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| Marcel A. Boisard
THE PROBABLE INFLUENCE 0F ISLAM INTERNATIONAL LAW
On the occasion of the fifteenth century of the hijra, many scholarly publications will deal with various aspects of Islamic history, among which is the contribution of the Arabo-Muslim culture to Western civilisation. Philosophical and scientific contributions have already been discussed many times. The legacy of Islam in the field of international law has, however; not yet been studied at length. Given the size of the subject, which I have approached from a perspective up till now little explored, this paper represents a modest attempt. As the fruit of long considerations, it may prove to 8timulate more thorough historical re- search, if my premises are judged to be plausible. I have presupposed a knowledge of the international philosophy of classical Islam1 and of the difficulties encountered in the ordering of relations between Christian nations during the Middle Ages. THE PENETRATION OP IDEAS For at least seven centuries, Islam represented the quasi-totality of the culture of the Mediterranean Basin. Its relations with Christianity were both many and complex. There was reciprocal hostility and distrust, some peaceful exchange, and some humanistic and cultural intermingling. The information that we possess regarding the mutual relations are quite numerous, if scattered and uncertain. For several decades now specialist research has once more been trying to demonstrate how the influences and acquired knowledge of various kinds passed from one civilisation to another.2. To analyse the influences in the field of law is a difficult task. Identical ideas may be generated spontaneously without showing any imprint whatsoever. What is more, the time lag, generally fairly long, that spans the time between the impact of a symbol and its concrete acceptance is a further source of difficulty. Metaphysical speculation evolves more rapidly than the legal theory that flows from it, and yet, events, in their social complexity, are leavens of legal innovation. We must therefore place our observations in truly historical perspective, that is to say, in relation to the general evolution of ideas deeply embedded in social reality. In considering the period preceding the modern era, [end of page 429] when the concept of the State had only just been formulated and when international law was based on a different series of principles from those of today, it is difficult not to superimpose current ideas on those of previous eras.3 The influence of Islam on the West awakening from the Middle Ages merits examination in its totality. To estimate that most subtle of penetrations, that of ideas, leads one of necessity to make estimates or, at best, presumptions. Since we cannot follow them in their passage through the system, we must assume that this passage took place. Ideas, and in particular legal ones, were propagated by travellers, pilgrims, and those engaged in commerce, by warriors of various social categories, and by philosophers and intellectuals whose writings have not come down to us. Apart from psychological prejudice which led to the omission of reference to sources, the fanatic zeal of a Christianity passing to the counteroffensive led to the absurd destruction of innumerable works in the reconquered territories. This makes it even more difficult to rediscover concrete traces of intellectual penetration. We must therefore imagine rather than prove.
In approaching the subject from a narrow perspective, we shall have re- course most of all to information gleaned mainly from the specialised works of modern authors. A more complete study would necessitate the consultation of such original sources as the documents relating to the Crusades, to Norman Sicily, and to "reconquered" Spain. Other possible sources would be the, archives of religious orders, the pilgrim accounts, and those of diplomats and traders as well as the appraisals of Islam by Catholic theologians, by reformers and humanists, for example. In our opinion this is a task that remains to be done.4 WAR AND TRADE Means of transmission were varied, personal or collective, peaceful or violent. The most fruitful points of contact were in those territories which changed hands, the most constant vectors being soldiers and traders. War and negotiation brought about communication between cultures. Before going into the analysis of the three major events - the "reconquest" of Spain and of Sicily and the Crusades - which put Islam and Europe into contact over a long period, we should mention the occasional relations that were able to exert a direct influence [end of page 430] on the development of Western international law and in particular, of course, on the "law of war." "Buffer zones" Were created between Christian and Muslim, leaving an extremely, fluid definition of frontiers. The vicissitudes of War caused urban centres, even entire towns, to pass from one set of hands to another. In the actual conduct of hostilities, if not in the field of the intellect, influences were thus infiltrated. For nearly three centuries raids and privateering expeditions as well as temporary invasions were frequent between the Mediterranean and the Swiss Alps. It was noted that there was a succession of "murders, pillage and burnings"5 or, in contrast, a benefit for those "regimes where the cuttings of Arabic civilisation would later take root".6 The immediate impact Was undoubtedly of no great importance, since the invaders were usually nothing but adventurers in search of booty rather than conquerers with the ultimate idea of permanent colonisation.7 Parallel to this, the cultural level of the European population was too low, initially, to see in the invaders anything other than a divine punishment for men's sins. With the passing of time, however, there came to be an affirmation of Islamic influences in It Europe that was gradually ending its confrontation with Islam, and a beginning of interest in its culture. On the field of battle, the invader began to introduce the practice of giving quarter, followed by the systematic and regular ransom of prisoners. If concrete influences aloe difficult to determine, and if they were, incontestably, much less important than those coming from Spain or Sicily, it is nonetheless certain that they deeply affected the popular mind. The literature of the period8 imagined the glorious exploits of Muslim leaders who were presented as paragons of nobility and of chivalric spirit, perhaps to increase the gallantry of the Christian knights. This glorification of the "unbelieving" Emirs had the effect of conserving in the French mind an image that presented only the civilising aspect of the invader. He was attributed such merit that the Roman remains were, by a naive deformation of history, denoted as "Saracen." The direct victims of combat - hostages, prisoners of war or those kidnapped and taken into slavery - in all probability also contributed to a transmission of certain conceptions and ideas that had been encountered in the Orient. The author of Don Quixote was imprisoned at Algiers. A century later, at the dawn of the seventeenth century, he who was to become St. Vincent de Paul, a former slave in Tunisia, founded a congregation for the moral succour and repurchase of captives. Certain members of European noble families were taken hostage and sent to Muslim courts, Treated as guests, they probably cannot but have been impressed by Muslim culture of which they were the direct propagators upon their return home. Muslim women were captured and taken into the; West where they made a contribution towards the refinement of feudal courts. Finally, nobles, adventurers, local chiefs, and princes of the blood sometimes had to exile themselves in the Arab world,9 On the individual level, it is evident that cultural transmission took place from the more to the Jess cultivated, in other words from Islam towards the West. [end og page 431] War always brings a cortege of unfortunate victims in its train. Refugees of different origins took lheir science and their knowledge with them. After being persecuted many" Almudajares" (Al-Mudajjanin) Muslims fled to the other side of the Pyrenees, taking with them all the refinement of the Arabo-Muslim civilisation of Andalusia. In contrast, the expulsion of the Spanish Muslims by Philip III had the effect of pushing towards France and Italy a section of the highest placed Arabs and Jews, contributing to a transmission of the knowledge of the philosophic writings of antiquity. By these few brief reminders, presented in a somewhat brutal and anecdotic form, we hope we have shown that East and West did not remain as if they were two facing monolithic blocs. On the contrary, there was an incessant intermingling of different sections of the population. We can further show a significant number of marriages between princes and princesses of different religions,10 Fortun Garsias, the successor to the throne of Navarre (at an unknown date at the end of the ninth century), was the great-grandfather of the greatest Omayyad Khalif of Spain, Abdel Rahman III. King Alphonse VI of Castille married an Arab, the daughter of the Khalif. In the Islamic East, the wives of the fourth and eleventh Shiite Imams were, respectively, Sassanide and Byzantine.11 Al the heart of the Crusades, it was imagined that Richard the Lionhearted would marry Saladin's sister, These examples illustrate vividly the frame of mind that prevailed at the time. The influence of Islam infiltrated feudal Europe along the commercial routes. Trade was a particularly effective vector of progress and law. The very liberal Muslim legislation facilitated the passage of foreigners across the Muslim world and that of Muslims to the outside. Whilst Italy was beginning to awaken intellectually from the tenth and eleventh centuries on, the rising standard of living provided a demand for oriental products. Contacts between Islam and Europe grew progressively through Spain, Salermo, and Sicily. as well as through the ports of Venice, Genoa, and Pisa. European traders spent several months in the Levant at the beginning of autumn and half of the spring every year, thus introducing themselves to Muslim morals and customs. These activities brought about the creation in embryo of an international commercial law. Islam. as a great merchants' power, recognised the principle of the freedom of the seas. From the twelfth century onwards, free circulation of river traffic became the rule in medieval Europe, and commercial treaties multiplied. Closely connected with the freedom of commerce was a reinforcement of the respect due to the person of the foreigner and to the guarantee of diplomatic immunity. 1'he commercial agents, who preceded the diplomats, were installed to give birth to European consulates on Islamic soil, a system that was perfected after the period of the Crusades. Italians, Catalans and merchants from southern France (Provence) were the first to start the establishment of consulates in the Muslim Levant.12 As early as the thirteenth century, Marseilles stated in its municipal consitution its full respect for foreign property, even in time of war, to emulate that granted to French merchants on Egyptian and Syrian coasts. As a matter of fact, the protection of foreign travellers and merchants has been an imperative obligation on the Muslim community since the rise of Islam.[end of page 432] 'Classical” legal theory developed it at length.13 Consequently, such practices, derived from Muslim law, were later included in commercial treaties. We could here quote, as an example, the treaty of 1489 between the Republic of Florence and the Mamluk Sultan Qa'itbay.14 Signed after three years of negotiation, this treaty appears rather as a decree from the Sultan to his administration in Egypt and the Syrian Levant than as a bilateral and reciprocal international instrument binding the two parties. Apart from the mere safeguard of the merchants and a guarantee of their rights, the treaty enters into many details, such as customs taxes (14 percent), administrative fees, the establishment of a consul among the merchants in their own funduq, ways of settling credits, and so on. It even includes the possibility of arbitration by the Sultan between Florentines and any other nation or race on Mamluk territory or seas. Even if it introduces some juridical principles which follow European practices, this commercial treaty adheres closely in content to Muslim law and traditions, referring for in- stance to the Shariah (art. 8 and (6) and to the huquq shar'iyya (art. 18 and20) Trading practices with the Muslim Levant not only led to the signing of international treaties but also to the development of customs and laws with Western Europe. It was, indeed, also from the Iberian Peninsula that originated, in 1340, the Consulate of the Sea, a codification of traditions and rules, some of which had already existed since the eleventh century. Drawn up at Barcelona, it gave a definition of the rules of maritime commerce, even in wartime - stating that "liabilities of cargo and ship did not affect each other"15 - dispositions confirmed during the nineteenth century, after the Crimean war. The Consulate of the Sea "refers to the two main areas of marine law. The first area . . . is concerned with the generally accepted customs of marine and trade, while the second area. . . relates to privateering piracy, armed naval expeditions, convoys, marine insurance, bills of exchange and other- sundry matters."16 It, of course, also defines the juridical competences and the procedure of electing the Consuls of the Sea. It is considered as a main contribution to early international law, as a codification of maritime rules and customs pre- scribing duties and rights of shipowners, merchants and commanders of vessels from different countries, in their mutual intercourse and disputes in maritime matters. Further research will more clearly show that it was not merely by chance that the Consulate of the Sea blossomed in a region of the world that was... most sensitive to exterior influence and Musljm domination. It would be unfair to ascribe to pure coincidence that such a convention - corresponding to "classical" Islamic laws and practices - appeared in this re- giol1 of Europe, one which was the most influenced by Muslim culture. Traders of repute, the Catalans, quickly faced commercial competition with Venice, Genoa, and Pisa. Trade with Levantine ports was stimulated after the Crusades and the breaking of Arab sea power. Moreover, up to the end of the fifteenth century, most of the commercial routes crossed Muslim lands. The intercourse between East and West brought not only new goods from distant countries but also knowledge of navigation and navigational instruments17 making travelling less hazardous and spreading commercial rules and practices in use in Arab [end of page 433] harbours. A kind of corpus juris made of the ordinances of commercial cities, the decrees of local kings, the decisions of urban arbitration courts and the customs of merchants, grouped in guilds18 since the eleventh century, progressively gained general acceptance. Codification started at the beginning of the eleventh century" In the thirteenth century, Louis IXth, on his return from Palestine, promulgated laws regarding naval affairs and trade. The movement towards codification was general in commercial Western countries, but can always be referred back to experiences and relations with the Levant. To conclude these few lines on the transmission of Islamic culture to the West by peaceful means, we should note the role played by the Jews. Their intermediary role was considerable, their history subtle and confused. They acted as direct and indirect agents of transmission. Besides their activities as translators and diffusers of Arab works, they were also transmitters on a "secondary level", since Islam forced them to reform themselves before bringing with them to the West a Jewish humanism impregnated with Muslim precepts. The teaching of classical Judaism offered more in the way of concrete principles of action than it did metaphysical maxims liable to nourish intellectual speculation. The awakening of Jewish philosophy, which was equally a departure from its usual particularism, was provoked directly and from the inside by Islam. The Arab conquest and the Islamification of the Middle East freed the Jews, who then left the countryside and regrouped themselves in homogeneous urban communities, This movement led to a veritable "bourgeois revolution" of Jewish society.19 On the plane of ideas, the fiercely individualistic Karaite reformation erupted in the eighth century, borrowing numerous arguments from the disputations of Muslim philosophers on the question of free arbitration, The position they took led to the blossoming of a new Jewish liberalism and a critical humanism confident of the power of man, Karaite and Mutazilite ideas so resembled each other that "works of one of the groups could be accredited to the other one."20 Accepted and absorbed by orthodox Judaism in Egypt at the end of the ninth century, the ideas borrowed from Islam led to the birth of a new rationalistic philosophical school to which was attached Maimonides, among others. The influence of Jewish thought on European civilisation cannot be objectively understood if it is isolated from the Arabo-Muslim context that impregnated and spurred it on. Arabic influence, of determinate importance for the "reformation" of Judaism, continued to assert itself on a Jewish thought which was anxious, as was Muslim philosophy, to harmonise divine revelation and reason, Thus we can consider that during the fourteenth and fifteenth centuries ., Jewish philosophy nourishes itself totally from problems and argumentation which were inherited from the Arabs."21 CULTURAL OSMOSIS Having briefly summarised the action of particular, occasional, and individual elements, we should first give some attention to the three principal centres of the diffusion of Muslim culture in the West before going on to the Crusades. [end of page 434] The main points of contact between Islam and medieval Europe were through Spain (where we see the emergence of an embryonic Western international law), Sicily, and southern part of Italy and its ports. After Spain and Sicily had been conquered, both presented a common aspect of primary impol1ance: the coexistence, at least for a time, of the victorious Christians and the subject Muslim populations. In military defeat, Islam gave to the West all its cutural treasure. This superimposition facilitated the diffusion of both knowledge and techniques. Historians recognise that the seven centuries of Muslim domination in the Iberian Peninsula exerted not simply a fruitful influence, but rather an intellectual and social "impregnation" which was to radiate throughout the continent. Spain confirmed itself as the privileged "bridgehead" for the relaying of a culture born in the East, to which it gave certain original formulations, especially in philosophy. An endless flow of European students22 crossed the Pyrenees to listen to the teachings given in various provincial capitals. In the ninth and tenth centuries, Cordoba was the most cultivated town in Europe. Its destruction at the beginning of the thirteenth century made Toledo one of the principal intellectual centres of Spain, a position it held until the Christian conquest in 1085. As a centre of translation of oriental works into Latin, it became an essential link between the Muslim and Christian cui lures. The civilisation's osmosis was facilitated by the existence of Spanish Mozarabs who had remained Christian, even if they were linguistically and culturally Arab, and by the fact that Arabic had continually existed side by side with dialects of Latin origin.23 Pertinent in this context is the work of Alphonse IX, the "Wise One," Imbued as he was with Muslim civilisation, he was in the second half of the thirteenth century the patron to the production of an impressive number of volumes compiled from Arab sources. The greatest part of the available documents he had translated into the vernacular and built a grandiose observatory. He created the University of Salamanca, the role of which is known in the elaboration of what was to become modern international law. Alphonse IX drew up the first codified volume of laws in Europe: Las C;iete Partidas. 24 It is a mixture of civil, public and ecclesiastic laws, with political, as well as procedural rules regarding foreign relations. It expressed his will to unify the country and impose an absolutist regime. It rapidly gained authority and appeared as common law. The second Partula deals with armed conflict. It was, in fact, preceded in "Muslim Spain around 1280 by the Villayet a text that enumerates the centuries- old Muslim laws of war. Mentioned were the protection of children, old people, women, invalids, and the mentally ill, the safeguard of political representatives and those in need of safe conduct, as well as injunctions against bad faith, and perfidious and disloyal actions. The Prologue states that Las Siete Partida. is a compilation of the "sayings of Saints and of wise men of Antiquity", but in fact, it appears both in form and content as a direct adaptation of Muslim law. It is arranged in casuistical form, dealing with the prerogatives of the King and hjs duties before God, his family, [end of page 435] his people. It includes considerations on the legitimacy of a "just" war, of military organisation and rules and practices applied in armed conflict. The basic content sounds like a Muslim treaty of siyar. A few examples are sufficient to illustrate the phenomenon: Spanish military institutions are copied from the Muslim system, including the fighting tactics of the ghazzia (qhazwah: the Conquest), described as cavalgada. The corps of frontier guards (chap. xxii), the almogavares (from al-mujawirun, frontier guards) were organised and had the same functions as the Muslim soldiers in Ribat, an institution of a military and religious nature. Stipulations assess the value of animals, arms, and goods brought by a private soldier into battle for indemnifying him in case of loss,25 Last but not least, the proper naming of the leading officer is an Arabic term: Almucadem (from al-muqaddum, the one presented at the front). A full chapter (chap. xxvi consisting of 34 articles) dealing with the distribution of booty expresses Koranic rules and laws developed by legal speculation in the Muslim world during the eighth and ninth centuries. For example, a fifth of the booty should be reserved for the king, as well as the rights of postliminium and of repossession of the prize. This means that booty recaptured before arriving at the destination belongs to the initial owners. Chapter xxx deals at length with the treatment and ransom of prisoners of war. An officer, alfaqueqe (from al-jakik, the ransomer), was given special charge of negotiating and ransoming prisoners in enemy or Muslim hands. And, finally, in the seventh Partida, stipulations are found regarding the security of foreign and "infidel" envoys, which are clear copies or direct translations of the detailed Muslim rules on safe conduct (aman). The importance of Las Siete Paridu. in the birth of modern Western international law is acknowledged by specialists. The direct and obvious influences it received from Muslim law and customs remain to be brought to light. Download 106.9 Kb. Share with your friends:
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