An Introduction to Islamic Law (18 page)

Until the eighteenth century in India, and the early nineteenth century in the
Ottoman Empire, Islamic law and local customs reigned supreme, both having long been a way of life. But during the 1600s, Britain began its penetration of India through the agency of the
East India Company (EIC), whose sole goal was commercial profit. For about a century and a half, the EIC tried gradually to increase its political and military influence, but it was not until 1757 that it asserted its almost total military dominance, henceforth embarking upon the massive project of colonizing India, both economically and juridically. In the eyes of the British, economic and commercial ambitions were intimately connected with the particular vision of a legal system structured and geared in such a manner as to accommodate an “open” economic market. The legal system was, and continued to be, the sphere that determined and set the tone of economic domination. But most importantly for the British, the avid desire to reduce the economic costs of controlling the country led them to maximize the role of law. Law was simply more financially rewarding than brute power.

And so it was not until the appointment of
Warren Hastings as
Governor of Bengal in 1772 that a new stage in the British legal redesign of India got underway. The appointment ushered in the so-called
Hastings Plan, to be implemented first in Bengal. The Plan conceived a multi-tiered system that required exclusively British administrators at the top, seconded by a tier of
British judges who would consult with local
qadi
s and
mufti
s regarding issues governed by Islamic law. On the lowest rung of judicial administration stood the run-of-the-mill Muslim judges who administered law in the civil courts of Bengal
, Madras and Bombay. The plan also rested on the assumption that local customs and norms could be incorporated into a British institutional structure of justice that was regulated by “universal” (read: British) ideals of law.

Hastings’
tax-collectors also doubled as
chief justices who applied Islamic law to Muslims and
Hindu law to Hindus. These British
magistrates are said to have been struck by both the staggering variety of opinion and the pliability of Islamic (and Hindu) law – features that led the British to phase out the indigenous experts whose loyalty was, in any event, considered suspect.

In order to deal with what was seen as an uncontrollable and corrupted mass of individual juristic opinion, the Oxford classicist and foremost Orientalist
Sir William Jones (1746–94) proposed to Hastings the creation of
codes or what he termed a “complete digest of Hindu and Mussulman law.”
¹
The justification for the creation of such an alien system within Islamic law rested on the claim that this law was unsystematic, inconsistent and mostly arbitrary. The challenge thus represented itself in the question of how to understand and legally manage native society in an economically efficient manner, which in part shaped Jones’ ambition of constructing a system that offered “a complete check on the native interpreters of the several codes.”
²

Hastings
was impressed by Jones’
proposal. Before long, he commissioned the
translation of a handful of classical Islamic legal texts into English, the immediate purpose of which was to make Islamic law directly accessible to
British judges who deeply mistrusted the native Muslim legists advising them on points of law. Furthermore, the British thought that reliance on these few texts would reduce the likelihood of juristic disagreement, for them the source of much detested legal pluralism. The texts were concise enough to qualify as codes.

As it happened, these translations largely succeeded in codifying Islamic law – for the first time in its history. Through this act of translation (and codification), the texts were also severed from their Arabicate interpretive and commentarial tradition, which meant that they ceased to function in the way they had done until then. There were at least three dimensions to this process. First, through this act, the British in effect disposed of the Muslim
jurists and
mufti
s who had served in the system and who were its backbone. Second, Islamic law was slowly transformed into a
state law, where the legal and judicial independence of the socially grounded legal profession was displaced by the corporate and extra-social agency of the modern state. And third, the law was simultaneously being changed to resemble, if not to be,
English law.

Yet another consequence of undertaking the translations was the suppression of
customary law, whose elimination was intended to streamline (or homogenize) the otherwise complex and complicated legal forms with which the British had to deal. At the same time, Islamic law was deprived of one of its mainstays: the communal and customary laws that were entwined with the Shari
a on the level of application. Thus the
very act
of translation uprooted Islamic law from its interpretive-linguistic soil, and, at one and the same time, from the native social matrix in which it was embedded, and on which its successful operation depended
.

The law that emerged out of the application by
British judges of these translated
laws became known as
Anglo-Muhammadan law, a designation that reflected a heavily distorted English legal perspective on Islamic law as administered to Muslim individuals. It may even be argued that Anglo-Muhammadan law at times involved the forceful application of English legal precepts as Islamic law, such as the highly subjective notions of “justice, equity and good conscience.”

Furthermore, Anglo-Muhammadan law was no less affected by British perceptions of governance, themselves heavily derived from the intractable connections between law and the
modern state. For instance, Governors
Hastings and
Cornwallis (1786–93) both rejected, as did their British counterparts elsewhere, the entire tenor of the Shari
a law of
homicide on the grounds that this law granted private, extra-judicial privileges to the victim’s next of kin, who had the power to decide on meting or not meting out punishment (ranging from retaliation, to payment of blood money, to pardon) as they saw fit. This right, they held, was the exclusive preserve of the state which, by definition, had the “legitimate” right to exercise
violence. Reflecting an entrenched state-culture of monopoly over violence, Cornwallis further argued that too often criminals escaped punishment under the rule of Islamic law, a situation that would not be allowed to obtain under what he must have seen as an efficient state discipline. His voice echoed Hastings’ complaint that Islamic law was irregular, lacking in efficacy and “founded on the most lenient principles and on an abhorrence of bloodshed
.”
³
(Ironically, these colonial perceptions of Islamic law have been diametrically reversed since the 1970s.)

Thus between 1790 and 1861 Islamic criminal law was gradually replaced by its British counterpart, so that by the latter year no trace of Islamic criminal law was being applied. As one historian perceptively noted,

British justice [in India] turned out to be far more draconian – in practice as well as in principle – than Islamic justice had been, resorting much more frequently to capital punishment, and much less often to community-based methods of enforcement and reconciliation . . . [The
EIC] was far more concerned with public order, and with the specific use of the law to protect its own trade and commerce as well as authority, than was the old regime.
⁴

Another fundamental change caused by the creation of Anglo-Muhammadan law and its translated texts was the
rigidification of Islamic law as a whole, a rigidification intensified by the adoption of the doctrine of
stare decisis
(the obligation of courts to follow the uncontroversial previous judicial decisions of higher courts). This doctrine could have evolved in Islam, but for a good reason did not. The Shari
a assigned legal expertise and, more importantly,
ijtihad
ic authority to the
mufti
and
author-jurist, not to the
qadi
who, while possessing more or less the same amount of
legal knowledge as did his British counterpart, was deemed insufficiently qualified to “make” law.
Linguistic and
legal interpretation was the very feature that distinguished Islamic law from modern codified legal systems, a feature that permitted this law to reign supreme in, and accommodate, such varied and diverse cultures, sub-cultures, local moralities and customary practices as those which flourished in Java, Malabar, Madagascar, Syria and Morocco. But insofar as judicial practice was concerned, the bindingness of a ruling according to the specifically British doctrine of precedent deprived the
qadi
of the formerly wider array of opinions to choose from in light of the facts presented in the case. Once a determination of law in a specific case was made binding, as would happen in a British court, the otherwise unceasing interpretive activities of the Muslim
mufti
and
author-jurist were rendered pointless, both in law and in the life of the community.

Enshrining in Anglo-Muhammadan law a doctrine of
stare decisis
in effect transformed the sources of
legal authority altogether. Instead of calling upon the school principles and the juristic authorities whose props were the dialectics of textual sources and context-specific social and moral exigencies, the Anglo-Muhammadan lawyer and judge were forced to look to the
higher courts, and the higher courts in turn to the
Privy Council, which sat in London, not Delhi or Bombay. The Council was remote not only geographically but also from the real concerns of the colonized natives.

Be that as it may, during the second half of the nineteenth century a major displacement of Anglo-Muhammadan law was effected, especially after the transforming effects of the
1857 Rebellion. The 1860s and 1870s
witnessed the abolition of slavery, as well as the Islamic laws of procedure, criminal law and evidence. All these were superseded by
British laws enacted by statute. By the end of the century, and with the exception of
family law and certain elements of property transactions, all indigenous laws had been supplanted by British law. But all this was introduced piecemeal, answering, in an ad hoc and generally incremental manner, the growing anxiety of the British to exercise control over their Indian subjects, especially after the events of
1857 and in a world where London ruled directly, rather than through the
EIC (dissolved that year). In this picture, Anglo-Muhammadan law represented no more than the middle stage in a process of colonial consolidation of economic, political and legal power
.