“Parallel Islamic courts are, by their very nature, intolerable in any reasonably well-governed state, because the state, by definition, must hold a monopoly over lawmaking and the administration of justice,” one reader wrote to me. He is right. The moment two parallel systems of courts exist within the same territory, there are, in effect, two states occupying that territory. It then becomes only a matter of time before one prevails over the other.
The difficulty, however, is that this assumes two conditions:
- There is someone with a sufficiently strong incentive to prevent the emergence of a rival state on the same territory.
- That someone possesses enough power to enforce that objective.
It increasingly appears that no such figure exists. What is missing is a sovereign—or some functional equivalent—who would simply refuse to tolerate another ruler exercising authority over the same land.
The reader also raised another important point. What, after all, are commercial arbitration clauses, private tribunals, and similar arrangements? In each case, an individual or a business lives under Czech law for part of the time and under a form of corporate law for the rest. Once again, this suggests that states are no longer capable of defending their own sovereignty. The same can be said of their acceptance of various international tribunals, European courts, and similar supranational institutions.
Neoliberals argue that the state acts tyrannically when it prevents people from voluntarily agreeing to different sets of rules. But that is not the issue. People are perfectly free to establish even a cannibal tribunal if they wish. The state’s obligation, however, is to guarantee every citizen the right to refuse recognition of that tribunal’s judgment. If participation is truly voluntary, then it must remain voluntary. Sign arbitration agreements if you choose. But the state must ensure that no one is compelled against his will to submit to such arbitration. Yet once again, we return to the same reality: someone—a particular individual or a particular group—must possess both the authority and the will to enforce that principle.
A state without a sovereign ceases to be a state. A state that no longer defends its sovereignty ultimately ceases to exist.