MOHAMMAD FADEL*

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Sovereignty, Territoriality, and Private International Law
in Classical Muslim International Law†

Scholars in recent years have shown interest in challenging the his-

torical origins of international law and its normative claims to uni-
versality. This Article challenges the prevailing conceptions of Islamic
international law (al-siyar), first set out in English-language scholar-
ship by Majid Khadduri, as primarily an ad-hoc response to the failed
aspiration of a universal Muslim commonwealth. It shows that Islamic
international law, in its classical phase (eighth–thirteenth centuries),
as first formulated by Iraqi, and later, Central Asian, scholars (who to-
gether later came to be known as Ḥanafīs), understood all legal order
as being rooted in sovereignty and territoriality, with shared religion
a secondary concern. This theory of legal order arose out of an under-
standing of political order as emerging from a natural and universal
condition of war that is incidental to the individual’s natural sover-
eignty. I trace the genealogy of this conception to the founding moment
of the Muslim commonwealth and describe its manifestation in clas-
sical Ḥanafī solutions to a series of cases in “private international law.”

Introduction: Islamic International Law (al-siyar) and the History of

International Law
Recent years have witnessed increased scholarly interest in com-
plicating the historical origins of international law and challenging
its universalist claims. Some of the most direct challenges come from
critical scholars representing Third World approaches to international

* Professor of Law at the University of Toronto Faculty of Law, Toronto, Ont.,

Canada. I would like to thank Professors Paul Stephan, Asli Bali, Nesrine Badawi,
Aziz Rana, Will Smiley, and Dr. Hedayat Heikal for providing comments on previous
drafts of this Article. I would also like to thank my colleagues at Cornell Law School for
allowing me to present a version of this Article at their faculty workshop. Translations
from the original Arabic, unless otherwise stated, are the author’s.
† https://doi.org/10.1093/ajcl/avae007

© American Journal of Comparative Law 2024.

This is an Open Access article distributed under the terms of the Creative Commons
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work is properly cited.
2 T H E A M E R I CA N J O U R N A L O F C O M PA R AT I V E L AW [Vol. XX

law (TWAIL),1 while others are raised by scholars of “comparative

international law.” This latter group denies a unified existence to
international law and instead emphasize the simultaneous existence

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of numerous, heterogenous national traditions of international law,2
some of which even challenge bedrock principles of post-World War II
international law, including, the inadmissibility of the acquisition of
territory by force.3
This Article touches on the concerns of both TWAIL and com-
parative international law scholars. By making the case that classical
Ḥanafī international law (al-siyar)4 represented a systematic attempt
to regulate interactions of individuals and states universally, it con-
tributes to a growing body of scholarly literature that complicates the
history of international law by describing non-European traditions of
international law.5 This Article is an attempt to retrieve the doctrinal
resources of Islamic international law and to place them at the service
of scholars who wish to challenge the normative claims of contem-
porary international law from the perspective of TWAIL or compara-
tive international law.
Unlike other studies of classical Islamic international law, how-
ever, this Article is not interested in classical Islamic international
law in order to identify it as the paradigmatic “other” to “modern
international law,”6 nor does it attempt to claim an Islamic ge-
nealogy for some familiar principles of contemporary international
law or argue for the essential compatibility of classical Islamic inter-
national law with modern international law,7 or that Islamic inter-
national law should be more directly incorporated into contemporary

1. See, e.g., Makau Mutua & Antony Anghie, What Is TWAIL?, 94 Proc. Ann.
Meeting (Am. Soc’y Int’l L.) 31 (2000); Antony Anghie, Imperialism, Sovereignty and the
Making of International Law (2005); Julie Fraser, A Seat at the Table: Islamic Law’s
Neglected Potential in Universalising International Humanitarian Law, in Human
Rights and International Humanitarian Law 225 (Andreas Zimmerman & Norman
Weiss eds., 2022).
2. See, e.g., Martii Koskenniemi, The Case for Comparative International Law, 20
Finnish Y.B. Int’l L. 1 (2009); Anthea Roberts et al ., Comparative International Law:
Framing the Field, 109 Am. J. Int’l L. 467 (2015); Jean D’Aspremont, Comparativism
and Colonizing Thinking in International Law, 57 Can. Y.B. Int’l L. 89 (2020).
3. Paul Stephan, “Wars of Conquest in the 21st Century and the Lessons of History:
Crimea, Panama and John Bassett Moore,” 62 Va. J. Int’l L. 63(2021).
4. The Arabic term al-siyar is plural, i.e., “The siyar are . . . ,” rather than “The
siyar is . . . .” Ḥanafīs are only one tradition of Islamic law, but their contribution to
international law was particularly salient.
5. Ignacio de la Rasilla del Moral, The Shifting Origins of International Law, 28
Leiden J. Int’l L. 419 (2015).
6. Cf. David Westbrook, “Islamic International Law and Public International
Law: Separate Expressions of World Order,” 33 Va. J. Int’l L. 819 (1993) (af ter the Col d
War, “Islam provides the sole coherent, non-liberal world view of any political signifi-
cance, and consequently the only vital external perspective on the liberal project of
public international law.” Id. at 820–21).
7. Sobhi Mahmassani, The Principles of International Law in the Light of Islamic
Doctrine, 117 Collected Courses of the Hague Academy of International Law 201 (1966);
Ahmed Al-Dawoody, The Islamic Law of War: Justifications and Regulations (2011).
2024] S OV E R E I G N T Y, T E R R I T O R I A L I T Y 3

international law in order to realize more perfectly international

law’s universal aspirations.8 I instead hope that this Article will
encourage historians of international law to understand classical

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Islamic international law on its own terms, and to do so without
the burden of anachronistic comparison to post-World War II inter-
national law. Only then can the place of classical Muslim jurists, par-
ticularly the Iraqi and Central Asian jurists discussed in this Article,9
in universal histories of international law be properly assessed.This
Article is organized as follows. Part I acknowledges and critiques
the vital legacy of Majid Khadduri, described by some as the “gate-
keeper” of Islamic international law scholarship.10 Part II discusses
the Ḥanafī legal works from which this Article’s examples are drawn
and justifies the focus on the views of the Ḥanafī school of law. Part
III explores the place of sovereignty in Ḥanafī conceptions of legal
order. Part IV uses the idea of sovereignty to argue that the three jur-
isdictional categories of Islamic international law—the dār al-ḥarb,
the dār al-islām, and the dār al-muwādaʿa—are conceptual and de-
rive from the idea of sovereignty. Part V discusses the relationship of
the individual to sovereignty and legal order. Part VI identifies the
origins of Muslim legal conceptions of sovereignty in the founding
moment of the Muslim commonwealth, the Prophet Muḥammad’s
migration to Medina and some verses in the Quran suggestive of
territorial limitations on Islamic law. Part VII discusses a series of
cases drawn from Ḥanafī law illustrating how sovereignty structures
Ḥanafī approaches to questions of “private international law” and
how questions of war and peace drawn from “public international
law” impact their analysis of those questions.

I. A Critique of Khadduri’s Conception of the Siyar

Majid Khadduri was a pioneering figure in establishing the aca-
demic study of Islamic law generally, and Islamic international law par-
ticularly, in American universities in the post-World War II era. A prolific
scholar, he translated important classical Islamic legal texts, wrote
scholarly works on Islamic law, and published extensively on various
topics of post-World War II politics in the Middle East and modern Arab

8. Fraser, supra note 1.

9. I use “classical Islamic law” to refer to the period between the eighth and thir-
teenth centuries of the Common Era. The Article limits itself to the doctrines of the
Ḥanafī school of law, named after the Iraqi jurist Abū Ḥanīfa al-Nuʿmān b. Thābit (d.
150/767). Although originating in Iraq, the school was developed and refined in sub-
sequent centuries largely by Central Asian jurists. Dates are cited first to the Muslim
calendar, and second to the common era.
10. Jean Allain, Khadduri as Gatekeeper of the Islamic Law of Nations?, in
International Law and Islam 127, 128 (Ignacio de la Rasilla &Ayesha Shahid eds.,
2019).
4 T H E A M E R I CA N J O U R N A L O F C O M PA R AT I V E L AW [Vol. XX

legal systems.11 This Article focuses on his foundational works on the

siyar in which he drew largely on the doctrines of classical-era Ḥanafī
law. These jurists discussed a wide range of issues arising out of Muslim

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interactions with non-Muslims beyond the frontiers of the Muslim com-
monwealth, and on the territory of the Muslim commonwealth, both in
times of peace and in war, yet, Khadduri was unwilling to recognize the
siyar as a proper form of international law. It was only with some reluc-
tance that he translated al-siyar as the “Islamic law of nations.” While
we are indebted to Khadduri for introducing Islamic law and Islamic
international law to the wider English-speaking legal academic com-
munity, his understanding of the siyar was dominated by his treatment
of the siyar as a religious dogma rather than systematic legal thought.
This had the effect of reinforcing preexisting notions of Islamic law as
wholly other to Western understandings of law and reducing scholarly
interest in exploring the siyar.12
Perhaps the most consequential element of Khadduri’s analysis
was his framing of the siyar as a result of Muslims’ failure to ful-
fill what he called Islam’s mission of “world domination.”13 He viewed
Islamic universalism, whether pursued through peaceful universal
conversion of non-Muslims, incorporation of their polities into the
Islamic state through treaties of vassalage (dhimma),14 or annexation
by force of arms (jihād), as negating any notion of a proper conception
of international law. For him, the siyar were merely an interim regime,
akin to emergency regulations to deal with an irregular situation until
such time as full legality would be achieved with the establishment of
a universal Muslim commonwealth.15 It was but a short step from

11. See, e.g., Majid Khadduri, War and Peace in the Law of Islam (1955) [herein-
after Khadduri, War and Peace in the Law of Islam]; Law in the Middle East (Majid
Khadduri & Herbert J. Liebesny, eds., 1955); Majid Khadduri, Islam and the Modern
Law of Nations, 50 Am. J. Int’l L. 358 (1956) [hereinaf ter Khadduri, Islam and the
Modern Law of Nations]; Muhammad ibn al-Hasan Shaybani, The Islamic Law of Nations:
Shaybani’s Siyar (Majid Khadduri trans., Johns Hopkins Press 1966).
12. Hans Kruse, a German scholar contemporaneous to Khadduri, had much higher
regard for the siyar, but his writings were not as influential. Hans Kruse, Al-Shaybani
on International Instruments, 1 J. Pak. Hist. Soc’y 90 (1953); Hans Kruse, The Notion
of “Siyar,” 2 J. Pak. Hist. Soc’y 16 (1954); Hans Kruse, The Foundation of Islamic
International Jurisprudence, 3 J. Pak. Hist. Soc’y 231 (1955) [hereinafter, Kruse, The
Foundation of Islamic International Jurisprudence]; Allain, supra note 10, at 128.
13. Khadduri, Islam and the Modern Law of Nations, supra note 11, at 358.
14. I translate dhimma as “vassal” to communicate the fact that these non-
Muslims are both part of the Muslim commonwealth and occupy a subordinate pos-
ition in that commonwealth. It should not be confused with the medieval European
feudal relationship of vassalage.
15. Khadduri, War and Peace in the Law of Islam, supra note 11, at 44–45 (“The
modern law of nations presupposes the existence of a family of nations composed of a
community of states enjoying full sovereign rights and equality of status. The Muslim
law of nations recognized no other nation other than its own, since the ultimate goal
of Islam was the subordination of the whole world to one system of law and religion, to
be enforced by the supreme authority of the Imam.”). Khadduri cites no express state-
ment in the works of Muslim jurists in support of this conclusion. Khadduri’s reduc-
tionism of the siyar is matched by his idealization of post-World War II international
law. Cf. L.C. Green, The Nature of International Law, 14 Univ. Toronto L.J. 176 (1962).
2024] S OV E R E I G N T Y, T E R R I T O R I A L I T Y 5

there to conclude that the siyar—including its rules about contracting

peace and the legal effects of peace—were merely an ad-hoc response
to failed political aspiration.16 Accordingly, Khadduri dismissed the

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siyar, declaring them to be merely a part of Muslim internal law that
they applied unilaterally to the rest of the world.17
This conclusion derived from his belief that the siyar were reli-
gious doctrine,18 and that non-Muslims played no role in its content.19
This was wrong for two reasons: first, Ḥanafī jurists assumed the ex-
istence of a universal common law of war within which the Muslim
commonwealth operated, and, second, Ḥanafī conceptions of sover-
eignty authorized the creation of positive international law through
express agreement between sovereign states.
Khadduri’s treatment of the siyar as “religious” led to signifi-
cant omissions in his analysis, and, sometimes, outright mistakes.20
Consider his analysis of the position of the enemy national (ḥarbī)21
who enters Muslim territory without a grant of security (amān), in
contrast to how he describes the parallel situation of the Muslim who
enters enemy territory without a grant of security: he states that the
former “was liable to be killed unless he adopted Islam,”22 and that
the latter, “[was] under no obligation to observe [the non-Muslim
territory’s] laws and regulations.”23 Neither of these statements, on
its face, is false, but each is radically incomplete: his analysis elides
the fact that for Ḥanafī jurists, these are symmetrical cases. Because
neither has a grant of security, neither is protected by the other
party’s legal system or liable for defying its rules. By failing to make
the equivalence between the two cases clear, Khadduri erroneously
sends the message that the Islamic rule in this case is unabashedly an
expression of Islamic supremacism rather than a symmetrical inter-
national rule.

16. Khadduri believed that non-Muslim powers in the siyar occupied the position
of “insurgents” in contemporary international law. Khadduri, War and Peace in the Law
of Islam, supra note 11, at 144. On “insurgents” generally, see Hersch Lauterpacht,
Recognition in International Law 270–71 (1947).
17. Shaybani, supra note 11, at 6.
18. Id.
19. Id. at 10.
20. Some mistakes can be attributed to sloppiness. For example, Khadduri states
that “Muslim law recognizes only Muslims as persons with full legal capacity.” This is
plainly false. What he probably meant was that only Muslims enjoyed all the privil-
eges of the law. Any person, however, because he or she has legal capacity, can become
a Muslim and enjoy the same privileges. Khadduri, War and Peace in the Law of Islam,
supra note 11, at 162.
21. I use the term “national” to describe natural persons in their capacity as being
affiliated with a particular polity. Accordingly, I translate the Arabic term ḥarbī as
“enemy national”: a person whose international law affiliation is to a polity not at
peace with the Muslim commonwealth. “Muslim national” includes both Muslims and
their vassals.
22. Khadduri, War and Peace in the Law of Islam supra note 11, at 165.
23. Id. at 173.
6 T H E A M E R I CA N J O U R N A L O F C O M PA R AT I V E L AW [Vol. XX

Conceptually, however, it is unclear why the aspiration to a uni-

versal Muslim commonwealth, or the claim that the siyar are part of
the Muslim commonwealth’s internal law, should be sufficient to deny

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the siyar the status of international law. The siyar certainly took a
monist approach to international law, but Khadduri also knew that
other non-Muslim legal systems and non-Muslim legal theorists, too,
were monists.24
It may be that the difficulty in distinguishing between internal
law and international law was at the heart of Khadduri’s reluctance
to classify the siyar as properly “international.” Hans Kelsen proposed
two potential solutions to this puzzle. The first, which Kelsen calls the
“primacy of national law” approach, would be to subordinate inter-
national law to national law. In this case, viewed from the perspective
of each state, there is only one legal system, its own, other national
legal systems existing only to the extent that the national law of the
relevant state affirmatively recognizes them as separate legal orders.
That would clearly be one way of understanding the relationship be-
tween the siyar and Islamic internal law, i.e., the law of the Muslim
commonwealth, and it would render plausible Khadduri’s description
of the siyar as part of the internal law of the Muslim commonwealth
and the claim that the Muslim commonwealth recognized no other
legal system that its own.25 But if that is what Khadduri meant, the
same observation would apply to all monist legal systems that takes
a primacy of national law approach in understanding the relationship
of national law to international law.
The second possible solution Kelsen identified, which he called the
“primacy of international law” approach, is to subordinate national
law to international law, such that all particular systems of national
law derive their authority from international law “because the prin-
ciple of efficacy, a norm of positive international law, determines both
the reason for and the sphere of the validity of national law.”26 Insofar
as the siyar provide the universal conditions for all legal order,27 as
I argue below, this interpretation of the siyar would be consistent
with Kelsen’s second suggestion for understanding the relationship of
national legal orders to international law. It would not, however, help
us understand why Khadduri was reluctant to classify the siyar as
international law because from this perspective, Islamic law, under-
stood as the law of the Muslim commonwealth, would simply be one of
many systems of national law authorized by international law.

24. Id. at 46 n.7.

25. Hans Kelsen, Sovereignty and International Law, 48 Geo. L.J. 629, 632–33
(1960) (noting this approach leads to the conclusion that there is only one sovereign
state in the world, not a community of equally sovereign states).
26. Id. at 631.
27. By legal order I mean the existence of an institutionalized system to apply
and enforce law effectively and conclusively in a particular place and time. See Hans
Kelsen, The Concept of the Legal Order, 27 Am. J. Juris. 64 (1982).
2024] S OV E R E I G N T Y, T E R R I T O R I A L I T Y 7

Nor are the universalist aspirations of the Islamic political project

inconsistent with an idea of international law: even if non-Muslims
are under a duty to adhere to Islamic law, the fact that some may re-

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fuse does not render Islamic law’s regulation of them the equivalent
of emergency legislation.28 The persistence of criminality within the
territory of the state, despite the illegality of criminal conduct, does
not render criminal law any less a legitimate part of the legal order
than contract law. The rational possibility of a multiplicity of legal or-
ders requires that even a legal order that seeks a universal state must
contemplate how to deal with other legal orders.
Of course, the actual existence of international law will always
be contingent upon the existence of “at least two universal and ef-
fective territorial decision-making units.”29 The contingency of the
siyar on both the empirical existence of non-Muslim polities, and the
willingness of the Muslim commonwealth to interact with them, does
not necessarily deprive the siyar of the systematic character that ren-
ders them law rather than ad-hoc decisionism. The crucial question
is whether the siyar recognize other, non-Muslim “decision-making
units,” and if so, what are the legal effects of this recognition, including,
the effects of such recognition within the domestic legal system of the
Muslim commonwealth. As this Article will show, the siyar author-
ized the Muslim commonwealth (and even individual Muslims) to
make agreements with non-Muslim powers that generated binding
legal norms that not only were independent of the internal law of
the Muslim commonwealth, but also had the effect in certain cases
of changing the ordinarily applicable rule of internal law. I argue on
this basis that the siyar are properly “international” and not merely
a unilateral extension of Muslim internal law to the rest of the world.
Khadduri’s analysis ultimately was based not on unpacking the in-
ternal logic of the classical Ḥanafī jurists who articulated the siyar, as
it was in depicting the siyar as a historically defunct set of doctrines,
rooted in a utopian conception of a universal religious state,30 that
Muslims successfully overcame to embrace modern conceptions of inter-
national law.31 In the final analysis, the reason why the siyar did not
qualify as international law in his view had nothing to do with their form
or their lack of systematic character, but because their content did not
live up to his idealized conception of the contents of post-World War II
international law. Khadduri then judged the siyar, anachronistically,
in light of the norms of post-World War II international law, as though

28. See Mohammad Fadel, The True, the Good and the Reasonable: The Theological
and Ethical Roots of Public Reason in Islamic Law, 21 Can. J.L. & Juris. 61 (2008) (dis-
cussing whether Islamic law applies to non-Muslims generally).
29. Hermann Heller, Sovereignty: A Contribution to the Theory of Public and
International Law 140 (David Dyzenhaus ed., Bel inda Cooper trans., Oxf ord Univ. Press
2019).
30. Khadduri, War and Peace in the Law of Islam supra note 11, at 141–42.
31. Id. at vii.
8 T H E A M E R I CA N J O U R N A L O F C O M PA R AT I V E L AW [Vol. XX

twentieth-century developments, such as the prohibition of the acquisi-

tion of territory by force, are a logically necessary part of international
law.32 To state the obvious, prior to the Kellogg–Briand Pact, it was taken

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for granted that states could eliminate other international actors by force
of arms followed by annexation.33
Writing in the context of the Cold War, Khadduri also succumbed
to the temptation to “other” Islamic international law by comparing
Islamic universalism to the Soviet Union’s conception of a world com-
munist state and its approach to international law.34 He certainly
offered no reason for contemporary lawyers to be interested in the
siyar, specifically, or Islamic law, generally. Justice Jackson, who wrote
the foreword to Khadduri’s 1955 edited volume, Law in the Middle
East, noted that despite the general indifference of American lawyers
toward Islamic law, there were two important reasons to study Islamic
law: first, it was “the antithesis of Western law” to such an extent that
a serious study would serve the salutary function of forcing American
lawyers to obtain a deeper (and presumably more appreciative) under-
standing of their own legal system;35 and, second, because of the global
struggle with the Soviet Union, and the staunch anti-Communism of
many Muslim states, American lawyers had good reason to educate
themselves about Islamic law and the law of the Muslim world.36
By examining the siyar from the point of view of Ḥanafī jurists,
and setting aside presentist biases or the notions of the siyar’s radical
incompatibility with contemporary international law, one can discern
a conceptual framework within the siyar for regulating international
law. The fundamental building blocks of this doctrine depend on the
concepts of the absence of natural duties (barāʾat al-dhimma), the
capacity for self-defense (manaʿa), secure possession (iḥrāz), a polity
(dār), legal order (ḥukm), and legal inviolability (ʿiṣma). It is through
these building blocks that domestic legal orders can come into exist-
ence and which, in turn, can then make peace with one another (or
not).

32. See Oona Anne Hathaway & Scott Shapiro, The Internationalists: How a Radical
Plan to Outlaw War Remade the World (2018), on the Kellogg–Briand Pact of 1928 and
its impact on modern international law.
33. See, e.g., Heller, supra note 29, at 145 (“International law offers every inter-
national person the opportunity to rid itself of all its legal obligations towards other
international law persons by completely eradicating the other persons.”); Lauterpacht,
supra note 16, at 4 (“[B]y availing itself of its unlimited right to declare war the State
could gain full freedom from these restraints and acquire the right to treat its neighbor
thus attacked as a veritable caput lupinum to the point of legally permissible annihi-
lation through conquest and annexation.”).
34. See, e.g., Khadduri, War and Peace in the Law of Islam, supra note 11, at 44 n.3
(“It is interesting to note that the Soviet Union . . . has developed a similar idea of
a world state . . . and recognized modern international law only temporarily until it
could eventually achieve the ideal of world communism.”).
35. Law in the Middle East, supra note 11, at vi–ii.
36. Id. at viii.
2024] S OV E R E I G N T Y, T E R R I T O R I A L I T Y 9

II. Why Center the Iraqi/Ḥanafī Interpretation of Islamic Law?

This Article relies on canonical legal texts of Iraqi and Central
Asian Ḥanafī Muslim jurists of the classical era between the eighth

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and thirteenth centuries of the Common Era. It does not attempt to
determine the extent to which Muslim governments during the clas-
sical period faithfully upheld these rules. The abstract and systematic
character of the elaboration of Ḥanafī legal doctrine in this period,
however, should not be taken to mean that they were engaged in a
merely academic exercise. The hypothetical fact patterns discussed
in their texts seem to reflect the endemic issues arising out of inter-
national relations of that period.37
I focus on Ḥanafī doctrines for several reasons. First, Khadduri
bases his conclusions largely on a subset of writings of the expansive
legal corpus of one of the three founders of the Iraqi/Ḥanafī school of
law, Muḥammad b. al-Ḥasan al-Shaybānī (d. 189/805).38 Second, the
Ḥanafī jurists were politically powerful during and after the classical
period. Leading Iraqi jurists worked closely with the newly estab-
lished ʿAbbāsid caliphate in organizing and staffing a centralized and
professional judiciary, an alliance that helped cement the influence of
the Ḥanafī school of law, particularly in Iraq and Central Asia. Third,
although non-Ḥanafī Muslim jurists, particularly those associated
with the Hejazi tradition of Islamic law (later known as Mālikīs), also
wrote extensively on the siyar, no other Muslim jurist or school of law
in the classical era produced systematic works on the subject rivaling
those of Shaybānī and his successors in the Ḥanafī school.39 Dissident
Muslim groups, such as the different branches of Shīʿism, or the dif-
ferent sects of the Khawārij, had not yet produced a systematic body

37. 2 Muḥammad ibn Aḥmad Sarakhsī & Muḥammad ibn al-Ḥasan Shaybānī, Sharḥ
Kitāb Al-Siyar al-Kabīr Lil-Imām Muḥammad Ibn al-Ḥasan al-Shaybānī [Commentary
on Imām Muḥammad b. al-Ḥasan al-Shaybānī’s The Long Book on the Law of Nations] 6
(Muḥammad Ḥasan Muḥammad Ḥasan Ismāʻīl Shāfiʻī ed., 1997) (mentioning
Constantinople as a target of ʿAbbāsid and Muslim ambition) [hereinafter Sarakhsī
& Shaybānī, The Commentary]; 5 Sarakhsī & Shaybānī, The Commentary, supra, at 44
(mentioning the treacherous killing by the enemy of Muslim hostages during the ca-
liphate of Muʿāwiya b. Abī Sufyān (r. 41–60/661–80)).
38. E. Chaumont, al-S̲h̲aybānī, Encyclopaedia of Islam (P. Bearman et al . eds., 2d ed.
2012), http://dx.doi.org/10.1163/1573-3912_islam_COM_1051 (by subscription).
39. Baber Johansen, Territorial Concepts in Islamic Law, in 5 Oxford International
Encyclopedia of Legal History 451 (Stanley N. Katz ed., 2009). The differences between
the Mālikīs and the Ḥanafīs during the classical era were minimal. Muḥammad b. Idrīṣ
al-Shāfiʿī, who died in the early ninth century, and after whom the Shāfiʿī school of law
takes its name, rejected the territorially grounded approach of the Ḥanafī and Mālikī jur-
ists, but his teachings for the period under consideration were not politically salient. Later
Shāfīʿī jurists, such as Abū’l Ḥasan al-Māwardī (d. 450/1058), author of the famous work on
public law, al-Aḥkām al-Sulṭāniyya (The Ordinances of Government), achieved prominent
positions in the ʿAbbāsid caliphate, but he did not produce a systematic work on inter-
national law.
10 T H E A M E R I CA N J O U R N A L O F C O M PA R AT I V E L AW [Vol. XX

of law at the time Shaybānī lived and wrote, and in any event, they
remained politically marginal during the classical period.40
Shaybānī was one of two of the most prominent disciples of the

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Iraqi jurist Abū Ḥanīfa (d. 150/767), after whom the Ḥanafī school took
its name. In addition to serving in various senior judicial roles for the
ʿAbbāsid caliph Hārūn al-Rashīd (r. 170–93/786–809), Shaybānī was
a prolific writer who authored two specialized works on the siyar—
al-Siyar al-Ṣaghīr (The Short Book on the Law of Nations)41 and
al-Siyar al-Kabīr (The Long Book on the Law of Nations)—as well as
a chapter on the topic in his comprehensive work on Islamic substan-
tive law, al-Aṣl.42 Khadduri translated and published that chapter as
a standalone work, along with a lengthy introduction to the genre.43
The Long Book exists only as part of a commentary authored by the
Central Asian Ḥanafī jurist, Muḥammad b. Aḥmad al-Sarakhsī (d.
490/1096)44 under the title Sharḥ al-Siyar al-Kabīr (Commentary on
The Long Book on the Law of Nations).45

40. A discussion of the history of Shīʿism or the Khawārij is beyond the scope of
this Article, but a few points about their respective contributions to Islamic law are
in order. The two most important Shīʿī sects from the classical period are now known
as the Twelvers and the Seveners (or more commonly as the Ismāʿīlī Shīʿa). Because
of their doctrine of the infallible Imam, during much of the classical period, Shīʿī law
consisted largely of statements of their Imams. It was only after the disappearance of
their twelfth Imam in the late ninth century, did Twelvers begin to develop systematic
law, a process that took more than a century to work itself out. See Hossein Modarressi
Tabataba’i, Crisis and Consolidation in the Formative Period of Shiʻite Islam: Abū Jaʻfar
ibn Qiba al-Rāzī and His Contribution to Imāmite Shīʻite Thought (1993); Abū Ḥanīfah
Nuʻmān ibn Muḥammad, Daʻāʻim al-Islām wa-dhikr al-Ḥalāl wa-al-Ḥarām wa-al-qadāyā
wa-al-aḥkām ʻan Ahl Bayt Rasūl Allāh [The Foundational Principles of Islam and a Brief
Explication of the Lawful, the Forbidden, the Judgments and the Laws as Reported from
the Household of God’s Messenger] (Asaf Ali Asghar Fyzee ed., 1963) (first treatise of
Shīʿī law, prepared by the chief judge of the Fāṭimid caliphate, and which subscribed
to Ismāʿīlī Shīʿī doctrines regarding the Imamate). Less is known about Khārijī legal
doctrines in this early period, although they did not likely differ substantially from
those of other Muslim communities. Their distinctive doctrines pertained to who had
the right to rule the Muslim community. In their view, the most pious Muslim, regard-
less of descent, had the right to rule. They also taught that the community was under
an obligation to overthrow corrupt rulers and replace them with the legitimate ruler.
Adam R. Gaiser, Shurāt Legends, Ibāḍī Identities: Martyrdom, Asceticism, and the Making
of an Early Islamic Community (2016).
41. Muhammad ibn al-Hasan Shaybani, The Shorter Book on Muslim International
Law (Mahmood Ahmad Ghazi trans., Islamic Rsch Inst./Int’l Islamic Univ. 1998);
Muhammad ibn al-Hasan Shaybani, Al-Qanun al-dawli al-Islami: Kitab al-siyar [Islamic
International Law: The Chapter on the Law of Nations] (Majid Khadduri ed., al -Dar
al-Muttahidah lil-Nashr 1975). See also Allain, supra note 10, at 128 (arguing that
Ghazi’s complete translation of The Shorter Book on the Law of Nations requires
scholars to recognize Shaybānī’s work as “foundational,” and as deserving a place
among the “classics of international law”).
42. Muḥammad ibn al-Ḥasan Shaybānī, Al-Aṣl [The Foundational Treatise] (Mehmet
Boynukalın ed., 2012).
43. Shaybani, supra note 11.
44. N. Calder, al-Sarakh̲sī, in Encyclopaedia of Islam, supra note 38, http://dx.doi.
org/10.1163/1573-3912_islam_SIM_6620.
45. Sarakhsī & Shaybānī, The Commentary, supra note 37.
2024] S OV E R E I G N T Y, T E R R I T O R I A L I T Y 11

Sarakhsī is one of the leading figures of late classical Central

Asian Ḥanafī law, and he played a crucial role in consolidating Ḥanafī
doctrine. His most important work is al-Mabsūṭ, a multivolume com-

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prehensive exposition of Ḥanafī law.46 The doctrines this Article dis-
cusses, and the cases discussed below, are drawn from Sarakhsī’s
Commentary. Because historians of Islamic law disagree regarding
the extent to which the base text of the Commentary can be fairly
attributed to Shaybānī,47 I approach the Commentary as a synthetic
work that represents the views of the Iraqi/Ḥanafī tradition, from
Shaybānī to Sarakhsī, and thus exemplifies the classical Ḥanafī under-
standing of the siyar. Finally, I also refer to the influential Central
Asian twelfth-century classical treatise, al-Hidāya, by Burhān al-Dīn
al-Farghānī al-Marghīnānī (d. 593/1197),48 an authoritative restate-
ment of Central Asian Ḥanafī doctrine that in later centuries became
a standard teaching text for Ḥanafī law.49

III. Sovereignty as a Fundamental Concept of Classical Ḥanafī

International Law
Ḥanafī jurists in the classical era covered a wide range of topics
under the category of the siyar. The cases that I have chosen to analyze
for this Article revolve largely around the question of jurisdiction.50
Jurisdiction plays a crucial role because for Ḥanafī jurists sovereignty
is inherently territorial, and, on their view, legal order can only exist
within the territory of a sovereign with effective power to enforce law’s
claims. Legal order requires, as Heller suggests, a “permanent, uni-
versal and effective territorial decision-making unit,”51 meaning that,
within a particular territory, there exists an effective will to which all
disputes can ultimately be referred for final resolution and which, in
turn, is generally capable of enforcing the legal rules that nominally
apply in that territory.
This Article shows that Ḥanafī jurists’ conception of legal order,
and the necessity of sovereignty to maintain legal order, is consistent

46. Muḥammad ibn Aḥmad al-Sarakhsī, Kitāb al-mabsūṭ [The Comprehensive

Treatise] (Muḥammad Rāḍī ed., Dār al-Maʿrifa, 2d ed. 1972).
47. Shaybani, supra note 11, at 43–44.
48. W. Heffening, al-Marg̲h̲īnānī, in Encyclopaedia of Islam, supra note 38, http://
dx.doi.org/10.1163/1573-3912_islam_COM_0685.
49. ʻAlī ibn Abī Bakr Marghīnānī, Al-Hidāyah [The Guidance] (Muṣṭafā al-Bābī
al-Ḥalabī & Al-Ṭab’ah al-akhīrah eds., 1965); Muḥammad ibn ʻAbd al-Wāḥid Ibn al-Humām
et al., Sharḥ Fatḥ al-qadīr [Commentary on the All-Powerful’s Gift] (1972); ʻAlī ibn
Abī Bakr Marghīnānī, The Hidaya: Commentary on the Islamic Laws (Charles Hamilton
trans., rev. ed. 2007).
50. Muslim jurists used various terms to express the idea of jurisdiction, for ex-
ample, wilāya and cognate terms. In the context of the Commentary and the siyar more
generally, the terms dār and manaʿa, which will be more fully explained below, are also
used.
51. Heller, supra note 29, at 80.
12 T H E A M E R I CA N J O U R N A L O F C O M PA R AT I V E L AW [Vol. XX

with Heller’s view.52 Although the siyar provide numerous examples

of cases that confirm the notion that sovereignty is the condition that
renders all legal orders effective, including, the Islamic,53 this Article

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focuses on one category of cases: those that evoke “private inter-
national law,” i.e., disputes involving rights to property and the status
of persons, and that turn on questions of jurisdiction and choice of
law. These private disputes bring into relief precisely those concepts
that constituted the siyar as a discrete branch of law in Muslim legal
thought, and therefore distinguish them from “internal” Islamic law:
sovereignty and its role in constituting legal order and the effects of
non-Muslim legal orders, if any, on the legal order prevailing on the
territory of the Muslim commonwealth. The siyar are a distinct do-
main of law because they are the product of either the primordial,
pre-political international common law of war, the recognition of the
law of another sovereign, or the agreement of two or more sovereigns,
in contrast to the domestic rules of classical Islamic law that apply
without consideration of the Muslim commonwealth’s relationship
with non-Muslim states.54
The Ḥanafī legal doctrine of sovereignty is discussed in the
Commentary through the abstract categories of manaʿa (the capacity
for self-defense), iḥrāz (secure possession), polity (dār), legal order
(ḥukm), and inviolability (ʿiṣma). These categories represent the con-
ceptual architecture of the siyar that enable a domestic legal order
to come into existence and function. Ḥanafī jurists, furthermore, took
sovereign parties to be collective persons who represented the natural
persons (ahl al-dār) affiliated with the polity. This meant that indi-
viduals residing in a territory (i) were deemed legally responsible for
their ruler’s decisions with respect to third parties, including decisions
of war and peace, and (ii) were legally the direct beneficiaries of peace
agreements made between their ruler and the Muslim commonwealth,

52. 5 Sarakhsī & Shaybānī, The Commentary, supra note 37, at 12 (the legal status
a jurisdiction takes after a change in regime is determined by “the ruler whose law is
manifest there”).
53. That Ḥanafī jurists generically refer to “the law of the place (ḥukm al-dār)” is
strong evidence of their assumption that legal order can only manifest itself in a ter-
ritory subject to a particular sovereign will. One example illustrating this principle
is the different treatment of similar cases involving the problem of separating enemy
nationals from Muslim nationals or foreign Muslims. When Muslims accept the sur-
render of an enemy town or fortress, the fact that it is known definitively that there
are some Muslims or Muslim vassals among the captured does not immunize the fort-
ress’ denizens from being taken captive. Only those with affirmative evidence that
they are Muslim nationals or a Muslim will be spared captivity. By contrast, if enemy
nationals infiltrate the Muslim commonwealth, and take up residence in a village in-
habited by vassals, the ruler can only take captive those he can prove to be enemy na-
tionals. Sarakhsī explains the difference by virtue of the fact that “they are in a place
of security and inviolability. Accordingly, it is not permissible to interfere with any of
them [i.e., the residents of the village] unless he is known to be an enemy national.” 2
Sarakhsī & Shaybānī, The Commentary, supra note 37, at 6.
54. See infra Part IV.
2024] S OV E R E I G N T Y, T E R R I T O R I A L I T Y 13

thereby granting them the direct benefits of Islamic law upon their ar-
rival in Muslim territory.
Khadduri ignored the central role that sovereignty and related

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concepts play as a structuring principle of the siyar. This omission led
him to compare the siyar to the natural law system of the Romans,
when in fact, the siyar bear a closer resemblance to nineteenth-
century European positivist theories of international law.55 As Khaled
Abou el Fadl has noted, for the Ḥanafīs, law only comes into existence
through the mediation of a positive legal order in a particular terri-
tory.56 Another way to understand Khadduri’s error is that he con-
flated Islamic law as a system of positive rights and remedies (aḥkām
waḍʿiyya) with Islamic moral rules of obligation (aḥkām taklīf).57
While Khadduri was certainly correct that Muslims were under a
moral obligation to adhere to Islamic religious teachings regardless of
a territory’s legal regime, he failed to consider how secular conditions
might affect the applicability of the remedial aspect of Islamic law.
According to the Ḥanafīs, the remedial aspect of Islamic law is
only operative if there is a sovereign will to give it effect. Therefore,
the legal status of a territory was usually the decisive consideration
in determining the legal rights and obligations of all persons, Muslim
or non-Muslim, in that territory, rather than those persons’ religious
status. It seems that Khadduri confused the universality of Islam as
a religion and the territoriality of its legal order, something that led
him, mistakenly, to describe Islamic law as personal.58
Even if the refusal of non-Islamic sovereigns to adhere to Islamic
law rendered them illegitimate from the perspective of Islamic law,
they were, from a positive perspective, sovereign legal orders, des-
pite their illegitimacy.59 The rules of the siyar, as illustrated by the
cases examined below, embody the Ḥanafī jurists’ recognition of the
validity of non-Muslim legal systems as separate legal systems, des-
pite qualms they had about the moral legitimacy of those non-Islamic
legal systems. In contrast to the natural law theories of international
law that dominated European thought during the Renaissance and
Enlightenment, or the nineteenth- and twentieth-century European
historicist conceptions of international law,60 classical Ḥanafī law

55. Alex Mills, The Private History of International Law, 55 Int’l & Comp. L.Q. 1.
(2006).
56. Khaled Abou El Fadl, Islamic Law and Muslim Minorities: The Juristic
Discourse on Muslim Minorities from the Second/Eighth to the Eleventh/Seventeenth
Centuries, 1 Islamic L. & Soc’y 141, 166 (1994).
57. For a brief explanation of these two categories of rules, see Mohammad Hashim
Kamali, Principles of Islamic Jurisprudence 279–80 (3d rev. ed. 2003).
58. Khadduri, War and Peace in the Law of Islam, supra note 11, at 45–46.
59. This distinction would not be dissimilar to a liberal democracy’s view that
while a totalitarian order is politically illegitimate, that does not preclude the lib-
eral regime from recognizing the sovereignty of a particular state whose internal legal
order is totalitarian.
60. Mills, supra note 55.
14 T H E A M E R I CA N J O U R N A L O F C O M PA R AT I V E L AW [Vol. XX

embraced a distinctly positivist approach to sovereignty and law. This

was evidenced by the jurists’ focus on concepts such as the capacity
for self-defense, polity, secure possession, legal order, and inviolability.

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According to Ḥanafī thought, the capacity for self-defense allowed a
group to maintain exclusive control over a particular territory, giving
rise to a polity. A polity made secure possession of goods and of the self
through its legal order possible. Legal inviolability of property and
persons was the result of the protection made possible by the combin-
ation of effective power and the norms of the legal order.

IV. Sovereignty and the Conceptual Nature of Jurisdictional

Divisions in the Siyar
Khadduri’s empirical approach to Islamic law led him to conclude,
erroneously, that the Muslim jurists’ division of the world into the dif-
ferent jurisdictional categories of dār al-Islām (the Muslim common-
wealth) and dār al-ḥarb (territory beyond the frontiers of the Muslim
commonwealth) was a reflection of empirical reality: an expanding
Muslim commonwealth that Muslims hoped would one day absorb the
entire earth, achieving a universal Muslim commonwealth.61 On this
view, shared by many scholars, the dār al-ḥarb is a residual category,
both conceptually, in that it only exists by virtue of its contrast to the
Muslim commonwealth, and temporally, in that, prior to the empirical
existence of the Muslim commonwealth, the dār al-ḥarb had no exist-
ence, conceptually or empirically.62
I contend that the idea of the dār al-ḥarb is functionally similar
to Hobbes’s “state of nature.” In both Hobbes’s state of nature and the
Muslim jurists’ dār al-ḥarb, individuals enjoy natural rights to every-
thing; but due to the absence of a common judge, they do not owe duties
to others—a situation that leads to endemic conflict.63 Accordingly,
from the perspective of the Muslim jurists, the dār al-ḥarb is the prim-
ordial, pre-political reality from which all political and legal regimes,
Muslim or non-Muslim, emerge.64 The classification of a geograph-
ical domain or jurisdiction as dār al-ḥarb in Islamic law reflects the
persistence of the primordial, pre-political relationship between the
interacting parties, whether they are Muslim or non-Muslim.
In theory, the dār al-ḥarb could refer to a territory that is actu-
ally lawless, but more generally it refers to a relationship unregulated

61. Shaybani, supra note 11, at 12–13. Oddly, Khadduri denies that the Hanafīs rec-
ognize a third jurisdictional category, namely, “a territory of peace” (dār al-muwādaʿa),
although Sarakhsī expressly uses it in his Commentary on Shaybānī’s Long Book on the
Law of Nations. 5 Sarakhsī & Shaybānī, The Commentary, supra note 37, at 12.
62. See, e.g., Al-Dawoody, supra note 7, at 92–94.
63. Thomas Hobbes, Leviathan chs. 13–14 (Noel Malcom ed., Clarendon Press 2012).
64. Khadduri makes a casual reference to the idea of the dār al-ḥarb being in a
state of nature but does not recognize it as a universal existential state in classical
Muslim legal thought. Shaybani, supra note 11, at 12.
2024] S OV E R E I G N T Y, T E R R I T O R I A L I T Y 15

by law. It is therefore constitutive of relations among individuals and

states that interact in the absence of a common norm governing their
interactions. The category of dār al-ḥarb is therefore primarily rela-

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tional and only secondarily territorial. It is relational to the extent that
it exists only if two or more persons interact in a context ungoverned
by law. It is territorial only because such an interaction must occur
in a specific place. The people of a specific territory may be at peace
internally, but as a collective, i.e., as the people of a specific territory
(ahl al-dār), they may be in a relation of war with one or more other
polities. In this case, those other polities are a dār al-ḥarb in relation
to that first territory unless a relationship of peace is established be-
tween that first territory and the other territory or territories. Even
if peace is established between two or more territories or polities, the
primordial relationship of war, however, always threatens to reemerge
if they fail to maintain the grounds for peace. In short, it is peace that
the law must account for, war being the default, natural condition of
mankind.
Because the dār al-ḥarb is logically prior to peace, the conditions
for a positivist understanding of international law, understood as re-
sulting from the agreement of equal sovereigns, are present. But why
would Muslim jurists believe that war, as a legal matter, was the prim-
ordial relation between human beings? This conclusion appears to de-
rive from a particular conception of the person whose origin lies in
Islamic theology.
Muslim jurists maintain that the foundation of the legal order is
the intrinsic human ability to assume responsibilities toward others,
including fellow humans and God. This aspect of human nature, re-
ferred to as dhimma,65 enables individuals to incur debts and bear
religious duties. Debts are believed to reside within the debtor’s
dhimma, akin to how ritual obligations imposed on humanity by God
are held within this sphere of accountability.
This inherent capacity to assume obligations, however, also al-
lows humans to breach their obligations, whether they are owed to
fellow human beings, the political community, or God. The possibility
of non-performance implies that fulfilling these obligations necessi-
tates a willingness to do so, on the part of either the obligee or a third-
party that enforces performance.
Muslim jurists generally assume that we are born with our
dhimma unburdened by obligations. Consequently, our dhimma is
burdened only by those obligations that we freely undertake or that
God imposes on us as a matter of religion. In other words, humans do
not owe one another any natural duties until such time as they agree

65. Chafik Chehata, Ḏh̲imma, in Encyclopaedia of Islam, supra note 38, http://
dx.doi.org/10.1163/1573-3912_islam_SIM_1824.
16 T H E A M E R I CA N J O U R N A L O F C O M PA R AT I V E L AW [Vol. XX

to undertake them. According to most Muslim theologians, we do not

even have any natural obligations toward God until we have had a
proper encounter with revelation.66 This doctrine of non-obligation is

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known as barāʾat al-dhimma, or al-barāʾa al-aṣliyya.67
As a legal principle, the doctrine of non-obligation means that
any assertion of an obligation must be established by proof of a
relevant positive act, either a command of God in matters of reli-
gion or by a valid undertaking in secular life. Because humans are
naturally free of legal obligations, they confront one another in a
pristine state of non-law. It is in this sense that the relationship
of war is rationally primordial; in the absence of a shared posi-
tive norm, force (qahr) is an ever-present possibility for the reso-
lution of disputes. Moreover, the only kind of property interest that
can exist in a relation of war is possessory, and that too is always
vulnerable to forcible divestment. In the absence of a legal rela-
tionship between interacting persons, force is the only effective
means for the conclusive resolution of their disputes, which in the
extreme can lead to destruction of the legal person, either function-
ally through enslavement (istirqāq) or biologically through death
(qatl).68 Ironically, our natural sovereignty renders us vulnerable to
the aggression of others, creating a motive for individuals to band
together for personal and material security by creating a polity
where they can exercise sovereignty collectively.
As these premises suggest, the remedy for individual vulner-
ability lies in establishing a polity that provides security to its mem-
bers. Such security emerges when individuals unite their subjective
wills, consenting to a shared legal order (ḥukm) capable of finally re-
solving their disputes. This unity and consent represent the internal
dimension of sovereignty. A polity, however, can also exercise sover-
eignty externally through the manifestation of its collective will in its
relations with non-members, be they individuals or other polities, by
making war or peace. While no single text of Ḥanafī law makes these

66. Mohammad Fadel, “No Salvation Outside Islam”: Muslim Modernists,

Democratic Politics, and Islamic Theological Exclusivism, in Between Heaven and Hell:
Islam, Salvation, and the Fate of Others 42 (Mohammad Hassan Khalil ed., 2013).
67. Hayrettin Yücesoy, Justification of Political Authority in Medieval Sunni
Thought, in Islam, the State, and Political Authority: Medieval Issues and Modern
Concerns 9, 22 (Asma Afsaruddin ed., 2011).
68. Although each person has the natural capacity to assume obligations by virtue
of his or her humanity, this capacity is contingent, and can be destroyed through sub-
jugation (qahr). When a person is subjugated, the person becomes a slave under the
law of war. Ḥanafī jurists accordingly described enslavement as the equivalent of legal
death (itlāf ḥukmī), because, from an empirical perspective, the person has lost his or
her legal personality. 4 Sarakhsī & Shaybānī, The Commentary, supra note 37, at 232
(“[C]aptivity and enslavement are the legal equivalent of destruction and are the par-
allel of killing, which is actual destruction.”).
2024] S OV E R E I G N T Y, T E R R I T O R I A L I T Y 17

ideas explicit, these principles are implicit in the cases I discuss in

this Article.69
Although classical Ḥanafī jurists did not formulate an explicit

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political theory, they clearly recognized sovereignty as an established
objective reality, an undeniable fact of social existence. Sovereignty
was therefore seen to be both distinct from religion and an indispens-
able prerequisite to any legal order.70 Sovereignty also encompassed a
system of law that defined the level of protection afforded the inhab-
itants of a territory, safeguarding their lives, personal integrity, and
property against both internal and external threats. Sovereignty for
Muslim jurists of the classical era therefore operated along two dimen-
sions: internally, in the form of exclusive jurisdiction to determine the
legal rights and obligations of the territory’s nationals and their per-
sonal status; and externally, in the form of assuming and repudiating
obligations to third parties, whether corporate (i.e., another polity), or
natural persons other than its own nationals. Because classical era
Ḥanafī jurists did not recognize natural, universally binding rules
that applied to all polities and persons in their mutual interactions,
or the existence of natural political entities, all manifestations of sov-
ereignty, including law, ultimately required an act of will. Indeed, the
necessary precondition for peace itself was sovereignty.
The formation of a polity merely displaced the state of war into
the international realm. But polities are also capable of setting aside
the primordial relation of war and building a relationship of peace
through an agreement (muwādaʿa). This possibility led to the creation
of a third jurisdictional concept in Islamic international law, namely
dār al-muwādaʿa, a polity/territory in a peaceful relationship with an-
other polity/territory. Unlike the peace that prevails within a single
polity, pursuant to which all persons submit to a common system of
law, under al-muwādaʿa, each party to the agreement retains its own
sovereignty, manifested in the continued effectiveness of its own in-
ternal legal order, while relations between the two are now regulated
by the terms of their peace agreement, not the law of war.71
Curiously, Khadduri denies that classical Ḥanafī jurists recognized
this third jurisdictional category alongside those of the dār al-ḥarb and
the Muslim commonwealth. The term “a territory of peace” appears
explicitly eleven times in the Commentary; likewise, cognate terms,
such as “a territory of a people of peace” (dār al-muwādiʿīn), and “the
people of peace” (ahl al-muwādaʿa), appear an additional eight times

69. This broad characterization of the origins of sovereignty finds specific expres-
sion within Islamic law through the doctrine of the caliphate, which obligates Muslims
to appoint a successor after the Prophet’s death, thereby safeguarding the Muslim
commonwealth and the Islamic legal order.
70. 5 Sarakhsī & Shaybānī, The Commentary, supra note 37, at 12, 130–31 (noting
that the system of law must be manifest for it to be recognized).
71. Kruse, Islamic International Jurisprudence, supra note 12, at 249.
18 T H E A M E R I CA N J O U R N A L O F C O M PA R AT I V E L AW [Vol. XX

in the text.72 Khadduri probably downplayed this category of relations

because of the fleeting nature of peace at that time.
The endemic violence of that era, however, should not lead to

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the conclusion that the rules governing peaceful relations were un-
important, ad hoc, or conceptually outside the de jure legal system.
We should carefully distinguish between the viability of an Islamic
theory of perpetual peace and the question of whether the classical
Muslim conception of peace between the Muslim commonwealth and a
non-Muslim power can be properly understood as giving rise to “inter-
national” law. In other words, while the primordial category of “war”
is a necessary entailment of state sovereignty, state sovereignty is the
precondition for achieving peace. States, through their sovereign pre-
rogative, can decide to exit their relation of war by forsaking the use
of force against one another. When two or more polities exercise this
sovereign choice and opt for peace, they establish a new dynamic—
and the relation of peace (muwādaʿa) replaces that of war. We are
therefore entitled to speak of a universal, Islamic international law at
least to this extent: all polities must recognize the sovereignty of other
polities insofar as they practically manifest the conditions precedent
of a polity through bringing together the capacity for self-­defense, con-
trol over a territory, secure possession of goods and persons, and sub-
mission to a common legal order. The “thin” nature of the minimum
content of international law in classical Islamic legal thought is con-
sonant with developments in European positivistic theories of inter-
national law in the nineteenth century, which culminated in reducing
the content of international law to little more than a device for the
formal recognition of state sovereignty.73 Paradoxically, this approach
also permitted the universalization of international law insofar as
it authorized indifference to the content of different sovereigns’ do-
mestic laws.74
From this perspective, the siyar provide the universal ground
for all legal order, Muslim and non-Muslim, as well as principles of
interaction between different legal orders, whether in peace or in war,
and the relationship of the positive international law that the Muslim
commonwealth makes with non-Muslim powers in the form of express
agreements to its domestic law. This is far from a resigned expression
of unfulfilled political aspiration. The principles developed by classical
Muslim jurists to resolve cases taking place on the territory of non-
Muslim powers, or cases involving Muslim nationals and foreigners,
moreover, are never wholly a branch of domestic Islamic law; rather,

72. See, e.g., 5 Sarakhsī & Shaybānī, The Commentary, supra note 37, at 12.
73. Mills, supra note 55, at 22.
74. Id. Cf. Khadduri, War and Peace in the Law of Islam, supra note 11, at 170
(“[T]he dār al-ḥarb . . . lacks the legal competence to enter into relations with dār
al-islām on the basis of equality.”); Shaybani, supra note 11, at 12.
2024] S OV E R E I G N T Y, T E R R I T O R I A L I T Y 19

the status of the other jurisdiction’s law, and how it will be received by
a court in the Muslim commonwealth, depends on the relationship of
the Muslim commonwealth to that polity in “public international law,”

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i.e., whether they are in a relationship of peace or war.
In summary, Islamic law’s taxonomy of jurisdictions begins with
the idea of the dār al-ḥarb as the primordial human condition. The dār
al-ḥarb is a universal and existential feature of human relations char-
acterized by the absence of a shared governing law. Human beings can
unite to form political communities or states which, in establishing
control over a specific territory, can institute a legal order that guar-
antees security, and by extension rights. However, the law and the pro-
tection it affords are inherently confined to the territory governed by
these communities. The existence of multiple political communities,
and multiple legal orders, displaces the primordial condition of the
state of nature into the arena of interactions between these different
political communities. Because these different units are empirically
and legally independent of one another, no common law regulates their
interactions. Their initial legal relation is therefore that of war. The
common law of war thus applies to the interactions of all sovereigns
equally, the Muslim commonwealth included, except to the extent that
the legal system of a particular sovereign, such as the Muslim com-
monwealth, imposes internal restraints on its interactions with other
states and their nationals.
Internal law, according to the classical Muslim jurists, while it can
preempt certain provisions of the international common law of war,
such as placing limits on targeting in times of conflict, or treatment of
prisoners, does not displace it entirely. Moreover, the common law of
war has its own means to eliminate a relation of war, namely, through
the conquest and annexation of others’ territories or reducing those
territories to the status of a vassal (dhimma), both of which result in
the incorporation of new territories and peoples into the conquering
polity.75 The law of war, however, can also be displaced by agreements
(muwādaʿa), in which case the parties agree to regulate their inter-
actions in accordance with their agreement or by grants of security or
safe passage (amān) rather than the common law of war. Because the
agreement creates binding obligations on both parties, the law thus
generated is positive and “international.” Because of the monist char-
acter of Islamic international law, the international agreement has
immediate effects on the internal law of the Muslim commonwealth,
at times even altering otherwise existing entitlements under domestic
law.

75. 5 Sarakhsī & Shaybānī, The Commentary, supra note 37, at 12 (the vassals of a
people are part of their polity).
20 T H E A M E R I CA N J O U R N A L O F C O M PA R AT I V E L AW [Vol. XX

V. The Individual, Sovereignty, and Legal Order

The lawlessness of the original condition results from the premise
of non-obligation (barāʾat al-dhimma) that by default regulates an

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interaction between two or more persons. But why can’t two or more
individuals, on their own, simply agree, for example, to abide by a
norm of non-aggression, perhaps because they believe such a norm
is a moral duty, imposed upon them by God, and thereby establish
inviolability (ʿiṣma) for their property and their persons as between
themselves? Suppose they are Muslims, and they both believe that ag-
gression is sinful, and that God requires them to respect one another’s
person and property? Is that sufficient to create a legal obligation (in
contrast to a mere moral obligation) between them? The short answer,
according to the classical Ḥanafī legal tradition, is no: neither a mutual
acknowledgement of moral inviolability, nor an agreement to treat one
another as inviolable, is sufficient to establish legal inviolability.
According to classical Ḥanafī jurists, a shared norm was not suffi-
cient to create a legal obligation between interacting parties, because
the inviolability of persons and their property arose only if the ob-
jective conditions of secure possession (iḥrāz) had been established.76
Until that condition was satisfied, one could not speak of enforceable
property rights, whether in terms of restitution or damages. In the
absence of secure possession, objects lacked definitive monetary value
(taqawwum). Similarly, persons lacked a right to compensation for loss
of life or limb, or even security from enslavement. Secure possession
required not only a shared norm, but also the capacity for self-defense
within a definite territory (dār) where legal norms could manifest.
Accordingly, mere agreement on a shared norm, without the effective
power to vindicate the entitlements guaranteed by that norm against
internal and external aggression, is insufficient to create a legal order.
Sovereignty results from the decisions of individuals in a par-
ticular territory to bind themselves to one another, combined with
their successful occupation of, and exercise of effective control over, a
definite territory. Upon so doing, the prerequisites for the creation of
a state with a legal order that can secure the lives and properties of
the persons in that territory is objectively satisfied. Because classical
era Ḥanafi jurists regarded sovereignty to be an unimpeachable social
fact, they were indifferent to the content of non-Muslim legal systems.
In the extreme, it was sufficient that the people of a particular terri-
tory, if they had the requisite capacity for self-defense and control over
that territory, submitted to the decisions of one of them, even if their
law was simply recognition of the effects of brute force.77

76. El Fadl, supra note 56, at 165.

77. 5 Sarakhsī & Shaybānī, The Commentary, supra note 37, at 34 (recognizing the
sovereignty of the Daylam, a warlike people who lived in a mountainous region on
the shores of the Caspian Sea on the borders of the Muslim commonwealth, despite
Muslims’ belief that their law recognized coercive transfers as effective).
2024] S OV E R E I G N T Y, T E R R I T O R I A L I T Y 21

Shaybānī affirms the centrality of the link between sovereignty

and individuals’ access to the legal order, even in the case of Muslims,
in a hypothetical involving two persons in dār al-ḥarb, neither of whom

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have any tie to the Muslim commonwealth, but who have converted
to Islam. Suppose that, having become Muslims, the two individuals
are both still in the dār al-ḥarb, and one of them destroys property
belonging to the other. In this case, if they subsequently immigrate
to the Muslim commonwealth, the tortfeasor is under no obligation
to compensate the owner for the value of the destroyed property, even
though both are Muslims, and even though by destroying it, the tort-
feasor had committed a sin. In his Commentary, Sarakhsī explains
this outcome by arguing that the duty to compensate the owner for
the destruction of his goods arises only in a context of secure pos-
session that provides goods definitive monetary value (taqawwum).
These conditions are only satisfied in a polity (dār). Shared religion
is alone insufficient to establish secure possession because religion is
subjective and the inviolability it offers to persons and things binds
only those who profess that religion. Secure possession, by contrast,
is objective, and it manifests itself empirically in a fashion that is
incontestable, regardless of religious belief.78 For that reason, only a
state can underwrite secure possession and guarantee inviolability of
persons and things.79 This is true despite the fact that, in principle,
Muslims are under a moral obligation to abide by the norms of Islamic
law wherever they may find themselves.80 This hypothetical should
at a minimum call into question the all-too-common assumption that
Islamic morality and law are inseparable or even indistinguishable,81
and it shows that for the Ḥanafīs at least, the distinction between
morality and the law was fundamental.82
For the Ḥanafī jurists of the classical era, determining the na-
ture of the relationship between a person and a legal jurisdiction
was an unavoidable first step in determining the rights and duties
of all persons. This derived from their distinction between two dif-
ferent kinds of inviolability that persons and objects enjoyed: the first
was the moral inviolability of the person—ʿiṣma muʿaththima—and

78. Id. at 130–31 (“[T]he obligation to provide compensation [for the destruction of
property] is by virtue of secure possession and monetary value, and these are incidents
of a polity, not religion. The inviolability provided by religion is valid only with respect
to someone who believes [in that religion], not with respect to someone who does not.
Secure possession, however, is achieved by what is manifest to the senses, whether or
not one believes or does not believe, and that can only take place through a polity.”).
79. Id. Of course, if they were on the territory of another polity, the owner could
sue the tortfeasor in the courts of that jurisdiction to obtain compensation, if that legal
system afforded the victim a remedy.
80. Id. at 129–30.
81. Cf. Wael B. Hallaq, Sharīʻa: Theory, Practice, Transformations 2–3 (2009).
82. Baber Johansen, Islamic Law: Legal and Ethical Qualifications, in 5 The
Oxford International Encyclopedia of Legal History 451 (Stanley N. Katz ed., 2009).
22 T H E A M E R I CA N J O U R N A L O F C O M PA R AT I V E L AW [Vol. XX

the second was legal inviolability—ʿiṣma muqawwima.83 Breach of

the former resulted in sin, while breach of the latter resulted in an
enforceable (or potentially enforceable) legal remedy in the secular

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world, such as restitution or payment of compensation. Moral inviol-
ability is foundational (al-aṣl) for human beings, because in principle,
knowledge of the sinful consequences of violating the inviolability of
another acts, or should act, to deter aggression.84 The moral inviol-
ability of property, by contrast, is derivative (tābiʿa) of an individual’s
moral inviolability insofar as it assumes this quality by virtue of its
relationship to a particular human. Conversely, legal inviolability is
derivative (tābiʿa) for human beings because a remedial system treats
individuals as though they are fungible objects capable of valuation,
which is contrary to their fundamental nature. For property, however,
legal inviolability is foundational (aṣl) because protection of property
implies the possibility of repairing damage that occurs with respect
to it. Monetary compensation can only take place in the context of a
polity that secures property rights. It thus follows that securing the
bodily interests of the person by assigning monetary values to the
body is fundamentally similar to securing other types of property.
Accordingly, remedial inviolability for assaults against the person can
only take place in the context of a polity.
The twelfth-century Central Asian Ḥanafī Burhān al-Dīn
al-Mirghīnānī explains these different conceptions of inviolability in
the following passage of his legal work, al-Hidāya:
Moral inviolability arises simply by virtue of being human
insofar as the human was created with the capacity to under-
take the burdens of legal obligation. The discharge of these
obligations requires that he be protected from assault, and
the moral inviolability of property is derivative thereof. As
for legal inviolability it is foundational for property because
monetary value implies the possibility of repairing a loss, and
that is a specific feature of property not found in the human
person because doing so is conditional on generic likeness
(tamāthul), which is present in the case of property, but not
in humans. Accordingly, legal inviolability is derivative with
respect to humans. Finally, legal inviolability for property
arises only in circumstances of secure possession (al-iḥrāz)
that takes place in a polity (al-dār), because protection
(al-ʿizza) of property is realized only through the capacity for
self-defense (manaʿa), and the same is true for human life.85

83. El Fadl, supra note 56, at 165–66.

84. 6 Ibn al-Humām et al., supra note 49, at 28. Nevertheless, moral inviolability
only had a legal consequence, inchoate as it was, if a person embraced Islam.
85. Id. at 27–28.
2024] S OV E R E I G N T Y, T E R R I T O R I A L I T Y 23

In the hypothetical scenario involving the destruction by one Muslim

convert of the property belonging to another Muslim convert, the
courts of the Muslim commonwealth would not have jurisdiction over

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a claim for compensation on the assumption that the incident occurred
outside the territory of the Muslim commonwealth. This jurisdictional
limitation applies even if both parties later immigrated to the Muslim
commonwealth and the aggrieved party sought redress from the re-
sponsible party. The absence of an enforceable remedy, however, did
not mean that morality was not engaged. Indeed, the Muslim judge
should, in this circumstance, advise the responsible party to compen-
sate his companion as a matter of religious scruple.86
The existence of a legal order, underwritten by a particular people’s
capacity for self-defense, in turn guaranteed the inviolability of their
persons and properties, but only vis-à-vis other people living in that
territory, and only for as long as their political community remained
intact. Its continued existence was contingent: it could be destroyed,
either because of internal dissolution or external conquest. Without
peace, the persons in every political community remain vulnerable to
death or enslavement at the hands of their enemies, and their proper-
ties vulnerable to seizure by the enemy.
Only the positive act of contracting peace can cure the ever-
present threat of violence. When Muslim jurists refer to non-Muslim
territory as dār al-ḥarb, therefore, they do not mean to say that such
territories are devoid of law, or that their law is inferior (although
they certainly did believe that was the case), but rather that these
territories had not entered into peaceful relations with the Muslim
commonwealth, and so their persons and properties lacked standing
under Islamic law.87 The decision of a non-Muslim territory not to
enter peaceful relations with the Muslim commonwealth was a valid
exercise of its sovereign power, even if, from the perspective of Islamic
law, this exercise was wrongful. More generally, and regardless of the
nature of a given people’s domestic legal order, as long as this people
maintained effective control over a definite territory, it was considered
by the classical Ḥanafī jurists to be a legal entity with the collective
capacity (dhimma) to enter into, or repudiate, peace agreements with
others, both natural persons and other legal entities. If another party,
however, destroyed their polity, any rights accruing to the individuals
of that polity under treaties with other polities disappeared, because
they had now been annexed to the conquering power and became sub-
ject to its laws.88

86. 5 Sarakhsī & Shaybānī, The Commentary, supra note 37, at 129.
87. Cf. Shaybani, supra note 11, at 12.
88. 5 Sarakhsī & Shaybānī, The Commentary, supra note 37, at 12 (the effects of a
peace treaty disappear if a third-party, not a party to the peace treaty, annexes one of
the parties to the treaty).
24 T H E A M E R I CA N J O U R N A L O F C O M PA R AT I V E L AW [Vol. XX

Because Ḥanafī jurists understood sovereignty as resulting

from the decisions of individuals to act as a collective person with
its own capacity, sovereignty also entailed an agreement to au-

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thorize their ruler to make decisions on their behalf vis-à-vis other
powers.89 Accordingly, collective responsibility defined obligations
between states. But the collective entity was not entirely separate
from the persons that authorized its existence. The relationship be-
tween a polity’s collective identity and the individual identities of
its members also implied that, when peace treaty was established,
both the non-Muslim state and its nationals, in their individual
capacities, reaped its benefits. Conversely, individuals also shoul-
dered any consequences if their ruler opted to void a peace agree-
ment, whether through breach (naqḍ) or through formal revocation
(nabdh).
Muslim jurists therefore distinguished between acts properly at-
tributable to the group and those attributable only to (some) individ-
uals within the group. Accordingly, breaches of the peace agreement,
carried out by one or more nationals of the non-Muslim state in the
territory of the Muslim commonwealth, if they lacked the capacity of
self-defense, and if their actions were unauthorized by their ruler, did
not amount to a repudiation (naqḍ) of the peace treaty and were in-
stead treated as mere crimes.90 Because these acts of aggression could
not be attributed to the foreign ruler, they could not be treated legally
as a repudiation of the peace. Conversely, if a group of non-Muslim
nationals, independently capable of self-defense, entered the terri-
tory of the Muslim commonwealth in defiance of its ruler and, while
there, openly committed aggression against its nationals, their actions
would amount to a repudiation of the peace treaty.91 The Muslim com-
monwealth, while it was entitled to treat that group as enemies under
the law of war, could not treat their actions as a repudiation by their

89. Id. at 7–8 (“[T]he legal position of the people of a kingdom, with respect to
peace and war is derivative of their king, on account of their submission to him and
their willingness to accept him as their head; when he repudiated the treaty, each of
the people of the kingdom repudiated the treaty, whether or not they knew of the king’s
action.”).
90. Id. at 7 (explaining that if one or more foreign nationals from a party at peace
with the Muslim commonwealth enter Muslim territory and while there commit
highway robbery, their actions do not amount to a breach of the peace because their
lack of a capacity of self-defense means that they are not acting in defiance of Muslim
sovereignty on Muslim territory).
91. This rule confirms the significance of the capacity for self-defense (manaʿa)
in Islamic international law: the existence of such a capacity, along with the invading
non-Muslims’ open defiance of the legal ruler of the territory, results in the creation of
immunity against the operation of that territory’s domestic law against them, leaving
their conduct subject only to the laws of war.
2024] S OV E R E I G N T Y, T E R R I T O R I A L I T Y 25

polity of peace, insofar as their actions were not properly attributable

to it.92
We can see a historical example of this principle in a dispute

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involving Cyprus during the reign of the ʿAbbāsid caliph, Hārūn
al-Rashīd. His governor of the border region in northern Syria, ʿAbd
al-Malik b. Ṣāliḥ (d. 196/811), sought legal advice regarding the status
of Cyprus, and whether the actions of the Cypriots amounted to a
repudiation of the peace that had been in place for over a century.
According to Abū ʿUbayd b. Sallām (d. 224/838), who reported this inci-
dent in his Kitāb al-Amwāl (The Book of Revenue), the majority of the
numerous jurists the governor consulted advised against concluding
that the Cypriots had repudiated, through their actions, the treaty.93
Because sovereignty also had an internal dimension—the exclu-
sive authority to determine the rights and status of the state’s na-
tionals—Muslim judges, according to the Ḥanafīs were generally
either to disclaim jurisdiction over disputes whose facts arose in non-
Muslim territory, or defer to the content of relevant non-Islamic law
in those few instances when they could properly exercise jurisdiction
over a dispute originating in non-Muslim territory.94 This was true
even if the parties to the dispute subsequently converted to Islam and
immigrated to the Muslim commonwealth or became vassals of the
Muslim commonwealth and retained their own religion.95
Ḥanafīs justified this result by pointing to the nature of the
political relationship that existed among the claimants, the facts
of the claim, and the location where the dispute originally arose.96
The potential relevance of non-Muslim law in determining property

92. 5 Sarakhsī & Shaybānī, The Commentary, supra note 37, at 7 (“If the group com-
mitting violence in Muslim territory have a capacity for self-defense and are doing
so openly without being so commanded by their king and the people of his kingdom,
they have repudiated the peace because there is no point to a peace treaty other than
abandoning violence. Accordingly, if they are openly engaged in violence, in reliance on
their capacity for self-defense, each one of them has repudiated the peace by engaging
in conduct which is the opposite of what peace entails. As for the king and the people of
his kingdom, the peace treaty remains in force with them because they did not engage
in an act that amounts to a repudiation of the peace nor did they acquiesce in their
actions so they are not accountable for the actions of others.”).
93. Abū Ubayd al-Qāsim ibn Sallām, Kitāb al-amwāl [The Book of Revenue] 220
(1968) (stating that that “most of them [i.e., the jurists whom the governor consulted]
confirmed the treaty, and prohibited waging war against them [i.e., the Cypriots] until
such time as they [i.e., the Cypriots] made a collective decision to repudiate the treaty.
That is the best view to be followed and the majority should not be held culpable for
the actions of a few unless they manifest agreement and contentment with the actions
of the few.”); Abū ʻUbayd al-Qāsim ibn Sallām, The Book of Revenue (Imran Ahsan Khan
Nyazee trans., Garnet Publ’g 2002).
94. 5 Sarakhsī & Shaybānī, The Commentary, supra note 37, at 34.
95. Id.
96. Id. at 37 (“[T]hey had bound themselves to his [i.e., the non-Muslim king’s]
law and were content with it when he settled their dispute in accordance with it, and
he was the ruling power, exercising dominion over them, and so his judgment among
them is settled and complete so there is no point in invalidating any of that after they
embrace Islam.”).
26 T H E A M E R I CA N J O U R N A L O F C O M PA R AT I V E L AW [Vol. XX

entitlements and personal status is what gives rise to the existence of

“private international law” in classical Muslim legal thought, as will
be discussed in greater detail in Part VII below.

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VI. The Genealogy of Sovereignty in Classical Muslim Legal
Thought
Ḥanafī jurists derived their conceptual framework for sovereignty
and international law from Muslims’ own historical experience and
verses of the Quran that implied territorial limitations to Islamic
law; expressly affirmed the binding character of treaties, even if their
content differed from the applicable internal rule of Islamic law; and
taught the universality of the Islamic dispensation.

A. The Founding of the Muslim Commonwealth as the Paradigmatic

Case of Sovereignty
The Prophet Muḥammad founded the Muslim commonwealth
when he migrated from his hometown of Mecca in the Hejaz to the
oasis settlement of Yathrib (now known as Medina). Upon his arrival,
the Prophet drafted a document binding those in Medina who had
already embraced Islam, those who migrated with him from Mecca
to Medina, the unconverted Arab tribesmen of the oasis, and Jewish
tribes that had settled there. This document, known as the “Charter
of Medina” or the “Constitution of Medina” (ṣaḥīfat al-madīna),97 ex-
pressly created a new polity through the agreement of the people. The
first sentence of the document declares the various Muslim parties
to the agreement to be a “single commonwealth, to the exclusion of
all other people.”98 It then sets out several clauses dealing with prin-
ciples of internal governance, including, recognition of the Prophet
Muḥammad as the final arbiter of disputes among the parties to the
document,99 and the obligation of believers to submit to a general
system of law in lieu of self-help.100 The Charter also included a cov-
enant with Medina’s Jews: “He [the Prophet Muḥammad] made peace

97. The secondary literature on the “Constitution of Medina” is vast. See Michael
Lecker, The Constitution of Medina, in Islamic Studies, Oxford Bibliographies Online
(Natana J. Delong-Bas ed., 2014), www.oxfordbibliographies.com/display/document/obo-
9780195390155/obo-9780195390155-0209.xml?rskey=kCpCs0&result=142 (offering an
introduction to some of the more well-known pieces on the document). There is much
debate whether to characterize the document as a “treaty,” a “charter,” or a “constitu-
tion,” but there is little disagreement that it sought to create a new political community.
See, e.g., Saïd Amir Arjomand, The Constitution of Medina: A Sociolegal Interpretation of
Muhammad’s Acts of Foundation of the Umma, 41 Int’l J. Middle E. Stud. 555, 556 (2009)
(“the object of the charter was the creation of a political community”).
98. Muhammad Hamidullah, The First Written Constitution in the World: An
Important Document of the Time of the Holy Prophet 41 (2d rev. ed. 1968).
99. Id. at 48.
100. Id. at 47.
2024] S OV E R E I G N T Y, T E R R I T O R I A L I T Y 27

in it with Jews, covenanted with them, guaranteed to them their re-

ligion and properties, and granted them certain rights and imposed
upon them certain obligations.”101 The Charter addressed Medina’s

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Jews, offering security and support to those who chose to follow the
new order, and described them as “a people alongside the believers
(umma maʿ al-muʾminīn).”102 Medina’s Jews were required to fight
in defense of Medina, each party bearing its own expenses, but were
excused from participating in Muslim campaigns against pagans that
did not involve the direct defense of Medina.103
After the Prophet’s death, the early Muslim community, in the
face of secessionist movements, was faced with the threshold question
of whether Prophet Muḥammad intended for the state that he had
established to come to an end with his death, or whether he intended
to found a commonwealth that would endure after him. The nascent
leadership of the community decided decisively in favor of the latter.
Accordingly, they acted decisively against all attempts at secession.
Thus, when formulating doctrines of international law, Muslim jurists
operated under the premise that a singular executive authority—the
imām or khalīfa—was either universally recognized or entitled to uni-
versal recognition by the Muslim community as its leader.
The legal unity of the Muslim commonwealth significantly im-
pacted the interactions among all persons lawfully present in its ter-
ritory. Because all such persons are legally at peace, the common law
of Islam regulated their interactions. Violence in the Muslim common-
wealth was either regulated by criminal law (ḥudūd), tort law (jināyāt),
or the law of rebellion (aḥkām al-bughāt). In contrast to a state of
war, violence involving nationals of the Muslim commonwealth never
alters property entitlements, although it gives rise to duties of com-
pensation for loss of life and property and possible criminal liability.
Violence, when undertaken to vindicate a principle of law, is regulated
by the law of rebellion. The law of rebellion immunizes both the re-
bels and loyalists from duties of compensation arising out of losses
of life, limb, and property. Neither, however, may seize the property
of the their rivals except temporarily for the purpose of preventing
a military advantage, and upon cessation of hostilities, all property,
including personal weapons, seized by both sides must be restored to
their true owners.104 Apostasy (ridda), however, because it amounts to
the open repudiation of the legal tie to the Muslim polity, reintroduces
the primordial state of war and justifies treatment of the apostate as
a hostile enemy who is subject to death unless he repents.

101. 2 ʿAbd al-Malik Ibn Hisham, al-Sirah al-Nabawiyah [The Life of the Prophet] 143
(1990).
102. Hamidullah, supra note 98, at 46.
103. Id. at 51.
104. Khaled Abou El Fadl, Rebellion and Violence in Islamic Law 238 (2001).
28 T H E A M E R I CA N J O U R N A L O F C O M PA R AT I V E L AW [Vol. XX

The Charter, and Muslim practice thereafter, established that the

Muslim commonwealth was a legal person, having its own capacity
(dhimma)105 to enter legal relations with legal and natural persons

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based on the terms of an agreement.106 Non-Muslim communities,
when they made peace with the Muslim commonwealth, could do so
as individuals, or in a collective, corporate capacity, for example, “the
people of Egypt” or “the people of Jerusalem.” The benefits of an agree-
ment on behalf of a collective person flow through immediately to the
natural persons constituting that collective person.107
The Charter, and Muslim practice thereafter, also affirmed that
each individual Muslim also retained some element of sovereignty
insofar as each had the individual capacity to create a provisionally
binding obligation on the other members of the Muslim community.
This individual capacity was expressed in the text’s declaration that
“the promise of security, even of the lowest of them, binds them all
[yujīr ʿalayhim adnāhum].” In other words, individual Muslims had
the authority to grant a degree of protection to enemies, for example a
grant of safe passage (amān), which all other Muslims, including the
head of state, were obliged to respect, at least provisionally.108 This
concept laid the foundation for interpreting sovereignty in the ensuing
centuries, where a plurality of Muslim states operated within a legal
framework that regarded them to be coordinate jurisdictions of a
single Muslim commonwealth. Accordingly, even nominally rebellious

105. For an overview of how the juridical conception of the Muslim community as a
legal person shaped medieval Islamic constitutional law, see Mohammad Fadel, Islamic
Law Reform: Between Reinterpretation and Democracy, 18 Y.B. Islamic & Middle E. L.
64 (2017).
106. Sarakhsī’s Commentary provides an excellent example of the function of the
dhimma in establishing the grounds for the obligations of both natural and collec-
tive persons (or lack thereof) in classical Ḥanafī legal doctrine: if a Muslim enters
enemy territory pursuant to a private grant of safe passage (mustaʾmin) and, while
there, usurps property belonging to an enemy national and brings it back into Muslim
territory, and the enemy national, who had subsequently embraced Islam, comes to
the Muslim commonwealth and sues the Muslim usurper, seeking to retrieve his mis-
appropriated property, the Muslim judge lacks remedial jurisdiction to compel (wilāyat
al-jabr) the defendant to return the usurped goods to their true owner, although the
judge should advise him to do so as a matter of religious scruple. The judge lacks this
power because the Muslim only breached his own, private undertaking (amān nafsihi)
to the enemy, and so only the individual Muslim possesses remedial jurisdiction. On
the other hand, if the Muslim usurped property belonging to a foreign national whose
polity was at peace with the Muslim commonwealth, the Muslim judge would, in that
case, have remedial jurisdiction. In this latter case, the Muslim usurper breached the
obligation of the Muslim community (amān al-muslimīn), a fact that vests the Muslim
community, through its judge, with jurisdiction to remedy the breach. 5 Sarakhsī &
Shaybānī, The Commentary, supra note 37, at 39.
107. See, e.g., Hamidullah, supra note 98, at 49 (affirming the rights of individual
Jews under the Charter regardless of the actions of others in their clans).
108. See, e.g., 1 Sarakhsī & Shaybānī, The Commentary, supra note 37, at 178.
2024] S OV E R E I G N T Y, T E R R I T O R I A L I T Y 29

regions of the Muslim commonwealth could nevertheless manifest ef-

fective legal personality.109

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B. Territoriality and Quranic Legislation
Various quranic laws suggest that the sovereignty of the Muslim
commonwealth is territorial in nature, necessitating that individual
Muslims establish a tangible connection with the Muslim commu-
nity—beyond shared belief—to qualify for the protection provided by
the Muslim political community. For example, al-Anfāl 8:72 stated:
Indeed, protectors, one of another, are those who believed and
immigrated and struggled in God’s path with their property
and their lives, and those who gave sanctuary and support.
But you have no duties of protection toward those who be-
lieved but did not immigrate, until they immigrate. And if
they seek your aid on account of persecution for their reli-
gion, you are bound to support them unless there is a cov-
enant of peace between you and their people.110
Likewise, al-Nisāʾ 4:92 seemed to establish a clear nexus between law
and territory when it set out different rules for non-intentional kill-
ings, depending on whether the act took place in the territory of the
Muslim commonwealth, territory of a people hostile to the Muslim
commonwealth, or territory of a people at peace with the Muslim
commonwealth:
Never should a believer kill another believer except in error,
and whosoever does so, shall liberate a believing slave and de-
liver compensation to the victim’s family, unless they choose
to forego compensation. But if he was of a people at war with
you, and he was a believer, then liberation of a believing slave
is sufficient. If, however, he was of a people at peace with you,
then compensation is due to his family, along with the liber-
ation of a believing slave.111
The facts surrounding the founding of the Muslim commonwealth,
along with quranic verses stressing the duty of immigration and
making clear that political rights required both belief and immigra-
tion, provided the specific context within which Ḥanafī jurists of the
classical period understood sovereignty, territoriality, immigration to

109. 2 Sarakhsī & Shaybānī, The Commentary, supra note 37, at 217–18 (affirming
that a grant of security given by rebels to the enemy is binding until such time as the
ruler explicitly repudiates it).
110. al-Anfāl 8:72.
111. al-Nisāʾ 4:92. The Ḥanafīs in particular relied on this verse as a proof text
in support of their doctrine of the territoriality of Islamic legal remedies. See 6 Ibn
al-Humām et al., supra note 49, at 28.
30 T H E A M E R I CA N J O U R N A L O F C O M PA R AT I V E L AW [Vol. XX

the Muslim commonwealth, and the legal order.112 These concepts in

turn formed the basis for how classical era Ḥanafī jurists reasoned
about cases involving the interaction of the Muslim commonwealth

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with other polities, and how Muslim nationals interacted with foreign
nationals, whether hostile (ḥarbī), peaceful (muwādiʿ), or foreign con-
verts to Islam.
I now turn to the task of discussing some illustrative cases from
Sarakhsī’s Commentary on the Long Book of the Law of Nations that
illustrate the centrality of sovereignty and territoriality to Ḥanafī
approaches to questions of “private international law.” Adherence to
Islam, by contrast, was secondary.

VII. Cases from Sarakhsī’s Commentary

Sarakhsī enriches Shaybānī’s presentation of the hypothetical
cases in the Long Book on the Law of Nations by presenting nuanced
explanations of Shaybānī’s answers. Delving into their combined work
reveals the essential theoretical concepts that shape their reasoning.
One of these essential concepts is sovereignty. Their theory of sov-
ereignty transcends religious boundaries and presents a universal
framework applicable to all legal orders. This feature of classical
Ḥanafī legal thought confirms the earlier claim of this Article that
the relation of war is primordial and universal. While Islamic law has
specific doctrines that apply to Muslim conduct, regardless of whether
non-Muslim polities reciprocate, these are best understood as pro
tanto modifications of a preexisting, international common law of war,
rather than a wholesale displacement of the international common
law of war as Khadduri’s analysis would have it.

A. Sovereignty, Property Entitlements, and Status in a State of War

(dār al-ḥarb)
Part IV explained that for Ḥanafī jurists, property entitlements
only existed within the territory of a legal order guaranteed by a polity
(dār). Implicitly, persons and things outside the frontiers of that polity
lack legal status in the legal order of that polity. This means that they
are not entitled to the protections of that legal system. The technical
legal term in Muslim juristic thought for legal protection is legal in-
violability (ʿiṣma). The counterpart to legal protection is “permitted
(ibāḥa),” not in the ethically neutral sense that this term carries in
Muslim ethical theory, but in the sense that anything not under the
protection of Islamic law is freely available for everyone in the world
to take and use as part of a pre-political “commons.”113

112. El Fadl, supra note 56, at 145–48; Johansen, supra note 39.
113. This is reflected in the occasional use of the term dār al-ibāḥa as a synonym
for dār al-ḥarb in the text of the Commentary. 5 Sarakhsī & Shaybānī, The Commentary,
supra note 37, at 130.
2024] S OV E R E I G N T Y, T E R R I T O R I A L I T Y 31

Sovereignty placed a limit on the effectiveness of all legal orders,

including the Muslim legal order. But a non-Muslim legal order inter-
acts with the Muslim commonwealth’s internal property law, and its

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law of personal status, when the Muslim commonwealth adjudicates
claims involving ownership of things imported from beyond its terri-
tory, or determines the status of persons, such as married or unmar-
ried, free or slave, Muslim or non-Muslim, arriving in its territory.
In the case of the Muslim commonwealth, property rights acquired
outside the territory of the Muslim commonwealth become protected
property rights only when that that property is lawfully imported
into the territory of the Muslim commonwealth. Islamic law is thus
indifferent to how the possessor obtained possession. Possessions
originating in the territory of the Muslim commonwealth, by contrast,
are only presumptively the possessor’s property and are always sub-
ject to third party challenge as having been unlawfully acquired.114
A person’s status, too, was only determined upon his or her arrival to
Muslim territory.
But what happens to property rights when the goods are removed
from the territory of the Muslim commonwealth, either by the vol-
untary action of a Muslim national—for example, a merchant taking
goods with him to enemy territory as part of a trading venture—or by
forceful removal by an enemy raiding party? The basic rule, according
to the Ḥanafīs, is that once property leaves the territory of the Muslim
commonwealth it ceases to be under its protection, and so it reverts
to a mere possessory interest. As long as it remains in Muslim terri-
tory, however, it continues to be property protected by the law of the
Muslim commonwealth, even if the enemy has seized control over it.
Shaybānī illustrates these principles in the following case:
Were the enemy to raid our territory, seizing property and
taking prisoners, and then embrace Islam prior to returning
to their territory with their plunder and prisoners, the ruler
is to confiscate all they have seized and return it to its prior
owners [and free their captives], whether or not they [i.e., the
hostile forces] become Muslims or vassals on our territory.
It does not matter whether they divided the plunder among
themselves or not, as long as they did so on our territory.115
This case confirms that forcible transfer of possession by an enemy
does not negate the true owner’s right to his goods, provided the
property remains within the Muslim commonwealth’s territory. The
law upholds the legal claim to possession as long as the goods stay
within the commonwealth’s bounds and under the ruler’s constructive

114. Islamic law recognized a general cause of action called istiḥqāq which a true
owner could bring against a possessor alleging wrongful possession. It is similar to
common law actions such as replevin for goods and ejectment for realty.
115. 4 Sarakhsī & Shaybānī, The Commentary, supra note 37, at 82.
32 T H E A M E R I CA N J O U R N A L O F C O M PA R AT I V E L AW [Vol. XX

control, who is presumed to be capable of asserting the legal rights of

Muslim nationals.
Sarakhsī clarifies that the raiders’ control did not generate a new

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right to property, even if they had converted to Islam or become vas-
sals, because the requirement of secure possession of the plundered
items was not satisfied.116 Ownership, he explains, hinges on “the per-
fection of dominion,” which in turn depends on “secure possession.”117
Hence, their legal standing is equivalent to that of a usurper under
domestic law, obligating them to restore the plundered goods to their
rightful owners.118 Their conversion to Islam or their vassalage while
on Muslim territory is irrelevant to their property claims as they did
not have rights to these items at the time their status changed.
Consider an alternative scenario: what if, before the thieves are
captured on their way home, a Muslim national enters their camp
under a grant of safe passage issued by the foreign raiders themselves,
and purchases some of the plundered property? Shaybānī explains
that “he [i.e., the Muslim purchaser] must return it to its true owners,
with no right of reimbursement [against the true owner].”119 Sarakhsī
further notes that, because the enemy raiders’ possession was not
equivalent to ownership, the purchaser could not obtain a property
right. His payment to the enemy is the equivalent to a ransom (fidā),
rather than a purchase price, and is treated by law as a gratuitous
payment (taburruʿ) that imposes no duty of reimbursement upon the
true owner.
The same principle applies to Muslim raiding parties in enemy
territory: any enemy property seized does not generate individual
property rights until it is brought back into Muslim territory, where
secure possession can take place, and the spoils can be divided among
the soldiers. Sarakhsī notes that the legal cause for entitlement to
property is dominion; but in the case of Muslim soldiers campaigning
in enemy territory, their dominion over enemy property is incom-
plete, being merely possessory. Accordingly, their individual property
rights arise only when they return safely with their booty to Muslim
territory.120
What happens, however, if the enemy successfully returns to their
own territory with the plundered goods and captives? Shaybānī states:
“If the enemy returns to their territory with the plundered goods in
their possession, and then they convert to Islam, or return to our ter-
ritory [thereafter] pursuant to a grant of safe passage, it becomes

116. Id.
117. Id.
118. Id.
119. Id.
120. 3 Sarakhsī & Shaybānī, The Commentary, supra note 37, at 112.
2024] S OV E R E I G N T Y, T E R R I T O R I A L I T Y 33

theirs [from the perspective of Islamic law].”121 Sarakhsī explains the

different treatment of the two cases as resulting from the fact that
the enemy successfully returned to their territory with the plunder:

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“They became owners by virtue of secure possession (al-iḥrāz). Secure
possession perfects the legal grounds of property, which is dominion.”
Their conversion to Islam, while on their territory, or their agreement
to become vassals to the Muslim commonwealth, results in their pos-
sessory interests becoming cognizable property rights.122 Although
Islamic law does not recognize an enemy’s property rights in a state
of war, the enemy’s successful raid on Muslim territory suffices to des-
troy the property rights of the Muslim national to his or her plundered
property. Accordingly, if the enemy returns to Muslim territory, this
time not as raiders, but pursuant to a grant of safe passage—for ex-
ample, as traders —their possessions, including whatever possessions
they obtained as plunder while raiding Muslim territory, are recog-
nized as their property by virtue of the grant of safe passage.
The change in the legal status of the plundered items is further
confirmed in the rights of the Muslim national third party who pur-
chases previously plundered property from the enemy on Muslim ter-
ritory, but only after the enemy successfully conveyed it to their own
territory, and has returned pursuant to a grant of safe passage with
the plundered goods: “[I]f a Muslim national purchases some of these
goods from them, the original owner can make a claim to his plun-
dered goods, provided he pays the purchaser the price he paid for the
goods.” In this case, the third-party purchaser receives a valid title
to whatever goods he purchases from the enemy national lawfully
present in Muslim territory, and so the true owner can only reclaim
those goods if he is willing to reimburse the purchaser.
As the cases above suggest, Ḥanafī law applies the principles of
territoriality and sovereignty on a reciprocal basis when determining
property rights to things, with the result that in certain cases, non-
Islamic law had the capacity to extinguish rights recognized in Islamic
law, as an effect of the recognition of the sovereignty of other states’
legal orders. Sometimes, however, Islamic law preempted otherwise
applicable principles of foreign law. The most important example is
the status of Muslim nationals enslaved by the enemy. Despite the
general principle that the status of things and persons was deter-
mined by their presence in the territory of a legal order, and that the
status of a person or thing (unless present in the foreign territory pur-
suant to a grant of security or treaty of peace) was determined by the
rules of the new jurisdiction, classical Islamic law never recognized

121. 4 Sarakhsī & Shaybānī, The Commentary, supra note 37, at 82–83. This principle
is attributed to the Prophet Muḥammad who was reported to have said, “whatever a
person possesses upon embracing Islam is his.” This principle was applied to vassals
and non-Muslims who make peace with the Muslim commonwealth.
122. Id.
34 T H E A M E R I CA N J O U R N A L O F C O M PA R AT I V E L AW [Vol. XX

the slave status of its free nationals who were enslaved pursuant to
non-Islamic law in non-Muslim territory.123
Under Islamic law, a free person, lawfully present in Muslim terri-

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tory, whether as a Muslim, a vassal, or pursuant to a grant of security,
could never be enslaved, whether by subjugation, punishment for a
crime, failure to pay a debt, or through a contract of self-enslavement.124
In Islamic law, a Muslim is prohibited from enslaving another Muslim
or Muslim national, even during wartime, and regardless of whether
the individual was captured while serving in a non-Muslim military.
Slavery within Muslim territories primarily resulted from battlefield
defeat and subjugation, if the defeated captives’ lives were spared,
or imported from non-Muslim territory, where they would have al-
ready been enslaved. Accordingly, any enemy national who converts
to Islam, becomes a vassal, or enters Muslim territory pursuant to a
grant of safe passage, must be divested of possession of any slaves in
his possession who were previously free under Islamic law, receiving
instead compensation for their value.125 In this case, Islamic law’s do-
mestic rule, that makes the freedom secured by lawful presence in
Muslim territory inalienable, is not overcome by conquest, in contrast
to property rights in things. Even here, however, the common law of
war is not without effect: the non-Muslim national, although divested
of his property interest in the slave, is compensated for the value of
his confiscated property.
These examples, while confirming the salience of sovereignty in
the legal analysis of cases involving the Muslim commonwealth and
a non-Muslim power, do nothing to show that they are universal prin-
ciples of law. Shaybānī, however, also discusses hypotheticals involving
non-Muslim powers, and applies the same rules to their interactions:
If a group of Turks, having a capacity for self-defense
(manaʿa), enter Byzantine territory and take some free per-
sons captive while raiding there, but before they manage to
take the captives back to the Turks’ territory, the captives
embrace Islam, they are free [from the perspective of Islamic
law]. And, if their captors later embrace Islam, the captives’
freedom is further strengthened, even if the [captors] manage
to take them to the Turks’ territory. Therefore, if the Muslims
subsequently prevail over those Turks, [the Byzantine
captives] are treated as free persons.126

123. This rule was not uniformly observed in the first century of Islamic history.
See Abū Ubayd al-Qāsim ibn Sallām, supra note 93, at 168 (reporting that the enemy
made off with a group of Muslim vassals, sold them into slavery in Cyprus, and then
the Cypriots sold them to some Muslims; when the vassals asked the Umayyad caliph
to restore their freedom to them, he refused).
124. R. Brunschvig, ʿAbd, in Encyclopaedia of Islam, supra note 38, http://dx.doi.
org/10.1163/1573-3912_islam_COM_0003.
125. 5 Sarakhsī & Shaybānī, The Commentary, supra note 37, at 32.
126. 4 Sarakhsī & Shaybānī, The Commentary, supra note 37, at 83–84.
2024] S OV E R E I G N T Y, T E R R I T O R I A L I T Y 35

In this case, Shaybānī makes clear that the captives’ status under
Islamic law can only be determined by reference to their prior status
under non-Islamic law. He states that, if the captives convert to Islam

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while still free persons under Byzantine law, Islamic law recognizes
their freedom absolutely, and their status as free persons under
Islamic law is not subject to change. The crucial fact in determining
their status under Islamic law is the place of their conversion: if it
took place on Byzantine territory, and Byzantine law upheld their
freedom despite their captivity, they enter Islam as free persons from
the perspective of Islamic law, regardless of what subsequently hap-
pens to them.127
Despite the general principle that possessions at the time of con-
version to Islam are acknowledged as property under Islamic law, this
does not apply in the present scenario. Even after captives are brought
into Turkish territory, the rule is void because a Muslim is not per-
mitted to own a free person.128 Because the Byzantine captives were
free as a matter of Byzantine law at the time of their conversion, their
Turkish captors, upon their subsequent conversion to Islam, cannot
treat them as slaves because to do so would violate their obligation to
honor Islamic law wherever they may be. This seems to be the point of
Shaybānī’s statement that their captors’ conversion to Islam confirms
the captives’ status as free persons, even if they are removed from
Byzantine territory and taken to the Turks’ territory.
If the captives only become Muslims after arriving in the Turks’
territory, however, the situation changes. In that case, Shaybānī con-
cludes “they would be their captors’ slaves”:
If they escape captivity, however, and manage to arrive to our
territory against the Turks’ will, they are free, just as is the
case of the slave of an enemy national who embraces Islam.
But if the Turks converted to Islam before they arrive with
their captives on their territory, and only then do the captives
convert, the captives remain their slaves.129
This rule indicates that while the captives’ conversion to Islam im-
pacts the Muslim commonwealth’s obligations toward them, it does
not alter their status under Turkish law as long as they remain under
Turkish authority. As a result, they are considered slaves upon en-
tering Turkish territory. However, their conversion to Islam means
they are immune from future enslavement if Muslims eventually
annex the area. The legal implications of their conversion to Islam be-
come relevant only if they escape to Muslim lands, where their status

127. For an overview of Byzantine law on slavery, see Youval Rotman, Byzantine
Slavery and the Mediterranean World (2009).
128. 4 Sarakhsī & Shaybānī, The Commentary, supra note 37, at 83 (explaining that
Islam protects against prospective enslavement, not bondage in the past).
129. Id. at 84.
36 T H E A M E R I CA N J O U R N A L O F C O M PA R AT I V E L AW [Vol. XX

as free Muslims would then be recognized. But if the Turkish captors

converted prior to their captives, and then the captives converted
in Turkish territory, then Islamic law was obliged to recognize the

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captives’ status as slaves by virtue of the effect of Turkish law. The pri-
ority of the law of the place over the law of Islam means that immedi-
ately upon the Turks’ arrival with their Byzantine captives in Turkish
territory, they become the Turks’ property pursuant to the law of the
place. When the captors convert to Islam prior to their captives, or if
they make peace with the Muslim commonwealth, as will be further
discussed below, Islamic law requires the Muslim commonwealth to
recognize their Byzantine captives as slaves, even if they should sub-
sequently escape captivity and make it to Muslim territory.
These principles are not, as one might surmise from Khadduri,
principles that Muslims apply unilaterally to non-Muslims; rather,
these are universal principles of law incidental to the Ḥanafīs’ ter-
ritorial conception of law and the inseparable nexus between sov-
ereignty and the legal order. The universality of these principles is
illustrated through the discussion of the legal treatment of a Muslim
slave seized by an enemy raiding party and taken to their territory,
where he becomes a subject of a legal dispute between two foreign
nationals:
If a foreign national, from a jurisdiction not at peace [with
the Muslim commonwealth], takes a Muslim slave pris-
oner, and obtains secure possession over him in the foreign
national’s territory, and then one [of the foreign national’s
own countrymen] usurps him, saying, “He is my slave, and
I have manumitted him”; then, they all become Muslim, and
the one who [first] obtained secure possession of him provides
proof of his entitlement [to the slave], and the law of their
king entails that the slave be returned to him, the usurper’s
manumission of the slave is a nullity. If the usurper in turn
provides proof of his entitlement [to the slave], and the king
relies on it to judge in his favor [i.e., the usurper], and awards
him the slave, and then they embrace Islam or become vas-
sals, then the slave is free by virtue of the [king’s judgment
awarding him to the usurper on the basis of the usurper’s]
evidence. If the usurper manumitted the slave prior to their
king’s decision to leave the slave in his possession, and the
case is otherwise the same, and then they embrace Islam [or
become vassals], the prisoner remains a slave [of the first for-
eign national].130
Note that in this scenario, the Muslim slave—even if he continues to
be a slave—is not returned to his prior Muslim owner: the absence of

130. 5 Sarakhsī & Shaybānī, The Commentary, supra note 37, at 37–38.
2024] S OV E R E I G N T Y, T E R R I T O R I A L I T Y 37

peace between the Muslim commonwealth and the non-Muslim polity

means that, from the perspective of the former, the property right of
the prior Muslim owner of the slave is void. But the Ḥanafīs will not

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give the Muslim slave the benefit of manumission under foreign law
without first ascertaining that the manumitter had come to own the
slave in accordance with the foreign jurisdiction’s law. In the absence
of a ruling from the foreign king affirming the usurper’s right to the
slave, the background legal principles of the foreign jurisdiction deter-
mine the validity, or lack thereof, of the purported manumission of the
Muslim slave in the foreign jurisdiction from the perspective of the
Ḥanafīs, thus affirming again the recognition of the effects of foreign,
non-Muslim law on the personal status of a Muslim.131

B. Sovereignty, Property Entitlements, and Status in a State of Peace

(dār al-muwādaʿa )
The cases discussed in the previous subsection demonstrate that
classical Ḥanafī jurists, even within a context of war, allowed Islamic
law to yield to local laws for determining the status of objects and
individuals. Nationality within the Muslim commonwealth did not
guarantee that the protections afforded by Islamic law extended be-
yond its borders. Therefore, if enemy nationals managed to take prop-
erty belonging to nationals of the Muslim commonwealth into their
own territory, the property rights of the latter typically came to an
end. Likewise, conversion to Islam in non-Muslim territory had a real,
but inchoate effect on the legal status of objects and individuals, only
becoming fully effective upon their arrival in the Muslim common-
wealth. This provisional impact, however, was insufficient to super-
sede local law. Consequently, in cases where non-Muslims enslaved
other non-Muslims and the captors subsequently converted to Islam,
became vassals of the Muslim state, or entered into a peace treaty with
the Muslim commonwealth, the status of their non-Muslim captives
as slaves was recognized under Islamic law. This was the case even if
the captives had converted to Islam in the meantime. The solutions to
these cases were the consequence of a conception of law that under-
stood sovereignty as the fundamental condition of legality, and that
the tangible effects of sovereignty, because of their irresistible social
dimension, were objective and irresistible.
What are the effects of sovereignty in peacetime? It is important
to keep in mind that Islamic law recognized three different kinds of
peace. The first (and the most durable) is the peace of Islam in the
Muslim commonwealth, where the social dimension of sovereignty
is reinforced by shared adherence to Islam. The second is the peace
of vassalage (dhimma), in which non-Muslims agree to be incorpor-
ated into the Muslim commonwealth while keeping their own religion

131. Id. at 38.

38 T H E A M E R I CA N J O U R N A L O F C O M PA R AT I V E L AW [Vol. XX

but agreeing to be governed by Islamic law.132 The third is peace

(muwādaʿa) between the Muslim commonwealth and a non-Muslim
polity.

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Unlike the first two kinds of peace, the third kind of peace is con-
tracted between two sovereigns, rather than entailing a surrender of
sovereignty. Investigating the status of persons and things in the con-
text of a peace between sovereigns presents an opportunity to deter-
mine how Muslim jurists understood the legal effects, if any, of such
agreements because in a peace between sovereigns, the non-Muslim
party retains its own law.133
Despite the temporal limitations of peace between sovereigns,
there can be little doubt that Ḥanafī jurists recognized that the duties
flowing from such an agreement were genuine moral duties, and not
just concessions to necessity. Shaybānī, speaking of the status of the
obligations that arise out of a peace between sovereigns, describes
them as having the same sacredness as duties originating directly
in Islam.134 But what we are interested in is determining whether, in
the context of a peace between sovereigns, Islamic law recognizes the
equal status of the other sovereign’s law, or whether it recognizes only
its own law.
Shaybānī explores these legal scenarios through a hypothetical
peace treaty in which a non-Muslim power agrees to send 100 slaves
annually to the Muslim commonwealth as tribute.135 This scenario
sharply highlights the divergences between Islamic law and non-
Islamic legal systems, a likely reason why Shaybānī uses it. He asserts
that while Muslims can lawfully engage in such treaties, they must
verify that the slaves provided were enslaved prior to the treaty’s en-
actment. Sarakhsī further clarifies that under Islamic law, a peace
treaty effectively grants immunity from enslavement not only to the
non-Muslim power’s ruler but also to the nationals under his rule.
This provision is crucial as it protects them from enslavement after

132. 4 Sarakhsī & Shaybānī, The Commentary, supra note 37, at 315 (“Vassalage sub-
stitutes for Islam with respect to obedience to the secular laws of Islam.”).
133. 5 Sarakhsī & Shaybānī, The Commentary, supra note 37, at 25.
134. 1 Sarakhsī & Shaybānī, The Commentary, supra note 37, at 95 (“The obligations
arising out of such an agreement, with respect to the security of properties and per-
sons, is the equivalent of [the sanctity of properties and persons] arising out of Islam.”).
135. The abstract nature of Shaybānī’s discussion of the law prevents us from
making any definitive conclusions about whether he was commenting on an actual
treaty relation in force at the time he wrote his text, but the facts of the hypothetical
seem consistent with a reported treaty arrangement in force between the Muslim com-
monwealth and the Nubians. See Jay Spaulding, Medieval Christian Nubia and the
Islamic World: A Reconsideration of the Baqt Treaty, 28 Int’l J. Afr. Hist. Stud. 577
(1995); Petra M. Sijpesteijn, Baqṭ, in 3 Encyclopaedia of Islam (Kate Fl eet et al eds.,
3d ed. 2010) (available online at Univ. of Toronto Library) (with subscription); Yusuf
Fadl Hasan, The Arabs and the Sudan: From the Seventh to the Early Sixteenth Century
(1967).
2024] S OV E R E I G N T Y, T E R R I T O R I A L I T Y 39

the treaty is made.136 The obligation of Muslims to verify that indi-

viduals provided as part of the treaty were enslaved before its en-
actment introduces the possibility of factual disputes. These disputes

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allow Shaybānī to explore further scenarios that highlight the inter-
play between Islamic substantive and procedural law, the non-Muslim
party’s substantive law, and the obligations stemming from the treaty.
In the first hypothetical scenario, the foreign nationals delivered
to the Muslims by the foreign king deny that they are the king’s slaves,
but they are in chains and under the control of the king’s retinue.
In this case it is permissible for the Muslims to accept them under
the terms of the treaty. To explain this situation, Sarakhsī evokes the
power of the king over the nationals of that territory and the local law:
If they were their slaves [prior to the treaty] then it is [in-
dubitably] permissible for us to take them; however, if they
were free [at the time of the treaty], he has subjugated them
by the power of [his] authority (sulṭana) and the power of his
retinue, and thus they are his slaves for that reason as well.
That is because if it is their king who does that to them, and
that is valid in their law, i.e., that whoever is subjugated by
another, and reduced to slavery, is recognized as the slave of
the one who subdued him, then we ratify their actions to the
extent that they would recognize that result as binding upon
themselves.137
Muslims are obliged to accept persons enslaved after the treaty if they
were enslaved pursuant to the territory’s law because a necessary en-
tailment of the treaty between sovereigns is that Islamic law does
not apply to the non-Muslim party. Muslims, therefore, cannot ob-
ject to those slaves on the grounds that Islamic law would not permit
their enslavement. To do so would amount to a breach of the peace
treaty. On the other hand, if the foreign nationals are subjugated on
Muslim territory, the Muslim party must refuse them because Islamic
law prohibits the enslavement of anyone at peace with the Muslim
commonwealth.138
Sarakhsī also affirms that the Islamic law of evidence governs
these disputes because they take place on Muslim territory:
If the foreign nationals at peace with us come to our terri-
tory, with one hundred foreign nationals and it is not clear
whether or not they are subjugated, and they say, “These
are our slaves. We brought them to you so you might take

136. 5 Sarakhsī & Shaybānī, The Commentary, supra note 37, at 26; Bernard K.
Freamon, Possessed by the Right Hand: The Problem of Slavery in Islamic Law and
Muslim Cultures 183–90 (2019) (discussing the controversy concerning whether
Muslims could purchase Nubians as slaves).
137. Id. at 27 (emphasis added).
138. Id.
40 T H E A M E R I CA N J O U R N A L O F C O M PA R AT I V E L AW [Vol. XX

them in accordance with the agreement,” but the people say,

“They are lying. We are free, just like them,” their [i.e., the
latter] statement is credited because this dispute is taking

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place in Muslim territory and is subject to Muslim law. It is
part of Muslim law that when we are ignorant of a person’s
status, [i.e., whether he is free or slave,] the person’s state-
ment regarding his own status is credited, subject to proof
establishing that he is a slave. [As for a dispute regarding
the place of subjugation, their statement is also credited] be-
cause their subjugation took place at a specific moment of
time, and so it must be assumed to have taken place at the
time closest to the dispute, [which leads to the presumption
that they were subdued on our territory]. Further, because
they claim, with respect to the subjugated, a fact that would
result in a legal judgment that they are slaves, while the sub-
jugated deny that fact [and thus claim they are free], a dis-
pute about where they were subjugated is the equivalent of
a claim that they were slaves. Accordingly, they cannot be
adjudicated slaves unless the claimant produces evidence of
their status, as in the first case.139
Here, we have a further development in the choice of law: consider-
ation of the law of evidence that applies to the case independently of
the substantive law governing the dispute. What may seem at first
blush to be an extraterritorial application of Islamic law, in fact is not.
The dispute between these foreign nationals, even though in the first
case the relevant events definitively took place in foreign territory,
and in the second case potentially so, takes place on Muslim territory,
and implicates Muslim duties, i.e., avoiding the enslavement of free
persons. Accordingly, the Muslim court applies its own rules of evi-
dence to adjudicate the claims of the foreign nationals inter se.
Shaybānī appears wary that his analysis of this case might could
suggest that a Muslim court have the authority to adjudicate disputes
between foreign nationals in other contexts. To dispel this notion, he
promptly clarifies that Muslim courts do not have jurisdiction over
contractual or debt-related disputes between foreign nationals if the
incidents in question occurred in the foreign territory:
All of the preceding is in contrast to a case in which they raise
claims against one another alleging a debt or a contract that
took place between them in non-Muslim territory, even if one
of them has proof of his claims. We don’t rule over any such
matters so long as they neither embrace Islam nor become
vassals.140

139. Id. at 28.

140. Id. at 28–29.
2024] S OV E R E I G N T Y, T E R R I T O R I A L I T Y 41

Sarakhsī explains the outcome of this case as following from the fact
that the transaction in dispute occurred in a place where “our law” did
not apply to the disputants.141

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Shaybānī next addresses additional hypothetical extra-territorial
disputes that might be presented in a Muslim court. These cases con-
cern litigants who are either Muslims, vassals, or are individuals in
Muslim territory from territories not at peace with the Muslim com-
monwealth but who have entered Muslim territory pursuant to a
grant of safe passage. In all of these cases, the decisive factor is the
law of the place where the actions took place.
In the first case, the absence of peace means the content of the
foreign legal system is irrelevant. When party A converts to Islam
and relocates to the Muslim commonwealth, Islamic law subsequently
recognizes his possessions as legitimate property.142 Should party B
arrive later, whether as a Muslim, a vassal, or under safe passage, and
allege that party A wrongfully acquired his goods, he would not be
permitted to contest party A’s property rights to those goods. This rule
vindicates the sovereignty of the Muslim legal order by recognizing
party A’s possessory interests as property upon his entry to the terri-
tory of the Muslim commonwealth.
If there is a peace treaty, however, a Muslim court has jurisdic-
tion over their dispute, provided both have become Muslim nationals,
even though their dispute occurred on non-Muslim territory. Here,
however, the foreign law is dispositive: if the foreign polity does not
recognize forcible conversion as effective in transferring property
rights, the Muslim court can order party A to return to party B the
converted item. In this case, the possession party A enjoyed over party
B’s property upon entering Muslim territory is irrelevant in granting
him title to party B’s converted goods because the legal relationship of
peace displaced the law of war’s rule that recognizes the effects of for-
cible possession. Because of the peace treaty, and because the foreign
law does not recognize forcible conversion, Muslim law recognizes
party B’s property right as of the date of the treaty.143
Sarakhsī explains that an actual decision in the foreign juris-
diction affirming party B’s property interest despite party A’s act of
forcible conversion is unnecessary. It is sufficient if the claimant can
prove that the law of the foreign jurisdiction would not have recog-
nized such a transfer. Secure possession, therefore, is not wholly em-
pirical; it is also based on the Muslim judge’s legal determination of
the content of the foreign law. The relevant question becomes whether
the foreign legal order would affirm the defendant’s property rights if
the prior owner had sought restitution before a relevant tribunal in
the foreign jurisdiction:

141. Id. at 28.

142. Id. at 35.
143. Id.
42 T H E A M E R I CA N J O U R N A L O F C O M PA R AT I V E L AW [Vol. XX

Accordingly, if a foreign national forcibly converts property of

another foreign national, and then they convert to Islam, and
litigate their dispute, the judge should determine the con-

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tent of their law before they became Muslims. If he concludes
that their law recognizes the effects of forcible conversion,
he does not order [party A] to return the converted item [to
party B]. But if he concludes that their law does not recog-
nize forcible conversion, but that [the foreign judge] did not
order restitution in this case, either because [the judge] did
not know of this case, or because the owner did not bring a
claim against [party A], the Muslim judge orders [party A] to
return the item to [party B]. Although items lacking owners
become property by virtue of secure possession, the posses-
sion of a usurper is only secure if it is the law of their king
that forcible conversion is a lawful means for the transfer of
property rights. Secure possession, however, is not achieved if
that is not their king’s law, because the party whose property
was converted is entitled to bring a suit against the usurper
before the king to obtain restitution of the converted item
from him. His conversion to Islam, after secure possession is
perfected, confirms that property interest.144
By adopting the rule of the foreign jurisdiction after it establishes
peaceful relations with the Muslim commonwealth, the Ḥanafīs vin-
dicate the sovereignty of the foreign state’s legal system in that par-
ticular dispute, even if the foreign rule, for example, that forcible
transfers of property are effective, is repugnant to Islamic law.
A judicial decision in the foreign jurisdiction, however, was rele-
vant in determining the rule to be applied in the Muslim common-
wealth. For example, if, prior to their conversion to Islam or becoming
vassals of the Muslim commonwealth, B sued A before the non-Muslim
king, seeking restitution of the usurped item, and the king decides to
leave the disputed property in A’s possession, then upon the dispu-
tants’ conversion to Islam or becoming vassals, the Muslim common-
wealth must recognize A’s entitlement to the usurped item. Shaybānī’s
analysis rests on his understanding of the role of the king as having
the final word in administering justice, and therefore that the foreign
sovereign decision resolved the dispute conclusively:
If the party whose property was usurped, after his conver-
sion to Islam, offers to prove his claim, saying, “I can provide
Muslim witnesses to prove my entitlement,” his offer should
not be accepted. That is for a legal reason, namely, when their
king prevented the plaintiff from recovering his property
from the defendant’s possession, it was the legal equivalent

144. Id. at 34.

2024] S OV E R E I G N T Y, T E R R I T O R I A L I T Y 43

of taking the property from him coercively and giving it to

the usurper. Had the king done so, it would be indisputable
that the usurper enjoyed secure possession with respect to

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the [disputed] item.145
It is the existence of a relationship of peace between the Muslim com-
monwealth and the non-Muslim polity in this latter set of cases that
makes the content of the foreign law relevant: peace requires the
Muslim commonwealth to recognize the inviolability of the property
rights of the foreign nationals. That obligation—stemming from the
treaty between the Muslim commonwealth and the non-Muslim sov-
ereign—requires a Muslim judge to take cognizance of, and apply, the
law of the foreign nationals in the disputes at hand involving prop-
erty originating in foreign territory and brought into the Muslim com-
monwealth. The Muslim court must, first, abstain from any dispute
involving two foreign nationals if the facts arose out of an interaction
on foreign territory, provided that, in the meantime, they had not both
become Muslims or vassals of the Muslim commonwealth. Even if
they did convert to Islam or become vassals, the Muslim court could
only apply the law of the foreign forum to their dispute.
Even in cases that involve converts or vassals, where the events in
question occurred before their conversion or vassalage, the applicable
foreign law must be applied, despite any directives to the contrary
from explicit quranic law. Thus, if a foreign king’s inheritance law ex-
cludes daughters from receiving a share in preference to sons, or vice
versa, such heirs are barred from contesting the estate’s distribution
after their conversion to Islam or upon becoming vassals.146

C. Conclusion: Jurisdiction and Classical Muslim Private

International Law
Based on the cases discussed above, we are well-positioned to
reach some conclusions about how Ḥanafī jurists in the classical period
understood jurisdiction, and the impact of jurisdiction on private inter-
national law. First, the cases clearly affirm the territorial limitations
of Islamic law’s prescriptive jurisdiction. Islamic law did not purport
to regulate conduct that occurred beyond its borders, even though, as
a matter of Islamic theology, all people were in principle morally ob-
liged to become Muslim. Converting to Islam could grant the foreign
convert certain provisional rights under Islamic law, which would be
fully realized upon their relocation to the Muslim commonwealth, or

145. Id. at 35–36.

146. This principle applies only to tangible property and the status of persons.
Contract claims, and rights to damages in lieu of restitution are non-justiciable if the
dispute took place in foreign territory because secure possession with respect to intan-
gible property only takes place through actual payment. Id. at 37.
44 T H E A M E R I CA N J O U R N A L O F C O M PA R AT I V E L AW [Vol. XX

if their place of residence was annexed by the Muslim commonwealth

or became a vassal territory.
Second, a Muslim court, according to Ḥanafī jurists, had subject-

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matter jurisdiction to hear all cases involving parties lawfully present
in the territory of the Muslim commonwealth, including Muslims, vas-
sals, and foreign nationals present pursuant to a grant of security or a
peace treaty related to disputes that arose in the territory of the Muslim
commonwealth. In so doing, however, the Muslim court always applied
Islamic law.147 Enemy nationals, present on Muslim territory without
the benefit of a grant of security, were not under a court’s jurisdiction
but were instead subject to the law of war that the ruler administered.
Third, if the legally relevant facts occurred outside the territory of
the Muslim commonwealth, a Muslim court only exercised jurisdiction
over the case if both parties were Muslims or vassals. If the parties
became Muslims or vassals after the occurrence of the legally relevant
facts, and only then immigrated to the Muslim commonwealth, the
court applied the law of the place where the dispute took place be-
fore they their change in status and immigration to the Muslim com-
monwealth. In these scenarios, however, the court only heard disputes
involving tangible property claims amenable to restitution or claims
regarding the status of the parties to the dispute, for example, free or
slave, married or unmarried, Muslim or non-Muslim. It did not exer-
cise jurisdiction over cases involving debt or claims of damages. With
the exception of a very narrow range of cases, if the disputants were
nationals of the Muslim commonwealth when their dispute occurred,
the court heard the case and applied Islamic law, even if the dispute
took place in non-Muslim territory.148
Although Ḥanafī jurists denied that the Muslim commonwealth
enjoyed prescriptive jurisdiction over conduct that took place beyond
its territory, its nationals—whether Muslim or non-Muslim—were
able to invoke their rights under Islamic law against other nationals of
the Muslim commonwealth when the facts of their dispute took place
outside of Muslim territory upon their return to the Muslim common-
wealth.149 Jurisdiction in these circumstances was appropriate because
the litigants had a preexisting political tie to the Muslim community.
The basis for this limited extraterritorial jurisdiction therefore was
the existence of a tangible political tie to the Muslim commonwealth,
not simply common religion.

147. The most important exception to the jurisdiction of Muslim courts was cases
involving non-Muslims in matters dealing with their religion, for example, formation
and dissolution of marriages, in which case the Muslim court also refused to exercise
jurisdiction.
148. These exceptional cases are intentional murder (qatl ʿamd), non-intentional
murder (qatl khaṭaʾ) and the scriptural criminal penalties (ḥudūd). Id. at 130.
149. 4 Sarakhsī & Shaybānī, The Commentary, supra note 37, at 83 (stating that vas-
sals have the same rights as Muslims with respect to property obtained beyond the
territory of the Muslim commonwealth).
2024] S OV E R E I G N T Y, T E R R I T O R I A L I T Y 45

The cases discussed in this Part should make clear that classical era
Ḥanafī jurists reasoned systematically to resolve questions of “private
international law,” using categories that they applied universally to all

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interacting parties, regardless of religious identity. Indeed, what is most
striking is the centrality of the polity in their analysis and the relationship
of the person to the polity as a necessary step in determining the rights
of the parties in any particular case. Had the siyar truly been a mere con-
cession to failed political aspiration or rules intended to operate only tem-
porarily on an emergency basis, one would have expected a much more
one-sided set of rules than what we encounter in Sarakhsī’s Commentary
on The Long Book of the Law of Nations. Classical era Ḥanafī jurists may
(or may not) have believed in the inevitability of a universal Muslim com-
monwealth as Khadduri claimed, but in the meantime they articulated
a sophisticated and systematic legal framework for resolving legal issues
that arose in the context of dealing with other polities and persons who
were not part of the Muslim commonwealth.

Conclusion: Islamic International Law and the History of

International Law
Scholarly writing on Islamic international law in the post-World
War II era is often apologetic, seeking to affirm the fundamental com-
patibility of Islamic ideas of world order with those of the post-World
War II order.150 Such an approach is of course welcome to the alterna-
tive—treating Islamic law and Muslims as the “other” of contemporary
international law. As we have seen from Justice Jackson’s comments
in which he commended the study of Islamic law to American lawyers
either for the pedagogical benefits to be gained from exposure to a rad-
ically incommensurate legal system or for the instrumentally benefi-
cial purpose of strengthening ties with anti-Communist allies, many
of the foundational texts introducing Islamic law to English-speaking
lawyers, such as the works of Khadduri discussed in this Article, com-
municated to Western lawyers and judges a single, overarching lesson:
namely, that Islamic law is the opposite of Western law and of little
intrinsic interest. This view, unfortunately, remains pervasive among
Western lawyers and judges.151
While conciliatory readings of Islamic international law and con-
temporary international law are welcome, we must take care not to
risk obscuring both the historical contingency of the latter or the

150. See, e.g., Mahmassani, supra note 7. Indeed, much of Khadduri’s work can
be viewed from this perspective insofar as he argues that Muslims have abandoned
incompatible elements of their tradition to join the post-World War II international
community.
151. See, e.g., Nat’l Grp. for Commc’n & Computs. Ltd. v. Lucent Tech. Int’l Inc., 331
F. Supp. 2d 290 (D.N.J. 2004) (between two different expert opinions on construing
damages for breach of contract under Islamic law, choosing the interpretation most
alien to American theories of contractual damages).
46 T H E A M E R I CA N J O U R N A L O F C O M PA R AT I V E L AW [Vol. XX

specific history of the former. Moreover, by erroneously positing con-

temporary international law as “universal” and Islamic international
law as “particular” or “exceptional,” we fail to consider the possibility

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that contemporary international law is not simply the universaliza-
tion of a tradition with an exclusively European origin.
By engaging in a close reading of canonical works of the Ḥanafī
school of law in the classical period, this Article has shown that for
those jurists, the sovereignty of the state and the territoriality of legal
orders were both the fundamental conditions of, and limitations on, le-
gality. This positivist conception of international law led to a treatment
of “private international law” that integrated it into both the domestic
and international legal frameworks of the Muslim commonwealth. This
methodology shares significant similarities with the positivist turn in
European perceptions of international law in the nineteenth century.
Furthermore, this Article has demonstrated that the positivist
legal philosophy of Muslim jurists facilitated the development of inter-
national law, perceived as the body of law governing the relations be-
tween independent and sovereign equals, as established through their
explicit accords.152 The Article also revealed the complex relationship
between non-Islamic and Islamic law, especially in the context of prop-
erty rights and personal status. Instead of portraying Islamic law as
creating rules in a vacuum, Islamic legal principles, as interpreted by
Ḥanafī jurists, were mediated by a global common law of war and the
diverse non-Islamic legal traditions of the regions that Muslims and
vassals originated from.
A history of Muslim public international law, therefore, cannot
be reduced to the law of jihad, contrary to what Khadduri’s ana-
lysis might suggest. It includes insights from jurists on the inter-
national common law of war and the treaties forged by Muslim
states with non-Muslim powers.153 Given the extensive and ongoing

152. By the tenth century, diplomatic contacts had already come to be a regular fea-
ture of ʿAbbāsid-Byzantine relations. See Maria Vaiou, Diplomacy in the Early Islamic
World: A Tenth-Century Treatise on Arab-Byzantine Relations (2019); Hugh Kennedy,
Byzantine–Arab Diplomacy in the Near East from the Islamic Conquests to the Mid-
Eleventh Century, in Arab-Byzantine Relations in Early Islamic Times 81 (Michael
Bonner ed., 2004).
153. For examples of commercial treaties with Italian city-states, see John
Wansbrough, A Mamluk Letter of 877/1473, 24 Bull. Sch. Oriental & Afr. Stud. 200
(1961); John Wansbrough, Venice and Florence in the Mamluk Commercial Privileges,
28 Bull. Sch. Oriental & Afr. Stud. 483 (1965); John Wansbrough, The Saf e-Conduct in
Muslim Chancery Practice, 34 Bull. Sch. Oriental & Afr. Stud. 20 (1971). For exampl es
of treaties with the Crusader states, see P.M. Holt, Qalāwūn’s Treaty with Acre in 1283,
91 Eng. Hist. Rev. 802 (1976); P.M. Holt, The Treaties of the Early Mamluk Sultans with
the Frankish States, 43 Bull. Sch. Oriental & Afr. Stud. 67 (1980). For a good survey
of the state of the art regarding diplomacy in the Mamluk state, see Malika Dekkiche,
Mamluk Diplomacy: The Present State of Research, in Mamluk Cairo: A Crossroads
for Embassies 105 (Frédéric Bauden & Malika Dekkiche eds., 2019). For an excellent
overview of Ottoman diplomatic practices, see Dariusz Kołodziejczyk, Ottoman–Polish
Diplomatic Relations (15th–18th Century): An Annotated Edition of ʻAhdnames and
Other Documents (2000).
2024] S OV E R E I G N T Y, T E R R I T O R I A L I T Y 47

diplomatic interactions between Muslim and non-Muslim states in

the Mediterranean throughout the late medieval and early-modern
periods, any portrayal of international law as an exclusively European

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phenomenon becomes inherently questionable.154 It is my hope that
this Article makes a small contribution to the historiography of inter-
national law and contributes to making the history of international
law a little more “international.”

154. For a discussion of how Ottoman–Russian conflict and diplomacy resulted in

the transformation of the status of prisoners from one of slavery to the more formal
category of “prisoner of war,” see Will Smiley, From Slaves to Prisoners of War: The
Ottoman Empire, Russia, and International Law (2018). For devel opments in the law of
piracy arising out of conflicts and diplomacy in the eastern Mediterranean during the
seventeenth century, see Joshua M. White, Piracy and Law in the Ottoman Mediterranean
(2018).