Legal Pluralism of Islamic Sharia and Colonial Codification of Indian Muslim Personal Law
By
Grace Mubashir, New Age Islam
12 December
2022
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Each
nation has received different opinions, heard different hadiths, and lived
according to what each of them had come to them from different kinds of legal
views among the companions of the Prophet and among their descendants. It would
not be appropriate to dismiss their views. It is better to let the people act
as they act, and let each locality adopt the laws according to the laws it has
received, and leave them to their own ways.”
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"Abbasid
caliph Abu Ja'far al-Mansur was asked by the minister and literary genius Ibn
al-Muqafah to formulate a civil law code to unify Sharia jurisprudence for
administrative transparency. Caliph Mansoor took such an opinion seriously in
view of the correctness of administration and decided to convert 'Muwatta' by
Ibn Malik into a law book as the most accurately codified Fiqh book of the
time. Caliph Mansoor made that request to Imam Malik, the author of the
Muwatta, during a Hajj: “I wish to send a copy of this book of yours to every
town and instruct them to accept the laws just because of what is in it. You
are from Medina. The knowledge of Madinah is authentic”. Rejecting the Caliph's
demand, Imam Malik's response was: “Ameer ul Mu'mineen (leader of the
believers), you should not do that. Each nation has received different
opinions, heard different hadiths, and lived according to what each of them had
come to them from different kinds of legal views among the companions of the
Prophet and among their descendants. It would not be appropriate to dismiss
their views. It is better to let the people act as they act, and let each
locality adopt the laws according to the laws it has received, and leave them
to their own ways.”
Islamic
Sharia and Civil Society
Imam
Malik's interest in rejecting the Caliph's demand to codify and determine the
Islamic Sharia in a one-dimensional manner was to stop the power-interest, and
in each case the scholars of the respective time and land should determine the
solutions for the problems. After that, it was not until the nineteenth century
that anyone dared to prepare a unified law book or penal code called 'Islamic
Sharia'. Rather, it existed through numerous texts, circumstantial
interpretations, served civil society, and pluralized and practiced Islamic
jurisprudence in through multiple approaches.
The
multi-dialectical nature of the Sharia was not compatible with nineteenth-century
colonial power interests. The features of decentralized Sharia were not
amenable to the colonial administration and they tried to subsume it under
their authority. Joseph Shatt , Ignaz
Goldsier, and Snook were pioneers in the
project. Orientalists and other viceroys of various Muslim lands claimed that
the Islamic legal system was imprecise and demanded reform. The most important
characteristic of the Sharia was that it was not subordinated to the interests
of state power anywhere in history. The rules of Sharia were developed by
scholars who acted as independent bodies. But in contrast to that, in European
nations, laws existed as an exercise of power by the ruling class. Therefore,
law-making systems remained part of the state in the European system of
governance.
The Sharia
was operationalised by being integrated into civil society and influencing
every part of their lives. It was therefore in many respects a system that was
more closely related to civil society than to the state. Wa'il Hallaq says:
“Shariah
was not meant to be a problem-solving mechanism. It has greatly influenced all
aspects of the society, economic, moral, spiritual and cultural. This is where
Sharia differs from the modern legal system. Sharia takes shape and evolves
from whatever society it was formed to serve. In that way, ordinary citizens
are constantly aware of the legal system and become a constant part of their
daily lives. The fuqaha/muftis were constantly imparting legal knowledge to the
society.”
Colonial
Codes and the Open Legal System
In Franz
Kafka's short story 'Before the Law', the law is presented as inaccessible to
the common people and distant from them. The main character in 'The Trial', who
does not know what wrong he has been punished for, and the character in 'Before
the Law', who has to wait until he dies at the door of the law to know what the
law is, have the same problem. However, it arises from the fact that the modern
legal system keeps a distance from society. The crisis of law standing apart
from society, which Kafka reveals, does not therefore arise in the Sharia,
which constantly interacts with society in all its aspects.
Shariah was
understood as a social and personal relationship between the people and the
legal system rather than a tool to rule and control. Sharia was aligned with
the legal positivist HLA Hart's observation that 'law is given its legitimacy
by its sociality'. Khalid Abul Fadl writes:
“The basis
of Islamic jurisprudence was the principle that laws should stand for human
good, administration of justice, and classification of good and evil. Sharia
was based on the (independent) interpretations of the text by scholars, as
opposed to the modern secular system based on laws set by the state. They
[scholars] maintained that all such interpretations were at the same time
different readings, and therefore all of them were correct and any of them
could be accepted.”
The
European legal system existed as 'codes' such as the Dutch National Code, the
British Penal Code and the Napoleonic Code. Therefore, all of them were
recorded and determined in different books, and they were separated as a
separate field from the society by building special buildings for management.
But there were no 'special spaces' in Islamic history to enforce Sharia, find
legal solutions to problems and air grievances. Sharia rules were discussed in
the homes of scholars, the needy, in mosques, in markets, and in royal
assemblies. There was no specific text to highlight that 'this is Sharia Law'.
Because in Shariah, the book was not important, rather it was the person
seeking legal protection and their environment. The modern liberal approach to
such an open legal system can be read in the words of an American judge:
"We are not Muslim Qadis who sit under a tree and interpret the book in
their hand to dictate the law as it seems."
Modernity
and Sharia: From Ottoman Egypt to Anglo-Muhammadan Law
Orientalists
and colonial authorities were interested in codifying Islamic laws by proposing
to reject the uniqueness of the Islamic Sharia outside the European system.
They therefore tried to rewrite the existing Sharia systems in other Muslim
countries based on their own system. Thus, the first official codification of
Islamic Sharia took place in India under the British Raj. It was creating a hybrid legal system under
Governor Warren Hastings. By British Orientalist Sir William Jones under the
directive of viceroy, the British company began efforts to make Muslim and
Hindu laws into a unified code. To codify Muslim law, texts from the Hanafi
Madhhab such as Margini's Hidaya in 1791 were translated by Charles Hamilton ,
Sirajiyah in 1792, and Fatawa Alamgiriyya in 1865 by Nile Bailey, which formed
the 'Anglo Muhammadan Law' in 1860.
But in
Anglo-Muhammadan Law, the 'Anglo' lock prevailed over the 'Muhammadan' Law.
This led to the later colonial Muslim law of 1937, the 'Muslim Personal Law
Application Act', which made Sharia exclusively personal/civil law.
By the 20th
century, the colonial power had completely established the supremacy of the
European legal system in the monetary and criminal-penal laws in the Muslim
world. Thus, colonialism reduced Sharia to personal laws only. By the 1880s,
there was a proposal to codify the Sharia in Egypt, and a group of Qadis and
British officials drafted the Muslim Personal Law incorporating the dominant
views of the Hanafi madhhab. By the 1930s, the French regime had similarly
formulated a Sharia code in Morocco. Similarly, in 1873, the code created by
the Dutch administration in Java, incorporating Sharia and local customs, was
almost identical to the Dutch National Code.
Then, what
happened when the Shariah was codified by the colonial authorities in various
places was the rejection of the most important features of the Sharia, namely
pluralism. The 'Personal Sharia Laws' codified one of many opinions and reduced
the painstaking process of 'Iftaa (giving legal opinion) to one that any
officer could do by reading a single book. In addition, colonial regimes were
able to codify Sharia law under state control. However, that process created
many legal, social and religious crises and caused the term Sharia to be
misunderstood.
According
to Mark Fathi Masood, head of the University of California Law School, the rise
of religious fundamentalists and the misuse of Sharia is traced to the Sharia
system created by the colonial authorities. He observes that bringing Sharia
under the authority of the state is exactly what the fundamentalists have done
in countries like Iran, Saudi Arabia, Somalia, and Nigeria, which is the
reverse and consequence of colonial interest itself.
Amira Zahri
Sombol explores the point in the current political context. She writes that it
was very easy for a woman to get a divorce during the Ottoman period and that
the Sharia itself had provisions to implement many possibilities for the good
of women. But they observed that in post-colonial Egypt, obtaining a divorce
has become a difficult legal process for a woman, and divorce is granted only
if it can be proven on the basis of strong evidence or by the husband's own
confession that the wife has been subjected to severe torture. While sexually
assaulted women were protected and compensated under the early modern Sharia
system, they were often punished or euthanized by their families in the
post-colonial system. In the same way,
Saba Mahmoud states in the book 'Religious Difference in the Secular Age' that
the rights of minorities were protected under the Ottoman Sharia system in
Egypt, but the modern secular Egyptian system has failed to protect the rights
of minorities.
The
Possibilities of Sharia beyond Foucauldian 'Laws'
For Michel
Foucault, 'laws are instruments of power'. Law reinforces the relationship of
power through all its institutions and materials. He points out that laws are
not just certain principles or directives, but an ever-evolving exercise of
power. Ibrahim Musa's understanding of colonial codification based on
Foucault's arguments is as follows:
“The
colonial powers secured power not only through military-political-economic
power, but also by imposing their legal wisdom on the colonized. The
consequence is that even after independence, the colonized are trapped under
the legal system of the same colonial powers that oppressed them.”
Therefore,
it is not possible to formulate and understand Sharia in terms of European
legal theories, since Islamic Sharia exists in contrast to the centralized
European legal system. As Derrida observes in 'Force of Law: The Mystical
Foundation of Authority' with Walter Benjamin in mind, law in the European
system has always functioned only for the survival of the 'law/state'. Its
primary objective is always, 'its own self-sustainment'. Hence its mission is
to 'maintain established authority without crisis'. So, the basis of modern
laws is always authority.
But since
the Shariah, in contrast, essentially aims at 'the moral formation of civil
society and the protection of rights', its basic characteristic is
'decentralization of power'. Thus, it never becomes 'absolute' in itself like
modern laws. Rather, Islamic Shariah is a decentralized one, constantly in the
process of 'becoming', renewing itself and renewing society through dealings
with social conditions 'external' to it.
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A regular columnist for NewAgeIslam.com, Mubashir
V.P is a PhD scholar in Islamic Studies at Jamia Millia Islamia and freelance
journalist.
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