Peace as a Legal Presumption in Islamic Law: Territoriality, Nationality, and the Promise of International Law

Abstract The Ḥanafī legal doctrine of territorial status disagreement ( ikhtilāf al-dārayn ) offered a normative framework for regulating the relationship between Muslim political jurisdiction ( dār al-Islām ) and non-signatory territories. This doctrine addressed the extent to which an individual’s inviolability ( ʿiṣma ) was contingent upon the political jurisdiction in which they resided. In early and late Ḥanafī legal texts, ikhtilāf al-dārayn led to the nullification of marriage contracts and the proscription of inheritance for subjects living permanently in two different political jurisdictions without treaty agreements. By the 1890s, Ottoman officials, aided by a sultanic firmān , disengaged from the legal commitments of the doctrine of ikhtilāf al-dārayn . I contend that the influx of foreign subjects into the empire, combined with the formalization of the term ajnabī (foreigner) as a distinct legal status with rights to permanent residency under the protection of the capitulatory regime, disrupted the established juristic categories of ‘non-Muslim temporary resident’ ( mustaʾman ) and ‘non-Muslim permanent protected subject’ ( dhimmī ). This shift paved the way for new legal interpretations. In 1915, the Ottoman Shaykh al-Islam, and in the 1920s, Islamic courts in Egypt, explicitly appealed to principles of public international law—particularly the presumption of permanent peace among treaty states—to redefine jurisdiction and legal obligation. Taking Egypt as a case study, I demonstrate how Islamic court judges and official muftī s drew upon international legal norms to adjudicate questions of nationality and legal protection. Their engagement marked a departure from earlier reliance on ikhtilāf al-dārayn , reflecting instead a juridical commitment to a treaty-based legal order founded on coexistence and mutual recognition.