By Intisar Rabb and Umut Özsu, with contributions from Hadi Qazwini
On November 1, 2022, Professors Intisar Rabb (Harvard University) and Umut Özsu (Carleton University) convened a live Roundtable webinar that brought together experts in Islamic history and international law. The live webinar accompanied this Blog’s online Roundtable, which featured essays each week in November and the beginning of December written by the historians and legal scholars who participated in the live webinar. These scholars will publish fuller versions of their work in the forthcoming Cambridge History of International Law volume on the history of Islamic international law, which is co-edited by Professors Rabb and Özsu. The contributing scholars [and links to their essays] include: Cemil Aydin, Fahad Bishara, Malika Dekkiche, Mohammad Fadel, Aimee Genell, Suleiman Mourad, Umut Özsu, Intisar Rabb, Will Smiley, Mathieu Tillier, and Adnan Zulfiqar.*[i] Each scholar reflected on larger themes, lingering questions, and ongoing debates about the history of what we now call “international law.”
With the conclusion of the Blog series of essays, and in order to wrap up this year’s online Roundtable, we look back at each contribution. We opened the Roundtable with a brief essay outlining our approach to the study of the history of Islamic international law. We followed the structure of the volume, which has two parts. The first part examines the history of Islamic international law from Islam’s advent through the consolidation of the Ottoman state in the mid-fifteenth century, across the vast geographical spaces that comprised the medieval Islamic world. The second part examines the history of Ottoman international law, from the mid-fifteenth century through the formal dissolution of the Ottoman Empire in 1923, with an emphasis on Ottoman-European relations and questions of private and public international law. This review groups contributions from different parts of the volume around similar thematic discussions.
The first cluster of essays—organized chronologically by period addressed—include those by Professors Mohammad Fadel, Malika Dekkiche, and Cemil Aydin. Professor Fadel surveys the principal doctrines providing foundations for classical Islamic international law, focusing on substantive law from ʿIrāqī and Ḥijāzī sources dating back to Islam’s first three centuries. He highlights the different ways in which Muslim jurists of this early Islamic period approached international law as involving questions about how to explain political ordering, and how to explain obligations toward others in light of the independent relationship between individual humans and God. For Fadel, peace appears in various forms in early Islamic law, and sovereignty is a precondition for peace that may be negotiated by equal sovereigns through authorized agreements. Professor Dekkiche turns to questions of medieval intra-Muslim diplomacy, considering a diverse range of sources—including legal and historical sources as well as advice and administrative literature. Custom, she maintains, plays a significant role in the early Islamic laws of diplomacy, especially along three axes: diplomatic law, diplomatic agents, and diplomatic practice. Professor Aydin studies nineteenth-century Ottoman relations with Europe. That period raised particularly pressing problems for Ottoman political and scholarly elites, who sought inclusion in the European international order and attempted to strengthen the empire’s position in this order by synthesizing Islamic and European international law. In the live webinar, the discussion involved overarching themes as well as areas for further research, especially the problem of determining what is “Islamic” in “Islamic international law.”
The second cluster of essays features Professors Mathieu Tillier, Adnan Zulfiqar, Fahad Bishara, and Will Hanley, around questions of territory, commerce, and conflict-resolution—medieval and early modern. Professor Tillier explores medieval Islamic conflict-resolution, with special attention to cross-border conflicts. Examining both documentary and literary sources, he argues that the well-known distinction between Islamic territory (dār al-Islām) and war territory (dār al-ḥarb) accorded with neither the history nor the theory of early Islamic norms of conflict-resolution. Rather, the historical record shows that the Islamic world was divided into various states and empires, so that Muslims regularly found themselves in conflict with other Muslims. Moreover, even early Islamic theory was poly-vocal in its approach to non-Muslims. For example, Muslim jurists categorized non-Muslim litigants as dhimmīs or mustaʾmins when resolving their disputes with Muslims or other non-Muslims. Professor Zulfiqar discusses ideas of territory and jurisdiction in the medieval Islamic world. Drawing on treatises of substantive law, he argues that Islamic law is a duty-based paradigm rather than a rights-based paradigm as is modern international law. He further argues that, in the Islamic world that preceded the nation state, legal duties crossed territorial boundaries. Against that backdrop, he reviews the way juristic ideas of territory figure into authorizations of defense and border expansion, migration, jurisdiction over Muslims outside Islamic territory, and why and how an Islamic state should handle abandoned children as a collateral consequence of war. Professor Bishara examines pre-Ottoman histories of Muslim commerce and communication. He argues that the relationship between political economy and law, the “material” and the “ideational,” is dialogical. In order to properly devise an economic history of the Islamic world that spans different territories, historians must, he contends, investigate the two together. Professor Hanley explores discussions of territory and jurisdiction in the Ottoman era. Drawing on a variety of legal-historical sources, he examines the histories of extraterritoriality and foreign protection for religious minorities in Ottoman lands. In the live webinar, discussion between these scholars focused on the comparative use of different sources from different periods.
The third and final cluster features essays by Professors Suleiman Mourad and Aimee Genell and Will Smiley. Professor Mourad focuses on war and peace in the medieval Islamic world, drawing on discussions by both Sunnī and Shīʿī jurists. These sources, he argues, show jurists using foundational legal sources when they see fit, but also employing other interpretive tools—from arguments about public interest (maṣlaḥa) to claims of necessity (ḍarūra)—when assessing the renewal of peace treaties. Professors Smiley and Genell address war and peace as well as dispute-settlement in the Ottoman Empire. Smiley explores the justifications that Ottoman officials typically produced for war and peace. Genell argues that Ottoman officials of the nineteenth and early twentieth centuries drew heavily on international law in order to defend their interests against their European counterparts. She further argues that Ottoman officials responded to European encroachments on the empire’s sovereignty by focusing on international law. In the live webinar, the discussion highlighted several ideas for further discussion: the role of non-Muslim Ottoman figures in the development of Ottoman international law; the work of jurists alongside rulers and other decision-making officials in the history of such law; and the place of customary law in Islamic international law across its history.
Ultimately, we are struck by the interdisciplinary, cross-geographical, and cross-chronological sources and approaches employed for this volume on the history of Islamic international law. We are excited to combine such a stellar array of legal and social historians, and fully expect that the resulting volume—and this Roundtable that previews it—will serve as an important contribution to and resource for the history of international law.
[i] *Additional contributors to the Cambridge History of International Law volume, but not this online Roundtable, include Will Hanley, Dariusz Kołodziejczyk, and Joshua White. Will Hanley participated in the Roundtable webinar.