Meaning and Method of the Interpretation of Sunnah in the Field of Siyar: a Reappraisal
MEANING AND METHOD OF THE INTERPRETATION OF SUNNAH IN THE FIELD OF SIYAR: A REAPPRAISAL
Mohd Hisham Mohd Kamal
This article focuses on the application of Sunnah as the second primary and divine source of siyar, or Islamic international law. I will argue that the meaning of Sunnah must be broadened in order to include benefi- cial pre-Islamic practices in the law of nations which were approved or exercised by Prophet Muḥammad. I also contend that reports of the sayings as well as the conduct of the Prophet in respect of inter national relations should not be interpreted literally but rather with consideration of the context in which the Prophet delivered such sayings or acts. The Arabic word “siyar” is the plural form of “sirah”, which means behavior. Technically, siyar is the branch of Islamic law that prescribes the behavior of Muslims, whether States or individuals, in dealing with non- Muslims, whether States or individuals, in international relations. Abū Ḥanīfah (699–767) was the first to develop siyar. His disciple, Muhammad ibn al-Hasan al-Shaybānī (749–805), wrote the first treatises on the subject matter named al-Siyar al-Saghir and al-Siyar al-Kabir. Muhammad ibn Ahmad al-Sarakhsī (d. 1096) wrote the Explanation to, or Sharh, al-Siyar al-Kabir. In this millennium, Ahmad Abu al-Wafa produced the volumes entitled Kitab al-I’lam bi-Qawa‘id al-Qanun al-Duwali wa-al- ‘Alaqat al-Dawliyyah fi Shari‘at al-Islam.1 Existing literature on Islamic international law identifies the Sunnah as the second source of Islamic international law.2 However, the existing literature does not include beneficial pre-Islamic practices of nations approved by Prophet Muḥammad within the scope of the Sunnah and does not specifically discuss the method of interpreting the Sunnah in the field of siyar. This justifies the present work.
1 Ahmad Abu al-Wafa, Kitab al-I’lam bi-Qawaid al-Qanun al-Duwali wa-al-‘Alaqat al-Dawliyyah fi Shari‘at al-Islam (Cairo: Dar al-Nahdah al-‘Arabiyyah, 2001). 2 Ibid., Vol. 1, 66–71; Muhammad Hamidullah, Muslim Conduct of State (Lahore: Kashmiri Bazar, 1945), 18–20; Mohammad Talaat al-Ghunaimi, The Muslim Conception of International Law and the Western Approach (The Hague: Martinus Nijhoff, 1968), 112ff.
The Second of the Two Divine Sources
Allāh, the Creator, is also the Law-Giver. From the concept of His all- knowing, all-powerful character it follows that He does not make any mistake. Islamic law is the law ordained by Allāh to humankind. As a consequence, there are two divine sources of Islamic law, namely the Qur’ān and the Sunnah. Whereas the Qur’ān is the Book containing the words of Allāh revealed to Prophet Muḥammad in Arabic language through Gabriel, the Sunnah means sayings,3 deeds, and approvals of the Prophet. The Sunnah is divine since the Prophet spoke, acted, and approved in accordance with divine inspiration.4 Muslim jurists unani- mously agree that the Sunnah is the second source of Islamic law after the Qur’ān. The Sunnah is explanatory to, and integral with, the Qur’ān. It reiterates injunctions of the Qur’ān, elaborates concise injunctions or qualifies unqualified injunctions of the Qur’ān, specifies general injunc- tions, and enacts rulings on matters on which the Holy Book is silent.5
The Sunnah Includes Customary International Law of the Time
One of the sources of Islamic law is ‘urf (customary practice of people),6 on the condition that the custom is not conflicting with the Qur’ān and/or the Sunnah.7 Islamic law did not abolish all pre-Islamic customs and prac- tices. In fact, certain beneficial pre-Islamic Arab customs existing during the time of Prophet Muḥammad were accepted by him. Examples are the payment of diyah8 and salam transactions.9 Once the Prophet approved such a custom, it became part of the Sunnah. Practice of States may constitute customary international law10 and this is recognized since time immemorial. It is submitted that there were
3 A single saying of Prophet Muḥammad is termed as ḥadīth. 4 Qur’ān 53:3–4: “Nor does he (Prophet Muhammad) say (anything) of (his own) desire. It is no less than inspiration sent down to him.” 5 Mohamad Akram Laldin, Introduction to Shariah and Islamic Jurisprudence (Kuala Lumpur: CERT Publications, 2006), 77–81. 6 Ibid., 117–124. 7 Ibid., 122. 8 Diyah is a punishment for committing homicide and causing bodily injury, whereupon the offender pays compensation amounting to 100 camels to the victim or the victim’s heir. 9 A salam transaction is a business whereby a person purchases goods to be made by another, for example, a dress to be made by a tailor. 10 In Art. 38(1)(b) of the Statute of the International Court of Justice (ICJ9, “interna- tional custom” is characterized as “evidence of a general practice accepted as law”.