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16

Aug

2021

Cadastral Jihad: On the Spatialities of Law and its Absence in early Islamic Law

 
 

It is commonplace for most to translate the Arabic term jihad as holy war. From the medieval Crusades to the War on Terror, the term evokes images of the turbaned militant warrior. Jihad on this reading is inherently militant, and is made to characterize if not caricature Islam and its adherents as threats if not enemies to Western civilization. On this imagined abiding threat, one need only recall Samuel Huntington’s convenient “Clash of Civilizations” thesis. Of course, others would counter this characterization of jihad byemphasizing its more spiritual, introspective imperatives. The Prophet is often quoted as noting that the jihad against the self (rather than against the military enemy) is the greater jihad.

These common themes in popular rhetoric take for granted the militant frame that inevitably encircles any discussion of jihad.  Either jihad is a doctrine of militancy against external threats, or it is hardly militant at all, let alone directed externally.  In either case, militancy and violence (and their absence) are hallmarks of water cooler chit chat, and online and broadcast punditry.

Curiously, an examination of premodern Islamic legal doctrines on jurisdiction (wilaya) offers a surprising new dimension to what it may have meant to think jihadly. Premodern Muslim jurists often wrote about jurisdiction with two different geographic spaces in mind.  On the one hand there was the dar al-Islam, the dominion of Muslim suzerainty.  In the dar al-islam, one would expect to find an Islamically fashioned political bureaucracy framed by and enforcing Islamic legal norms on the polity. On the other hand, there was the dar al-harb, or what might be termed (for jurisdictional purposes) as the Dominion of non-Islam.  For Muslim jurists, there was no law in the Dominion of Non-Islam.  It was, for all intents and purposes, a space of legal absence. When addressing questions of jurisdiction, these two dominions helped inform whether and to what extent a judge in the Dominion of Islam might hear and decide on a case that originated in the Dominion of non-Islam. Perhaps the parties were from the Dominion of non-Islam. Perhaps the underlying legal issue stems from a transaction that occurred in the Dominion of non-Islam.  In these and other cases, Muslim jurists made jurisdictional determinations by thinking jihadly.

Thinking jihadly, jurists mapped the world into administrative units. Within the Dominion of Islam, those administrative units informed complex jurisdictional rules under the rubric of wilaya. In the case of the Dominion of non-Islam, thinking jihadly informed a host of strategies that would inform how Muslim judges in the Dominion of Islam would entertain and decide cases that had a “foreign” element. Jurisdiction allows us to appreciate how jihad in this context operated cadastrally.  It mapped space into distinct administrative units for purposes of bureaucratic management, such a judicial case management.

To those who are committed to the more common place understandings of jihad, cadastral jihad might appear an artifact of antiquarian curiosity. In our modern context of individual and equal states that cooperate in multilateral forms of global governance, there might appear to be little of this cadastral jihad that has survived the premodern imagination of Muslim jurists.

While such a dismissive attitude might be tempting, it is far from correct.  As we write elsewhere, a vexing issue that consumes considerable diplomatic energy is the phenomenon of international parental child abduction. Such cases often take shape in the context of family breakdown, with one parent absconding with the children of the marriage to a jurisdiction that does not recognize any prior custodial agreement. These situations are sadly commonplace.  While the Hague Abduction Convention, 1980 sought to address this phenomenon, the Convention has had limited uptake in Muslim Family Law States. Muslim Family Law States are those that integrate within their domestic legal system Islamically-inspired Family Law statutes and adjudicatory bodies.  Muslim Family Law States have largely refused to join the Hague Abduction Convention on the basis that the Convention violates the substantive law of their Sharia-inspired domestic legal orders relating to Family Law matters.  Their refusal to join the Convention is often characterized in terms of both sovereign commitments to domestic law, and long-standing debates in the international (and academic) community on human rights absolutism and relativism.

But what these analyses fail to recognize is that much of the problem lies in competing ideas of jurisdiction. Muslim Family Law states generally have no problem thinking creatively about jurisdiction.  But when they promulgate Family Law statutes that draw on the premodern doctrinal traditions of marriage, divorce, and child custody, they inadvertently import the cadastral jihad of premodern jurisdictional thinking. The Convention, with its promise of automatic return, is a jurisdictional convention. It demands the automatic return of the child to his or her habitual state of residence, not because that is where custodial authority best lies, but because the courts of that jurisdiction are best positioned to determine custodial rights on the merits of the case. Muslim Family Law states and their courts cannot recognize this foreign law because, in thinking jihadly in Muslim family law settings, they see the family law of the Other as not-law at all.

Jurisdictional Exceptionalisms by Anver M. Emon and Urfan Khaliq

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About the Author: Urfan Khaliq

Urfan Khaliq is Professor of International and European Laws and Head of School in the School of Law and Politics, Cardiff University. His publications include Ethical Dimensions of the Foreign Policy of the European Union: A Legal Appraisal (Cambridge, 2008) and International Human Rights Law Documents (Cambridge, 2018)....

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About the Author: Anver M. Emon

Anver M. Emon is Professor and Canada Research Chair in Islamic Law and History at the University of Toronto, where he directs the Institute of Islamic Studies. A Guggenheim Fellow and member of the College of the Royal Society of Canada, he has published widely in Islamic law and history....

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