Travelling between archives in Malaysia a few years ago, I met a middle-aged woman who heard me describe my research, nodded, and said in Malay, “Indeed – I got Islamic lawed the other day,” in a property case adjudicated in favor of a male cousin. For the majority of Muslims, the encounter with Islamic law takes place neither through spectacular violence nor through extraordinary force, but in the mundane, repetitive and indispensable negotiations that characterize most encounters with the administrative state: identity cards, marriage and divorce, child custody, inheritance disputes. Most debates about the proper place of shari’a today also take place within the frame provided by colonial and national histories, in which the ascendance of state power was facilitated by its takeover and impoverishment of local institutions which articulated what Islamic law could be, in whose voice it might speak, and at whose hands it might change. Those who advocate a return to a moment when the state enforced a codified and unified law of Islam invoke a nostalgia for a past that has never existed. Equally, though, a view of Islamic law as the locus of Muslim values, tradition or culture also needs to be reconsidered: it is of course ahistorical, as centuries of Muslim debate over the tradition readily demonstrate. It further allows an assumed equivalence between family or personal status law and Islamic law to remain unexamined. The association of Islamic law with tradition has long been part of a teleology that rationalizes and justifies colonial and neo-colonial intervention in Muslim states and Muslim lives.
My new book, The Politics of Islamic Law, presents an approach to the study of religion, comparative politics and law that begins with the contradiction and ambiguity produced by the interplay among sacred texts, institutions of state and society, and actors working with the tools they have at hand. By seeking to understand the development of the category of Islamic law as a “problem-space” for the modern state, the book invites further exploration of how Muslim futures are being framed and discussed, historicizing what David Scott has framed as “the particular questions that seem worth asking and the kinds of answers that seem worth having.” (2004:4) In this exploration the question – ‘whose law?’ – turns out to be as important, if not more important, than the question – ‘which law?’ This generates a new set of questions in the study of the politics of Islamic law: in what domains of Muslim life is Islamic law being raised once again, and by whom? In what domains of Muslim life has Islamic law been made silent? What political compacts and struggles underwrite these claims for presence or absence, and upon what institutional and social foundations do they rely? Over what kind of human subject do they lay claim, and how might this subject speak to the law? To what version of the past do they refer, and to which vision of the future?
Beginning with the British colonization of India in the 1760s, tracing the development of the category of Islamic law in Malaya and Egypt in the 1870s, and following its institutional elaboration into the twentieth century, The Politics of Islamic Law tracks how texts and institutional practices served the mutual reinforcement of particular visions of law and religion. In each case, evolving concepts of law, religion, public, private, state and individual came to be contingent upon one another. Drawing methodologically from comparative politics, law and society, Islamic studies, legal history and anthropology, the book reads politics and law simultaneously in multiple registers, linking discursive, institutional and legal changes. Chapter Three uses treaties to discuss the wide-ranging ramifications of jurisdictional struggles between local and colonial elites over religion. Chapter Four focuses upon trials in and of Islamic law to tease out the problem of defining law, Islam and Muslim in the developing state, and the strategies and dilemmas of both colonial officials and their Muslim counterparts in the arena of formal adjudication. Chapter Five takes texts of Muslim representation – portraiture, constitutions and publications – to illustrate the ways in which the ‘Muslim state,’ as a condition of being and a governmental formation, elaborated upon and renegotiated the new discourses and institutions of Islamic law. The book closes with an analysis of recent legal cases in Malaysia, turning from the colonial frame to the continuing productivity of Islamic law in contemporary politics, and to the growing salience of ethnicity in Malaysian articulations of Islam.
‘Shari’a’ shares a root meaning with the word contemporary Arabic speakers use for ‘street’ – both refer to pathways. ‘Shari’a’ is a divinely prescribed path of right conduct through life, only a small part of which fits into the way most states today define law. Scholars of Islamic legal history often point out that a major defining feature of shari’a jurisprudence has, until recently, been its capacity for ambiguity and diversity – its ability to accommodate conflicting opinions on matters of law, its remarkable flexibility and responsiveness to social and political questions.
The transformation of Islamic law into a domain of state administration – legislated by rulers, codified and interpreted by state employees, bankrolled by state funds, a department of governance amongst others – has arguably been the most significant change in Muslim life in the last two hundred years. The major transformative event for the way the shari’a now functions was the rise of the interventionist, bureaucratic state – a state that wrested control over shari’a interpretation, adjudication and education from multiple local institutions and asserted its monopoly over Islamic law. The Politics of Islamic Law explores these transformations in British colonial India, Malaya and Egypt, and seeks to understand how Muslims themselves became invested in a radical redefinition of ‘shari’a’ as ‘Islamic law’ – from a broad pathway through life, to a narrow line of codes pertaining to matters of ritual and family, defined and enforced by the state.
Surprisingly, we still have little detail about how this change was effected: how did changes at the level of legislation and code affect everyday life? How did judges and bureaucrats untrained in the shari’a apply and interpret it? How did the independent scholars, jurists and teachers who had previously been the backbone of the shari’a system respond to its takeover by the state? At the core of each of these phenomena, I argue, was a paradoxical dynamic: the institutional marginalization of Islam at the hands of the colonial state was accompanied by its symbolic centralization. Muslim elites responding to the hazards and opportunities of colonialism often found themselves accepting the jurisdiction of colonial law even in order to contest it, setting in motion new processes that would make the delivery of Islamic law central to the legitimacy of the state, a dynamic that continued into post-colonial politics.
In British India, where the chronology of the book’s narrative begins, the colonial administration of Islam replaced people – elite interpreters of juristic tradition and local usage – with texts, first with Anglo-Muhammadan law, and then in the late nineteenth century with colonial codes that defined Islamic law within the confines of marriage, divorce, inheritance, and ritual. These codes later became a basis for Muslim efforts to wrest political power from the British; as the institutional expression of the line between Hindu and Muslim, they were also deployed as proof of the incommensurability of Hindu and Muslim law within a single state.
The picture from Malaya from the 1870s is quite different: here, the initial compact with Malay ruling elites fenced off matters of Muslim religion and Malay custom and made them indispensable for the sovereignty of Malay sultans. Religion and custom were narrowly defined, by violence and by legal force, early on in the relationship between the sultans and the British. As such, the institutional development of Islam in the Malay States proceeded largely without colonial intervention as long as it remained within these newly defined bounds of Islam – marriage, divorce, inheritance, religious endowments and ritual observance. The application of Islamic law was largely left uncodified, at the discretion of Islamic elites formally under the aegis of the state but outside its interpretive control. Having made these matters the Sultans’ raison d’être, it became in the interests of the Sultans to emphasize Islam and Malay custom as raisons d’état.
In Egypt at roughly the same time, the British inherited a system constructed by the Ottomans and conditioned by the reforms of Muhammad Ali. Here, the impact of colonialism was twofold: through the ongoing system of rule in Egypt after the British occupation, and through Ottoman and Egyptian efforts to stave off European intervention. The reform of Islamic law was constructed as a choice by Islamic and Egyptian legal elites to forestall colonial intervention, to reform instead of being reformed. Because the colonial power to be forestalled was British, the reform of law took on the French model, with profound consequences: statutes took the place of independent juristic reasoning, Islamic legal elites were appointed to positions of responsibility within a highly hierarchical state bureaucracy, and law became the central focus of Islamic intellectual activity. In the struggle against colonialism, Egyptians – those who articulated their resistance explicitly in Islamic terms and those who did so in language more recognizable as nationalist – had by the end of the nineteenth century taken as a given the concept of Islamic law as a codified and limited department of the state. These elites brought shari’a and personal law together in a formula still in use throughout the legal systems of the Arabic-speaking world – al-ahkam al-shar’iyyah fi al-ahwal al-shakhsiyya – the shari’a laws of personal status.
Between 1765 and 1914 a new kind of Islamic law emerged, startling both in its departure from preceding practices and in the sameness with which it dealt with the lives of Muslims in India, Malaya and Egypt. Rather than comparing sites of colonization, however, I locate the transformation of the Muslim state within transnational networks governed by logics of empire, pilgrimage, market and family. Through the movement of British colonial officials from India to Egypt and Malaya and the acceleration in technologies of transport, print and communication that facilitated and conditioned exchanges between Muslims across the world, these ideas and the debates they engendered achieved global reach. These networks, their interconnections and chronologies, appear in the book but are also in need of more study: further scrutiny of India’s role as a British laboratory for governance through law might help de-center the Middle East in the study of Islam; likewise, the Ottoman state deserves critical exploration as both a producer and consumer of this new kind of state-centered Islam. Placing Dutch and French colonial materials into conversation with the British would facilitate comparative discussion, and shed light on the ways in which imperial knowledges informed each other.
What began as a legitimating conceit on the part of the colonial state – the making of a limited but sovereign space for Islam – soon became a central component of local elite power. The post-colonial Muslim state now finds itself in a double bind, governing through the durable legacies of colonial statehood, including the institutional marginalization of Islam, but relying for its authority upon Islam’s symbolic centrality.
The conditions of doubt, of tension and of deep historical investment that characterize much Muslim debate and struggle today represent not a series of failures to be overcome, but legacies in need of continued evaluation. Insofar as there may be such a thing as a Muslim modernity that might serve as a condition of possibility for constituting new futures, it may be something that has been with us all along: fluency in multiple languages of authority and authenticity, ongoing investments in intertextuality, and facility in reading between the lines, that have long served to counter the authoritarianism of reification and codification.