This post is part of the Roundtable on the History of Islamic International Law. It is a summary of Adnan A. Zulfiqar‘s contribution titled “Territory and Jurisdiction” to volume eight of the Cambridge History of International Law series, co-edited by Intisar Rabb and Umut Özsu.
This essay explores features of territory and jurisdiction in medieval Islamic law—both a straightforward consideration, mirroring other legal regimes, and a uniquely complicated proposition. On the one hand, in the medieval period, Islamic law operated as the legal system of empire, constrained by physical borders and the administration of law within those boundaries. On the other hand, Islamic law served as the guiding framework of a moral community whose religious identity, premised on “belief,” transcended borders, and functioned as the primary, legally cognizable status. These dual, sometimes dueling, elements appear throughout the discourse of medieval jurists as they navigate the “tension between Islam as a universal moral imperative and Islam as a territorially based political identity.” As a result, jurists crafted legal rules that moved between the practical considerations of territory and the transcendent commitments of faith, endeavoring to find a workable balance between the two. Although territory and jurisdiction figure into a number of substantive areas in Islamic law, this essay focuses on three contexts—warfare, migration and residing outside the Muslim polity.
When discussing warfare, medieval jurists divide the world into blocs based on the potential for hostilities between Muslim sovereigns and neighboring states. Juristic discourse on the defense and expansion of the frontiers (thughūr), the outer edges of the empire, reveal many aspects of the relationship between Islamic law and territory. From an early period, at least the third/ninth century, jurists in central Muslim lands conceptualized engaging in warfare (jihād) as a collective duty (farḍ kifāya). This meant that performance of the duty was only required of a sufficient number of people within a locality unless there were exigent circumstances that made performance individually obligated (farḍ ʿayn). Qur’anic verses pertaining to jihād provide the initial impetus for discussing the role of territory and the responsibilities arising from proximity to the border. Among the earliest jurists to discuss this dynamic was the Iraqi Ḥanafī scholar Abū Bakr al-Jaṣṣaṣ (d. 370/981) who contemplated different types of duties to fight based on residence: an enhanced duty existed for people in frontier lands bordering enemy territory as compared to those living in the interior.
From the fifth/eleventh to the seventh/thirteenth centuries, jurists in the Islamic heartland expanded the role of territory as they developed the doctrine around the jihād duty. The animating question remained the nature of the duty to fight in situations where a particular locality, usually on the frontier, comes under enemy attack. Hostile incursions into Muslim territory transformed jihād from a collective duty to an individual obligation for the people under attack. Typically, caliphal authority was necessary to sanction jihād, but if Muslim territory faced an imminent, existential threat of invasion, then jurists required frontier populations to respond without delay. If they lacked the ability to defend the territory then the nearest population was obligated to buttress the frontier forces; if they also proved incapable of repelling the enemy, then the duty moved further out to the population in the next closest territory.
Jurists also considered whether the duty to defend territory extended to offensive actions into enemy territory. From as early as the second/eighth century, jurists began asking what duty remains after a territory has been adequately defended but a ruler wishes to aggressively pursue the enemy into foreign territory. Their discourse highlights a tension between jihād as a pietistic duty and jihād as a mechanism for achieving a ruler’s stately ambitions. Consequently, questions arose over how far the state can extend its authority over the jihād-duty. Many medieval jurists, across Muslim territories, privilege the ruler’s authority to utilize the jihād duty. For instance, Jaṣṣaṣ allows the ruler to utilize the jihād duty for additional strategic objectives beyond territorial defense; if he desires offensively engaging the enemy in its territory, then Jaṣṣaṣ obligates it on individuals. A century later, other jurists in disparate locations, such as Mawārdī (d. 450/1058), an Iraqi Shāfi‘ī jurist, and Ibn ʿAbd al-Barr (d. 463/1064), a Spanish Mālikī jurist, share this sentiment, noting that, in addition to defending Muslim lands, the collective duty to fight extends to military campaigns within non-Muslim lands. Unlike the defensive context though, pursuit of an aggressive jihād against a hostile enemy is only permissible for a commander on the frontier if he receives permission from the ruler.
The protection and expansion of territory plays a pivotal role in legal guidelines that jurists developed for the jihād context. Territorial considerations determine when and for whom jurists trigger the duty to fight. These considerations not only establish when jurists believe the duty commences, but also when it ceases. In the process, territory comes to define the responsibilities and powers jurists assign to the sovereign ruling the Muslim polity. In fact, jurists consider the ability to defend territory an essential quality every ruler must possess and regularly affirm through military engagements along the frontiers. Medieval jurists divide the world into territory where Islam has dominion and where it does not. It is this same division that factors into another key idea in Islamic law that invokes territory and jurisdiction: migration (hijra).
In addition to warfare, medieval jurists also formulate an understanding of territory by considering conditions— threats to life, possessions, or faith—that obligate migrating away from land. The link between territory and Islam dates to its earliest period when migration (hijra) away from territory emerged as an initial strategy to preserve the nascent faith in the face of hostile actors. The major migration of this period took place in 1H/622CE, when Muḥammad and his earliest followers emigrated 280 miles north from the city of Mecca to Yathrib (later renamed Medina). While medieval historical chronicles recognize the event as stemming from the nascent community’s need to find territory secure from religious persecution, an additional outcome was the establishment of Islam’s first body politic. In Mecca a spiritual community had grown on the margins of society; in Yathrib/Medina the same community now gained physical territory that it had to govern. The ensuing period saw an exponential growth in laws to govern affairs inside these borders; law that was at times inspired by divine revelation and other times by pragmatic considerations.
The presence of a non-Muslim sovereign was a common feature of territories from which medieval jurists required migration. Beginning in the fourth/tenth century, medieval jurists, began by asking whether Muslims in a particular non-Muslim territory had jurisdiction over their own affairs. For some jurists, it was simply not possible for Islam to meaningfully exist separate from a territory where Muslims were sovereign. Hence, these jurists required all Muslims to emigrate should they find themselves outside of a polity controlled by Muslims. For other jurists, the question was whether a particular territory adequately allowed for the performance of religious obligations or, conversely, whether the territory threatened to cause the individual to lose their faith. If the territory allowed the practice of Islam, then there was no requirement for a Muslim to leave and some jurists even argued that it might be an obligation to stay and propagate the faith. As for territory where a Muslim was expected to emigrate, for most jurists its prime feature was that Islamic law prevailed there.
Yet not everyone could migrate, even if they were required to. Thus, the juristic discourse also contemplated how Islamic law applied to believers that remained in territory where Islam was not sovereign. They considered whether these believers still received the protections of a Muslim polity simply due to their shared faith and despite no longer being resident within its borders. And in the same vein, whether the Muslim polity could hold non-resident Muslims accountable for violations of Islamic law done elsewhere. In asking these questions jurists explored the extent to which Islamic law is transcendent and contemplates a Muslim sovereign possessing universal jurisdiction over all believers regardless of where they were.
As with individuals, belief as status under Islamic law forms a key basis for how jurists classify different types of territory. Categorization based on belief was a way for many Muslim jurists to have a “useful instrument in defining rules” governing the relationship between Muslims and non-Muslims in territory where Islam was not sovereign. Generally speaking, jurists divide the world into two broad territories: land where Islam, and thus belief, is sovereign (dār al-Islām) and land where Islam is not sovereign (dār al-kufr or dār al-ḥarb). Discussion on these two territorial categories is widespread in the legal literature even though jurists never precisely define either term nor devote specific sections in their treatises to discussing them.
Early jurists tended to prefer Muslims reside among other Muslims to better access religious knowledge. In subsequent centuries, three distinct views developed on the relationship between Islam and its sovereign territory. One position arose among sixth/twelfth century Mālikī jurists in Spain and North Africa in response to rising threats faced by Muslim populations and sieges of Muslim territory. Their position conflated the religion of Islam and territory where Islam was dominant. As a result, it became unethical, if not sinful, for Muslims to reside in non-Muslim lands. A different position was generally taken by seventh/thirteenth century Ḥanafī and Shāfiʿī jurists residing closer to the central Islamic territories who distinguished Islam from its territory. They permitted residence in non-Muslim territory, even encouraged it at times as something morally required. The third position fell in between the first two and was associated with Ḥanbalī and Shīʿī jurists in the sixth/twelfth century. It advocated a preference for residing in Muslim territory but allowed for it still to be ethical to prefer living among non-Muslims.
As a final point, to demonstrate the pervasiveness of territorial considerations in medieval Islamic law, it might be helpful to explore an area of law where one does not expect a role for it: duties owed to foundlings or abandoned children (laqīṭ or manbudh). These discussions typically explored several matters including aspects of the foundling’s status and characteristics necessary to be a legitimate guardian. In this regard, returning to the idea of belief status, jurists felt it necessary to establish a foundling’s likely religious community. Characteristics of the territory where the abandoned child is found help assign a particular faith to them. Two features of a territory that jurists might utilize in assigning an unaffiliated foundling to a religious community are the composition of the resident population and the ruling political power. The dominant religion among the population of a particular locality becomes the default religious community for any foundling discovered there whose faith is unknown.
Beyond simply considering the religious affiliation of the political authority or the dominant religious community, jurists also ask whether a territory is inhabited by “trustworthy” (qawm maʾmūnīn) people and ruled by a “just” (al-imām ʿādil) political authority. This analysis impacts jurists’ impression of whether the finder is worthy of guardianship. If both characteristics are associated with people in the territory then a finder from that area is permitted to take custody of the property, and by extension the foundling. In other situations, where a ruler may be unjust or residents untrustworthy, jurists express reservations. They are primarily concerned with whatever option is most likely to facilitate the “found property’s safekeeping,” which, in this case, is the child itself. The general attributes of a particular community are connected to the territory where they live and form its reputation. For the purposes of medieval Islamic law, that reputation is imputed upon everyone else and becomes a determinative factor in what is and is not permissible.
 Khaled Abou El Fadl, “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, no. 2 (1994): 164.
 Jaṣṣaṣ, Aḥkām al-Qurʾān, vol. 4, 318.
 Ibn Qudāma, al-Kāfī, v. 5, 497; Ghazālī, al-Wasīṭ, vol. 7, 12; Nawawī, Rawḍa al-Ṭālibīn, vol. 7, 416; Kāsānī, Badāʾiʿ al-ṣanāʾiʿ, vol. 7, 98.
 Ghazālī, al-Wasīṭ, vol. 7, 12.
 Jaṣṣaṣ, Aḥkām al-Qurʾān, vol. 4, 311.
 Māwardī, Aḥkām, 44; Ibn ʿAbd al-Barr, Istidhkār, vol. 14, 292.
 Giovanna Calasso, “Introduction: Concepts, Words, Historical Realities of a “Classical Dichotomy,” in Dār al-islām/dār al-ḥarb: Territories, People, Identities, eds. Giovanna Calasso and Giuliano Lacioni (Leiden: Brill, 2017), 2–3.
 Abou El Fadl, “Islamic law and Muslim Minorities,” 163–64.
 Muzanī, Mukhtaṣar, 185; Shīrāzī, Tanbīh, 90-91.
 Ibn Rushd, Bidāyat, vol. 2, 305.