Sea Control - Sea Control 490 - Islamic Maritime Law with Dr. Hassan Khalilieh

Episode Date: January 18, 2024

Link: Islamic Law of the Sea – Freedom of Navigation and Passage Rights in Islamic Thought, Cambridge University Press, April 2019. 

Hey folks, it's Jared. My guest this week is Dr. Hassan Khaliliyeh, and we're discussing Islamic Maritime Law. This episode was edited and produced by Brennan Costello. Here at SimSec, we aim to further international maritime security through an exchange of ideas and the rigor of critical thought and writing. If you haven't already, please check out SimSec.org for new articles on the most important maritime topics. If you'd like to contribute to the discussion, check out the Write for SimSec tab to learn how you can submit articles for publication. Finally, I want to take the opportunity to recommend our partners in the SimSec Podcast Network, the Bilge Bones. You can find Alex, Jamie, Drack, and a pile of iron brew bottles wherever you download your podcasts. And with that, Kimber's Men.

You're listening to Sea Control, hosted by the Center for International Maritime Security. Hello, Hashimites, and welcome back to Board C Control. My guest today is Dr. Hassan Khalilieh, and we're going to discuss his book, Islamic Law of the Sea, Freedom of Navigation, and Passage Rights in Islamic Thought. So, Hassan, welcome. Could you tell the audience a little bit more about your background, please? I started my undergraduate studies at the University of Haifa, where I graduated from the Departments of Nursing Studies and Archaeology. Then I pursued my graduate studies again at the University of Haifa in Maritime Civilizations.

And immediately after I got my master's degree, I pursued my PhD at Princeton University, specializing in maritime history, in medieval Islamic maritime history. Well, welcome aboard Sea Control. As a reminder to the listeners, all opinions expressed today are our own and not representative of any institution with which we might be otherwise associated. So, Asan, I'll start very quickly. I kind of follow the path of your studies. At what point did you start to research Islamic maritime law? In fact, when I got to Princeton, I was thinking to write something, my thesis on medieval fortifications.

and my former advisor advised me to think about changing my graduate studies into Islamic Barik Hamlo. It was, you know, I didn't have a strong background in Islamic jurisprudence. Then he asked me this question, the Islamic empire expanded or extended from Southeast Asia to Morocco in the West.

Do you think that the whole maritime trade could have managed without or could have managed without maritime regulations? And that questions, you know, raised many, you know, those questions give me an idea. Well, should I pursue my graduate studies in Islamic maritime law? And that was, you know, the question that triggered me, triggered new thoughts, how to develop this subject. In fact, when I started, it's not like our days, I started investigating the subject by going to the Firestone Library, looking for specific terms associated with maritime issues. So going in the Arabic section all over classical Arabic sources was a tedious job, a very tough job. And this is the way how I started, looking for fatwas, responsa on Islamic maritime issues. By the end of my second year, I was able to collect more than 400 responsa on maritime law.

This is how I started. But, you know, it began with one question that my advisor addressed to me, and I got this question. And this is how simply I built my academic career, based on one question. So we'll jump into the book now. What was the interfaith debate amongst Islamic scholars about how to view the sea? Because you mentioned very early in your introduction to the book that there was a perception Muslims were afraid of the sea. indeed this question also my advisor

asked me when in my comprehensive exam in my general exam and saying that Islam is afraid of C, Islam is a religion, it's not you know it's a book, it's like saying Christianity is afraid of C or Judaism is afraid of C, the book doesn't it's not afraid of C and you know when you look at the Quran

you'll find that C was mentioned 33 times versus 11 times bar, land and And so Islam gives special attention to the sea. If we talk about Muslims, say, yeah, you're right. It could be right because not all of Muslims have access to the sea. Those who live in the hinterland, inland, away from the sea,

the sea is frightening. But those who live along the coastal frontiers say, okay, they make their living from the sea. And in fact, the largest is in the country. is an archipelago country which is archipelagic country which is indonesia so the whole the whole country is sitting in the sea with almost 17 000 or less 17 000 islands so and the largest population of muslims around the world you know located you know living in this around you know around the sea and you look for example like india india was yet the coastal frontier of india

is mostly created by Muslims, okay? Moreover, the first migration of Muslims was carried out on the sea, by the sea, sorry. When Prophet Muhammad started preaching his new religion in Mecca, in Quraysh, and the people of Quraysh, you know, pursued him and his followers. He sent his followers to the king of Ethiopia.

So they had to cross almost 300 kilometers or almost 200 nautical miles or less than that, nautical miles, to the other bank of the Red Sea. So the first migration in Islam was by sea, not on land. So Islam is not afraid of sea. Probably you can say Muslims are afraid of sea. Yes, not all of them. It depends where, you know, what you meant by Muslims.

Those who live in the desert or those who live on the shore. can you explain where the perception that they were afraid of the sea came from though because that was what i found interesting uh in the early part of the introduction that's true there are some scholars they say nobody can travel by sea except for pilgrimage and jihad jihad means strive in the cause of god strive in the cause of god so we don't i don't know we don't make parallel between jihad and and terrorism so um many scholars in you know of different law schools they say people can travel by sea for two purposes for hajj pilgrimage and and and and for for jihad nonetheless we see that the islamic empire especially from the umayyad period onwards

most of the customs revenues come from from the sea during the abbasid period the expansion of Islam in Southeast Asia with China, I mean, it's you know, it's true that the Quran doesn't say that, you know, that you don't travel by sea, you don't ride the sea. But there are those jurists who say

traveling by sea is intended for two purposes only. But nonetheless, we see that many, a great rate or considerable rate of Muslims living on the coast make their living from the sea so in the period that you were studying uh

where did islamic maritime power come from when did it reach its peak and what did that peak look like the islamic expansion in the mediterranean region was not destructive coastal frontiers former byzantine maritime installations simply they maintained these installations. The first sailors of the Muslim army, of the Muslim navy, were Greek Orthodox or Copts. So the maritime traditions of the former Byzantine and in the former Byzantine territories were maintained by Muslims, but in the course of time there are some traditions that were maintained by Muslims, there are some traditions that were brought by Muslims from from Arabia, like from

those who arrived from Oman or Yemen. Also, in the course of time, Muslims created presidents, legal presidents that are not found in the rodency law and the civil

law of Justinian. And this was basically what was, you know, my second book in comparative law, what Muslims have inherited from the former Byzantine and former Byzantine and Roman Empire, what they have rejected and what they have introduced.

Where did Islamic maritime law originate from and what sort of sources were you able to find and use for your study? I looked, we didn't have codified laws. The oldest codified maritime laws you find from the early 15th century from Islamic Malaya or from Malacca. However, we don't have codified laws, but we have responsa, we have common law. We found, and as I make sure through this, there are regulations, there are responsa questions, and there are fatwas.

Fatwas mean you get to a learned scholar and you address a question. So the question is not, you know, his decision. So his response is not necessarily obligatory. that's to say that you can take his advice you can either fulfill or say okay you can reject. There are some regulations these regulations normally when

Muslim scholars agree on some issues then they become a sort of rule or tradition, local tradition if the local tradition at the port of origin states that sellers must be paid before initiate work then the shape owner have to pay the full amount

before initiating but if the colloquial custom says otherwise then you have to follow the customs so in such case there are sometimes customs are stronger than legal decision

they are much stronger than than the opinion of a scholar let's take another issue let's talk about jettison human jettison

okay so this is beautiful questions um you know normally we start the ppi sailors and and the crew crew members and and merchants they start throwing the materials but when the materials are are over we are left with the humans how how we deal with human jettison some scholar says they start with with the slaves because they are they are human cargo we start with the slaves ok why slaves but the second caliph said

how you enslave people when they are when they were born free ok but some people consider them a human cargo some say you start with the slaves other says

it depends you start with the slaves but you throw those who are able to swim but when you throw them either, you know, throw them into the sea you release them you free them, okay others says

no you can't throw slaves because again, they were born free they have to be they have to be chosen by luck, okay so they are equal like every other person

inborn and there are some people said if the ship is closed to the shore, then you throw those who are able to swim, regardless if they are slaves or free people. So this is one of the controversial issues that I have encountered during my research. How did Muslim jurists approach naval warfare? Oh, naval warfare. Okay, we have two issues. We have piracy, we have naval warfare. With naval warfare, Prophet Muhammad said, a campaign at sea equals to 10 campaigns on land.

In such way, Prophet Muhammad encouraged his followers to travel by sea. In most cases, when dealing with naval warfare, the regulations on land are applicable to regulations at sea. When Muslims had to seize whatever enemy post or town, so they applied, when they encountered, they had to apply, you know, the warfare laws, even at sea. I mean, there are no distinction between the naval warfare at sea and those in land. However, Islamic law makes a clear distinction between piracy and naval warfare. Piracy, regardless, irrespective whether the pirate takes part in naval expeditions

and even gain even score victory Islamic law says that every pirate every Muslim pirate who participates in naval warfare that mission

is not considered part of the jihad so he has to be he has to be adjudicated and judged based on being a pirate not a jihad or not a striver in the cause of God. So even if they take part in naval expeditions,

such pirates have to be educated according to Islamic law. Islamic law is clear about piracy, and if you want to take, we can talk a lot about it. I do want to explore that because, you know, as an American, I think one of the things we get taught about is the quote-unquote Barbary pirates. Now, I visited Algeria and I've been in the Algerian Military Museum. I've listened to the guide telling us as we walk through about the Algerian, he referred to it as the Algerian Navy, and that they had many agreements with countries. And that was a very different perspective for me to hear. I'm not positive I agree with him, but is that viewpoint in part based on the interpretation of law that you're referring to there is like, well, this is our Navy.

So, you know, these are not pirates and we're going to adjudicate them differently than, again, like a very American viewpoint of these are pirates. you know if you talk about pirates in North Africa we have to distinguish between two terms we have pirates and privateers and some people claim that Khairuddin Barbarossa

and his and his brother were pirates based on what I have read they are not pirates they are neither pirates nor privateers simply they were

Mertan jihadists but Islam's law is very clear if you look at the Surah Al-Ma'idah the Last Supper I think verse 31 33 refers to

to Brigandish and it is clearly said that Brigandish regardless whether it takes place at sea or in land they have to be they have to be adjudicated in accordance with Islamic principles so the rules the laws against

piracy which Muslims established in the 11th and 12th century are echoed and maritime laws of Great Britain and France they had to be either crucified and normally the crucifixion takes place on the shore or expelled out of the Islamic maritime, out of the Islamic territory

normally in fact during the Umayyad period pirates were sent to the island of Dahlak Dahlak is located nearby Bab-el-Mandit Strait, Bab-el-Mandit so

Islamic law doesn't tolerate pirates and doesn't tolerate brigandage on land. We can't compare, we can't associate piracy sorry, we can't associate piracy with maritime jails.

These are different terms. Now, back to the Algerian case. We know that the Algerian pirates were empowered or got got their recognition

from the British Empire. And we know about the struggle between the British Empire and the French Empire, or the French. So simply, the European countries took advantage

of the piracy in North Africa, or the, you know, the Berbers of North Africa. But, you know, it's a different story. It doesn't have to do with Islamic law. It has to do with international relations. If you look at medieval international treaties between the Italian states and political entities in North Africa, they have special articles referring to piracy. Both entities, the Islamic annotation entities, had to fight piracy. So piracy normally was

combated by, you know, combating piracy couldn't have been successful without some sort of international relations between political entities around the Mediterranean. Well unfortunately that's all the time that we have for today. I'd like to thank my My guest, Dr. Hassan Khalilieh. Hassan, where can we find you online, and what is your next project? I'm writing a book on Islamic maritime laws in the Indian Ocean between the 9th century and the 12th century, Abbasid period, based on Ghani Zakharu evidence and jurisprudential sources from Oman.

I hope you'll reach back out once you go to publish here, because we'd love to bring you back on and talk about that and discuss the differences between what you found in the Mediterranean and what you found in the Indian Ocean. But thank you again for joining us. To listeners, thank you for tuning in. We'll see you next time. © transcript Emily Beynon

We'll be right back.