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The Early Islamic State with Special Reference to the Evolution of the Principles of Islamic International Law, 632-750 A.D

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The Early Islamic State with Special Reference to the Evolution of the Principles of Islamic International Law, 632-750 A.D 62-4186 GABER, Mohamed Hosny Mohamed, 1922— THE EARLY ISLAMIC STATE WITH SPECIAL REFERENCE TO THE EVOLUTION OF THE PRINCIPLES OF ISLAMIC INTERNATIONAL LAW, 632-750 A.D. The American University, Ph.D., 1962 Political Science, international law and relations University Microfilms, Inc., Ann Arbor, Michigan THE EARLY ISLAMIC STATE WITH SPECIAL REFERENCE TO THE EVOLUTION OF THE PRINCIPLES OF ISLAMIC INTERNATIONAL LAW, 632-750 A.D.' by , i /Ujm mfd Hosny M'.1 Gaber Submitted to the Faculty of the Graduate School o f The American U niversity in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy in International Relations Signatures o f Committee: Chairman: j j \ . graduate Dean: AMEP'CAN u n iv e r s it y I Y June, 1962 MAY 2 2 1962 The American University T h e s i S Washington, D. C. Washington , a c . V 82.^ TABLE OF CONTENTS CHAPTER PAGE I . AN HISTORICAL BACKGROUND ....................................................... 1 Pre-Islam ic World ............................. 1 Pre-Islamic Arabia ................................................................................. U The Rise of the Islamic State: The Republican Period . 9 The Omayyad S t a t e ..................................................................................... 16 I I . INTERNATIONAL ISLAMIC LAW: NATURE, SOURCES AND DEVELOPMENT................................................................................................. 2U N a t u r e .......................................................................................................... 2U Relation to Previous International Laws......................... 30 S o u r c e s............................................................. ........................... 3h Development in the Republican and Omayyad P eriods ................... k3 I I I . STATE'S THEORY, RIGHTS AND DUTIES....................................................... k9 T h e o r y .......................................................................................................... 50 Rights and D u t ie s..................................................................................... 58 Form of Government............................................................................ 59 International Principles of the State ...................................... 62 IV. JURISDICTION OF THE STATE......................................................................... 66 Territory ................................................................... 66 Jurisdiction over Subjects: Minorities .......................... 72 The Jizya ................................................................................................. 85 Nationality ................................................................................................. 91 i i i CHAPTER PAGE V. TREATIES ......................................................................................... 97 P rocedure................................................................................................. 100 Treaty T ypes ......................................................................................... 1°3 Peace T r e a t i e s ..................................................................................... 10U Cases of Peace T reaties............................................................... I l l Termination of Peace Treaties ................................................... 118 Treaties of Conciliation ................................................................ 120 Guarantee of Safety ............................................................................ 122 VI. THE LAWS OF WAR......................................................................................... 126 Concept of W ar..................................................................................... 126 Military Organization ........................................................................ 136 Qualifications for Military Service .......................................... lh7 Conduct o f W a r ..................................................................................... lU9 Actions Allowed and Forbidden....................................................... 160 Giving Quarter ..................................................................................... 168 The Termination of W ar.................................................................... 11h VII. SPOILS OF WAR............................................................................................. 176 Immoveable S p o i l ................................................................................ 185 The Fa^’ ..................................................................................................... 189 Prisoners of W ar................................................................................ 190 iv CHAPTER PAGE VIII. ENEMY- ALIENS............................................................................................ 197 Access to Muslim C o u r t.................................................................... 201 Custom D u t i e s .................................................................................... 203 Termination of Am an........................................................................ 206 Muslim Aliens in Foreign Countries .................................. 208 IX. CONCLUSION................................................................................................ 210 APPENDIX..................................... 2lU BIBLIOGRAPHY......................................................................................................... 216 PREFACE A comprehensive stuc^y of international lav; in early Islam is rarely in evidence in books on the history of the laws of nations. It seems that such a study is regarded as of speculative, rather than of practical, interest and has received attention from relatively few specialists and scholars. Such a h isto rical study is not without significance toward a balanced understanding of the present Islamic and Middle Eastern culture, an understanding which could not be achieved if it did not in­ clude a knowledge of classical Islamic international law and its development based on original source material. This writer plans to trace the early development of international law of early Islam both in theory and practice. The investigation will be centered almost entirely on the Republican and Omayyad periods in early Islam, for this was the time in which the Islamic state laid its foundations in all legalistic and administrative systems. Also, this era witnessed a better application of the Islamic theories of inter­ national relations. The departure of practice from theory was seldom due to the conduct of the state by rulers who, by their cohesive and animating power, set an amazing record of achievement with the applica­ tion of the pure Islamic systems. In undertaking this task, the present writer relied mainly on original Arabic sources of law and history. I t must be stated, however, that these books are not classified so as to facilitate the investigation of the researcher. Laws on international questions are often given hypothetical cases, themselves dispersed among many other cases in different branches of laws of worship and transaction. On the other hand, the books on Islamic history, naturally, do not elaborate on the incidents of history which invoke application of the theories of in ter­ national Islamic law. This research could not endeavor to treat all aspects of inter­ national law which are of vital concern at the present time. Substan­ tive rules of international law, jurisdiction over private and public vessels, the law of the sea, jurisdiction over the air above national territory, laws of neutrality, and other important issues cannot be treated in the same way which is followed in this research. For, if the student of Islamic law wants to cover all these important questions and, at the same time, tries to limit himself to one stage of Islamic history, he will find but few instances derived from custom and usagesj and even if there is sufficient material from the annals of a specific stage of Islamic history, one has to account for what the jurists did not treat. New maxims must be deduced from the texts of laws, without losing sight of the minor sources of the law, in order to set a standard for what is in accordance with the spirit of the Islamic law and what is not. INTRODUCTION International law arises from the actions o f nations one toward another. It comes into existence from the demands of every nation for reciprocity and equality in treatment by other nations. These demands have produced an extensive body of international law which is s till being expanded. At the present time, there are many factors that have contributed to the expansion of international law. Absence of those factors were responsible for the retardation in the growth of international law in the past. In the case of the early Islamic state, limitation in the scope of international law was due to the situation which restricted international intercourse. National practices and views differed so widely that agreement in many cases was impossible. Activities and aims of the early Islamic state, being mainly religious, made difficult its relation with other states. For if the laws and practices of nations are left to reach their fullest fruition, they must be comprehensive and general in character. There was no ground for agreement between secular states like Byzantium
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