Imam al-Shaybānī’s Pioneering Role in the Formation of International Jurisprudence: From al-Siyar to Contemporary Humanitarian Law

Professor Dr. Faid Mohammed Said

Abstract

This study examines the foundational contributions of Imām Muḥammad ibn al-Ḥasan al-Shaybānī (132–189 AH / 750–805 CE) to what may be described—through a modern academic lens—as the earliest structured form of international law. Through his two seminal works, al-Siyar al-Kabīr and al-Siyar al-Ṣaghīr, al-Shaybānī articulated a comprehensive legal-ethical framework regulating war, peace, diplomacy, safe-conduct, prisoners of war, treaties, and the rights of non-Muslims under Muslim rule. His theorization predates Hugo Grotius by nearly nine centuries and challenges the Eurocentric narrative that positions early modern Europe as the exclusive birthplace of international law. This paper presents al-Shaybānī’s contributions within their juridical, historical, and comparative dimensions, highlighting their relevance to contemporary international humanitarian law and global legal ethics. It also underscores the need to reinsert al-Shaybānī into present academic, legal, and diplomatic discourses as a precursor to many of the principles that shape modern international norms.

Keywords

al-Shaybānī — al-Siyar — Islamic international law — Grotius — humanitarian law — diplomacy — prisoners of war — Ahl al-Dhimmah — safe-conduct — treaty law — Sharīʿah and global legal history

Introduction

The writing of international legal history has long been shaped by a Eurocentric narrative that traces its roots from Roman law to early modern Europe, culminating in the works of scholars such as Hugo Grotius in the seventeenth century. This narrative marginalizes or omits the juridical contributions of other civilizations, particularly those of the Islamic world. Yet in the second Islamic century, Imām Muḥammad ibn al-Ḥasan al-Shaybānī—one of the foremost jurists of the Ḥanafī school—produced what can be legitimately regarded as the earliest systematic legal corpus governing relations between political entities.

His works, al-Siyar al-Kabīr and al-Siyar al-Ṣaghīr, constitute not only a codification of rules of war and peace but also a structured legal-ethical framework balancing state authority, human dignity, and moral restraint. They address combatant conduct, non-combatant immunity, the treatment of prisoners, diplomatic immunity, treaty obligations, and the legal status of non-Muslim residents and foreigners—concepts that align closely with what the modern world calls “international humanitarian law.”

This research proceeds from the premise that the retrieval of al-Shaybānī’s contributions is not an exercise in historical pride but a corrective to a truncated global legal memory. It seeks to demonstrate that international law, in both theory and application, is the outcome of cumulative civilizational engagement, and that Islamic legal thought provided an early and sophisticated articulation of transnational norms grounded in both ethics and jurisprudence.

In pursuing this aim, the paper will examine al-Shaybānī’s life, intellectual formation, and methodological approach; analyze the content and structure of the siyar literature; compare his legal codification with Grotius and other European theorists; and explore the contemporary relevance of his legal thought to modern debates on war, diplomacy, and humanitarian conduct.

I. Intellectual and Historical Context of al-Shaybānī

Imām Muḥammad ibn al-Ḥasan al-Shaybānī (132–189 AH / 750–805 CE) emerged during a formative period in Islamic legal and political history. Born in Wāsiṭ and raised in Kufa, he was shaped intellectually by two major environments: the rationalist legal tradition of Iraq and the ḥadīth-centered scholarly circles of the Hijaz.

1.⁠ ⁠Educational Formation

Al-Shaybānī studied initially under Imām Abū Ḥanīfah, the founder of the Ḥanafī school, and then under Abū Yūsuf, who would later become the first Qāḍī al-Quḍāt (Chief Judge) under the Abbasid Caliphate. His training granted him access to a juristic methodology grounded in analogical reasoning (qiyās), legal discretion (istiḥsān), and the principles of public interest.

He later traveled to Madinah, where he studied al-Muwaṭṭaʾ under Imām Mālik ibn Anas, acquiring a methodological appreciation for transmitted reports and the practice of the early Muslim community. This synthesis of rational and textual approaches would define his juristic outlook.

2.⁠ ⁠Statecraft and Judicial Experience

Unlike many theorists, al-Shaybānī held judicial positions in Rayy and Baghdad. His legal writings, therefore, were informed not only by scholarly tradition but by direct engagement with governance, diplomacy, and state administration. His texts reflect the realities of an expanding polity that negotiated treaties, exchanged envoys, entered truces, and engaged in warfare.

3.⁠ ⁠The Emergence of al-Siyar as a Legal Field

The rise of the Abbasid state, with its interactions across multiple frontiers, required a coherent legal doctrine to regulate relations with non-Muslim powers, internecine conflict, and the status of foreigners. Within the Ḥanafī tradition, al-siyar evolved as a distinct subfield articulating the rules governing war (jihād), peace agreements, safe-conduct, diplomatic immunity, and the rights of non-Muslims under Muslim jurisdiction.

Al-Shaybānī’s contribution was not merely participatory but foundational: he systematized and codified these rules into structured legal texts that could be applied in practice.

II. Defining al-Siyar: Concept, Scope, and Legal Theory

The term al-siyar in classical Islamic jurisprudence, especially among Ḥanafīs, refers to the normative framework regulating the conduct of the Islamic polity in its external and internal relations vis-à-vis non-Muslims. It encompasses:

• Classification of territories (Dār al-Islām, Dār al-Ḥarb, and other intermediary categories)
• Rules of warfare and truce
• Legal status of prisoners of war and civilians
• Diplomatic immunity for envoys and emissaries
• Safe-conduct (amān) for individuals and groups
• Treaty law (ṣulḥ, hudnah, muwādaʿah)
• Rights and obligations of ahl al-dhimmah
• Distribution of spoils (ghanīmah) and public revenues (fayʾ)

Al-Shaybānī’s Legal Methodology

Al-Shaybānī combined textual sources—Qur’an, Sunnah, and Prophetic practice—with analogical reasoning and consideration of public welfare (maṣlaḥah). His approach avoided abstraction by grounding rulings in empirical reality: the conduct of the Prophet ﷺ, the practice of the Rightly Guided Caliphs, and the exigencies of the Abbasid state.

Rather than a reactive discourse, al-siyar in his works constitutes a proactive and normative legal system, anticipating multiple scenarios of war, peace, diplomacy, and cross-cultural relations.

III. The Two Foundational Texts: al-Siyar al-Ṣaghīr and al-Siyar al-Kabīr

1.⁠ ⁠al-Siyar al-Ṣaghīr

The earlier and more concise of the two, al-Siyar al-Ṣaghīr functions as a foundational text setting forth overarching legal principles without extensive elaboration. It relies heavily on the positions of Abū Ḥanīfah and Abū Yūsuf and outlines the general doctrines that would be expanded later.

2.⁠ ⁠al-Siyar al-Kabīr

The more expansive and comprehensive work, al-Siyar al-Kabīr, is a multivolume legal encyclopedia detailing the application of the principles governing international relations in the Islamic legal framework. It elaborates on:

         •       Rules of armed conflict

         •       Protocols governing truces and treaties

         •       Treatment of prisoners and non-combatants

         •       Exchange of envoys and diplomatic immunity

         •       Obligations of the state toward ahl al-dhimmah and mustaʾminūn

         •       Allocation of fayʾ and spoils of war

         •       Enforcement of covenants and safe-conduct

Al-Sarakhsī’s monumental commentary on al-Siyar al-Kabīr further solidified its status as the constitutional reference of the Ḥanafī school in matters of international jurisprudence.

IV. Comparative Precedence: Al-Shaybānī and Grotius

Modern legal historiography frequently attributes the foundations of international law to Hugo Grotius (1583–1645), whose De Jure Belli ac Pacis laid the groundwork for what would become the European ius gentium. However, this narrative overlooks critical legal developments in the Islamic world nearly nine centuries earlier.

1.⁠ ⁠Temporal and Intellectual Priority

Al-Shaybānī’s works predate Grotius by centuries, not merely in terms of abstract notions of justice or ethical war, but in the codification of concrete legal chapters. His structuring of topics—jihād, safe-conduct, truces, treaty law, rights of non-Muslims, rules governing envoys and prisoners—reflects a methodical legal architecture comparable to, and historically prior to, European formulations.

2.⁠ ⁠Ethical and Legal Integration

While Grotius drew on natural law philosophy and Christian theology to rationalize norms binding on states, al-Shaybānī integrated revelation, juridical reasoning, and state practice to produce binding legal doctrine. His legal structure embedded ethics within enforceable norms rather than relegating them to moral discourse.

3.⁠ ⁠Influence and Absence

The absence of al-Shaybānī’s name from Western legal canons is not evidence of irrelevance, but of historiographical omission. Scholars of comparative law and Orientalists in the 19th and 20th centuries—including Joseph Schacht, Majid Khadduri, and others—recognized al-siyar as the earliest organized corpus of international legal norms.

The modern retrieval of his contributions thus serves as an intellectual corrective to the linear, exclusively European narrative of international legal development.

V. Core Doctrines of al-Siyar and Their Modern Parallels

Al-Shaybānī’s legal doctrine set forth principles governing state behavior that align closely with what is now codified in international humanitarian law and diplomatic conventions.

1.⁠ ⁠Conduct of War

• Warfare is not an arbitrary act but requires the authorization of legitimate authority.
• Proof, warning, and invitation to peace precede armed conflict.
• Distinction between combatants and non-combatants is mandatory.
• Mutilation is prohibited, and human dignity is protected even in battle.

2.⁠ ⁠Peace, Truces, and Treaties

• Truces (hudnah) and peace agreements (ṣulḥ) are valid with specified conditions.
• Covenants must be honored, even if concluded by non-state agents under recognized authority.
• Treaties are framed as legally binding, not merely expedient arrangements.

3.⁠ ⁠Diplomatic Immunity

• Envoys and emissaries enjoy inviolable protection.
• Diplomatic correspondence is safeguarded from violation.
• Political messengers are not to be harmed, imprisoned, or insulted.

4.⁠ ⁠Prisoners of War and Spoils

• Multiple options exist: release, ransom, enslavement, or execution under strict conditions.
• Context and public welfare guide the appropriate choice.
• Distribution of spoils is regulated to prevent exploitation and ensure equity.

5.⁠ ⁠Non-Muslim Residents and Foreigners

• Ahl al-dhimmah possess protected status with defined rights and obligations.
• Life, property, and honor are inviolable under covenantal protection.
• Mustaʾminūn (visiting foreigners under safe-conduct) retain legal immunity.

6.⁠ ⁠Covenants and Safe-Conduct

• Individual or collective amān (safe-conduct) is binding.
• Violation of covenants entails legal and moral consequences.
• The authority of amān can be granted by state figures and, in certain cases, by private individuals.

These doctrines illustrate not scattered opinions, but a coherent legal framework derived from textual sources, Prophetic precedent, and pragmatic statecraft.

VI. Manuscript Transmission, Commentaries, and Global Dissemination

The textual legacy of al-siyar reflects both its scholarly centrality and geographic reach.

1.⁠ ⁠Manuscript Tradition

Manuscripts of al-Siyar al-Kabīr and al-Siyar al-Ṣaghīr are preserved in:

• The Süleymaniye Library (Istanbul)
• Al-Azhar and Dār al-Kutub al-Miṣriyyah (Cairo)
• The Ẓāhiriyyah Library (Damascus)
• European repositories in Berlin, Paris, Oxford, and Cambridge

2.⁠ ⁠Commentary Tradition

Al-Sarakhsī’s commentary on al-Siyar al-Kabīr stands as one of the most extensive juridical expositions in the Islamic legal canon. It served for centuries as a primary reference in:

• Sharīʿah courts
• Judicial education
• Administrative policy
• Ottoman and Indo-Muslim legal adaptations

3.⁠ ⁠Modern Translations and Academic Engagement

Portions of al-siyar have been translated into English, French, German, Urdu, Turkish, and Malay. Contemporary institutes of comparative law and universities have drawn on these texts for:

• Graduate dissertations
• Studies in humanitarian law
• Diplomatic history
• Legal anthropology and ethics

The need for full critical editions and complete scholarly translations remains pressing.

VII. Contemporary Relevance and Legal Re-engagement

The global legal order today grapples with persistent challenges: civilian protection, ethical warfare, diplomatic immunity, refugee rights, and treaty enforcement. Revisiting al-Shaybānī’s legal corpus offers both conceptual depth and normative precedent.

1.⁠ ⁠Ethical Constraint and Legal Obligation

Al-Shaybānī’s framework posits that war is a last resort and that mercy is a binding legal principle rather than a moral luxury. His rulings limit the arbitrariness of power and place legal restraints on the conduct of states and armies.

2.⁠ ⁠Legal Recognition of the “Other”

Rather than viewing non-Muslims as an undifferentiated category, al-siyar acknowledges their legal personality through covenants, safe-conducts, treaties, and protected residence (dhimmah). This corresponds to the modern legal concepts of sovereignty, minority rights, and diplomatic engagement.

3.⁠ ⁠Institutional and Practical Applicability

Because the siyar literature emerged from a functioning state engaged in negotiation, peace-making, and warfare, its rules lend themselves to application in:

• Ministries of foreign affairs
• Defense institutions
• Legal codes of conduct in the field
• International courts and arbitration

4.⁠ ⁠Maqāṣid and Human Dignity

Al-Shaybānī’s reliance on the objectives of Sharīʿah—preservation of life, property, dignity, and covenant—makes his framework compatible with humanitarian law, which centers the human person as the beneficiary of legal protection.

VIII. Modern Institutional Continuity

One notable sign of al-Shaybānī’s enduring legacy is the establishment of the Shaybānī Society of International Law in Nicosia in 1984. Among its early initiatives was the publication of the Palestine Yearbook of International Law, which later transitioned to recognized academic publishers.

This development underscores three realities:

1. Al-Shaybānī’s legal thought remains relevant in contemporary international legal scholarship.
2. His jurisprudence influences discourse beyond the Arab and Islamic worlds.
3. There is growing interest in integrating Islamic legal heritage into comparative legal frameworks.

IX. Conclusion

Imām Muḥammad ibn al-Ḥasan al-Shaybānī is not merely a historical jurist but a substantive voice in contemporary debates on war, diplomacy, asylum, sovereignty, and legal ethics. Reviving his al-Siyar al-Kabīr and al-Siyar al-Ṣaghīr is not an academic indulgence but a restoration of a missing chapter in the global legal archive.

Reinserting al-Shaybānī into modern discourse achieves three objectives:

1. Historical Rectification
2. It corrects the erasure of non-European contributions to international legal theory and practice.
3. Normative Enrichment
4. It broadens the ethical and civilizational foundations of international law beyond secular Westphalian assumptions.
5. Legal Re-application
6. It enables contemporary institutions—judicial, diplomatic, military, and academic—to draw on a tradition that embeds ethics within enforceable norms.

Recommended Steps Forward

To operationalize al-Shaybānī’s relevance today, three actions are essential:

1. A new critical scholarly edition of al-Siyar al-Ṣaghīr and al-Siyar al-Kabīr, with comparative annotations and indices.
2. Full authorized translations into English, French, Spanish, Malay, and other academic languages, reviewed by interdisciplinary committees.
3. Applied legal studies that adapt the principles of al-siyar to contemporary legal manuals, foreign policy guidelines, and humanitarian codes of conduct.

By doing so, we do not revive a vanished legacy but contribute to repairing the moral fabric of international law. We anchor humanitarian norms in a tradition where treaties are honored, envoys are protected, civilians are safeguarded, and mercy is elevated to the level of law. This is the enduring lesson of al-Shaybānī—one that transcends time and place.

Footnotes (Chicago Style – Sample Model)

1. Al-Sarakhsī, Sharḥ al-Siyar al-Kabīr, vol. 1 (Beirut: Dār al-Maʿrifah, n.d.), 15–18.
2. Majid Khadduri, War and Peace in the Law of Islam (Baltimore: Johns Hopkins University Press, 1955), 23–45.
3. Muhammad Hamidullah, “Muslim Conduct of State,” (Lahore: Sh. Muhammad Ashraf, 1977), 67–73.
4. Joseph Schacht, An Introduction to Islamic Law (Oxford: Clarendon Press, 1964), 145–150.
5. Rudolph Peters, “Islamic International Law,” in The Oxford Handbook of Islamic Law, ed. Anver Emon and Rumee Ahmed (Oxford University Press, 2018), 321–338.
6. Khaled Abou El Fadl, Rebellion and Violence in Islamic Law (Cambridge University Press, 2001), 112–124.

Bibliography (Sample)

• Abou El Fadl, Khaled. Rebellion and Violence in Islamic Law. Cambridge: Cambridge University Press, 2001.
• Hamidullah, Muhammad. Muslim Conduct of State. Lahore: Sh. Muhammad Ashraf, 1977.
• Khadduri, Majid. War and Peace in the Law of Islam. Baltimore: Johns Hopkins University Press, 1955.
• Peters, Rudolph. “Islamic International Law.” In The Oxford Handbook of Islamic Law, edited by Anver Emon and Rumee Ahmed, 321–338. Oxford: Oxford University Press, 2018.
• Sarakhsī, al-. Sharḥ al-Siyar al-Kabīr. Beirut: Dār al-Maʿrifah, n.d.
• Schacht, Joseph. An Introduction to Islamic Law. Oxford: Clarendon Press, 1964