From the very first day when man began to organize them selves in political communities they have felt the need for some rules and regulations to regulate their inter-community relations. And with the passage of time now we reached to a time o f international relations rather than the relations among small communities or tribes. And there is need to regulate the relations among states.
The topic of our discussion is comparison of Siyar and International law. Both deals with same issues of war and peace but differently so there is a need to understand both the systems. First part of this paper will deal with international law and the second part will be dealt with Siyar the Muslim international law.
Jeremy Bentham first used the term in 1780, and later on it is defined by important jurists and philosophers such as Lawrence defines the International law as “the rules which determine the conduct of the general body of civilized states in their mutual dealings”.
According to professor briefly international law is “the body of rules and principals of action which are binding upon civilized states in their relations with one another”.
International law consists of the rules and principals of general application dealing with the conduct of states and of international organizations in their international relations with one another and with private individuals, minority groups and transnational companies.
In strict legal sense international law can not be a law and it is important topic of discussion to jurists to define international law as a law.If we look into the definition of law as given by T.E Holland “law is general rule of external human action enforced by a sovereign political authority” we can better understand that there is no sovereign authority in international system.
John Austin a writer of jurisprudence has mentioned that international law is not true law, but a code of rules of conduct of moral force only. He defines law as a rule of conduct imposed and enforced by the sovereign. Bentham also criticized international law as a law. All these writers do not accept international law as law because of the absence of sovereign authority, which is responsible to impose sanctions upon those who violate the laws. And consider it as positive morality rather then law.
On the other hand people who favored it as a law are the view that it is law and must be respected as law. Sir Henry Maine while criticizing the Austinion concept of law observes that men do some times obey rules for fear of punishment, but compared with the mass of men in each society this class is bit small, perhaps it is restricted to what are called criminal classes. The largest numbers of rules which men obey are obeyed unconsciously from a mere habit of mind.
The debate is still going on we have to do nothing with the legal status of international law but to know what international law is all about.
The term international law reefed to two distinct disciplines 1. Public international law
2. Private international law
Under the fist category comes international institutions such and Organizations, States, problems related to seas, liberation movement etc. the second category private international law deals with state and foreign elements within that state.
It is only dated back to sixteenth and seventieth century. Some writers also included ancient history to it as a development toward a globalized world. In that respect, important concepts are derived from the practice between Greek city-states and the Roman law. After the fall of both the great empires when city states merged for the first time there was need to develop some kind of rules to bind them altogether. Existing international system is basically outcome of two world wars. Before the wars this law was only followed by the Christian states not in the whole world such as Ottoman Empire was not subject to the same international law. But with the passage of time now every state is member of United Nations and has to sign the charter of United Nations.
Sources of International law
Sources are of two types
1. Formal source
Formal source include the sovereign authority from where you derive the authority to implement the laws. And we know that international system is anarchic there is no authority that can control the system; we can say that there is no formal source in international system.
Materials are the source from where the subject matter of law is derived. It is generally accepted that the sources of international law are listed in the article 38(1) of the statute of the international court of justice which provides that the court shell apply
a) International conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b) International custom, as evidence of a general practice accepted as law; c) The general principals of law recognized by civilized nations d) Subject to the provisions of article 59, judicial decisions and the teachings of the most highly qualified publicist of the various nations, as subsidiary means for the determination of rules of law.
We can classify them in this way
1. Treatise international conventions are referred to as treatise. Treaties are written agreements between states that are governed by international law. If states want to enter into a written agreement that is not intended to be treaty; they often refer to it as a memorandum of understanding. Treatise can be bilateral, multilateral, regional and global. The law of treatise is now set out in the Vienna convention on the law of treatise which contains the basic principals of treaty law, the procedures for how treatise becoming binding and enter into force, the consequences of a branch of treaty and principals for interpreting treatise.
2. Custom international custom is evidence of general practice accepted as law through constant and virtually uniform usage among states over a period of time. Rules of customary law binds all states. Undisputed examples of rules of customary law are giving foreign diplomat’s criminal immunity, treating foreign diplomatic premises as inviolable, protecting non combatants such as civilians and sick or wounded soldiers during international armed conflict. 3. General Principal of law recognized by civilized nations is often cited as third source of law. These are general principals that apply in all major legal systems. It is mostly used in absence of customary and treaty law. 4. International judicial decisions and writings of famous jurists on certain issues of discussion are also a source of international law.
International legal personalities
International legal personality refers to the entities or legal persons that can have the rights and obligations under international law.
1. States; a state has some essential elements such as Territory, population, government and sovereignty. Sovereignty means the capacity to enter into relations with other states. Some writers also include that a state must be recognize by other stats as a state. And only states can have sovereignty over the territory. Only state can become a member of United Nations and can become a subject of international court of justice. 2. International organizations; are established by states through international agreements and their powers are limited to those conferred on them in their constituent document. International organizations are limited degree of international personality as compare to that of states. 3. Individuals are generally not regarded as legal person under international law. Their link to state is through the concept of nationality, which may or may not require citizenship.
Siyar or Muslim international law
Islamic international law is mainly known as Siyar or Muslim international law. Siyar is an Arabic word. The world is developed from the Sira’h. According to western perspective laws are those rules and regulations enforced by the state where Islamic laws are consist of the teachings of Islam as a way of life.
The famous writer imam Sarakhsi has stated in his book that Sira’h means the attitude adopted by the ruler toward enemies in the state of war and peace. Imam Abu Hanifa was the first to produce an independent work on the subject. His work is not available today.
In west privet and public international law are consider as two different categories but in Islam do not consider them as separate.
Private international law deals with the relations of a government with the subjects of another state while public international law is confined to inter state relations. This is the basic difference between the two disciplines for example; problems relating to the law of nationality will be dealt with in private international law. Muslim scholars include the relations of various Muslim sects into this law. For example they discuss the Shia Sunni relations from the legal point of view. Suppose an inheritance case comes up in a court of law. The decesesed was a Shia his widow is a Sunni. Which law will determine the share of inheritance? This problem will be determined by the private international law of Muslims. In public international law if two forefingers are engaged in a quarrel in a Muslim state the law of forefingers will be implemented to them rather than of Islamic law.
Islam is a religion and a complete code of life. That provides guideline for every field of life as well as international matters. International law in Islam developed with the migration of Muslims to city state of Madina. Holy prophet (PBUH) proposed to the people of Madinah, that they should organize themselves for purposes of defense, justice and chose their own leader. Holy prophet as a neutral person was elected as leader and then constitution was formed under which duties and obligations of the ruler and ruled was written down. As international law mainly deals with war and peace, when Madinah was invaded by Makah many a problem had to be resolved and decisions taken. Such as matters of declarence of war, prisoners of war, whom to kill, how to dealt with other states all the issues were answered by the Holy Prophet. That was the time when developed the concept of Muslim international law.
When Muslims started interacting other tribes and city states they started developing rules and regulations to base their relations upon those rules. Muslims signed different treatise with other non Muslim communities. The early Muslims went only to the prophet to settle any issue regarding matters of life. It was during the ten years of the prophet stay in Madinah that the international law of Islam came to be formulated. Islamic international law belongs to Prophet stay in madinah. When Muslim writers started writing on jurisprudence their concept was much wider than that of western writers, Because Muslims dealt with both spiritual and materialistic life of men.
Sources of siyar
As written in the first part that sources are of two types Formal and materials and in present international system formal part is missing in which authority is derived from a sovereign body but in Islamic formal source sovereign authority is present.
1. Formal source siyar: Islamic laws are in nature of commandments of Allah who is sovereign according to a Quran verse “So judge between them by that which Allah hath reveled, and follow not their desires away from the truth which hath come unto thee. For each we have appointed a divine law and a traced out way” (quran, v48) All the Islamic laws are given by the creator and no body is sovereign to change them but men are appointed on the earth as his Naieb to implement those laws.
2. Materials; material source of Islamic law also can be divide into two categories Primary and secondary. Quran and Sunnah come under the first category while Ijma, Qiyas, Masalah and Urf come under the second category.
It is the basic source of law and fundamental principals for all aspects of social existence are laid down in it. The commandments of the holy text can be divided into two parts; (a) Flexible, (b) rigid. In flexible part there is scope for interpretation and new explanation according to the changing condition, and legislation can be done on such matters.
Rigid portion of the Shariah consists of following categories;
(a) The commandments found in explicit and unambiguous forms, such as narcotics, gambling and usury are prohibited. Similarly clear laws of inheritance are laid down.
(b) Directive principals in which general guideline are provided. For example it is laid down that man is custodian of women.
Compilation of saying and actions of Holy Prophet is called sunnah. The life of holy prophet was practical manifestation of Quranic way of life.
Allah say’s “whose obeys the messenger obeys Allah, and whose turnth away; we have not sent thee as a warder over them” (Quran v; 80)
So Sunnah is second primary source of Islamic law that provides material to form law. Combination of Quran and Sunnah is called Shariah which is law of Muslims.
Ijma; implies the consensus among the scholars on points of Islamic law. If Ijma is done by the companions of holy prophet then it comes under the first category of primary sources.
Qiyas; if there is no clear guideline is found in the basic sources, the jurists are allowed to resort to Qiyas keeping in view the intention of given law.
Urf; Urf are customs prevailing in Islamic society such as concept of slave, male ganeemat, etc. in Islamic sources Urf is given least importance as compare to other sources.
Subject of Siyar
Islamic law is international law. Its reach is global and unlimited applying equally to the whole word and locally. Islamic law recognizes no state or the idea of state. The Holy Quran address people of the whole universe not only Muslims.
Islam negates the concept of modern state system but focuses on Darul-Islam and Darul-harb. Although there is distinction among Muslim writers upon the issues of division of the world into two parts.
The concept of Khilafat provides one central government to regulate the conduct internationally. The norms of the Islamic law are universal. These laws are unalterable and indivisible.
Comparison and conclusion
The main purpose of both the systems is to regulate the behavior of international members but both are entirely different in their own way. State is main actor in present international system and is main legal personality in international law but Islam totally negate the concept of state system
We don’t know exactly the origin of international law but we know how Siyar developed the passage of time.
The two branches public and private international law deals with different subjects, and Islamic public and private law deals with other subjects.
In international law sovereign authority is absent while in Islam sovereignty belongs to Allah and is present al the time.
In international law there is no hierarchy in sources of law but Islamic law depends on hierarchy of sources.
In Islamic way of government concept of khilafat provides central government which is responsible to regulate its members while international law lacks this concept.
In international law there is need of effective executive and legislature but in siyar both are present as law is divine and there is no need of legislation, khilafat plays the role of executive.
Islamic law is for the whole universe and there is rule of law but in international law the interest of powerful is save guarded.
Law is law and there must be no discussion regarding its status as law but international law is a core topic of discussion and its status as law is still questioned.
Islamic law deals with both spiritual and materialistic life while international law has to do nothing with spiritual life of its subject.
Today international law is enforced by the power of western states. These states applied it originally through military power and colonial command. Muslim states are week and had to accept it after their release from suffocating clutches of colonization. The same applies to many other states that are neither in one group or the other. Today, if Muslim states were strong, international law would be based upon the norms of Islamic law.