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Parolin V9 1..190 Citizenship in the Arab World IMISCOE International Migration, Integration and Social Cohesion in Europe The IMISCOE Network of Excellence unites over 500 researchers from European institutes specialising in studies of international migration, integration and social cohesion. The Network is funded by the Sixth Framework Programme of the European Commission on Research, Citizens and Governance in a Knowledge-Based Society. Since its foundation in 2004, IMISCOE has developed an integrated, multidisciplinary and globally comparative research project led by scholars from all branches of the economic and social sciences, the humanities and law. The Network both furthers existing studies and pioneers new research in migration as a discipline. Priority is also given to promoting innovative lines of inquiry key to European policymaking and governance. The IMISCOE-Amsterdam University Press Series was created to make the Network’s findings and results available to researchers, policymakers and practitioners, the media and other interested stakeholders. High-quality manuscripts authored by IMISCOE members and cooperating partners are published in one of four distinct series. IMISCOE Research advances sound empirical and theoretical scholarship addressing themes within IMISCOE’s mandated fields of study. IMISCOE Reports disseminates Network papers and presentations of a time-sensitive nature in book form. IMISCOE Dissertations presents select PhD monographs written by IMISCOE doctoral candidates. IMISCOE Textbooks produces manuals, handbooks and other didactic tools for instructors and students of migration studies. IMISCOE Policy Briefs and more information on the Network can be found at www.imiscoe.org. Citizenship in the Arab World Kin, Religion and Nation-State Gianluca P. Parolin IMISCOE Research This work builds on five years of onsite research into citizenship in the Arab world. A grant awarded by the Italian National Research Council (CNR) made the publication of its results possible as Dimensioni del- l’appartenenza e cittadinanza nel mondo arabo by Gianluca P. Parolin, published in Italian by Jovene in 2007 (ISBN 88-243-1720-0). Cover photo: Andrea Locati Cover design: Studio Jan de Boer BNO, Amsterdam Layout: The DocWorkers, Almere ISBN 978 90 8964 045 1 e-ISBN 978 90 4850 629 3 NUR 741 / 763 © Gianluca P. Parolin / Amsterdam University Press, 2009 All rights reserved. Without limiting the rights under copyright re- served above, no part of this book may be reproduced, stored in or in- troduced into a retrieval system, or transmitted, in any form or by any means (electronic, mechanical, photocopying, recording or otherwise) without the written permission of both the copyright owner and the author of the book. Table of contents Preface by Rainer Baubo¨ck 9 Foreword by Gerard-Rene´ de Groot 13 Acknowledgements and Romanisation system 15 Introduction 17 Basic constituents of citizenship 17 Classical models and early East-West contacts 19 Different civilisational paths 21 Arabic terminology 23 Subject, membership and rights in the Arab world 25 1 Membership in the kin group 29 1.1 Representing the social prism 29 1.2 Inclusion by kinship, clientage or slavery 33 Kinship 33 Clientage 34 Slavery 35 1.3 Severance from the group 36 1.4 Customary law 36 1.5 Private justice and arbitration 37 1.6 The chieftain and the assembly 38 2 Membership in the religious community 41 2.1 The formation of the Islamic community 41 2.2 Forms of membership in the Islamic community 47 2.2.1 Muslims 47 2.2.2 Non-Muslims 49 2.3 Partition from the Islamic community 50 2.3.1 Muslim sects 50 2.3.2 Collective apostasy 52 2.3.3 Individual apostasy 55 6 CITIZENSHIP IN THE ARAB WORLD 2.4 Characters of the confessional system 58 2.4.1 Personality of Islamic law 58 2.4.2 Jurisdiction of the Islamic judge 59 2.4.3 Status of non-Muslims in the da¯r al-isla¯m 60 2.5 Islam and the kin group 61 2.5.1 Planning newly founded cities 62 2.5.2 Status of non-Arab neo-converts (mawla`s) 62 2.5.3 The principle of wedding adequacy (kafa¯’ah) 66 2.5.4 Restriction of the caliphate to Quraish kinsmen 67 2.6 Islam and Arabness 67 2.6.1 Koranic prescriptions and early Islam 68 2.6.2 The first Shucu¯bı¯yah 68 2.6.2 Other opposition movements to Arab dominance 69 3 Membership in the nation-state 71 3.1 The emergence of nation-states and nationality 71 3.1.1 Ottoman decline 71 3.1.1.1 Capitulations (imtiya¯za¯t) 71 3.1.1.2 Tanzı¯ma¯t and Ottoman nationality 73 3.1.1.3 Imperial provinces and indigenous nationality 74 3.1.2 Ottoman dismemberment 75 3.1.3 Peace treaties and nationality of detached territories 76 3.1.4 The French model 77 3.1.5 Independent states and nationality legislation 79 3.1.5.1 Egypt 79 3.1.5.2 Iraq 82 3.1.5.3 Palestine 83 3.1.5.4 Jordan 86 3.1.5.5 Lebanon 87 3.1.5.6 Syria 88 3.1.5.7 Saudi Arabia 88 3.1.5.8 Gulf states 89 3.1.5.9 Yemen 91 3.1.5.10 Sudan 91 3.1.5.11 Libya 91 3.1.5.12 Morocco 92 3.1.5.13 Tunisia 93 3.1.5.14 Algeria 94 3.2 Nationality (jinsı¯yah) in the Arab world 95 3.2.1 Acquisition of nationality 96 3.2.1.1 Attribution of nationality of origin 97 3.2.1.1.1 Jus sanguinis 97 TABLE OF CONTENTS 7 3.2.1.1.2 Jus sanguinis strengthened by jus soli 99 3.2.1.1.3 Jus soli 99 3.2.1.2 Acquisition of foreign nationality 100 3.2.1.2.1 Naturalisation 101 3.2.1.2.2 Acquisition by marriage – mixed marriages 106 3.2.2 Loss of nationality and its restoration 107 3.2.2.1 Loss due to change 108 3.2.2.2 Loss due to deprivation 109 3.2.2.3 Restoration 110 3.3 Nationality (jinsı¯yah) in the Islamic perspective 112 3.3.1 Attribution 113 3.3.2 Acquisition 113 3.3.3 Loss 114 4 Citizenship and the three levels of membership 115 4.1 Citizenship and the kin group (status gentis) 116 4.2 Citizenship and the religious community (status religio¯nis) 118 4.3 Citizenship and the nation-state (status civitatis) 122 4.4 Contrasting citizenships: the role of migrations 125 4.5 Patterns of citizenship in the Arab world 127 Notes 131 Glossary of Arabic legal terms 143 Bibliography 153 In Arabic 153 Classics 153 Modern and contemporary works 156 In other languages 163 General index 181 Preface In European traditions of political thought, the concept of citizenship has provided a crucial link between the ideas of democracy and of the rule of law. In a well-known essay, John Pocock identified the Athenian and Roman roots of citizenship as active participation in collective self- rule and as a legal status of freedom within a territorial jurisdiction re- spectively (Pocock 1992: 35-55). With the emergence of the concepts of territorial sovereignty in the 17th century and of the nation-state as the basic unit of a global international order since the end of the 18th cen- tury, citizenship has acquired a third meaning. It is today often used as a synonym for nationality, which refers to a legal bond between indivi- duals and sovereign states. In its external dimension nationality refers to a rule of mutual recognition between states that entails powers to protect their nationals abroad and a duty to readmit them into their ter- ritories. In its internal dimension, nationality does not presuppose de- mocratic participation, but refers to individuals as subjects of a sover- eign political authority independent of the nature of the regime. Since the Age of Enlightenment all three interpretations of citizen- ship have been combined in democratic revolutions and constitutional transformations in Europe and the American colonies established by European settlers. Representative democracy constitutionally con- strained by the rule of law in a sovereign nation-state has become the most widely embraced ideal of legitimate exercise of political authority. As the many dark episodes of authoritarian and totalitarian rule show, this model has not always been successful. Today it faces new chal- lenges by national minorities who claim territorial autonomy, by inter- national migrations that create large populations of non-citizen resi- dents inside state territories and non-resident citizens abroad, and by a broad range of phenomena grouped together under the label of globali- sation that are seen to undermine effective state sovereignty. These developments have triggered a large and still growing new lit- erature on citizenship. This revival of interest in citizenship since the 1980s is multidisciplinary and multidimensional. It has inspired com- parative analyses of nationality laws, feminist political theories and so- ciological studies of citizenship ideals and practices among different 10 CITIZENSHIP IN THE ARAB WORLD groups. Yet there is one pervasive limitation. With very few exceptions this literature is Eurocentric, or more precisely Occidentocentric. Gianluca Parolin’s account of citizenship in the Arab world is a very welcome attempt to fill one of the most significant geographical and historical gaps in the comparative citizenship literature. Drawing exten- sively on original Arabic sources, Parolin tells a story that is much more complex than the stereotypical images of authoritarian regimes governed by Islamic law. In his analysis, citizenship in the Arab world combines elements of pre-Islamic structures of kinship with the ideal of ummah as a religious community and with nation-state sovereignty.
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