The Lex Mercatoria Maritima: An Abridgement of the Jurisprudential Principles of the Early Islamic Maritime Qirad

Scholars maintain that commercial maritime laws in the Mediterranean world date to the biblical Near East. For instance, ten out of the two-hundred and eighty-two sections of Hammurabi's Codes deal extensively with maritime af airs.¹ By the end of the second millennium BC, the Phoenicians had become the world's principal seafarers. Although few legal records exist, historians tend to believe that the Phoenicians were among the earliest seafarers to constitute and codify a universal/uniform maritime law in the Mediterranean, which most likely formed the basis of subsequent maritime laws.² Beginning in the third century BCE, before Phoenician maritime dominance faded from the Mediterranean arena and was substituted by the Rhodians, their commercial networks extended from Egypt to Crimea and from Mesopotamia to Italy, Sicily, and Carthage. Rhodes had become an international emporium not only because of overseas trade activities, but also because of the establishment of its famous maritime laws, which regulated carriage by sea, the personal behavior of seamen and passengers, and commercial maritime transactions. The Nomos Rhodion Nautikos, which apparently evolved long before the emergence of the Roman Empire, was incorporated into Roman legal digests, the sixth-century Justinianic Corpus Juris Civilis, the Ecloga of Leo III (r. 717–741) and Constantine V (r. 741–775), and the late ninth-century Basilika. This uniform collection prevailed across the Romano-Byzantine Mediterranean, extending into the first century of the rise of Islam in the Western Hemisphere.³

Evidently, biblical and classical Hellenistic and Roman civilizations laid down enduring principles of commercial maritime laws. If that is indeed the case, how then did Muslim merchants and jurists contribute to the evolution of the lex mercatoria maritima? Did the Byzantine chreokoinonia, as established in article III:17 of the Nomos Rhodion Nautikos, form the legal basis of the maritime qirad? What legal features characterized the chreokoinonia and the qirad? How did the chreokoinonia and the qirad agreements treat the transporting ship? And, which of the two commercial methods (that is, chreokoinonia or the qirad) immediately preceded the arrival of the medieval European commenda? Clear answers to these above questions may permit a deeper insight into the evolution of the lex mercatoria from the second half of the tenth century onward.

"Wars by sea are merchants' af airs and of no concern to the prestige of kings" is a statement generally ascribed to Sultan Bahadur Shah of Gujarat (r. 1528–1537). It reveals a close connection among merchants, maritime law, and the customary law of the sea.⁴ Basic elements of maritime law and the law of the sea originated in merchant communities, along the Indian Ocean rim and the Mediterranean littoral, to meet the regulatory needs of overseas commercial networks.⁵ While merchants established commercial practices and principles of freedom of navigation, ruling authorities and jurists played a rather marginal role.⁶ The rulers' major contribution was in providing hospitable environments in port cities, including infrastructure, protection against pirates, and fair treatment.

Islam is a religion of divine revelation that favors commercial exchanges. The Quran assigns a prominent and positive place to trade activities. It refers nine times in seven suras (chapters) to tijara (trade/commerce),⁷ twenty-five times to the word ishtara (purchasing, buying, or exchanging),⁸ and thirteen times to bay' (sale or purchase) and its derivatives.⁹ Throughout the verses addressing worldly commerce, the Quran distinguishes righteous and lawful trading from usury and warns against pursuing materialism as opposed to spiritualism. Accordingly, religious obligations should take preference over personal material interests. Aside from commerce as a worldly occupation, the Quran occasionally employs the metaphorical sense of tijara in portraying the relationship between God and human beings as a business contract. For example, Muslims who properly perform their religious duties "may look forward to a trade [tijara] that will never perish."¹⁰

While still an adolescent, the Prophet Muhammad accompanied his uncle on trading voyages to Syria, thus acquiring experience in commercial transactions. As a young man, he turned to trade as a vocation, becoming the agent...