furthermore, the concept of piety in Islam is not individualistic and transcends racial, familial, class, geographical, and other privileges, emphasizing that the primary objective of all Islamic legal regulations—whether individual, social, or international—is the enhancement of humanity, making piety an indispensable principle in all contexts (pp. 82-83).
2. Sheikh Ṭūsī, the pioneer of compiling comparative international jurisprudence: Here, the author of the book identifies Salman Farsi as the first Shia author on Islamic international relations, who documented the cultural-political relationship between the Prophet of Islam and the Roman Emperor in his work "Hadith al- Jathālīq al-Rūmī." Furthermore, he notes that during Sheikh Sheikh Ṭūsī 's era (995-1067) and the flourishing of Shia jurisprudence, his two works, Al- Khilāf and Al- Mabsūṭ, initiated a transformation and marked the beginning of political jurisprudence and Islamic international law through a comparative analysis of legal opinions, particularly with the chapters on "Al-Siyar" and "Al-Jizyah" in Al-Khilaf and the chapter on "Al-Jihad and the practice of the Imam" in Al- Mabsūṭ (pp. 101-102).

The Western understanding of international jurisprudence through Oriental studies

Oriental and Islamic studies by Western historians, sociologists, legal scholars, and philosophers have led to their understanding of Islamic international law. ʿAmīd Zanjānī claims that this understanding began with their familiarity with the book 'Al-Siyar Al-Kabir' by Muhammad ibn Shaybānī (749 CE), a prominent Sunni Iskamic jurist and student of Abu Hanifa, followed by the four-volume commentary by Sarakhsī (1090 CE) on this work, the first translation of which occurred in 1825 CE (pp. 102-103).

The broad scope of reason in discovering legal rules

After discussing the primary sources of Islamic international law, namely the Quran and Sunnah (from page 105), the author proceeds to examine other sources such as consensus, reason, custom, contracts, and governmental rulings. In explaining reason, he raises questions and provides answers regarding why certain matters remain unaddressed in religious texts and revelation (from page 110). Ultimately, he concludes that 'in the Islamic legal system, the scope for the application of reason is extensive and it can be utilized in all legal domains to discover legal rules' (pages 112-113).

Reason and custom operate independently and do not overlap

From the author's perspective, customary law holds significant importance due to the lack of conventional and positive rules in international law. The author then examines the sources of customary law, noting the existing disagreements among Islamic jurists, with some citing rational foundations and others referring to traditions (Prophetic Hadith) as the basis for the authority of customary law. Furthermore, customary law has an independent application in Islamic jurisprudence, sometimes forming legal rules on its own and at other times indirectly leading to the discovery and interpretation of legal principles. The author also discusses the relationship and overlap between reason and custom, asserting that the domains of these two are distinct; the realm of custom is a part of practical reason where theoretical rational foundations are absent (pp. 114-117).

International agreements, as an introduction to the establishment of a unified Islamic global community

Contracts are the fundamental source of legislation in modern international and public law. The book's author asserts that all contracts, as long as they align with Islamic tenets, create legal obligations. He further states that the global strategy of Islam is founded on the expansion of common ground among nations and the achievement of a global community united by a shared ideology and value system. Therefore, respect and adherence to multilateral and international agreements are essential for realizing this objective (pp. 117-118).

The validity of governmental decrees and the opinions of the Muslim leader

Apart from divine revelation, reason, custom, and contracts, ʿAmīd Zanjānī categorizes other sources under the title of "governmental rulings" and notes that the extent of their jurisdiction is not universally agreed upon by all Islamic jurists. He emphasizes that the position of Imamate and the political leadership of the community entails a form of temporary and pragmatic legislation within the scope of the leader's responsibilities, supported by verse 59 of Surah An-Nisa (the command to obey those in authority). He also points out the misuse of governmental rulings by rulers and caliphs, which indicates the complexities and sensitivities involved in their implementation. The governmental rulings and viewpoints of the Imam of Muslims hold validity not as those of a head of state, but because he is the leader of Muslims worldwide, similar to the legitimacy of agreements between countries and the Pope's role as the spiritual leader of Catholics globally (pp. 118-120).

In the continuation of the second part of the book, ʿAmīd Zanjānī provides a historical perspective on the international relations of Islam, tracing from the era of the Prophet Muhammad (including his interactions with Arab tribes, neighboring states, and the two powers of Iran and Rome) through the caliphs, the Ottoman Empire, and into the present day (following World War I and the dissolution of the Ottoman Empire). He concludes by highlighting the global impact of the Iranian Islamic Revolution and the Islamic Republic, viewing it as a beacon of hope for the revival of Islamic international law principles, asserting that this is not merely a dream but a reality supported by evident effects and reasons (pp. 121-144).

A belief-based relationship between faith and homeland

In the opening of the third section of the book, Amid Zanjani considers issues such as the state, government, nation, the recognition of countries, and the territorial sovereignty of governments, foreign policy, and diplomacy to be part of Islamic law, asserting that each of these topics can be thoroughly explained within Islamic jurisprudence. He then introduces the concept of 'land for living' followed by 'freedom of residence or free homeland,' concluding that the fundamental principle is the freedom of residence and homeland, with exceptions outlined in verse 98 of Surah An- Nisā, which necessitates migration and the choice of a better homeland when there are no means or resources available to improve living conditions in a particular city or country.

When addressing the well-known narrative "Love of the homeland is part of faith," the author interprets it as a reflection of the connection between faith and a person's permanent residence. This implies that a belief-based relationship with one's homeland necessitates affection and love for it; in the absence of such a relationship, there will inevitably be a lack of love and interest. The author notes that this concept contrasts with the common interpretation that mere affection for one's homeland (city or country) due to residency is a component of faith (p. 155).

The classification of nations in Islamic jurisprudence (fiqh)

In his discussion of the components that constitute a nation, ʿAmīd Zanjānī considers Ummah (the community of believers) as the advanced form of the nation (p. 199). After examining elements such as ideology, faith, national unity, and nationality based on nationalism, he proposes 15 jurisprudential classifications of nations.

1. A community that is entirely Muslim: The Islamic Ummah.
2. Migrants to Islamic territories.
3. Oppressed Muslims: residents of non-Islamic lands.
4. People of the Book who have agreements with Muslims: Dhimmis or those paying Jizya.
5. Non-hostile disbelievers with contracts with Muslims: People of Honor.
6. Nations that cease hostilities with Muslims after abandoning war: People of Withdrawal.
7. Nations that have peace treaties with Muslims: People of Peace.
8. Individuals who have entered into a pact of security (amān) with Muslims: The People of Security.
9. Nations that are currently in a ceasefire with the Islamic state and have temporarily halted hostilities: The People of Truce.
10. Nations for which Muslims lack the capacity to engage in jihad and provide support: The People of Treaty.
11. Nations that have a form of agreement with Muslims: The People of Covenant.
12. Nations that are in conflict with: The People of War.
13. Groups that disrupt the order and security of Muslims and cause corruption: The People of Corruption.
14. Insurgents who rebel against the government with the aim of overthrowing the Islamic system: Rebels.
15. Groups that resist the implementation of Islamic laws and turn away from the faith: Apostates.

In discussing the political geography of the Islamic world, the author revisits the jurisprudential rulings concerning thirteen non-Islamic territories: Dar al-Harb, Dar al-Dhimmah, Dar al-Ahd, Dar al- Amān, Dar al-Hudnah, Dar al-Hiyad (Abstention), Dar al-Muwada'ah, Dar al-Sulh, Dar al-Hijrah, Dar al-Istida'af, Dar al-Baghy, and Dar al-Riddah (pp. 257-340).

Five hundred verses concerning the land, yet there is a lack of a single jurisprudential reference!

The author of the book expresses surprise at the fact that the term «ارض» (land) appears 500 times in the Quran, yet none of the Islamic jurists have referenced any Quranic verse to substantiate the right of ownership and property (pp. 221-222). He categorizes the allocation of land to individuals, both as a legal and symbolic concept, into three types: private lands, public lands (such as those occupied by Muslims through war or peace), and state lands (like the properties of the state and unclaimed lands), as well as the territory or domain of governance. ʿAmīd Zanjānī cites verses that attribute land to nations, which, while not indicating ownership, suggest a form of allocation with legal implications. He also refers to certain verses containing the words «دار» (home) or «دیار» (habitat) and provides explanations for them (p. 224). Furthermore, Islamic jurists classify homeland into three main categories: the birthplace (original homeland), customary (place of residence), and legal (settlement), although some of them do not recognize a legal homeland (pp. 226-227).

An independent government, a political criterion for defining an Islamic state

According to the author, classifying the land into Islamic and non-Islamic territories (Dar al-Islam and Dar al-Kufr) is not explicitly stated in the Quran; however, Islamic jurists have proposed this classification based on credible narrations (pp. 223-225). Consequently, the Islamic world (Dar al-Islam) encompasses all individuals who, regardless of land, color, race, language, and similar factors, adhere to the principles of Islam. Conversely, the opposing side includes all non-Muslim nations, including the People of the Book, idol worshippers, materialists, communists, and others. As ‘Allāmah Ṭabāṭabā’ī states in his Tafsir al-Mizan, 'The boundary of an Islamic country is based on belief, not geographical limits' (pp. 228-229). The author then discusses the legal implications of the Islamic homeland (Dar al-Islam) (from p. 230) and also refers to the Islamic territories (where Muslims are numerous) and the territories of disbelief, which pertain to domestic rights (p. 232).

The author subsequently explores the political geography of the world from an Islamic perspective, as well as the concept of Dar al-Islam, arriving at six theories which he critiques and examines. Ultimately, he discusses the role of government in the context of the Islamic homeland (pp. 232-245). He defines the political boundaries of the Islamic homeland as territories where Muslims possess independence, with these boundaries inevitably delineated by natural or artificial barriers (p. 247). Furthermore, due to the significance of sovereignty and government in political geography, he delves into these two subjects along with the legal and jurisprudential foundations for recognizing states and nations (pp. 341-364).

Peace with the Dar al-Kufr (the abode of disbelief) the default principle, or is it war and jihad?

The author dedicates the fourth and final section of the book to the foundations and principles of peace and security, elaborating on legal and Islamic discussions in detail (approximately 100 pages). He argues that peace and war, as established in international positive law, represent the foremost issue, and similarly, in Islam, they form the basis of political and foreign jurisprudence. Some Islamic jurists believe that peace is the default state, rather than war. Consequently, in ambiguous situations, the principle of peace prevails. He further examines several theories related to this discussion:

1. The perspective of Orientalists suggests that jihad is the primary relationship between Dar al-Islam and the outside world.
2. Jihad is considered a voluntary and commendable act.
3. Warfare and jihad serve as means of guidance rather than an end goal; thus, when guidance can be achieved without conflict, that method takes precedence over warfare.
4. Jihad is regarded as obsolete.
5. It is positioned as a third stage following conversion to Islam or the establishment of a covenant.