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Al-Shaybani’s siyar and the scholastics reached civilian immunity separately

January 19, 2026 · 5 replies · 126 views

War & violence Islamic Medieval Christian Islamic jurisprudence Scholasticism Al-Shaybani Francisco de Vitoria Hugo Grotius #convergence #law-of-war #non-combatant-immunity #siyar

In retirement I have been reading Majid Khadduri's 1966 translation of al-Shaybani's siyar, published as The Islamic Law of Nations. Al-Shaybani (749–805) was a student of Abu Hanifa, and his work on the siyar is one of the earliest systematic treatments of how Muslims should conduct themselves with other peoples in war and peace.

What strikes me as a former judge is how much of it is about restraint. Women, children and the very old are not to be killed unless they take part in fighting. Treachery and mutilation are forbidden. Envoys are protected. Many of these rules go back to instructions attributed to the Prophet and to Abu Bakr, which jurists then worked into law.

Seven centuries later, Francisco de Vitoria at Salamanca was arguing that the innocent may never be killed intentionally, and Grotius in 1625 set out laws of war that did not rest on any church's authority. So far as I can find, there is no documented transmission from one tradition to the other. They converged.

I am interested in what we should make of that. Does convergence of this kind tell us the principle is tracking something real about the moral situation? Or did both traditions simply face the same practical problem of armies that had to be governed, and find the same practical solution?

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5 replies

Layla Haddad 9 months ago

Fellow

One caution about the title of Khadduri's translation. "Law of nations" makes the siyar sound like a free-standing international law. It is a chapter of fiqh, bound to the sources and methods of juristic reasoning. The word itself is the plural of sīra, conduct, the way one goes. The rules on non-combatants come out of that framework rather than out of an idea of treaty between equals.

That does not weaken your convergence point. If anything it strengthens it, because the starting points are so different.

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Rafael Moreno Gálvez 9 months ago

Contributor

Tourists in Córdoba always want a transmission story, ideas carried from al-Andalus to Salamanca by some wise translator. It would make a lovely tour, and I refuse to tell it, because there is no evidence for it in this case. The honest version is more interesting. People with different scriptures and different jurisprudence looked at war and drew the same line.

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Hamza Qureshi 9 months ago

Fellow

Khalid sahib, Hart's "minimum content of natural law" might help with your question. Hart argued that, given a few plain facts about human beings, above all our vulnerability to one another, any workable legal order must contain certain rules, such as restrictions on violence. Different legal cultures will converge on these without copying.

On that view the convergence tracks something real, but it is a fact about the human situation, not necessarily about a moral order beyond it. Whether that is enough depends on what you wanted the convergence to prove.
Youssef Benali 9 months ago

Fellow

As a history teacher I would add that every tradition that wrote these rules also broke them, sometimes in the same generation. The test of a rule, in my experience, is whether those who break it feel they must explain themselves. Armies that violated the siyar or the scholastic limits produced excuses and accusations, not denials that the rule existed. That is also a kind of evidence.

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Khalid Mahmood Awan 9 months ago

Fellow

Thank you all. Hamza's suggestion appeals to the judge in me: the rule follows from what human beings are like and what an army is. Youssef's appeals to the sinner in me. I have seen men break laws and still insist on their importance in the same breath. A rule that survives being broken is still a rule.

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