International law is a Western, or more precisely, a European phenomenon. As territories became well defined homogeneous secularized nations, international law grew in importance as a framework for international relations. The growing complexity of the interstate system which characterizes sixteenth and seventeenth-century Europe - fighting wars, concluding armistices, seeking peace, expanding power overseas to Latin America, Africa and Asia - urged the formulation of rules for international relations. Accordingly, with the voyages of discoveries, the ensuing colonial trade and imperialist domination, European international law, to which the American view was added from the nineteenth century onwards, spread over the civilized world and became universal.

In China the first forms of international law dates from the Zhou Dynasty during the last millennium before the Christian Era. Rules and laws of war were described, as were diplomatic law and dispute settlement procedures. China was isolated, autonomous and introspective. Other lands and distant people were less civilized, the notion of the law of the West was of no importance whatsoever, the Chinese did not recognize a 'ius gentium' (law of nations); the Chinese world order had its maxim 'all under heaven' or T’ien Hsia, as explained by Sun Tzu in the Art of War, "a masterpiece in a period of China's history known as the Age of the Warring States (403-221 B.C.)" (Mark McNeilly, Sun Tzu and the Art of Modern Warfare), p. 3).

McNeilly's edition of Sun Tzu's classic masterpiece

In this light, the Manual of International Law, for the Use of Navies, Colonies and Consulates by Jan Helenus Ferguson is most interesting. Ferguson, a Dutch representative in nineteenth-century China, observed a lack of knowledge amongst diplomats and therefore wrote the handbook. The impact of imperialism in communist Chinese ideology on traditional Chinese thinking about legal order and world order was revolutionary, even more so because of the anti-imperialist attitude, which was historically vivid in China.

International law and religion: The case of Islam Many religions allow us to take a stand in international law. In the Recueil des cours, for example, contributions on international law and Protestantism by Judge P. Kooijmans ('Protestantism and the Development of International Law', Recueil des cours, vol. 152 (1976-IV) , pp. 79-118) and on Hinduism by K.R.R. Sastry ('Hinduism and International Law', Recueil des cours, vol. 117 (1966-I), pp. 503-615) address the issue of religion.

The approach to international law as taken in the doctrine and practice of Islamic Law is also of interest. Islamic Law devotes great importance to tradition and history. Legal History is vital in the tradition of Muslim jurisprudence; Law is the revealed will of God by which the Islamic state is shaped and is the controlling mechanism. According to the Islam in international law siyar or natural law in the Islamic sense features in doctrines.

Al-Mawardi, who was born in Basra in 364 A.H./974 A.D. and died in Baghdad in 450 A.H./1058 A.D. at the age of 86, is considered to be the first jurist in the Islamic world to put down a theory of the Islamic state in its ideal form. After having attracted attention as a professor with a wide knowledge of the shari’a (Islamic law) and the science of the shari’a (the fiqh) he was chosen to be a Qadi (judge) in several cities, and finally in Bagdad. There he was appointed Supreme Judge. He also served as a diplomatic agent for the reigning caliph. In his famous work Kitab al-ahkam as-sultaniyya (Treatise on the Rules of Government) he describes the duties of the caliph both in religious and secular affairs, between which is made no distinction in Islam.

Title page of Fagnan's translation of Al-Mawardi's Les statuts gouvernementaux ou Régles de droit public et administratif.

Al-Mawardi

The four sources of Islamic law, namely Qur’an, hadith or sunna (the traditions of the Prophet, the corpus of recorded sayings and behaviour of the Prophet), ijma’ (consensus of scholars), and qiyas (anology) are the basis of Al-Mawardi’s legal reasoning. The caliph, subject to and applying Islamic law, is the head and defender of the umma (the community of believers). Its territory (dar al-islam, the house of Islam) has to expand into the dar al-harb (the house of war) by way of jihad (holy war). Those who refuse to become Muslims are to be conquered. Jews, Christians and Zoroastrians may also accept the protected status of dhimmi and pay special taxes. At the same time the caliph is head of the administation. Functional and territorial delegation is possible.

Up to the present many efforts have been made to adapt the theory of the caliphate to the modern conditions of society by using the same sources of Islamic law. The Peace Palace Library has a large collection on Islamic law, mostly secondary materials in western languages. A French translation, based on manuscript no. 1371 of the Library of Algiers, of one of Al-Mawardi's major works was published in Algiers in 1915 and made him known in the West (Les statuts gouvernementaux ou Régles de droit public et administratif, translated by E. Fagnan). It is a great example of a classic Islamic legal text.

English language introductions to Islamic law are Joseph Schacht’s The Origins of Muhammadan Jurisprudence (1950) and Noel Coulson’s A History of Islamic Law (1964).