Abstract
This research examines discrimination against non-citizen and non-Muslim minorities in India and Pakistan respectively by providing an ideological critique of international and Islamic law. The main argument of this thesis is that law, just like any other symbolic form,1 can become an instrument of power by alienating and legitimising discrimination against certain groups. These groups can then be minoritised in the jurisdictions they reside in, and hence become ideologically minoritised because the source of their minoritisation is the legal ideology they are subjected to. For the purposes of this research, the legal ideologies under examination are traditional Islamic law (TIL)2 and international law, the respective groups they alienate are non-Muslims and non-citizens, and the respective regions in which they are minoritised are Pakistan and India.The theoretical foundation of this research is based on the conception of ideology formulated by John B. Thompson.3 Thompson defines ideology as meaning in service of power and thereby asserts that any study of ideology should focus on three components: meaning, power and the interplay between them. When applied to law, this implies that meaning generated through law can serve power by legitimising discrimination against those whom it seeks to minoritise. This character of law is common to traditional Islamic law (TIL) and international law. The cadastral mapping of the Islamic legal world into dār al-Islām (dominion of Islam) and dār al-harb (dominion of non-Islam) in the 7th-8th century by TIL scholars alienated non-Muslims from the domain of Islam. As a result, they were ideologically alienated and subsequently minoritised in the regions where they resided. Similarly, the colonial imagination of international law reified nation-state boundaries. This allowed those who did not possess citizenship or were non-citizens of the powerful states to be ideologically alienated and minoritised in the states they resided in. Both groups, in this sense, became ideological minorities due to their ideological alienation and spatial location. The respective case studies of Pakistan and India illustrate the impacts of their ideological alienation in these jurisdictions.
The thesis is developed in seven inter-related chapters that focus on answering two research questions: firstly, do international and Islamic law legitimise discrimination against respective non-citizen and non-Muslim minorities, and if so, how? Secondly, what are the impacts of the discrimination legitimised against non-citizens in India and non-Muslims in Pakistan? The first and second chapters introduce the project, elaborate on the theoretical framework for it, and explain the methods used in this research. Chapters Three to Six answer the research questions of this study. The third chapter on Islamic law elaborates on how TIL legitimises discrimination against non-Muslims, whereas the fourth chapter on Pakistan shows its impacts on the non-Muslim minorities in Pakistan. The fifth chapter on international law analyses the legitimisation of discrimination against non-citizens in international human rights law, whereas the sixth chapter on India relates it to the treatment of non-citizen minorities in India by showing real-life cases.
These six chapters and their analysis lead to the final seventh chapter where two strategic pathways are provided as ways forward to address the problem of discrimination against ideological minorities: re-theorising legal ideologies or engaging with the existing legal ideologies. The first one is theoretical and emanates from the convergent practices between states and the ideologies through which they derive their legitimacy. The second one is practical and is based on positive and negative divergences between the state practices and the ideologies they follow. It is argued that whereas the first pathway is better suited for the emancipation of the alienated categories in the long run, the second pathway can provide an immediate solution to these ideological minorities through a compromise between ideologies and state practices. In both cases, however, this thesis identifies ideological alienation, minoritisation, and legitimisation of discrimination through law as the foundational problem which hinders the protection given to these ideological minorities.
| Date of Award | 1 Jun 2024 |
|---|---|
| Original language | English |
| Awarding Institution |
|
| Supervisor | Maleiha Malik (Supervisor) & Satvinder Juss (Supervisor) |