1887
Volume 2012, Issue 1
  • ISSN: 2220-2757
  • EISSN:

Abstract

Abstract

Background:

(territoriality) is a unique Hanafi legal concept that signifies the Hanafi recognition of the constraints of enforcing a legal system when it comes to geopolitical realities. This paper argues that the Hanafi legal application of the theory of territoriality in their primary legal literature allowed them to go beyond defining individuals based on their religious identities to mainly focus on the legal status of individuals within or outside Muslim jurisdiction. Unlike the majority of Islamic legal schools, Hanafis consistently upheld the theory of territoriality and stressed that the universal features of the law do not have any legal imperative outside the political framework of Muslim jurisdiction. Hence, they acknowledged the constraints of the legal and political powers of the outside the Muslim jurisdiction.

Methodology:

The primary Hanafi legal texts were relied upon to explore the theoretical foundation of the concept of territoriality (). In my analysis, I have traced usage and application of this concept across different legal topics and in different historical moments. The aim was to show the consistent usage of this doctrine in the Hanafi school. I have benefited from the Hanafi debates with other legal schools regarding the realm and applicability of the concept of territoriality. Finally, the case studies that I have explored demonstrated that Hanafis differentiate between the legal status of a and a residing in , despite the fact that these individuals are non-Muslims and adopt the same religion.

Results:

The significant results of this concept can be summarized in two points. First, it reveals a diverse tradition of legal theories that have framed the extra territorial relations of . Second, for Hanafis, religion was never a factor in their legal determinations in deciding the inviolability () of individuals’ life or property within .

Conclusion:

is a legal doctrine particular to the Hanafi school. Hanafis place a significant weight on the role of the Muslim ruler in executing the law. Therefore, they acknowledge the constraints of the legal and political powers of the Muslim ruler outside the Muslim jurisdiction. Consequently, the legal imperative of these legal concepts have been exclusively framed within the political jurisdiction of . Thus, Hanafis conceded to the fact that the addressees of the ethical or moral values of Islamic legal system are exclusively Muslims and those who reside permanently in , namely . Hanafis maintained that the universalist features of the law do not have any legal imperative outside the political structure of the Muslim jurisdiction.

Loading

Article metrics loading...

/content/journals/10.5339/cis.2012.2
2012-06-01
2024-03-29
Loading full text...

Full text loading...

/deliver/fulltext/cis/2012/1/cis.2012.2.html?itemId=/content/journals/10.5339/cis.2012.2&mimeType=html&fmt=ahah

References

  1. ‘Abd al-Barr, Ibn and Abdallah, Yusuf b. al-Istidhkar. Dar QutaybaBeriut, 1993 .
    [Google Scholar]
  2. Mawdud, Abdullah b, al-Ikhtiyar. Beriut: Dar al-Kutub al-‘Ilmiyyah, n.d.
  3. ‘Abidin, Ibn and Amin, Muhammad. Radd al-Muhtar ‘Ala al-Darr al-Mukhtar. Dar ‘Alam al-KutubRiyadh, 2003 .
    [Google Scholar]
  4. Qudama, Ibn and Abdallah, Muhammad b. al-Mughni. Dar ‘Alam al-KutubRiyadh, 1997 .
    [Google Scholar]
  5. Al-Kasani, and Mas‘ud, ‘Ala al-Din Abu Bakr b. Badai‘ al-Sanai‘ Fi Tartib al-Sharai‘. Dar al-Kutub al-‘IlmiyyahBeirut, 1986 .
    [Google Scholar]
  6. Al-Sarkhasi, and al-Din, Shams, al-Mabsut. Beirut: Dar al-Ma‘rifa, n.d.
  7. Al-Shaybani, and al-Hasan, Muhammad b. al-Siyar al-Kabir, vol. 1Matabi‘ Sharikat al-‘Ilanat al-SharqiyyaCairo, 1971 .
  8. Al-Tunukhi, and Sa‘id, Sahnun. al-Mudawana al-Kubra. Matba‘at Dar al-Sa‘adaCairo, 1905 .
    [Google Scholar]
  9. Ahmad, and Mushtaq, Muhammad. The notions of Dar al-Harb and Dar al-Islam in Islamic in Islamic Jurisprudence with special Reference to the Hanafi School. Islamic Studies, vol. 47:(2008) 537.
    [Google Scholar]
  10. El Fadl, Khaled Abou. Islamic Law and Muslim Minorities: The Juristic Discourse on Muslim Minorities from the Second /Eighth to the Eleventh/Seventeenth Centuries. Islamic Law and Society, (1:2), (1994) 182.
    [Google Scholar]
  11. Parvin , Manoucher, and Sommer, Maurie. Dar al-Islam: The Evolution of Muslim Territoriality and Its Implications for Conflict Resolution in the Middle East. International Journal of Middle East Studies, vol. 11: (No. 1), (Feb., 1980) 121.
    [Google Scholar]
  12. Qasim, and al-Din, Muhammad Muhy. al-Taqsim al-Islami li al-Ma‘mura. al-Ma‘had al-‘Alami li al-Fikr al-IslamiCairo, 1996 .
    [Google Scholar]
  13. Khan, Zafarul-Islam. Islamic political thought: Dar al-harb and Dar al-Islam. Muslim & Arab Perspectives, vol. 2: (no. 9), (1995) 5165.
    [Google Scholar]
  14. Al-Sayyid, and Ridwan, . Dār al-ḥarb and Dār al-Islām: traditions and interpretations. Scheffler, Thomas  (ed.) Religion between violence and reconciliation. Beirut: Orient-Institut der Deutschen Morgenländischen Gesellschaft, Ergon VerlagWürzburg (2002) .
    [Google Scholar]
  15. Wheeler, and Brannon, M. From Dār al-Hijra to Dār al-Islām: the Islamic utopia. Hiroyuki, Yanagihashi  (ed.) The concept of territory in Islamic law and thought. Kegan Paul InternationalLondon (2000) .
    [Google Scholar]
http://instance.metastore.ingenta.com/content/journals/10.5339/cis.2012.2
Loading
  • Article Type: Review Article
This is a required field
Please enter a valid email address
Approval was a Success
Invalid data
An Error Occurred
Approval was partially successful, following selected items could not be processed due to error