The Place of the Undang-undang Laut Melaka in the History of the Islamic Maritime Law and Law of the Sea: A Preliminary Overview

With the expansion of overseas trade between the western and eastern countries of the Indian Ocean, diasporic Muslim mercantile communities established their own semi- independent judicial systems in major emporia outside the Abode of Islam in order to expedite judicial proceedings and prevent unreasonable delays.  Writing around 237 AH/851 CE, the Merchant Sulaymān (Sulaymān al-Tājir) reports that at Khānfū (Guangzhou, now Canton) – a rendezvous port for Muslim merchants – the appointed Muslim judge was charged with maintaining order and presiding over cases involving his co-religionists, regardless of their sectarian differences.  A century later, when Abū Zayd al-Sīrāfī (died after 330 AH/941 CE) arrived at Khānfū, the office of the qāḍī continued to exist.  He states in his Travel Account that “the merchants of Iraq cannot arise against (the judge’s) decisions” since “he acts with justice in conformity with God’s Book (Qurʾān) and the precepts of Islamic law.”  Indian rulers also sanctioned the handling by Muslim merchants and communities of their own civil and religious affairs, the administering of justice and settling of their own disputes in accordance with the Sharīʿah insofar as their actions did not impinge on the peace and order of the state.  The hunarman (a qāḍī-like official) was selected solely by the community of Muslim merchants and officially recognized as the chief judicial authority, compelling all Muslim litigants to comply with his decisions.  The fact that both the Chinese and Indian authorities had granted Muslim communities permission to arbitrate and resolve disputes and legal cases amongst their co-religionists is a conclusive indication of the extraterritorial application of Islamic law outside the Abode of Islam.

The above-cited travel accounts and modern scholarship remain silent as to the Islamic laws governing carriage by sea at times when Arabic was the world’s lingua franca and Muslim merchants controlled almost all ports and trade throughout the littoral of the Indian Ocean.  The aim of the present study is twofold.  It seeks primarily to shed light on the commercial instruments employed by Muslim merchants to finance their international trade, liability of shipowners, jettison, general average contribution and loss, salvage, and collision.  Its second purpose is to compare Islamic legal opinions, responsa (fatāwā), and practices from the western Indian Ocean with the Maritime Laws of Melaka (Undang-undang Laut Melaka) focusing mainly on their economic and financial clauses.  The promulgation of these laws, which are considered so far the oldest statutory maritime codes in Islamic nautical history, took place during the sultanate of Megat Iskandar Shah (14141-1424) – who adopted and spread the teaching of Islam in Melaka – and overlapped with Melaka’s emergence as one of the most vital entrepôts and commercial emporia on the Straits of Melaka.  The Code repeatedly refers to and affirms the primacy of adat (Malay customary law, probably Persian ʿādāt, from the Arabic ʿādah), some of which date back to the pre-Islamic era, while accommodating and assimilating Sharīʿah principles. Boschberg suggests that while the Islamic legal provisions applied to Muslims, the adat rules were intended to apply to all other seafarers and merchants.  In line with Boschberg’s hypothesis the proposed assay attempts to show that some adats owe their legal origins to Near Eastern maritime customs and practices and were perhaps transformed by Persian and Arab seafarers and merchants to the Malayan Peninsula and other Southeast Asian entrepôt.