Laws on Foreign Relations and War

MIRRORS OF PRINCES

Sources

Ideals versus Reality . As Muslim law is theoretically a complete scheme for governing all areas of human life, the actions of the state fall under its view. In practice, however, the rules of government have tended to be bent or changed for purposes of expediency. Therefore, the laws for foreign relations and war (siyar) have tended to be ideals that are not applicable in changing conditions. Part of the reason for this lack of continuous application is that the early khilafah provided the primary political model on which the laws were based. Prominent in this model was the doctrine that the Muslim polity should be one and united. After all, the Madinan state founded by the Prophet was a single, unified polity under God speaking through Muhammad. The definitive breakdown of the unity of the khilafah that began in 740 and the growth of a multiplicity of Muslim states thereafter eventually gave rise to an acknowledgment, even in the law, of the possibility of multiple Muslim rulers. This concept was not at first well received, as in the dictum reported in a hadith: “If there are two khalifahs, kill one.” Eventually it was acknowledged because of the force of reality. Nevertheless, Muslims were still not supposed to fight each other (Qur’an 49: 9). Like a similar dictum in Christianity, this stricture proved impossible to uphold once Islam had spread over a large territory. Muslim religious scholars, however, still refused to sanction wars against other Muslims as just wars.

International Law . In theory, relations with non-Muslim states were also governed by Muslim law. The early khilafah did not acknowledge equal relations with other states; rather, the khalifah was the supreme representative of God on earth. Apart from accepting Islam and submitting to the khalifah as a Muslim, only two other options were conceivable: to fight or to send tokens of submission without adopting Islam. In the first case the Muslims would mobilize in the cause of just war (jihad) to extend the scope of God’s rule in the earth. In the latter case the khalifah would decide if the tokens of submission were sufficient or acceptable. Cities that surrendered on terms were usually given a Muslim governor and treaties guaranteeing the protection of the religious freedom, lives, and property rights of the inhabitants in exchange for the payment of a regular tax. This solution is mentioned in the Qur’an (9: 29) and is detailed in hadiths. However, a considerable variety of such treaties existed. Peoples on the fringes of the khilafah were sometimes able to avoid the residence of Muslims among them if they provided their own troops to the Muslim armies, in which case the tribute that they paid was only nominal. Such was the case with the Armenians under the early khilafah. Alternatively,

when some regions proved impossible to hold for military reasons, the Muslim commander was satisfied with a single payment and went away.

Legitimate Warfare . Once Muslims embarked on a just war, the idea was that it should be fought to victory (a widely held belief shared by Christian nations as well). To be just, a war also had to be fought under many restrictions, including the strictures that noncombatants were not to be killed or injured and that real property was not to be damaged even as a tactic to obtain the surrender of the enemy. Thus, cattle could not be killed wantonly, but they could be captured, and fruit trees were not to be uprooted. However, one’s commander also had to be obeyed, and there was naturally a reluctance in combat situations to examine the orders of the commander for their ethical content before acting. Rather, the troops simply obeyed. As a result, although the legal restrictions on warfare may have had some effect on the way the Muslims fought, they were not always applied.

Treaties . Quite early, situations arose where the Muslims were unable to carry on just wars, even against a resistant opponent such as the Byzantine Empire. Thus, while the Muslims were engaged in civil wars during the years 656–661 and 685–692, the khilafah made humiliating treaties with that empire, paying a substantial tribute to the emperor in exchange for peace. There was a sort of precedent for such agreements in the life of the Prophet. He had made the Peace of al-Hudaybiyyah with the Makkan pagans and their allies in 628 (mentioned in Qur’an 48: 1, 18–26 and 60: 10–11). This treaty required no payment of tribute but included provisions that some Muslims viewed as unfavorable. Still, the Muslims upheld it for two years, until they deemed that the other side had broken it. As the khilafah developed, this treaty and certain verses of the Qur’an (3: 64; 8: 61; 60: 7–9) became precedents for the concept of a temporary truce. That is, the khilafah should not establish any permanent peace with a non-Muslim state that was not submitting to the Muslims, but a truce could be made on that basis. As the khilafah proved unable to carry on any more significant military campaigns after 740 and failed to acquire any further territory, temporary truces gradually changed into truces for longer and longer periods. During these times of peace, it was sometimes necessary to consult the opposing side. Thus, the exchange of envoys began to take place more and more frequently. Muslim envoys did not, however, reside in non-Muslim territories permanently; rather, they were only sent out as needed. Even so, this practice eventually led to a growing cultural and economic exchange. A masjid (mosque) built for the Muslim prisoners in the prison at Constantinople where prisoners of war were held eventually gave way to a regular masjid for the use of visiting Muslims who were not prisoners. Likewise, a special church for Byzantine use was established at Baghdad (and there were many other churches functioning inside the khilafah).

Aliens and Travelers . Such conditions led to a considerable body of officially recognized laws about protected aliens from states not under Muslim rule. Such a person was described as a mustamin (a non-Muslim who has been given safe conduct by a Muslim ruler). For such a person to be received, he also needed a letter or document from his own ruler. This paper became like a passport, while the letter or document of safe conduct from the Muslim side was the equivalent of a visa. Muslims visiting non-Muslim states received similar documents and safe-conduct guarantees. Although these passes may have at first been viewed as temporary expediencies, as medieval times wore on they became regular features and are often mentioned in the travelogues of medieval travelers, both Muslim and non-Muslim. There remained some suspicion of Muslims traveling to non-Muslim lands, because until after 1200 few Muslims lived under non-Muslim control except in Spain and Sicily. The reverse was less true, because great numbers of Christians and Jews lived as protected communities (ahl al-dhimmah) in lands under Muslim rule and law. These communities, which were free to practice their religions and govern themselves under their own personal-status laws in exchange for the payment of a tax, often provided Muslims with traders and envoys to non-Muslim lands. This role especially fell to the Jews, who as neutrals between the religions of Islam and Christianity could serve as uncommitted intermediaries.

MIRRORS OF PRINCES

Nizam al-Mulk (died 1116) served as chief minister under two successive Saljuk rulers, Alp Arslan and Malikshah. As the Saljuks were warrior chiefs unused to administering an empire, Nizam al-Mulk compiled a manual of advice, experience and administrative plans to aid him in constructing stable government and a civil service. Apart from administrative theories and advice, the author often instructs the reader through examples of famous rulers in times past, in the tradition of the “mirrors of princes” literature.

Concerning tax collectors and constant enquiry into the affairs of wazirs:

1. Tax-collectors, when they are given a fiscal district, must be instructed to deal honorably with their fellow creatures, and to take only the due amount of revenue, and to claim that too with civility and courtesy, and not to demand, any taxes from them until the time comes for them, to pay; because when they demand payment before the time, trouble comes upon the peasants, and to pay the tax they are obliged to sell their crops for half [of what they would be worth when they ripen], whereby they are driven to extremities and have to emigrate. If any peasant is in distress and in need of oxen or seed, let him be given a loan to ease his burden and keep him viable, lest… he be cast out from his home into exile.
2. I heard that in the time of King Qubad there was famine in the world for seven years, and blessings [rain] ceased to come down from heaven. He ordered the tax-collectors to sell all the grain which they had, and even to give some of it away as charity. All over the kingdom the poor were assisted by gifts from the central treasury and [local] treasuries, with the result that not one person died of hunger in those seven years-all because the king chid his officers.
3. One must enquire constantly into the affairs of the tax-collector…. If he comports himself in the manner just described, the fiscal district can be kept in his hands, but if not. he must be changed for someone suitable. If he has taken more than is due from the peasants, it must be recovered from him and given back to them; after that if he has any property left, it must be seized and brought into the treasury. The officer should be dismissed, and never employed again. Others will then take warning and give up practicing extortion.

On obtaining information about the conduct of tax collectors, judges, prefects of police and mayors, and keeping them in check:

1. Let observation be kept in every city to see who there is in it who shows interest in religious matters, fears God (be He exalted) and is not self-seeking. Let such a person be addressed thus, “We have now made you responsible for the security of this city and its district. All that God asks of us, we shall require of you. We desire that you make constant enquiries and be always well-informed in matters small and great concerning the conduct of the tax … collector, the judge, the prefect of police and the inspector (of weights and measures) towards the people. Make us acquainted with the truth whether your findings are kept secret or made public, so that we may give our orders as appropriate.” If persons who are of the right quality refuse to accept this trust, they must be coerced and however reluctantly commanded to do it.

Source: Hubert Drake, trans,, The Book of Government or Rules for Kings: The Siyasat nama or Siyar al-Muluk of Nizam al-Mulk; (New Haven: Yale University Press, 1960), pp. 23, 49.

Sources

Muhammad Hamidullah, Muslim Conduct of State, seventh edition (Lahore: Sh. Muhammad Ashraf, 1977).

John Kelsay and James Turner Johnson, eds., Just War and Jihad: Historical and Theoretical Perspectives on War and Peace in Western and Islamic Traditions (New York: Greenwood Press, 1991).

Majid Khadduri, War and Peace in the Law of Islam (Baltimore: Johns Hopkins Press, 1955).

Muhammad ibn Hasan al-Shaybani, The Islamic Law of Nations: Shay-banis Siyar, translated by Majid Khadduri (Baltimore: Johns Hopkins Press, 1966).