2. Sovereignty and Universalism After Westphalia

As Pierson points out, “states do not exist in isolation. They are by their very nature part of a system of competing states. Frontiers might abut unclaimed territory, but borders are necessarily the dividing line between one state and another” (Christopher Pierson [1996], The Modern State, Routledge, London-New York 2005, p. 13). On this, with particular reference to the Nation-State in its relationship with law, see also Peter Fitzpatrick [1992], The Mythology of Modern Law, Routledge, London-New York 2002, pp. 111 ff.

Harding quite effectively defines the State as “an abstraction, a piece of metaphysics” which “came to dominate political consciousness as a thing not only believed to have real existence but loved for its promise of social order and hated for its threat of coercion” (Alan Harding, Medieval Law and the Foundations of the State, Oxford University Press, Oxford 2001, p. v). As Böckenförde puts it, the modern State, “as well as our contemporary democratic Rechtsstaat and social state, is not a natural institution, but one that is deliberately created, namely created for conscious purposes. It is conceived by human beings and for human beings, for their coexistence in peace, security, and freedom. The nature of the state is determined by and its structure is formed on the basis of the purposes for which it was conceived and created” (Ernst-Wolfgang Böckenförde [1978], “The State as an Ethical State”, in Constitutional and Political Theory. Selected Writings, vol. I, trans. Thomas Dunlap, eds. Mirjam Künkler, Tine Stein, Oxford University Press, Oxford 2017, p. 88).

Falk defines the Westphalian system as “the classical framework of legal constraint postulated to regulate a highly decentralized world of sovereign states” yielding “a permissive, voluntaristic system of law stressing matters of the allocation of competence among sovereign states” (Falk, The Interplay of Westphalia and Charter Conceptions, cit., p. 32). With regard to this, cf. Stéphane Beaulac, The power of language in the making of international law. The word sovereignty in Bodin and Vattel and the myth of Westphalia, Martinus Nijhoff Publishers, Leiden-Boston 2004, pp. 71–101. For an analysis of the religious foreign policy after Westphalia, deeply linked to the new political system, see Andrew C. Thompson, “After Westphalia: Remodeling a Religious Foreign Policy”, in War and religion after Westphalia, 1648–1713, ed. David Onnekink, Ashgate Publishing, Farnham-Burlington 2009, pp. 47–68.

A fundamental text to understand the complexity of the medieval legal order is Paolo Grossi [1995], L’ordine giuridico medievale, Laterza, Rome-Bari 2004. By the same author, see Grossi [2007], A History of European Law, trans. Laurence Hooper, Wiley-Blackwell, Chichester 2010, pp. 1–38.

For a complete analysis of the transition from the medieval political system to territorial statehood, with particular attention to the transition from a hierarchical and vertical to an anarchical and horizontal architecture, cf. Jeremy Larkins, From Hierarchy to Anarchy. Territory and Politics Before Westphalia, Palgrave Macmillan, New York-Basingstoke 2010.

According to Casanova, distinguishing however between early modern absolutist States and contemporary pluralistic States, “the so-called ‘religious wars’ could also more appropriately be called the wars of early modern European state formation” (José Casanova, “Religion Challenging the Myth of Secular Democracy”, in Religion in the 21st Century. Challenges and Transformations, eds. Lisbet Christoffersen, Hans Raun Iversen, Hanne Petersen, Margit Warburg, Ashgate, Farnham-Burlington 2010, p. 25). This position concerning the State as a cultural and juridical product emerged from the European religious wars is shared, among others, by Böckenförde, The State as an Ethical State, cit., p. 89.

For a philosophical excursus on the etymology of “State”, see Michael Herzfeld, Cultural Intimacy. Social Poetics in the Nation-State, Routledge, New York-London 2005, p. 73.

Crone, God‘s rule, cit., p. 21.

For an example, see An-Na‘im, Islam and the Secular State, cit., especially pp. 45–83. An-Naʿim, in his well-documented work, takes the distances from an abstract conception of Islam, considering on the contrary the concrete practice of faith by Muslims; by doing so, however, he tends to assume the State as a sort of natural form of government and rule. The author, in any case, correctly emphasizes territoriality as a characteristic of post-Westphalian systems (ibid., pp. 30 ff.). For a different point of view, although similar in taking modern statehood as a sort of universal philosophical construct, see Sherman A. Jackson, Islamic Law and the State. The Constitutional Jurisprudence of Shihāb al-Dīn al-Qarāfī, Brill, Leiden-New York-Köln 1996, especially pp. 185–224. On the contrary, the aforementioned volume of Patricia Crone (God’s rule, cit.) appears to be properly contextualized from a juridical and philosophical perspective in that it highlights the divergences in conceiving determined juridical constructs between Islam and the Western world.

“Maiestie or Soveraigntieis the most high, absolute, and perpetuall power over the citisens and subiects in a Commonweale: which the Latinscal Maiestatem, the Greeks akraexousia, kurion arche, and kurion politeuma; the Italians Segnoria, and the Hebrewes tomechshévet, that is to say, the greatest power to command.” Jean Bodin [1576], The Six Bookes of a Commonweal, I, trans. Richard Knolles, Harvard University Press, Cambridge 1962, p. 84.

According to Schmitt, as well known, sovereign is he who decide on the state of exception: therefore, it is only in the state of exception that the core of the discussion about sovereignty is properly understood. From this point of view, sovereignty could be comprehended only through the idea of sovereign: “Although he stands outside the normally valid legal system, he nevertheless belongs to it, for it is he who must decide whether the constitution needs to be suspended in its entirety. All tendencies of modem constitutional development point toward eliminating the sovereign in this sense.” See Carl Schmitt [1922], Political Theology. Four Chapters on the Concept of Sovereignty, transl. George Schwab, Massachusetts Institute of Technology, Cambridge 1985, pp. 5–15.

It is important to recall the Hobbesian definition of the State through the image of the Leviathan: “one person, of whose acts a great multitude, by mutual covenants one with another, have made themselves every one the author, to the end he may use the strength and means of them all as he shall think expedient for their peace and common defence. And he that carryeth this person is called sovereign, and said to have sovereign power; and every one besides, his subject.” Thomas Hobbes, Leviathan, or the Matter, Form, & Power of a Common-wealth Ecclesiasticall & Civill, for Andrew Crooke, at the Green Dragonin St. Pauls Church-yard, London 1651, ch. 17. For Schmitt’s commentary on the theory of Hobbes concerning the birth of the State, see Carl Schmitt, Der Leviathan in der Staatslehre des Thomas Hobbes. Sinn und Fehlschlag eines politischen Symbols, Hanseatische Verlagsanstalt, Hamburg 1938, ch. 3.

As Weber suggests, “one can define the modern state only in terms of the specific means peculiar to it, as to every political association, namely, the use of physical force” (Max Weber [1919], “Politics as vocation”, in From Max Weber. Essays in sociology, Routledge London 1970, p. 78). For a detailed analysis on the force of law, see Frederick Schauer, The Force of Law, Harvard University Press, Cambridge 2015. With regard to this, Poscher moves from the position of Schauer and suggests that the force to which the State’s monopoly refers is not a legitimate or legal force, but on the contrary a superior or ultimate force, because in order “to transform potentially violent social conflicts into legal ones, the law must be capable of overpowering any other force” (Cf. Ralf Poscher, “The ultimate force of the law: on the essence and precariousness of the monopoly on legitimate force”, in Ratio Juris, vol. XXVII, n. 3, 2016, pp. 311–322).

Cf. Pierson, The Modern State, cit., pp. 12–14; Larkins, From Hierarchy to Anarchy, cit., pp. 17–52.

For a commentary on the representations of the Leviathan, see Schmitt, Der Leviathan, cit., ch. 1.

I will come back to this point in the next chapter, discussing the idea of persona ficta.

This position is common to the major authors sharing the contractualist position, as Grotius, Locke, Rousseau, Pufendorf, and of course Hobbes. For an analysis of the different positions among contractualists, see Wolfgang Kersting, Vertragstheorien. Kontraktualistische Theorien in der Politikwissenschaft, Kohlhammer, Stuttgart 2016. With reference to Hobbes’ position, it is to be observed that the social contract “is the consequence of an infinity of pacts between individuals. The sovereign simply reaps the benefit without being himself a party, which gives him unequalled power: he is not bound by contractual obligations” (François Héran, “A few thoughts on the concept of social contract and equity between generations”, preface to Ages, Generations and the Social Contract. The Demographic Challenges Facing the Welfare State, eds. Jacques Véron, Sophie Pennec, Jacques Légaré, Springer, Dordrecth 2007, p. xiii).

Böckenförde exhaustively highlights the purposes for which the State has been created, defining the State as an “entity of peace”, a “decision-making entity”, as well as an “entity of power”. In his words: “In political disputes and in the political power struggle within the state as well, no friend-enemy grouping occurs, one that includes the willingness to use physical violence; instead, all disagreements remain at a level of intensity that does not fracture the integration into the shared order of peace. This entity of peace as a structural characteristic of state order is not given by nature. As a look at European constitutional history shows, it had to be wrested from a multitude of contrary forces, not least from the religio-political clashes of the confessional civil wars” (Böckenförde, The State as an Ethical State, cit., p. 89).

For a dedicated monograph on legal monism, see Paul Gragl, Legal Monism. Law, Philosophy, and Politics, Oxford University Press, Oxford 2018. For a reflection on legal monism in the broader discourse of legal pluralism, see Brian Z. Tamanaha, Legal Pluralism Explained. History, Theory, Consequences, Oxford University Press, Oxford 2021, pp. 52–54.

The Arabic term dustūr is commonly translated as “constitution”, and the definition of the covenant as “constitution of Medina” is somehow recurrent. As it will be explained in Chap. 5 of this book, I do not adopt this terminology to differentiate it from modern constitutionalism, for which the term dustūr is nowadays widely used. I prefer therefore to speak about a covenant of Medina (mīthāq al-Madīnah).

Cf. Lambton, State and Government in Medieval Islam, cit., pp. 13 ff; Abdullah Saeed, “The Nature and Purpose of the Community (Ummah) in the Qurʼān”, in The Community of Believers. Christian and Muslim Perspectives, eds. Lucinda Mosher, David Marshall, Georgetown University Press, Washington 2015, pp. 15–28. In Black’s words, Muḥammad “adapted ideas current in the Middle East. He gave a rationale for seeing the Arabs as the chosen people, and giving them a mission to convert or conquer the world. He enabled them to achieve the transition simultaneously from polytheism to monotheism and from tribalism to nationhood to internationalism. […] In revolt against the étatiste Roman and Persian empires, Islam developed a stateless praxis” (Anthony Black [2001], The History of Islamic Political Thought. From the Prophet to the Present, Edinburgh University Press, Edinburgh 2011, p. 10). It is important to observe, with Mathewson Denny, that “The umma is not a governmental idea in the administrative sense; rather it is the totality of Muslims in the worlds upholding the Sharīʿa however they can” (Frederick Mathewson Denny [1994], An Introduction to Islam, Routledge, London-New York 2016, p. 201). However, with regard to this last position it is necessary to clarify that the ummah cannot be considered as the expression of a government as intended in the Western world, especially in the framework of modern statehood, but can be undoubtedly considered as a political community. From this point of view, the ummah is not—and could never be—a State but a comprehensive community sharing at least the structural elements of a common idea of justice, power, and law, regardless of the differences between the various currents of Sunnīsm.

About the covenant between Allāh and the souls, see Tosun Bayrak Al Jerrahi, The Name and the Named. The Divine Attributes of God, Fons Vitae, Louisville 2000, p. 203. For a more radical view on the same subject, but still interesting on the issue of Islamic pre-creation, see Abu Ameenah Bilal Philips, The Fundamentals of Tawheed (Islamic Monotheism), International Islamic Publishing House, Riyadh 2005, pp. 61–67.

To be noticed that in Islam “conversion is not the acceptance of a new religion, but a return to the original religion: the Qurʼān suggests that everyone is born a Muslim, or rather that the natural state or fitrah of the human being is a state of submission (islam) to God. Someone who converts to Islam in a sense remembers her original religion and returns to it. Some English- speaking Muslims prefer the term ‘reversion’ to conversion; others, particularly some African Americans, use the term “transition” to describe the process of coming to identify religiously as Muslims” (Oliver Leaman, Kecia Ali, Islam. The Key Concepts, Routledge, London-New York 2008, p. 22).

With regard to this, it is interesting to examine the concept of fiṭrah, that is to say that original and innate mark which in the Islamic vision can be seen as a reminiscence of humanity’s pre-creational covenant with Allāh. As al-Faruqi argues, fiṭrah can be seen as “religio naturalis” or “the first presuppositions of human religiosity”. See Ismail Raji al-Faruqi, Islam and Other Faiths, ed. Ataullah Siddiqui, The Islamic Foundation and the International Institute for Islamic Thought, Herndon 1998, pp. 138 ff.

From this point of view, sharīʿa could be considered both as a religious and as a secular normative ideal. The distinction between spiritual and temporal power in the West and in Islam will be discussed in Chap. 4.

The legal practice with regard to this point may vary according to the maḏhab. It is debated if sharīʿa provisions may be effectively implemented also in the territories of dār al-ḥarb, bearing consequences once the believer has returned to dār al-Islām. From the resolution of this issue descends, for instance, the possibility of punishing someone for an illicit act previously committed in dār al-ḥarb. Another possibility is that an illicit act committed outside of the Muslim lands, where sharīʿa is not enforceable, bears consequences only in front of the divinity. For an example of this divergence of opinions, see Khaled Abou El Fadl, “Striking the Balance: Islamic Legal Discourses on Muslim Minorities”, in Muslims on the Americanization Path?, eds. Yvonne Yazbeck Haddad, John L. Esposito, Oxford University Press, Oxford 2000, pp. 56–57. Some of the concepts mentioned in this note will be furtherly developed and analyzed in the course of this book.

It is possible to quote the famous Islamic scholar ibn ʿĀshūr: “It is a necessary part of Islamic knowledge that the Sharīʿah came as a universal law requiring the adherence of all human beings. Since it is the last revealed law, it is inevitably applicable to the whole of humankind everywhere on earth until the end of the world” (Muhammad al-Ṭāhir ibn ʿĀshūr [1946], Treatise on Maqasid al-Shariah, trans. Mohamed el-Tahir el-Mesawi, The International Institute of Islamic Thought, London-Washington 2013, p. 134). Moreover, as Zifcak observes, “where law is regarded as the legal expression of divine will, no such territorial boundaries can be recognized. The law has a universal, theological foundation which is incapable of containment by geography. On an Islamic view, localities are important, not because they are the source of law but rather because they are its object” (Spencer Zifcak, “Western and Islamic Conceptions of the Rule of Law”, in Islam Beyond Conflict. Indonesian Islam and Western Political Theory, eds. Azyumardi Azra, Wayne Hudson, Ashgate Publishing, Aldershot-Burlington 2008, p. 36). Cf. Jasser Auda, “Realizing the Maqasid in the Sharīʿah”, in The Objectives of Islamic Law. The Promises and Challenges of the Maqasid al-Sharīʿah, eds. Idris Nassery, Rumee Ahmed, Muna Tatari, Rowman & Littlefield, Lanham-London 2018, pp. 49–50. Moreover, as Vikør concisely explains, “Islamic law is not, in its nature, linked to any particular territory or state, it is linked to man’s nature as a believer, someone who must follow God’s commandments” (Knut S. Vikør, Between God and the Sultan. A History of Islamic Law, Oxford University Press, Oxford 2005, p. 280).

See Siegman, The state and the individual in Sunni Islam, cit., p. 14. For a comprehensive analysis, see Johannes Bork, Zum Konstrukt von dār al-islām und dār al-ḥarb. Die zeitgenössische Rezeption eines Konzepts des klassischen islamischen Rechts, De Gruyter, Berlin-Boston 2020. For a collection of texts dealing with dār al-Islām and dār al-ḥarb, see Giovanna Calasso, Giuliano Lancioni (eds.), Dār al-islām / dār al-ḥarb. Territories, People, Identities, Brill, Leiden-Boston 2017. A third distinction is represented by dār al-ṣulḥ (the house of treaty), designating the territories and the population with which the ummah has concluded a peace treaty.

Here I speak of prescriptive nature because of the legal pretense of the State of being an ordering power, which is entitled of deciding on how things should be ordained (Sollen) in its sovereign space of action. This characteristic is even more evident at the beginning of the Westphalian international system, where the religious separation between Catholics and Protestants is to be identified with the originating necessity at the basis of the State narrative.

In present times, the dichotomy dār al-ḥarb-dār al-Islām is to be considered factually overcome by the progressive imposition of the State system. However, it is still important to understand it as a deep cultural heritage and a factual confirmation of the universalistic approach of the Islamic legal vision. In order to examine the concept from a contemporary point of view, see Sarah Albrecht, Dār al-Islām Revisited. Territoriality in Contemporary Islamic Legal Discourse on Muslims in the West, Brill, Leiden-Boston 2008.

As al-Shāfiʿī stated, “There is no difference between dār al-ḥarb and dār al-Islām as to the laws that God has decreed to his people”. Al-Shāfiʿī, al-Umm, vol. VII, pp. 354, cit. in Albrecht, Dār al-Islām Revisited, cit., p. 77. It is to be observed, however, that the Ḥanafī legal school considers that certain provisions may not be applied outside dār al-Islām (ibid., pp. 75–84).

Bouzenita correctly points out that it is actually impossible to define sharīʿa as a personal or a territorial norm, because these very definitions find no counterparts in the Islamic legal discourse. The Islamic territory, from this point of view, is “not represented by determined frontiers and a clearly shaped territory. The modern territorial nation state which is considered as a legal subject of international law is defined by a theory of three elements, i.e. consists of the state’s territory, its people and authority. But this definition cannot be applied to the self-definition of the Islamic state, as it is inherent in the classical legal literature. The frontiers of the Islamic state are, due to the division of the world between the two dār which has to be overcome, not consistent but subject to change” (Anke Iman Bouzenita, “The Siyar – An Islamic Law of Nations?”, in Asian Journal of Social Science, vol. XXXV, n. 1, March 2007, p. 43).

When proposing a social contract-like scheme for the Muslim community, Mustafa Cerić correctly addresses the actual bond between the ummah and Allāh as a covenant, “as well as a commitment of man toward God imposed by God and accepted by man as it is written in the Qurʼān” (Mustafa Cerić, Toward a Muslim Social Contract in Europe, The Association of Muslim Social Scientists (UK)-The City Circle, Richmond 2008, p. 6). In this work, I use the word covenant as well, in order to make a fundamental distinction with the Western idea of social contract, having regard to their respective dimensional natures (horizontal-vertical). As it will be pointed out in the next chapter, a sort of contractual scheme was indeed used to discipline the bond of personal loyalty between a subject and a political ruler, but once again on a merely personal basis.

Both the State and the ummah are political subjects, although the political dimension of both greatly varies in its theorization depending on their constituting elements. Therefore, the modern State founds its political nature on precise elements such as territoriality and sovereignty, while the Islamic ummah on a completely different understanding of social cohesion, as derived from a universal spiritual vocation that nevertheless creates a political unity through the common acknowledgment of a normative ideal.

For instance, ex mult., see Ina Merdjanova, Rediscovering the Umma. Muslims in the Balkans between Nationalism and Transnationalism, Oxford University Press, Oxford 2013, pp. 54–59; Jorgen S. Nielsen, “Transnational Islam and the Integration of Islam in Europe”, in Muslim Networks and Transnational Communities in and Across Europe, eds. Stefano Allievi, Jorgen S. Nielsen, Brill, Leiden 2003, pp. 28–52.