Sovereignty and jurisdiction

In his controversial The Impossible State: Islam, Politics, and Modernity's Moral Predicament, Wael B. Hallaq writes:

Generally, in whichever territory the Shari 'a is applied as the paradigmatic law, the territory is deemed an Islamic domain, Dar al-Islam.

These words reinforce the thesis of this chapter about the place of the Shari 'ah in determining the Islamic ‘domain’, to use temporarily Hallaq’s term, though the nuances of the deliberations of the classical Muslim jurists as well as the third division are ignored here. That is because, as shown above, the twofold divisions adopted by the majority of the jurists or the threefold divisions adopted by al-Shafi' i are aimed at ensuring the application of Shari 'ah by the Muslim community. The element of safety of Muslims as maintained by Abu Hanifa in non-Muslim territories is suffice for a territory to be a dar al-Islam and permitting the non-Muslim citizens of the Islamic state to be ruled by some of their religious laws as well as the jurisdiction the­ory treated below refute the claim that the territories ruled by non-Muslims where obviously Shari 'ah ‘does not operate, or in whichever it is relegated to a secondary, inferior status’, are to be forced to accept Islamic law ‘by war’. However, since Islam is a universal religion, Muslims are required to preach it to the rest of the world (Qur’an 16:125).

Agreeing with Hallaq, Khadduri who claims that one of the aims ofjihad is ‘the establish­ment of an imperial world state’, claims that ‘In theory dar al-Islam was always at war with dar al-harb. The Muslims were under legal obligation to reduce the latter to Muslim rule in order to achieve Islam’s ultimate objective, namely, the enforcement of God’s law (the Shari'a) over the entire world’.¹⁹ In his attempt to prove that ‘There never was an Islamic state’,²⁰ Hallaq argues that since sovereignty lies alone in the hands of God and that God is the sole legislator, then Islam aims at ‘building a moral-legal empire’ based on the divine moral will.²¹ Leaving aside the claim that there can never be an Islamic state in the modern sense of the word be­cause it is not the focus of this chapter, the principle of sovereignty in Islamic constitutional theory is of paramount importance and directly linked to the modern discussion of jihad, particularly since the middle of the 20th century. In fact, Hallaq’s conception of the principle of sovereignty is somewhat a reiteration of the conception ofjihad developed by Abu al-A'la al-Mawdudi (d. 1399/1979) and popularized by Sayyid Qutb (d. 1386/1966). According to the words of Qutb, since al-hakimiyya (sovereignty) is only for God and therefore His Shari 'ah alone must reign over the whole of humanity and that all manmade laws must be abolished, then Islam constitutes a permanent comprehensive revolution against all forms of regimes and governments in order to liberate humanity so that sovereignty returns solely for God. Quoting Qur’anic texts 3:64, 12:40 and 43:84, and reminiscent of what Hallaq described as ‘a moral-legal empire’, Qutb maintains that Islam wants to destroy man’s kingdom to establish God’s kingdom on earth. Although apparently self-contradictory and fundamentally utopian, Qutb recognizes that Islam does not accept forced conversion and at the same time he advo­cates that jihad is not only defensive.

The above agreement between Mawdudi-Qutb and Hallaq on resorting to offensive war to ‘bring non-Muslims to accept Islam’s law’ is a revealing development to the doctrine of jihad. Most likely, Faraj, who coined the formula the ‘near enemy’ versus the ‘far enemy’, was influenced by Mawdudi-Qutb’s interpretation ofjihad. Hence, it is understandable that Faraj claimed that jihad must be waged a fortiori against the ‘near enemy’, i.e. the Islamic government until Islamic law is wholly applied. In the words of Sohail Hashmi, ‘The focus of [contemporary] fundamentalist argument on war is thus inward, aimed at transforming allegedly hypocritical Muslim societies into true Islamic communities, led by true Muslim leaders’.²³ This explains the rise of radical violent Islamist groups who have taken up arms against the regimes in many Muslim states over the last few decades in an attempt to force the Islamization of their societies. In order to achieve this, what Faraj calls ‘the forgotten duty’, i.e. jihad in the sense of armed struggle, must be revived to re-establish the Islamic govern­ment system.²⁴ But resorting to offensive war to force the application of Shariah law against what Faraj calls the ‘far enemy’, the non-Muslim world, appears out of the question in the literature of even the most terrorist Muslim groups. That is due to, practically speaking, the lack of military force to confront professional armies of the so-called ‘far enemy’. Hence, the re-establishment of the caliphate would be a necessary step to unify the might of the Muslims and, according to the claims made by the Islamic State in Iraq and Syria (ISIS), Muslims ‘will own the world, and the east and the west will submit to’ them if they re­establish the caliphate and renounce ‘democracy, secularism, nationalism, as well as all other garbage and ideas from the west’.²⁵

These recent developments in the doctrine ofjihad indicate a drastic and historic change in several respects.

As argued above, the territorial division devised by the classical Muslims jurists aimed mainly at demarcating the territories which are peaceful/hostile to the practice and applica­tion of Islam. Therefore one can safely say that these divisions have fallen into abeyance — as generally believed by Muslims — following the establishment of the United Nations and the world’s agreement on the prohibition of offensive war. As a practical consequence of this division, the issue of the jurisdiction of Islamic law came to the forefront of the discussion. Before delving into the issue of the jurisdiction of Islamic law, it should be mentioned here that classical Muslim jurists divided the individuals of their world into four categories:

1) Muslim, whether living in dar al-Islam or in any other part of the world;

2) dhimmi (a non-Muslim permanent citizen of the dar al-Islam);

3) mustamin (a non-Muslim temporary resident/visitor of the dar al-Islam); and

4) harbt (a belligerent enemy).

It is interesting to find that classical Muslim jurists of the four Sunni schools of Islamic law developed three theories regarding the jurisdiction of Islamic law. According to the first theory, developed by Abu Hanifa, the eponymous founder of the Hanafi school of law, Islamic law has jurisdiction inside the ddr al-Isldm over only Muslims and dhimmis. Hence, Abu Hanifa adopts the principle of the territorial jurisdiction of Islamic law, but at the same time he also does not apply Islamic law to non-Muslim, non-permanent citizens of the Is­lamic state, i.e. the mustamin and the harbd, even for acts undertaken by them inside the ddr al-Isldm. Sovereignty over territory and its permanent citizens are both pre-requisites for the jurisdiction of Islamic law according to Abu Hanifa. Thus, Muslims are not punished for crimes committed outside the ddr al-Isldm. More interestingly, non-Muslim permanent citizens are allowed, for example, to eat pigs or drink wine because these are permissible in their religions, though prohibited in Islam. Maintaining the territorial jurisdiction theory championed by his teacher Abu Hanifa, judge Abu Yusuf (d. 798) developed the second jurisdictional theory arguing that Islamic law should be applied to non-Muslim temporary residents of the Islamic state. As for the third jurisdictional theory developed by the majority of the Sunni Muslim jurists, in addition to the jurisdiction over any acts committed inside the ddr al-Isldm, Islamic law has universal jurisdiction over Muslims and dhimmis irrespective of whether they live in the ddr al-Isldm or not.²⁶

Therefore, the claim raised above by Hallaq about forcing non-Muslims to accept Islam’s law is not true because, for example, according to Abu Hanifa’s jurisdictional theory, first, Islamic law does not have jurisdiction over non-Muslim temporary residents/visitors of the ddr al-Isldm; second, Islamic law is not strictly applied to non-Muslim permanent citizens and as a result they are allowed by Abu Hanifa to drink wine, for example, which is a major sin and a punishable hadd crime for the Muslims; and third, Islamic law does not have universal jurisdiction over Muslims outside of the territories of the ddr al-Isldm. Moreover, this succinct presentation of the three Islamic jurisdictional theories and the discussions and deliberations of the classical Muslim jurists prove that the main concern of their discussions of this issue is a practical matter, mainly, developing the rules regulating the actions of both Muslims and non-Muslims within these specific three jurisdictional theories.