Müslüman Hukukçuların Batılı Devletlerarası Hukuka Tesiri

Milletlerarası Adalet Divânı’nda hâkimlik de yapmış olan Sri Lankalı hukukçu Cristopher Gregory Weeramantry (1926-2017), Islamic Jurisprudence: An International Perspective adlı kitabında dikkate değer tezler ortaya koymaktadır. Bunlardan biri, İslam hukukunun Batılı devletlerarası hukukun gelişmesindeki tesirine dair tezdir. Bu tezi, bilhassa devletlerarası hukukun kurucularından kabul edilen Grotius (1583–1645) üzerinden 19 madde ile temellendirmektedir. Yazar, her nekadar maddelerin teker teker ele alınması halinde kesin veya inandırıcı olamayabileceklerini söylese de; maddelerin tamamı dikkate alındığında Grotius'un Müslüman hukukçuların tesirinde kalmış olabileceği tezinin sistematik bir şekilde tahkike değer olduğunu ifade eder.

THE IMPACT OF ISLAMIC INTERNATIONAL LAW ON WESTERN INTERNATIONAL LAW [1]

The preceding sections set out some of the many areas in which Islamic international law had worked out a set of mature juristic principles. This raises the question whether this was a legal phenomenon separate from and unrelated to the resurgence of international law that occurred in the West from the seventeenth century onwards. In other words was this Western development an independent take-off or did it draw upon the pre-existing body of Islamic knowledge?

(a) Some General Observations

Any study of Western international law proceeds upon the tacit assumption that it was the West which triggered off the development of international law and that international law as we know it was a Western creation. It is submitted that such a conclusion is untenable for the following reasons: first, the prior existence of a mature body of international law worked out by accomplished Islamic jurists in textbooks upon the subject is an incontrovertible fact.

Secondly, the flow of knowledge in all departments of science and philosophy from the Islamic to the Western world, commencing from the eleventh century, is likewise an indisputable fact.

Thirdly, the fundamental rule of Western international law, pacta sunt servanda, worked out by Grotius in the seventeenth century is also the fundamental rule of Islamic international law, where it is based upon Qur'anic injunctions and the Sunna of the Prophet.

Fourthly, there had been contact between Christian and Islamic civilisations both in war and peace for many centuries dating back to the Crusades. The crusaders, encountering such monarchs as Saladin, saw the observance by them of principles of international law, including truces between the warring parties during which the rival leaders even met at convivial social gatherings. Peaceful contact through trade likewise exposed the West to Islamic concepts of international trade, and influenced Western commercial law. Against this background it seems unrealistic to suggest that the West remained unaware of the body of international law worked out by the Islamic jurists.

Fifthly, although there is no doubt that a great deal of original Western thought went into the elaboration of the current principles of international law, some at least of the original impetus both in regard to the general concept and in regard to a number of specific ideas must clearly have come from the world of Islam - the only power and cultural bloc comparable to that of the world of Christianity. The philosopher looking for universals in the realm of international relations could not possibly neglect this source.

Sixthly, Western scholars were not insular in their attitudes when they set off the brilliant cultural and intellectual resurgence which led Europe to world supremacy. They built their humanistic, literary and legal traditions on whatever foundations they could draw from the ancient classical civilisations of Greece and Rome. In relation to the vital discipline of international law there was no literature from Greece and Rome comparable to their literature in private law. We do not have treatises dealing with such questions as the binding force and interpretation of treaties, the duties of combatants, the rights of non-combatants or the disposal of enemy property. The only body of literature in this discipline was the Islamic.

Seventhly, a knowledge of Arabic was part of the literary equipment of the accomplished fifteenth- and sixteenth-century scholar, particularly in Spain and Italy. Arabic literature was hence not a great unknown in the days when the first seeds were being sown of what was to become Western international law. This brief survey will be seen in a practical context when we note that Article 38(1)(b) of the Statute of the International Court of Justice, requires the International Court of Justice to apply “the general principles of law recognised by civilised nations”. Having regard to the large number of Islamic nations now members of the United Nations, the international law of Islam is a body of knowledge which the world court cannot afford to ignore. Indeed it must necessarily make an impact upon the content of contemporary international law.

(b) The Possible Impact upon Grotius

Since Grotius is often regarded as the focal point for the commencement of the discipline of international law, the following observations will be of interest. No one of them is conclusive or even persuasive by itself but together they may present a thesis deserving of more systematic scholarly examination.

(i) Grotius' mission, as perceived by himself, was to study the totality of human history, as far as was available, and to extract from it a set of practical rules which mankind must necessarily follow if the nations were to live together. For this purpose he made a monumental study of world history and could not have failed to consider Islamic history. Indeed one of his observations was that the Christian nations behaved in war in a manner which compared very unfavourably with that of pagan nations.

(ii) The Spanish jurists who immediately preceded Grotius would necessarily have affected the thinking of Grotius, but to what extent we cannot say. If indeed the Spaniards themselves had been influenced by Islamic learning on this matter there is here an unresearched area of possible indirect influence on Grotius by the Islamic jurists.

(iii) Grotius was not entirely unaware of the existence of some at any rate of the rules of Islamic public international law. In Chapter X, article 3 he mentions postliminium - the principle of international law restoring to their former state persons and things taken in war, when they revert into the power of the nation to which they belonged.

(iv) Grotius was searching for a secular basis for the world order of the future now that the spiritual authority of the Church had broken down. He was reaching out towards a new universalism. The thought and learning of a major world culture which had produced a developed jurisprudence of its own is scarcely likely to have been ignored.

(v) When one considers that neither the Greeks nor the Romans had produced a coherent theory of international law and that the medieval Christian Church was only groping towards this concept, it is unlikely that Grotius, who was probing universal knowledge and experience to evolve his system, would have failed to notice the only systematic writings ever produced thus far upon the topic.

(vi) It is true the language barrier could have stood in the way of such cross-fertilisation. Yet we must bear in mind that Grotius was far closer in history than we are to the period when Arabic learning had diffused through Europe. Arabic scholarship was strong in Spain, and The Netherlands were historically closely linked in a European system which had for long accepted The Netherlands as a sphere of Spanish influence and dominion. Since the time of Grotius the cultures have moved much further apart and it would be wrong to assess Grotius' access to these materials in the light of their modern remoteness.

(vii) Grotius finalised his De Jure Belli ac Pacis in France, where he had fled after his escape from imprisonment in the fortress of Louvestein. In France he worked on his book in the chateau of Henri de Meme, where another friend, de Thou, “gave him facilities to borrow books from the superb library formed by his father” (Encyclopaedia Britannica, 1947 edn, vol. 10, p.908). A 'superb library' in France in the early 1600s could not have been without a stock of Arabic books and other materials on Islamic civilisation. Moreover, if Grotius had no Arabic himself it is highly unlikely that he could not have found a translator in France.

(viii) Grotius was also a writer on Christian apologetics, in which sphere he needed to defend the principles of Christianity against all rivals. His book, De veritate religionis Christianae, of 1627 (two years after De Jure Belli ac Pacis), was indeed used as the standard manual on this subject in Protestant colleges until the eighteenth century. It was a book, moreover, which was intended for missionary purposes and one of its target audiences was the Arab world - as is evidenced by its translation into Arabic in 1660 by Pococke, the Oxford Arabist who taught Locke. The Arab world was not therefore a world too far removed from Grotius.

(ix) The Arab world was also close to the Low Countries in another sense. Dutch vessels were beginning to ply in eastern waters where Arab seamen had hitherto held sway, challenged only by the Portuguese. They were sailing as far afield as the Islamic islands of the East Indies. Indeed Grotius was retained by the Dutch East India Company as their advocate. The case which in fact drew him to a study of international law, for which he was retained by the Dutch East India Company, concerned a Portuguese galleon captured by one of the Dutch captains in the Straits of Malacca; the company sought to keep it as a prize. Grotius needed to demonstrate the untenability of the Portuguese claim that eastern waters were their private property. In demolishing this theory of mare clausum and making the high seas free to all nations, rival theories to mare clausum, especially rival theories pertinent to the area could not have escaped his attention. The well-developed maritime law of the Arabs must necessarily have been one of his areas of enquiry.

(x) Nor was contact with Islamic rulers confined to the East. In the days of sail, when vessels hugged the coast, Dutch vessels sailing east had necessarily to deal with Arab settlements on the African coast. Portugal, Holland's rival in eastern waters, had indeed had diplomatic dealings with them as well as with black African rulers, e.g. the kings of Benin and Bakongo (Sanders, 1979, p. 57). Grotius, the adviser to the East India Company, could not afford to be uninformed of the best diplomatic means of advancing Dutch influence in the interplay of African, Arab, Portuguese and Dutch interests.

(xi) We know as a matter of history that diplomatic intercourse between Muslims and Christians had been maintained for many centuries, going back in fact to the days of the First Exile of the Prophet's followers, when, under persecution, they sought refuge in the territory of the Christian king of Ethiopia. This was even before the foundation of the Islamic state. Later the classical principle of jihad held sway, i.e. the principle of a permanent state of war between Islamic and non-Islamic nations (see, on this, the discussion on jihad, pp. 145-9). This was, however, only an interlude (see Khadduri in Proctor, 1965, p. 33), and the principle of peaceful relationships among nations of different religions replaced the classical principle of jihad. Jihad was no longer adequate as the basis of the relationship between Islamic and other states and Muslim rulers made treaties establishing peace with non-Muslim states extending beyond the ten-year period provided under the sacred law. Islamic and Christian states passed through a long period of coexistence - a period which began as a guerra fria (cold war) to use the words of the thirteenth century Spaniard, Don Manuel, and ripened into a relationship conducted on the basis of equality and mutual interests. In 1535 there occurred a landmark event - the treaty of 1535 between Suleiman the Magnificent and the King of France laying down the principles of peace and mutual respect - terms offered also by articles 1 and 15 to other Christian princes willing to accept them (Khadduri, in Proctor, 1965, p. 34). This was a clear acceptance of international relationships based on peace and on the very principle pacta sunt servanda which Grotius was seeking to universalise. Islamic learning on this very matter, which was one of the basic teachings of Islam, was close indeed to the heart of Grotius' doctrine. With his vast erudition could he have failed to perceive it?

(xii) Grotius was considered by the Dutch authorities of the time to be “a high authority on Indian affairs” (Clark, 1935, p. 60) and had written a masterly survey of Dutch progress in the East Indies which had appeared in the Annales. He had also written his De Jure Praedae arising from his interest in the prize matter mentioned above. For his expertise in these matters he was selected by the States-General to represent the Dutch East India Company in the negotiations that took place in London in 1613 on the respective trading rights in eastern waters of the British and Dutch East India companies - a negotiation which the Dutch based largely upon the rights accruing to them from trading treaties with the Muslim sultans who ruled in the Malay archipelago, Grotius, as the recognised expert on these rights, must have dipped into such Islamic international and treaty law as he could find, e.g. in regard to treaty rights with the Sultan Ternate, about which there was much discussion at the London negotiations. Indeed it was Grotius who presented the Dutch case in a long speech at an audience before King James who at that stage was attempting to handle British foreign affairs personally. See generally Clarke (1935) on Grotius' mission to London on behalf of the Dutch East India Company.

Islamic international law became relevant to such negotiations in another way as well, for the more powerful Islamic sovereigns such as the Moghul emperors were averse to binding themselves by treaty to foreigners in respect of trading matters, for treaties involved compliance under Islamic law and they preferred to preserve their freedom of action by issuing imperial firmans or grants of trading rights unilaterally. The significance of such settled diplomatic practice could not have been lost on Grotius, or indeed on any of the major negotiators or jurists involved in eastern affairs.

(xiii) It is known that Grotius was in regular correspondence with Admiral Cornelis Matelief de longe on the policy that should be pursued by the Dutch in eastern waters (Clark, 1935, p. 61). To advise the admiral on the course he should pursue, especially in relation to the Muslim sultans and treaties with them, it would have been necessary for Grotius to dip into some sources of Islamic legal knowledge.

(xiv) The documents prepared by Grotius for the London negotiations argued that the treaties with the Muslim sultans about spices were fully in accord with natural equity and the law of nations (Clarke, 1935, p. 77). He argued that the natural law gave peoples liberty to make their own treaties and that the “Indians” were bound by the fact of their consent to give the Dutch a trading monopoly. The fact that honouring of contracts is a fundamental tenet in Islamic law is not likely to have been overlooked. The fundamental questions involved in the London discussions were the rights of extra-European states and of European states in relation to trade and treaties with them (Clarke, 1935, p. 81). The British reply to the Dutch case of treaty rights was that such treaties were not legally effective (Rubin, 1968, p. 120).

(xv) It is to be noted that the question of the validity of treaties and trading arrangements between Christian and non-Christian nations was the subject of contemporary and even later juristic debate. Gentili, for example, (1933, p. 31A), was of the view that such treaties were valid and so was Vattel (1916, p. 122). Robert Ward (1973, p. 332) was critical of these treaties on the basis that they “had the effect of amending the law of nations”. For a reference to this controversy see Singh, (1973) pp. 115-16. In arguing for the validity of such arrangements Grotius would necessarily have consulted the Spanish authorities as well as such literature he could lay his hands on, regarding the attitude to treaties of the legal system of the other contracting parties, namely the Islamic law.

Negotiation by European rulers with Islamic sovereigns had been taking place for some time. For example, we have records of the letter of Queen Elizabeth to the Emperor Akbar of India – “the most invincible and mighty prince Lord Echebar (Akbar)” - requesting him to receive her subjects favourably and grant their request for trading privileges (Singh, 1973, p. 115). A similar letter was addressed by King James to Akbar after Akbar's death (which was as yet unknown in London) (Dodwell, 1929, p. 77). The Islamic law background to such negotiations could scarcely be described as irrelevant to all this activity which was taking place in Grotius' time and in the midst of which he was one of the chief counsellors.

(xvi) One of Grotius' predecessors, whose influence Grotius acknowledges, was the Spanish Dominican, de Victoria. The preface to a recent reprint of de Victoria's work (Nys, 1964) examines the various Spanish writers on international law who wrote before Victoria and must necessarily have influenced him. Among them was King Alfonso X of Castile, whose Las Siete Partidas of 1263 has been described as “A monument of legal science, curious alike for the number of topics treated, and for what one might call the precocity of a great number of its provisions which really are far in advance of the time when they were put forth” (Nys, 1964, Introduction, p. 62). Nys continues:

The Siete Partidas deals with ecclesiastical law, politics, legislation, procedure and penal law; the law of war is the subject of extremely detailed regulations. In the second Partida some chapters are given to military organization and to war. As regards war, much is borrowed from the Etymologiae of St. Isidore of Seville ... and in many respects the influence of Mussulman law is very apparent. Maritime law is also dealt with.

It is known, for example, that the rules in the Sieta Partidas that booty should be delivered to the authorities for distribution and that the treasury keep one-fifth of it were adopted from the Islamic law (Nussbaum, 1954, p. 52).

(xvii) Reference must be made to St Thomas Aquinas, himself a Dominican who wrote on the law of war and gave form to the rather inchoate views held till then in the Christian world in relation to war. His views on lawful conduct in war have made a lasting impact upon Western international law and must, of course, have heavily influenced Victoria. We have pointed out elsewhere that Aquinas was very familiar with the Arabic writings, especially of Averroes, from whom he drew heavily in composing his Summa Theologica. The Islamic principles relating to the laws of war were certainly not a closed book to him in forming his views on just conduct in war and must have had their impact on Victoria and in turn, even indirectly, on Grotius. Indeed there is direct reference in Grotius' work to the writings of Aquinas (e.g. Chapter 7.33 of De Jure Praedae).

(xviii) We must note also that Grotius was preceded not merely by one Spanish theologian who wrote on the laws of war, but by many, such as Suarez and Ayala and others going all the way back to King Alfonso and beyond. All those writers wrote against the background of a dominant Islamic culture and could not have been unaware of or uninfluenced by it. For example, Suarez was born in Granada in 1548, barely half a century from the time when it was the last stronghold of the Moorish kings in Spain. Suarez' De Legibus appeared in 1612 and there is reason to believe that Grotius read it with interest and was influenced by its seminal ideas. On the influence of Suarez on Grotius, see Scott (1939) pp. 17a-21a. “In any event, whatever his motives might have been”, says Scott, the distinguished former President of the American Institute of International Law, “the fact remains that the great Dutch jurist was acquainted with the De Legibus or he would not have cited it. And in view of this fact and the marked similarity between certain of his own concepts and those of the Spaniard, it is difficult to believe that in preparing his treatise On the Law of War and Peace, Grotius failed to avail himself fully (though without due acknowledgement) of Suarez” masterly treatment of natural law and the law of nations.' (Scott, 1939, pp. 20a, 21a).

(xix) It must be noted, finally, that medieval European libraries carried the Arabic treatises on law. Charles S. Rhyne, President of World Peace Through Law, in his treatise on international law (1971, p. 23) notes this fact in observing that Islamic Law made substantial contributions to international law and theory. He notes also that Western scholars such as Victoria, Ayala and Gentili came from parts of Spain and Italy where the influence of Islamic law was great; that great jurists and theologians like Martin Luther studied Arabic; and that Grotius recognised the humanitarian laws of war of the so-called “barbarians”. It is to be noted also that Suarez makes free use of a range of prior Spanish writers and that there are frequent references to King Alfonso's Las Siete Partidas, which as pointed out earlier, reflected very clearly the influence of Islamic law (for numerous references to Las Siete Partidas see Scott, 1939).

The question, of course, remains: why in the extensive writings of these various publicists are the direct references to Islamic law so scant? There are copious references to the Old and New Testaments, to Roman and Greek wars and episodes and to the classical writings of Greece, Rome and Judaism, but scarcely any to the Islamic sources.

It is submitted that the answer is not far to seek. In the intensely Catholic and Christian atmosphere in the midst of which those writers - all deeply committed Christians - wrote, Islamic works could not possibly be cited as authority. It would have been not merely lacking in authority but counter-productive as being heretical and a source which Christians ought not to accept. Seeking legitimacy for these views in a Christian world which was drifting further away from Islamic and Arab culture, it was not surprising that they distanced themselves both consciously and unconsciously from these sources.

Although the specific sources came to be more and more remote, the juristic principles, the classifications and the range of concepts contained in the Islamic texts were becoming integrated into the corpus of later writing. It is submitted that there is sufficient intrinsic evidence of this linkage to make out a case worthy of further investigation.

Referanslar:

[1] C. G. Weeramantry, Islamic Jurisprudence: An International Perspective, MacMillan Press: Hong Kong, 1988, s. 149-158