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
