A Theory of Religious Sovereignty: Private Law Disputes and State-Religion Relations in Bangladesh and Pakistan

Abstract

This dissertation examines how private law disputes in Bangladesh and Pakistan have served as sites for the conceptualization of state-religion relations. Previous scholarship has tended to locate, associate, and theorize state-religion relations within the purview of constitutional law. Constitutional law is viewed as the primary index where state-religion relations are registered. I make the case for expanding the areas where we try and find the generation, negotiation, and unfolding of state-religion relations. Private law disputes provide one such opportunity. By focusing on three areas of property—pre-emption, inheritance and succession, and waqfs (Islamic trusts)—I show how property disputes implicating Islamic law have shaped narratives around the relationship and interaction between the state and religion in two main ways. First, structurally, private law disputes show that states encounter religion in everyday property disputes and not just in high profile constitutional litigation. Thus, while constitutional law structures state-religion interactions from the top, property cases have allowed for the conceptualization of this interaction in a bottom up and granular fashion. In addition, private law disputes predate the rise of modern constitutionalism, thus by taking a historical approach we better appreciate that private law has been a significant site for debating the terms of state-religion relation on its own. Second, from a substantive point of view, when we examine state-religion relations through the prism of private law, we see how courts have articulated three conceptualizations of religious law vis-à-vis the state. In the first narrative, religious law is viewed as possessing a kind of parallel jurisdiction and sovereignty that is immune to state regulation. Second, religious law is conceptualized as suzerain in that the state recognizes a limited sphere where religious law can operate but is not impervious to state intervention. Third, religious law is viewed as subordinate to state supremacy and state laws.