Khomeini’s arguments were foundational to the Islamic Republic. The significance of his jurisprudential contributions and innovations cannot be overstated. For the first time, he theorized about direct rule by a faqih. He revolutionized the position of velayat-e faqih by taking it out of the social and cultural realms only and planting it firmly in the domain of politics. First, he made the velayat-e faqih a political supervisor, then a ruler, and finally an absolute ruler. Khomeini gave the absolute ruler the authority to issue injunctions that superseded the injunctions of religion if necessary and empowered him to decide on what was expedient and in the interest of the greater good. These ideas continue to remain foundational to the Islamic Republic. Today, Khomeini the ruler has been all but forgotten. His portraits continue to adorn government buildings, his mausoleum is a frequent stop for visiting dignitaries, and his legacy is duly praised on official occasions and in state ceremonies. But the state has long moved on from what one scholar aptly called “Khomeinism.” From the 1990s on, it has been “Khameneism” that has ruled Iran politically and jurisprudentially, with its own conceptions of velayat-e faqih.

Indirect rule was integral to the colonial governance of religion. The state’s intimacy with Muslim elites gave rise to accusations of ‘Muslim sub-imperialism” by Protestant missionaries and other critics who argued that rather than hinging on the separation of the state from all religions, colonial governance entailed the “unblushing bolstering up of Islam.” This chapter argues that indirect rule did not amount to an elevation or even preservation of the caliphal governance ideals. Instead, that mode of governance entailed the transformation of those institutions. Indirect rule was, therefore, not only governance through ‘Islamic institutions,’ but more importantly, it was the governance of those institutions. That governance process culminated in the making of a distinct British colonial Islamic law. That colonial law emerged from the alteration of the precolonial constitutional balance of powers between jurists’ expositions of the Shari’a (fiqh), on the one hand, and political authorities’ jurisdiction over a law (“siyasa”), on the other. This chapter traces that transformation as central to the career of imperial secular governmentality in the colony.

This chapter chronicles the late colonial state’s elimination of Islamic law from public law through a Penal Code rooted in imperial law. The transformation of Islamic law since the inception of colonial rule belied the early colonial state’s claim to retaining Islamic criminal law. Nevertheless, the formal retention of the Shari’a in public law through Islamic criminal law had been a distinct feature of Northern Nigeria, underlining the formal status of Muslim elites and Islamic law. In response to the concerted criticism of missionaries, and senior colonial officials, the 1958 reforms abrogated the ceremonial status of Islamic law. Even as the 1958 Penal Code removed all illusions of the retention of Islamic law, administrators and Muslim elites legitimated the reform exercise by invoking Islamic legal authority, particularly the practice of Muslim societies. That discourse capaciously expanded the state’s power to regulate the content of Islamic law by re-casting the state’s Sharia-constrained siyasa jurisdiction as an expansive siyasa whose constitutional boundaries are drawn by the modern state. By so doing, the 1958 reforms sealed the state’s prerogative to govern religion.

This chapter distils a massive reservoir of discourses of heresy against Abu Hanifa to document the capaciousness of the proto-Sunni traditionalist effort to marginalise him and his followers. It identifies the multifarious nature of criticisms against him: proto-Sunni traditionalists assailing him on account of his jurisprudence, expertise in hadith, theology, and piety. This chapter closes with a discussion of the social regulation of heresy and orthodoxy in the eighth to tenth centuries.

Chapter 5 examines the traditional Islamic rules on jurisdiction. Modern rules on the jurisdiction of domestic courts exist in the context of the system of States, whereas the historic Islamic rules on jurisdiction and the assumptions upon which they were based relate to a system which was premised upon an imperial ideal that approached core concepts of modern Private International Law from different vantage points. The manner and extent to which pre-modern substantive rules, coupled with an imperial imagination, have permeated into the modern domestic law of Muslim Family Law States differs between such states, but nonetheless reveals a shared problem that we suggest animates the ongoing debates around the 1980 Hague Abduction Convention. Policies of ‘Islamisation’ pursued in certain Muslim Family Law States have at various times sought to reintroduce selected interpretations of Islam into the areas of domestic law pertinent to the study. Thus, the process is not necessarily a linear one over time where the historic rules have become marginalised, but rather one where there is an ebb and flow over time – the extent of which differs between Muslim Family Law States.

Chapter 4 examines the historic Islamic Law rules and assumptions which underpin issues relating to the custody of children. These historic rules have over time evolved into the modern Family Law of many, if not all, Muslim Family Law States on matters pertaining to child custody. The assumptions about, amongst others, what is in the ‘best interests’ of the child, the role of the mother and the obligations and duties of fathers are unpacked through a close reading and analysis of these rules, from both the pre-modern legal tradition and through two extended case studies (Qatar and Pakistan). Only once the assumptions underlying these rules on jurisdiction and custody, now adopted in Muslim Family Law States, are duly understood can we appreciate the obstacles that need to be tackled on parental child abduction matters. Examining how courts in Pakistan and Qatar approach the issue at hand, we identify how the historical rules have manifested themselves in practice in modern nation states.

Chapter 6 examines the Muslim Family Laws of the United Arab Emirates, Tunisia, and Malaysia in light of their jurisprudence on jurisdiction. The selection of these states represents a geographically, culturally, and legally diverse sample, across which Islamic Law remains legally relevant. The chapter examines how differing approaches to jurisdiction or child custody have been adopted and what the implications of these are or may be in the context of seeking to address international parental child abduction. The selected case studies highlight different approaches that lend themselves to finding solutions to addressing international parental child abductions. One matter that traverses all three case studies concerns the capacity of domestic judges, with subject matter jurisdiction on family law, to think jurisdictionally. As the case studies show, a key concern for policy-makers in Muslim Family Law States has been to consider a whole-of-law approach to jurisprudence. For others, the challenge lies in recognising the Muslim Family Law States as disaggregated institutionally, and to strategise approaches that are institution-specific.

In this chapter we describe the methods judges use to fill what is often called “the silences of the law,” that is, gaps in legislation, in the domain of family law in three countries: Morocco, Egypt, and Indonesia. More specifically, we explore the role and place of uncodified fiqh in contemporary legislation and adjudication in the field of personal status law. We proceed in four steps. First, we address the institutional and legal transformations affecting law, especially family law, in Morocco, Egypt, and Indonesia, focusing on what may be termed a legal revolution that made it possible to speak of law in terms of codes and to classify fiqh as a subsidiary source when legislation is silent. Second, we turn to the specific domain of family law, briefly discussing statute law, case law, and legal practice in each of the three countries. Third, on the basis of marriage authentication cases (ithbât al-zawâj, ithbât al-nikâh), we examine how, practically speaking, judges seek a solution in the body of fiqh. Finally, we develop an argument about the nature of judicial work in the management of “references to Islam” within the framework of positive, codified, and standardized law.

This final chapter outlines the contours of a Christian political theology of law as an indirect and provisional witness to the divine rule, before considering how this approach might engage with Sunni political theology. The chapter develops a theological account of public law as a site of contestation where provisional and indirect witness to God’s rule is at stake. The law is a witness because it is never able to be or to usher in the rule of God; it is indirect because public law should be minimally concerned with the truth about God’s identity and nature; it is provisional since the law is always in need of critique and reevaluation and can never be finally settled. Following the comparative hermeneutic that has guided this book, the chapter then shows how such a theo-legal vision might engage with certain aspects of classical, modern, and contemporary Sunni Islamic thought and prove a productive framework for further debate and dialogue on three key issues in modern Islamic thought: (1) the nature of divine sovereignty and public law, (2) the distinctions between sharī’a and fiqh, and (3) the relationship between maqaṣid (the higher aims of the law), maṣlaḥa, and fiqh.

There are two dominant approaches to Christian engagement with Islamic ethics, both of which hinder understanding of sharī‘a, fiqh, and their place in Islamic political discourse. One claims Islam is theocratic and necessarily in competition with Christian views of the distinction between the spiritual and earthly. This perspective depicts Islam and Christianity as locked in a clash of religions that is rooted in the core scriptural and theological identities of both communities. The second approach understands Islam to be trapped by its past, but nonetheless able to evolve, as Christianity did in the West, through adopting secularism. Islam is at its core a religion of peace, but this truth is best realized when Islam follows the lead of secular liberalism by privatizing religion. Neither approach amounts to an honest engagement with Muslims’ own differing and diverse accounts of the importance of sharī‘a and the moral world that it imagines and ritually enacts. By relegating sharī‘a to only absolutist law, Christian theological engagement with Islam forgoes opportunities for genuine dialogue, mutual learning, and constructive disagreement in political theology.

In the late 1620s, Prince Khurram was serving his punishment posting as governor of Deccan, while his sons were held hostage at the imperial court by his own father, Emperor Jahangir. Prince Khurram, who would eventually assume the imperial Mughal throne as Shah Jahan in 1628, was being punished for armed rebellion, which had also seen him attempting to build a military and political base in the sūba (province) of Malwa, until he was chased across the country by the imperial army and eventually defeated. While embroiled in imperial high politics, Prince Khurram found the time to issue a nishān (a princely order) confirming the appointment of a man called Mohan Das to the post of qānūngō (local official maintaining tax records) of the pargana (district) Dhar.

This chapter deals with documents recording a variety of inter-personal dealings that reveal that transactional ambit of the protagonists, including sale and purchase, loans, gifts, and payment of blood-money. Structured as recognizably pan-Islamic documentary forms and sealed by the Islamic judge (qazi), these documents offer an opportunity for learning further details about the social life of the protagonists, especially the women among them, and their relations with their social equals or subordinates. This leads to a discussion about the percolation of Islamic legal forms and procedures in this pre-dominantly non-Muslim context. The documents in the collection are connected to models provided by Persian-language formularies known as munshats, showing how standardization amd popularization of legal forms may have been achieved through such non-religious manuals that formed training materials for Indo-Persian scribes, or munshis.

This chapter delves into specific moments of dispute among the protagonists and others. Such episodes are used to map the range of adjudicative authorities – Islamic judges (qazis), jagirdars, the imperial court, and their own peers – that was available for significant villagers in Mughal Malwa. This is used to discuss the concept of jurisdictional intertwining as an alternative to inter-jurisdictional conflict and mobility. The focus of the chapter is on an explosive contest over inheritance in the late seventeenth century, which pulled in all the institutions of state that have been discussed thus far, and forced members of the family to define the limits of their kinship and their circle of entitlements. After narrating how a Muslim man tried to argue that he was part of this Hindu family and entitled to share in its rights, the archive is examined afresh – speculating how this episode may have structured the production and preservation of a specific body of documents, aimed at establishing certain rights, and erasing those of others.

This chapter introduces the political geography of the region called Malwa in central India: a sultanate from the thirteenth century, a Mughal province from the sixteenth, a Maratha state from the eighteenth, and a British-controlled princely state from the nineteenth. It traces the area of operations of the book's protagonists, relating that area to key commercial and military routes that traversed the region, and the petty Rajput domains that dotted and shaped the territory. The chapter serves to evoke the context of entrenched knots of military-political pwer together with the shifting of empires, within which the family of landlords staked their claims.