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Islam

INTERNATIONAL LAW
and THE WORLD TODAY
Concept of State, international Relations, Minorities, War and Jihad

Mahmood Ahmad Ghazi

I n s t i tu t e o f P o l ic y S t u d i e s , I s l a m a b a d
Copyright © 2011 Institute of Policy Studies, Islamabad
All rights reserved.

Title: Islam, International Law and the World Today

Author: Mahmood Ahmad Ghazi

Published by: Institute of Policy Studies,


1, Street No 8,
Sector F-6/3, Islamabad.
Tel: 051-8438391-3, Fax: 051-8438390
website: www.ips.org.pk,
E-mail: publications@ips.net.pk

Layout: Muhammad Furqan Kakar


Title: Ehsan Ullah
ISBN: 978-969-448-102-3

Printed by: Rehman Sons

Price: Rs. US $
CONTENTS

Preface ……………………………………………………………………………………...... v

Chapter One
Islamic State in the Contemporary International Scenario ………….... 01

Chapter Two
Islamic Law of International Relations: Origin and Development …. 55

Chapter Three
Question of Minorities ……………………………………………………………… 97

Chapter Four
War and Concept of Jihad in Islam ………………………………………...….. 145

Index ………………………………………………………………………………..…….. 185


Preface

Contemporary international framework witnessed


expansion and augmentation during previous century.
Trauma and violence suffered by humanity during two
World Wars urged the nations to unite and find ways to
combine their energies and resources for the betterment and
welfare of mankind. Laws regulating international conduct
in every sphere of life ranging from rights of child to
nuclear proliferation evolved with unprecedented frequency
and widespread international support.

Though the conflicts and violations had not


subsided, yet the world was largely seen to be heading
towards a peaceful harmonious future. Today we stand
faced with a very challenging situation where mankind is,
on the one hand, rich with a millennium’s heritage and on
the other, major powers of the world seem bent upon
destroying it. Mankind had major improvements during
twentieth century in the fields of politics, security,
economics, finance and above all human rights. UN
Charter, UN Declaration of Human Rights, Geneva
Conventions and host of other treaties, conventions and
institutions had helped the nations and individuals to think
with common stakes in global peace and progress. We had
been moving towards a world where war was not an

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essential instrument of foreign policy. Instead, foreign


policy could be rescued from the tentacles of war – through
dialogue, understanding and respect for law. Incidents of
9/11 and repulsive response of the sole super power of the
world to it have shaken the very foundations of global
security system. Basic concept of law, human rights and
international relations are being re-written; and re-written
arbitrarily. All the emphasis on dialogue and peaceful
settlement of issues evaporated into thin air in front of
military might. World seems to have returned to the era of
unilateralism and brinkmanship where the greater power
with more military and economic strength can call the
shots. United Nations Organization that was being
celebrated as one of the greatest achievements of mankind
stands today where League of Nations stood during 1940s.

It is unfortunate that retaliation in response


to 9/11 incidents was not directed against perpetrators of
the attack, rather it was directed against second largest
religion of the world and each and every one of its
followers. While the world was trying to find legitimacy for
attack on Iraq in the name of “weapons of mass
destruction” a major offensive was launched against
Afghanistan in denial of all principles of law and morality.
These prolonged and dubious expeditions stimulated anger
and hatred among the youth in Muslim world. Issues that
had almost settled in modern international framework like
concept of nation-state were again challenged and
questioned. International order, laws and institutions were
seen as tools of oppression in the hands of mightier nations
of the world. The violence found its counterparts in all
parts of the world. The hatred and hysteria created through
war media by governments of Western nations in order to
grab public support infused hatred among individual
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members of societies and the caste, creed and culture again


became prominent lines of distinction between sons and
daughters of Adam and Eve.

It is this historical juncture of the history


when the lectures delivered by Dr. Mahmood Ahmad Ghazi
in the Institute of Policy Studies (IPS) are being presented
in book shape. This lecture series was designed to answer
the questions that had arisen in the wake of 9/11 about
international role of Islam and Muslims and to offer food
for thought to those who are concerned about future of
humanity. The book therefore has double appeal; it tries to
guide Muslim masses and the leaders deep into their past
and urges them to chalk out their strategies and behaviors
in line with everlasting principles of Islam but with
contemporary context in mind. It also helps others to
realize the role of Islam in nurturing a global civilization
and its potential to provide an alternative to the mankind at
a time when all known formulae for lasting peace seem to
fail. It deals with philosophical as well as practical aspects
of the subject.

Islamic state to me represents an idea as to


how values should influence individual and collective
behavior. In an ideal setting, all human beings are supposed
to rise above the level of animal existence and gauge their
actions on the yardstick of values and principles that are, in
most cases, common in all human beings. In every given
cultural or religious context, significance and role of values
would be different and when individuals who share a value
framework form a government they make every possible
effort that their ideology of life and their way of life
flourishes, expands and progresses. It is a recent and in
essence a fascist idea that the state is an objective in itself.

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In almost all political systems, including democracy, state


is considered an instrument to achieve certain collective
objectives. It is therefore very natural that Muslims, who
believe in certain values and share a common vision, wish
and strive for practicing that vision and bring those values
into force, not merely in their individual lives but also in
the public sphere of life through persuasion, motivation,
and where they have authority, through enforcement. While
Islam’s relationship with authority  like any other system
of life  is integral, the purpose of Islamic state is to serve
certain objectives, to actualize certain values and justice
and welfare of the people under the umbrella of the divine
guidance. But along with its divine dimension, the
legitimacy for the whole exercise comes from concurrence,
acceptance, participation and approval of the people. Thus
an Islamic state has dual responsibility and the holders of
office in an Islamic state have to remain mindful of the fact
that while they have to incorporate public opinion in its
decisions through meaningful consultation (shūra), and it
shall also stand accountable for its deeds before all-
knowing, all-wise Allah on the day of judgment. Sense of
this dual responsibility brings about the change that makes
the authority and power tools for welfare in spite of
instrument of oppression.

It should also be highlighted that all those


means and principles of international law which are thought
to be achievements of past three centuries are in fact
fundamentals of international law of Islam. They have
remained in force for more than twelve centuries and have
ruled vast lands with diversity of cultures, languages,
religions and traits. History is witnessed that Muslim
dynasties in various parts of the world had, by and large,

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exhibited the best examples of good governance through


assimilation of all faiths and cultures within their respective
jurisdictions. They received the message of pluralism from
Divine guidance as the Lord of Universe, Allah, has urged
protection of dignity of man and has given him the liberty
even to differ with his Creator and Law Giver. The other
principle along with ‘dignity of man’ that defines Islam’s
interpretation of pluralism is the acknowledgment that a
person may have a variety of identities in different
capacities and these different identities may co-exist in a
person as well as in a society. This acknowledgment
enables the individuals to unite under one nationality even
with their peculiarities and distinctions in various
capacities.

It is a fact that recent developments in


international law and politics, particularly during last three
centuries, have made the statehood and nationality
coextensive and have thus given a new meaning and
dimension to minority problems. But it is interesting to note
that during recent debates on the issue of minorities, focus
has not been upon this aspect of the debate rather religion
has been criticized for discrimination and exploitation.
Contemporary debates tend to disregard the vast area of
commonalities among various cultures and civilizations
that need to be explored and exploited for the common
good of the society. These commonalities are the real
achievements of mankind and product of a struggle spread
over centuries. All three faiths of Abrahamic tradition 
Islam, Christianity and Judaism  have played a very
important part in building those common grounds among
civilizations. It cannot be denied that every culture has its
own distinctive features but the commonalities are naturally

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overwhelming because the origin and the source of all three


major religions is Allah: the Creator.

Use of force has always been the most


dominating topic among debates on international law. Since
we are discussing the subject with a different focus in this
book, we have to be mindful of the threats that have
emerged as a result of erosion of common human values
and departure from internationally recognized norms. War
or use of force may be and has been an inevitable part of
the human experience in certain situation. But, what is
more important is civility, security, justice, well-being and
protection of life and all that makes life liveable. If force is
used to protect these positive ideas from threats, then only
it is justified but, this too has to be subject to rule and moral
norms. Islam has seen this aspect of war not merely on
humanitarian grounds but has bound its followers to
minimize effects of war by avoiding all such means and
measures which might hurt or injure the persons and things
which have no direct bearing on the result of the battle.
Addition of divine aspect in the whole scenario does not
allow the power to cross the boundaries of civility and
humanity. Keeping with the pace of development and
advancement of international law during previous century,
it is time to further refine modern warfare instead of
allowing some states to demolish the whole set of
international laws that is a result of common human
experience in the name of war against terror. If this
negative development is not stopped, it shall be the greatest
tragedy of our times.

It is a great regret that we could not present


these scholarly lectures of Dr. Ghazi in book shape during
his life time. His demise (September 26, 2010) was a great
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shock to all those who knew him. He was such a great


scholar and so dear friend that words can never express the
pain we all feel. He had personally viewed most portions of
this manuscript and had updated and improved them. He
had been keen about this book but his time to return to his
Lord approached far before anyone had ever anticipated. I
have no reservation in saying that he was one of the
greatest scholars of Islam in contemporary times and his
disciples throughout the world and his publications shall
remain as a beacon of light for rest of humanity. May his
soul rest in peace.

Acknowledgment is also due to the efforts


put in by Director General, IPS Khalid Rahman and team
members including Irfan Shahzad, Nadeem Farhat Geelani
and Maria Khawar for their contributions at different stages
of preparation of this book.

Prof. Khurshid Ahmad


Chairman,
Institute of Policy Studies,
Islamabad.

xi
Islamic State in the Contemporary
International Scenario

What should be the nature of the Islamic state in today’s


world? This question is not only extremely important
within the Muslim world, but also constitutes one of the
central issues in contemporary relations between Muslims
and non-Muslims. The nature and future of our relations
with the non-Muslim world in general, and with Western
world in particular, depend largely on how we understand,
interpret and accommodate the concept of the Islamic state
in the context of the hard realities surrounding us. It should
not be inferred from the expression “accommodate the
concept of the Islamic state” that any modification or
adjustment might be made in the Qur’anic injunctions or
the model example of the Prophet (peace be upon him
[PBUH]) what is meant is that a fresh interpretation is
needed of those concepts and practices that were developed
by the early doctors of Islam in the context of the political
and economic realities of their own respective eras.1 These

1
Many a concept and principle relevant to politics and statecraft
mentioned in the Qur’an have undergone different interpretations in
different periods of Muslim history. Today’s political realities and
constitutional concepts call for a fresh understanding of concepts such
as shura, khilafah, ummah, justice, etc.

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concepts and practices were based on the early doctors’


understanding of the divine text and on their interpretation
of the model example of the Prophet (PBUH). To set
priorities for the restructuring of Muslim society and
institutions, today’s Muslims have to be guided by a more
profound understanding of both the scriptural foundations
of Islam relevant to politics and statecraft, as well as the
contemporary political and constitutional paradigm.

Let us be clear from the very outset about


the significance of the problem in the understanding of
today’s realities. For this purpose, a brief reference to
Muslim political discourse in the twentieth century is in
order. Upon examining the Muslim theological and
political discourse of the early twentieth century,
particularly the revivalist literature produced by leading
Islamic scholars, one notices a very important common
feature: in all the writings, the concept of a model Islamic
state has been central. The ‘revival’ of the model Islamic
state is emphasized as a fundamental prerequisite for the
revival of Islam and the renaissance of the Muslims. A
substantial portion of the religio-political discourse of the
twentieth century revolves around this question.

Interestingly, this conspicuous


preponderance of political overtone sets twentieth century
Islamic scholars apart from almost all earlier Islamic
scholars. Among the most authoritative exponents of Islam
and the most widely acclaimed interpreters of the Shari‘ah
from the days of the founders of the major legal schools up
to the end of the nineteenth century, none assigned such a
central place to the subject of statecraft and politics as is
found in the writings of twentieth century revivalist
scholars. Indeed, the former seldom discussed the state as a
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central issue in their writings. In this context, we may cite


Shah Wali Allah (1703-1762) of Delhi, the progenitor of
Islamic revivalism in the subcontinent, as well as other
earlier Muslim scholars and divines. They too assigned
varying degrees of importance to different concepts in their
writings and respective systems of thought, and the idea of
the establishment or the revival of a model Islamic state as
the fundamental and primary requirement never featured so
importantly in their expositions. Political issues did not
occupy a pivotal position in their thinking. Perhaps, it was
because of the influence of the West and the obtaining
situation in the early part of twentieth century that the
question of the establishment of Islamic state became so
central to Muslim thought in that period.

In the early twentieth century, the Ottoman


Empire had fallen; the Russian Revolution had taken place;
the British and the French had come out victorious from the
First World War; and the United States was emerging as a
leading political power in the world. These important
events led some Muslim thinkers to believe that the
presence of a strong Muslim empire was needed to support
and defend the cause of Islam. These thinkers must have
noticed that there were great empires and political powers
advancing different ideologies and political and cultural
agendas. The Western secular democracy and free market
economy had its defenders in the form of the British
Empire, the French Republic and the emerging United
States. The Communist ideology had recently found a
strong and formidable defender in the form of the erstwhile
Soviet Union. On the other hand, they must have noticed,
with the downfall of the Ottoman Empire, the Islamic
ideology remained the only major ideology left without any
political power to defend and promote it.

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This situation seems to have led some


Muslim scholars and thinkers to deal with the question of
the Islamic state and the modalities of its revival. They felt
the need for its re-establishment more keenly than anybody
else in the past. It is not a coincidence that Muslim thinkers
who laid greater emphasis on the idea of the Islamic state
were mostly also founders of great popular movements for
the revival and renaissance of Islam: Sayyid Mawdudi
(1903–1979),2 Taqi-uddin Nabhani (1909-1977),3 Sayyid
Qutb (1906-1966),4 and several other Muslim leaders were
working for the revival of Islam in different parts of the
Muslim world, and were, at the same time, vocal exponents
of the idea of the Islamic state in the context of the
twentieth century. Even the Khilafat Movement,5 witnessed
in the subcontinent in the wake of the downfall of the
Ottoman Empire, was motivated by the popular Muslim
desire to have a strong political base that would promote
and defend the message of Islam.

The underlying motive of the Khilafat


Movement seems to have been the deep-rooted desire of
the Muslims of the subcontinent to have a state of their
own. The very idea of Pakistan was motivated by this
primary consideration.6 Whatever the pronouncements of

2
Mawdudi, 1992, and Mawdudi’s Islami Riyasat, 1982.
3
Taqi al-Din al-Nabhani, founder of Hizb al-Tahrir, authored several
treatises on issues related to the Islamic state.
4
Sayyid Qutb, a leading ideologue of al-Ikhwan al-Muslimun or Muslim
Brotherhood, dealt with the issues of the state in his many writings,
particularly his magnum opus, Fi Zilal al-Qur’an, a commentary of the
Qur’an.
5
This popular movement was led in the 1920s by the late Mawlana
Muhammad Ali Jawhar (d. 1931) and a group of activist ulema.
6
This aspect figures supreme in the popular literature produced during
the Pakistan Movement (1940–1947). See for example, Ahmad, 1966;
also Qureshi, 1974.

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the leaders of All India Muslim League and the


interpretations given to different statements of the Quaid-i-
Azam Muhammad Ali Jinnah (1876-1948), the fact remains
that the underlying consideration that provided impetus to
the Pakistan movement was the Muslims’ desire to have a
state of their own. It was the cherished ideal of the Muslim
masses to have a homeland which could, to quote the
Quaid-i-Azam, “be the bulwark of Islam”7 and the base
from where the message of Islam could be promoted and it
could be demonstrated to the modern world that the
principles of Islam were as practicable in the current
environment as they were in earlier centuries of Muslim
era.

Significantly, we do not find in the Qur’an


any direct reference to the institution of a state. Even the
term ‘state,’ or its Arabic equivalent ‘dawlah,’ has never
been used in the Qur’an. The word dawlah has been used in
the early Islamic sources but not in the sense of a ‘state.’8
The term came to mean ‘state’ much later, in the fourth or
fifth centuries of the Muslim era. The foremost social and
collective ideal that the Qur’an lays down is the concept of
ummah — the universal Muslim brotherhood, which is
required under the Qur’an to be the upholder of the divine
message and to promote the cause of Islam at the individual
as well as the collective level.9

7
Yusufi, 1996, p. 2643.
8
The term dawlah came into popular use after the downfall of the
Umayyads and the rise of the Abbassids in the first half of the second
century. It was then used to connote ‘turn,’ i.e. Abassid’s turn to rule.
It was much later that dawlah became synonymous with state; in fact,
right up to the seventh century of Hijrah, the term had not been used
to denote state (cf. Ibn Manzur, Lisan al-Arab in loco).
9
See, for example, the following Qur’anic verses, 2:128, 143; 3:104,
110; 21:92 and 23:52.

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However, the Qur’an does refer to the


political authority of the Muslims and the functions to be
performed by it. Significantly, the authority is conditional.
The Qur’an says, “Those are the people, if we give them
authority and power in the land, they will establish
religious services, pay the poll tax, enjoin the Good and
forbid the Evil.”10 It is significant that the Qur’an adds
conditions to the performance of these responsibilities. The
implication is that Muslims are collectively responsible to
perform these functions only if they obtain political power
somewhere in the land. Otherwise, if they are individually
living as minorities in a non-Muslim environment, or are
otherwise in a situation where they do not enjoy political
freedom and authority, the Qur’an does not require them to
undertake these functions.11

The Concept of Ummah


The concept of ummah has occupied an important
place in Muslim political thought from the very earliest
centuries. There was a time, soon after the demise of the
Prophet of Islam (PBUH) and for more than one century,
when the entire Muslim world was politically represented
by a single state. There was one political administration
that housed the majority of the Muslim ummah in the
world. But even in those days, the ummah was not identical
with the Islamic state or the ‘imamah,’ the term used by
early Muslim jurists for the Islamic state. There were
Muslim communities living outside the political frontiers of
Islam even in the early decades of the first century. During
the tenure of the second caliph, there were Muslim

10
Al-Qur’an, 22:41.
11
This is evident by the Qur’anic use of the word if in Al-Qur’an, 22: 4.
For a longer discussion, see the present writer’s Muhadarat-i-Fiqh,
Lahore, 2005, pp. 41-46.

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communities in India,12 China, the Far East and other parts


of the world.13 These communities were undoubtedly part
of the ummah in the moral and spiritual sense but were
outside the politico-geographical frontiers of Islam. In the
social, cultural, religious and ideological sense, they were
certainly part of the ummah and the Muslim state was, to
some extent, responsible for their welfare and defense,
subject to certain conditions laid down by the Qur’an.
Later, towards the middle of the second century A.H., the
Islamic state was divided into two administrations: the
Eastern Caliphate headed by the Abbasids, and the Western
Caliphate led by the Umayyads. The concept of the ummah
did not face any formidable challenge in this political
division: questions of political boundaries, citizenship,
rights and privileges of Muslims living within the two
Muslim administrations did not pose any serious problem
to the unity and solidarity of ummah in the spiritual and
cultural sense. Despite the presence of two political
administrations — and later many others — the concept of
ummah remained alive and supreme.

The idea of Dar al-Islam , or the territory of


Islam, which was developed by the early Muslim jurists
during the lifetimes of the companions of the Prophet
(PBUH), provided a theoretical and legal framework for
maintaining the unity of two or more political
administrations inter se. Irrespective of the specific rulers,
the entire territory ruled by Muslims, whether in the East or
in the West, was considered a part of Dar al-Islam. A
uniform and common set of rules and principles was

12
Qureshi, 1977, Chapter one.
13
The origins and expansion of these communities has been
acknowledged by Arnold, 1979.

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developed by Muslim jurists of the early centuries to define


the mutual rights and obligations and regulate relations
between the ummah and its political authority. The law of
Shari‘ah, with its variant interpretations, provided a
common ground for allegiance to the ummah. This
allegiance was so strong that it guaranteed Muslim unity
and solidarity around the globe.

The difficulty was felt towards the end of


the seventeenth century when, in the West, geography and
territoriality became central to the idea of state with the
development of the concept of the nation-state and the
downfall of papal authority in Europe. With the fall of the
Church as the unifying force and controlling power of
Christian Europe and the resultant disintegration of the
papal administration, eventually militant territorial
nationalism emerged and led to the total dismemberment of
the Church Empire and the establishment of strong nation-
states throughout Europe. All this had its fallout on Muslim
thought and Muslim political thinking.

From this point onwards, there were


increasing encounters between Islam and the West, which
kept intensifying and diversifying with the passage of time.
Muslim thinkers came more and more under the influence
of Western ideas through a number of avenues. It was from
this background that nationalism and territoriality came to
be acknowledged by Muslims as the major elements of the
composition of the state. No doubt, the increasing appeal to
the idea of the nation-state had a negative effect on the
concept of ummah and the unity of the Dar al-Islam.
Territorial nationality became a decisive factor in the
political debate, not only in the West but also in the East. It
continued to acquire more and more influence, until, in
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time, the very concept of ummah, as defined by early


Muslim scholars and maintained by later generations, was
desecrated.

Ummah and Imamah Defined


According to the Qur’an, the ummah is the ultimate
collective objective of the Muslims. To remain associated
with and to express solidarity with the Muslim ummah is
the responsibility of each and every individual Muslim. 14
The functions assigned by the Qur’an to the Muslims
collectively are understood to have been addressed to the
ummah. Now, the ummah requires the political power of an
Islamic state to have the necessary operational basis,
machinery and other wherewithal for fulfilling these
functions. The idea of the Islamic state was justified by
Muslim jurists on the basis of this need. In the sayings of
the Prophet (PBUH), there are references to various
functions of the Muslim administration, the rulers, and
persons-in-authority in different contexts, from which the
need for and existence of an Islamic state can be
presupposed.15 However, nowhere has the Prophet of Islam
(PBUH) been reported to have required the believers to
strive for the establishment of a state or to acquire political
power. Writers on the subject, particularly in the twentieth
century, quote an important saying reported from the third
caliph, ’Uthman ibn Affan: “Islam and sultan (political
authority) are twin brothers: one of them cannot stand on its
feet without the other. Islam is the foundation while the
sultan or political authority is a guard or watchman. If a
building does not have a foundation, it is bound to collapse;

14
Al-Qur’an, 8:72.
15
Ahmad ibn Hambal al-Musnad, Vol. V, p. 183; Darimi, al-Sunan,
Introduction, 34; al-Musnad, Vol. II, 327, 360 and 367; Vol. IV, pp. 80
and 82, etc.

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if a building does not have a guard or a watchman, it is


wasted.”16 Thus, the third great caliph established the
relationship between Islam and the state, laying the
foundation for a unified concept of the Islamic state where
there is no scope for separation between the religious and
the mundane or ‘the Church’ and the state.

Whenever early Muslim scholars defined the


Islamic state or the imamah, as they used to call it, they
defined it in such a way that the possibility of
secularization of the institution was excluded. Therefore,
there was never any division between the state and the
religious belief of the Muslims.

Classical Muslim scholars, particularly those


representing the juristic approach, have not much addressed
the question of the origin of the state. This question was
raised by scholars influenced by Greek thought, appearing
from the end of the third century of the Islamic era.
However, their discourse never represented the core of
Muslim thought. The core of Muslim thought was
represented by the jurists and the theologians who
discussed the question of imamah mostly in the light of the
Qur’an and the Sunnah. Nevertheless, it goes to the credit
of men like Abu Nasr al-Farabi (870-950), one of the most
well-known and profound intellectuals of the early
centuries of Islam, that they tried to formulate Greek ideas
in the political realm in such a way that they appeared to be
adjustable to Islamic theology and Qur’anic references.
Farabi, for example, categorizes the state as al-Madinah al-
Dāllah (a misguided state) or al-Madinah al-Fasiqa. Fasiq
and dāll are terms used in the Qur’an for religiously

16
Quoted, among others, by ‘Ali al-Muttaqi, Hadith no. 3803.

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impious and misguided persons. Farabi uses these terms for


a degenerate state, indicating thereby that it is basically the
moral and spiritual level which determines the category of
a state. Likewise, al-Madinah al-Fadilah (the virtuous
state) refers to moral virtues. Farabi’s choice of words
clearly shows that he was motivated by the idea of
integrating Greek thought with Islamic concepts in order to
present an interpretation of the Islamic state that was
comprehensible in terms of Greek philosophy and logic.17

Some scholars have tried to establish that


the theory of social contract is relevant to the city-state of
Madinah established by the Prophet (PBUH). They refer to
the pledges given by the Ansār of Madinah to the Prophet
(PBUH) at al-Aqabah during the Hajj seasons in the years
preceding the Hijrah to Madinah. The bay’ah, or pledge of
allegiance, given by them during these meetings,
particularly the last one, was a contract giving rise to the
Islamic state of Madinah. For many centuries to come, the
bay’ah or contract remained the basis not only for political
authority but also for political legitimacy. Not only in
political life, but also in religious and social matters, the
contract has been a basis of relationship in Muslim life. To
this day, religious fraternities and spiritual orders in the
Muslim world are based on a pledge or contract between
the sheikh, or the spiritual guide, and the disciple. In
marriage and family life too, it is the social contract
between the spouses that brings Muslim society into
existence. Thus, the idea of social contract, in one form or
another, has been a reality in the Islamic system, and not a
theoretical presumption or hypothesis as many scholars say

17
For a masterly treatment of the subject see, Mahdi, 2002.

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about Rousseau’s exposition.18 Some political scientists and


historians feel that it is the incontrovertible judgment of
history that no state in known European history came into
existence as a result of the social contract conceived by
Rousseau. They conclude that the theory is false “because it
has no validity in human experience and that it is a pure
figment of man’s imagination.” According to Kant, this
theory has no basis in history. He does not accept it as an
explanation of the actual origin of the state.

The theologians and the scholastics in


Muslim history, on the other hand, raised another, rather
deeper, question, which later gave rise to discussions by
jurists and other writers on the subject. That was the basic
question of the necessity of the state: whether the state is
necessary by divine verdict or by the dictate of logic and
reason. From the earliest days, there have been two views
in Islamic theology on this issue. There is a group of
thinkers who hold that the establishment of an Islamic state
is necessary according to the dictates of logic and reason.
In other words, human reason and logic require that
humans should have a state; therefore, Muslims should also
have an Islamic state. On the other hand, the majority of the
theologians representing the Sunni mainstream is of the
view that the establishment of an Islamic state is
necessitated both by the requirements of the divine writ and
by the dictates of reasoning and logic. Relying primarily on
scriptural authority, they emphasize that the Islamic state is
necessary, on the one hand, to ensure the implementation of
those injunctions of Islam that are to be implemented by the

18
For a good discussion on Rousseau’s concept of social contract, see
Harmon, pp. 302-313; Sabine, 1961, Chapters 27 and 28.

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Is l a m i c S ta te i n th e Co nte m po r a r y I nte r na ti o na l S ce n a r i o

state and, on the other, to exclude any dichotomy between


state and religion, and between this world and that world.

It may be pointed out here that the Qur’an


consists of two categories of injunctions, as do the Sunnah
and the authoritative expositions of the Shari‘ah. The first
category consists of those principles that are to be
implemented by individuals. In this respect and to this
extent, Islamic teachings are similar to the teachings of
other religions where the matter of enforcing religious
precepts has been left to the individual, who has the
responsibility to implement them without the intervention
of any external authority. However, there is also a second
category of principles and injunctions in the Shari‘ah and
fiqh (understanding of the injunctions of Islam as
interpreted by Muslim jurists), the implementation of which
requires the establishment of an Islamic state. Interpreters
of the Qur’an have held that these latter injunctions are
addressed to Muslim rulers as representatives of the
Muslim community.

The penal code of Islam, the instructions


related to international law, and the instructions related to
the administration of justice are, to mention some
examples, areas that are to be dealt with by the state. This is
why theologians feel that the establishment of an Islamic
state is necessitated by the dictate of divine revelation as
well as by logic and reason. Perhaps due to this primary
question, the discussion related to state has remained part
of Muslim theology, rather than legal or juridical thought.
The legal exponents of Islam, the jurists or the fuqha,
seldom raise these issues in their compendia on Islamic
law. They presuppose the existence of the Islamic state as a
practical reality and base their rulings on this

13
Is l a m , I n te r na ti o na l L a w a n d th e W o r l d T o d a y

presupposition. To them, the question of the origins of the


state is a merely theoretical question. In their time, the
Muslim administration was a continuing fact. It was
already in full swing. The law of the land, by and large,
was Shari‘ah, which was adjudicated upon by Muslim
judges and jurists.

However, to Muslim jurists and writers, the


state was not an end in itself. It was a means to achieve an
end, and that end was the establishment of the rule and the
supremacy of the Shari‘ah or, to borrow the Biblical
expression, the realization of God’s plans revealed in the
form of the divine injunctions. Muslim jurists developed a
principle which is frequently quoted in the juridical
literature: ‫“    اا إ   وا‬Whatever is needed
to implement an obligation is also obligatory.”19 Their
argument was simple: the enforcement of the Shari‘ah is
obligatory; Shari‘ah cannot be substantially enforced in the
absence of effective political power of Muslims; therefore,
the establishment of political power and authority is
necessary.

Structure of Government
The Qur’an is not concerned with the form or the
structure to be adopted for the establishment of the state. It
refers only to its functions and responsibilities. The
question of form has been left to be decided by the
community. Through the 1,400 years of the Islamic era,
Muslim scholars, rulers and jurists have been discussing
different forms of government in the context of their
respective times and climes. This is why, what we call the
traditional or classical Islamic state — the Umayyad or the

19
Al-Zarqa, 1968, pp. 784-5 and 1088.

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Is l a m i c S ta te i n th e Co nte m po r a r y I nte r na ti o na l S ce n a r i o

Abbasid, for example — had a variety of features.


Depending on the perspective, it looks partly like a
monarchy, partly like an aristocracy, and partly like a
democracy. In reality, however, it was neither a democracy
with its modern connotations, nor an aristocracy, in the
sense it was understood in the West; nor was it a monarchy
in the medieval European sense. It may have been a
combination of all of these, incorporating some features of
all of them. However, one thing is clear: that it was
established to realize the sublime objective of enforcement
of the Shari‘ah.

As long as the rulers enforce the Shari‘ah in


letter and spirit in such areas as are relevant to the state and
to the functions of political authority, the state is an Islamic
state. No state was considered to be an Islamic state by the
authoritative exponents of Muslim theology and Shari‘ah
unless it passed on this primary touchstone. This is why the
question of limits of political control was raised by Muslim
jurists: to emphasize and ensure that those concerned with
political authority would know from the beginning the
limits of the exercise of their authority. Indeed, the question
of limits on the use of authority had engaged the attention
of Muslim jurists from the second century. By identifying
these limits, they sought to curb the possibilities of misuse
of power. It may be pointed out that Muslim jurists have
been exceedingly cautious about misuse of power by rulers.
They always tried to ensure that the monarchical traditions
of the pre-Islamic Romans and Persians did not infiltrate
the body politic of Islam. There were many incidents where
Muslim jurists condemned some measure by a ruler

15
Is l a m , I n te r na ti o na l L a w a n d th e W o r l d T o d a y

because it represented revival of the ways of the Caesars or


Chosroes.20

In this regard, Imam Abu Yūsuf (731-798),


a great jurist of the second century, has laid down a
principle adhered to by all Muslim schools and jurists. He
says that the authority of the ruler to take decisions in
public affairs is contingent upon the welfare of the masses
and public weal.21 If an action is justified on the touchstone
of public weal, it is permissible as valid; otherwise, it is not
legally justified.

This dictum of Imam Abu Yūsuf has been


endorsed by other jurists as well. The well-known jurist Ibn
Nujaim (d.1563) has referred to a saying of the second
caliph, Umar, as a basis for this principle. The second
caliph had said that his role in dealing with the public
money was like that of the guardian to an orphan’s money,
about whom Allah, the Almighty, has said in the Qur’an:
“If the guardian is affluent, let him claim no honorarium;
but if he is poor, let him have for his needs what is just and
reasonable”.

When the second caliph appointed three


leading companions to different positions of responsibility
in Iraq, he ordered that a sheep be provided daily to be
distributed amongst the three in a certain proportion
defined by himself. Several other precedents have been
quoted by Ibn Nujaim and other jurists in support of this
principle.

20
References to these terms are found mostly in the criticism directed
by some Companions at the nomination by the Caliph Mu’awiyah, of
Yazid, his son, as his successor.
21
Al-Zarqa, op. cit., pp. 1050-1051.

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Is l a m i c S ta te i n th e Co nte m po r a r y I nte r na ti o na l S ce n a r i o

Later jurists phrased this concept in more


precise language, saying '()*+ ‫ط‬- './0‫ ا‬1)/ ‫ م‬3‫ف ا‬0*5,
i.e. the authority of the state over the public is contingent
upon public weal. In other words, the state cannot exercise
unlimited and unbridled authority. It cannot exercise any
power in any situation in violation of the principles of
Shari‘ah and the public policy. Thus, a decision taken by
any authority in the state that violates public weal and
disregards public interest would be ultra vires under the
Shari‘ah.22

This principle applies not only to the state


and its functionaries, but also to every person who is
exercising any kind of authority. The judicial authority of
the courts is also limited to the actions taken and judgments
given in the legitimate interest of the aggrieved. Ibn Nujaim
has quoted a number of principles that are relevant in this
context. One such principle is:
‫ ر‬7 8)9 +. '()*+‫ ا‬1)/ .-: ‫ م‬3‫; ا‬9 ‫إذا آن‬
CD-  DF ‫ن‬G .?‫ إ إذا وا‬/0@ A0 ‫ أ‬CD-  ' ‫ا‬
That is, the authority of the qadi (a judge or judicial officer)
is limited by consideration of the legitimate interest of the
aggrieved.23

The second principle is ‫ إ إذا‬CD-  HI?‫ ا‬0 ‫أ‬


‫ع‬0K‫ ا‬8‫وا‬, i.e. orders of the court shall be enforceable to the
extent that they are in conformity with the Shari‘ah.24

Muslim jurists and theologians have


explained the Islamic state or imamah in a holistic way. We

22
See for examples, inter alia, Ibn Nujaim, Beirut, 1980, pp. 123-126.
23
Ibid, p. 124.
24
Ibid, p. 125.

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may profitably quote here a few definitions given by some


authoritative writers, all of which converge on one point:
the Islamic state administers ‘this-worldly’ affairs of the
Muslim and defends the ‘other-worldly’ affairs of the
Muslim—LM‫' ا‬N‫ا‬0O‫ و‬.PM‫' ا‬N.N.25

Sayyid Sharif Jurjani (d.1413), a


philosopher and theologian of the eighth century says, “It
[i.e. imamah] is the succession of the Prophet of Islam
(PBUH) in the establishment of din or religion in this world
and defense of the Muslim ummah in administrative and
other worldly matters.”26 Al-Mawardi (972-1058), the
celebrated exponent of Muslim political thought in the
middle of the Abbasid period, says the Islamic state
represents the continuity of the succession to prophethood
in the protection of din and the administration of worldly
affairs.27 The same wording has been used by Fakhr al-Din
Razi (1149-1209), the well-known theologian and
philosopher; by Ibn Khaldun (1332-1406), the famous
historian and founder of Islamic sociology; and by the
eminent theologian Taftazani (1322-1390). Thus, one idea
was always clear in the minds of the Muslims: whatever the
concept and functions of the Islamic state, it was required
to address both aspects: ‘this-worldly’ benefit of the
Muslims and ‘that-worldly’ responsibilities of the Muslim
community.

Indeed, there has never been any question of


dichotomy between ‘this world’ and ‘that world’ in the
Islamic system. The conflict between the religious and the

25
Mawardi, 1996, p. 5.
26
Jurjani, p. 345.
27
Mawardi, op. cit.

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mundane never found its place in the writings of Muslim


jurists. They raised questions about issues like the rule of
Shari‘ah, the vicegerency, equality of citizens and shura
(consultation on public matters). (These issues are
discussed later in this book.) However, Muslim jurists were
never in any doubt about the holistic nature of the Islamic
state.

In the West, writers on the history of


political thought normally start with the city-state of the
Greeks. They discuss Greek thought as the beginning of
political thought in human history. This is followed by the
Roman contribution to law and constitution. After the
Romans, most of the Western writers make a jump of
several hundred years and come to the modern West.
Hardly any responsible writer has dealt with the
contribution of Muslim thinkers to this field, or the
question of the city-state established in Makkah before
Islam, and the city-state established by the Prophet (PBUH)
in Madinah. Indeed, Madinah had a written constitution
which was preserved and is available for study today. This
constitution is a fairly comprehensive document and refers
to a quite well-developed administration with different
branches and an organized state. Fortunately, many
significant details about this state have been preserved by
early Muslim historians; some of which are discussed infra.

Question of Sovereignty
At this stage an important question that needs to be
addressed is the question of sovereignty. It is true that
Muslim scholars in the twentieth century have used the
word ‘sovereignty’ under the influence of Western
writings. The term is undoubtedly Western: it has been

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used in Western political parlance and carries the baggage


of Western history. Its current Western connotations
originate from the seventeenth century, when the nation-
states of Europe were coming out of the spell and influence
of papal authority and needed a political system to
highlight their independence of the Pope. However, in
contemporary Islamic discourse, the term conveys an idea
that has always been an important subject of discussion
among jurists and theologians dealing with the question of
al-Hukm. Muslim writers have been unanimous on the
issue that Hukm, or the ultimate authority to decide, to
judge and to rule, belongs to Allah, the Almighty. This
principle has been termed as sovereignty of Allah in
modern Muslim parlance.

The principle of sovereignty of Allah is


reflected in the principle of the supremacy of Shari‘ah. The
sovereignty of Allah does not necessitate—indeed, does not
permit — any individual or group of individuals to assume
any authority in the name of the Almighty or to exercise
any special inherent power to issue rulings and edicts. The
question of interpreting the divine injunctions and the role
of the ulema and the jurists has been grossly misunderstood
and misinterpreted in our times. Some religious scholars
propagate the distorted perception that they have some
divinely ordained inherent right to exercise special
privileges. In fact, in the Islamic tradition, a jurist or a
religious scholar has only the freedom to express an
opinion. The legitimacy of that opinion is always subject to
acceptance, not only by other jurists but also by the ummah,
under the principle of consensus, or ijmā‘. The Qur’an
refers to a process of mutual consultation and discussion

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whereby matters of state should be decided.28 It should be


through this process of shūra and mutual consultation of
the rulers and the ruled that the divine injunctions should be
interpreted and the details worked out to enforce the
Shari‘ah and uphold its supremacy.29

In a well-known verse of the Qur’an,


Muslims have been told: “In case you dispute among
yourselves (the ruled and the rulers), then the dispute
should be referred back to Allah and His Messenger.”30 This
simply means that the disputed matter should be decided
with reference to the divine law, i.e. the Qur’an and the
Sunnah. The very presence of this verse shows that there
may be a difference of opinion about the interpretation of
the Qur’an between the masses and the individuals in
authority. There may also be a difference of opinion about
matters of details in the implementation of the Qur’an and
the Sunnah.

Representative Government
Those in authority cannot justify their position if
they do not represent the people and the Muslim ummah.
The Qur’an makes reference to this principle. The Sunnah
of the Prophet (PBUH) has clearly laid down that the persons
in authority should be those who enjoy the confidence,
respect and support of the masses of the Muslim ummah.31
This has been upheld by Muslim scholars and jurists from
the earliest days. There is a saying of the Prophet (PBUH),
quoted by Imam Muslim, one of the most authoritative

28
Al-Qur’an, 42: 38.
29
For the role of Shura in the process of Ijtihād and ijmā‘ see, among
other sources, Abu Faris, 1989, pp. 989-1012.
30
Al-Qur’an, 4: 59.
31
See, for example, Al-Salih Muslim, 1349, Vol. II, p. 129.

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compilers of the hadith: “Your best rulers are those whom


you like and who like you, for whom you pray and who
pray for you; and your worst rulers are those who hate you
and whom you hate, who curse you and whom you curse.”32
This hadith clearly shows that the nature of the relationship
between the rulers and the community should be that of
mutual confidence, love and respect.

The question of how this confidence and


love should be gauged and ascertained has been left to be
decided by the community, which would keep in view its
own time and clime. A prominent Muslim philosopher of
the eighth century AH, Sa’ad al-Din Taftazani, says that one
of the basic qualifications and qualities of Muslim rulers is
that they should enjoy the following of the people.33
Another scholar, an earlier authority, is more specific. The
Shāfi‘ī jurist and theologian al-Baqillani (950-1013) says:
“In all his responsibilities and functions, the ruler is an
agent and viceroy of the ummah. The ummah should
always be behind him to correct him, to put him right, to
remind him, to admonish him and to take the right from
him when it becomes incumbent on him, to withdraw his
investiture and to replace him should he commit something
which necessitates his removal.”34 Ibn Taymiyyah (1263-
1328), who was the most prominent Hanbali theologian of
the medieval period and whose views are held in the
highest esteem in contemporary Muslim societies, has also
expressed the view that the investiture of the earliest
caliphs, including the immediate successors of the Prophet
(PBUH), was based on their acceptance as caliphs by the

32
Muslim (a), 1998, Hadith no. 4804.
33
Taftazani, 1981, p. 272.
34
Baqillani, 1987, p. 476.

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majority of the Muslim ummah.35 According to another


theologian and scholar, Abdul Qadir bin Tahir al-Baghdadi
(d. 429 AH), the basic principle is that the ummah has the
final authority to select the rulers and to hire and fire its
representatives.36 According to a Hanbali jurist, if the
people agree on somebody’s leadership and express
allegiance to him, his leadership will be established and
recognized.37

The Principle of Shūra


When a ruler is elected and his investiture is
complete, he is required under the Qur’an to decide on
matters with shūra or mutual consultation.38 The principle
of consultation has been mentioned in the Qur’an as one of
the hallmarks of Muslim society. Muslims are expected to
resolve all disputes and decide on all issues, including
family matters, social issues, political disputes, and legal
and constitutional matters, through shūra. The Shari‘ah, or
the Pathway (to ultimate success), as it is embodied in the
Qur’an and the Sunnah, the two perennial sources of
guidance, is beyond any change or modification. However,
the practical application of Shari‘ah is based on the
understanding by Muslim jurists of the principles and
injunctions laid down in these two sources. Muslim jurists
are required in their individual and private capacity to
exercise their best and most profound judgment in the
understanding of the Qur’an and the Sunnah and to share
their findings and conclusions with the ummah. If the
ummah agrees with an interpretation, it becomes consensus,
which is a source of Islamic law after the Qur’an and

35
Ibn-Taymiyyah, 1976, p.141.
36
Baghdadi, p. 271.
37
Ibn Qudamah, 1992, p. 243.
38
Al-Qur’an, 3: 159.

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Sunnah. Where there are conflicting views among the


jurists, if the ummah does not accord consensus to any
single view and agrees to disagree by admitting that two or
more interpretations are valid, all these differing views and
opinions will be accepted with equal force and validity. In
this situation, it is left to the individual Muslim to choose
any of the accepted rulings to follow. This is why different
schools of law have been operating in the Muslim world
throughout its history. An interpretation that acquires
validity and legitimacy through common acceptance should
be based on the understanding of the divine edicts, the
consensus of the jurists in the first place, and eventually the
acceptance of the community.

It is not a coincidence that the founders of


the major schools of law and theology whose views and
interpretations are still followed in the Muslim world were
all private individuals. They neither held any political
office, nor enjoyed any government patronage. Abu
Hanifah (699-767), Shāfi‘ī (767-820), Malik (711-795),
Ja’far Sadiq (702-765), Ahmed ibn Hanbal (780-855), Zaid
bin Ali39 (695-740) and scores of others were only private
citizens, yet great jurists in their own right. Their rulings
and interpretations were accepted not only by their Muslim
contemporaries but also by subsequent generations of
Muslims. Even today, vast majority of Muslims follow
their rulings and interpretations in their day-to-day
religious and religio-legal activities. This has given rise to
an ‘Islamic common law,’ which is not confined to any
form of legal code. This common law of Islam has neither

39
Abu Hanifah, Shāfi‘ī, Malik, Ja’far Sadiq, Ahmed ibn Hanbal and Zaid
bin Ali were the founders of leading schools of Islamic jurisprudence,
namely Hanafi, Shāfi‘ī, Maliki, Ja’fari, Hanbali and Zaidi, respectively.

24
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been laid down by any monarch, nor been legislated by any


formal or official legislative body. It is only the result of
the collective and continuing efforts of private individual
jurists. Indeed, the entire corpus juris of Islam has come
down to us through the efforts of private jurists. Every
jurist added to the existing treasury with more clarity and
further elaboration. This store of knowledge in the legal
domain was adjudicated upon by jurists and judges alike.40

Judges in Islamic history were not bound by


the ruling of any monarch or by the verdict of any
government per se. What they were bound by was what
they believed to be the most sound and valid interpretation
of the divine law by the renowned jurists or jurist whose
views were accepted by the Muslim community at large.
This is why the law of Islam has been independent of the
influence of political leaders and rulers. The process was
guided and streamlined by the fundamental principles of
jurisprudence laid down by the Qur’an and the Prophet
(PBUH). It was further guided by the instructions given by
the Companions of the Prophet (PBUH) and his immediate
successors. In this regard, the instructions given by the
second caliph of Islam are especially worth mentioning as
they are considered the basis of various independent
branches of legal knowledge. The second caliph can, for
example, be considered the founder of an independent
branch of Islamic law and jurisprudence known as Adab al-
Qadi, or the procedural law of Islam. An important
memorandum was addressed by him to another companion,
Abu Musa Ash’ari, who was serving as the Chief Justice of
the Province of Basra.41 This memorandum, written in the

40
See for further details, Ghazi, 2006, pp. 110-119.
41
See the full text in Ghazi, 1983, Chapter Four.

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Is l a m , I n te r na ti o na l L a w a n d th e W o r l d T o d a y

seventh century of the Christian era, lays down some


fundamentals of law that have now found their way into the
legal thought of mankind. One of the principles mentioned
is:  ‫ذ‬DP  8( )X5 YD-  “There is no use to speak of a right
which cannot be enforced.” This means that a judge should
take up for decision or adjudication only those issues about
which he can give an effective judgment and have it
enforced.

Today, this concept has been accepted by


the legal and judicial communities and has become an
established principle followed by the judiciary everywhere.
Now, in all civilized countries, the judiciary takes up only
those issues where it feels that its judgment can be
enforced. Where the judgment cannot be enforced, either
only a declaratory judgment is issued or the judiciary
abstains from making any pronouncement. In a number of
modern constitutions, the Indian Constitution, for example,
it has been laid down that in respect of some issues, the
Supreme Court shall give only a declaratory judgment,
simply because it would not be in a position to have that
judgment effectively enforced. 42 This principle, which
protects the superior judiciary from incurring
embarrassment over ineffectiveness, was enunciated for the
first time by the Umar, the second caliph.

Another principle mentioned in the


memorandum is: ;Z:‫ ا‬H ‫ري‬+‫ ا‬L 0.F 8(‫ ا‬1‫ع إ‬0‫ا‬. This
means “To revert to the truth is better than to continue in
evil.” In other words, if one decides something today, and
finds a better solution the next day, one should not hesitate

42
For example, the Constitution of the Islamic Republic of Pakistan,
Article 184(2); Also Constitution of India, Article 131.

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Is l a m i c S ta te i n th e Co nte m po r a r y I nte r na ti o na l S ce n a r i o

to review one’s earlier judgment.43 These examples show


how the Muslim judiciary operated and worked.

The Muslim judiciary worked for the


actualization of the Islamic concept of justice, a concept
that was universal, not selective. The Qur’an refers to the
terms “qist” and “’adl.” Qist is, perhaps, the Arabic source
of the words “just” and “justice” in the Western languages.
There is no concept of selective justice in Islam. The
Shari‘ah is clear on the issue that the same set of rules
should be applicable to everybody, without any distinction
or discrimination on grounds of status, office, color, race or
sex. In the following verses, the Qur’an speaks for itself on
justice:

1. Ye who believe! Stand out firmly for justice, as


witnesses to Allah, even as against yourselves, or your
parents, or your kith and kin, and whether it be [against]
rich or poor: For Allah can best protect both. Follow not the
lust [of your hearts], lest ye deviate from justice; and if ye
distort [justice] or decline to do justice, verily, Allah is
well-acquainted with all that ye do.44

2. O ye who believe! Stand out firmly for Allah,


as witnesses to fair dealing, and let not the hatred of a
people to you make you depart from justice. Be just: that is
next to piety: and fear Allah. For Allah is well-acquainted
with all that ye do.45

43
The dictum provides the basis for review of a judgment issued by a
court.
44
Al-Qur’an, 4: 135.
45
Al-Qur’an, 5: 8.

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Is l a m , I n te r na ti o na l L a w a n d th e W o r l d T o d a y

3. Allah commands justice, the doing of good, and


liberality to kith and kin, and He forbids all shameful
deeds, and injustice and rebellion: He instructs you, that ye
may receive admonition.46

4. Fulfill the covenant of Allah when ye have


entered into it, and break not your oaths after ye have
confirmed them; indeed ye have made Allah your surety;
for Allah knoweth all that ye do.47

5. Nor take life — which Allah has made sacred


— except for just cause. And if anyone is slain wrongfully,
We have given his heir authority [to demand qisas or to
forgive]: but let him not exceed bounds in the matter of
taking life; for he is helped [by the law].48

6. Come not nigh to the orphan’s property except


to improve it, until he attains the age of full strength; and
fulfill [every] engagement, for [every] engagement will be
enquired into (on the day of Reckoning).49

7. Give full measure when ye measure, and weigh


with a balance that is straight: that is the most fitting and
the most advantageous in the final determination.50

46
Al-Qur’an, 16: 90.
47
Al-Qur’an, 16: 91.
48
Al-Qur’an, 17: 33.
49
Al-Qur’an, 17: 34.
50
Al-Qur’an, 17: 35.

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8. Nor can a bearer of burdens bear another’s


burden. If one heavily laden should call another to [bear]
his load, not the least portion of it can be carried [by the
other], even though he be nearly related. Thou canst but
admonish such as fear their Lord unseen and establish
regular prayer. And whoever purifies himself does so for
the benefit of his own soul; and the destination [of all] is to
Allah.51

9. The recompense for an injury is an injury equal


thereto [in degree]: but if a person forgives and makes
reconciliation, his reward is due from Allah: for [Allah]
loveth not those who do wrong.52

10. But indeed if any do help and defend


themselves after a wrong [done] to them, against such there
is no cause of blame.53

11. The blame is only upon those who oppress men


with wrongdoing and insolently transgress beyond bounds
through the land, defying right and justice: for such there
will be a penalty grievous.54

12. We sent aforetime our Messengers with clear


signs and sent down with them the Book and the Balance
[of Right and Wrong], so that men may stand forth in

51
Al-Qur’an, 35: 18.
52
Al-Qur’an, 42: 40.
53
Al-Qur’an, 42: 41.
54
Al-Qur’an, 42: 42.

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justice; and we sent down Iron, in which there is awesome


power, as well as many benefits for mankind, that Allah
may test who it is that will help, unseen, Him and His
Messengers: For Allah is full of strength, exalted in might
[and able to enforce His Will].55

In Islamic history, the practice of justice has


had another interesting feature that is as important as it is
unique: legal pluralism. For ten centuries of Muslim era
legal pluralism was integrated in the way Muslim societies
functioned. It was a novel phenomenon that operated, both,
within the Muslim community and at the level of the
Islamic state. Within the Muslim society, there were
different schools of jurists followed by large groups of
Muslim citizens. For each of these schools of
jurisprudence, Islamic laws were implemented differently,
in accordance with their respective interpretations. The
Hanafis were bound by the Hanafi law and Hanafi judges
exercised authority over them. The Shi‘ahs followed the
Shi‘ah law, and their disputes were adjudicated by Shi‘ah
judges, and so on and so forth. This practice was extant
until very recently — as late as the 19th century in some
countries. Indeed, before the Hijaz was taken over by the
Saudis in the 1920s, a type of religio-juridical pluralism
had been maintained there by the Ottomans, who were
themselves Hanafis.

At the same time, there are examples where


non-Muslims were given the freedom to have their own
matters adjudicated under their own law by their own
judges. In Spain, Egypt, India and several other countries,

55
Al-Qur’an, 57: 25.

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non-Muslim courts existed side by side with Muslim courts


to adjudicate issues and disputes of non-Muslims in
accordance with their own laws. This practice has the
authority of the Qur’an, in which it is said “ ;.)\P3‫ أه; ا‬X(.‫و‬
. ^‫`ل ا‬P‫ أ‬+”, i.e. the followers of Evangile should decide
their cases in accordance with the Evangile.56

Thus, in all compendia of Islamic law, the


legal systems followed by other communities have been
recognized as valid legal systems. Their judicial decisions
have been acknowledged as legitimate, and their personal
status has been recognized.57 On this basis, Muslim jurists
have laid down principles and rules to regulate the rights
and privileges of non-Muslim communities in accordance
with their own personal law. Their findings and rulings
constitute the basis of what may be termed as the private
international law of Islam.

It may be pertinent to mention here that the


rules regulating Muslims’ relations with their non-Muslim
compatriots were formulated as early as in the days of the
Khulafa-i-Rashidīn (632–660).58 Thus, the fourth caliph,
Ali Ibn Abi Talib said: “-.)/  .)/‫ و‬-  ”, which may
roughly be translated as “For them, what is for us; upon
them, what is upon us,” meaning the non-Muslims have the
same rights and privileges and the same obligations as the
Muslims.59 The second Caliph, Umar, went further, saying:

56
Al-Qur’an, 5: 47.
57
See chapters on the marriages of the Abl al-Dhimmah in any legal
compendium, for example, Kitab al-Umm, Mabsut, Hidayah, or al-
Mughni.
58
Khulafa-i-Rashidin, meaning “right guided caliphs,” is a collective
title for the first four caliphs of Islam, Abu Bakr, Umar, Uthman and Ali
(may Allah be pleased with them).
59
Zailiee’, Nasb al-Rayah li Ahadith al-Hidayah, Vol. IV, p. 55.

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We (Muslims) promise that in areas where they (the non-


Muslims) have their own majority, we will not appoint
anybody from outside; rather, their people will be
appointed to senior offices in their own areas.60

Such have been the agreed basic principles


of Islamic jurisprudence, and there has never been any
significant difference of opinion about them.

Pakistan ― A Modern Islamic State


In considering Pakistan’s place in the modern
world, one thing is clear: the country was created to be a
homeland for the Muslims of the subcontinent. From the
very beginning of the Pakistan Movement, i.e. March 23,
1940, when the Resolution for the division of India was
adopted by the All India Muslim League in Lahore,
Pakistan was considered a place where Muslim culture and
Muslim identity would be protected.61 Quaid-i-Azam
Muhammad Ali Jinnah is on record to have said,
repeatedly, right from 1940 to 1948, the year of his death,
that the system of government in Pakistan would be based
on the principles laid down in the Qur’an and the Sunnah.62
The correspondence between him and the intellectual
founder of this country, Allama Muhammad Iqbal, also
include references to enforcement of the Shari‘ah.63
According to Allama Iqbal, Shari‘ah was to be the ultimate
destiny of the Muslims of the subcontinent.64 In his famous

60
Hamidullah, 2000, pp. 159-161 and pp. 37-38.
61
This commitment was reiterated by the leaders of the Pakistan
Movement too frequently to be quoted. See, for example, the
statement of Quaid-i-Azam, in Ahmad (ed.), 1960, p. 363.
62
See for reference to such statements: Mujahid, 2000.
63
See, for example, letter dated 28 May 1937 in: Allana, 1988, p. 142.
64
Ibid.

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Allahabad Address in 1930, he had clearly and


unequivocally declared that Islam was itself a destiny.65

There are some features that distinguish


Pakistan’s model of an Islamic State from the models
conceived in other Muslim countries. However, comment
on the models in other countries is beyond the scope of this
discussion.

There has been a general consensus in


Pakistan on some of the fundamental issues related to the
nature and character of the Islamic state in the
contemporary world. This consensus has emerged through
decades of national debate. The debate had begun in the
mid-1940s when the Pakistan Movement was in full swing.
On some issues, the debate still continues. The consensus is
reflected in the “Islamic provisions” incorporated in the six
different constitutions and constitutional drafts prepared in
Pakistan since its inception. From 1952 to 1973 and
onwards, very similar Islamic provisions were included in
all the constitutions, which indicates that a consensus based
on a set of agreed principles has been at work.

The people of Pakistan, by and large, do not


have any ‘radical’ views about the Islamic state and Islamic
Shari‘ah. Some Western writers quote different Muslim
scholars whose views they consider radical, but no such
radical view has been endorsed by popular support in
Pakistan.

One of the most prominent exponents of the


concept of the Islamic state was the late Sayyid Mawdudi.

65
Mujahid, op. cit.

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Records show that he consistently advocated constitutional


and peaceful means for the realization of the objective of
establishing an Islamic state. Indeed, the adoption of the
constitutional and judicial method for the establishment of
a model Islamic state has been unanimously suggested by
almost all the political elements in Pakistan. Even the
traditional ulema, who may be considered by some quarters
as hardliners, have been operating in mainstream politics;
many of them had already joined mainstream political work
well before the creation of Pakistan. In fact, there is a
greater number of traditional ulema working in mainstream
politics than Islamic scholars who are considered moderate.

Thus, there has been unanimity on the


principle that a peaceful, constitutional evolutionary
process should be adopted to graduate Pakistan into the
cherished model Islamic state. Pakistan has been moving in
this direction despite the difference of opinion about the
pace of the process. Some people feel that the process
should be accelerated, while others feel it should slow
down. A segment of the civil society thinks it is already too
fast. But there has been no major disagreement about the
essential evolutionary nature of the process.

Another aspect of the conceptual framework


of the Islamic state needs some elaboration. The late Sayyid
Mawdudi had termed the Islamic state as far back as in
1939 as a ‘theo-democratic’ state. ‘Theo’ in the sense that
the state must include some competent Islamic scholars in
the decision-making and legislative process because their
role would be indispensable in the implementation and
interpretation of the Shari‘ah. At the same time, the state
should be democratic: it should be realized by popular
representatives chosen through democratic means. The
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process of Islamization in Pakistan has taken place along


theo-democratic lines insofar as it has been steered by a
combination of coordinating scholars and intellectuals
representing the modern educational tradition as well as the
traditional ulema through peaceful constitutional means.

Indeed, these peaceful constitutional means


are being guided and steered by representatives of the
highest intellectual traditions of the modern world. The
ulema in Pakistan have never insisted that only they should
lead and man the process of Islamization. It was the ulema
who demanded that the task be assigned to the judiciary so
that the process should be led by the superior judiciary. The
Council of Islamic Ideology, the important constitutional
vehicle of Islamization, mostly consists of members with
modern education rather than the ulema. Right from 1956,
when such a body was formally created under the
Constitution for the first time, until now, most, if not all, of
the people associated with and given the responsibility of
membership of the Council have been ‘non-ulema.’ They
have mostly been people with modern education. The
Chairmanship of the Council of Islamic Ideology has been
in the hands of PhD-holders from Oxford, Harvard and
McGill, or graduates of Lincoln’s Inn, etc. Never has any
traditional ālim headed the Council. This shows that the
process is being steered and monitored not by traditional
Islamic ulema and the theologians or the upholders of
theocracy, but by the most modern educated elite in the
country. It is significant to note that despite this, the
recommendations of the Council of Islamic Ideology have
always met with consensus and popular acceptance both at
the level of the ulema as well as the non-ulema.

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The concept of the Islamic state as


contemplated, conceived and gradually put to practice in
Pakistan has to be properly and adequately understood by
the Western world and seriously considered by
contemporary Muslim societies. There may be some
misgivings, which may have been created and there is
always room for improvement, yet this model is not only
practical but also modern. There is also a need for
comprehending the injunctions of Islam in public sphere of
life and to properly explain the concept in its true
prospective. More important for Muslims around the world
and more particularly for Muslims in Pakistan is the
implementation and practice of principles of Islam for
clearing misunderstandings and misconceptions about
Islam.

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Comments and Discussion

Janis Bjorn Kanavin:66 When it comes to political


interpretation of a whole scripture, you may have a very
straightforward teaching, a very straightforward rule, but you
have to interpret it differently according to where you are. I
believe it is in the nature of man, that’s why we were created,
that we do interpret. And I believe we will be judged for the
way we carry out that interpretation. But then, we will be
judged by those in a democracy, for instance, who vote for
us. Individually, we are accountable to our Lord whichever
we have; but here we are accountable to the people. The will
of the people has to be expressed by the people themselves. I
don’t know any other good ways of doing that except
democracy. By democracy, I do not necessarily mean multi-
party systems or special creations. I mean an adequate
opportunity for people to voice their opinion.

Every state will be judged by its


performance. To me, that performance is about providing,
protecting and promoting human rights. By human rights, I
mean the human rights commitment undertaken by each
and every country. There is no country on this earth which
has no human rights commitments. And I will refer to also
the Last Sermon of the Holy Prophet (peace be upon him),
as exemplifying what I mean. So, this is where the
governments will be judged.

66
H. E. Janis Bjorn Kanavin served as Ambassador of Norway to
Pakistan (2004-2007).

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The religion must be a nation-builder; not


the rift-maker; it must be the value provider and not the
excuse for condemnation; it must generate love in the
nation, not hate; it must be a force for peace, not an excuse
for war; it must be the great equalizer, not the divider; and
lastly, it must seek justice, not prejudice.

Q: In Islam the court decides the issues only where


the decisions are enforceable. Doesn’t it mean that
judiciary may sometimes become a tool in the hands of
executive?
Dr. Ghazi: In every society, there are principles
that govern the lives of the people and are reflected in
private and public domains of life. Judiciary is supposed to
ensure that these principles are upheld and taken care of. It
is true that the judiciary has to rely upon administrative
power of executive but what ensures implementation of the
verdicts of courts is not authority of the judges but it is the
confidence that judiciary enjoys within masses. Judiciary
can therefore not be held exclusively responsible for
upholding rights and for defending the common principles
that bind together the free human beings into a system. If
people are not concerned with their rights and norms of
society then one should not expect anything bigger or more
from the judiciary.

Q: What do you mean when you say that the


process of Islamization in Pakistan is being guided or
monitored?
Dr. Ghazi: When I say that the process of
Islamization is being guided or monitored, I mean that the
process of Islamization or the enforcement of the Islamic
laws in Pakistan is not something exclusively decided by
the traditional Islamic ulema. Rather, it is a process which
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is being steered, manned and guided by the judges of the


Superior Courts trained in the tradition of Anglo-Saxon
law. The process has been in the hands of the graduates of
the leading Western universities like Oxford, Harvard and
Cambridge. This should reassure the Western world that
those who are steering the process are not going to do
something which is “uncivilized”, or which may affect the
progress of modern society or the fundamental rights of any
citizen of this country. They are fully aware of the
requirements of the modern times and modern society.
They are much more aware of the requirement of the
modern society than perhaps they are aware of Islam. But
even then they are the people who are running the show.

Take example of Federal Shariat Court


which has the authority to strike down any provision of law
within its jurisdiction which is in conflict with the dictates
of the Shari‘ah. The body which exercises this power does
not consist of the traditional ulema or the theologians.
Rather, it consists of five senior judges who are trained in
Anglo-Saxon legal tradition. They are assisted by three
colleagues who in the opinion of the President are well
versed in Islamic Law. These three judges obviously make
a minority but what seems more pertinent in the context of
this discussion is the fact that historically, the selection so
far made by successive Presidents has not been confined to
traditional ulema. The so-called ulema-judges have been
men with degrees of higher education from modern
universities. The decisions of the Court have always been
made with unanimity and consensus. Appeals against
decisions of Federal Shariat Court may be made in the
Supreme Court where a Shariat Appellate Bench has been
set up. This Bench consists of five judges; three of them are
the regular judges of the Supreme Court who have

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experience of decades of legal work to their credit in


Anglo-Saxon legal tradition and constitute the majority in
the Shariat Appellate Bench. They are assisted by two
ulema who are appointed by the President as ad hoc
members of the Bench from amongst such ulema who, in
the opinion of the President, are well versed in Islamic
Law.

What I want to bring home is that the


decisions to enforce Shari‘ah are not exclusively in the
hands of ulema as a class or in the hands of any theologian,
merely because he is a theologian. As such, there is no
element of any kind of theocratic tendency in this
arrangement. The arrangement has ensured that no
theocracy comes in the legislative exercise.

Q: Do you think that the international environment


as well as domestic environment is conducive to
establishment of a moderate Islamic state?
Dr. Ghazi: Frankly speaking I consider that the
model being developed in Pakistan is a moderate and a
viable model of an Islamic state in the context of the
modern world. This model has been conceived and
developed by the highest representatives of Muslim
intellectual tradition in twentieth century. It emanates from
the exposition of Islamic teachings by men like Allama
Iqbal (1877-1938), Sayyid Mawdudi, Muhammad Asad
(1900-1992), A.K. Brohi (1915-1987) and other scholars
who have contributed to the emergence of a concept which
is being followed and pursued in Pakistan. I feel that
several models of an Islamic state have emerged in the
modern world of Islam and one may mention Iranian,
Taliban, Saudi and Sudanese models. Of course, there are
many common features in all these models, but as a student
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of Islamic law, I feel that the model conceived and


developed in Pakistan is the most viable model for the
modern world. It meets the requirements of a modern
representative democratic tradition. At the same time, it
responds to the needs of an Islamic polity as it emerges
from the Qur’an and the Sunnah. This model is based on a
written codified constitution where everybody’s rights and
privileges have been laid down. It draws legitimacy from
the interpretation of the basic law by superior judiciary
established on the American pattern. It strives for the
gradual enforcement of Shari‘ah under a codified law
enacted mostly through a legislative process undertaken by
Parliament elected through democratic means.

Q: Talking of gender plurality in Muslim societies,


can you confirm that if there was any female jurist during
the early centuries of Islam or even after that? And
secondly, do people in an Islamic society enjoy the
authority to elect their representatives or they have to
observe divine criteria for choosing their representatives
like the criteria setting out qualification and disqualification
of a Member of Parliament in articles 62 and 63 of
Pakistan’s Constitution?
Dr. Ghazi: In Islamic history, there have been
many female jurists; their views are still available and
recorded in major Fiqh collections. The first of them was
Ayesha, the Mother of the Believers, the wife of the
Prophet (peace be upon him) to whom goes the credit of
transmitting a substantial part of the teachings of the
Prophet (peace be upon him) to the posterity. She became a
source of knowledge not merely for the ladies but for the
men also. Her students and disciples included thousands of
people who carried that knowledge to the four corners of
the world.

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Number of women jurists followed her and


if I name them, it will require a long time. Among the
compiler of the Hadith, the commentators of the Sunnah,
the commentators of the Qur’an and the jurists, women
scholars occupy a respectable position. One thing is,
however, very significant: Muslim society was never
divided on the gender issue in the past. The gender issue is
a recent phenomenon. Before this debate started, there was
no question of any fragmentation of society on the basis of
gender. Muslim society was a unified society and the
relationship between the two sexes was not that of two
warring camps or of two contending groups. It was, rather
of well-knit unit in the family which was based on mutual
love and respect. Love, respect and cohesion were the
hallmark of relationship between the sexes rather than
hatred and a struggle of ‘push and pull’. Therefore, the
Muslim historians did not feel any need of compiling the
views of female scholars separately in contradistinction to
the views of male scholars. Both male and female scholars
came out with the same conclusions, with the same
commentaries, with the same opinion. The interpretations
given by female scholars were not motivated by the fact
that they were females and vice versa. That is why, I do not
think, it was a question to be reckoned with by Muslim
scholars.

As to the question as to how men-in-


authority are to be identified, it is obvious that these are to
be identified by the public. The general principle is that
they should enjoy the confidence of the people. Now, in
order to verify and ascertain whether a person enjoys the
confidence of the people or not, there could be one hundred
and one ways. There may be people, and there have been
people in human history, who would enjoy this much
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confidence of the people that even dozens and dozens of


elections would not be able to gauge their popularity.
Ayatullah Khomeini (1900-1989) was never elected
through any franchise but the moment he reached the
Tehran Airport, I do not think there was anybody in Iran
who disputed his leadership. Likewise, when Quaid-i-Azam
Muhammad Ali Jinnah reached Karachi on 7th of August, I
do not think he required any vote of confidence by
anybody. Tens of votes of confidence could not match the
amount of popularity he enjoyed. So, it is not a particular
mechanism or modality of election which must always be
followed. Mechanism and modality may keep on changing
with the passage of time. What is more essential is the fact
whether a person enjoys the confidence and following of
the people or not. If a person enjoys such an amount of
confidence, as may be verified by any means, he would be
Islamically acceptable.

Q: History has ample proof to show that Islam has


remained in practice as state religion for centuries and has
been regulating private and public lives of huge populations
until recently. This is true for Indian Subcontinent as well.
When the question of practicability of Shari‘ah is raised in
contemporary debates, shouldn’t the world be requested to
refer to these historical facts?
Dr. Ghazi: I agree with your observation and wish
to remind that Shari‘ah was enforced by Muslims rulers in
India, as soon as they established Muslim authority in
Sindh towards the close of first century of Hijrah. Muslim
rule was later extended to Delhi and to other parts of the
Sub-continent. Shari‘ah continued to be the law of the land
from the earliest days of Muslim rule up to the downfall of
the Mughal dynasty in 1857. Even when the three major
provinces of the Sub-continent were captured by the East

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India Company and British rule had reached up to


Allahabad, that is half of the Sub-continent, by 1764 and
the Mughal Monarch had to negotiate peace with them and
to concede the civil and the revenue administration to the
British East India Company in respect of the four major
provinces of the Sub-continent, it was agreed between him
and the East India Company that the civil administration in
these three provinces will be run in accordance with the
Shari'ah. The Company’s Government in India during this
period (i.e. from 1764 up to 1857) established Muslim
courts, appointed Muslim Qazis and got many books of
Fiqh translated into English for the benefit of British
lawyers and judges who had to enforce Shari‘ah or to hear
appeals from the judgments given by Muslim Qazis. This
situation continued till 1857 when Muslim courts were
abolished by the British government when a direct British
rule was established in the wake of what they called mutiny
in India.

Q: Consensus of Muslim jurists (ijmā‘) and


Reasoning (ijtihād) are two sources of Islamic Law. Does
this mean that Islamic Law may develop on the basis of
popular opinions?
Dr. Ghazi: I would not like to use the term
‘development of Shari‘ah’; I would rather use the term
development of Islamic law or development of Fiqh on the
basis of ijmā‘ and ijtihād i.e. consensus of Muslim
community and the independent exercise of reasoning by
Muslim Jurists. This is a process which has always
remained in progress and has not halted even now. The
only condition is that it should be within the parameters of
the Shari‘ah i.e. the Qur’an and the Sunnah. The Qur’an
and the Sunnah deal with general principles. Those general
principles are such which can be interpreted without
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difficulty in different contexts and situations. I give one


example only:

The Qur’an requires the husband to provide


maintenance to the wife. This is a general and universal
principle. But the words used by Qur’an are
comprehensive, definite, precise and clear; yet, at the same
time these words can accommodate new interpretations in
new situations anywhere in the world. It says: the husband
should provide maintenance (to the wife): wealthy
according to his capacity, poor according to his capacity,
maintenance to be provided according to the approved
prevalent standard. This is the Qur’anic requirement. This
injunction has to be interpreted with reference to the time
and space of the situation in which it has to be applied in,
without a compromise on the generality of the words and
phrases or on the accuracy or precision of the words. But
such interpretations will remain valid as long as these are
relevant and are within the logical confines of this wording.
Any new interpretation will be acceptable and it will go on
and on being interpreted differently in different contexts as
long as it is within the limits of its meanings. That is how
the Qur’an and the Shari‘ah are to be interpreted and that is
how they have been interpreted in the past. Same principle
shall remain valid in future as well.

Q: If an undemocratically elected government


brings about changes in national administrative and legal
framework that are regarded to conform with injunctions of
Islam, should such acts be deemed justified?
Dr. Ghazi: I personally do not mind if some person
comes to power through means which may be considered
undemocratic by western standards, as long as he sincerely
enforces Islam and abides by the principle of shūra in his

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conduct. To me, the enforcement of Shari‘ah is the primary


and the supreme objective of an Islamic state.

Q: In recent national elections, it was observed that


women had been denied right to vote in some areas of the
country and it is generally believed that it was done in the
name of Islam. Does Islam prevent women from playing
their political role in a Muslim society?
Dr. Ghazi: It is really sad rather tragic that women
are not allowed to vote in some parts of the country. Islam
should not be taken to be responsible for this situation. It is
because either of the local prejudices, cultural traits,
ignorance or some other reasons. The people of those areas
are to be educated. The results and implications of
centuries’ ignorance and inaction cannot be eliminated in
one or two decades. It would require time. As long as the
people are uneducated, they will keep on continuing things
which have nothing to do with Islam.

Q: In the debate to revive ijtihād, it is often heard


that Muslims need to do some comprehensive thinking for
modernizing the interpretation of the Qur’an. Do you
subscribe to the idea?
Dr. Ghazi: I do not comprehend what the
proponents of ‘modern’ interpretation of Islam mean by
this expression. The commentaries of the Qur’an attempted
by contemporary scholars are definitely written in the
context of modern times and seek to cater with the needs of
Muslims living in modern world. In a sense all
interpretations or commentaries of the divine texts were
modern in their respective times. The fact that in every
century scholars felt the need to undertake a new
commentary of the Qur’an supports this contention. It is a
fact that earlier commentaries were found to be inadequate
46
Is l a m i c S ta te i n th e Co nte m po r a r y I nte r na ti o na l S ce n a r i o

in some respects by the scholars who wrote new


commentaries. At least some aspects were noticed where
the guidance of the Qur’an was required to be formulated
and explained afresh. All subsequent interpretations were
made in order to fill a real gap which was noticed by the
respective authors of different juristic writings.

Q: Islam is a system of life and not merely set of


rituals. If this system is operative in any part of the world
that part of the world is an Islamic State. Thus the primary
commitment of a Muslim has to be with Islam and not with
a particular piece of land on earth. An Islamic State is, in
this sense, very different from a nation-state. And perhaps
this was the reason that religious class did not generally
support the idea of partition of Indian subcontinent on the
basis of national ideologies.

I feel that one of the very important reasons


for failure of some models of Islamic state has been the
failure of respective States to take care of the functions they
were supposed to perform. Misunderstandings have been
created and have been allowed to prevail and Islamic State
has become a nightmare not only for the West but also for
certain segments within Muslim societies.
Dr. Ghazi: I agree that the Islamic system and the
Islamic religion should be distinguished to some extent.
Yes, you are right. But there are areas where it is difficult
to distinguish the religion of Islam from the system of
Islam because whatever the definition of Islamic state or
Islamic system or Islamic law might be, it is based and
anchored on a set of values and fundamental principles
which are embodied in a religious book, a religious
scripture. So, reference to religion is necessary and central
to the very concept of Islam. So, in some areas the

47
Is l a m , I n te r na ti o na l L a w a n d th e W o r l d T o d a y

distinction is possible and it is already done. There are laws


and teachings of Islam which are taken care of by the state.
At the same time, there are teachings of Islam which are
taken care of by the individuals purely in their personal
capacity. There are areas which are taken care of by the
society. Yet, there are areas where a sharp demarcation is
not possible: issues which involve both religious aspect of
the matter and the legal or systemic aspect of the matter.

I do not see any logic in saying that ulema as


a whole opposed the creation of Pakistan as a class. I have
been a student of the history of the Muslim Sub-continent. I
have personally known some of the leading ulema who had
participated in the Pakistan Movement. The majority of
ulema supported Pakistan. There was a minority, who
opposed Pakistan. They did not oppose Pakistan because
they did not want an Islamic state. This was only a question
of strategy. Those who opposed Pakistan, they, in their
wisdom, thought that the entire India should again be under
the rule of Islam as it used to be during the Mughal or the
earlier periods. But it was, I think, a mistaken notion on
their part. They were expecting something which the
situation did not allow and which the modern realities did
not permit. It was the dawn of an era of modern democratic
system and the majority rule. Now, the game of number
was supreme. Therefore, the leadership of All India Muslim
League very rightly thought and decided that the rule of
Islam should initially be confined to those areas where
Muslims were in a majority. Even then the field is open.
The ulema opposing Pakistan should have undertaken
missionary activities and should have persuaded the people
living on the other side of the border to accept the message
of Islam through peaceful means.

48
Is l a m i c S ta te i n th e Co nte m po r a r y I nte r na ti o na l S ce n a r i o

The state in general has undoubtedly not


attended to its functions. I fully agree with you. I cannot
say about other countries or about other states, but I can say
about Pakistan that the performance of state and the people
has not been commensurate with the ambitions and
objectives of those who had shed their precious blood for
establishment of Pakistan. Everybody is to be reared and
galvanized to take up the task which was expected of him.

Q: What role ministries of religious affairs of


Muslim governments may play to clear misconceptions
about Islam in Western world?
Dr. Ghazi: There are of course, religious
departments in many Muslim countries, at least in most of
the leading Muslim countries. But, these departments and
ministries have different specific roles to play in different
countries. I do not want to speak about other countries. In
Pakistan, however, the role of the Ministry is defined in
terms of the rules of business of the Government of
Pakistan. Every Ministry or Division, as we term it, has to
remain within the confines of the task given to it. The task
given to the Ministry of Religious Affairs here in Pakistan
is to organize the performance of Hajj, to coordinate
general Islamic education in the country by providing
guidance and policy, to oversee the collection and
disbursement of zakat, and to organize other activities
which have been placed under the purview of the Ministry.
Beyond this role it is the responsibility of every citizen, the
individual, the civil society, the ulema, the educationists
and the elite to come up to the task and undertake their
respective responsibilities, which we, as a nation have to
undertake.

49
Is l a m , I n te r na ti o na l L a w a n d th e W o r l d T o d a y

References

Abu Faris, Muhammad. 1989. Irtibat al-Shur bi’l-


Fatwa wa Qadaya’l-Ijtihad al-Jama‘i. In Al-Shura Fi’l-
Islam. Vol. III. Amman: Ahl Bait Foundation.

Afzal, M. Rafique (ed). 1980. Quaid-i-Azam


Muhammad Ali Jinnah Speeches and Statements as
Governor General of Pakistan. Lahore: Research Society
of Pakistan.

Ahmad, Chaudhari Habib. 1966. Tahrik-i-Pakistan


Awr Nationalist Ulema. Lahore: Muhammad Hanif Rame,
Al-Bayan.

Ahmad, Jamiluddin (ed.). 1960. Speeches and


Statements of Mr. Jinnah, Vol. I, Lahor.

Al-Muttaqi, Ali. 1364 AH. Kanz al-Ummal. Vol.


III. Hyderabad.

Al-Zarqa’, Mustafa Ahmad. 1968. Al-Madkhal al-


Fiqhi al-‘Amm. Vol. II. Damascus: Dar al-Fikr.

Arnold, T.W. 1979. The Preaching of Islam.


Lahore: Sh. Muhammad Ashraf.

Baghdadi, Abdul Qadir. Usul al-Din. Lahore: Al-


Maktaba al-Uthmaniyyah.

Baqillani, Abu Bakr. 1987. Al-Tamhid Beirut:


Mu’assasa al-kutb al-thaqafiyyah.
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265AH) Al-Jami as-Sahih.

Darimi (Abu Muhammad Abd Allah ad-Darimi; d.


255AH). Kitab-as-Sunan.

G. Allana 1988. Pakistan Movement: Historic


Documents. Lahore: Islamic Book Service.

Ghazi, Mahmood. 1983. Adab al-Qadi. Islamabad:


Islamic Research Institute.

———. 2005. Muhadarat-i-Fiqh. Lahore: Al-Faisal


publishers.

———. 2006. State and Legislation in Islam.


Islamabad: Shariah Academy.

Hamidullah, Muhammad. 2000. Majmu‘at al-


Watha’iq al-Siyasiyyah. Cairo: Maktabah Madbokli.

Harmon, Judd. M. 1990. Political Thought from


Plato to the Present. Lahore: National Book Foundation.

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241AH). Al-Musnad.

Ibn Manzur al-Ifriqi, Lisan al-Arab in loco.

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Naza’ir. Beirut: Dar al-Kutub al-Ilmiyyah.

Ibn Qudamah, Muwaffaq al-Din, Al-Mughani. Vol.


VIII. Cairo: Hajar publications.

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———. 1992. Al-Mughani, Bab Qital ahl Baghye,


Jeeza. Vol. XII. KSA: Hijr press.

Ibn Taymiyyah, (Taqi ad-Din Ahmad ibn


Taymiyyah al-Harrani; d. 728 AH). 1976. Minhaj al-
Sunnah al-Nabawiyyah. Vol. I. Lahore: al-maktaba al-
salafiyyah.
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Mawaqif. Vol. VIII. Tehran: Manshurat al-Sharif al-Radi.

Mahdi, Muslim. 2002. Al-Farabi and the


Foundation of Islamic Political Philosophy. Karachi:
Oxford University Press.

Marghinani, Burhan al-Din. 1995. Hidayah. Beirut:


Dar Ihya al-Turath al-Arabi.

Mawardi, Abu’l-Hasan, ‘Ali ibn Muhammad. 1996.


Al-Ahkam al-Sultaniyyah. Cairo: Mustafa al-Babi al-
Halabi.

Mawdudi, Mawlana Abu’l-A’la. 1982. Islami


Riyasat. Lahore: Islamic Publications (pvt.), Ltd.

———. 1992. Islamic Law and Constitution.


Lahore: Islamic Publications (pvt.), Ltd.

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Pakistan. Islamabad: Shariah Academy, IIUI.

Muslim, al-Sahih, Karachi, 1349, Vol. II.

Muslim (a), (Muslim ibn al-Hajjaj an-Nisaburi; d.


261AH) (ed.). 1998. Al–Sahih, Kitab al-Imarah, Bab
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Khiyar al-A’immah wa shiraruhum, Riyadh: Dar al-


Salam.

Qureshi, I. H. 1974. Ulema in Politics. Karachi:


Ma’aref Ltd.

———. 1977. The Muslim Community of the Indo-


Pakistan Subcontinent. Karachi: Ma’aref Ltd.

Sabine, George. 1961. A History of Political


Theory. New York: Holt, Rinehart and Winston.

Taftazani, Sa‘d al-Din, Sharh al-Maqasid. Qum:


Intisharat Sharif Radi.
———. 1981. Sharh al-Maqasid. Vol II. Lahore:
Dar al-Ma’rif al-Uthmaniyyah.

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Alfaz al-Hadith. Leidon: Brill.

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Statements and Messages of the Quaid-e-Azam. Vol. IV.
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Ahadith al-Hidayah. Vol.IV. Surat, India: Majlis al-Ilmi

53
Islamic Law of International Relations:
Origin and Development

The Origins of International Law


he peaceful regulation of international relations
T between human societies, particularly between kings
and kingdoms, has been a difficult task from the very
beginning. From time immemorial, jurists and philosophers
have been trying to develop legal and/or moral principles
that could be effective in controlling the use of force and in
regulating relations between rulers and states in accordance
with principles of justice and fair play. A major challenge
to the protagonists of such principles was identifying the
rational basis on which such laws could be founded. In the
earlier efforts recorded by historians, this basis for
international law was drawn from the scriptures of ancient
religions, which contained frequent admonitions against
misuse of force. However, these moral exhortations could
not become the basis of any legal discipline or international
jurisprudence.

The oldest foundation discussed by the


Western jurists in their effort to develop viable and logical
international jurisprudence was the natural law theory. This
theory, which was based on God, nature, universal reason

[55]
Is l a m , I n te r na ti o na l L a w a n d th e W o r l d T o d a y

and pure reason as the possible bases and sources of


international law, engaged the Western jurists for several
centuries. These “sources” were regarded as the producers
of law, or the fundamental sources from which all laws
should proceed. This law could be determined on the basis
of what was considered to be the right reason. Thus, the
natural law theory presumed that the ultimate source and
final basis of international law was metaphysical.

However, notwithstanding the philosophical


worth and academic value of the natural law theory, it
failed to give rise to an agreed universal law of
international discourse. Its failure led to the positive law
theory, which was based on the actual practices of states
and rulers. This approach was more in keeping with the
rising trend of secularism in the West, with its indefatigable
efforts to divest not only law but all public life from
religious or spiritual attire. The positive law theory was
value-neutral and rejected normative overtones of law and
other social disciplines. It also refused to accept any non-
state basis of the law, such as God, morality or reason.1

Despite such academic efforts, most of the


protagonists of the positive law theory appeared to be
pessimistic or disappointed about human capability to
develop such a law. It is therefore a common understanding
that laws fail, or at least become silent, in the company of
weapons. History too has shown that, during the interplay
of weapons, laws either fail or choose to exit from the
scene. The statement of the Roman ruler had indicated long

1
Various scholars have expatiated upon the pros and cons of the
positivist theory of the law. For its relevance to international law, see
Starke, 1992, pp. 20-24.

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before the fact that the experiments made by different


societies and civilizations in the past to regulate inter-state
relationships and avoid use of force have failed miserably.
Despite these failures and attendant difficulties, the efforts
to regulate human relationship, particularly in warlike
situations, are perhaps as old as human society itself.

The first such effort recorded by history


took place in Mesopotamia2 around 2000BC. Some of its
details have come down to us. It was an agreement between
two principalities of the region that had mutually decided
not to resort to war and to resolve their border difficulties
and other mutual and bilateral problems with negotiations
and peaceful means. This document can rightly be
considered the oldest agreement or treaty made with a view
to resolving international disputes.

In this regard, efforts of the Indian and


Chinese philosophers and thinkers are also important. They
tried to develop such rules and principles as may be relied
upon to regulate international relations.3

In addition to these comparatively advanced


communities, there were, in antiquity, rules of conduct to
regulate relations between independent kings and
communities, which had emerged out of their own usages
and practices. The Egyptians were aware of such set rules
and usages several centuries before the rise of Christianity.4

2
Modern-day Iraq, some parts of northeastern Syria, southeastern
Turkey and Southwestern Iran.
3
For some details about the views of ancient Indian philosophers, see
Kapoor and Tandan, 1980.
4
See, inter alia, Nussbaun, 1954.

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Apart from these scattered examples, both in


the East as well as in the West, attempts were made by the
Greeks and the Romans to develop a law to regulate the use
of force during an armed conflict. For instance the law of
the Romans in this regard was known as jus gentium or the
law of the people.5 Other societies had similar laws to
provide a peaceful basis for solving mutual disputes and
differences.

Development of Modern International Law in the West


Towards the close of seventeenth century, the
Western civilization was finally able to lay the foundations
of a law that eventually came to be known as international
law. The foundations for modern international law have
undergone quick changes from custom, treaties and
eventually to quasi legislative attempts made by
international bodies. A detailed discussion of this
development here will divert our attention from the main
theme. However suffices here to say that the modern
international law was primarily intended to regulate
relations among the Christian states of Europe, and these
nations considered it obligatory only in their mutual
relations. Non-Christians were not considered to be entitled
to any benefit or privilege under this law for quite some
time. Thus, international law as developed in the West is,
by definition, a Christian law. Indeed, this definition is
given in several standard textbooks of international law,

5
Jus Gentium, literally law of nations, was a term of Roman law. It
was not equivalent to international law in its modern sense. It was,
rather, opposed to civil law and meant the laws recognized as such by
the civilized nations of the ancient times. In the absence of any
international law proper, Jus Gentium was relied upon to regulate
international dealings.

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including the masterpiece of Oppenheim,6 which is taught


almost universally in all leading universities and law
schools that teach the Anglo-Saxon legal tradition,
including those in Pakistan, India and Bangladesh.

Different people have interpreted this aspect


of the law differently. Among the more extreme views,
there are at least two papal decrees that were issued at
different times to the effect that the Christian world is not
religiously allowed to enter into any peaceful agreement
with any Muslim country:7 Pope Nicholas IV and Pope
Urban VI declared that any pact with non-Christians was
null and void and that the Christians were not bound by
their pacts with Muslims.8 When they ruled this, the Popes
probably had in mind the Ottoman Empire. It was Turkey
of 1856 which was admitted to be a member of
international community having privileges and entitlement
to receive its benefits for the first time in the history of
international law in Europe. Turkey was followed by Japan,
which was accorded this status in 1905.

These were transitional phases of the


development of Western international law; European
nations and countries were primarily concerned with
regulating relations within their own continent and within
one religious tradition. The time had not yet come in the
West to expand the application of that law to other
civilizations and countries. As application of the law has
expanded, the West’s previous attitude has undoubtedly

6
Oppenheim, 2003, p. 87: “…The predominant strain of modern
international law was in its origins largely a product of western
European Christian civilization…”
7
Hamidullah, 1364 AH, p. 30.
8
Ibid.

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acquired more objectivity and balance. It has to be


acknowledged, however, that remnants of the old attitude
remain embedded in the thinking of some of those who deal
with international law and international matters today. This
pains Muslims, who often bear its brunt, who are thus
denied the full rights and privileges guaranteed to them
under various instruments of international law, and who are
therefore forced to acknowledge that they are not even yet
treated as equal members of the international community.
This perception is the natural corollary of the initial
character of international law as developed in the West.

Western international law was conceived as


something distinct from the municipal law of different
countries. As such, for a long time, it dealt only with the
states. The admittance of international organizations and
international bodies as subjects of international law took
place much later, i.e. by the middle of the twentieth
century.

It took even longer for international law to


take notice of groups of individuals and communities who
did not represent a state or who were not represented by
any state were taken notice of under international law.9
Indeed, the phenomenon of individuals and communities
being recognized as subjects of international law is very
recent. Insurgents, belligerents and such other
communities, who may appear to be distinct and separate
from the main community of a country, were not initially
considered subjects of international law.10 Now, they

9
For a short discussion on the recognition of individuals as subjects of
international law, see Levy, 1991, pp. 72-74.
10
Ibid., pp. 69-70.

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constitute an important subject. Likewise, it took a long


while for national liberation movements to be considered a
subject of interest for international law. The liberation
movements were not represented by any member state of
the United Nations (UN). Therefore, neither the need was
felt to take them into consideration, nor was the fabric of
international law itself fit to extend any benefit and
privilege to them as subjects.11

The second half of the twentieth century


witnessed a major change in international law and legal
thinking in the Western world. The horrific experience of
the Second World War led the world community to explore
new dimensions of international law to protect and
safeguard the interests of innocent civilians affected by
armed conflicts. This period saw unparalleled expansion
and deepening of the science of international law, which
have admitted new areas and raised new issues in its realm
over the past few decades. Most of these new developments
do not find mention in the classical works on this subject.

Some of the new areas of international law


include regulation of space enterprises, use and division of
beds of the high seas, management of the international
financial system, and international communications. But
the most important area that has found its way into
international jurisprudence, and which has already
extended its benefit to a large number of people, is the law
of international human rights.

‘Human rights’ is an issue that was not


included in many constitutions of the world at the

11
Ibid.

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beginning of the twentieth century. Before too long,


however, a time came when the question of human rights
acquired a position of prime importance in the context of
legal thought, particularly in the field of constitutional law.
This was soon followed by similar developments in
international law.

It must be acknowledged that the credit for


this innovative and positive change goes, to a large extent,
to the Western tradition, which took the lead in providing
constitutional guarantees to its citizens. One must also
admit that the question of fundamental rights, the concept
of rule of law, the mechanism of defending fundamental
rights through constitutional means, and the idea of having
a superior court to defend and protect the fundamental
rights of the citizens as practiced in some modern Muslim
countries are the results of the Western, and particularly the
American, experience. This is why many American authors
have boastfully — and rightly — claimed that the
American constitutional tradition and principles were the
most valuable and significant export of the United States.
The Americans were justified in making this claim until
about 25 years ago; unfortunately, their policies towards
particularly the Muslim World during the past quarter a
century have been such that the Americans are no more in a
position to lay unqualified claim to such principles.

Some Western scholars of international law


regard the incorporation of human rights in the ambit of
international law as a major feat. Martin Dixon considers it
an achievement of considerable significance that, now, the

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individual is also counted in the jurisdiction of international


law, even if there is no practical effect of this recognition.12

It is a new trend for human rights have


become a major, if not the most important, component of
international law.13 Works written before the Second World
War hardly made any mention of this issue. Not only did
the books not mention this aspect, but institutions dealing
with international law also refused to take any notice of the
human rights of the individual before the middle of the
twentieth century. For example, in 1927, in the well-known
Lotus case, the Permanent Court of International Justice
had ruled that “international law governs relations between
independent states.”14

This seems to have changed in the aftermath


of the horrifying experiences of the Second World War,
which led people to develop this subject as an important
branch of international law. The UN and its subsidiary
bodies have played a tremendous role in giving this new
dimension to international jurisprudence. Today, the
question of human rights is considered an important factor
in international relations. Several Western countries have
adopted the objective of protection, preservation and
defense of human rights as a cornerstone of their foreign
policy and international relations.

Here, it may be pointed out that what has


been achieved in the Western world after the terrible
experiences of the two world wars, i.e. recognition of

12
Dixon, 2000, p. 325.
13
See, for example, Joshi, 2006, pp. 304-372.
14
See PCIJ Sev. A 9(1927): 4-33

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individuals and non-state entities as subjects of


international law, and regard for the fundamental human
rights of those who are affected by wars, had been an
important subject of Muslim international law from the
very beginning. This is explained in the next chapter of this
book.

A key source of the law on human rights are


international agreements. However, it is now generally
acknowledged that the law of international relations,
particularly insofar as it relates to human rights, has its
primary basis on contractual obligations of the states.
International agreements and contractual obligations of
states are, however, formal sources only, and by no means
the only reasons for the sanctity and importance of this
branch of international law. Indeed, it is primarily the
concern for justice in the hearts and minds of people, and
their belief in the dignity of man, that guarantees the
protection of these rights. If the concern for the dignity of
human beings is not deep-rooted in the hearts and minds of
a people, mere contractual obligations cannot deliver. This
has been made amply evident by experiences of the last two
decades. The examples of human rights violations in
regions like Palestine, Bosnia and Kashmir and more
recently in Guantanamo Bay, Iraq and Afghanistan are too
well known to need any citation.

The concern of Western international law


and jurisprudence for the rights and privileges of
individuals has led to the emergence of a new branch of
international law known as international humanitarian law.
This special branch of international law seeks to protect the
individual and collective rights of non-combatant civilian
groups during war. For example, it tries to prevent
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genocide and discrimination on any ground, and provides


special protection to minorities. “The law of human rights,”
according to a writer on international law, “cannot be
explained solely by reference to the traditional positivist
approach to international law.”15 This statement simply
means that the traditional Western international law has
been ineffective in dealing with these important issues and
that it should now be the primary concern of international
law and international institutions to ensure the protection of
the rights and privileges of human beings. Now, the
international law should transcend the traditional positivist
approach and its limited, narrow perspective.

The international humanitarian law is a new


branch of international law that seeks to limit the use of
violence in international conflicts, firstly, by sparing those
who do not or no longer directly participate in the
hostilities, and secondly, by limiting the violence to the
bare minimum needed to achieve the aims of the conflict.
The law requires that the aims of any conflict should only
be to weaken the military potential of the enemy rather than
totally and physically eliminating him.

The basic principles of humanitarian law


are:
• Distinction between civilians and
combatants;
• Prohibition of attack on those of the combatants
who are no more engaged in the war;
• Prohibition of infliction of unnecessary
suffering on the people;

15
Dixon, op. cit., p. 325.

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• Principle of necessity; and


• Principle of proportionality.16
These are considered to be the five basic
principles of international humanitarian law as it is being
developed in the Western world. This law assumes that a
conflict-free world does not exist and, therefore, does not
aim at total elimination of violence. It does not seek to
provide total protection to those affected by armed conflict
between two countries and nations. It does not differentiate
between combatants on the basis of their respective aims,
objectives or motives in the conflict. Those with legitimate
motives and those with illegitimate motives, those with
moral considerations and those without moral
considerations have been virtually and practically equated.
The law presupposes or presumes that the parties have a
rational basis for the conflict they are entering upon.

This is the intellectual context in which we


will discuss the Muslim contribution to international law.

Muslim International Law


Islam is not only international but universal in its
message and approach, and the Muslim community has
performed its universal role from the very beginning. The
first calls made by the Prophet of Islam (PBUH) were
addressed to humanity rather than to any particular group
of people. We never find that the Qur’an or the Prophet
(PBUH), in his recorded sayings, speak exclusively to the
Arabs, the Iranians, or other ethnic or linguistic entities.
16
International humanitarian law has grown gradually out of a number
of international treaties and conventions, the earliest of which were
the Geneva Conventions and The Hague Conventions signed in the
nineteenth and twentieth centuries. All this law is now found in the
four well-known Geneva Conventions of August 12, 1949.

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People are addressed either as “O mankind”17 or “O


children of Adam.”18 Many verses and important discourses
in the Qur’an open with one of these phrases, particularly
in the Makkan surahs (chapters of Qur’an revealed in
Makkah). This shows that the approach and message of the
Qur’an was universal and pan-human from the beginning of
revelation in Makkah.

There is a misunderstanding about Islam and


Muslims, particularly in some Western minds that Islam
offers a monolithic system; that it does not acknowledge
any right to diversity and does not accept any civilizational
norm or cultural value outside the ambit of Islam. This
perception is not correct. The Qur’an itself draws attention,
at times in very moving terms, to the good qualities of other
nations.19 The practical implications of this appreciation for
others was elaborated by the Prophet (PBUH), when he
declared that wisdom was the common property of human
beings, and, therefore, wherever it was to be found, it
should be acquired and availed.20

This value was reflected in the practices of


the Prophet of Islam (PBUH) as well. As a young boy in his
early twenties, he had participated with the elders of his
family in laying the foundation of an alliance that sought to
protect the poor; provide justice to those who were
wronged; provide shelter to those who did not have it; and
provide succor to the weak. This alliance was not ethnic or

17
See, for example, Al-Qur’an, 2:21; 4:1; 49:13; etc.
18
See, for example, Al-Qur’an, 7: 26, 27, 35; etc.
19
For reference to some good qualities of Christians, see Al-Qur’an, 5:
82-83.
20
Tirmidhi, al-Jami‘, Kitab al-‘Ilm, 19; Ibn Majah, al-Sunan, Kitab al-
Zahd, p. 15.

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parochial in its application; its benefits were available to


all, irrespective of tribal or other differences.21 This alliance
is known in Islamic history as Hilf al-Fudūl. It was
launched more than three decades before the Hijrah
(migration of the Prophet [PBUH] to Madinah). After he
proclaimed his prophethood, people noticed that his
teachings were similar to the principles espoused by the
alliance and asked him about it. He said he still relished the
good memories of that alliance and, if ever he were to be
invited during the days of Islam to join a similar alliance,
he would accept the invitation immediately. He added that
he would consider participating in such an alliance better
than the best of worldly blessings and benefits (or “red
camels”, considered the best worldly gain by the Arab
Bedouins).22 This indicates the readiness of true Muslims to
participate in international efforts to uphold human rights.

If any doubts remain about Islam’s profound


concern for creating a just and tolerant world society and its
respect for diversity, they should be dispelled by the
Qur’an. Among numerous other relevant verses, the Qur’an
addresses the People of the Book with this call:23 O People
of the Book! Come to agree with us on a common
objective: to support and promote the freedom of human
beings and equality of mankind and to promote those moral
and ethical ideals which we jointly and commonly share24.
It may be pointed out that this call was made by the Qur’an,

21
The details of this alliance have been preserved by, among others,
Ibn Hisham in his Sirat an-Nabi.
22
See Suhaili, al-Rawd al-Unuf, in loco.
23
“The People of the Book” is a term frequently used by Al-Qur’an to
denote those who subscribe to a Divine Book or a religion of Divine
Origin. More particularly, it is a reference to the Jews and the
Christians.
24
Al-Qur’an 3:64.

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and by extension the Muslim world, more than 1425 years


ago. And a response to it is still awaited.

It was due to this open encouragement by


the Qur’an and the Prophet Muhammad (PBUH) to work
with all mankind to promote the humanitarian cause that in
the twentieth century, Muslim countries did not have any
hesitation in joining international treaties and
organizations, such as the United Nations, the (earlier)
League of Nations, the Organization of African Unity, and
the Non-Aligned Movement. It is also why one finds
Muslim countries actively participating in several
international fora today. Beyond any doubt, the Muslim
mind has always been ready to cooperate with others for
the advancement of common international objectives and to
serve humanity as a whole.

Not only does Islam respect the diversity of


nations, it also recognizes that other religious beliefs and
ideologies exist side by side with it. Recent Muslim jurists
have placed special focus on this feature.25 The Qur’an is
perhaps the only Divine Book in the history of religions
that has acknowledged the existence of other religions. It
refers to the People of the Book, the Christians, the Jews,
the Sabians, idolators, atheists, etc.26 It guides Muslims in
how they should conduct themselves with those among
these followers of other beliefs who enter into agreements
with them, those who prefer to stay away from any kind of
relationship, those who wish to remain neutral, and those
who wish to enter into a hostile relationship.27 The fact that

25
Hamidullah, 1987, p. 14.
26
See, for example, Al-Qur’an, 2:62, 5:69; 22:17; etc.
27
See, for example, Al-Qur’an, 9: 4-5, 7; 4: 90, 91; etc.

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these various categories have been mentioned in the Qur’an


— and that high moral standards have been declared for
Muslims to deal with each of them — indicates that the
Qur’an not only contemplates a variety of international
relationships but has also taken care of possible avenues of
interaction and intercourse between Muslims and non-
Muslims.

Practical details of this interaction were


demonstrated by the Prophet of Islam (PBUH) through his
normative practice, the Sunnah, or the model example.28
Based on the Qur’an and Sunnah, Muslim scholars and
jurists of the second century (AH) developed an
independent legal-historical discipline known as siyar.
Initially a branch of the biography of the Prophet, with
emphasis on the wars and other missions and expeditions in
which he took part, siyar soon became focused on
delineating a set of rules for regulating international
conduct. This exercise of second century Muslim jurists
yielded many works seeking to codify the part of the
Shari‘ah that sought to regulate the interaction of Muslims
with their non-Muslim contemporaries.29 Out of these
efforts, around a dozen works have come down to us, either
fully or in parts.30 Three of these, which were written by
Imam Muhammad ibn Hasan al-Shaibani (748-804), a
disciple of Imam Abu Hanifah, deserve special mention.
Shaibani first wrote a relatively brief book, which he called
Kitab al-Siyar al-Saghir (i.e. “the Shorter Book on
International Law”). Later on, he wrote a more

28
The science of siyar and maghazi was developed and codified by the
early doctors of Islam for this very purpose, see Hamidullah, op. cit.,
Chapter II.
29
Ghazi, 1998, pp. 7-17.
30
For details, see Ghazi, 2007, pp. 154-163.

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comprehensive book, which he called Kitab al-Siyar al-


kabir (i.e. the Major Book on International Law). Towards
the end of his life, he may have felt that the earlier book
was too compact and the later one too elaborate for the
common student, and undertook the preparation of another
book meant for a general readership. It seems that either he
could not complete this work or it could not come down to
us. An incomplete manuscript is preserved in the
Sulemaniye Library in Turkey.31 We can safely conclude
that Shaibani is the first jurist in the history of mankind
who wrote three extant books on international law as a
distinct and separate subject from other branches of legal
thought and activity.

In the West, the Dutch lawyer Hugo Grotius


(1583-1645) is considered to be the father of international
law. He is the first Western jurist to have left us a
comprehensive book, in Dutch, on the law of war and
peace. However, 866 years before the birth of this great
jurist, Imam Muhammad ibn Hassan al-Shaibani had
already written three books in Arabic on the subject of
siyar, embodying his own findings and rulings as well as
the rulings of his teacher, Abu Hanifah, and other
contemporary jurists regarding how the relations of the
Islamic state were to be regulated with non-Muslim
communities and countries as well as with other non-
Muslim entities.

The science of siyar as developed by


Muslim jurists of the second century addressed not only the
issues related to states and communities, but also the rights

31
Laleli collection, no. 1156 Arabic MSS, now preserved in Sulemaniye,
along with 113 other collections.

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of the individual, for example, the individual Muslim living


in a non-Muslim environment, and the individual non-
Muslim living in a Muslim environment. We may recall
that modern international law has only started taking notice
of individuals and communities in the later half of previous
century. However, in the writings of Shaibani and his
contemporary jurists, we find that they had recognized,
from the earliest times, individuals and communities as
subjects of international law. They dealt with the rights and
privileges not only of individual citizens of the enemy state,
but also of Muslim citizens visiting the enemy territory.

Martin Dixon has enumerated five principles


on the basis of which the success or failure of an
international law can be judged. According to him, the
primary function of international law is to prevent war and
control the use of force. If a law fails to achieve this
objective, it is a failed law. The five principles are:

a) to prevent a war;
b) to resolve the dispute peacefully with
compromise;
c) to contain the war to the minimum;
d) to contain the effects of war; and
e) to protect the affectees of war.32

All of these criteria are found in the Qur’an


and the sayings of the Prophet and have further been
expatiated upon by Muslim jurists.33

32
Modern international humanitarian law is also based on the premise
that its main purpose is to protect the affectees of war.
33
For elaborate details, see Zemmali, 1997.

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It is also noteworthy that the question of the


validity of international law, which remains unsettled in the
West, did not pose any problems in Islamic international
law. From the days of Hugo Grotius up to the middle of the
twentieth century, the West heatedly debated the legal
character of international law. Some scholars and lawyers
have contended that international is not law in the real
sense. Among those who thus deny the ‘legal’ character of
international law are John Austin, Hobbes, Bentham, to
quote only a few.34 Some other scholars say it is a vanishing
point of jurisprudence; in other words, it is withering away
as a legal authority. Others say it is only a positive
international morality. Still others have said that
international law is simply a set of international ethical
values.

These scholars deny the legal character of


international law mostly because:

i) There is no recognized body to make or create


its rules;
ii) There is no hierarchy of courts with
compulsory jurisdiction to settle disputes under
or over these laws; and
iii) There is no accepted system for enforcing these
laws.

Thus, a sizeable community of lawyers and


jurists asks how, in the absence of a legal order, a judiciary
and an executive, these principles or rules can be
considered law. And what is the legality of international

34
Cf. Starke, 1972, pp. 18

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law when it has no sanction and no teeth, and no authority


to enforce or defend it?

However, the other camp of scholars has


always upheld that international law is law in the real
sense.

This question was never raised by Muslim


jurists. To them, Muslim international law had the same
sanction as that enjoyed by the municipal law of Islam.
Indeed, both types of law get their legitimacy from the
Qur’an and draw their authority from the Sunnah of the
Prophet (PBUH), the two perennial sources of Islam, which
are considered authoritative and obligatory in character by
the Muslim rulers and Muslim masses alike. Therefore,
Muslim jurists experienced no problem in deciding whether
the international law of Islam was law, or whether it
required any separate sanction of its own, and we do not
find any controversy regarding this matter in any early
book on Muslim international law.

Muslim international law also dealt long ago


with the type of new developments crystallizing in Western
international law today in the context of the reorganization
of Western communities into bodies like the European
Union (EU). The critical question being raised by lawyers
and jurists in different countries, particularly in Western
Europe, is whether the law regulating the EU and the
authority exercised by the European Parliament has
undermined or is going to deprive the European nation-
states of their claimed sovereignty. One may also ask
whether the new EU is, in a way, a revival of the erstwhile
church state. This question becomes relevant in view of the
striking similarities between the two; such as common
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citizenship, uniform legal system and restriction of the


system practically to Christians as demonstrated by the
reservation of the Union to grant admission to Turkey in
the Union.

The British Parliament is already supposed


to surrender or, at least, share some of its authority and
power with the European Parliament; it has compromised
the absolute and once acclaimed sovereignty of the British
Parliament. This question is being discussed in legal
circles around the globe. Answers have been given by
British lawyers, emphasizing the sovereignty of British
Parliament, despite the fact that they have conceded some
of their authority to the European Parliament.

Such questions were discussed by Muslim


jurists in the second and third centuries of Hijrah, when
two or more administrations had come into existence under
the common law of the Dar al-Islam and within the
frontiers of the single territory of Islam. We can, to some
extent, liken the Dar al-Islam of the third and the fourth
centuries onwards with the present European Union, where
citizenship has been made common to a large extent, and
where many areas once restricted to nationals have been
opened up to citizens of other countries, at the cost of the
countries’ own identity and, to some extent, their
sovereignty. By and large, with some differences, this was
the situation and the nature of the relationship between the
Dar al-Islam and the different Muslim administrations
within it.

The science of siyar developed by the


Muslim jurists in the second century and expanded by
subsequent scholars also raised some issues that may not

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appear to be very pertinent now. However, they were very


much relevant in those days. This happens to every living
and vibrant law. In every legal tradition it is observed that,
with the passage of time, some of its contents have become
either obsolete or irrelevant to changing requirements. As
the needs of the times change, an internal mechanism of the
legal system works to exclude outdated issues from the
law’s mainstream. This happened in respect of some issues
in early Muslim international law. For example, questions
related to the distribution of the spoils of war find a
significant mention in almost all earlier writings of Muslim
scholars, mostly because, in the early centuries, particularly
the first two or three centuries, the Muslims did not have
regular paid armies. Muslim armies consisted mostly of the
volunteers who joined the war either to defend their
country or to participate in a jihad and thereby obtain the
Divine favor promised time and again in the Qur’an. In this
situation, it was very important for Muslim jurists to
consider the question of how the spoils of war were to be
distributed to the warriors and to the participants in the
jihad. However, when the Muslim governments had regular
armies maintained in different regions, the issue lost much
of its significance. Some other issues are also found in
earlier works that do not have relevance today. However, a
time might come when they become relevant again.

Certain features of Muslim international law


distinguish it from the concepts of international laws in
other traditions. First of all, Muslim international law is
part and parcel of a comprehensive jurisprudential system.
It is a comprehensive legal scheme, which is balanced, all-
pervasive, and integrative, and which takes care of all
possible legal situations in the life of the Muslim
community and Muslim individuals. This scheme is
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anchored in human consideration, ethical values and


spiritual foundations. The Islamic law of nations has never
been an amoral legal system. It has always drawn its
legitimacy from moral principles and its validity from
religious foundations embodied in the Qur’an.35

Islamic law has been, from the beginning, a


multi-ethnic, multi-cultural legal system that provides a
practical model and viable paradigm for a pluralistic
society. It sought to create spiritual-moral unity in the
diversity of human races and legal opinions. It also sought,
at the same time, to maintain the diversity and cultural
independence of different peoples and nations within the
general framework of the unity of Islam. Like other parts of
Islamic law, the Muslim international law was based on the
Qur’anic concept of justice, which distinguishes between
real justice and legal justice. The Shari‘ah is perhaps the
first legal system in human history that has created a
distinction between legal justice, to be imparted by the
state, its organs and machinery, and the real justice to be
imparted by individuals.36 At the same time, it
acknowledges the contractual foundation of international
dealings and transactions.37

The Qur’an is full of verses emphasizing the


importance of fulfilling obligations. It requires the believers
to fulfill their commitments and keep their promises.38
These Qur’anic injunctions were phrased by the Holy
Prophet in a legal maxim. Muslims must abide by the terms

35
For a detailed discussion, see Hamidullah, op. cit., 1987, pp. 74-76.
36
Ghazi, 2006, pp. 92-94.
37
One aspect of this is Al-Qur’an’s emphasis on the fulfillment of
obligations and pledges in, for example, 8: 55-56; 9: 4 and 7; etc.
38
Al-Qur’an, 8: 55-56; 9: 4; etc.

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and conditions to which they agree39. In pursuance of this


fundamental legal maxim, Muslim jurists laid down other
principles, which have now been acknowledged by
different legal traditions of the world and have entered the
jurisprudence of all mankind. For example, “The treachery
committed by the ambassador will be taken to be a
treachery committed by the state.”40 The state sending the
ambassador must, therefore, take the responsibility of the
actions of the ambassador as long as he is serving as an
ambassador.

Despite the rich contribution of Muslim


international law to the regulation of international relations
on sound moral foundations and despite the substantial
literature produced by Muslim scholars on this subject from
the second century onwards, it is painful to notice that
many, if not all, leading and renowned Western scholars
absolutely fail to recognize the legacy.

I recall being deeply impressed by


Oppenheim’s seminal work, A Treaties on International
Law, which I used to read in my student days with much
care and respect. The scholarship of the author and the
comprehensive nature of the book were awe-inspiring.
However, it was a source of great dismay and
disappointment to note that even this learned jurist had
chosen to ignore the Muslim contribution to international
law. Discussing the origins of international law,
Oppenheim refers to Greek history, and then talks about the
Romans. Afterwards, he takes a jump of more than one
thousand years to the modern Western world. Not even a

39
Reported by Abu Daud, Tirmidhi, Ahmad and Hakim.
40
Al-Sarakhsi, p. 297.

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single line has been devoted to the contribution of Muslim


scholars, even though their writings were presumably
available to him through translations in German, Roman
and French. Despite this availability of material, he decided
not to make even a passing reference to the Muslim
contribution to international law. Regarding the long period
of one thousand years during which there was, according to
him, no development of international law. He says, “There
was no room and no need for any development”.41 This is
how he justifies, in a sentence, a millennium’s ‘gap’ in
international law-making.

As the foregoing discussion has shown, the


contribution of Muslim jurists to international law was not
only highly developed and sophisticated for its own age, it
remains relevant both as a source and as a base for further
development today. Indeed, in many of its key principles,
the international law developed by Muslims more than a
millennium ago is closer to and more practically geared for
achieving the modern age’s stated ideals of a tolerant and
just international society. Revisiting this rich heritage is,
therefore, a must, not only for Muslims but for scholars of
law in all societies.

Muslims, particularly students of law in the


Muslim world, would like to remind their Western friends
that, in expanding the law of international dealings and
developing new legal thought, regard should be given to the
diversity of cultural backgrounds, social patterns, moral
ideals and religious beliefs and aspirations that characterize
the world community. A law by definition cannot ignore
the aspirations and ideals of the people to whom it is to be

41
Oppenheim, 1958, p. 77.

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applied. A law cannot survive if it does not take into


cognizance or does not respond to the ground realities. The
ground reality is that more than one fourth of the human
population shares a distinct culture and a set of ideals and
aspirations. Any system of law intended to be universal in
its application must take into consideration the ideals and
aspirations of one fourth of humanity. This is why the
Charter of the International Court of Justice requires the
Court to take into consideration the writings of responsible
and important jurists in all legal traditions, not just the
West’s. Whatever has been written on legal subjects in
other leading human traditions and civilizations must be
taken into notice before a question is decided. If nothing
else, this should suffice to justify a new consideration of
Muslim international law.

Islam and the contribution of Muslim jurists


provide that missing link of a thousand years that has been
ignored by Western scholars, either because of
unavailability of material or due to some other
considerations. Now, however, the material has become
available through translations of important works in leading
Western languages. No justification remains for the world’s
scholars to ignore the contribution of hundreds, if not
thousands, of the best legal minds in human history.

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Comments and Discussion

Mark Lyle Grant:42 A huge contribution had been made


over a thousand year period by Muslim scholars in the
Islamic jurisprudence that has perhaps been forgotten. I
studied a lot in Cambridge University. I did a post-graduate
course at Brussels University. I did my bar exams at the
Inns of Court School of Law in London. But, I think, I can
safely say that no one mentioned the word ‘Islamic
jurisprudence’ during that time. I certainly pay tribute to
the wisdom of those Muslim scholars who interpreted it in
the early years of the Hijrah. Because, they were far-
sighted in looking at concepts of non-state bodies of
individuals which is something came rather late into
Western concept of international law.

International law has changed over the years,


culminating in the second half of the 20th century when a
great deal of the modern international legal architecture
was set up and some new concepts such as human rights
and international humanitarian law came into being and
were broadly accepted across the world. It’s true that the
current international law does draw quite heavily on the
contribution of what you might call Judah-Christians
values. But, it does not make any distinction on religious
ground. It is also true that international law, like all rules, is
made by the victors but it does not make a distinction or
discrimination on the basis of religious beliefs.

42
H. E. Mark Lyle Grant served as Ambassador of United Kingdom to
Pakistan (2003-2006).

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It is very important that Muslim scholars and


Muslim international lawyers do play a part in the
development of international law over the next fifty years.
It is more important because they didn’t contribute
significantly to its development over the last fifty years.
There is work to be done in acknowledging the contribution
of Islamic jurisprudence to the modern international law
and in benefitting from the wisdom and experiences of
those thousand years which seem missing in the intellectual
history today.

Q: Could international law ever become a vibrant


and viable legal system that guarantees a respectable future
to the mankind? And do you see the likelihood of
recognition of contribution of Muslims in international
law?
Dr. Ghazi: Frankly speaking, I am not pessimistic
about the role of international law in providing shelter,
support and welfare to mankind. It has provided some
succor to Muslims and other deprived and less-privileged
communities. However, it requires time to expand and
restructure itself so as to accommodate the needs,
aspirations and ideals of different human communities
around the globe. The recent developments whereby the
scope of international law has been extended to cover
individuals and stateless communities and to ensure that the
human rights of persons affected by war are protected, as
well as the fact that there are different international
organizations taking care of the poor and the weak, are
undoubtedly positive signs. These international trends show
that humanity is moving in the positive direction of
creating common international jurisprudence for its future
generations. This new international law will hopefully

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provide support and help to the poor and the weak among
human family.

As to the Muslim’s contribution to the


advancement and expansion of modern contemporary
international law, this has also been taken care of, at least
partially, by some international organizations and bodies.
Apart from the legal requirements on the part of the
International Court of Justice as provided in its Charter,
there has been some acknowledgement by leading lawyers
of international jurisprudence. As far back as in 1950, a
convention was held in The Hague to study and examine
the role and contribution of Muslim jurists in developing
the foundation of international law. In this convention, a
unanimous resolution was passed by the participants,
predominantly non-Muslim lawyers and jurists of repute,
proclaiming that Muslim international law contributes to
the development of principles and concepts of international
justice, and that it constitutes an important source of such
principles and concepts. Later, in 1981 the Organization of
Islamic Conference (OIC) adopted a resolution in the third
Islamic Summit held in Kuwait for establishment of an
Islamic Court of Justice for OIC member countries and that
this International Islamic Court of Justice should decide the
disputes among the Muslim countries in accordance with
the Shari‘ah. The proposal still requires endorsement and
ratification of the required number of Muslim countries.
Once such ratification is made, the court will come into
existence. We can expect that the presence of such a court
will accelerate the process of expanding Muslim
international law and making it more relevant to the current
situation, and will also provide an opportunity to re-
interpret and re-examine the earlier contribution of Muslim
jurists and to relate it to modern times.

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Q: You, sometimes, seem to be bordering on


optimism and a sense of generosity towards the West;
while unfortunately the present conduct of the West leaves
less room for such optimism. It seems that the West uses
concepts like human rights to steer Third World countries
in the direction of its own interests. The new global system
rests on the Group of Eight, the IMF, the World Bank and
the WTO. This is an indirect rule through local managers
who can share the wealth as long as they continue to serve
the ruling West. At the same time, I feel that the West is
Euro-centric and wants to arrogate to itself the role of
shaping present-day civilization, which seems unjust and
autocratic.
Dr. Ghazi: I admit and endorse your impression
that I am still optimistic. I am not aware of my generosity,
but I am aware of my optimism. I am confident that a day
will come — and we are moving in that direction — when
a common human platform will come into existence, which
will be able to deliver and provide justice to the depressed
and wronged humanity.

I am not one of those who make easy and


simplistic generalizations about the relationship between
the Muslim world and the Western world. Undoubtedly,
there are individuals in the Western countries, particularly
in some Western capitals, about whom your comment is
definitely applicable. I do not rule out the great influence
such people exert. But if we adopt generalizations in our
approach then we will ignore millions of those who do not
entertain any ill-will or animosity against the Muslim
world. To quote the Islamic terminology, they constitute
the Ummah ad-Da’wah. We cannot afford to declare them
as our permanent enemies. They are human beings like us.
They share the same ideas and aspirations that are common
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to humanity. I think we can rely and trust on the majority of


the human beings in the Western world who are educated
and who subscribe to the ideals of justice, freedom, fair
play and equality.

At the same time, we should keep in mind


that there are a few people with vested interests and a
hidden agenda, motivated by forces committed to work
against the Muslims. Undoubtedly these forces are playing
a tremendous role in shaping the policies and initiatives of
the Western world. It means that we are faced with a
colossal and challenging task. If our message has logic and
our presentation has any attraction and appeal, then we
must come forward with an interpretation, exposition and
presentation of Islam in a persuasive, convincing and
logical manner. Target should be to win over those who are
not a party to the vested interests and have not deliberately
consented to be influenced by any group. It has to be
acknowledged that many people around the globe are being
influenced because of default on our part. We have not yet
taken the message of Islam as effectively and as
convincingly to the majority of the Western people as it
should have been.

Therefore, I respectfully disagree with you


and submit that we should not condemn the Western world
as a whole without giving allowance to this fact. We must
admit that some people, being innocent or ignorant of the
conspiracies being hatched against the Muslim world, are
being exploited. I feel that we should be careful. Even as a
Muslim, we are not allowed to condemn a people as a
whole or to describe a people as a whole negatively. It is
contrary to the Qur’an, and to the Islamic tradition of
morality. It is not even advisable strategically.

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Q: In the light of the universal principles of


international law, which are equally applicable to Muslim
and non-Muslim countries, what in your opinion should be
the stance of Pakistan regarding recognition of Israel?
Shouldn’t the Pakistani government recognize Israel
because, after all, this is a territorial, not a religious,
problem?
Dr. Ghazi: I would first of all like to remind you,
as well as the worthy Chair [the High Commissioner of the
United Kingdom (UK)], that the question of Palestine is
one of the soar points, the painful remnants, of our colonial
past. Miseries that the Palestinians have undergone are the
direct result of decisions of colonial powers who must feel
morally obliged to help solve this problem.

Coming to the question, my considered view


is that Pakistan should not recognize Israel. I do not
consider it to be a geographical dispute or to be a dispute
between two countries. Israel was never a country in
history; at least, not in the past two thousand years. The
majority of the population in that part of the world was
never Jewish in the known history of last many centuries.
The country belongs to Palestinians alone. Whether you
believe in the nation-state model or the Islamic state
concept, either way, Palestine belongs to the Palestinians: if
we believe in the nation-state, then the country should
belong to the nation of the Palestinians; if we believe in the
Islamic state, then Palestine should be for the Muslims of
Palestine.

Let me tell you frankly why I say this: Israel


is a country that was created in total disregard of the wishes
and aspirations of the people of Palestine. Outsiders and
aliens speaking different languages, drawn from different
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backgrounds, belonging to different cultural groups,


coming from different social and ethnic environments were
all collected by the victors of the First World War in one
place. They did not speak a common language and could
not understand each other for many decades and they were
asked to create a country in a place that did not belong to
them. The original inhabitants of that country, Palestine,
were driven out. They were persecuted in the worst and the
most brutal way. Now they are advised to coexist
peacefully with their persecutors and accept life as a
second-rate minority in their own country. This negates all
canons of international law.

We had the problem of our brothers from


Bihar [in India], called Biharis or Bihari Muslims. Many
Muslims from Bihar had taken shelter in Bangladesh (then,
East Pakistan) at the time of the creation of Pakistan, as
Pakistani citizens. After the dismemberment of Pakistan,
they were not accepted as citizens of Bangladesh, nor did
they themselves accept the citizenship of Bangladesh.
Today, they are still homeless persons and stateless
citizens; they do not have a state of their own. Some of
them have gone to different countries. They are scattered
all over the world.

Suppose a world power of today decides that


one particular area from some country should be taken
away from its original habitants and given to Biharis
because these poor people are persecuted and scattered, and
the area should be taken forcefully to be given to them on
‘humanitarian’ grounds. I do not think that anybody in
those countries which support creation of Israel on
‘humanitarian’ grounds would favor this arrangement.
Likewise, we Muslims believe that creating Israel by

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slicing away a part of Palestine and converting it into a


homeland for the Jews was not the rightful solution to the
problem. There was no moral or legal justification for thus
imposing the Jews upon the Palestinian people.

If the West is sincere and genuine in


upholding the idea of the nation-state and if the West did
not accept religion to be the basis of nationhood, then there
was no justification in collecting two or three million Jews
from different parts of the world and placing them together
in an area that did not belong to them.

This may be considered my personal


opinion, but it is shared by millions of Muslims all over the
world. It is inherent within the body religious and body
politic of this country, Pakistan. I would remind you that
when the Resolution for Pakistan was passed in 1940 in
Lahore, in that very session, the All India Muslim League
adopted another resolution on the question of Palestine
which was based on almost the same views that I have just
expressed. I can safely say that these are our national
views. These are the views of our founding fathers.

I do not consider it merely a question of


recognizing or not recognizing a country; it is much more
complicated and deep-rooted issue. This question has
serious implications for history, international law and the
rights of different communities. If you accept that the
Palestinians did not have a right to live in their own
country, and Jews had a right to be collected from different
countries and placed there, then I am sure there are many
other examples where the same action should apply.

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Q: True that the number of forces working with


ulterior motives or vested interests is very small;
nevertheless, their power is overwhelming and
consequently it is sheer force that is shaping the whole
global scene. In the context of injustice and dualism, which
is now the order of the day, how can we stop that violent
reaction on the part of Muslims which in your view is a
sign of defeatist pessimism? Secondly, when superpowers
make mockery of international laws, what authority or
force is there to implement those laws to ensure peace and
justice?
Dr. Ghazi: There is ample room for being
optimistic because the world is gradually moving towards a
direction where human considerations are attaining
growing recognition in international dealings among states.
International law and a number of international bodies are
promoting this cause and humanity can safely rely on these
efforts. The existence of the International Court of Justice,
the establishment of the International Court of Criminal
Justice, and the trial of some of the war criminals in
different countries are definitely positive signs. It requires
time, energies and efforts to educate people and create a
strong public opinion.

I do not say that at a certain point in time a


stage will come when the law alone will be able to tame the
hands of the powerful; no, it will never happen. Law alone
is not capable of ensuring that the rights of the people are
guaranteed. Law is effective only when the law enforcers
are effective. If the law enforcers become strong and
effective and there is a strong public opinion behind them
in different countries, only then the law will be able to

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deliver. One important and positive sign is that the voices


raised against the American policy in Iraq and Afghanistan
were much more stronger in Western countries than they
were in Muslim countries. Let us admit this positive fact.

Q: There seems to prevail an antagonism between


the West and the Muslims, and this ‘them-versus-us’
approach seems to be expanding. It is believed that on one
hand apparent failure of the West in understanding Islam as
a Code of Life has contributed to birth of such antagonism,
while on the other hand unwillingness of Muslim world to
act more lucidly in current global environment has
aggravated the situation. It is despite the fact that Islam is
meant to be mercy for whole mankind. How can we
reconcile among these seemingly different attitudes?
Dr. Ghazi: There are many problems that need to
be reconciled and readdressed. But there appears to be a
basic fault in our solution to problems. We should address
and strike at the core of the issue. The core of the issue is
that humanity should be united on one common platform
and there should be a common set of principles, rules and
norms which should be shared by everybody. There should
be a strong public opinion in support of those norms and
rules. Only then these smaller issues and marginal
problems or branch issues would be solved. Otherwise, if
we keep on addressing ourselves to the side issues without
striking at the core issue, we will remain in a dilemma and
it will be a vicious circle from which we can never come
out.

Q: My concern is regarding the educational policies


in various universities in the Middle East, Asia and Europe.
When law students study law, they have to study many
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subjects like political law, international law, public


international law, commercial law, etc. We understand that
Islamic law and Islamic jurisprudence have not been
particularly introduced in many universities of the world.
Why, in your opinion, Islamic or Shari‘ah Law could not
yet find a recognition in academic circles? Can OIC play a
role in this respect?
Dr. Ghazi: First of all, I do not think the matter
falls within the purview of OIC. OIC does not lay down
educational policies for member countries. But it can invite
the attention of the member countries to the significance of
the study of Shari‘ah Law. As far as I know, it did invite
their attention. OIC had in fact formed a committee which
was given the task of drafting a code for civil transactions
and civil dealings to be eventually adopted in different
Muslim countries. The leading Islamic jurist and scholar,
late Sheikh Mustafa Ahmad Zarqa (1904-1999), headed
that committee. I had a pleasant opportunity of interacting
with him. I am personally aware that he did draft some of
the legislative proposals for consideration by different
countries. Some of his proposals were adopted in some
countries and made their way into the statute books of those
countries.

As far as the teaching of the Shari‘ah Law at


graduate level is concerned, there are hundreds of law
schools situated in different Muslim countries where
Islamic law is being taught both at graduate and
postgraduate levels. Even in some Western countries, there
are centers and schools of higher legal education where
Islamic law is taught at graduate and masters as well as
doctorate level. At Harvard, there is a Centre for Islamic
Legal Studies, which offers courses up to Masters and PhD
level and several Muslim students are studying there. So

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also in some other Western countries, Islamic laws are


being taught at different levels of the curricula, some
leading to an independent degree in Islamic law and others
where Islamic law constitutes a minor subject in the degree.
This exercise is being done in different countries. The
tendency to include more and more Islamic laws in the
legal curriculum is on the increase and new universities
both in the occident as well as in the orient are moving in
that direction. New institutions are also coming up where
Islamic laws are being taught.

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References

Abu Daud Sulayman al-Ashath. Kitab as-Sunan.

Ahmad (Imam), al-Musnad, six volumes.

Al-Sarakhsi. Sharh al-Siyar al-Kabir. Vol. I.


Hyderabad Deccan: Da’irat al-Ma’arif.

Dixon, Martin. 2000. Textbook on International


Law. London.

Ghazi, Mahmood. 1998. Introduction to al-


Shaibani’s al-Siyar al-Saghir. Islamabad: Islamic Research
Institute.

———. 2006. State and Legislation in Islam.


Islamabad: Shariah Academy.

———. 2007. Khutbat-i-Bahawalpur. Islamabad:


Shariah Academy.

Hakim (Muhammad ibn ‘Abd Allah al-Hakim).


1334-41AH. Al-Mustadrak ‘ala ‘s-Sahihayn fi ‘l-Hadith.
Hyderabad: Da’irat al-Ma’arif.

Hamidullah, Muhammad. 1364AH. Qanun Bayn al-


Mamalik Ke Usul Awr Naziren. Hyderabad Deccan:

———. 1987. Muslim Conduct of State. Lahore:


Sheikh Muhammad Ashraf Publishers.

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Ibn Hisham (‘Abd al-Malik ibn Hisham). (d.


243AH.) Sirat an-Nabi.

Ibn Majah (Muhammad ibn Yazid ibn Majah al


Qawzini). (d. 273 or 275AH.) Kitab as-Sunan.

Joshi, K.C. 2006. International Law and Human


Rights. Part II. Lucknow: Eastern Book Academy.

Kapoor and Tandan. 1980. International Law.


Lahore: Mansoor Book House.

Laleli collection, No. 1156 Arabic MSS, now


preserved in Sulemaniye, along with 113 other collections.

Levy, Werner. 1991. Contemporary International


Law. Colorado: West view Press Inc.

Nussbaun, A. 1954. A Concise History of the Law of


Nations. Edinburgh.

Nys, E. 1894. Les Origines du Droit International.


Bruxelles:

Oppenheim, L. 1958. Oppenheim’s International


Law. Edited by Hersch Lauterpacht.

———. 2003. Oppenheim’s International Law.


Vol. I - Peace, edited by Sir Robert Jennings and Sir Arthur
Watts. Indiana:

Starke, J.G. 1972. An Introduction to International


Law. London: Butterworth and Company.

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———. 1992. Introduction to International Law.


Lahore.

Suhaili, al-Rawd al-Unuf, in loco.

Tirmidhi (Muhammad ibn Isa at-Tirmidhi). (d. 275


or 279 AH.) Al-Jami as-Sahih. Several Editions.

Zemmali, Ameur. 1997. Combattants et Prisonniers de


Guerre en Droit Islamique et en Droit International
Humanitaire. Paris: Editions A. Pedone.

95
Question of Minorities

T his chapter is divided into four parts. The first part


defines the concept of minority and outlines the need to
discuss the rights, privileges and status of minorities. The
second part describes the position of Islam on minorities or,
more accurately, the position of Islam on issues now
considered relevant to minorities. Third part looks at the
situation of Muslim minorities in non-Muslim countries.
Finally, the fourth part makes a brief reference to the status
and position of minorities in Pakistan in particular and in
the contemporary Muslim world in general.

Defining Minority
What is the definition of a minority? Linguistically,
any community that is distinct from the majority of the
people living in a territory is a minority. However, in a
discussion of the jurisprudence, constitution, or rights and
privileges of minorities, a further elaboration is necessary:
in what way does a community need to be distinct to be
considered a minority? For example, a society may include
a small group of bearded people among mostly clean-
shaven people, or vice versa, but such differences do not
qualify the group to be considered a minority. Therefore,
for the purposes of the discussion in this chapter, the

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meaning assigned to the term ‘minority’ by English


lexicographers or linguists is not sufficient.

Importantly, even more fundamental


sociological or political distinctions may not provide a
valid basis for considering a group a minority: a group may
be a political or sociological minority and yet not require a
different set of rights and privileges or jurisprudence. This
is partly because a minority in the political sense may not
be — and normally is not — a permanent minority.
Today’s political minority may become tomorrow’s
majority, and such a temporary minority would not usually
have to define and decide on its status and privileges as a
minority, or settle questions of inter-communal
relationship.

It is only in the limited context of


international law that we find the definition of a minority
that is relevant to a discussion of its rights and privileges.
In this context, a minority may be defined as a group of
people that differs from the dominant group within the state
in matters essential to the formation and constitution of the
state. In this sense, a majority is normally a permanent
majority and a minority is mostly a permanent minority.
The rights and privileges of such permanent minorities
have become an important component of modern
international law,1 and it is with respect to these that it is
pertinent to outline rights and privileges under international
jurisprudence and Islamic law.

1
See, for example, Shaw, 1997, pp. 218–223.

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Qu e s ti o n o f Mi n o r i ti e s

The above working definition of minorities


raises a basic question: what is essential to the formation of
a state or for the constitution and formation of societies?

A society may be ethnic, giving primary


significance to the ethnicity of its individuals and citizens.
In such societies, the majority and minority would be
determined on the basis of ethnicity. In South Africa’s
apartheid days, it was mostly, if not exclusively, the
ethnicity of a person that decided whether he was to be
treated as a minority or a majority member. On the other
hand, in many countries in Europe, the Muslim world and
many other parts of the world, different ethnic groups live
together without anybody taking much notice of the ethnic
background of a person. In fact, in all major Muslim and
European countries, millions of people belonging to
different ethnic backgrounds are living together without
creating any apparent problem. There has been no
significant difference of perceptions about the future status
and the privileges of these groups. In most Muslim
societies, difference in ethnicity or ethnic background has
hardly ever led to any dispute involving minority or
majority issues.

In some societies, linguistic difference


provides one of the most important bases for distinguishing
a majority from a minority. In others, the cultural affinity or
otherwise of a people with each other labels them a
minority or a majority.

In many Western countries, it is the cultural


background, coupled with other factors, which mostly
decides who is a majority and who a minority. In most
Muslim societies of the past, it was primarily the religious

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belief of a person that decided whether he belonged to the


majority or to a minority. This remains true of Muslim
countries even today. This is because society and state in
Islam mainly draw their validity and legitimacy from their
affiliation to Islam, which is primarily a religious message.
Muslims seek guidance from the Qur’an, essentially a
religious book which has come down to humanity through
a religious source, namely, divine revelation. Therefore, the
religious affiliation and religiousness of a person become as
strong, important and relevant as, for example, ethnicity in
Apartheid South Africa, or cultural affinity in some
Western countries, or linguistic affiliation in some other
countries.

The precise definition of majority and


minority may, therefore, differ from country to country and
from society to society. In Pakistan, around 97 percent of
the population is Muslim. This group includes people from
diverse ethnic backgrounds: many are descended from
immigrants who had come to the area during previous
centuries from Arabia, Iran and Central Asia. These ethnic
communities live side by side with Muslim descendants of
the local people who converted from Hinduism. In the
distant past, large groups of people also migrated from
Eastern Europe to the sub-continent. Many of these groups
still retain their ethnic identities and references. Yet, they
are never referred to as belonging to a minority or a
majority. This example should substantiate and support the
submission that the question of the basis of majority and
minority should be decided differently in different contexts.

This, to some extent, has now been


acknowledged in the relevant documents of the United
Nations. These documents in particular and the works of
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contemporary publicists on international law in general,


have referred to the rights and privileges of a minority
against the predominance of a hostile or unfriendly
majority. Although these documents have seldom
attempted to formally and exclusively define a minority in
legal and constitutional terms, the manner in which they
have dealt with issues, and the tendency they have shown
in protecting the rights and privileges of minorities has, to a
large extent, clarified the underlying concept.

In this context, we may refer to the


documents related to human rights adopted by different
bodies of the United Nations, documents dealing with the
elimination of discrimination on different grounds,
elimination and prohibition of genocide, and other similar
subjects. In all these documents, a reference to a minority
normally includes a minority ethnically, rationally or
religiously distinct from the majority of its area. In the UN
Convention of Civil and Political Rights, Article 27 is
relevant and important. It quite elaborately defines a
minority, and confines it to ethnic, religious and linguistic
groups. Thus, it comes closer to the views of Muslim
jurists, who give more weight to the religious beliefs of
individuals in this matter.

Despite their precision and the clarity of


ideas in the minds of their authors, these documents have
failed to discuss the situation where a minority, far from
needing protection in a society, might in fact be ruling it, in
which case the interests of the majority might be more at
risk. There have been such situations in the past, as there
are now. The most conspicuous and obvious example is
that of South Africa, where four million white people ruled
over 32 million black people, as well as perhaps 2–3

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million others, for more than three centuries. One should


not ignore or downplay the question whether the documents
dealing with the rights of minorities are applicable to
persecuted majorities in contexts similar to South Africa.
There are countries in Africa, and may be elsewhere, where
different kinds of minorities are ruling over the majorities.
However, the above-mentioned literature is silent on this
issue, or appears to be practically irrelevant to the
persecuted millions constituting majorities. This issue is an
important lacuna and a significant oversight on the part of
the framers of such documents.

Another weakness — one might call it


another loop-hole — in the current documents on the rights
of minorities pertains to how small a minority needs to be
to qualify for the protection envisaged. Many feel that these
documents contemplate only the situation where a minority
is so small and has such limited resources that affirmative
action, external moral and legal support, is required to
protect it and its rights and privileges; their provisions and
references are ineffective and inadequate for the situation
where a group, while being a numerical and comparative
minority, is sizeable enough to be bigger than the
population of dozens of countries put together. This is felt
by many Muslims in the subcontinent. The number of
Muslims in India, according to various estimations, is 150
million to 250 million. As such a colossal minority, their
expectations and interests may not be fully addressed in the
reference made in different documents to minorities.
Indeed, Indian Muslims are almost a separate and distinct
nation in the sense that the term has been used in
international discourses and documents. Nevertheless, they
are citizens of a country where the predominant population
is different from them, not only in terms of ethnicity and, in
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many cases, language, but also in basic religious beliefs.


This is an important aspect of the contemporary discussions
on minorities.

Issues about minorities may be taken up at


two different levels: the national and the international. A
national minority may be defined as a group of citizens
who constitute a minority and whose rights and privileges
are protected, or at least supposed to have been protected,
by the domestic law of their country. An international
minority would be a group or community whose rights and
privileges are to be guaranteed through international
instruments. Undoubtedly, there are, or might be in future,
areas that need to be protected by international instruments
framed by international bodies under international law. Yet
there remain a lot of other problems and issues to be dealt
with by the national documents and domestic legislation.
The resolution of possible conflict between the
requirements of these two kinds of documents is an
important issue that has agitated the minds and engaged the
attention of scholars and jurists.

Interestingly, Muslim scholars have


addressed the question of minorities and other relevant
issues on both levels: the level of municipal legislation,
dealing with the rights of the other group, as well as the
level of the international law of Islam (Siyar), which deals
with the rights and privileges or non-Muslims living in the
Islamic State.2

2
See, among others, Hamidullah, 1987, pp. 111–118.

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Minorities in Islamic Society


Before taking up the Muslim point of view on the
question of minorities, pluralism, as understood, formulated
and practiced in the history of Islam, needs to be
understood. The Islamic legal system, as domestically
enforced and as followed by Muslim rulers for their
international dealings for more than one thousand years,
was a pluralistic system. It successfully accommodated
different and conflicting views, varying cultures and people
of different backgrounds under one system that equally
addressed the needs and requirements of these different
groups.

Sometimes, non-Muslim observers from


outside the Muslim world find it difficult to understand the
Islamic position and to distinguish Islam as a religion and a
set of moral principles from Islam as a social code, Islam as
a legal system, Islam as a cultural paradigm and Islam as a
civilization. These are different levels of implementation
of, and manifestations of adherence to, the Islamic
guidance and the law of the Shari‘ah. There is an in-built
balance in the requirements of these levels and
manifestations: a harmony has, by and large, been
maintained in order to keep balance between the push and
pull of these different requirements.

The Islamic pluralism, if the term can be


used, has been developed by Muslim jurists directly under
the guidance of the Qur’an and on the basis of the model
example established by the Prophet of Islam (PBUH). The
Qur’an does not address a particular ethnic or linguistic
group of people or a particular tribe or society. It addresses
itself either to mankind at large — the Children of Adam
— or to specific people with reference to their religious
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Qu e s ti o n o f Mi n o r i ti e s

beliefs. There is no address in the Qur’an to any groups of


people invoking their ethnic or linguistic, color or any other
affiliation. This highlights the Qur’an’s emphasis on the
unity of mankind and, at the same time, acknowledges that
distinctions can only be made between people on the basis
of matters that they choose through their own free and
conscious decision-making, specifically, ideology or
religious belief. Ethnicity, linguistic difference and race are
not chosen by a person through any conscious or free
choice; they are only accidental or dictates of nature, and
therefore individuals should not be discriminated on this
basis.

The religious pluralism as reflected in


Qur’anic references can be reviewed from two
perspectives: the theoretical reference made in the Qur’an,
and the historical practice of Muslim societies. The Qur’an
invites the “People of the Book” (the children of Israel and
Christians) particularly to come to the common ground for
all divine religions and thereby advance their common
cause and serve humanity. This Qur’anic call provides the
ultimate basis for a lasting religious pluralism.

The performance of Muslim rulers in


different ages of history, despite many failings in other
areas, has been exemplary as far as treatment of non-
Muslim co-citizens is concerned. It is acknowledged by
Jewish historians and Western scholars that the best periods
of Jewish history, after the fall of their kingdom, was when
they lived in Muslim lands. In Muslim Spain, they enjoyed
all the freedom, respect and dignity that should be available
to every human being. The status given to non-Muslims by
the Abbasids and the status given to the Hindus by the
Mughals and other Muslim monarchs before them provide

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examples of the nature of treatment historically meted out


to non-Muslims by Muslim societies.

It may be pointed here that the term


“minority” was never used by Muslim jurists before the
twentieth century. There is hardly any explanation as to
why this term has not been used in the formidable plethora
of material on fiqh. It is not found in historical or legal
literature. It is not found in literature produced by Muslim
theologians and writers on political thought. However, the
rights and privileges of non-Muslims living in an Islamic
society are dealt with in elaborate detail, and with a fuller
discussion as one expects from the width and profundity of
their work. This is perhaps because, to the Muslim mind, it
is not the numbers of people but their humanity and human
quality that are significant. Every person with whom one is
dealing is a human being; his dignity should be protected
and he should be respected as a human being irrespective of
the numbers he represents. Being similar to the larger
number of people does not add to his human quality, nor
does being dissimilar reduce it.

This primacy of humanity is supported by


the example of the Prophet of Islam (PBUH) in his
treatment of non-Muslims in Madinah. Once, the Prophet
(PBUH) saw that the body of a Jew, who had been his
enemy, was being carried by his people to the graveyard.
He immediately stood up in reverence to the body, paying
homage and respect to a human being. Somebody reminded
the Prophet (PBUH) confidentially and secretly that this
was the body of such-and-such Jew (i.e. an enemy). But the
Prophet (PBUH) responded, with a raised voice, “ KLMN‫أ‬

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‫ ً؟‬RLST”—“Is it not a human soul?”3 He clearly indicated that


a person deserves respect and enjoys rights as a human
being, irrespective of his or her religion, creed, culture, or
ethnicity.

Whatever has been done by the Prophet


(PBUH) or his immediate successors or Companions as a
whole is part of the Shari‘ah and hence is a source of
Islamic Law. The conduct and the ways of the Prophet
(PBUH) and his Companions with respect to non-Muslims
living in the Islamic realm became important sources of
law and have been the basis on which the private
International law of Islam was developed.

There have been non-Muslims living in


Muslim societies from the very beginning. Indeed, there is
no period in Islamic history in which non-Muslims have
not lived alongside Muslim majorities as co-citizens.
Muslim scholars have classified them into two categories:

(i) Mu‘ahidin, or parties to a contract; and


(ii) Ahl al-dhimma, protected or guaranteed
citizens.

The first term, mu‘ahidin, referred to those


non-Muslim citizens of the Islamic state who had entered
into a special contract or treaty with the Muslim
government. It was on the basis of this treaty or contract
that they had accepted the citizenship of the Islamic state.
For example, when the Prophet (PBUH) migrated to
Madinah at the invitation of the city’s new Muslims and

3
Bukhari, Al-Jami’ as-Sahih, “Kitab al-Janā’iz”, Hadith. no. 1263.

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established a city-state in Madinah, he entered into an


understanding with the Jews of Madinah. A document was
chalked out in consultation with the local chiefs in which
the rights and privileges of all the tribal groups, the Jews,
the local inhabitants of Madinah and the migrants from
Makkah were laid down. This charter has been considered
by some contemporary scholars to be the first written
constitution in the history of mankind.4 This document has
come down to us and is available in English, French,
German, Urdu and Turkish translation.

Mu‘ahidin, then, are the groups of non-


Muslims whose rights and privileges are determined in the
light of the agreement and contract entered with them, in
addition to the rights and privileges given by the Qur’an or
by the Prophet of Islam (PBUH). We can say that the
present non-Muslim populations found in almost all major
Muslim countries, including Egypt, Iraq, Syria, and others,
fall under this category. Their rights and privileges are
determined in the light of the dictates of the Qur’an and
Sunnah as well as the provisions of the contract, treaty or
agreement entered between their communities and the
respective Muslim governments. This arrangement is
reflected in the constitutions of these countries, the
statements and pronouncements made by their respective
leaders, and other relevant documents.

The second category of non-Muslim co-


citizens has sometimes been misunderstood by superficial
readers, and at times misinterpreted by writers. This
includes those non-Muslims who become citizens of an
Islamic state as a result of their defeat in a war and the

4
Hamidullah, 1986.

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resultant Muslim conquest. This category existed only in


the past. Presently, there is no area or territory that has been
annexed to any contemporary Islamic state as a result of
defeat of the non-Muslim population in a war.

However, even though this category no


longer exists, it is educative to consider the significance of
the term used by the Qur’an and the Prophet (PBUH) for it.
Ahl al-dhimma may be translated into English as
“guaranteed citizens,” i.e. citizens whose protection and
whose defense is to be guaranteed by the Muslims, the
citizenry as well as the state. This guarantee is to be issued
on behalf of Allah and His Messenger.

The Prophet (PBUH) was extremely


sensitive about fulfilling this commitment or pledge as
extended to non-Muslims. This commitment is considered
to have been made, not by individuals or rulers, but the
Qur’an and by the model examples of the Prophet (PBUH).

There are several examples of Muslims


entering into contracts or agreements with non-Muslims.
Although all such contracts have normative value, two are
highly significant and have been the subject of long
discussions amongst Muslim jurists. One is the Charter of
Madinah, mentioned above, and the other is the agreement
prepared by the Prophet (PBUH) in relation to the people of
Najran, a province with a sizeable Christian population that
was situated near the southwestern border of Saudi Arabia
and present-day Yemen. In this contract or charter, the
Prophet (PBUH) guaranteed basic freedoms to the non-
Muslim tribes of Najran, undertaking that: (i) Whatever
their earlier habits or practices had been, they would never
be changed; (ii) Whatever their rights and privileges, these

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would never be subject to change; and (iii) Their religious


matters would continue to be run as they were.

This document, which is not very long, has


also come down to us and is available in English, French,
Urdu and Turkish translations.5 Along with other similar
instruments, including those prepared by the immediate
successors of the Prophet (PBUH), it provides the basis for
the resolution of conflicts of laws as conceived by Muslim
jurists, who later developed the principles of what may be
termed as the private international law of Islam.

A dictum phrased by the fourth Caliph Ali


ibn Abi Talib has already been quoted in first chapter
whereby he has been reported by some of the leading jurists
of Islam to have said that the rights and obligations of non-
Muslim co-citizens are similar to the Muslims’ own rights
and obligations.6

There has been a general principle, which


enjoys unanimity amongst the Muslim jurists that a
privilege or a right once granted to a non-Muslim can never
be withdrawn or changed to his disadvantage. A state can
change a constitution; it can change its law. It can even
modify the Islamic laws based on ijtihād or the exercise of
independent judgment. But once a privilege is guaranteed
to a non-Muslim, it cannot be withdrawn. There are
examples in Muslim history where a privilege was
conceded to a non-Muslim and it continued to be preserved
and protected by Muslim rulers for six or seven centuries.

5
For a complete text, see Abu Ubaid n.d., 188.
6
This statement has been quoted by several authorities. See, among
others, Zailiee’, Nasb al-Rayah li Ahadith al-Hidayah, Vol. IV, p. 55.

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A recent authority on Muslim international


law has compared the status of Muslim citizens of the
Islamic State with that of non-Muslims. He has concluded
that, in several respects, non-Muslims are better off than
their Muslim compatriots. For example, zakāt is
compulsory and has to be paid by Muslims in all situations.
Under no situation can this be exempted or relaxed.
However, a non-Muslim, who does not pay zakāt, can
always be exempted from the payment of jizia, a tax
parallel to zakāt that is to be paid by non-Muslims.
Likewise, a Muslim cannot be exempted if compulsory
conscription or military training is undertaken in any
Islamic state; however, a non-Muslim is exempted,
although he is welcome to participate voluntarily.7

Another privilege granted by the Prophet


(PBUH) to some non-Muslim tribes is also significant.
They were assured that no Muslim would be appointed to
head them or to lead them if they felt that their own people
should be appointed as state representatives to administer
their matters. Such a right was granted through agreements.
A similar privilege was given by the Prophet (PBUH) to a
tribe living in present-day Taif, Saudi Arabia. After the
conquest of Makkah, Taif became a part of the Muslim
territory. Even then this privilege was allowed.

The personal law of non-Muslims has


always been protected by the Islamic state.8 This right is
recognized even in those matters where Islamic law does
not approve a practice as valid or morally justified. For

7
Hamidullah 1987, pp. 112.
8
See chapters on “Ankihah Ahl al-dhimma” in the major fiqh
compendia.

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example, some of the non-Muslims observed habits and


practices that are not only prohibited in Islam, but may be
repugnant to most human societies. One such example is
the practice of satti, which was the practice of the Hindus
since before Muslim rule in India, and which is still
followed in some parts of the country. According to this
religious practice, if a husband dies leaving a widow, the
better recourse for her is to burn herself alive rather than
continue to survive. During Muslim rule in India, although
Muslim scholars and jurists tried to persuade the Hindus to
abandon this practice, the Muslim government did not
intervene and prevent it by law or force.

Likewise, when the areas of present day Iran


became part of the Islamic caliphate, there were many
people who saw no harm in incestuous practices and who
permitted marriage within degrees of relationship that are
prohibited in Islam and in many other divine religions.
However, the Muslim rulers did not interfere with this
practice and the non-Muslim Iranians continued to observe
it. It is believed that, among the very small minority of fire-
worshippers in Iran, this practice persists even today. Even
smaller minorities of this community are found in Pakistan
and India today. However, this practice has never been
interfered with by Muslim rulers. This shows the extent to
which the personal law of non-Muslims is recognized in
different Muslim countries.

The status of a non-Muslim in a Muslim


society has been summed up by a Muslim jurist in the
following words: “Non-Muslims are like Muslims as far as
the civil matters and the dealings of this world are

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concerned.”9 Thus, whatever is allowed to a Muslim with


respect to his property and wealth is allowed to a non-
Muslim; whatever is not allowed to a Muslim in this
respect is not allowed to a non-Muslim either.

If we compare the Islamic tradition of


tolerance and accommodation with the practice being
meted out to Muslims in different ‘civilized’ countries in
respect of their personal law, we find a world of difference.
It is painful to observe that the personal law of Islam is
denied to Muslims in many modern and ‘democratic’
countries. In some countries, there are constitutional
provisions that do not allow Muslims to organize their
personal matters, marriages, and other familial matters in
accordance with the teachings of the Qur’an.

Muslim Minorities in non-Muslim States


Today, the population of Muslims living in a non-
Muslim environment is growing. Of the approximately
1,400 million Muslims in the world, 35–40 percent lives
outside the Muslim world. This is not a new phenomenon.
There have been Muslim minorities living in different non-
Muslim countries from the very beginning. One of the
earliest examples is that of Ethiopia. As is known to
students of sīra (life of Prophet Muhammad [PBUH])
during the early years of Islam, when the Muslims of
Makkah were being severely persecuted, the Prophet
(PBUH) advised those of his followers who were worst
afflicted to migrate to Ethiopia. He told them that the
country was ruled by a pious ruler in whose realm they
would not be wronged because nobody was wronged there.

9
Sarakhsi, 1957, p. 306 and Zailiee op. cit., p. 55.

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Upon this advice, a number of companions migrated to and


settled in Ethiopia.

The Prophet (PBUH) had also advised these


followers to eschew any hostilities with the Ethiopians (or
“habashīs”). His instruction, reported by several compilers
of the Hadith, was: “Leave alone Ethiopians as long as they
leave you alone.”10 This meant they were to adopt a neutral
policy towards the Ethiopians, never interfere in their
matters, never attack them, and never enter into any hostile
relationship with them.

These migrants lived peacefully in Ethiopia


and their descendants are found there today, even though
Ethiopia has never been a part of the Muslim world or of
any Islamic state, and is not an Islamic state.

The advice of the Prophet (PBUH) was


honored not only by the immigrants but by Muslim rulers
in the region, and continues to be honored even today. We
do not find any example in the entire Muslim history where
any ruler from Egypt, Sudan or from other adjoining
countries has entered into any kind of hostility with the
rulers of Ethiopia, despite several instances where Muslims
have been bitterly persecuted there, such as in the days of
Helaslasi.

The Muslim minorities can be divided into


three categories:11 First category is of those Muslim
minorities that represent earlier Muslim kingdoms and free

10
Abu Daud, al-Sunan, “Kitab al-Malahim”, Bab Zikr al-Habasha,
Hadith no. 4309, Dar al-Salam, Riyadh.
11
See, for more details, Ghazi, 2007, pp. 483–521.

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regions which were later either occupied or annexed by


neighboring non-Muslim powers. The Muslims in South
Philippines (Mindanao) once had their own kingdom. They
were later annexed by a neighboring non-Muslim power.
The Muslims in India and in some regions of Eastern
Europe are similar examples of Muslim populations that
were subjected to various non-Muslim rules during the
course of history. Such Muslim minorities are numerically
the largest.

This is the first and perhaps the most


problematic category of Muslim minorities. The main
problem faced by these Muslims is the preservation of their
Islamic identity. They see themselves not as minorities but
as distinct nations, and feel that their ultimate destiny
should be decided on the basis of this fact. The ultimate
solution to the problem remains to be seen.

The second category of Muslim minorities


includes immigrants who went to non-Muslim countries,
mostly in Europe and North America, for economic
attractions or other reasons and stayed behind.12 A large
number of such immigrants were once students pursuing
higher studies in these countries and who did not return to
their respective countries. They now constitute a large
proportion of Muslim minorities and number in millions.
This category of Muslim minorities is mostly observant of
laws and social order of host societies and has assimilated
into the system without losing their identity as Muslims. By
and large, these Muslims have not created any difficulty or
problem for their host countries.

12
See Ahmad, and Bukhari, 2008.

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The third category is that of Muslim


converts who have accepted Islam in different parts of the
world. Their main problem is the acquisition and
preservation of an Islamic identity. Educating and raising
their children in accordance with Islamic norms and
traditions poses the most formidable challenge to them. In
many cases, the Islamic identity has been denied to them.
In some cases, this identity is not formally denied to them,
but the environment makes it difficult for them to achieve
and maintain it.

An important issue confronting Muslim


minorities in non-Muslim countries is the misunderstanding
that they are bound to implement the Shari‘ah in exactly
the same way in their lives as Muslims living in Muslim
countries. This misunderstanding, which imposes an
unnecessary conflict between the Shari‘ah and the norms
and laws of the host country, is created by some less
educated or overenthusiastic Islamic activists as well as
some non-Muslim observers who are not fully aware of the
demands of Islam from various categories of its followers.

In fact, the demand of Islam from an


individual living in a Muslim society is different from that
of an individual living in a non-Muslim environment.
Likewise, the extent to which Muslims have political
freedom and independence in their own government also
determines the precise obligations posed on them by
Islam.13

Clearly, if the demands of different contexts


and situations were mixed up and everybody had to follow

13
Ghazi, op. cit.

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precisely the same code, confusion and difficulty would


ensue. The idea that Islamic demands can change with
altered conditions does not represent a compromise but is
rooted in certain principles evident from the Qur’an itself.
There are certain instructions given in the Qur’an that
require Muslims to do things under certain pre-requisites: if
the conditions are present, the requirement is valid; if the
pre-requisites are not present, the requirement does not
apply. For example, if a person maintains a certain amount
of saving for a full year, he is under obligation to pay the
zakāt — an obligatory tax — on it at 2.5 percent. Now,
zakāt is one of the key pillars of Islam, and is to be
recognized as such by every Muslim. However, it is to be
practiced only by those who meet the precondition outlined
above. Thus, if a Muslim is poor and has not maintained
savings free of all needs and encumbrances for a year, the
obligation of zakāt is not applicable to him. This exemption
does not mean that the requirement of Islam has changed or
an Islamic principle has been compromised. Simply, since
the precondition is not present, the individual is not liable
to meet the obligation.

In the same manner, the Almighty has


directed that Muslims perform certain duties “if We give
the believers authority in the land.”14 Thus, having
governing authority is a precondition for these duties. A
Muslim minority would not be required to implement some
of the Islamic instructions being applied in Madinah. In
Madinah, the penal code of Islam was applied. But
implementing this code was never required of the Ethiopian
Muslim minority during the days of the Prophet (PBUH),
or the tiny Indian Muslim minority during the days of the

14
Al-Qur’an, 22:41.

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second Caliph, or the Spanish Muslim Community during


the days of the third Caliph. This clearly shows that the
requirements posed by Islam vary with the situation and
context, and that in some respects different rules apply to
Muslims living in non-Muslim countries from Muslims in
Muslim lands.

Moreover, there are rules in Islamic law and


principles of Islamic jurisprudence to be implemented only
by the imam or the Muslim state and Muslim government.
These rules and principles constitute an important part of
the Shari‘ah and are not required to be implemented by the
individual. This distinction has to be made known to young
Muslim men and women living in non-Muslim
environments. It needs to be emphasized that individuals
are under an obligation to perform only those duties and
functions that are required to be implemented by the
individual.15 This point also has to be taught to the
uneducated as well as to those non-Muslim well-wishers
and observers who are not fully aware of the requirements
of Islam.

It is a matter of concern in Europe and the


United States today that Muslims living there might start
implementing the Hudood laws; what would be the solution
then? The answer is simply that the Qur’an does not require
of Muslims in the United States, or for that matter in any
other non-Muslim environment, to implement the Hudood
because individuals are not required to implement the penal
code of Islam. This is a requirement of the Muslim state.
Only men in authority have the obligation to implement
such laws. Indeed, Hudood laws and other penal

15
Ghazi, pp. 38–40, pp. 46–47 and pp. 511–515.

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requirements are never to be implemented by individuals,


whether they live in a Muslim country or in a non-Muslim
environment.

Thus, many of the difficulties faced by


Muslim minorities and their non-Muslim hosts are due to
confusion and misunderstanding regarding which Islamic
requirements apply to the Muslim individuals living in a
non-Muslim environment. Understanding that many of the
Islamic requirements depend on the context and situation of
the individual can help alleviate such issues.

Minorities in Pakistan
Non-Muslims in Pakistan have been living
peacefully without facing any difficulty or problem at the
social or political level. They have been given rights and
guarantees that are protected in the Constitution of
Pakistan. The founder of the country, the Quaid-i-Azam
Mohammad Ali Jinnah, repeatedly assured the non-
Muslims in Pakistan, and is on record to have said, that
they would have equal rights and privileges as their Muslim
co-citizens as granted to them by the Shari‘ah. This
assurance was in conformity with the above-cited Islamic
principle expressed by the fourth caliph, Ali ibn Abi Talib.

Both before the creation of Pakistan and


immediately afterwards, the Quaid assured non-Muslims
that they would have full freedom of worship and could
continue to practice their religions as before. They were to
be as independent and equal as the rest of the citizens of
Pakistan. In his address to the first Constitutional Assembly
of Pakistan on August 11, 1947, he said: “You are free to
go to your temples, you are free to go to your mosques, you
are free to go to any place of worship. There will be no

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discrimination on the basis of religion. In Pakistan all


citizens will be alike and there will be no differentiation on
the basis of religion as far as citizenship is concerned and
their rights and privileges as Pakistanis are concerned.”

A few days after making this statement, the


Quaid called a press conference in which he further
clarified this commitment because this part of his statement
before the Assembly had been misquoted several times; in
fact, it has since then often been quoted out of context. The
Quaid had himself explained his statement by reiterating
that non-Muslims of Pakistan would have those rights that
had been given to them by Islam. In his speech on the
inauguration of Pakistan’s Constituent Assembly on August
14, 1947 he had said, “The tolerance and goodwill that
great Emperor Akbar showed to all the non-Muslims is not
of recent origin. It dates back thirteen centuries ago when
our Prophet (PBUH) not only by words, but by deeds,
treated the Jews and Christians, after he had conquered
them. The whole history of Muslims, wherever they ruled,
is replete with those humane and great principles which
should be followed and practiced.” 16

Soon after the Quaid’s demise, the founding


fathers of this country, the members of the First Constituent
Assembly, adopted a resolution known as the “Objectives
Resolution.” The Objectives Resolution is one of the most
important documents in Muslim constitutional history in
the twentieth century. It combines, for the first time, the
dictates of Islam and the principles of Islamic constitutional
theory, the basic elements of Islamic political philosophy,
and the dictates and requirements of the modern democratic

16
Khan, 1996, p. 2609.

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Qu e s ti o n o f Mi n o r i ti e s

representative system. All of these have been equitably


integrated and beautifully interwoven into each other. This
important document has been adopted in all constitutional
drafts in Pakistan and now constitutes an operative part of
the Constitution of Pakistan through Article 2-A. About
minorities, it says that they shall have full freedom to
practice their religion, to promote their culture, to promote
their languages and to exercise all such rights as are
available to other citizens.

This was the first constitutional guarantee


given to the minorities in Pakistan. Further guarantees are
provided in the constitution, which deals with fundamental
rights and clearly says that these rights will be guaranteed
to each and every citizen, irrespective of caste, creed and
culture.

Then, Part 12 of the constitution, where


Islamic provisions have been made, and where it has been
said that all laws shall be brought into conformity with the
Qur’an and Sunnah and no law shall be enacted which is
repugnant to the Qur’an and Sunnah, it has been said that
this provision will not have effect on the status and
privileges of the non-Muslims and their personal status as
citizens of Pakistan. This provision has been added even to
Article 227 of the constitution where the constitutional
commitment to enforce Islamic laws has been made.

Therefore, the minorities in Pakistan, among


whom the Christians constitute the largest, followed by the
Hindus, have always enjoyed freedom, respect and
privilege in the country. A Christian jurist17 rose to the

17
Justice Alvin Robert Cornelius (1903-1991).

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highest judicial office in the country, the Chief Justice of


Pakistan, and remains a most widely respected figure in the
history of the country’s superior courts. Likewise, one
Hindu Judge of the Supreme Court of Pakistan has recently
retired and now heads Federal Public Service Commission
of Government of Pakistan.18 He is one of the most widely
respected and honored judges in the history of the Supreme
Court. There have been many other non-Muslim
judges, officials and businessmen in Pakistan as well who
have enjoyed the highest respect and recognition because of
their competence and commitment to national cause.

Conclusion
Muslims as well as non-Muslims have so much to
learn from the injunctions of Islam on the question of
minorities. It contemplates that a person should not be
deemed different on account of ethnicity, complexion or
language; rather it should be the faith and character that
should define the personality and status of an individual. It
also underlines that despite varied choice of individuals
with respect to the religion, he must be respected as a
member of human community and his rights should not be
violated only because he dares to differ. In modern context
of statehood, Pakistan offers a model of national cohesion
and mutual cooperation on the basis of humanity. There is
ample room for improvement but Pakistan’s society as well
as the law offers similar opportunities to Muslims of all
faiths, ethnic communities and linguistic groups.

18
Justice (R) Bhagwan Dās.

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Comments and Discussion

Antonio Segura Moris:19 Information revolution in the


rapid process of globalization has brought minorities
around the world in limelight. Simultaneously, the
intellectual and moral evolution has envisaged an enhanced
tendency in human society to facilitate the assimilation of
foreigners in local cultures. In the West, governments are
becoming increasingly convinced of the need of opting the
humanitarian notion of social unity as the basis of society.
The primitive basis of assimilations, like caste, creed and
culture, are being replaced more and more by the basic
identity of ideas and the basic facts of sharing the human
nature.

In Spain, we know particularly very well


through eight centuries of familiarity with Islam and the
priceless heritage of that era about the basic tenets of Islam
and we are perhaps specially gifted to filter out the
prejudice from the truth about Islam in contemporary
discourse. When some voices confuse Islam with
extremism, we exactly know that far from imposing
Qur’anic laws on everybody; Islam permits and even
protects pluralist culture. Various ideologically different
cultures have wonderfully coexisted during the rule of
Islam in Spain. As far as issues of social and cultural
autonomy are concerned, the safeguard of the rights of non-
19
H.E. Antonio Segura Moris served as Ambassador of Spain to
Pakistan (2002-2005).

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Muslims in Islamic territory goes even to the extent of


giving them the liberty of practicing customs entirely
different and even opposed to those of Islam. Islam stands
for respect for the dignity of the human beings and respect
for their rights and idiosyncrasies of others who are not
Muslims.

There are many things that a person, a


community or a nation may learn from another but
humanity may not be able to share its common experience
unless mutual respect enables them to positively interact
with each other. This respect and affection for fellow
beings has to be made the basis of human development and
success.

Q: Does the concept of jizia as practiced in the


earlier period of Islam still applicable in modern society?
Don’t you feel that the concept seems rather discriminatory
and contemporary Muslim jurist will have to thoroughly
review its modalities if it is ever put into operation again?
Dr. Ghazi: In fact ‘Jizia’ literally means
‘consideration’. It was a tax imposed on non-Muslims in
lieu of zakat and in lieu of their defense by the Muslim
state. It was a tax levied by the Muslim government on
Non-Muslims for providing them protection and shelter.
There have been examples in earliest Muslim history and
even later, when the respective Muslim governments failed
to provide a protection to a group of Non-Muslims and the
levy which was collected from them and the taxes, which
were received and recovered, were returned. This perhaps
is a unique example that a government after receiving the

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Qu e s ti o n o f Mi n o r i ti e s

tax, returned it because it felt that it could not provide that


defense and protection to the Non-Muslims for which the
tax was received. There is no fixed amount of ‘Jizia’: It
may be varied from time to time; it may be decreased; it
may be waived off; or it may be totally abolished. The
zakat, on the other hand, cannot be decreased, waived or
increased.

Further, the Muslim jurists are unanimous


on the point that if ‘Jizia’ is levied on Non-Muslims then it
can never be increased. The amount of ‘Jizia’ fixed once
will remain to be so and it remained like that in Islamic
history. In Syria, for example, there was a group of non-
Muslims upon whom ‘Jizia’ was levied during the days of
Second Caliph. The same continued to be collected from
them even at the beginning of the second century during the
days of the Second Umar i.e. Umar bin Abdul Aziz. During
his days it was reported to him that there were some non-
Muslims, who did not pay even that tax. When the tax
collector would reach them, they simply declare that they
had accepted Islam and the general principle is that if any
non-Muslim declares that he has become Muslim, Jizia and
even the arrears are abolished. So they get their taxes
quashed and also remained to be non-Muslims for practical
reasons. This went on for several successive years. It was
then reported to Umar the Second — the Umayyad Caliph
and was advised by the local governor to allow him not to
accept the plea of acceptance of Islam and to impose that
taxes in any case until such time when it is established on

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Is l a m , I n te r na ti o na l L a w a n d th e W o r l d T o d a y

the basis of evidence and other sources that those claiming


conversion had actually accepted Islam. The Caliph not
only did not allow that but he expressed his displeasure
over this proposal. He removed that Governor, who had
submitted that proposal and he wrote to him back a
sentence, which became proverbial. He had written in
Arabic:"ً#$"% &'()* +,‫ًا ه"د*ً" و‬1234 5($ 6‫ان ا‬, meaning that Allah has
sent Muhammad (PBUH) as a guide to humanity and not as
a tax collector.

Q: How would you define or explain the concept of


equality of mankind in Islam with reference to widespread
perception in non-Muslim societies that Muslims are a
violent nation?
Dr. Ghazi: To begin with, it should be noted that
Islam pre-supposes that dignity of human being has to be
acknowledged and respected by everybody. There can be
no concept of equality in real terms if there is no dignity of
human beings. Therefore, the first thing is the dignity of
man. Allah declares in verse 70 of Chapter 17 of Holy
Qur’an:
‫دم‬: ;<$ "<4ّ>‫ آ‬1@,‫و‬
(We have dignified the Children of Adam).

The Children of Adam have been dignified


without any reference to caste, creed, colour or any ethnic
differences. This principle has to be acknowledged as the
ultimate basis of equality. Then equality requires that
justice should be available to everybody. If there is no

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Qu e s ti o n o f Mi n o r i ti e s

justice in the society, then the claim of equality is


meaningless. Justice has to be guaranteed to each and every
individual without distinction or discrimination.

There have been examples in Muslim


history, where non-Muslim citizens were protected against
the Muslim rulers not by the secular people or by the
people who did not represent the Islamic tradition but by
the Jurists of Islam (the ‘Fuqaha). There was a Christian
tribe living in Syria, which was known as Banu Taghlib
and who used to create some problems for Muslim state.
The Abbassid ruler Mansoor decided to take punitive action
against them, not by violating but by re-interpreting the
agreement signed between them and the Second Caliph
Umar. It was the great jurist of that time, Imam Ozāi, a
contemporary of Imam Abu Hanifah, who came to their
rescue. He wrote a very strong letter to the Caliph and
prevented him from taking that action. Thus, Justice has to
be provided to each and every individual and the state has
to ensure provision and protection of rights to its citizens
without discrimination.

Three things have to be ensured in order to


uphold the equality among citizens i.e. (i) Dignity of
human being; (ii) justice to be provided to each and every
human being; and (iii) equality of opportunity. Equality of
opportunity if not available renders all claims of equality
meaningless. Unfortunately these three basic requirements
are not available to all individuals in many states and many

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communities around the globe. The Muslims in particular


feel, and rightly so in many cases, that they are deprived of
justice, of fair dealing, of equality of opportunities and of
even dignity in some cases. Discrimination means
deprivation, which causes frustration and frustration leads
to uncanny behaviours.

Terrorism cannot be eliminated without


addressing the causes of terrorism. Unless, injustice is
abandoned and rights of the Muslims are guaranteed,
frustration cannot be eradicated and violence cannot be
avoided. The steps being taken by the international
community in the name of fighting terrorism have shown
their shallowness and ineffectiveness. Arsenals can never
be sufficient to fight those who have been pushed into
hostilities by their frustration and anger against the system.
The only way to create a peaceful world free from terrorism
is to move towards a world free from frustration. A world
free from frustration shall only be achieved justice, fair
play and equality of opportunities for all are adopted as
inevitable principles of policy at domestic and international
levels in all fields of human activity. These injustices are
being committed against the Muslim world for decades and
what the world is witnessing today is the cumulative result
of discriminatory and exploitative measures that Muslims
have been facing since rise of Western powers in
eighteenth century. Former colonial powers may have
forgotten them but there are many Muslims who have not
forgotten. This has become a part of their psyche and their

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Qu e s ti o n o f Mi n o r i ti e s

collective consciousness and collective awareness. Their


conduct is not normal and in no case advisable, rather
expression of frustration through violence has to be
discouraged and discarded but the mindset of leading
nations of the world has not changed even after colonial era
and core issues still need to be resolved to bring about
required change.

Q: You have said that there is no discrimination in


Islam on the basis of class, caste, creed or culture and that
Islam endorses the concept of religious freedom, tolerance
and pluralism. I believe that Penal Law of Islam is not
applicable to non-Muslims. In view of these principles of
Islam, how can one justify the imposition of blasphemy law
on minorities living in some Islamic state such as Pakistan?
Dr. Ghazi: You have given me a set of questions,
which requires another presentation of one hour. First of all
I did not say that Penal Law of Islam is not totally
applicable to non-Muslims; that was not the context. What I
submitted was that Muslims living as minorities in non-
Muslim communities are not required to implement the
Penal Law of Islam. This is not their responsibility.

A similar, more valid question may however


be about applicability of Hudood laws to non-Muslims.
Hudood laws are of two kinds: those which seek to protect
the life and property of human beings and those which seek
to protect the particular moral fabric of a Muslim society.
The Hudood laws in the earlier category are applicable to

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Muslims and Non-Muslims both, because the life and


property of each and every citizen is to be protected
irrespective of religious affiliation. Qisas is applicable to
both. The cutting of hands of thief is applicable to both.
The punishment of Haraba (dacoit) is applicable to both.
This is one category, because everybody’s life and property
is to be protected. On that count there can be no
differentiation.

The second category of Hudood laws is the


one which seeks to protect the moral fabric of the Muslim
society. In that situation the law is not applicable to Non-
Muslims The punishment of Rajam and on drinking wine is
not applicable to non-Muslims. Similarly the punishment of
qazaf is not applicable to Non-Muslims It is clearly written
in the Hudood laws even today that these are applicable to
Muslims alone. If the non-Muslims demand that a similar
provision be made for them, they are at liberty to do so and
the government shall decide to accept or reject such
demand.

As far as the Blasphemy Law is concerned,


first of all it has to be noted that the Blasphemy Law as
enforced in Pakistan was not “invented” or originated by
any Muslim government in Pakistan. This Law was
included in the Indian Penal Code, which was enforced by
the British government in India in 1860, 150 years ago This
law is still applicable in India and Bangladesh as well. It
was contained in Section 295 of Indian Penal Code.

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Qu e s ti o n o f Mi n o r i ti e s

Originally section 295 prohibited the act of insulting the


religion or religious belief of any class of citizens and
prescribed a punishment of imprisonment which could
extend to two years. Later during the same British rule,
some incidents took place, where some people had insulted
the Prophet of Islam and this had led to a controversy at a
popular level between the Muslims and non-Muslims.
British rulers felt that it was perhaps due to inadequacy of
the punishment. The punishment was then raised in 1927
and soon after the incident of Ghazi Ilmuddin. The
significance of Ghazi Ilmuddin case can be gauged from
the fact that this case was intervened by Allama Iqbal and
Quaid-i-Azam had defended Ghazi Ilmuddin in the High
Court.

It was later felt that even ten years


punishment was not sufficient and should be increased as in
1960 there were several judgments in the Superior Courts
of West Pakistan, where certain cases of blasphemy were
discussed and observations were made by the judges of the
Superior Courts, whereby the government was advised to
review blasphemy laws.

Afterwards when the law was challenged by


a lawyer from Lahore, seeking the Federal Shariat Court
verdict about the adequacy of the law and the Islamicity of
the provision, the Federal Shariat Court unanimously
decided that this punishment is not sufficient and it should

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be capital punishment.20 There is, however, no question of


Muslim or non-Muslim. Any person, who insults the
Prophet of Islam (PBUH) or defiles his personality, is to be
punished with death. The government appealed in the
Shariat Appellate Bench of the Supreme Court of Pakistan
against that order. During the pendency of the appeal, the
Senate of Pakistan unanimously adopted a resolution
whereby the government of Pakistan was demanded to
withdraw the appeal and to provide only one punishment
i.e. death punishment for the offence. In pursuance to this
resolution and the public opinion in the country, the
government of Pakistan withdrew the appeal. The judgment
of the Federal Shariat Court became effective and death
punishment remains the only law now. The law is equally
applicable to everybody whether a Muslim or a Non-
Muslim.

I wonder when I hear that this law violates


the rights of the non-Muslims. One wonders, under what
principle of law or logic, a non-Muslim should have the
authority and freedom to insult the Prophet of Islam
(PBUH) and have liberty to hurt millions of Muslims
around the world.

Another aspect of the issue is raised with


reference to procedural details of the blasphemy case. It is
alleged that the law is being misused against innocent and
particularly in opposition to minorities. Such issues may be

20
PLD FSC, 1991, Vol. XLIII, p. 10.

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Qu e s ti o n o f Mi n o r i ti e s

resolved by amending the procedure or by laying down


guarantees against the misuse of the law. People, who are
responsible for baseless complaints, should be punished.

The mere fact that the law has been misused


should not be a sufficient justification to demand a total
repeal of the law. There are more than 500 sections in
Pakistan Penal Code and almost each of them has been
misused for at least dozens of times, if not hundreds. Does
it mean that whole of Pakistan Penal Code should be
repealed because it is misused? If a law is misused, it has to
be procedurally improved.

The problem had been deliberated upon in


the Council of Islamic Ideology at length. The Council had
submitted to the government, upon my suggestion, that
there could be three ways to avoid misuse of the law and
that government could adopt any or all of them: (i) if
someone is found guilty of complaining under this law with
mala fide intention against a person who is found innocent
by the court, then the same punishment should be given to
that person as is prescribed for the offence; (ii) if the
incident reported involves a question whether or not insult
was committed, case may be referred to the Council of
Islamic ideology to see and decide whether the commission
of crime has taken place or not, or it may be referred to the
Federal Shariat Court, or it may be submitted to the High
Court because of a higher level of understanding and an
impartiality; (iii) Role of police may be minimized and the

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complaint may be lodged directly in the Session Court.


There could be other ways of avoiding misuses of that law,
as well.

It may also be recalled here that the law is


not specific to Muslims. It provides that insult of any
Prophet or any religious personality including Jesus Christ,
Prophet Moses and other revered figures as a crime to be
punished.

Q: Few years back the Association of Asian


Parliamentarians for Peace (AAPP) had proposed to the
United Nations the creation of an interfaith council and the
proposal has been discussed at length in World Peace
Summit held in 2009 at UN. The main thrust or objective
of this proposal is to provide a global religious coordination
and global cooperation between civilizations for the sake of
international peace and harmony. Do you feel, this may be
a useful idea for furthering common objectives of
humanity?
Dr. Ghazi: I personally support the idea; and I
support it in a different context as well. President of
Kazakhstan had convened a convention in 2003, which he
called ‘A Convention of Religions. Representatives of
different religious denominations were invited from
different parts of the world and the host President wanted to
establish a permanent platform or a permanent secretariat
of religions.

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Qu e s ti o n o f Mi n o r i ti e s

He invited the leaders of the delegations to a


preliminary discussion on the eve of the Convention. I had
then submitted that the proposal should be supported on at
least two counts; firstly because there are various political
and military problems faced by different communities
around the globe, which are basically product of religious,
cultural or social issues. United Nations is not designed to
take of these aspects of problems and its mechanism
suggests merely political or military solutions to the
problem. It may at times fail to address the core issue and
the problem between communities and even between states
may not be resolved but only subsided in consequence of
UN efforts. There may, for example, be instances where a
religious prejudice is deep rooted in the psyche of two
communities who are not ready to come to terms with each
other. This prejudice might give rise to a political problem
or to a military debacle, which may lead the entire region
into difficulties. United Nations would most probably look
into political and military aspects of the problem but unless
that delicate religious issue is addressed, a sustainable
solution may not be devised for the political and military
problems on the surface. It shall, therefore, be a good idea
to establish a platform where the religious issues and
misunderstandings are discussed and people from different
faiths are brought closer to each other in order to support
the common human cause and to advance the common
objectives of humanity as a whole.

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Secondly, the proposal is important also


because the followers of every faith and more particularly
Muslims feel that the religion they follow may provide best
of the solutions to most of the problems being faced by
humanity in different realms of life. Under this belief they
have a temptation to explain their point of view to others. If
a common platform is available which serves that purpose
and each religion’s point of view is understood correctly
and equally by other religions, it will create a better
atmosphere for understanding and shall contribute to
international peace and harmony. It shall definitely offer
better options for solution of a number of international
issues of concern.

I give you my own example. I have been


studying different books about Christianity for years and
decades but despite that immense interest, I must admit that
I had a great misconception about Christianity: I always
thought the Bible, as the Christians have it today (the Four
Gospels), is something similar to our Qur’an and always in
my discussions, presentations and discourses, I had a
tendency of comparing between the Qur’an and the Four
Gospels. I then had an opportunity to spend sometime in
Birmingham where there is Centre for Christian and
Muslim understanding. During that stay for almost two
weeks in that college, this misunderstanding was removed.
For the first time I came to realize that Christians do not
interpret Evangels the way the Muslim interpret the Qur’an;

136
Qu e s ti o n o f Mi n o r i ti e s

rather it is similar to our Sirat-un-Nabi21 and are merely


considered to be the sources of biography of the Prophet.
This created a different perspective of the study of the
Evangels and since then I studied and referred to them in
the same context. So, if there is a platform that provides
better and direct understanding of other religions and offers
opportunities for exchange of knowledge and information,
it will ease the tension between nations and communities.

Q: There are sizable populations of Muslim


minorities in different parts of the world and in certain
areas they may be living in clusters. Normally they are seen
as immigrants in the host population but Muslim ethnic
population has been granted special status of autonomous
region in China. Considering the social and cultural aspects
as well as security concerns as have been raised lately in
China regarding Xinjiang, which of the two models do you
consider more advisable in order to ensure rights of
minorities and at the same time to protect national peace
and unity?
Dr. Ghazi: The question of Muslim minority in
China is a very complex one. There are, as I understand,
two kinds of Muslims in China: there are Muslims living in
the mainland, which are a tiny minority in any case. The
second category of Muslims is of those who have been in
majority in certain areas, for example in Xinjiang.

21
Narrations about Prophet’s life.

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Is l a m , I n te r na ti o na l L a w a n d th e W o r l d T o d a y

I have full confidence in the wisdom of


Chinese leadership that it will come forward and
distinguish between the situations and demands of these
two categories of Muslims living in two different
situations. I think whatever policies the Chinese
government might consider appropriate for the Muslims
living in various parts of mainland China may not be fully
applicable to those Muslims living as majority in certain
regions. The requirements and aspirations of a Muslim
living within a majority of Muslims around him may
definitely be different from another Muslim living among
people who do not share the same faith. Those living as a
very small minority in a non-Muslim majority may be
satisfied with few administrative arrangements but those
living in their own region and constituting most of the
population, may aspire for a greater degree of freedom and
this has to be decided in the light of Muslim practices in the
past. If the Chinese government examines the requirement
of a Muslim community as conceived by them in the light
of the Qur’an and Chinese leadership correctly responds to
these requirements within its national framework then I am
sure that Muslim community shall work even harder for the
progress and development of China as their native
homeland. But if all Muslims are treated alike, I am afraid
it may not be sufficient to satisfy legitimate needs of
Muslim population. If the Chinese leadership feels in the
process that the Muslims living in the neighbouring areas
could help it in formulating a policy towards Chinese
Muslim majority areas through their advice or consultation,

138
Qu e s ti o n o f Mi n o r i ti e s

I think neighbouring Muslims too would be glad to extend


any kind of support and help.

Q: You have stressed provision of equal


opportunities to all as a means to establishing a just society.
How would you comment when a section of Muslim
population i.e. Qadianis, are declared as non-Muslims by
the state and are thus denied right to equal opportunities.

Secondly, you know that in certain Muslim


countries like Iran and Saudi Arabia even non-Muslims
females are required to cover their heads but at the same
time Muslims condemn non-Muslim states that require
compulsory removal of Hijāb. How would you comment
upon insistence in imposition of certain personal laws of
Muslim countries upon foreign visitors and resistance
towards application of laws of non-Muslim nations upon
Muslims there?
Dr. Ghazi: I would not agree with the wording or
phrasing of the first part of the question. In case of
Qadianis in Pakistan, it is not that a group of Muslims is
declared to be non-Muslims. In fact a group of non-
Muslims who insisted to be treated as Muslims were
declared to be non-Muslims. To say it correctly, it were the
Qadianis who declared the Muslims to be non-Muslims.
And response of Muslim community is just a natural
corollary of their own statement. There may be divergence
of opinions upon other details but one thing is very obvious
that they are followers of a different religion and the same
is the nutshell of the constitutional decision, which was
made unanimously by the National Assembly of Pakistan.

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No member of the Assembly had voted against or even


abstained from the proposal for declaring Qadianis non-
Muslims. All members were present and each of them had
voted in support of the constitutional amendment. Such a
decision asks for more respect by the people and the classes
that otherwise claim on believing in democracy and
supremacy of Parliament.

With reference to Personal law, it should be


clarified that Muslim personal law is never forcibly applied
over any non-Muslim living in or coming to Pakistan. Non-
Muslims in Pakistan have their own personal laws and laws
provide full freedom and protection in this respect. Courts
have been deciding their cases in accordance with their
own personal law and there has never been a major
problem in this regard.

The question of Hijāb, however, does not


relate to personal law. It relates to overall fabric of the
society. If the society is based on the moral principles and
the moral values are considered supreme in their society
then it shall definitely be justified in safeguarding and
protecting them. It is as justified as a society based on
economic interest shall be vindicated for its measures and
efforts to safeguard its economic interest. For a Muslim
society it is moral principle and spiritual consideration that
binds together the individuals from different ethnic and
cultural backgrounds. Therefore, the question of
relationship between the sexes, the question of appearance,
the question of dress and other things in a Muslim’s
perspective have to be seen in context of moral
considerations of Islam. If a Muslim country like Saudi
Arabia or Iran requires the visiting ladies to attire
themselves properly, I do not think this will be something
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Qu e s ti o n o f Mi n o r i ti e s

contrary to human rights or equality. But in a society where


individual liberties are claimed to be available to the extent
that a person may fully expose himself or herself even in
front of members of public, why should a lady be denied
the right to wear a dress of her choice only because she is
Muslim? If a Muslim lady is denied the right of covering
her head in public institutions funded by the public, which
include the Muslim taxpayers, it gives rise to complications
within the system. West and more particularly France
claims to have built its society upon three fundamental
principles, namely Liberté, égalité and fraternité. Questions
upon these norms shall definitely rise if principles of
liberty, equality and fraternity are compromised with
respect to a specific community in Europe. If these avowed
principles still are the cornerstones of French system and
the civilized world as a whole then same should be
extended to the Muslims as well.

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References

Abu Ubaid. n.d. Kitab al-Amwal, ed. Muhammad


Hamid al-Fiqqi. Cairo.

Ghazi, Mahmood Ahmad. 2007. Khutbat-i-


Bahawalpur: Islam Ka Qanun Bain al-Mamalik.
Islamabad.

Hamidullah, Muhammad. 1987. The Muslim


Conduct of the State. Lahore.

———. 1986. The First Written Constitution in the


World. Lahore.
Ibn al-Humam, Kamal. N.d. Fath al-Qadir. Vol. 5.
Quetta.

Yusufi, Khurshid Ahmad Khan. Speeches,


Statements & Messages of the Quaid-e-Azam.Vol. IV.
Lahore, Bazm-i-Iqbal.

Ahmad, Khurshid and Bukhari, Zahid 2008. Islam


in the West, Policy Perspectives, Vol. 5, No. 1. Islamabad:
Institute of Policy Studies.

Marghinani, al-. Al-Hidayah. Kitab as-Siyar,


Chapter on Kaifiyyat al-Qital.

Sarakhsi, Abu Bakr al-. 1957. Sharh al-Siyar al-


Kabir. Vol. 1. Cairo.

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Shaw, Malcolm N. 1997. International Law,


Cambridge.

Zailiee’ al-Muhalli, Muhammad. 1938. Nasb al-Rayah li


Ahadith al-Hidayah. Vol.IV. Surat, India: Majlis al-Ilmi

143
War and Concept of Jihad in Islam

I nternational law, as developed by different civilizations


at different times, has aimed at one basic objective,
namely, to prevent war and, where war becomes inevitable,
to control and minimize the use of force to a bare
minimum. This being the objective, the only true criterion
for measuring the success or failure of an international law
and, particularly, a law of war, is whether or not it has
prevented, contained or minimized the use of force. The
extent of success of a law of war should be decided in the
light of this basic criterion. Mere expressions of pious
wishes and impressive ideals, and eloquent declarations and
announcements should not be given much weight in
considering whether a law has succeeded or failed.

In the light of the relevant documents of the


United Nations and other international bodies, particularly
those dealing with the foundations of international
humanitarian law, the purpose of international law is:1
1
The most pertinent UN document is the Charter of the United Nations
Organization, 1945, Article 2, Paragraph 4 of which lays down the
limits for the use of force by members states and, thus, defines the
scope of aggression. However, a serious academic debate has been
under way regarding whether Article 2(4) is still effective in realizing
its objectives. In the late 1960s and early 1970s, several scholars
discussed what they termed as the “death” or the murder of this
Article. For a valuable study and analysis of relevant documents of
other international bodies, see Sassoli and Bouvier, 1999.

[145]
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i) to prevent war;
ii) to ensure that international or inter-state
disputes are resolved peacefully;
iii) if war becomes inevitable, to contain it to a
bare minimum;
iv) to minimize the effects of war, particularly
for those who are not belligerent and are not
taking active part in any belligerent activity;
and, finally,
v) to provide protection to those accidentally
affected by war.2

Despite the great efforts made by lawyers


and jurists in different traditions and in different eras of
human history, international law has remained unsuccessful
in controlling the powerful and protecting the weak. There
are very few examples in human history when a powerful
country, a powerful monarch or a powerful army bent upon
waging war could be either prevented from war or cajoled
into avoiding it merely with reference to legal principles
and moral considerations. So far, this remains an ideal yet
to be realized by human beings. However, despite the
general consensus in human societies that war should be
avoided as far as possible, there has always been a
consensus that war is inevitable in certain conditions where
the use of force should be allowed. But the most difficult
question remains: who decides that a particular war or use
of force at a certain moment is permissible and justified?

2
Dixon, 2001, p. 293.

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W a r a nd Co n ce p t o f J i h a d i n Is l a m

In the past, almost up to the beginning of the


20th century, many Western writers relied on the concept
of what they called a “just war.”3 International legal
discourses concentrated on developing a viable and precise
concept of a just war. A number of principles were
advanced to identify a just war and to distinguish it from an
unjust war; however, in practical terms, it were always the
powerful who decided that their war was a just war. The
wars fought by the weak or by the defeated were always
considered by the victorious and the powerful to be unjust
wars. While victory has always had many claimants and
inheritors, defeat has had none. Defeat was always left
without anybody to claim it. This was because a ‘just’ war
was always fought by the powerful.

Who, then, can prevent the actual use of


force by the powerful? Can a moral motivation or a
religious orientation prevent war? Or could a determination
on the part of those on the sidelines, outside the arena of
war, effectively reduce the use of force? These questions
are relevant to discussions on the law of war and the
Islamic concept of jihad.

Before the Second World War, the law of


war was extremely ineffective and weak for the purposes of
controlling the powerful and minimizing or containing war.
It consisted of certain treaties and agreements that had been

3
The question of what constitutes a just war and the distinction
between a just and unjust war have been debated in legal circles for
centuries. Discussions on jus and bellum and jus in bello have engaged
the attention of writers in the East as well as the West since time
immemorial. St. Augustine, St. Thomas Aquinas and Hugo Grotius
tried to justify the use of force under Christian theology as well as
under natural law theory. See Elshtain (ed.), 1992.

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entered into by different countries. In addition to these,


there were customary laws based on customary principles
and conventions that were adhered to, at least theoretically,
by scholars and jurists.

It was mostly after 1945 that greater details


for the law of war were advanced that were more precise
and relevant to world realities. The Charter of the United
Nations gave new dimensions to the law of war. For the
first time in human history, in the late 1940s, a consensus
was achieved, at least theoretically, on a set of basic
concepts and principles on the basis of which the law of
war was to be evolved and the mechanism to prevent the
use of force was to be developed. As submitted, the earlier
jurists had mainly concentrated on the concept of just war.
They had engaged themselves for the most part in
developing principles and criteria for categorizing wars as
just or unjust wars. St. Augustine — a great name in
Christian history and theology, Hugo Grotius, who is
considered to be the father of international law, at least in
the West, and many other scholars and writers were busy,
up to the beginning of the 20th century, in unending
discussions on just and unjust war. The general tendency of
these writers was to develop a legal mechanism whereby all
wars, excepting the just war, could be prohibited and
considered illegal. But, in practice, it was the logic of force
that prevailed rather than the logic of argument and
wisdom.

Contemporary international law, the core of


which is embodied in the Charter of the United Nations and
other international instruments and conventions, provides
comparatively more precise, accurate and down-to-earth
concepts to justify the use of force. Contemporary writings
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have dispensed with the discussion on just or unjust wars;


such justifications are no longer referred to. However, in
the last 50 years or so, following the establishment of the
United Nations, scholars have written about the grounds
and the situations that justify the use of force by a state, and
where such use of force may be justified in international
law.4

The first ground is self-defense, which has


been a subject of long discussions both in academic circles
and in debates and deliberations in the UN General
Assembly and Security Council. The concept of self-
defense, its meaning, and the extent of its application have
also been discussed extensively and elaborated in several
important judgments of the International Court of Justice.
The idea of self-defense has been extended to include areas
where an immediate and imminent threat calling for self-
defense is not involved. This extended meaning has given
rise to the idea of preemptive action. Subsequently, the idea
of action taken by a possible target against a possible
aggressor has also been included in the larger definition of
self-defense.

The second case where use of force is


regarded as justified is where, in case of a civil war or a
civil commotion or strife, a country invites a neighboring
country to intervene and put the situation right by using
force against those perpetrating civil war without any
justification. Such an intervention has also been considered
in many writings on international law to be a just cause for
the use of force.

4
See Wilson, 1988.

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The third ground for use of force is reprisal,


or the primitive principle of ‘tit for tat’, meaning a punitive
action in response to a similar action.

The fourth ground is protection of nationals


and the property of a country abroad. If the nationals or
properties of a country have been attacked in another
country, it would be considered justified for a country to
use force in order to save and defend its nationals and
property.

Apart from these ‘valid’ and recognized


grounds, there is a ground, misused in the estimation of the
defeated and used for positive purposes in the opinion of
the powerful, known as “humanitarian intervention.”5 A
humanitarian intervention may be used to extend genuine
support and help to a persecuted minority or a persecuted
people. However, this type of intervention can also easily
be exploited and misused to create a basis for intervening in
the internal affairs of other countries and people with
ulterior and unorthodox motives. The question of national
liberation movements is closely related to the question of
humanitarian intervention, and such movements have
recently found mention in many books on international
law.6 National liberation movements emerged in the middle
of the 20th century and quickly became popular in many
African and Asian countries. The colonizers, in almost all

5
Humanitarian intervention is a comparatively recent term, coined to
differentiate this type of action from other forms of intervention, such
an internal or external interventions and punitive interventions
prohibited or discouraged by international law. The only permissible
form of intervention was contemplated in Article 2(4) of the UN
Charter. See, for a good discussion of humanitarian intervention,
Brownlie, 1974.
6
For a brief treatment see, Levi, 1991, pp. 69-70.

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these cases, were Western and European powers, and those


running and leading the national liberation movements
mostly belonged to African and Asian countries. The rapid
and successive emergence of liberation movements in these
countries gave rise to the question whether the use of force
against or by these movements is justified in international
law, and, if so, to what extent. What should be the grounds
for justification on both sides? If the use of force against
the liberation movement is justified, then the activities of
the liberation movement would have to be acknowledged to
be unjustified. On the other hand, if the national liberation
movements are justified in using force against the
colonizers, then the use of force by the colonizer would not,
under any pretext, be justified. This question is thus a two-
edged sword that has to be tackled carefully.

During the last four decades, the idea of hot


pursuit has also found its way into textbooks on
international law as a valid or possible ground for the use
of force against a foreign country. Hot pursuits are, in
many cases, offshoots of action against national liberation
movements.

These grounds have been elaborately


discussed by the International Court of Justice in its
landmark judgment, given in 1986, in Nicaragua vs. United
States. Some of the basic concepts have been dilated upon
in this judgment. Apart from basic discussions, the obiter
dicta in the judgment are very significant for understanding
the related legal issues.7

7
See, American Society of International Law, 1986, pp. 1023-1091.

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Nature of Relationship between Muslim and non-


Muslim States
Before discussing the Islamic concept of war with
reference to jihad, it is important to ask one basic question:
What is the original and natural relationship between two
countries, particularly between one Muslim country and the
adjoining or neighboring non-Muslim country?

This question is important for two reasons.


Firstly, some prominent thinkers of human history have
ruled that it is not peace but war that is the original nature
of the relationship between two countries. Those who
propound this theory include men like Plato. Some Western
scholars of Islam, including a Christian scholar from Iraq
Majid Khadduri (1909-2007) and a Jewish scholar from the
United States Bernard Lewis (b. 1916), have attributed this
view to some Muslim jurists as well, including Imam Abu
Hanifah. According to Khudduri’s statement in his book
“War and Peace in the Law of Islam,”8 Imam Abu Hanifah
believed that the nature of the relationship between the
Muslims and non-Muslims is war. The argument advanced
by Majid Khadduri is interesting. He says, since Imam Abu
Hanifah divided the world at large into two major
territories — the territory of Islam, Dar al-Islam, and the
territory of war, or Dar al-Harb, he must have considered
that the natural relationship with the non-Muslim world is
nothing but harb or war.9 But in reaching this conclusion,
Khadduri has had to ignore the exact significance of this
division, and to conveniently brush aside the elaborations

8
Khadduri, 1960.
9
For a brief note on the concept of “Dār,” see Thanwi, 1996, pp. 778-
779. For details, see the work cited below.

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offered by other Hanafi jurists on the position of Hanafi


jurists in particular and other Muslim jurists in general.

The terms Dar al-Islam and Dar al-Harb are


neither mentioned in the Qur’an nor in the traditions of the
Prophet (peace be upon him [PBUH]). Thus, this
terminology and the resultant classifications do not have
any normative or permanent value. These are terms that
have been used by different jurists to discuss the situation
obtaining in their respective times and climes. During the
days of Imam Abu Hanifah, the two contemporary Muslim
states — the Abbassids in the East and the Umayyads in the
West — were either practically at war with their
neighboring powers or there was a kind of armistice
between them. Therefore, the Muslims of the second
century of the Hijrah must have found that their relations
with non-Muslim powers were characterized either by
actual war or latent hostility during the intervening periods
of armistice. This is why Imam Abu Hanifah refers only to
these two categories of relations.

The second reason why it is important to ask


about the natural relationship between a Muslim country
and its non-Muslim neighbor as envisaged in Islamic law
and jurisprudence is that it also escaped the attention of
Western writers that the majority of Muslim jurists,
including the Hanafis, say that if a Muslim country enters
into a relationship of peace with another country, through
an agreement of friendship or cooperation or any kind of
mutual understanding that results in permanent or
temporary removal of hostilities, it becomes a Dar al-Ahad
— Territory of Pledge. The Territory of Pledge or Territory
of Treaty has the same legal status as the Territory of Islam,

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wherein people are guaranteed peace and security on


permanent terms.10 This point will be elaborated later.

According to the Qur’an, the original


relations between a Muslim country and its neighbors are
characterized not only by peaceful co-existence but also by
justice and fair play. The call the Qur’an makes is: “ ‫ا‬KLMNO
‫اء‬KW ‫ۃ‬PQ‫ آ‬SL‫ ”إ‬meaning “Let us come to agree to a common
ground.”11 The achievement and maintenance of this
common ground is the permanent and original nature of the
relationship between Muslims and non-Muslims. The
Qur’an says, “Allah invites you to an abode of peace.”12
The establishment of the abode of peace is the primary and
the ultimate goal of the Islamic Shari‘ah. Unless this
permanent relationship is established, jihad cannot be
realized.

Concept of Jihad
Jihad is basically a struggle and endeavor to
achieve an objective. Literally, jihad means an ongoing
struggle and a continuing endeavor. Those who are familiar
with Arabic would be aware that words in the language
have different scales: words in the same scale have a
continuity in their meaning but each has a different nuance.
Etymologically, the scale of the term jihad includes terms
like qital (fighting), nizal (duel), nisab (fixed standard), etc.
There are two similar terms that are relevant to the concept
of jihad and have the same root: one is mujāhadah, which
means a mutual struggle, and the other is the derivative,
ijtihād, which means concentrated struggle. If a struggle is

10
Zaidan, 1963, pp. 18.
11
Al-Qur’an, Al Imran 3: 64.
12
Al-Qur’an, Yunus 10: 25.

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academic, it is ijtihād;13 if it is spiritual, it is mujāhadah;14


and if it is physical, it is jihad.

Jihad cannot be understood without


reference to mujāhadah and ijtihād. At the same time, the
basic philosophy of jihad has an integral and inseparable
relationship with the universality of Islam. This relationship
has been acknowledged by the authors of the Encyclopedia
of Islam as well, who say that the “Universality of Islam is
an integral feature of its teachings and that is fundamental
and central to the philosophy of jihad. The centrality of the
universality of Islam to the idea of jihad in particular and to
the teachings of Islam in general is very significant.”15 The
essential relationship between jihad and the universality of
Islamic teachings is highlighted in the Qur’an in the chapter
Al-Hajj. This chapter, which was revealed in Madinah,
included for the first time a verse mentioning defensive war
and the use of force. It reads: “Permission is given to those
who have been wronged. Allah is certainly capable of
helping them. They are the people who have been driven
out of their homes without any rightful cause.”16 Through
this verse, the Muslims of Madinah were allowed to defend
themselves and to fight those who had driven them out and
wronged them. This verse is known in Islamic terminology
as the “Verse of Permission” — Ayatul Idhn.

Some commentators of the Qur’an have


pondered the significance of the placement of this verse in

13
A comprehensive discussion on ijtihād is found in Mawsu’at al-Fiqh
al-Islami, Cairo, pp. 5-12.
14
Raghib al-Isfahani has defined this term as “struggling against one’s
self”; see Al-Mufradat fi Gharib Al-Qur’an, Karachi, in loco.
15
Encyclopedia of Islam, p. 538.
16
Al-Qur’an, 22: 39-40.

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a chapter dealing extensively with the Hajj, the Islamic


pilgrimage that is performed annually by Muslims from
different parts of the world. During the Hajj, the Hujjaj, or
pilgrims, assemble in Makkah and in other places in the
city’s vicinity.17 This huge multiracial and international
assembly is a demonstration of the universality of Islam
and the solidarity of the Muslims. The chapter Al-Hajj
opens with the Qur’anic portrayal of the Day of Judgment
when all human beings will be presented before the
Creator. This is followed by a discussion about the Hajj
with intermittent mention of permission for jihad. The
chapter ends with a brief reference to jihad, to the Prophet
Ibrahim and to the universal role of Muslims. There is a
subtle relationship between all these themes; each is related
to the universality of Islam and humankind. Thus, the
assemblage of humanity on the Day of Judgment
symbolizes the ultimate universality of the Muslim ummah
as well as the ultimate unity of human beings. The Hajj
symbolizes and demonstrates, on a lesser scale, the
universality and pan-humanism of Islam.18 Likewise, jihad
represents the unity of the Muslim ummah and universality
of its message.

The purpose of jihad is not to convert people


to Islam, as is more than evident from the Qur’anic verse:
“There is no compulsion in religion.”19 Jihad is, rather,
meant to bring about a holistic, harmonious and integrated

17
According to a number of commentators of the Qur’an, each surah
or chapter of the Qur’an has a major theme that runs through its
verses and integrates all its contents in a certain order. The placement
of the verses related to the Day of Resurrection, the Hajj and jihad in
one surah should, therefore, be based on a logical order.
18
For another interpretation of this placement, see Islahi, 1997, pp.
204-206.
19
Al-Qur’an, 2:256.

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transformation of human individuals and society. This total


and all-round transformation of individuals and society is
the ultimate objective, which cannot be achieved within a
short period of time. It cannot be achieved in a day or two,
or even in a decade or two. It is an ongoing and life-long
mission of each and every Muslim. This is why whenever
the Qur’an refers to jihad, it does not refer to armies, rulers
or governments. It refers to individuals.

There are several verses in the Qur’an that


begin with the words “Those who believe in the Almighty
and undertake the jihad.”20 This diction indicates that, as
soon as they enter into the fold of Islam and accept the
universality of the message contained in its Divine Book,
Muslims are under an obligation to become participants in
the ongoing collective and all-round struggle for the
betterment of human society.21 The struggle for betterment
of human society is not confined to physical improvement,
material well-being or to outer beautification of human life;
although Islam does not teach asceticism, and recognizes
the role of material well-being in a balanced life, such well-
being is, at best, considered a means to an end and not the
purpose of human life. The jihad, or struggle for reform
and improvement, therefore starts within the human soul
and body. This is because Islam does not subscribe to the
idea of dividing the human being into contending or
mutually exclusive tendencies. The human being is a very
complex creation of the Almighty, as complex as the entire
universe. The Qur’an likens the creation of one human
individual to that of the entire universe and the cosmos. A

20
See, for example, Al-Qur’an, 8: 72, 74, 75; 9: 20, 88 and 49: 15.
21
For different aspects of this all-round struggle, see the chapters on
jihad in the major hadith collections. For example, Bukhari, Kitab al-
Jihad wa’l-Siyar, particularly, Chapters 1, 2, 3, 37, 38 and 62.

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human being is as unlimited in his potential and capabilities


as the entire universe. An ongoing struggle is required to
unfold this capability, translate it into action, and ensure
that this potential is translated into action at every stage.
This ongoing struggle is known as jihad. It starts from
within. If the heart is purified, then the entire life is
purified. The Prophet of Islam (PBUH) has said, “Verily
there is a morsel (of flesh) in everybody’s trunk; as long as
it is purified, the entire body is purified. As soon as it is
polluted, the entire body is polluted: this morsel is the
heart.”22 As such, the purification of the soul and heart
becomes the first step in this struggle. If a person is not
motivated from within, he cannot be motivated without.
Therefore, this comes as the first stage of jihad, which is
known as jihad bin nafs or struggle with the self.

In some Islamic, particularly Sufi, literature,


jihad bin nafs is sometimes called al-jihad al-akbar23 — the
major jihad. The reason is not that this type of jihad is of
higher value, or bigger in significance or resources than
other types of jihad, but because it is a continual struggle
that spans the entire life of an individual. It is expected with
this type of jihad that there should not be a single moment
when an individual is not engaged in some inner exercise to
prepare himself for the ultimate success on the Day of
Judgment when he will be accountable only to the Creator.
In this regard, the Prophet of Islam (PBUH) has prescribed
the ideal attitude in the following terms: “You should
worship Allah the Almighty and abide by His Commands
with such a dedication as if you are seeing Him, because if

22
Bukhari, Kitab al Iman, Chapters no. 39, Hadith no. 52.
23
This is based on a Hadith, considered weak, cited by Baihaqi, Kitab
al-Zuhd al-Kabir, Hadith no. 384.

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you are not seeing Him, He is seeing you.”24 This hadith


simply means that a Muslim must have a living
consciousness and a constant awareness of always being in
the Divine presence. Everybody must, therefore, remember
that he is answerable for his actions and roles on the Day of
Judgment.

If this level of awareness is achieved, the


first stage of jihad stands realized. This is necessary
because there are verses in the Qur’an, as well as ahadith of
the Prophet (PBUH), in which it has repeatedly been stressed
that jihad will continue until the Day of Judgment.25 It will
continue only in this sense; that each and every Muslim is
under an obligation to constantly purify himself and to
continuously fight against the forces of evil. This struggle
is necessary for ultimate success in this world and in the
Hereafter.

Shah Wali Allah of Delhi, who lived in 18th


century India and is considered one of the greatest
exponents of Muslim philosophy and theology,26 explains
jihad in terms of the universal Divine Message and in the
context of the eternality of that Divine Message. In his
view, the perfection and the completion of the Divine
Message requires that it should be a lasting, viable and
practical message. A continued endeavor is needed to make
this message viable, practical and lasting, and to support
and sustain its permanence and perfection. This need is
fulfilled by jihad.27

24
Muslim, al Sahih, Kitab al-Iman, Bab biyan al-Iman, Hadith no.8.
25
Tabarani, al-Mu’jam al-Ausat, vol V, Dar al-Haramain, Cairo, 1995,
Hadith no. 4875, p. 96.
26
For an account of his life and work, see Ghazi, 2002.
27
Wali Allah, 2004, p. 298

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Jihad requires for its success not only a long


struggle, but also a relentless spirit of perseverance or sabr
— which not only means perseverance but also dedicated
commitment to the cause. Unless there is perseverance and
constant endeavor, without fear and without interruption,
this exercise cannot continue. This is why, in several verses
of the Qur’an, jihad and sabr have been bracketed
together.28 Likewise, most of the ahadith on sabr have been
included by the hadith compilers in the chapter on jihad in
their compilations.29 This juxtaposition of verses and
ahadith on sabr and jihad indicates that sabr, which is
primarily a spiritual and moral quality, has a relevance with
the outer struggle as well. Without the inner qualities, the
outer struggle is futile and useless.

After the stage of spiritual jihad, there is


another stage, namely, jihad bil Qur’an — struggle with
the Qur’an. This form or phase of jihad has been mentioned
in the Qur’an itself, significantly in a chapter revealed in
Makkah: "‫ا‬ef[‫دا آ‬M]^ _` a‫ه‬c‫ه‬M^‫[“ "و‬O Prophet] Undertake
against them [the Unbelievers] an ongoing and major
struggle with it (i.e. Qur’an).”30 In other words, the
propagation of the message of the Qur’an also requires that
struggle continue until each and every corner of the globe is
reached and everybody becomes aware of the Qur’anic
message. This effort has never been geared to forcing
people to accept Islam. Jihad bil Qur’an has the simple
purpose of conveying the divine message to the people, in

28
See, for example, Al-Qur’an, 16: 110; 2: 249; 3: 120, 125, 142,
200; 8:46 and 47: 31.
29
See chapters on jihad in Bukhari, Muslim, Abu Daud, etc., for
example, Bukhari, Kitab al-Jihad, Chapter 32 and Abu Daud, Kitab al-
Jihad, p. 49.
30
Al-Qur’an, 25: 52.

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the words of the Qur’an, “So that those who want to live,
they should live on the basis of an argument and those who
want to perish, they should perish with an argument.”31 It is
always for individuals to decide for themselves whether to
accept this message or not; they themselves shall have the
last word. Whether they decide to live by the Divine
Wisdom contained in the Qur’an or not, is their decision.

Jihad bil Qur’an is closely related to jihad


bil lisan, literally, jihad with the tongue, which means to
use speech, communication power or any skill enabling a
person to communicate with others to convey to them the
message of the Qur’an. This is a form of continued
dialogue that should be fully used in order to share Divine
Wisdom with others. Jihad bil qalam, or jihad with the pen,
is another form of jihad bil lisan.

Jihad bil maal, or endeavor with wealth, has


been mentioned repeatedly in the Qur’an, for example:
“The (good or ideal) believers are those, who…conduct
jihad with their wealth and with their persons…”32

The above mentioned verses indicate the


general or comprehensive nature of jihad.

Finally, the Qur’an refers to the last phase of


jihad — jihad bil saif (jihad with the sword), also called
qital or open or external jihad. This final stage of jihad is
permitted as a last resort. Again, this type of jihad has
different levels. A commentator of the Qur’an has
classified the external jihad in following three categories:

31
Al-Qur’an, 8: 42.
32
For example, Al-Qur’an, 8: 72 and 9: 20.

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i) Jihad against an open enemy;


ii) Jihad against the devil, i.e. against the
negative forces; and
iii) Jihad against evil forces working among the
Muslims themselves.33

An enemy becomes an open enemy when:

i) He attacks the Muslims, commits naked


aggression and violates the accepted canons
of laws and morality;
ii) He persecutes a Muslim minority in a country
that is within reach of the Muslim
government and violates the international
standards or the prevalent norms for the
protection of such minorities, and such
minorities ask for help and support of the
Muslims against him; and
iii) He creates chaos and disorder in the
neighborhood.

Notably, the Islamic rules governing the use


of force are part of the Islamic law of war, which is an
important and significant section of the broader
international law of Islam. It should be mentioned here that
Islamic international law has not had to face questions
about its legal status or sanction: There is no separation or
division in Islamic law between municipal and international
laws because both types are derived from the Qur’an and
the authority of the Prophet (PBUH) and, therefore, both

33
Raghib al-Isfahani, p. 101.

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constitute an integral part of the same legal system. Thus,


the Islamic law of war and international relations have had
the same sanction, power and support as other religious
beliefs and rules of the Islamic legal system. It may be
recalled here that Western international law has been based
mostly on custom and usage, which is also acknowledged
by the Shari‘ah as a valid source of the rules of
international law. We can safely say that the principles of
Shari‘ah constitute the jus cogens of the international law
of Islam which control and regulate the custom.

We may recall that the grounds accepted by


contemporary international law for use of force include
self-defense, civil war in a neighboring country, reprisal,
protection of the nationals of the state, humanitarian
intervention, national liberation movements, and hot
pursuits. All of these, except hot pursuit, have been
mentioned in the Qur’an directly and expressly.

With regard to fighting in self-defense, the


Ayatul Idhn is clear: “Permission is given to those who
have been wronged…who have been driven out of their
homes to fight against those who have wronged them.”34

As to civil war in an adjoining country, if


the Muslim government is invited to participate in a just
cause, it has the permission of the Divine Book. However,
there is an important proviso and this has not been left by
the Qur’an and the Prophet (PBUH) to be added by any
jurist. It has been added by the Qur’an itself in the words

34
Al-Qur’an, 22: 39-40.

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“‫ق‬Mifj a]kf`‫ و‬alkf` ‫م‬Kn SQo p‫إ‬,”35 meaning “Unless it be against a


people with whom you have a pact.” This clearly
establishes that if a Muslim community is being persecuted
in a neighboring country and it seeks a Muslim country’s
help to protect its religion, the Muslim country should
support it, except where there is an agreement between the
Muslim country and the persecuting non-Muslim power.
This means that, even for the purpose of providing support
and succor to a persecuted Muslim minority, international
commitments and agreements cannot be violated. There are
examples in the life of the Prophet (PBUH) where he himself
refused to provide any support to a persecuted Muslim
minority in territory belonging to an Arab power with
which he had an agreement.36

As to what is termed as reprisal in the jargon


of international law, the Qur’an allows it to the extent of
reciprocity or Mujazah. Even in the cases of reciprocity,
moral limits have to be observed as well as the general
principles of the Shari‘ah or the jus cogens of Muslim
international law. The other two grounds are covered under
self-defense and the provisions dealing with persecuted
minorities.

According to many Muslim jurists, the


purpose of jihad is simple: to provide security and safety to
35
Al-Qur’an, 8:72.
36
A notable example is the handing over by the Prophet (PBUH) of Abu
Jandal and Abu Basir, two young Makkan Muslims, to the Makkan
infidels to honor a commitment he had made with them in the Treaty
of Hudaybiyyah.

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the Muslim government and the Muslim state to enable


them to realize their objectives for this world and for the
Hereafter.37 In other words, the only objectives of jihad are
welfare and well-being in this world in the material sense
and welfare and well-being in the spiritual sense. These
very grounds, which are accepted and acknowledged by
modern international law, have been mentioned in the
Qur’an.

With regard to jihad bil saif or use of force,


the Prophet (PBUH) has said that the purpose of war is not to
physically eliminate the enemy. Modern international
humanitarian law has reached the same conclusion, saying
that the purpose of war should only be to weaken the
military power or military potential of the enemy. As soon
as the military potential of the enemy is weakened,
hostilities should be stopped.

The same concern for minimizing use of


force underlies the Islamic treatment of postliminium. The
basic principle given by the Qur’an for postliminium is:
“As soon as the war is over, then either leave the prisoners
by way of favor or exchange them for ransom.”38 Thus, the
Muslim army can either exchange the prisoners of war
(PoWs) for its own PoWs or accept ransom for them, and
that is all.

In this context, a statement by a Shāfi‘ī jurist


also deserves to be mentioned: “ p qrMWKL‫ب ا‬K^‫د و‬M]tL‫ب ا‬K^‫و‬
cuMvPL‫ب ا‬K^‫و‬,” meaning “The obligation of Jihad is like the
obligation of means and vehicles and not that of

37
Sarakhsi, p. 3.
38
Al-Qur’an, 47: 4.

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objectives.”39 Thus, in the opinion of the great jurists, jihad


or war is not an objective in itself. It is just a means for
realizing a greater and higher objective. If the objective can
be achieved through other means, then those other means
should be employed. The goal should be provision of peace
and security to everybody, particularly the Islamic state.40

Not only does Islamic international law limit


the use of force by limiting the purpose and objectives for
which it may be carried out, it also subjects the actual use
of force to a rigorous set of rules. It goes without saying
that this set of rules is to be, quite literally, implemented
religiously because it is part of a religious law and draws its
legitimacy from religious teachings like other religious
principles.

With regard to the law or rules of war, the


basic reform made by Islam is that the use of force is
confined to the belligerent.41 This is the most fundamental
principle laid down in the Qur’an and the ahadith. The use
of force has to be limited to those who participate in
hostilities in the battlefield. In the past, the battlefield was
defined and confined. Today, it is difficult to confine or
define a battlefield. Nevertheless, Muslims are required to
ensure that only those who participate in the actual war are
targeted and those who are not participating are protected
and saved. Women and children cannot be killed.42
Religious people cannot be targeted. Hermits and the

39
Al-Sharbini, p. 210.
40
Sarakhsi, Op. cit.; see also Fath al-Qadir, Vol. IV, p. 277.
41
Sarakhsi, Op. cit., p. 3.
42
The Qur’an allows the use of force only against those who initiate
aggression (Al-Qur’an 2: 190, etc.).

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ascetics cannot be touched.43 All of these and other non-


combatants should not be subjected to attack or targeted as
long as they remain outside the orbit of actual war. The
civil population has to be provided safety. The civil
population and civil installations cannot be destroyed.44
These are some of the instructions the Prophet of Islam
(PBUH) used to give to his warriors. Whenever he sent an
army, he issued a charter along with the army, and ordered
that the charter be read out to the soldiers.45 This practice
was followed by the early caliphs and by many other
successive Muslim rulers.46 A number of such charters have
been included by Dr. Muhammad Hamidullah in his book
“Al-Wathaiq al-Siyasiyyah,” which presents the political
documents of the days of the Prophet of Islam (PBUH) and
his immediate successors. In these documents, the Prophet
(PBUH) gave instructions to his soldiers and commanders,
for example, that they should not cheat, commit treachery
or mutilate the corpse of an enemy, and that they should
never kill a child or a woman.47 On the basis of these
instructions and a host of similar other instructions issued
by the companions and successors of the Prophet (PBUH) an
elaborate law of war has been developed.48 This law
acknowledges the basic principle that the use of force
should be confined to combatants and the belligerent.

43
See the instructions given to his commanders by Abu Bakr, quoted
by, among others, Tabari in Tarikh al-Umam Wa’l-Muluk.
44
Al-Hamid, 2000, pp. 287-306.
45
Texts of such instructions have been presented, with English
translation, in Hamidullah, 1973, pp. 310-323.
46
Some of these documents have also been translated into French by
Dr. Hamidullah under the title “Les Documents Sur la Diplomatie de
l’Islam, published in 1934 in Paris.
47
See, for example, Musnad Ahmed, Hadith no.2648; Sahih Muslim,
Kitab al jihad, Hadith no.3348.
48
For an elaborate modern exposition of the Islamic law of war, see
Zuhaili, 1981, pp. 788-798.

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The second basic principle of the Islamic


law of war is that no use of force is allowed without the
permission of a legitimate political authority. Without the
permission of a legitimate Muslim government — if a
legitimate Muslim government exists — no hostility or
warlike operation can be initiated against any adjoining or
neighboring enemy. Imam Abu Yūsuf, a well-known
Hanafi jurist and one of the founders of the Hanafi school,
laid down this principle expressing it in the dictum: “ p
‫م‬Mjy‫ إذن ا‬ef|` }~eW ‫ى‬e€O” meaning “No expedition can be
dispatched without the permission of the government.”49
Other jurists also consider jihad as the function of the state:
whenever it finds it expedient, the state will decide to
undertake jihad.50 In a nutshell, the question of jihad cannot
be decided by individuals. According to the Shi‘ah jurist
Imam Kulaini (d. 941), who is considered to be the one of
the four major authorities of Shi‘ah fiqh, jihad can be
conducted only in the presence of the Imam or in the
presence of a deputy of the Imam.51

The third principal of the Islamic law of war


is related to non-combatants. Paramedics and similar other
persons are not considered a part of the combatants, even if
they are supporting combatants and providing support to
the belligerent.52 This privilege is extended not only to the
medical corps but also to other supporting staff, including
nurses, servants, cooks, suppliers of civil provisions, very
49
Yusuf, n.d., p. 215; Ibn abe Shaiba, al Musannaf, Kitab al jihad,
Hadith no. 32581.
50
For example, Mawardi, 1999, citing jihad as one of the primary
functions of the Imam pp. 51-52.
51
Abu Ja’far Kulaini, al-Kafi, Vol. I, p. 213.
52
Sarakhsi, Sharh al-Siyar al-Kabir, Vol. IV, Hyderabad Edition, pp.
112-113.

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W a r a nd Co n ce p t o f J i h a d i n Is l a m

old soldiers, and old persons who do not participate in the


war.53 All these are exempted from execution and use of
force. A question arose before the jurists: if a very old
person who is a veteran of war is providing advice and
guidance to the enemy combatants without physically
participating would he also be exempted or not? Some
jurists say he is exempted, while others say he is not.
However, the nature of this discussion demonstrates the
extent to which the wording of the Prophet (PBUH) was
interpreted and how far its meaning and purport was
stretched.

The fourth principle is that no act involving


any kind of treachery may be committed. This has the
authority of the Qur’an. There are several verses in the
Qur’an that prohibit all kinds of treachery and
misrepresentation, even to the enemy.54 Two examples may
be mentioned. During the days of the Second Caliph, there
was a battle between the Muslims and Iranians. An Iranian
soldier climbed a tree and took shelter at the top of the tree.
A Muslim soldier located him and told him, in Persian,
“Ma tars,” i.e. “Do not fear.” The Persian soldier thought
that he was being given shelter and protection and came
down. However, as soon as he came down, he was killed by
the Muslim soldier. The matter was reported to the Second
Caliph. He issued a policy statement in which he used the
same Persian term declaring that anybody saying “Ma tars”
to an enemy soldier and then killing him will be prosecuted
for murder and will be liable to a death penalty.55 Such an
act was considered to be a murder by the Second Caliph,

53
Hamidullah, 1973, pp. 212-215.
54
See, for example, Al-Qur’an, 8: 56-58 and 9:4 and 7.
55
Badr ad-Din al-Ayni, Umdah al-Qari, Vol. XV, p. 94.

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simply because of misrepresentation of intention. Here, the


prohibition of treachery was extended far beyond its literal
scope.

The other example is even more significant.


The Muslim government had entered an agreement with a
non-Muslim people living somewhere near the frontiers of
modern Turkey and Syria. These people used to create
difficulties for the Muslims, particularly by looting Muslim
trade caravans traveling between Arabia and Europe.
Caliph Mu‘āwiyah, the founder of the Umayyad caliphate,
decided to take action against them. However, the
agreement the Muslims had entered with these people was
time-bound; it was extended every year. In order to take
action against them, the Caliph waited until the agreement
came close to its end. A month before the agreement was to
expire, he prepared and ordered a Muslim army under his
own command to march to the frontier where the
troublemaking people resided. His idea was to wait until
the last date of the agreement and then, instead of
extending it, to attack and punish the people the very next
morning. Technically, it would appear that he was totally
justified, legally, constitutionally and in terms of today’s
international law. He was moving in his own area, and he
was not taking any action during the period of the
agreement. But this was the personal opinion of the Caliph,
and it was not shared by some others. There was a
Companion of the Prophet (PBUH), Amr ibn Anbasah, who
considered this conduct a ‘violation’ of the treaty.

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W a r a nd Co n ce p t o f J i h a d i n Is l a m

The story and its dramatic denouement are


reported in Sahih Muslim.56 Amr ibn Anbasah mounted a
horse and rushed in the direction in which the Muslim army
was marching. The Caliph was informed that somebody
was approaching and, subsequently, that it was the
Companion Amr ibn Anbasah. As Amr caught up with the
Muslim army, he was shouting “‫ر‬cƒ p ‫ء‬M„‫و‬,” “Fulfill (the
obligation)! No (commission of) treachery!”

After reaching the Caliph, he explained his


interpretation and understanding of the treaty, and how the
initiative of the Caliph amounted to treachery. Amr pointed
out that once a Muslim State enters into an agreement of
peace with any people, it is required to remain peaceful
even in its intentions towards the enemy. The two sides
should be emotionally at peace. The fact that the Muslim
ruler had contemplated a military action against the other
side and had moved his army with this intent meant he had
gone against the spirit of the commitment to have peace
during the agreement period.

In this context, Amr ibn Anbasah referred to


the Qur’anic verse that says: “And if you fear treachery
from any people (with whom you have a covenant) then
publicly throw their covenant to them. Allah does not love
the treacherous.”57 Muslims are thus ordered to be open
about their intentions to terminate agreements so that the
enemy becomes aware of the current status of the
agreement, realizes that any action may thenceforth be
taken against him by Muslims, and is equally ready. Only

56
Abu Daud, al Sunan, Kitab al jihad, Dar al Salam, Riyadh, Hadith no.
2759.
57
Al-Qur’an, 8: 59.

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then can Muslims take action against those with whom they
have had peace agreements. The Muslim army, including
the Caliph Mu‘āwiyah (602-680) accepted this
interpretation and, aborting the action immediately,
returned to Damascus.

Finally, there is another area of Islamic


international law that is closely linked to the law of war,
and this comprises of principles of neutrality, which are
contained in the Qur’an and which were formally laid down
for the first time in legal history by Muslims. Those who
believe that the nature of relationship between the Muslims
and non-Muslims is, at least theoretically, a permanent state
of war propound that Islamic law does not even
contemplate a situation of neutrality between Muslim and
non-Muslims.

The truth is that Muslims have entered into


relationships of neutrality with different countries and
different forces. There are at least a dozen important
examples of neutrality in early Muslim history. The
agreements of neutrality with Armenia, Cyprus and
Ethiopia are well-known, and there were similar
agreements with some other countries in these regions as
well. Some of these agreements were maintained by
Muslims for six hundred years; some for seven hundred
years, and at least one, the agreement of neutrality with
Ethiopia, has withstood the passage of more than 1400
years and stands to this day.

Islam, in fact, has given a law of war to the


humanity that takes account of those humanitarian aspects
of the calamity which have remained unfamiliar for the
modern world until previous century. There are a number
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W a r a nd Co n ce p t o f J i h a d i n Is l a m

of areas in the international law of war and peace and


especially international humanitarian law, where
contemporary world needs to benefit from divine guidance
carried in Qur’an and sunnah and practiced over centuries
by successive Muslim governments.

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Comments and Discussion

Ilkka Ositalo:58 When we refer to the Geneva Conventions,


we have to recognize that the principles enshrined in these
Conventions are increasingly challenged and violated. But
the more they are challenged and violated the more
extensively we feel the need to look for solutions. It is
about time that we resort to multilateral approaches to meet
today’s global challenges. International laws should not be
seen or presented as a Western product. We cannot resolve
the problems in contemporary world with unilateral
reference. We have to look into cooperation among the
nations; we have to look how to get together to minimize
threats to humanity. A greater recognition for the
contribution of different nations in the development of
international norms and principles would lead to a greater
acceptance towards international laws.

The concept of Jihad is grossly


misunderstood today and this lack of understanding
normally leads to misconceptions about Islam. Jihad as
presented in the media and more particularly Western
media portrays Islam as a warrior religion instead of a
tolerant religion. Those who use the term Jihad to denote
their struggle also need to be careful in their conduct so that
such wrong perceptions have little room to flourish. One of
the basic principles in Islamic laws of war is that those not
directly participating in hostilities should be protected. This
exactly is the principle on which the Geneva Conventions

58
H.E. Ilkka Ositalo served as Head of the EC delegation in Pakistan
(2004-2006).

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W a r a nd Co n ce p t o f J i h a d i n Is l a m

are based. Prevention of excessive use of force prohibition


of treachery and reciprocity are some of the most glaring
examples of commonalities between Islamic law of war and
international law today.

Q: Contemporary resistance movements by Muslim


communities like those in Kashmir, Palestine, Iraq have not
been declared by an Islamic government. Does this mean
that all such efforts may be labeled as illegitimate on this
ground?
Dr. Ghazi: I had deliberately wanted to avoid this
misunderstanding but if still persists then let me repeat that
in areas and countries where there is a legitimate Muslim
government, Jihad cannot be initiated without the
permission of that government. Meaning thereby that in
areas where there is no Muslim government and Muslims
are persecuted or those Muslim countries which have been
occupied by the non-Muslim powers and no Muslim
government remains to be there, then there is no question
of seeking permission from anybody because there is no
authority. Therefore the national freedom movements
undertaken by the Kashmiris, Palestinians and others are
very much within the meaning of Jihad. But, if the subject
of a Muslim government goes to an area where Jihad is
underway without the permission of his government, then
he is clearly at fault. On the contrary, if a Muslim country
is attacked by a non-Muslim enemy and the government in
that country does not remain intact, then people will be
under an obligation to take up arms and fight and that
fighting will be Jihad par excellence.

Q: A Hadith of the Prophet (PBUH) seems


pertinent to quote in the context of discussion: the Prophet
(PBUH) said: “Never desire war and aggression. Always

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ask God for security and peace; but, when peace is


threatened, heaven is beneath the shadow of swords.”59
Dr. Ghazi: In fact, I had noted down this Hadith
but because the time was short, it slipped my mind.

Q: It is often alleged that Islam was spread through


sword and Muslims context this point of view. How do
Muslim scholars interpret North African campaigns
undertaken during earlier years of Islam despite the fact
that tribes inhibiting that land didn’t have any direct threat
to the Muslims of Arabia?
Dr. Ghazi: It is true that the Jihad was never
allowed in order to spread Islam or to prostratize other
people. Nowhere in Muslim history any community was
forced to accept Islam by the use of power or by the use of
influence of the state. There is a very brilliant and glaring
example of peaceful propagation of Islam in the Far East.
No Muslim army ever went to Malaysia, Indonesia and to
that region and one-third of total Muslim population today
is living there. The fact that they accepted Islam without
even a single soldier being there indicates that Islam has its
own motivating force that does not require use of force for
its propagation. The use of power in North Africa by the
Third Caliph and his successors was not meant for any
prostratization. It is historically established that the
overwhelming majority of people in North Africa remained
non-Muslims for more than two centuries even after
Islamic conquest. You might recall that Umar bin Abdul
Aziz, the Umayyad Caliph, had written personal letters to
the local chiefs and the tribal leaders of North African
countries inviting them to accept Islam. And some of them
did accept Islam in response to his invitation. It is clearly

59
Zailiee’, p. 381.

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W a r a nd Co n ce p t o f J i h a d i n Is l a m

indicative of the fact that the majority of people in those


areas were non-Muslim as late as beginning of the 2nd
century. Then, there are historical evidences that many of
them remained non-Muslims even in the beginning of the
3rd century. The process Islamization of those areas took
place at a natural pace and it was completed in almost three
to four centuries.

In fact, when the conquest of Egypt was


complete, Muslim armies had been facing persistent threat
from the North. Almost one dozen incidents have been
recorded by the historians where attacks were made on
Muslim camps in Egypt from North. Ships were attacked
by the pirates who took shelter in what is known today as
Tunisia. Muslim traders were harassed and the perpetrators
of these attacks were protected by the local chiefs in what
is known today as Algeria, Libya and Tunisia. In order to
provide a safe passage to Muslim traders and Muslim
navigators and to prevent incursions into Muslim lands and
attacks on Muslim army’s establishments in Egypt, punitive
action was taken, which resulted into a long and continuing
war. This forced the Muslims to take the issue to its logical
end. The purpose was not to ask them to accept Islam or to
force them, because, if that were the purpose, then the
people would not had to continue as non-Muslims till the
beginning of the 4th century.

Q: Under the rule of Shari‘ah a citizen of a Muslim


state has to seek permission of the state for participating in
jihad. We, however, notice that Muslim youth under the
spell of sermons or lectures given to them by Muslim
clergy enter armed struggle. It is clear that these youth have
the courage and they have the urge to work for the glory of
Islam. What, in your view, are the measures that could be

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taken to channelize the energies of Muslim youth so that it


is used for a sustainable and positive change?
Dr. Ghazi: The Prophet of Islam has repeatedly
referred to Sabr in the context of Jihad. On one hand,
injunctions of Qur’an and Sunnah call upon Muslims to do
Jihad whenever they need and on the other, Sabr has been
taught to them. They are required to be patient and
perseverant in their conduct. Whenever the verses of Jihad
are mentioned in the Qur’an, there are references to pre-
requisites of Jihad. Muslim youth need to realize that there
are a number of stages that come before an armed struggle
in the campaign for betterment. They need to resort to sabr
in order to exhaust those options and in order to purify their
own souls. The Prophet of Islam (PBUH) trained his people
for 13 years. Many of them were youth. Even after coming
to Madinah, he did not allow many youth to participate in
the actual war. When it was in defense of Madinah, in the
battle of Ohud, there were many youth who wanted to
participate but the Prophet refused those soldiers in the
Muslim army. Perhaps, he was trying to train his people to
be patient and to be disciplined. They should abide by the
decisions of the command and personal sentiments and
emotions should not be allowed to prevail over common
interest.

Q: In continuation with the foregoing discussion,


could you please highlight the criteria upon which a
government run by Muslims can be termed a true Muslim
government?
Dr. Ghazi: When we glance through the collection
of traditions of Prophet of Islam (PBUH), it seems as if he
had anticipated the question which you are raising. The
authority to permit a person to go for Jihad or not does not

178
W a r a nd Co n ce p t o f J i h a d i n Is l a m

depend on good government or bad government. The


Prophet has clearly said:
60
‫دل‬Mo ‫ل‬co p‫ و‬erM^ ‫ر‬K^ _Q‡[~ p ‫ۃ۔‬jMfvL‫م ا‬K~ ‰L‫ض ا‬Mj ‫د‬M]tL‫ا‬
i.e. Jihad will continue according to the terms and
conditions laid down in the Shari`ah; it cannot be nullified
because a ruler is tyrant and it cannot be justified simply
because a ruler is not tyrant.

Jihad means a collective action that needs a


central authority to make decisions, exercise control, ensure
discipline and enjoy confidence. If a war is waged by
individuals and groups without bringing into effect the
collective power of Muslims and without seeking
confidence of majority, some pious souls may perish in
result and no real change may take effect.

Q: When we talk about Jihad we find that there are


many descriptions in the Qur’an and Sunnah which glorify
jihad and call for it in most persuasive terms. These verses
may be used in those situations where Muslim lands have
been occupied and Muslim populations are persecuted and
exploited as is the case in Palestine. But there may be
instances where same dicta of Qur’an and Hadith are used
by terrorist groups for offering justification of their acts.
Whether there is any standard in Islamic jurisprudence to
distinguish those who may not be justified in their struggle
and those who are fairly justified in the eyes of Shari‘ah?
Dr. Ghazi: Actually, there are two aspects of the
question. One aspect is that of theory and the principle and
the other aspect is that of application and reality.
Theoretically, and in terms of Islamic principles, if a
Muslim country or Muslim territory is attacked and

60
Bukhari, Book of Jihad.

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Muslims are denied freedom in their own country, then


they are justified to take up arms and that arm-taking would
definitely be Jihad in terms of Islamic law.

Other aspect of the issue is practical and


there may be difference of opinion and difference of
perceptions with respect to situations where the application
of theory is justified. One has to take into account a number
of factors to decide whether an area qualifies to be called a
Muslim country or not. Each such situation needs to be
discussed with reference to its peculiar conditions; no
general comment may be made in this respect.

Q: Hot pursuit is a dubious preposition in


international law. It is customarily accepted in the sea and
if a ship is pursuing contrabands or pirates then the
question of national jurisdiction is avoided. But, as far as
the hot pursuit is concerned on the land, books of
international law doubt that hot pursuit is the accepted
principle of law. Does hot pursuit create one of the modes
for war in Islam?

A confusion may be created when the term


‘imam’ used in Islamic sources is translated in the modern
context as ‘government’? Imam is an individual and
government is an institution and all that has been quoted is
addressed to imam and not government.
Dr. Ghazi: In fact, what I wanted to submit is that
of the grounds which are considered to be justifications for
a war some are common with the Shari`ah and have been
directly mentioned in the Qur’an, except the principle of
hot pursuit. I have clearly submitted that the question of hot
pursuit is not found in Muslim writings; therefore, that

180
W a r a nd Co n ce p t o f J i h a d i n Is l a m

cannot be taken to be a justified ground for taking arms by


the Muslim army.

The word ‘imam’ has been used by Muslim


jurists in a generic sense. Though it literally it means
‘leader’ or ‘the head of the state’ but, normally, in the
whole literature of fiqh it has been used in the sense in
which the ‘president’ is used in our daily parleys, like:
“The president has been pleased to appoint you”, the
president has been pleased to decide” etc. Everything is
done in the name of president but, it is the whole
government and not an individual that actually does that. In
the same way, in juristic literature, particularly in the fourth
and the later centuries, the word ‘imam’ is used to connote
the sense of a Muslim government or the government
headed by the imam.

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Sarakhsi. 1980. al-Mabsut. Vol. X. Beirut: Dar al-


Ma’arfa.

Tabarani. 1995. Al-Mu’jam al-Ausat. Vol. V. Cairo:


Dar al-Haramain.

Thanwi, Muhammad Ala. 1996. Kashshaf Istilahat


al-Fuuun. Vol. I. Al-Qahira: Wazarah Al-Saqafiyah wal-
Irshad.

Tirmidhi (Muhammad ibn Isa at-Tirmidhi). (d. 275


or 279 ah) Al-Jami as-Sahih. Beirut: Ahya Al-turas al-
Arabi.

Wali Allah, Shah. 2004. Hujjat Allah al-Balighah.


Vol. II. Beirut: Dar Ahya al-Uloom.

Wilson, Heather A. 1988. International Law and the


Use of Force. Oxford: Clarendon Press.

Zaidan, Abd al-Karim. 1963. Ahkam al-Dhimmiyyin


Wa’l-Mustaminin fi Dar al-Islam. Baghad: Jamiyah.

Zailiee’, Nasb al-Rayah, Vol. III. Cairo: Darul


Hadith, n.d.

Zuhaili, Wahbah. 1981. Athar al-Harb fi’l-Fiqh al-Islami.


Dimashq: Dar al-Fikr.

184
Index
--A-- American(s) 41, 62, authors 62,
Abbasids 7,15,18, 105, 127, 153 constitutional tradition and
Abrahamic tradition ix principles 62
Abu Hanifah 24, 70, 71, 127, Amr ibn Anbasah 170, 171
152, 153 Anglo-Saxon, law 39, legal
Abu Musa Ash’ari 25 tradition 39, 40, 59
Abu Nasr al-Farabi 10, 11 al-Aqabah 11
Abu Yūsuf 168, dictum of 16 Arab(s) 66, Bedouins 68
Adab al-Qadi 25 Arabia 100, 170, 176
Adam and Eve, sons and Arabic 5, 71, 126, 154, source
daughters of/Children of vii, 27
67, 104, 126 armed conflict(s) 58, 61, 66
’adl 27 armed struggle 177, 178
Afghanistan vi, 64, American Armenia 172
policy in 90 armistice 153
Africa 102 Asad, Muhammad 40
African and Asian countries 150, Asia 90
151 Association of Asian
agreement(s) 59, 64, 69, 108, Parliamentarians for Peace
111, 127, 147, 171, between (AAPP) 134
the Muslim country and the atheists 69
persecuting non-Muslim Austin, John 73
power 164, between two authority viii, 15, 16, 17, 20,
principalities of region 57, of 21, 22, 23, 28, 30, 31, 38, 39,
friendship 153, of peace 171, 43, 74, 75, 89, 117, 118, 132,
172, prepared by the Prophet 175, 178, and power viii, 6,
(PBUH) 109, with a non- 14, 75, to elect 41, central
Muslim people 109, 170, of 179, Papal 8, 20, scriptural
neutrality 172, with non- 12, external 13, of the state,
Muslims 108 17, judicial 17, legal 73, of
Ahl al-dhimma 107, 109 the Prophet 162, of the
Ahmad, Khurshid xi Qur’an 169
Ahmad ibn Hanbal 24 Ayatul Idhn 155, 163
Akbar, great Emperor 120 Ayesha, the Mother of the
Algeria 177 Believers 41
Ali Ibn Abi Talib, fourth caliph
31, Islamic principle --B--
expressed by 119, dictum al-Baghdadi, Abdul Qadir bin
phrased by 110 Tahir 23
All India Muslim League 32, 88, Bangladesh 59, 87, 130
leaders of 5, 48 Banu Taghlib 127
Allah the Almighty/God viii, ix, al-Baqillani 22
x, 16, 27, 28, 29, 30, 126, battle x, between the Muslims
154, 155, 158, 171, and His and Iranians 169, of Ohud 178
Messenger 21, 109, covenant bay’ah 11
of 28, witnesses to 27, Bentham 73
believe in 157, complex Bible/the Four Gospels 136
creation of 157, sovereignty Bihar [in India] 87
of 20 Biharis 87
Allahabad 44, Address 33 Birmingham 136
ālim 35 black people 101
Islam, International Law and The World Today

blasphemy case(s) 132 Church, Empire 8, state 74, fall


Blasphemy Law(s) 130, 131, of 8
imposition on minorities 129 citizen(s) 30, 39, 49, 62, 72, 75,
Bosnia 64 99, 102, 103, 108, 111, 120,
British 3, Empire 3, 121, 127, 130, 131,
government in 177,protected or guaranteed
India 130, lawyers and 107, 109, responsibility of 49,
equality among/of 19, 127,
judges 44, 75,
private 24, of Pakistan 87,
Parliament 75, rule 44, 119, 121, of Bangladesh 87,
131, rulers 131 non-Muslim 107, 127
British East India Company 44 citizenry 109
Brohi, A.K. 40 citizenship 7, 75, 120, of
Brussels University 81 Bangladesh 87, of Islamic
state 107
--C-- civil, administration 44, and
Caliph(s) 170, 171, early 167, revenue administration 44,
investiture of earliest 22, commotion 149, matters 112,
second 6, 16, 25, 26, 31,118, population 167, installations
125, 126, 127, 169, 170, third 167, war 149, 163, dealings
9, 10, 118, 176, fourth 31, 91, provisions 169, society
110, 119, Umayyad 125, 170, 34, 49, transactions 91
176 civilization(s) ix, 57, 59, 80, 84,
Cambridge 39, 81 104, 145, global vii, global
capital punishment 132 cooperation between 134,
Central Asia 100 Western 58
Centre for Christian and Muslim colonial, era 129, powers 86,
understanding 136 128, past 86
Centre for Islamic Legal Studies colonizers 150, 151
91 combatants 65, 66, 167, 168,
Chief Justice, of Basra 25, of 169
Pakistan 122 commercial law 90
China 7, 137, 138, progress and common international
development of 138, objectives 69
autonomous region in 137, common international
Muslims in 137 jurisprudence 82
Chinese, government 138, Communist ideology 3
Muslim majority areas 138, community(ies) 14, 22, 24, 60,
leadership 138, philosophers 97, 103, 112, 122, 124, 176,
and thinkers 57 Muslim 13, 18, 25, 30, 44, 66,
Christian(s) 59, 69, 75, 105, 76, 118, 138, 139, 164, rights
120, 121, 136, population of 88, advanced 57, in Europe
109, states of Europe 58, era 141, stateless 82,
26, history and theology 148, world/international 59, 60,
jurist 121, law 58, tribe living 61, 79, 128, of lawyers 73
in Syria 127, world 59, Europe constitution(s) 19, 33, 35, 61,
8, scholar from Iraq 152 97, 108, 114, 121, written 19,
Christianity ix, rise of 57, 41, 108, modern 26, Indian
misconception about 136 26, of Pakistan 41, 119, 121
Christ, Jesus 134

186
Index

constitutional 23, paradigm 2, Dar al-Harb 152, 153


amendment 140, and judicial Dar al-Islam 7, 8, 75, 152, 153
method 34, commitment 121, dawlah 5
guarantees 62, 121, day of judgment/day of
traditions and principles 62, Reckoning viii, 28, 156, 158,
terms 101, decision 139, 159, Qur’anic portrayal of
drafts in Pakistan 33, 121, 170
law 62, means 34, 35, 62, death pnishment/penalty 132,
provisions 113, vehicle of 170
Islamization 35, Assembly of defeatist pessimism 89
Pakistan 119, history 120, Delhi 3, 43
theory 120 democracy viii, 3, 15, 37, 140
Convention of Religions 134 Divine, presence 159, revelation
Council of Islamic Ideology 35, 13, 100, Wisdom 161,
133, Chairmanship of 35, guidance viii, ix, 173, Book
recommendations of 35 69, 157, 163, favor 76,
Country(ies) 32, 35, 37, 39, 46, injunctions 14, 20, 21, law
49, 60, 76, 86, 87, 88, 100, 21, 25, religions 105, 112,
102, 103, 112, 113, 116, 119, text(s) 2, 46, verdict 12, writ
120, 121, 122, 132, 146, 150, 12, edicts 24, message 5,
151, 162, 163, 164, 180, 159, 160, criteria 41,
Muslim 59, 119, 140, 152, dimension/aspect viii, x
153, 154, 164, 175, 179, 180, Dixon, Martin 62, 72
modern and democratic 113, domestic law/legislation 103
Muslim and European 99,
citizens of 75, 102 --E--
Court(s) 17, 31, 38, 44, 80, 83, East 7, 8, 58, 153
superior 39, 62, 122, 131, East Pakistan 87
133, 140, hierarchy of 73, Eastern Europe 100, 115
implementation of verdicts of educationists, responsibility of
38, non-Muslim 31, judicial 49
authority of 17 Egypt 30, 108, 114, conquest of
crime, commission of 133, to be 177,
punished 134 Muslim army’s establishments
cultural 7, 135, 137, paradigm in 177
104, affinity 99, 100, groups Egyptians 57
87, traits 46, value 67, Encyclopedia of Islam, authors
autonomy 123, agendas 3, of 155
independence 77, equal opportunities 139
background(s) 79, 99, 140 equality 85, 126, 127, of
culture(s) 80, 104, 107, 121, opportunities 127, of citizens
123, 129, assimilation of ix, 19, 127, of mankind 68, 126,
diversity of viii, ideologically ultimate basis of 126
different 123, Muslim 32, Ethiopia 113, 114, 172
pluralist 123 Ethiopian(s)/“habashīs”,
Cyprus 172 hostilities with 114, Muslim
minority 117, neutral policy
--D-- towards 114
Damascus 172 Ethnic 66, 67, 87, 99, 105,
Dar al-Ahad 153 137, 140, differences 126,
187
Islam, International Law and The World Today

groups/communities --G--
101, 104, 122, identities gender, issue 42, plurality 41
and references 100 Geneva Conventions v, 174
genocide 65, 101
ethnicity 99, 100, 101, 102,
global, challenges 174, security
105, 107, in Apartheid South
system vi, civilization vii,
Africa 99, 100
system 84, peace v, scene 89,
Euro-centric 84
environment 90, religious
Europe 8, 20, 59, 90, 115, 118,
coordination 134,
141, 151, 170, countries 99,
cooperation between
Western 74, Eastern 100,
civilzations 134
115, Christian states of 58
globalization 123
European Parliament 75,
good governance ix
European Union (EU) 74, 75,
government(s) 24, 37, 116, 123,
history 12, mrdieval sense 15,
124, 130, 131, 132, 133, 138,
nations/states 59, 74
157, 162, 168, 175, 181,
Evangels 136, 137
Islamic 175, of Western
Evangile, followers of 31 nations vi, Muslim 49, 76,
Executive 73, power of 38 107, 108, 112, 118, 124, 163,
extremism 123 165, 168, 170, 173, 175, 175,
180, forms of 14,
--F-- Representative 21, Structure
faith(s) 122, 135, 136, 138, of 14, undemocratically
assimilation of all ix, of elected 45, verdict of 25,
Abrahamic tradition ix of/in Pakistan 32, 49,86, 122,
Far East 7, 176 130, 132, British 44, 130,
fascist idea vii Chinese 138
Federal Public Service Grant, Mark Lyle 81
Commission 122 Greek 58, history 78, ideas 10,
Federal Shariat Court 39, 131, [hilosophy and logic 11,
132, 133 thought 10, 11, 19, city-state
female scholars 42 of 19
fiqh 13, collections 41, Grotius, Hugo 71, 73, 148
principles and injunctions in Group of Eight 84
13, material/books/literature Guantanamo Bay 64
of/on 44, 106, 181, Shi’ah
168 --H--
First World War 3, 87 hadith 22, 114, 159, 175, 176,
foreign policy vi, 63 179, compilers 22, 42, 160
France 141 Hajj 11, 49, 156, 40
free market economy 3 Hamidullah, Muhammad 167
freedom(s) 20, 30, 68, 85, 105, Hanafi(s) 30, judges 30, jurist
121, 132, 138, 140, 180, basic 152, 153, 168, law 30, school
109, of worship 119, religious 168
129, political 6, 116 Hanbal, Ahmad ibn 24
French, Republic 3, (language) Hanbali, jurist 23, theologian 22
79, 108, 110, system 111 Harb 152
fundamental rights 39, 62, 121 Harvard 35, 39, 91
Fuqha 13, 127 Helaslasi 114
Hijāb 139, 140
188
Index

Hijaz 30 capability 56, cosideration


Hijrah 11, 43, 68, 75, 81, 153 77, 89, races 77, traditions 80
Hilf al-Fudūl 68 human rights v, vi, 37, 61, 62,
Hinduism 100 63, 64, 65, 68, 81, 82, 84,
Hindus 105, 112, 121, 122 101, violations 64
Hobbes 73 humanitarian, law 64, 65, 66,
Holy Qur’an/Qur’anic 5, 6, 7, 9, 81, 145, 165, 173, cause 69,
10, 13, 14, 16, 20, 21, 23, 27, grounds 87, notion of social
31, 45, 46, 47, 66, 67, 68, 69, unity 123, intervention 150,
70, 72, 74, 76, 77, 85, 100, 163
104, 105, 108, 109, 113, 117, humanity v, vii, x, xi, 66, 69,
118, 126, 136, 138, 153, 154, 80, 82, 84, 85, 89, 90, 100,
155, 156, 157, 159, 160, 161, 105, 106, 122, 124, 136, 156,
162, 163, 164, 165, 169, 171, 172, 174, common objectives
172, 178, 180, injunctions/ of 134, 135, guide to 126
instructions 1, 77, message of
160, 161, religious --I--
foundations embodied in 77, Ibn Khaldun 18
important discourses in 67, Ibn Nujaim 16, 17
Divine Wisdom contained in Ibn Taymiyyah 22
161, and the Prophet (PBUH) Ibrahim, Prophet 156
25, 169, 109, 163, and ideology, or religious belief 105,
Shari’ah 45, and communist 3, Islamic 3
ahadith/Hadith 166, 179, and ijmā‘ 20, 44
Sunnah 10, 21, 23, 32, 41, ijtihād 44, 46, 110, 154, 155
44, 70, 108, 121, 173, 178, Ilmuddin, Ghazi 131
179, reference 10, 105, Imam 118, 168, 180, 181, Abu
interpretters of 13, Hanifah 70, 127, 152, 153,
commentators of 42, concept Abu Yusuf 16, 168,
of justice 77, call 105, laws Muhammad ibn Hasan 70, 71,
123, and the Four Gospels Muslim 21, Ozai 127, Kulaini
136 168
hot pursuit(s) 151, 163, 180 Imamah 6, 9, 10, 17, 18
hudood laws 118, 130 IMF 84
applicability to non-Muslims India 7, 30, 43, 44, 48, 59, 87,
129 112, 130, 18th century 159,
Hujjaj 156 division of 32, Muslims in 102,
al-Hukm/Hukm 20 115, Muslim rule in 112,
human being(s) vii, 38, 64, 67, British Government in 130
84, 85, 105, 106, 107, 124, Indian Penal Code 130
126, 127, 129, 146, 156, 157, Indian, Constitution 26, Muslim
158, freedom of 68, rights minority 117, philosophers
and privileges of 65 and thinkers 57, Subcontinent
Human, community(ies) 82, 43, 47
122, 123, relationship 57, Indonesia 176
society(ies) 55, 57, 112, Information revolution 123
values x, experience x, 12, Inns of Court School of Law 81
history 19, 42, 77, 80, quality Institute of Policy Studies (IPS)
106, soul 107, nature 123, vii, xi
family 83, population 80, inter-communal relationship 98
189
Islam, International Law and The World Today

interfaith council 134 international relations v, 57,


international, bodies 58, 60, 89, 63, 64, 78, Islamic law of 55,
103, 145, communications 61, 163
community 59, 60, 128, Iqbal, Allama Muhammad 32,
conduct v, 70, conflicts 65, 40, 131
disputes 57, environment 40, Iran 43, 100, 112, 139, 140
ethical values 73, financial Iranian(s) 40, 66, 169, non-
system 61, jurisprudence 55, Muslim 112
61, 63, 82, 83, 98, justice 83, Iraq 16, 64, 108, 152, 175,
institutions 65, law-making American policy in 89
79, legal architecture 81, Islam, and the state 10, and
legal discourses 147, norms sultan 9, and the West 8, as a
and principles 174, civilization 104, as a cultural
organizations 60, 82, 83, paradigm 104, as a legal
society 79, treaties 69, system 104, as a social code
standards 162 104, as a Code of Life 90,
International Court of Criminal basic reform made by 166,
Justice 89 basic tenets of 123, body
International Court of Justice politic of 15, cause of 3, 5,
83, 89, 149, 151, Charter of demand(s) of 116, dictates of
80 120, equality of mankind in
international dealings 77, 79, 126, message of 4, 5, 48, 85,
89, 104 injunctions of 12, 13, 36, 45,
international discourse(s), 122, international role of vii,
universal law of 56, and principles of vii, pan-
documents 102 humanism of 156, as a
international humanitarian law religion 104, system of 47, as
64, 65, 66, 81, 145, 165, 173 a warrior religion 174, corpus
International Islamic Court of juris of 25, earlier
Justice 83 period/centuries/years of
international law of Islam/Siyar 124, 176, early doctors of 1,
viii, 31, 70, 71, 74, 75, 103, 2, exponents of 2, key pillars
107, 110, 162, 163, jus of 117, law of 24, 25,
cogens of 163, 164 laws/teachings of 48, 155,
international law(s) viii, ix, x, legal exponents of 13,
13, 55, 56, 58, 59, 60, 61, 62, misunderstandings/misconcep
63, 64, 65, 71, 72, 73, 74, 76, tions about 36, 49, 174,
78, 79, 81, 83, 89, 90, 98, modes for war in 180, moral
103, 111, 145, 146, 148, 149, considerations of 140,
150, 151, 162, 164, 165, 170, peaceful propagation in Far
173, 174, 175, 180, and legal East 176, political frontiers of
thinking 61, legal character 6, politico-geographical
of 73, of war and peace 173, frontiers of 7, procedural law
Muslim contribution to 66, of 25, modern interpretation
78, 79, traditional positivist of 46, requirement(s) of 117,
approach to 65, Treatise on 118, revival/ renaissance of
78, Western concept of 81, 2, 4, rule of 48, 123,
Western scholars of 62, scriptural foundations of 2,
Western 59, 60, 64, 65, 74, perennial sources of 74,
163 penal code of 13, 117, 118,
190
Index

Penal Law of 129, society and moderate 40, of Madinah 11,


state in 100, Universality of Modern 32, status of Muslim
155, 156, Western scholars of citizens of 111, traditional or
152 classical 14, political power
Islamabad xi of 9, citizens of an 108,
Islamic common law 24 citizenship of 107
Islamic, conquest 176, guidance Islamic tradition 20, 127, of
104, tolerance 113, of morality
history 25, 30, 41, 68, 107, 125, 107
identity 115, 116, ideology 3, Islamization 35, 177, in Pakistan
instructions 117, activists 35, 38
116, caliphate 112, concept Israel 86, 87
of justice 27, jurisprudence
32, 81, 82, 91, 118, 179, --J--
norms and traditions 116, Ja’far Sadiq 24
pilgrimage 156, pluralism Japan, 59
104, principle(s) 117, 119, Jesus Christ, 134
179, provisions 33, 121, Jew(s) 69, 88, 89, 106
requirements 119, sources 5, Jewish 86, historians 105,
180, territory 124, system 11, scholar from the United
18, 47, legal system 104, 163, States 152, and Christians
political philosophy 120, 120, of Madinah, 108
polity 41, revivalism 3, jihad 154, 155,156, 157, 158,
scholars 2, 34, Shari’ah 33, 159, 166, 168, 174, 175, 176,
154, society 41, 104, 106, 178, 179, against an open
teachings 13, 40, 155, enemy 162, against evil
theology 10, 12 forces working among the
Islamic constitutional theory Muslims themselves 162,
120 against the devil 162, and
Islamic Court of Justice 83 sabr 160, as presented in the
Islamic discourse, contemporary media 174, bil saif 161, 165,
20 jihad bil lisan 161, bil maal
Islamic education 49 161, bil qalam 161, bil
Islamic international law 73, Qur’an 160,161, bin nafs 158,
162, 166, 172 in terms of Islamic law 180,
Islamic law(s) 13, 23, 30, 38, par excellence 175, for
39, 40, 41, 44, 47, 55, 77, 91, reform and improvement 157
92, 98, 107, 110, 111, 118, Jizia 124, 125
121, 153, 162, 172, 180, and John Austin 73
jurisprudence 25, 153, of Judah-Christians values, 82
nations 77, compendia of 13, Judge(s) 129, 133, 142, in
31, two sources of 44, in Islamic history 128, of the
Pakistan 38, of war 162, 163, Superior Courts, 142, 131
168, 174, 175 judgment 126, 129, 130, of the
Islamic state/imamah vii, 1, 2, Federal Shariat Court 132, in
3, 4, 6, 7, 9, 10, 11, 12, 13, the Superior Courts of West
15, 17, 18, 19, 30, 32, 33, 34, Pakistan 131
36, 40, 46, 47, 48, 71, 86, judicial, authority 120,
103, 107, 108, 109, 111, 114, decisions 134
129, 166, model 2, 3, 34, 27, judiciary 129, 138, 141
191
Islam, International Law and The World Today

juridical literature 117 Law(s) 112, 131, 133, 134, 55,


jurisdiction of international law 56, 58, 59, 65, 66, 72, 73, 74,
63 80, 89, 91, 121, 122, 130,
jurisprudence 78, 97, 98 131, 132, 133, 134, 140, 145,
jurist(s) 113, 115,119, 123, 128, 167, enforcers 90, in the real
127, 145, 163, 168, 169, and sense 73, 74, of human rights
judges 128, and philosophers 65, of international human
55, and theologians 123, of rights 61, of international
Islam 116, 127, relations 64, of Islam 128, of
juristic approach 113 Shari’ah 104, 111, of the land
juristic literature 181 146, of the Romans 58, of
jus cogens of the international war 71, 145, 147, 148, 172,
law of Islam 163 or rules of war 166,
jus gentium or the law of the regulating the EU 74, schools
people 58 59, students 91, to regulate
just 130, cause 131, 149, war(s) the use of force 58, and
147, 148 teachings of Islam 151
justice 126, 127, 128, 130, 133, Lawyer(s), from Lahore 131,
141, and fair play 154, in the and jurists in different
society 127 countries 74
justification(s) 80, 149, 151, for leadership 126, 146, of All India
a war, 180 Muslim League 108, 151
juxtaposition of verses and legal, authority 73, and
ahadith on sabr and jihad 160 constitutional matters 126,
and judicial communities
--K-- 129, and/or moral principles
Kanavin, Janis Bjorn 37 55, character of international
Kant 115 law 73, circles 75, code 127,
Karachi 146 discipline 55, domain 128,
Kashmir 64, 175 legal exponents of Islam 116,
key source of the law on human history 172, justice 77, or
rights 64 juridical thought 116, or
Khadduri 152 systemic aspect of the matter
Khilafat Movement, 107 151, pluralism 133, principles
kingdom 115 and moral considerations
Kitab al-Siyar al-kabir (i.e. the 146, requirements on the
Major Book on International part of the International
Law) 71 Court of Justice 83, systems
Kitab al-Siyar al-Saghir (i.e. 134, thought 129, tradition
“the Shorter Book on 76, 78, work 143
International Law”) 71 legality of international law 74
kith and kin 130 legislative, exercise 143,
knowledge 144 process 144, proposals 91
Kuwait 83 legitimate Muslim government
168, 175
--L-- less educated or
Lahore 88, 135 overenthusiastic Islamic
Last Sermon of the Holy Prophet activists 116
(peace be upon him) 140 levy, 124
liberation movements 61
192
Index

Liberté, égalité and fraternité Pakistan 119, 121, in legal


141 and constitutional terms 101,
Liberty, of practicing customs in the political sense 98, of
124, to hurt millions of fire-worshippers in Iran, 112
Muslims 132 misconception, about
life 131, and property 130 Christianity 136, about Islam
likelihood of recognition of 49, 174
contribution of Muslims in Moguls or Mughal 44, 105
international law 82 morality 56
linguistic 105, affiliation 100, mu‘ahidin 107, 108
difference 99, 105 Muhammad Asad 40
literature 102, of fiqh 181, Muslim(s) 1, 2, 4, 6, 7, 8, 9, 14,
produced by Muslim 18, 21, 23, 31, 46, 48, 60, 69,
theologians and writers 106 70, 76, 78, 79, 80, 82, 86, 88,
logic 85, logic and reason 116, 100, 111, 112, 113, 114, 115,
of argument and wisdom 148, 116, 117, 118, 122, 124, 126,
of force 148 128, 134, 136, 137, 138, 139,
London 81 141, 157, 166, 170, 171, 172,
looting Muslim trade caravans 175, 176, 177, 178, 180,
traveling between Arabia and administration 7, 14, and
Europe 170 European countries 99, army
lust 130 (ies) 76, 165, 171, 172, 177,
181, authority in Sindh 43,
-- M -- camps in Egypt 177, citizens
Ma tars 169 visiting the enemy territory
Madinah 11, 19, 117 72, clergy, 177, co-citizens
main community of a country 60 119, community (ies) 6, 7,
Majid Khadduri 152 25, 30, 66, 138, 164,
major jihad 158 compatriots 111, conquest
Makkan surahs (chapters of 109, contribution to
Qur’an revealed in Makkah) international law 66, 79,
67 converts 116, countries, 33,
Malaysia 176 69, 90, 100, 112, 119, 139,
Malik 24 140, 152, 153, 164, 175,
marriage 113, and family life courts 31, 44, culture 32,
11, within prohibited degrees descendants of the local
of relationship, 112 people 100, era 5, ethnic
Martin Dixon 62, 72 population 137, government
Mesopotamia 57 76, 107, 112, 124, 163, 170,
metaphysical 56 175, 181, historians 19, 42,
military, action 171, debacle history 114, 124, 176,
135, potential of the enemy identity 32, individuals living
165, training 111 in a non-Muslim environment
ministries of religious affairs of 119, international law 66, 74,
Muslim governments 49 77, 83, judges and jurists 14,
minorities 97, 102, 103, 104, judiciary 27, jurist (s) 6, 7, 8,
112, 115, 121, 132, 162, 9, 14, 15, 17, 19, 23, 31, 44,
around the world 123, in a 73, 74, 75, 76, 78, 104, 106,
non-Muslim environment 6, in 110, 112,125, 152, 153, 164,
Islamic Society 104, in 181, kingdoms 114, leaders 4,
193
Islam, International Law and The World Today

mind 69, 106, minorities 113, normative overtones of law and


114, 115, 117, 137, other social disciplines, 56
Muslim personal law, 140
Muslim rule in India, 112 -- O --
Muslim scholars 3, 4, 9, 14, 16, obiter dicta in the judgment
19, 21, 33, 42, 70, 81, 82, 151
103, 107, 112, 176 objectives of jihad 165
Muslim society (ies) 11, 30, 42, Objectives Resolution 120
99, 106, 140 obligation of Jihad 165
Muslim Spain, 105 obligation of zakāt 117
Muslim state 7, 124, 171, and oldest agreement or treaty, 57
Muslim government 118, Omer bin Abdul Aziz 176
Muslim ummah 6, 9, 18, 21, 23 Oppenheim 78, 79
Muslim world 1, 4, 6, 11, 24, 69, Organization of African Unity 69
99, 113, 114, 128 Organization of Islamic
mutiny in India 44 Conference (OIC) 83, 91
origin of the state 10, 12
origins of international law 55,
--N-- 79
National Assembly of Pakistan origins of the state 14
139 orphan’s property 28
nationalism 8 Ottoman Empire 3, 59
natural law theory 55, 56 Ottomans 30
neutral policy towards the
Ethiopians 114
new global system 84 -- P --
Nicaragua vs. United States 151 Pakistan 32, 33, 34, 36, 40, 41,
nisab (fixed standard) 154 48, 49, 59, 86, 97, 100, 112,
nizal (duel) 154 120, 122, 129, 140
Non-Aligned Movement 69 Pakistan movement 5, 33, 48
non-combatants 167, 168 Pakistan Penal Code 133
non-Muslim(s) 1, 30, 31, 106, Pakistan’s society 122
107, 108, 109, 110, 111, 112, Pakistani citizens 87
113, 125, 130, 132, 140, 177, Pakistani government 86
citizens 107, 127, Palestine 64, 86, 87, 175, 179
communities and countries Palestinians 86, 89
71, 113, 115, 116, courts 31, pan-human 67
environment 113, 118, 119, papal administration 8
Iranians 112, judges, lawyers papal authority 8
and jurists 83, tribes 111, participants in the jihad 76
tribes of Najran 109, well- participating in hostilities
wishers and observers 118, 65,174
111, 112, 119, 120, 122, 125, payment of jizia 111
129, 130, 139, 176, 177, in peace agreements 172
(of) Pakistan, 119, 140, living peace during the agreement
in Muslim societies 107, living period 171
in the Islamic realm 107, peaceful agreement with any
living in the Islamic State Muslim country 59
103, peaceful propagation of Islam in
the Far East 176

194
Index

penal code of Islam 13, 117 positive law theory 56


Penal Law of Islam 129 practice of satti 112
People of the Book 68, 69 practices of the Prophet of
performance of Hajj 49 Islam (PBUH) 67
performance of Muslim rulers prejudice 38, 123, 135
105 present conduct of the West 84
permanent and original nature President of Kazakhstan 134
of the relationship between Prevention of excessive use of
Muslims and non-Muslims 154 force 175
Permanent Court of primacy of humanity 106
International Justice 63 primary and the supreme
permanent enemies 85 objective of an Islamic state
permanent majority 98 46
permanent minority 98 primary function of
permission for jihad 156 international law 72
permission of a legitimate primitive basis of assimilations
Muslim government 9for 123
jihad) 168, 177 primitive principle of ‘tit for
persecuted majorities 102 tat’ 150
persecutes a Muslim minority principle of consensus, or ’ijma’
162 20
Persian 169, soldier 169, term Principle of necessity 66
169 Principle of proportionality 66
personal law 31, 111, 112, 113, principle of shūra 23, 45
140 principle of sovereignty of Allah
personal opinion of the Caliph 20
170 principle of the supremacy of
personality and status of an Shari’ah 20
individual 122 principle on which the Geneva
philosophical worth and Conventions are based 175
academic value of the natural principles laid down in the
law theory 56 Qur’an and the Sunnah 32
physically eliminate the enemy principles of Islam 5, 129
165 principles of Islamic
pluralism 104 constitutional theory 120
pluralist culture 123 principles of Islamic
pluralistic system 104 jurisprudence 118
political authority 8, 11, 15, of principles of liberty, equality
Muslims 6 and fraternity 141
political legitimacy 11 principles of neutrality 172
political minority 98 principles of policy 128
politico-geographical frontiers private international law of
of Islam 7 Islam 31, 107, 110
Pope(s) 20, 59 procedural details of the
Pope Nicholas IV 59 blasphemy case 132
Pope Urban VI 59 procedural law of Islam 25
position of Islam on minorities process of globalization 123
97 process of Islamization 35, 38,
positive international morality in Pakistan 35, 38
73
195
Islam, International Law and The World Today

progress and development of Qur’an and Sunnah 21, 23, 24,


China 138 41, 44, 70
Prohibition of infliction of Qur’an and the Prophet (PBUH)
unnecessary suffering 66 25, 163
prohibition of treachery 170, Qur’an and the sayings of the
175 Prophet 73
Prophet(s) 1, 2, 11, 67, 106, Qur’an and the Shari’ah 45
107, 109, 111, 113, 114, 120, Qur’an’s emphasis on the unity
160, 165, 167, 175, 178, 179 of mankind 105
Prophet Moses 134 Qur’anic concept of justice 77
Prophet of Islam 9, 70, 106, Qur’anic injunctions 1, 78
158, 178 Qur’anic portrayal of the Day of
prophethood 68 Judgment 156
prostratization 176
protagonists of the positive law -- R --
theory 56 rapid and successive emergence
protecting the rights and of liberation movements 151
privileges of minorities 101 Reasoning (ijtehad) 44
providing support and succor to Recent Muslim jurists 69
a persecuted Muslim minority reciprocity 164, 175
164 recommendations of the Council
providing support to the of Islamic Ideology 35
belligerent 168 relations between independent
public international law 91 states 63
punishment of Haraba (dacoity) relations with non-Muslim
130 powers 153
punishment of qazaf 130 relationship between Islam and
punishment of Rajam 130 the state 10
purpose of conveying the divine relationship between the two
message to the people 160 sexes 42
purpose of jihad 156, 164 religio-juridical pluralism 30
purpose of war 165 religion, 38, 107, 122, 136, 156,
as basis of nationhood 88
-- Q -- religious pluralism 105
Qadianis 139, in Pakistan 139 renaissance of the Muslims 2
Qisas 130 Representative Government 21
qital 154, 161 reprisal 163, 164
question of Hijāb 140 resistance towards application
question of hot pursuit 180 of laws of non-Muslim nations
question of jihad 168 upon Muslims, 139
question of minorities 97, 122 Resolution for Pakistan 88
question of national jurisdiction resolution on the question of
180 Palestine 88
question of recognizing or not resolving international disputes
recognizing a country 88 57
Qur’an, 5, 6, 7, 9, 10, 13, 14, respect for diversity 68
16, 20, 21, 23, 27, 45, 67, 68, restructuring of Muslim society
69, 70, 76, 78, 104, 105, 109, and institutions 2
117, 118, 136, 138, 153, 154, revival of Islam 2, 4
157, 160, 161, 163, 164 revivalist literature 2
196
Index

right(s) 38, 111, 120, 121, 122 Section 295 of Indian Penal
rights and obligations of non- Code 130
Muslim co-citizens 110 self-defense 149, 163, 164
rights and privileges of a Senate of Pakistan 132
minority 97, 101 Session Court 134
rights and privileges of non- Shaf’i jurist and theologian 22
Muslims 31, 106 Shafa’i 24
rights and privileges of Shah Wali Allah of Delhi 3, 159
permanent minorities 98 Shaibani 71
rights of minorities 137 shari’ah 13, 14, 17, 21, 23, 27,
rising trend of secularism in the 32, 43, 44, 77, 83, 107, 119,
West 56 180
Roman contribution to law and Shari’ah Appellate Bench 39,
constitution 19 132
Romans 19, 58, 79 sheikh or the spiritual guide 11
Rousseau 12 Shi’as 30, judges 30, law 30,
Rousseau’s exposition 12 jurist 168
rule of Islam in Spain 123 shūra 19, 23
Russian Revolution 3 significance of the study of
Shari’ah Law, 91
-- S -- Sirat-un-Nabi 137
Sa’ad al-Din Taftazani 22 situations that justify the use of
Sabians 69 force 149
sabr, 160, 178 siyar 70
Sabr, 178 social contract 12
Saudi Arabia 111, 140 society 48, 97, 99, 104, 123,
Saudis 30 140, 141
saying(s) of the Prophet (PBUH) society and state in Islam 100
9, 21 society based on economic
saying of the second caliph, interest 140
Umar 16 source of Islamic law 23, 107
saying reported from the third sources of biography of the
caliph, ’Uthman ibn Affan 9 Prophet 137
Sayyid Mawdudi 4, 40 sources of law 107
Sayyid Qutb 4 South Africa 101, 102
Sayyid Sharif Jurjani 18 South Africa’s apartheid days 99
science of siyar 72, 76 southwestern border of Saudi
scope of international law 82 Arabia 109
scriptural foundations of Islam 2 sovereignty 19, of Allah 20, of
scriptures of ancient religions British Parliament 75
55 Spain 30, 123
second basic principle of the Spanish Muslim Community 118
Islamic law of war 168 spiritual jihad 160
second caliph 16, 25, 31, 127, spoils of war 76
169, 170 St. Augustine 148
second category of non-Muslim stance of Pakistan regarding
co-citizens 108 recognition of Israel 86
Second World War 147 state 2, 4, 5, 9, 11, 12, 13, 15,
second-rate minority 87 17, 19, 34, 37, 48, 49, 78, 98,
109, 110, 139, 168, and its
197
Islam, International Law and The World Today

functionaries 17, and religion theologians representing the


13 Sunni mainstream 12
state religion 43 theory of social contract 11
state representatives 111 third principal of the Islamic
stateless 87 law of war 168
statements of the Quaid-i-Azam Third World countries 84
Muhammad Ali Jinnah, 5 those accidentally affected by
Subcontinent 3, 4 war 146
subject of siyar 71 those who have been wronged
subjects of international law 155, 163
60, 64 those who participate in
succession of the Prophet of hostilities in the battlefield
Islam (PBUH), 18 166
Sulemaniye Library in Turkey 71 those who participate in the
Sunnah 10, 13, 21, 70 actual war 166
superior court 62 those with illegitimate motives
superior judiciary 26, 35 66
superpowers 89 Those with legitimate motives
Supreme Court 26, 39 66
Syria 108, 125 those with moral considerations
system of government in 66
Pakistan 32 tiny Indian Muslim minority 117
tiny minority 137
-- T -- tolerant religion 174
Taftazani 18 total elimination of violence 66
Taif 111 tradition of Anglo-Saxon law 39
Taqi-uddin Nabhani 4 traditional ālim 35
tax imposed on non-Muslims 124 traditional Islamic ulema 35, 38
tax levied by the Muslim traditional or classical Islamic
government on Non-Muslims state 14
124 traditional positivist approach
tax parallel to zakāt 111 65
Tehran Airport 43 traditional Western
temples 119 international law 65
temporary minority 98 traditions of Prophet of Islam
tenure of the second caliph 6 (PBUH) 153, 178
Territorial nationality 8 treacherous 171
territory of Islam (Dar al-Islam) treachery 171, committed by
7, 152, 153 the ambassador 78,
territory of war (Dar al-Harb) committed by the state 78
152 treaty (ies) 58, and agreements
Terrorism 128 147, or contract 107, on
terrorist groups 179 International Law 78
test, 30 treatment of non-Muslim co-
the Four Gospels 136 citizens 105
The Hague 83 treatment of non-Muslims in
theocracy 40 Madinah 106
theocratic tendency 40 Tunisia 177
theo-democratic lines 35 Turkey 59
theologian 10, 13, 40
198
Index

twentieth century Islamic use of force 146, 149, 150, 151,


scholars 2 166, 168, against the
two sources of Islamic Law 44 liberation movement 151, by
type of jihad 158, 161 the colonizer 151, for Islam's
propagation 176
-- U -- use of influence of the state 176
ulema 35, 40, 48, as a class 40, use of power 176, in North
in Pakistan 35, opposing Africa by the Third Caliph 176
Pakistan 48 use of violence in international
ultimate basis for a lasting conflicts 65
religious pluralism 105 using force against the
ultimate basis of equality 126 colonizers 151
ultimate source and final basis using force against those
of international law 56 perpetrating civil war, 149
ultimate success in this world
and in the Hereafter 159 -- V --
Umar the Second, 26, 125 validity of international law 73
Umayyad(s) 7, 125, 153, 176, or vanishing point of jurisprudence
the Abbasid 15 73
ummah 6, 7, 8, 9, 20, 22, 23, 24 Verse of Permission 155
Ummah ad-Da’wah 85 verse(s) of the Qur’an, 21, 27,
Ummah and Imamah 9 68, 78, 157, 159, 161, 179,
UN and its subsidiary bodies 63 and important discourses in
UN Convention of Civil and the Qur’an 67, of Jihad 178
Political Rights 101 veteran of war 169
undemocratically elected vicegerency 19
government 45 viceroy of the ummah 22
understanding of the divine vicious circle 91
edicts 24 violence 128, 129
unending discussions on just and violent nation 126
unjust war 148 voices raised against the
United Nations or UN 69, 134, American policy in Iraq and
135 Afghanistan 90
United States 3 vote of confidence 43
unity and solidarity of ummah 7
unity of the Muslim ummah 156 -- W --
universal Muslim brotherhood 5 war(s) 57, 64, 65, 76, 109, 145,
universal principles of 146, 148, 152, 153, 165, 179,
international law 86 and aggression 175
universality and pan-humanism warlike situations 57
of Islam 156 warriors 76, 167
Universality of Islam 155 well-knit unit in the family 42
universality of Islam and West 3, 8, 15, 19, 47, 58, 59,
humankind 156 60, 71, 73, 84, 88, 123, 141,
unjust war 147 148
unjustified 151 Western 19, and European
usages and practices 57 powers 151, jurists 55, 56,
use and division of beds of the history 20, languages, 27,
high seas 61 media 174, minds 67,
scholars, 105, secular
199
Islam, International Law and The World Today

democracy 3, tradition, 62, World Bank 84


world, 1, 36, 39, 63, writers, world free from terrorism 128
19, 33, 147, 153 World Peace Summit 134
Western Caliphate 7 writings of Muslim jurists 19
Western capitals 84 writings of Shaibani 70, 72
Western civilization 58 writings of twentieth century
Western concept of revivalist scholars 2
international law 81 writings on international law
Western countries 90, 92, 99 149
Western Europe 74 written codified constitution 41
Western international law 60, written constitution 19
74, 163, and jurisprudence 64 wrong perceptions 174
Western scholars of WTO 84
international law 62
Western scholars of Islam 152 -- X --
wisdom of Chinese leadership Xinjiang 137
138
witnesses to Allah 27 -- Z --
women jurists 42 Zaid bin Ali 24
women scholars 42 zakat, 111, 117, 124, 125

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