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.

Thee authority of human rights has diminished, even in liberal constitutional systems, international relations, and international human rights law. This enables illiberal democracies to depart from international standards. Majority will as the embodiment of the nation’s existential interest is entitled to overrule the foreign, doctrinal dictates of human rights. In many respects, this ideology corresponds to the antielitist criticism of human rights that is common in anticolonialist literature. However, in illiberal EU member states, the conflict with “international forces” does not extend to denying such rights; rather, it is limited to deceitful reinterpretation, relying on the ambiguities of the current system, pitting rights against rights and inventing new grounds for limitation. Such reinterpretation changes the meaning of existing rights, grants new powers to traditional grounds for limitation, and uses the concept of the state’s positive obligation to promote rights to instead promote the causes of the government, its values, and the interests of organizations allied with it.

The view of international law as a profession committed to the spread of liberal ideas emerged in Europe and North America in the late nineteenth century.1 One of those ideas was the rule of law. Attempts to realize a global rule of law and attempts to constitute an international community have long been linked. For many international lawyers, this gave international law a sense of forward movement and a clear telos, with the caveat that the reality of unequal power relations meant that international law could never be measured directly against a model borrowed from domestic law and politics.

Given the connection of “law and order” politics with conservatism, the idea of a conservative critique of the Rechtsstaat at first seems contradictory. After all, wasn’t John Adams’s insistence on defending the British soldiers involved in the Boston Massacre used as evidence for his conservatism? Didn’t Burke’s criticism of the French Revolution revolve around the preservation of law as part of a concrete order? But law and order are not identical and it is in the tension between the rule of law and the well ordered society that the possibility for conservative critique of the Rechtsstaat lies. In a time of revolutionary upheaval, furthermore, when revolutionaries proclaim the law, the legal side of “law and order” can come under fire as well.

Illiberal democracy is a special constitutional arrangement: it is a plebiscitarian democracy unfolding the totalitarian potential within a democratic system. As a centralized power, it intends to perpetuate the rulers’ monopoly over the state, relying on the falsification of classical (liberal) constitutionalism. These features offer sufficient family resemblance to treat them together for the purposes of constitutional theory. Illiberal democracy takes an instrumental attitude to constitutional institutions. Amendments to the constitution take place according to the momentary interests of the political power, like in any democracy without extremely cumbersome amendment rules. The ultimate attachment to the spirit of the constitution, the idea of respecting an unamendable core, is missing. There is no commitment to underlying principles; appearances matter, not authenticity. Hence the inevitable duplicity and deceit in the constitutional and legal system of illiberal democracy. The constitution is not an entrenched, higher order law but a practical tool to solve emerging conflicts in an illiberal and nondemocratic way (imposing arbitrary will as supreme command).

To speak of “the rule of law” in many of the Muslim countries of the world at present may seem, not only to Westerners but to many citizens of the Islamic world, at best hypocritical and at worst a cruel joke. How, after all, can one speak of the rule of law when a woman may be killed for a marriage not approved by her father or brother, when a constitution can be changed at the whim of a ruler, or when corruption is so pervasive as to leave much of the citizenry feeling dirtied and disaffected? And yet the rule of law remains more than an ideal, more than a vague concept, and more than a useless analytic concept employed only by academic lawyers. For if we try to understand the rule of law not as a universal concept but for what it means in the context of any particular cultural tradition and its system of law, it may be possible to discern features that are not incompatible with the sense in which this phrase is commonly employed.

Herodotus’ Persian debate – a fictional conversation between three noble Persians on the relative merits of rule by one, rule by the few, and rule by all – ironically provides one of our clearest statements of Greek democratic theory.1 In the debate, Otanes, arguing for rule by all, highlights what are recognizable as the key features of Athenian democracy: isonomia (equality under the law); selection of magistrates by lot; accountability for officials; and decision-making in a deliberative popular Assembly.

The “rule of law” is a relatively recent addition to the development project.1 Only after the end of the 1980s, when the Cold War was over, history had ended,2 and three worlds had putatively become “one,” did it also become commonsensical for law, institutions and “governance” to be understood as integral to “development.”3 Since that time, not only have developmental institutions such as the World Bank, the International Monetary Fund and regional development banks explicitly taken up promotion of the rule of law as a core aspect of their mandates, but a significant marketplace of international, transnational, government, and domestic actors has emerged.4 The result is a multi-billion dollar industry that is centrally concerned with “the rule of law” as instrument, end, and indicator of “development,” positioned at the heart of state-making more broadly.

These words appear in a short eleven-page passage headed “The rule of law” in E. P. Thompson’s 300-page historical study of one British statute enacted in May 1723. Yet the passage, and particularly the quoted words, received enormous attention at the time and since, provoking widespread criticism as well as praise.2 Edward Palmer Thompson (1924–1993) was probably the best-known British historian of the second half of the twentieth century, acclaimed for The Making of the English Working Class.

We digress when, in intending to make a point, we either temporarily or permanently deviate from it. Digressions can be deliberate or unconscious. They can be to good or bad – or a mixture of good and bad – or to no effect. Distinguishing the digressive from the non-digressive is not always straightforward: comments offered as asides can strike at the very heart of a matter, just as narrative which a reader thinks peripheral might be the author’s fil conducteur. Common-law judges often digress in the course of making legal decisions. The standard characterization of these digressions is that they are observations which are not integral to a decision that has been reached – that they could be taken out of a judgment without that judgment being undermined. The full legal Latin term for these observations is obiter dicta.

Tucked away in a minor footnote to the final chapter of Between Facts and Norms, Jürgen Habermas (b. 1929), the Frankfurt School’s premier second-generation representative, offers a tantalizing remark about Franz L. Neumann (1900–1954), his predecessor at the Institute for Social Research and its most impressive first-generation legal thinker.

The difference between the idea of the Rechtsstaat and that of the rule of law is more than a variation on a theme. Theorists and practitioners of law’s rule would do well not to equate – for analytical as well as practical reasons – the Anglo-American way of law with what Leonard Krieger called “the German idea of freedom.”2 And yet they have and will – to the detriment, I argue in this chapter, of understanding and prescription.