Scott Kugle-Framed, Blamed

Framed, Blamed and Renamed: The Recasting of Islamic Jurisprudence in Colonial South
Asia
Author(s): Scott Alan Kugle
Source: Modern Asian Studies , May, 2001, Vol. 35, No. 2 (May, 2001), pp. 257-313
Published by: Cambridge University Press
Stable URL: https://www.jstor.org/stable/313119
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Modern Asian Studies 35, 2 (2001), pp. 257-313. ? 2001 Cambridge University Press
Printed in the United Kingdom
Framed, Blamed and Renamed: The Recasting

of Islamic Jurisprudence in Colonial South
Asia
SCOTT ALAN KUGLE
Duke University, USA
A system should be formed, which shall preserve as mu

be done, their institutions and laws to the natives of Hindoostan, and
attemper them with the mild spirit of British government.-John Bruce'
Jurisprudence is the nexus where authoritative texts, cultural

assumptions, and political expediency come together during a crisis.
It is therefore not so much a thing or a system as it is an experience,
an interpretative experience. Yet the practice of jurisprudence is
very different from other types of interpretation because it is also
an exertion of power. A legal interpretation is a decision which
mobilizes coercive forces to immediately solidify the interpretation
into a social reality. The administrative structure of courts and the
legal rhetoric that flows through them disguise jurisprudence as 'a
system' rather than revealing its nature as an interpretative experi-
ence; this disguise serves to heighten the authority of these exercises
of power and to limit the ability to contest them to specialists.
This theoretical perspective is crucial in analyzing the legal
'system' called Anglo-Muhammadan law, through which the British
colonial state anchored its authority and asserted its rule in South
Asia. Anglo-Muhammadan law disguises itself as a system; however,
it should properly be seen as an interpretative experience that regu-
lates and justifies the raw exercise of power. The law embodies the
cumulative experience of the British rulers in India, as they both
appropriated and rejected the Mughal polity which they conquered.2
They brought Islamic legal texts and specialists together with British
John Bruce, Historical Plans for the Government of British India, 1793-
2 Here and throughout, this study uses the term Mughal broadly, meaning not
only the Mughal empire proper, but also those regions like Bengal which gained
autonomy, but whose administration still followed patterns instituted by the Mughal
empire.
oo26-749X/o 1/$7.50+$o. 1 o
257

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258 SCOTT ALAN KUGLE
assumptions, and joined them to the political nee
state. Thus Anglo-Muhammadan jurisprudence act
face between the East India Company (as an ear
and the surrounding society, which it could not co
to control. Jurisprudence forms a way to index two j
ences: first the experience of the British in a prec
power, and second the experience of south Asian
displaced from their former positions of authorit
prudence, once renamed as 'the Law of Muslims' la
generation of South Asian Muslims who struggled
voice in British India and to recapture a sense of l
Until 1862, Anglo-Muhammadan jurisprudence e
uneasy balance two differing conceptions of self,
which overlap through the medium of law. Muslim
different ideas about what constituted 'law', how the state was
involved with it, and how 'law' fit into surrounding social relations.
This paper will focus primarily on the formative period of Anglo-
Muhammadan jurisprudence, during the sixty-year period from 1771
to 1832. This early period is most interesting and important, for
English jurists had not yet legislated into oblivion many of the overtly
Islamic facets of the law. Rather, the British in Bengal needed
Islamic jurisprudence as a language through which to speak to the
Indians they ruled, and to speak of their own needs with each other.
However, this system of jurisprudence had long-lasting and indelible
effects upon South Asian Muslim society, and this study will follow
its effects into the twentieth century. Through the juridical opera-
tions of these courts, the shari'ah became a reified and static entity
captured in a paradox.3 The shari'ah was largely codified by the Brit-
ish act of wresting political power away from Muslims, while later
The shari'ah is a notoriously difficult concept to define. In its broadest terms,

the shari'ah is the accepted custom of the Muslim community in doctrinal belief,
ritual action, commercial transaction, and criminal punishment. More technically,
the shari'ah consists of a network of decisions by jurists on whether a specific action
is obligatory, recommended, permissible, discouraged or forbidden when compared
against the known sources of revelation. As such, the shari'ah is a wide umbrella of
moral sanctions covering other theoretical possibilities as well as practical exigen-
cies. The shari'ah embraces contradictory juridical decisions and a multiplicity of
juridical methods, insisting only that they be based on certain authentic sources
and reasoned deduction. This crucial element of flexibility and multiplicity is often
lost when the term shari'ah is translated as 'the law of Islam' or even 'Islamic law'.
Rather, shari'ah is a broad set of customs authenticated and sanctified by legal
decisions. The principles and institutions of legal specialists who make such
decisions generally known asfiqh, should be understood as 'Islamic law'.

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THE RECASTING OF ISLAMIC JURISPRUDENCE 259
Muslims sought to regain political power through rhetoric

by this exact 'colonized' shari'ah. This study argues that t
of Anglo-Muhammadan law, which comes up as a topic onl
and administrative histories of India, needs to be integra
cultural and religious histories as well.
The precariousness of the East India Company forced it t
ister Islamic law. Company officers administered it first as
establish legitimacy and disguise their presence, and later
to secure co-operation of the ruled and exercise their pow
forcefully. They could not help translating both texts and
into English practice, remodelling them around Englis
assumptions, yet retaining their Islamic appearance. The p
translation was also one of codification and systematizatio
separated substantive law from procedural law; in that pro
entalist presumptions and utilitarian ideals entered the d
and South Asian Muslims found themselves at a greater d
from the law which they had formerly implemented. Translat
codification subtly shaped Islamic jurisprudence to fit the
a modernizing, centralizing state. It is the needs of this kind
which ultimately separated Anglo-Muhammadan law from
fiqh or even eighteenth-century English common law.
The balance between Anglo and Muhammadan became
tilted in an Anglo direction throughout the nineteenth c
reflecting the solidification of a state bureaucracy and estab
of a civil service which administered law. The quotation fr
Bruce which heads this paper reveals the general pattern. T
lation of Islamic jurisprudence into 'Muhammadan law' pre
in a new legal system, creating a space for a modern state and
sovereignty. Although the early experience of Anglo-Muha
jurisprudence was lost in the law itself, it exerted persiste
ence shaping twentieth-century Muslim conception of shar
self-statement, and also shaping twentieth-century scholarly v
the Muslim past. The six sections of this paper will move f
small kernel of the East India Company, through its courts
the wider reactions of the Muslims themselves. Sections one an
document the political expansions of the British and thei
appropriate Islamic law. Sections three and four chart the g
a modern state in India, how it gave rise to British legal id
how they modified the practice of Islamic law. Finally, sect
and six illustrate how the institution of Anglo-Muhamma
projected itself into the past through the 'doctrine of taqlid',

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it persists in the present through the p

and communalist Muslim leaders.
I. Expansion from Company to Polity

The delightful region of Bengal was cheered by the rays of Government
the Nawab Governor-General, Mr. Warren Hastings ... [who desired] tha
the care and protection of the country and administration of public affairs
would be placed on such a footing, that the community, being shelter
from the scorching heat of the sun of violence and tyranny, might find th
gates closed against injustice and oppression.-introductory address of th
composers of the Persian version of the Hedaya4
During the last thirty years of the eighteenth century, two simultan
eous changes took place among the British in India. The Parliamen
in London asserted its control over the East India Company, forcin
a mercantile company to transform into a government administr
tion. At the same time, the 'home office' in Calcutta systematiz
relations between different local powers and tried to identify a
buttress a 'traditional India' which could serve as the foundation for
a colonial state.5
Before 1757, the Company had relied on both local authorities and
local custom to settle legal disputes. The Company was interested in
trade, and exercised only as little dominion as would insure a steady
profit from their business interests.6 Company officials interfered in
judicial proceedings only when trade was threatened. To the early
Company, 'rule of law' meant commercial order, and not Law in a
systematic, codified, and ordered sense. In 1673, the governor of
Bombay, Aungier, established panchayats or village councils, and gave
them judicial powers to decide 'cases amongst persons of their own
castes who agreed to submit the controversies to their arbitration'.'
In 1694, a Governor of Bombay gave a commission to a qazi 'to be
Chief Judge and decider of all difference that may happen in your
' Composed by Ghulam Yahya, Mullah Shariatullah, Mullah Taj ud-Din, and Mir
Muhammad Hussain in 1791.
5 C. A. Bayly, Indian Society and the Making of the British Empire (Cambridge; Cam-
bridge University Press, 1988), 76.
6 Asim Kumar Dutta, 'Why did the East India company recognize Hindu and
Muslim Law?' in N. R. Ray (ed.), Western Colonial Policy (Calcutta: Institute of Histor-
ical Studies, 1981), I: 173-
7 Panchayats are local councils of elders who oversee the religious life of a com-
munity and often serve as arbitrators. Dutta, 175-

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caste-the Moors [Muslims]'. Such multiple and parallel systems o

local justice did not bother the English in South Asia, well into t
eighteenth century. English judicial process was limited to the fo
and factories at Calcutta, Bombay and Madras, and was inten
only for royal subjects.8
As English merchants grew more actively involved with local polit-
ics, moneylending and trade, the facile separation between 'Engli
justice' and 'local justice' became useless. Intermarriage and t
employment of Englishmen by the Mughal court also problematiz
this ad hoc style of adjudication.9 Bayly describes the centers o
English trade as 'multi-racial corporate cities in which Indians w
justices, members of civic bodies and in which a variety of Mugh
officers retained honour'.'0 South Asians not only held respecte
posts as justices, but also must have been tried in English court
the new charter granted to the Company in 1753 mentions tha
Indians could have recourse to their own religious laws rather th
adjudication in the company's courts."
In 1757, the East India Company gained military control of Ben
as a result of the battle of Plassey.'2 At first, they saw this victo
only in terms of the expansion of trade networks by the Compan
'factories', and increased investment in the Company's army. But
their continuing political manipulations (such as diverting custom
money due to the Mughal court into the Company's private treasury
the Company was granted the status of 'Diwan of the Mug
Emperor' in 1765. This was a boon for the British, allowing the
to control the collection of tax revenue from the territory of Benga
However, it was also a burden, for the British were charged with the
civil administration of Bengal, including civil courts. For seven years
8 Asaf A. A. Fyzee, 'Muhammadan Law in India', Comparative Studies in Society a

History, 1963: 410. The Charter of the East India Company in 16oo gave the co
pany explicit right to make 'laws, orders, constitutions, ordinances, imprisonmen
fines and amerciaments'.
9 Marshall Hodgeson, The Venture of Islam (University of Chicago Press, 1974), 3;
2o9, documents the frequency of intermarriage and adoption of local custom such
as harems among British traders in South Asia in this early period.
10 Bayly, 70.
" This is the first official record of 'native religious law' in British sources.
12 Since the 1739 invasion of Delhi by Nadir Shah, Bengali Nawabs considered
themselves an autonomous administration. They combined the offices of Diwan
(treasurer) and Subhadar (governor) which had been kept separate during Mughal
ascendancy, but otherwise they followed Mughal administrative patterns and relied
on the Mughal heritage for legitimacy. Bayly, 19.

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the English did not act out their resp

Diwan, but rather continued to use the
trade advantages."3
Engrossed in amassing profits, Compa
to solve the complicated legal and po
developed due to their presence, up unt
Hastings. Appointed governor of For
decided to act out the role of Diwan.14 By
imize British power through the forms
ity; similarly he retained Persian as th
'The British were still wary of straying to
ered "traditional" forms','5 and Hast
Nawab Governor-General'. But Hastings
of that title were very unlike a Mugha
pany officers to spread into the hinter
lectors. He also ordered English office
settlement of disputes. In the 1772 Reg
basis for arbitration between Indians: o
of Hindus and Muslims to matters of
and religious institutions.
Their inheritance and succession to lands, r
of contract and dealing between party and
the case of Mahomedans [Muslims] by the l
dans, and in the case of Gentoos [Hindus] b
toos, and where one only of the parties sh
by the laws and usages of the defendant.16
The wording of these Regulations seems t

ent communities, yet it subtly introduce
which the ancient indigenous laws woul
lex loci, namely the experience and presu
'3 At this time the specie flow from Britain to

revenue collected under the Diwan of Bengal in
Britain, which had been failing since the early ei
14 In his own words, he would 'stand forth a
Endowments and Society in British India (Camb
106.
15 Ibid., 107.
16 Warren Hastings, Mufassal Regulations, 1772 (formally enacted as the Regula-
tions of 1780). Fyzee, 412. The 178o version was specified to read 'the laws of the
Koran with respect to the Mahomedans, and those of the Shaster with respect to
the Gentoos .. .' Bhatia, Political, Legal and Military History ofIndia (New Delhi: Deep
and Deep Publications, 1986), 8; 157.

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the Company who had been trained as civil servants.'7 In Hastings'
new courts, British officers would oversee the workings of qazis and
pandits; they retained the right to interfere and override, but seldom
chose to do so, at least at first. Yet gradually British judges under-
stood that they were empowered to apply Islamic law to Muslims. It
is this very situation that allows R. K. Wilson to define Anglo-
Muhammadan law as the endeavor by British magistrates to 'ascer-
tain and administer Islamic law' to Indian subjects. This endeavor
gave rise to an unprecedented political, legal and cultural situation.
Islamic polities had traditionally left each non-Muslim community
to administer its own law to its own members through its own spe-
cialists as long as the community maintained certain limits on public
religious practices and offered up financial compensation in taxes.
The Mughal polity never took up as a state project to administer a
community's laws to that community as superior to the native legal
authorities. Yet in eighteenth-century Bengal, the English found
themselves applying Muslim law to Muslim subjects of a no-longer
Muslim polity. This situation arose partly due to the accidental
repercussions of their financial profiteering in the matter of col-
lecting taxes, and partly out of a cultural adventurousness and pre-
sumptuousness that the English could fairly administer any law,
probably better than the very community whose laws they were. Just
after offering the above definition, R. K. Wilson admits the historical
and civilizational anomaly of this presumption of power: he describes
Anglo-Muhammadan jurisprudence as 'the special law, administered
as Muhammadan to Indian Muhammadans' which has become over
time very different from 'pure Muhammadan law' as administer
by Muslims for Muslims in other Muslim states.18
Under the pretence of continuing Mughal institutions, the Brit
reordered both legal and political structures. This contrasts stark
with the other contemporaneous Indian polities which broke wi
the Mughal empire, such as the Marathas and the Sikhs. These oth
Indian polities continued to gain formal legitimacy from the Mug
emperor, organized police and taxation along Mughal patterns,
17 The way lex loci is used here shifts the term from a legalistic meaning in
social science perspective. Lex loci refers to the law of a certain place, assumi
that a law will be applied depending on where the conflict occurred, and assum
only one system of law per land. However in colonial India, places were juxtapo
and British experience steadily displaced Mughal custom as the primary lex loc
18 Roland Knyvet Wilson, Anglo-Muhammadan Law: a digest. (fourth edition Londo
W. Thacker and Co, 1912; first edition published in 1895), 50.

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even continued to patronize important Muslim shr
they attained autonomy, they continued the Mugh
project. The British, however, did not allow this
political administration to simply persist. During
of Warren Hastings, his overriding concern for o
cracy was tempered with the need for Mughal
instance, Hastings desired that British magistrate
with indigenous courts in order to 'supply the deficie
the irregularities' in Islamic sentencing. Yet he justif
ence on the grounds of siyasa, the political right of M
side-step the formal procedures of Islamic fiqh.20
The two sources of legitimacy, Mughal and En
remain balanced for long. After 1784, the Compa
service, consisting of professionals to staff the grow
Hastings also established educational institutions
such servants, both Indian and English.21 The teach
cational institutions were the first generation of
their primary project was to compile and transla
Codes for use by British officers.
By 1790, the Company had militarily conquer
Bengal, assuming the right of Nizamat (executive p
of criminal courts) as well as the right of Diwan.22 N
19 Bayly, 22.
20 Siyasa is the concept which ordered law, state, and social in
South Asia. Such an ever-present social ethos is bound to be s
ize. Siyasa is commonly translated from Arabic, Persian and
such a simple equation is misleading. Siyasa is more specifically
ation, of finding resolution to a problem through manipulati
tionships between people or groups. Siyasa is more a type of
ethos, rather than a system of politics. Al-Azmeh argues tha
operandi of power that is presupposed, rather than the field of
commonly understood as 'politics'. He analyses the term siyas
classical political texts of the 'mirrors for princes' genre, such
and Abu Ya'la, and extends the concept of siyasa even farthe
the medieval period which it supposedly typifies. He portray
element in the very genesis of shari'ah as a religious ideal, as r
ings of Ibn Muqaffa' in the early Abbasid period. Aziz al-Azmeh
isms (New York: Verso Press, 1993), 91. Thus by citing 'siyasa
to intervene in juridical affairs, Hastings actually began the lon
the siyasa of Islamic law which allowed its multi-centered pr
application.
21 Examples include the Calcutta Madrassa, established in 1781 by Nathaniel
Brassey Halhead. See Bayly, 76.
22 There existed two parallel court structures in British India: the Company
courts staffed by officers of the East India Company, and the Presidency courts

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officially conferred on the English; they simply assumed it and broke
with the practice of justifying their presence through Mughal
grants.23 They debated the legality of this acquisition with reference
to the Company's Charter through Parliament, rather than to rela-
tions with the Mughal court; this is direct evidence of a new lex
loci in play. Governor Cornwallis acted on the assumption of British
Nizamat and established criminal courts, over which British magis-
trates presided. In contrast to the civil courts, British criminal magis-
trates took much wider powers to encourage prosecution and punish-
ment, for they perceived a 'law and order' crisis.24 In the criminal
courts, indigenous jurists were relegated to the role of 'court officer'
who assisted the magistrate, if he asked for assistance. This pattern
dominated the criminal courts, and slowly became status quo for civil
courts as well.
The pattern was to remove 'native agency' and set up a govern-

ment and judiciary system which was increasingly separate from the
Asian population. Cornwallis
sought to remove Indians from all but minor offices, to remove Company
servants from the corruption of 'dubashism' and to demote the people of
mixed race who had hitherto been an underpinning of European power in
the Orient.25
The language of Company regulations reflects the movement of Brit-

ish magistrates from a position of co-operator to supervisor, and from
supervisor to superior. In addition to strictly administering indigen-
ous Law Codes, judges were increasingly advised to appeal to some
notion of 'natural law'. The most common formula was to act 'accord-
ing to justice, equity, and good conscience'.
which were administered directly by British government representatives in Cal-

cutta, Bombay, and Madras. This paper focuses mainly on the Company courts
because through the conquest of Bengal, the Company courts expanded their juris-
diction to the whole of Bengal, Bihar and Orissa, and from there to most of India
(while the Presidency courts' jurisdiction was limited to the three principal cities).
In 1864, the two systems were combined on the pattern set by the Company courts,
and the Presidency courts were disbanded.
23 Fisch, Cheap Lives and Dear Limbs: the British Transformation of the Bengal Criminal
Law, (Wiesbaden: Franz Steiner Verlag, 1983), 4-
24 Ironically, the cause of this 'law and order' crisis is precisely the establishment
of a colonial state. The distance between ruling power and local population encour-
aged criminal activity, for the political-judicial structure was just a fagade which
did not represent real power. The instability caused by the British redefinition of
land-ownership also heightened criminal activity. Fisch, 32.
25 Bayly, 78.

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Even Fyzee (a genuine admirer of A

admits that the meaning of this formula
but came to mean British notions of 'just
by British jurists.26 In the guise of prese
opened the floodgate to conceptual inva
tions and utilitarian ideals. Very few ju
technical application of English laws in
was far more complicated. English assu
rather than English rules, framed the tec
law and guided how rules were applied, th
itself. In fact, by the close of the eightee
call Indian law 'Islamic'. Rather the hy
'Anglo-Muhammadan' is more accurate. Fy
definition of the Anglo-Muhammadan sys
of Islam, which is received in India, and w
changing social conditions prevailing in th
ciples of English law and equity'.27
Muhammadan' captures both the Orien
Islamic law, and its gradual buttressing b
II. The Necessity of Deceptive Defer

Nothing could be more obviously just than
according to those laws which the parties
as the rules of their conduct and engageme
severally hold sacred ... and which they m
on them by a spirit of rigour and intoleran
I have never seen any European whom I thoug
ledge of the language and the people, to a
given before him.-Thomas Munro29
2" Fyzee, 412.

27 Fyzee, 413. The definition is useful, if separated from Fyzee's own biases. He
claims that the label 'Muhammadan law' is apt and we may disregard those who
speak of 'Islamic law' as purists; in dealing with colonial uses of 'Islamic' law, Fyzee
is ironically correct. However, he also adds to the end of his definition that Anglo
legal concepts are only applied to Muhammadan law 'so far as they conduce to
justice'. This point is highly debatable, especially in the light of recent historical
work by Kozlowski and Fisch.
28 Sir William Jones, Letter to the Governor-General and Council of Bengal,
March 19, 1788. As quoted in William H. Morley, The Administration of Justice in
British India: its past history and present state (London: Williams and Northgate, 1858),
193-
29 G. R. Gleig, The Life of Major-General Sir Thomas Munro (London: 1830) as
quoted in Rudolph and Rudolph, The Modernity of Tradition: political development in
India (Chicago: University of Chicago Press, 1967), 260.

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The British preserved indigenous law because their early colonial
state was in a precarious position. For revenue, they relied on the
co-operation of zamindars, a class of large landowners.30 Although
in practice the British changed the Mughal policy of land-ownership,
on the surface they had to appear legitimate like other Mughal-
derived states, by using Mughal titles. This legitimacy was essential
to ward off insurgency and resistance. By saying that Muslims were
'governed' by Islamic law, the British literally erased the fact that
they had displaced Mughal suzerainty. In reality the British 'gov-
erned' Muslims (and Hindus) in India; however, they created a rhet-
orical continuity which legalized British supremacy. To blur the dis-
tinction between Mughal and British rule, the British presumed that
they could administer Islamic law as easily as Mughals, if not more
justly. Fyzee repeats this presumption by stating that the Mughals
first instituted the policy of state-administered religious law codes
and suggesting that the British were following established norms.31
Despite its rhetoric, the Company was not the same sort of state as
the Mughal powers it displaced. 'The range of the Company state,
its monopoly of physical force, and its capacity to command resources
from a peasantry now increasingly disarmed, set it apart even in its
early days from all the regimes which had preceded it.'32 The reforms
of law and of property are major fields in which the new state exer-
cised its power. The two reforms are interwoven, for the law defines
and enforces property.
British courts did not operate separately from the political eco-
nomy of the expanding colonial state. This economy consisted in the
collecting of taxes from private landowners, whom the Company had
recently established; the power of this system was that if landowners
did not collect taxes, their land could be easily liquidated or
indebted. Under Mughal administration, access to the royal court
had defined wealth and status. Assets were characteristically collect-
ive and fixed: land was inalienably vested in families or lineages and
was transferable only by inheritance within the blood line. However
the British administration made possible the private ownership of
land and insured its conversion into capital. 'British administration
created an innovative connection between land-ownership and tax
collection-if a zamindar under the British failed to collect the
3o After the British commodified property, the zamindar class consisted of both
Muslim and Hindu families.
31 Fyzee, 403. He ignores the fact that although the Mughals recognized Hindu
jurists, they never coopted the practice of Hindu adjudication.
32 Bayly, 1o8.

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amount of tax demanded, his land mig

the highest bidder.'33 Under British
became mobile, alienable by individual
commercial transactions or through wil
Retaining indigenous 'law codes' allow
these changes in property ownership.
one code off the other in order to carv
British officers to adjudicate conflicts
Regulations of 1832 provide a good exam
law.
In any civil suits, the parties to such suits

... the laws of those religions shall not be
such party or parties of any property to w
laws, they would have been entitled. In all
governed by the principles of justice, equit
clearly understood, however, that this pro
justifying the introduction of the English
cases of any rules not sanctioned by those pr
British concepts and personnel are the

all conflicts between religious groups,
over property." The very paragraph wh
crum obscures it, for the Regulation
method of application is being introdu
conscience' are ciphers for English j
behind the formal fagade of the law's
The rise of waqfgrants among wealthy
India demonstrates the effectiveness of
ownership. A waqf (plural awqaj) gra
established by wealthy families to supp
educational institutions; revenue from
heirs of the waqif (grantee), a process wit
for inheritance."37 As land became
" Bayly notes that these two types of property

were always kept separate in Mughal administr
3 Rudolph and Rudolph, 279.
35 Bengal Regulations of 1832 as reproduced i
36 The transfer of land from Muslim to Hindu
ownership. Sometimes wealthy Muslim families
collect the required taxes, but the predominant t
3 These standard rules are derived from dire
(ahkam qat'iyyah). Kamali, Principles of Islamic
Text Society, 1991), 21.

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unstable one since it was tied to tax collecting responsibilities,
wealthy families searched for alternative ways to secure their family
wealth in land. A British officer in 1870 wrote that in retrospect,
The greatest wrong which we did to the Mussalman aristocracy was in
defining their rights [that private ownership equals taxation responsibility].
Up to that period their title had not been permanent, but neither had it
been fixed ... we gave them their tenures in perpetuity; but in doing so,
we rendered them inelastic.38
Many families tried to find both flexibility and permanency by con-

verting their land into awqaf; this would support their family in per-
petuity and avoid the British institution of private property and the
state control it represented. The beneficiaries of a waqf own the
produce of the land, rather than the land itself; therefore awqaf, by
their very nature, opposed British jurisprudence and its politico-
economic goals.39
Ignorance of language and custom was another reason for the Brit-
ish to preserve Islamic law in Bengal. They understood that qazis, and
other local authorities, were instrumental in keeping the peace, and
that English judges were not recognized at the local level as equivalent
authorities. The language barrier made even determining facts in a
case problematic, for although texts were accessible through scholarly
translation, spoken witness was not. Because their language and
experience were so removed from the local population, English magis-
trates had a difficult time separating verifiable witnesses from false
ones. To compensate for this weakness, they administered a special
punishment for perjury: branding the forehead.40 At least through the
end of the eighteenth century, qazis acted as essential filters, through
whom the British could understand the facts of a case.41
III. Translation and Codification
From the labours of a people, however intelligent, whose studies hav

confined to the narrow circle of their own religion ... and whose discuss
38 Kozlowski, 37.
39 Because of this inherent challenge, the legitimacy of awqaf was challe
through the machinery of Anglo-Muhammadan law, as discussed in section
this study.
40 Fisch, 53. Branding of a 'perpetual stigma' was in addition to possible corporal
punishment and imprisonment. The amendment enacting these measures was
included in Regulation 17, 1797.
41 This task of the court officer was especially important in a system which did
not sanction independent lawyers for representation.

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in the search of truth have wanted that liv

from the free exertion of the understanding
a perfect system of jurisprudence cannot b
As legal texts were translated, Company

trol over the actions of local qazis. Tran
which to question the legitimacy of qaz
de facto authority to restructure the co
of creating a new system of law for Beng
ist dynamics. British scrutiny of Islami
dynamic: first, the British assumed tha
which they could administer, and second,
they assumed the right to alter legal pr
Through this dynamic, the British jur
'substantial rationality' into a more 'fo
recognized as a real system of law.
To administer the Diwan, the Compan
ideology through which to rule; therefo
They assumed that India was inhabited
ancient and discrete; furthermore, these discrete communities
rigidly and ritualistically followed their own law in all matters of
social custom, religious duty, and commercial transaction. The
Orientalist-educated members of the Company decided that, in
'Shari'ah' and 'Shaster', they had found the necessary codes. How-
ever, this decision was no mere capitulation to local custom, because
these codes were essentially religious in character.
The Mussalman code has been the standard of judicial determination
throughout those countries of India which were subjugated by the Moham-
madan princes, and have since remained under their dominion ... as an
invariable principle of all Mussalman governments; namely, a rigid and
undeviating adherence to their own Law.43
The British further assumed that all Indians acted out of inherent
religiosity and orthodoxy, so the codes of religious law were sufficient
to adjudicate in all their crises.
There were two distinct types of 'codification' in the actions of the
colonial administrators. The first was conceptual and the second was
textual. On the conceptual level, the British viewed the whole of
Islamic law as a code. They imagined it to have been already com-
42 Warren Hastings, Proceedings of the Governor and Council at Fort William, repres-
enting the administration ofJustice amongst the Natives of Bengal, 1774, 35-
43 Hamilton, as quoted in Fyzee, 402.

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pletely codified in the remote past and ready to be simply a

On the textual level, they advocated the project to technically
duce this 'code' in one comprehensive text that would apply t
lims as a single, discrete community. The British never ach
codification in the textual sense; although they naively tried
technical codification is virtually impossible. However, the p
position that Muslim law is a code underscores the whole en
of English judges to understand it and apply it. And their assert
this conceptual codification totally shaped their approach to
jurisprudence.
At the inception of Anglo-Muhammadan legal process when qazis
were attached to the English courts, the colonial government
announced the need to publish law codes of Islamic (and Hindu) law,
to shift power from the local legal experts into the further control
of English experts.
While immediate relief to perplexed European judges was afforded by
attaching learned Maulwis and Pandits to every Court, civil and criminal,
whose fatwas were in general to be accepted on all points relating to those
respective laws, the policy was announced of compiling as soon as possible
English Codes of Muhammadan and 'Gentoo' laws, based on the Arabic and
Sanskrit authorities.44
The role envisioned for these law codes was to replace the human
and untrustworthy authority of native experts, the 'Maulwis and Pan-
dits'. In general, this was the role of a secondary body of texts, the
case proceedings, and the role of the first generation of translation-
codifications. However, the first generation of texts was instrumental
in limiting the purview of the qazi to subordinate his decision to the
case-framing of the English magistrates. This dynamic allowed the
body of case proceedings to build up into a solid framework of
precedent.
Having decided to 'ascertain and administer' Islamic law to South
Asian Muslims, British jurists were struck with the perplexing prob-
44 Wilson, 48. Hindu law was treated by the British in a parallel manner to their
treatment of Islamic law. However, the case of Hindu law is slightly simpler, since
a Hindu government was not in power as the British usurped political authority in
Bengal. Further, Hindu legal sources did not have the patina of systematization
that the Islamic sources had. The parallel story of the British codification of Hindu
law is fascinating and has been dealt with much more thoroughly than the case of
Islamic law. For reference, see especially J. Duncan M. Derrett, Critique of Modern
Hindu Law (Bombay: N. M. Tripathi, 1970) and Wendy Doniger, 'Rationalizing the
Irrational Other: 'Orientalism' and the Laws of Manu' New Literary History (vol. 22,
1992).

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lem of where and how to ascertain wha

lated two strategies to address this pro
the naive assumption that Islamic law w
in an authoritative text. This first stra
to translate and codify Islamic legal te
forthcoming, but qazis were limited to
court process where qazis were 'native
'fatwas' based on these texts. The earlie
entalists claimed to simply 'find' the la
they went to considerable difficulty to
this role. One text, the Hedaya, forms
Muhammadan law.45 Charles Hamilton translated the text at the
request of Hastings, after a board of scholars first translated
Arabic into a Persian edition,
which would answer the double purpose of clearing up the ambiguitie
the text, and, by being introduced into practice, of furnishing the na
judges of the Courts with a more familiar guide, and a more instruc
preceptor, than books written in [Arabic] a language of which few of them
have opportunities of attaining a competent knowledge.46
From the Persian, Hamilton rendered an English version.47 Not

were the translations of political and practical use, but in the proces
of translation itself, contradictions and subtleties were excised f
the original text. Although Hamilton scolded Bengali Muslim jur
for not reading the original in Arabic, he lauded them for clarifyin
the ambiguities of the original. Thus, Hastings did not just fin
text. He created one.
The Hedaya alone was insufficient as a basis for Anglo-

Muhammadan law because it did not discuss the subject of inherit-
ance, a subject which the British deemed necessary in their quest
to define property outside of Mughal practice. Therefore William
Jones was commissioned to translate the Sirajiyah,48 again through
the medium of a Persian translation. This literal translation was 'too
" Al-Hedaya was originally compiled by Burhan ad-Din Ali al-Marghinani (died
1196 CE/ 593 Hijri), allegedly from the earlier work the Mukhtasar of al-Kuduri
(died 1036 CE/ 428 Hijri).
46 Charles Hamilton, Hedaya or Guide: a commentary of the Mussalman Laws (reprint
Labore: Popular Press, 1957), Preliminary Discourse, xliv.
7 The Persian version was published separately in 1807.
48 Originally written as Fara'id as-Sujawandi by Siraj ad-Din Muhammad Ben 'Abd
ar-Rashid as-Sujawandi (died 1411 CE/814 Hijri). The English translation was first
published in 1829.

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obtuse' for use in courts, and was superseded by Neil Baillie's

on the system of inheritance which he wrote in English.49
British magistrates had very little patience for translations
followed the original too closely and did not 'render a very i
subject perfectly intelligible'. They looked instead for a 'well dig
Code of Laws'.50
The only way of avoiding quibbles, chicanery and the evils arising from
misplaced and selfish ingenuity is to make the law which is to be adminis-
tered so clear, short, precise, and comprehensive, as to leave the least pos-
sible scope for the exercise of those unamiable qualities.51
In fact, magistrates had little patience for cross-referencing texts at

all. As Morley admits, after documenting the titles of influential
legal texts for sixty-five pages, 'It is only a few of these that are
quoted in the Courts; the Hedaya and its commentaries, illustrated
by the books of Fatawa, generally sufficing to satisfy the Judges, and
to offer sufficient grounds on which to base a decision.'52 Sparked
by the prominence of Orientalist scholars in their ranks, the early
leadership of the Company felt an enthusiasm for these texts, and
admired indigenous laws as sophisticated and comprehensive. How-
ever, they mistook a limited portion of the juridical resources of each
community to be the entire, immutable code. And then through prac-
tice, they forged this mistake into a reality.53 In this way the British
colonial authorities created very new legal texts under the guise of
simply 'translating' the books already codified by Muslim jurists.
However, these texts were insufficient and did not add up to a
code as envisioned at the outset. Magistrates and administrators
49 Neil Baillie, The Moohummudan Law of Inheritance according to Aboo Huneefa and his
Followers (Calcutta, 1832). As quoted in Morley, 305-
50 Warren Hastings, Proceedings of the Governor and Council at Fort William, 33.
51 James Stephen, as quoted in Anil Chandra Banerjee, English Law in India (New
Delhi: Abbinav Publications, 1984), 160.
52 Morley, 294. And Morley is one of the most knowledgeable about Arabic
sources to write on the subject of Anglo-Muhammadan law.
" The development of English canonical texts of the Hindu 'Dharmashaster',
published by Nathaniel Brassey Halhead, shows a parallel (if not more dramatic)
development. First, a code had to be written out in Sanskrit by a elite group of
Brahmins, whose interpretation was only one out of many local varieties. Secondly,
a translation was made into Persian, and from that into English, published in 1774
as A Code of Gentoo Laws. English practitioners, among them William Jones, were
grateful to see that the section on Inheritance was 'copious and exact', and that the
section on Contracts was discussed 'very succinctly and superficially'. The digests of
Colebrooke and Duncan were likewise based on oral testimony of Brahmins in a
single city, Nadia and Benaras respectively.

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thus evolved a second strategy in order

fication. This strategy was more subtl
Wilson, 'more characteristically British
lish the decisions of these Anglo-Muham
of court proceedings.55 The first of these
by Macnaghten as Principles and Precedent
trast to the idea that codifications wo
simply 'found' in Muslim texts, this t
publish precedents of how Islamic decis
courts. Islamic law had previously been fr
However, in its Anglo-Muhammadan fo
increasingly bound by precedent. And
formity to decisions that 'indigenous code
The Orientalists' assembly of these tex
fiqh into a new language, but also t
rational' legal system into a 'formally
descriptive terms are borrowed from M
a more prescriptive way than they will
shari'ah is substantively rational becaus
rulings are extracted from a sacred sou
and a single telos, both unified by relig
telos encapsulate and unite all the confl
extracted by traditional Islamic jurists t
tions of usul al-fiqh.56 'Islamic law, as t
its formative and later periods an eclectic
to its immediate social context ... the ra
substantive rather than formal.'"5 In cont
are based on abstract rules of jurispru
extra-legal sources to give these rules just
51 Wilson, 48.
55 By 1843, the proceedings of the Sadr Diwa
Calcutta and Agra were being published monthly
reporters were regularly attached to all courts.
56 From this viewpoint, it becomes especially
more) legal methods [madhhab] as methodologi
'sects'. Varying methodologies can arrive at contr
single source, a single goal, and a single religious
the rational principles of deducing the law from
the content of those decisions themselves, which
of the principles applied to a case.
57 Bryan Turner, Weber and Islam: a critical stu
Paul, 1974), 119.
58 Turner, lo9 as quoted from Weber, Economy

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ally rational law, there can be only one way of enacting the
the present, but there can be many sources for the law, su
precedent from past cases, custom, natural law or reason. F
rationality allows the jurist to dispense with a transcendent
or a teleological justification for decisions.
These typologies are useful, but the historical situation is far
confusing than the typologies will admit. Despite Weber's cla
tion of Islamic law as 'substantively irrational', English and
court structures had much in common.59 In fact they resemble
other more than they resembled Anglo-Muhammadan courts.
the last half of the eighteenth century, the practice of law in E
was not yet modernized and centralized. Although it became
ally more professional, this process was not fully complete
time the British had begun to experiment with jurispruden
India.
Common law was still a separate legal entity administered in its own courts.
Well into the nineteenth century, equity, admiralty and ecclesiastical laws
maintained different establishments. But the movement toward greater
centralization was well under way. Therefore, in creating specific jurisdic-
tion for Indian courts, in gradually increasing the educational requirements
of legal practitioners and in seeking to collect definite codes of Muslim or
Hindu law, British officials had a model in the experience of their own
society.60
In this passage, Kozlowski paints a contradictory picture. In Britain,

the solidification of royal power centralized law very slowly, and
never erased the jurisdictions of ecclesiastical or admiralty courts.
Yet even as these multiple courts persisted, there was a tremendous
generational shift and leaders in the new generation gave centraliza-
tion a new impetus, and a markedly modern character.
59 Islamic law was far more rationalized than Weber assessed. Although Weber
did not recognize it as rationalized at all, the Islamic law is actually a 'substantively
rational system' under his own schema of typologies. It thus bears direct comparison
with other rationalized systems. It is probable that Weber was blinded to this fact
by orientalist depictions of Islamic judges and their 'arbitrary' decisions. These ori-
entalist images of arbitrary decision-making were part of a whole network of iamges
that orientalists used to describe Islamic societies as riddled with tyranny, irration-
ality, and abuse of power. Clearly, these images originated in the colonial expansion
of Western powers, and Weber's writings are enmeshed in this orientalist project.
In an attempt to explain the power of Western expansion, Weber had argued that
the formal rationalization of English law led to the development of a capital-
centered economy. In reality, England's economy developed in capitalist decisions
before law was systematized-one could argue that the demands of capital owner-
ship fueled changes in jurisprudence, rather than the converse.
60 Kozlowski, 127.

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This 'astonishing generation', as Hodgeson lab
nessed the French and American Revolutions, the
steam power, and the establishment of European
world-wide scale. Defensive reactions against the
spurred their proclivity for rational thinking and s
One must not be fooled into assuming from the lo
tone of British administrators in India that Eng
sessed a rational, orderly, egalitarian, and effecti
which trained them to be decent arbiters in any
tion earlier, Company agents like English jurists,
tiple, localized systems of judicial administration.62
ish institution of Common Law in its modern form
at exactly the same time as the East India Compa
India. For example, in England chairs of law were
Oxford and Cambridge in the 178os.63 However,
were more interested in their London practices th
legal theory or training students. Not until the refo
lectureships and examinations required at the In
then, the Colleges in India were considered more
tematic in legal education than those in England
In both places, a centralized state provided the
formalized law; the state's main task is legislatio
endeavor to change and model the surrounding s
bureaucracy in order to increase technical efficien
The very institution of a legislature-an assembly whos
not simply to grant taxes, nor even just to appoint a
decide on current policy ... but to meet regularly
reflected the degree to which conscious innovation lay
new social order. [In previous governing institutions] t
sometimes changed ... but the whole purpose of social
obviate or at least minimize such change.64
In fact, the Company officers had an easier tim

leagues in England. They exercised legislative pow
only gradually identified as such) without th
machinery of an assembly which represented the su
6' Hodgeson, 2o5-

62 In England this took the form of a dual jurisdiction betw
and ecclesiastical courts; religion and civil orders did not h
through hierarchy. Dutta, 178.
63 Kozlowski, 120.
64 Hodgeson, 193-

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tially resistant forces of other social-religious institutions. T

reformers of this generation were more successful in Bengal than
England.
There were two major legal philosophies in circulation at this
time. The Whig position conceived of law as built on accumulated
experience, with an aim to promote private rights in property, espe-
cially land, in order to prevent encroachment by the state. The Utilit-
arian position, advocated by Mill and Bentham, denounced experi-
ence piled on top of experience as 'groping blindly in the dark'.
Instead they demanded a systematized, hierarchical legal structure.
Utility-minded reformers criticized both English and Indian systems
of jurisprudence, but were more able to formalize codes of law in
India, where power was already in the hands of a few, and arbitrary
government could overpower opposition. Although Whigs and Utilit-
arians were in conflict in England, these philosophies were freer to
overlap in South Asia; the same series of Regulations by the colonial
state established private property in land and rationalized the admin-
istrative system.
Concepts outside of legal philosophy also shaped the opinions of
this generation of Company officials. India appeared to them as an
administrative tabula rasa, and their presence seemed a great experi-
ment in implementing utility and order. Beginning with the gov-
ernorship of Hastings, bureaucratic order imposed the 'rule of law'
both within the company and projected it outward into the sur-
rounding colonized society. ' "The Rule of Law" in the place of the
"Rule of Men" is the constantly repeated ideal of British law; an
ideal which the British considered fit for export to India.'65 The shift
of emphasis from 'men' to 'law' was fuelled by the creation of institu-
tional courts which were unrelated to the local society over which
they ruled, unswayed by local conflicts and uninformed by local condi-
tions. This dynamic was a great change from the earlier laissez faire
attitude of English merchants in India.66
As a contemporary observer, one must not imagine that the Com-
pany reformers were building a 'new' England in India. Many Com-
65 Kozlowski, 1 1 1.
66 The trial of Hastings presents a fascinating illustration of the new concern for
Order. Hastings was trapped between opposing forces on this issue. Local British in
Bengal resented his reforms which sought to rationalize the company's bureaucracy
and spread that order into the surrounding society; some of his fellow officers in
the Company brought him to trial from 1788 to 1795. British opinion in England,
however, attacked Hastings for personal arbitrariness and tyrannical control over
company resources.

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pany leaders were frustrated by English law,
to impose such a morass of rules 'over the
Rather, their aims were more utopian; they
ralized state the likes of which existed in neither India nor the Brit-
ish Isles. The authors of the Regulations perceived
the necessity of investing the mufassil [local district] courts with their resid-
ual jurisdiction, of making them subject to a system of law which, while not
being English law, provided a fair standard which the Supreme Court could
apply to them, giving them at once protection, security, and a measure of
subjection to control.67
Such a hierarchical reform of court structure would have been

impossible in England at that time. However, colonial politi
power, cultural separation, and Orientalist assumptions allo
them to execute arbitrary changes with little sympathy for res
ance. In the minds of the reformers, 'India' would be a mirror o
England: India constituted the nemesis of English rationality, ye
was also the arena in which this new class of civil servants could
fulfill its urge toward centralization and order.
A description of the project to rationally order society is not
explanation of such a project's origins. Weber tried to trace th
origins by arguing that Europe's development of a formally rati
legal system was integral to the development of capitalist econo
ics.68 The converse of his argument is that Islamic law is not ration
ized and therefore impeded similar developments.
The sacred books of the Hindus, Muslims, Parsees, and Jews ... treat l
prescriptions in exactly the same manner that they treat ceremonial
ritual norms. All law is sacred law. The dominance of law that has been
stereotyped by religion constitutes one of the most significant limitations
on the rationalization of the economy.69
In this passage Weber draws a causal link between religion and the
systemization of law and economy, through the medium of 'religiou
67 J. Duncan M. Derrett, Religion, Law, and the State in India (London, 1968),
138.
68 In Weber's view, the reform of law also depended on an inner-worldly ascet-
icism. 'An unbroken unity integrating in systematic fashion an ethic of vocation in
the world with assurance of religious salvation was the unique creation of ascetic
Protestantism alone ... This inner-worldly asceticism had a number of distinct con-
sequences ... an alert, rationally controlled patterning of life ... the clear and
uniform goal of this asceticism was the disciplining and methodical organization of
the whole pattern of life ... its unique result was the rational organization and
institutionalization of social relationships'. Max Weber, Sociology of Religion, 183-
69 Weber, 208.

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ethic', or the religious person's theoretical attitude toward the world

This passage claims that all religions based on 'stereotyped' system
rather than on internal religious faith, provide no ethic, meaning n
interface with the surrounding fields of economy, law or politi
Weber asserted that a sacred law like Islamic law
results in the unmediated juxtaposition of the stereotypes' absolute unalter-

ableness with the extraordinary capriciousness and utter unpredictabili
of the same stereotypes' validity in any particular application. Thus i
dealing with the Islamic Shari'ah it is virtually impossible to assert what
the practice today in regard to any particular matter [because] all sacre
laws and ethical injunctions have a formal ritualistic and casuistic
character. 70
Weber's argument does not hold up if set in the context of Mugh

administration of Islamic law. Fisch documents how the Mughal
administered a substantively rational system of law. Their k
innovation was the distinction between extraordinary justice an
ordinary justice.71 Day-to-day affairs were guided by custom and gov
ernment procedure; however, for certain offences, the shari'ah w
invoked to guide decisions. This duality is illustrated by the two type
of punishments, hadd and ta zir: the first is required by scriptu
while the second is discretionary depending on the qazi and gover
ment policy. Shari'ah was not limited to theory. It was applied t
practice, but in a system consisting of two coexisting types of la
Most importantly, this dual system allowed room for the jurists
continually address new situations according to the practice of fiq
The mufti was allowed to continue the project of fiqh, to search f
religiously appropriate modes of behavior, rather than being limit
to the application of formal rules to crimes or conflicts.72
Codification was therefore a very complicated process. The earl
work in translation failed to produce the desired results. Howeve
by subtly restricting the native judges, these translated works
Islamic law allowed the Anglo-Muhammadan courts to build up a
thick bulwark of precedent. This eventually led to a more unifor
70 Ibid.
"7 On this crucial point, Fisch follows the schema of Tyan and contradicts the
schema of Schacht, which separates shari'ah as theory from Siyasa as practice. Emile
Tyan, Histoire de l'Organisation Judiciare en pays d'Islam (Leyden, 1960), 446-51, and
Joseph Schacht, An Introduction to Islamic Law. (Oxford: Oxford University Press,
1964), 69.
72 Although Muslim jurists did insist on applying exactly the few rules (the hudud)
stated in the Qur'an, most of their time and energy was devoted to translating the
ethical guidance of Qur'an and example of the Prophet into behavioral norms.

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pplication of decisions which were enfor

being the natural decisions of 'Islamic Law
a practical codification even when formal
ible to produce. The results of such subtle
ranging.
IV. Ramifications of Mughal Laws, Natural Law and a Modern

Legal System
Justice, equity and good conscience ... Practically speaking these attractive
words mean little more than an imperfect understanding of imperfect col-
lections of not very recent editions of English text books.-J. F. Stephen73
The formal rationality imposed by British expectations and needs

could not exist in such a dual system. The theoretical shift from a
substantially rational to a formally rational ideology of law wrought
great changes in the local courts. Dividing substantive law from pro-
cedural law provided the means of creating a formally rational
system. The indigenous codes provided the substance of the law, and
the British state provided the procedure which administered this
substance. Despite the Company's early rhetoric, the British did not
simply step into the enforcing role vacated by the Mughal-patterned
Bengali Nawabs. The procedure through which the shari'ah was
implemented subtly enframed and reshaped the content of Islamic
jurisprudence. A system of law cannot be divided between substance
and procedure and retain its former character and use.
English jurists justified changes to procedural law through the
'doctrine of siyasa'74 and through legal sources themselves, especially
through the phrase 'Justice, Equity and good Conscience'. This
phrase was first used in government regulations which encouraged
magistrates not to impose the technicalities of English common law,
but rather co-operate with qazis to find a culturally appropriate
expression of the law. These regulations were nothing more that
inter-Company recommendations. However, the phrase took on an
active life of its own that swelled its importance. Later Regulations
repeated the phrase, and eventually administrators recorded it into
" F. C. Stephen, Law Commission, 31 March 1871, as quoted in Fyzee, 413.

74 The concept of siyasa allowed the discretion of the politically dominant group
to shape how punishments should be administered. The British claimed that if the
Mughals before them had executed siyasa in practice, then the British were justified
in altering procedural laws.

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a statute from where it passed into common usage in the courts.7

The phrase was first used in jurisprudence to describe the proced
ure judges should follow outside of the Company's scanty positive law
directives. 'That in all cases, within the jurisdiction of the Mofuss
Dewannee Adaulut [civil courts], for which no specific Directions ar
hereby given, the respective Judges thereof do act according to Just-
ice, Equity and good Conscience."'7 This procedure would become
relevant especially when English magistrates administered Islami
law, about which the Company's positive law had very little to say
This allowed magistrates recourse to English procedures, eve
though they were ostensibly administering Islamic law. There was
strong elective affinity between 'justice, equity, and good conscience'
and the rule of English procedures in the minds and hearts of British
judges.
The phrase was easily reversed to justify English procedures:
Derrett explains that the intention 'was that if an English rule was
applied, this was to be because it happened to be an expression of
justice, equity, and good conscience'." Especially in the nineteenth
century, English rules dominated the application of Islamic law. The
East India College at Haileybury taught young civil servants English
law and the 'principles of universal jurisprudence', but nowhere men-
tioned that Islamic law was anything but a previously codified system
of substantive law. In this way, during the two decades from 1781
to 18oo, they enacted the bifurcation of substantive and procedural
law.
The Mughal system of procedure became an object of British criti-

cism in order to justify their taking up administrative and punitive
authority. At first, they criticized the Mughals for arbitrary and
unsystematic application of the shari'ah. Later, they penetrated
deeper to accuse Mughal procedure of not following the letter of
their own shari'ah. They typified Mughal courts as lenient, careless,
and ineffective; if the text spoke of hudud punishments, the British
could not imagine why they were not always applied.78 Not only were
textual sources given exclusive priority over former practice, but the
75 Derrett, 142.
76 Regulations for the Administration ofJustice, 1781 as quoted in Derrett, 133.
77 Derrett, 142.
78 Hudud punishments are those specified in the Qur'an: for theft, highway rob-
bery leading to murder, adultery, and the false accusation of adultery. However, the
Prophet Muhammad himself set the precedent for not applying Hudud punishments
if there were any social or legal way to avoid their application.

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use of selected texts blotted out the rel

tradictory textual sources. This was
through ignorance, and through self-cons
which would work in an impersonal w
effect of translation and new rules of
out discrepancies between [and with
instance, in translating the Hedaya, Ha
why Abu Yusuf and Imam Muhammad
contradicted their 'master', Abu Hanifa
'irregularity' Hamilton suggested the po
opinions of the students above the opin
The British translated Islamic texts, b
policy or philosophy of Islamic legal pr
multi-levelled application of textual pr
the texts which the British chose as authoritative.8' The British
ignored the Mughal practice of two parallel procedures-ordinary
justice and extraordinary justice. Rather they collapsed all the
dimensions of Islamic juridical thought into one monolithic, textual
shari'ah which was both apparent to their cognition and useful to
their needs. The result was that a conceptual translation followed
the simpler linguistic translation of texts.
British judges affected great changes in Islamic law due to their
conceptual translation of juridical terminology. An assumption about
the nature of law led to a presumption of equivalence between terms.
This equivalence was made concrete through a definition which was
commodified through publication and teaching.
Following the supposition of an essential similarity between the two
['shari'ah' and what British judges called 'law'] judges made a series of
further terminological connections. They identified the Qur'an, the
example (sunnah) of the Prophet and the writings of Muslim religious
scholars as the 'sources' of Muhammadan/Muslim law. Scholars of shari'ah
[from the eighth and ninth centuries CE] became 'legal authorities', the
Muslim counterparts of Coke and Blackstone. Treatises written by these
79 Fyzee, 150.
80 This is a self-consciously formulated policy, yet its necessity rested on the arbit-
rary authority granted to the Hedaya. This collection was compiled from the opinions
of the students of Abu Hanifa, and therefore often ignored the decisions of the
'master' himself.
81 In fact, the Mughal procedure was not recorded in written texts or manuals.
It would have taken linguistic skill and careful observation from actual practice for
the British to perceive its logic.

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learned and pious men became 'legal textbooks', their opinions (fatawa)
'precedents'. Qazis, official guardians of the sharicah appointed by Muslim
rulers, became 'judges' and the ulama 'lawyers'. Thus in making their
decisions British judges did not approach sharicah on its own terms.82
It was impossible for the British to approach Islamic law 'on its own
terms'. Firstly, they were ignorant of fiqh; only through the concrete
process of administering the shari'ah did they learn about it at all.
Secondly, The British were in direct competition with Mughal legit-
imacy, meaning that they had to condemn Mughal jurisprudence as
disorderly, arbitrary, and cruel in order to justify their own seizure
of political authority. Thirdly, the administrators who reshaped
Islamic law were those British who also desired to reorder English
law; their mind-set was utilitarian, rationalist, and progressive,
which gave them a tone of superiority in regarding any legal 'tradi-
tion', whether Islamic or English.
British-formulated procedure enframed not only the text, but also
the qazis and muftis who constituted the personnel of the new courts.
The location of Company courts was fixed to certain official build-
ings. Their geographic jurisdiction was also fixed and bounded. Each
court was set in a hierarchical order, with mofussil courts in the
towns under the jurisdiction of superior city courts, which were ulti-
mately crowned by the Supreme Court in Calcutta. 'The government
guaranteed the superiority of metropolitan tribunals over local insti-
tutions. Thus the Company's organization of the courts and proced-
ure followed more closely the British Isles than it did of Mughal
India.'83 In the Mughal pattern of adjudication, the qazi was not tied
to an official building; he could exercise his authority anywhere as
long as witnesses were present to insure fair proceedings. The qazi's
authority was not clearly differentiated from that of other govern-
ment officials. Nor was the qazi considered the sole judicial authority;
people had other options such as extended family, religious leaders
like local religious guides (Pirs), scholars, or village elders. Often
the person of the qazi overlapped with these other fields of authority.
It is clear that the shari'ah was interpreted and enacted by many
82 Kozlowski, 97.
83 Kozlowski, 107. Kozlowski's generalization about a pattern of jurisdiction
which differentiated the British Isles from India must be qualified; the process of
fixing jurisdictions was proceeding in both societies under the direction of a class of
elites which newly ruled both locations. However, he is right that this process
marked an indelible change from the Mughal past.

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social groups, many of which were outside the go
The Company's delineation of jurisdictions shar
scope and flexibility. By solidly incorporating the q
cratic structure, they delegitimized other local op
tion.84 By fixing the location of qazis in towns, t
people to travel for hearings, and truncated the
to the social context of any dispute. This structu
differences in local customary law. For example
Court judge wrote that the goal of the British p
past century was 'gradually to remove the different
ary law, and bring about a certain amount of man
[rather than the] enforcement of an overwhelming
ant customs among the lower classes'.85" A met
standard of justice replaced the variety of local customary
approaches to adjudication. The bureaucratic structure of the courts
actually altered the substance of 'indigenous law'.
Within the court itself, the qazis were displaced from the role of
independent judge to 'judicial officer' who assisted an English magis-
trate. The magistrate ultimately decided what the 'facts' of the case
were; this opened another avenue for the intervention of English
legal concepts. This pattern was sealed when the colonial state
decided that all courts must be run in English rather than Persian.86
This decision depended on the growth of a class of wakils, lawyers
who were trained in English schools and could represent the interests
of non-English-speaking litigants; hence qazis were removed even
from the role as translators.
The role of the qazi became as limited and bounded as the written
texts of shari'ah. The English magistrate would hear the litigants,
often through translation, and decide what issue the case centered
on, and which facts were pertinent to that issue. He would then hand
84" Since the establishment of such fixed mofussil courts, the British recorded that
the courts were overloaded with cases; this is a result of the delegitimization of
local authorities and subsequent narrowing of options in the search for conflict res-
olution. 'The vexations that accompanied the establishment under British rule of a
national legal system [include] expense and delay in the administration of justice,
the so-called rise in litigation, and the prevalence of false witness'. Rudolph and
Rudolph, 259.
85 Nelson, Indian Usage and Judge-Made Law, 7-8 as cited in Rudolph and Rudolph,
276.
86 The switch from Persian to English as the official administrative language in
Bengal, Bihar and Orissa is 1832. However, the use of English dominates court
procedures from an earlier date.

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this 'processed' case to the qazi for a decision on which litigant was
guilty and what was the proper punishment according to 'Islamic
law'. The English assumption was that in juridical actions, one party
is guilty, while the other is innocent, meaning that adjudication is
a contest which determines winner and loser. This assumption lim-
ited the qazi's range of actions. This situation contrasts sharply to
the role of the qazi in Mughal administration, in which the qazi
enjoyed much wider contact with the local conditions of the dispute,
could recommend measures (as well as dictate punishments) and
held responsibility for the community's well-being beyond the scope
of two litigants.
Through the instrument of a fatwa, the qazi was expected to issue
his decision on which litigant was justified by 'Islamic law'. This use
of the fatwa constituted a major departure from the fatwa in classical
fiqh or Mughal jurisprudence. The Anglo-Muhammadan fatwa deter-
mines guilt or innocence in a specific case according to a fixed stand-
ard codified in legal hand-books.
The Muhammadan law was to be regulated by the Fatwa of the law officers,
which was directed to be given according to the doctrine of [Abu] Yusuf
and [Imam] Muhammad ... the Judges were enjoined to refer to the trans-
lation of the Hedaya by Hamilton ... as likewise to a tract entitled 'Obser-
vations' which then constituted a part of the criminal Code.87
The fatwa does not affect the body of law itself-its impact is limited
to a singular case presented to the qazi by an English magistrate.
Previously, the shari'ah was built by individual query and jurist's
response (or jurists' responses). The goal was to sanction certain
behaviors through the written sources of Qur'an and Prophetic
Sunnah, in hopes that these behaviors would become normative,
shape the surrounding society and uphold religious precepts. In pre-
vious systems, the fatwa or 'counselling' was an extension of the law,
through the methods of Usul al-Fiqh.88 The pre-British fatwa was
non-binding; an individual could consult any jurist and request a
fatwa which sanctioned a particular course of action. Not only were
these fatawa non-binding on the inquirer, but they were often
87 Morley, 186.
88 The methods of usul al-fiqh were to extend the network of shari'ah sanctions
by linking an already acceptable belief or behavior ('asl or root) to a new situation
under consideration (far'or branch). The two cases must share an essential attribute
or condition ('illah) which was the cause of the original ruling (hukum). If these
conditions obtain, then the original ruling covers the new case as well, and it is
incorporated under the umbrella of shari'ah. See Kamali, igg-2oo.

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detached from specific cases. 'Most of t

developed by the jurists in their disput
another ... the jurists developed them
themselves or in connection with actual
law.'89 Muftis and qazis exercised a cre
which were free from actual cases. As
up a hegemonic body of precedents. Fa
precedent, except in the sense that oth
the argument behind a specific fatwa,
a later analogous query.
Once the British shackled fatawa onto the structure of strict case-
law, the fatwa lost its creative function. Under this system, the fatwa
no longer expanded the body of what is considered 'law'. British codi-
fication fixed the extent of the law itself, and the fatwa only deter-
mined guilt or innocence under the rule of that code. Likewise, the
Anglo-Muhammadan fatwa was binding on the parties involved
unless the magistrate saw fit to intervene. Intervention was usually
for the purpose of making punishments harsher, more public, and
exemplary, although the Governor-General reserved the right to
pardon.90
Two cases provide evidence that illustrates this enforced distinc-
tion between substantive law and legal procedure. In the case Abul
Fata v. Russomoy Dhur Chowdhury,91 British magistrates of the Privy
Council overrode the opinion ofJustice Amir Ali. The Muslim justice
argued that family waqf grants were valid as charitable institutions,
as proved by both a long tradition of medieval decisions upholding
them, and by hadith reports from the Prophet to the effect that the
best charity is supporting one's family and dependants in need. The
British magistrates rejected this opinion. They warned that the
Muslim judge was returning to the original texts in order to extract
a new law. Such an extraction of law from sacred sources was, of
course, the traditional method of fiqh, yet it stood as an illegitimate
procedure in the Colonial courts. The Privy Council conversely
declared family waqf grants to be void. They claimed to have 'endeav-
ored to the best of their ability to ascertain and apply the Mahome-
dan law, as known and administered in India'. This meant what was
89 David F. Forte, 'Islamic Law and the Crime of Theft', Cleveland State Law Review
(vol. 34-35), 66.
90 Fisch, 44.
91 Abul Fata v. Russomoy Dhur Chowdhury (1894) 22 I.A 76, 86-7; Cases, 388, 395-
The decision in this case was penned by Lord Hobhouse.

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written down in the books of fatawa that were translated and codified
and given ultimate authority in British courts to represent 'Muham-
madan law', as disconnected from any juridical procedure of inter-
preting the text, extending a prior ruling to a new case, which are
the basic operations of Islamic law.92
This important decision was quoted and explicated by a later
decision, in which British magistrates forcefully upheld the principle
of preventing Muslim lawyers from expanding the law. Again, the
issue centered around Waqf grants. The magistrates overturned the
decision of a Muslim Justice Mahmud, whom they accused of
extracting a legal decision from sacred texts, an operation which
subverted the procedural straitjacket created by colonial courts.93
The Muslim jurists were to simply apply the laws found in those few
texts translated as authoritative by British judges. They were not to
engage in interpretation or deduction which the British judges saw
as 'dangerous' operations even though these were the natural pro-
cedure of Islamic law.
In Abul Fata v. Russomoy Dhur Chowdhury ... the danger was pointed out of
relying upon ancient texts of the Mahomedan law, and even precepts of the
Prophet himself, of taking them literally, and deducing from them new
rules of law, especially when such proposed rules do not conduce to substan-
tial justice. That danger is equally great, whether reliance be placed upon
fresh texts newly brought to light, or upon logical inferences newly drawn
from old and undisputed texts. Their Lordships think it would be extremely
dangerous to accept as a general principle that new rules of law are to be
introduced because they seem to lawyers of the present day to follow logic-
ally from ancient texts, however authoritative.94
These case decisions reveal the limitations placed upon juridical pro-
cedure in the Anglo-Muhammadan courts. They show the way that
authorized texts were used to curb the interpretative process that
was previously integral to Islamic law, changing both the role of the
qazi and function of the qazi's decision.
92 In this decision, the British magistrates' 'best ability to ascertain the law' did
not go far to outweigh the economic and financial gains of the government by out-
lawing family waqf grants which would have taken much property out of private
ownership and taxation revenues. Their 'best ability' certainly did not allow them
to see beyond their British legal assumption that private was clearly private and
public was clearly public, a dichotomy that the institution of waqf manifestly
contradicts.
9" Baker Ali Khan v. Anjuman Ara Begum (1903) 30 I.A 94 at 11 1-12; Cases, 4, 17.
The decision in this case was penned by Sir Arthur Wilson, and it overturned the
decision of a prior case, Agha Ali Khan (14 All. 429 (1892) which was written by
Justice Mahmud.
94 Wilson, 479-

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These cases also reveal an even deeper

supported the bounding of qazi's jur
placed on fatawa. The cases talk of fur
which is the goal of Anglo-Muhammad
suppression of Mughal legal procedu
magistrates expressed the same ideal in
ural law'. By using such terms, the co
between public and private spheres th
tomy not previously present. They advo
vidual living in an abstract entity called
were mediated by a centralized state. T
state would be to patrol religious or so
defined as 'public'. Such a dichotomy b
affairs seems intuitive to those living in
European norms such that the import
could be easily overlooked. Their advoca
religious leaders very early: the qazi wa
while the mufti was pushed into the ro
state recognition or authority. Within
asserted veto rights, then controlled st
right authority on its own terms. The sta
through references to reason, natural l
A British notion of 'natural law' or 'h
custom as the vehicle through which
'Humanity' assumed that people acted
rather than as religious or corporate g
posed the existence of society in an ab
disciplined into efficiency and productivi
Intervening groups based on personal cont
the individual and the ultimate governmen
eties, were reduced to relative impotence o
ings based on specialized roles in the new
to a degree unprecedented in large territo
individual.95
Resting government on 'natural law' means setting up the channels

through which individuals can take their place in such a society. The
Anglo-Muhammadan courts were one of the chief channels by which
the state enacted this vision of society.
In the courts that administered Anglo-Muhammadan law, the
state defined the public realm, while all people who entered its arena
95 Hodgeson, 194.

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came as private citizens. In this framework, crime became a violation
of the public order and the state assumed the right and responsibility
to prosecute and punish.
Crime in the eyes of the prevailing Muslim law was, generally, a private
offence. Punishment had become a public responsibility, but complaint,
even in serious cases such as murder, remained the prerogative of the affec-
ted family, a private and corporate body... In 1792 the British made cer-
tain actions, including murder, crimes in the eyes of the state.96
The British administered exemplary punishments for the purpose of

discouraging other such individuals from the same crime in the
future. Magistrates felt that amputation of hands or feet for theft
was 'inhuman' because it was cruel to 'the individual' and made the
thief a 'burden on society'. 'Mutilation which is too common a sen
tence of the Mohummudan [sic] courts, though it may deter othe
yet renders the criminal a burden to the public, and imposes on h
the necessity of persevering in the crimes which it was meant
repress.'97 They discouraged mutilation in favor of hanging in
public square during business hours, which was painless for 'the indi-
vidual' and instructive 'for society'. The criminal (and the victim
families) were important only as public symbols of deterrence.98
In order to establish this system of 'public justice' the magistrat
tried to suppress the practice of 'private justice', found most notably
in the victim-centered justice of retaliation and pardon (qisas an
diyah). In Mughal jurisprudence informed by fiqh, crime was unde
stood as an affair between two interdependent parties. The Mugh
state did not prosecute anyone unless a victim (or their family) ca
forward with a complaint; at any stage of the trial, the victim cou
offer a pardon and the parties would be released. If a person mu
dered their child, this did not constitute two independent parti
(for it was intrafamilial) and did not constitute a 'crime' in whi
the state had any role. It was not the role of the Mughal state t
'repress crime' but rather to see that an aggrieved party has a chance
to achieve some retribution.99
96 Rudolph and Rudolph, 282-3.

97 Harrington, An Elementary Analysis of the Laws and Regulations (1807), 1: 302.
98 The deterrence of highway robbery was so important that Hastings relied on
public notoriety, eschewing due process or the need for evidence, to convict a sus-
pected 'dacoit' and transform him or her into a symbol of deterrence. Fisch, 35.
99 And of course it was in the state's own interest to see that criminals do not
obstruct the state administration, military apparatus, or collection of taxes. Yet the
Mughal state was not a force in shaping 'shari'ah'. If there was state interference
(which there often was) it was in the interest of securing legitimacy from the
scholars and jurists (as was the purpose of the Emperor Aurangzeb's collecting and

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The British reformed judicial method

conception of 'private' justice, which re
extended family, religious identity or soc
expressed a desire to pardon their agg
simply filter the facts as if the victim d
this was not the legitimate role of a v
procedure if a child was killed by pare
simply not recorded in the 'facts' of th
law was pristinely Islamic, but the cou
function in an Islamic way, according t
as to what constitutes a 'crime' or a 'p
chance to declare qisas valid under Sha
In this way, the social background of t
in criminal proceedings. Mughal crimin
ished different levels of punishment
ground of the victim. British courts al
In British notions of justice, individual
before the law. In their view, the state w
was to mediate between an individual an
jurists rid procedural law of qisas and d
made criminal prosecution and punish
aggrieved parties. Yet too often 'public'
entiated from state interest.
The British state claimed that its mediation between an abstract
society and individuals improved adjudication because it could
administer punishments with equality, without being informed b
the status of social groups. British magistrates refused to recogni
different standards of justice for different social classes. This created
a distance between legal authority and the surrounding social con
text. This distance was a central component of British power
South Asia: it was one of the main rhetorical points used to justif
British modification of Mughal criminal court procedure.
The assumption that conflicts in court centered around two ind
viduals disconnected from their social habitation led to the British
habit of assigning a winner and loser, one right and the other wrong.
In this context, 'good conscience' became a code word for the ability
compiling fatawa), not interfering in the interest of a positive, abstract notion of

'society', in which people need state guidance.
"00 This example also provides an excellent example of British manipulation of
procedural law to affect covert changes in substantive law.
'0' Fisch, 45.

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of the judge to determine right from wrong, and assign p

Thus British 'public' justice gave priority to decisions that g
title to one 'private' person, rather than making decisions
betterment of the community as a whole. As local arbitrat
had previously approached decision-making with an in
reconciliation more than punishment. They tended to 'shy awa
making awards which satisfied one party by aggravating
Living in the midst of the disputants, they were inclined to se
an amicable compromise ... [or] deferred judgement, hopin
the contestants would cool off or lose interest'.2"' This as
Islamic judicial practice was totally truncated by British pr
changes, in the interest of increased efficiency and public
Two major legal interventions of the British were in pro
theft and regulating awqaf grants. These provide excellent
(one from criminal cases and one from civil cases) of how the
private dichotomy was injected into the substance of Islami
how the British incorporated fiqh into an Anglo-Muha
system. In the field of criminal jurisprudence, the proced
Anglo-Muhammadan law changed the criteria for punishme
questions of situation to questions of intention. In fiqh, argues
theft is seen as 'manifest criminality'. This means that 'th
defined by common experience, rather than by external le
about what constitutes 'theft'.'03 Judging whether the situa
forms to a common notion of 'theft' is what constitutes guilt;
mining intent was only minimally important. For instance,
goods were returned prior to the trial, the situation was n
criminal.
Qazis' methodology in a potential case of theft was to separate

out an act of crime from the similarity it bore to other legal actions.
A series of categories measured the situation, and separated out
cases of theft which merited punishment.'04 Such categories included
adult responsibility of the thief (baligh and 'aqil), the non-coerced
condition of the thief (niya), minimum value of the stolen object
(nihab), type of good stolen (mal), relation of the thief to the victim,
and the location of the stolen object (hirz).
"02 Rudolph and Rudolph, 1o8.
103 Forte, 49.
104 Forte, 54. He claims that situational elements became especially important
in cases of theft because of the harsh hadd penalty that applied if the case was
shown to be undoubtedly a case of theft. He overstates this case, ignoring the role
of extraordinary justice (tazir) which could be used at the qazi's discretion. Forte's
vision is clouded by obsession with severed hands and feet.

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These categories show that qazis were

interaction of interdependent social group
a general public. This is especially evid
hirz, or safekeeping. In order for theft t
must have been lying in a situation
regarded as protected within the range
Islamic law maintains a sense of things be
place of safekeeping, such as goods in a sh
house, an animal in a fold ... however, hou
not secure in a stable, nor are gold and silv
of a house.105
Qazis did not possess an all-embracing a

rights, except in situations outside of s
ations. If wealth is left in a public pla
person, the qazis cannot determine t
because the original owner did not tre
within safekeeping.'06 Qazis clearly de
for determining property rights, owners
themselves. If families regulate their s
the qazi can punish a thief; however, if
larities then he will not generally apply t
The Mughal state represented by qaz
entity which could define and regulate pr
regardless of social groupings or comm
The shift from fiqh to Anglo-Muhamm
room in judicial decisions to weigh com
cedure erased the situational categor
theft. Under the colonial state, thieves
intent to steal, which posed a threat t
Property was therefore defined by t
common with social groups and boundar
point, that a crime depended on the w
complain was 'a law of barbarous constr
first principle of civil society, by which
in every member which composes it, a
105 Forte, 63.

106 Interestingly, if a family allows a guest to enter their house, and the guest
takes some good, this is not 'theft' because the guest has been incorporated into
the family and is part of the safekeeping structure of their household. Forte, 63.
107 Forte, 55-
108 Harrington, 303, as quoted in Fisch, 34.

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Theft was not a 'private' matter just between the affect

affecting parties.109 On the one hand, it was a matter of state p
tion of society in general; on the other, punishments for theft
also public, including public hangings1o0 and fines levied on
villages from where a thief hailed.
In the field of civil jurisprudence, awqaf were a major con
British magistrates because they obstructed the transformat
land into easily liquid wealth, and because the treatment of
in fiqh offered contradictions to the British method of appropr
fiqh. The issue of awqaf illustrates two important points. First,
ish adjudication was never objectively distinct from their ec
needs; second, rather than simply applying Islamic law, they
selectively reinterpret it. Awqaf fused public and private fun
and mixed religious with legal and economic matters. There
they seriously vexed British jurists.
Euro-American legal lexicons do not supply a single technical term
is exactly equivalent to waqf. Sometimes a waqf serves as a 'trust' susta
some 'public' religious or charitable institution. At other times,
provisions resemble those of a 'will' or 'entitlement' and therefor
'private' dimension."'
The British translated the two interwoven functions of a waqf a

separate types of institution: waqf-i-'amm and waqf-i-khandan.
'amm corresponded to a 'public' waqf: the profit from this land
to support charities, schools, or religious institutions. W
khandan marked a 'private' waqf: its profits supported fam
represented a disguised form of inheritance.
Having made this technical distinction, Anglo-Muhammada
ists acted it out, forcing awqaf out of their originally religious
tion within the Muslim community. Public awqaf, because of
public nature, should be managed by state officials.112 A fine ex
109 A change in the laws of evidence illuminates this fundamental shif

Anglo-Muhammadan procedure, one thief was allowed to witness against
thief. In a system where crime is seen as a private matter between two p
one of the parties is an unreliable witness (as thieves were presumed to
there was no case. But if theft is a crime against the public and a thief is t
solely on intention to steal, anyone can serve as a witness regardless of
criteria, like social status or trustworthiness. See Banerjee, 69.
110 Victim-executed punishments were also abolished; punishment was
prerogative and private citizens were to witness it and be trained by it.
"' Kozlowski, 2.
112 Regulation Number XIX of 18io gave Company officials the right to
'good management' of any public trust, including 'public' awqaf.

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is that of the Shi'i Imambarah in Hoog

a family waqf, which was subject to su
Local authorities appointed a visitor ... wh
custodian [of the waqf, mutawalli] behave
standards for honest trusteeship. When t
operate, the government appointed [the v
officials gradually made many changes in the
funds were used."3
These changes in the use of funds eventually transformed the Shi'i

community hall into Hooghli College, a training ground for civil ser-
vants for the Company.
Private awqaf fared no better; they were subject to a textual
assault rather than a managerial assault. The British interpreted
'private' awqaf as a way to subvert the Islamic laws of inheritance,
which because they are in the Qur'an, must be immutable, rigorous,
and sacred. On that basis, they argued that 'private' awqaf were
later innovations, corruptions of the original law, which ought to be
excised.114 J. T. Woodroffe, Advocate General of Bengal in 1892,
said: 'This matter of private wakfs [awqaf] is an offspring of purely
modern and secular considerations'."5 British administrators also
saw these awqaf as tax-dodging, but argued against them on a scrip-
tual basis. This particular incidence of reworking scripture select-
ively on the basis of British legal preconceptions was hotly contested
by later Muslim lawyers; however, most other incidents were not.
V. Open Door of Codification, Closed Door of Ijtihad

There is nothing Indian or Oriental about codification.-C. D. Field"6
The closing of the door of Ijtihad is pure fiction ... If some later doctors
upheld this fiction, modern Islam is not bound by this voluntary surrender
of intellectual independence.-Muhammad Iqbal"7
Codification is a term which entered the English language through

the rationalist, reformist writing ofJeremy Bentham. It is no coincid-
113 Kozlowski, 39-

"14 They did not take into account that the justifications for awqaf were worked
out through the methods of usul al-fiqh, extracted from scriptural sources, and were
therefore also justified by other portions of the Qur'an and Prophetic sunnah.
15 Kozlowski, 140o.
116 C. D. Field, Some Observations on Codification in India (Calcutta, 1893).
"7 Iqbal, Reconstruction of Religious Thought, 1928, 141.

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ence that Bentham also influenced many of the Company's

officers after the governorship of Cornwallis. Legal codification
sisted of a two-fold process: the first process is to reduce a
aggregation of practices into a single process, and the seco
systematize that process so that it has an internal logic and
as a closed system.
Codification packaged the law, allowing it to stand in the
of independence, separate from persons of authority. The Britis
that if the indigenous judges could limit their citations 'to
works of notorious authority, it might have a salutary effect in
ing their fancy, if not their cupidity."118 Codifying authoritativ
allowed the parallel establishment case-law, and with only a few
in circulation, previous cases could limit the possibilities of
cases. Through this process, magistrates circumvented the p
authority of the qazi. The authority of formal precedent c
outweigh the authority inherent in a person as skilled and speci
interpreter of the law. Qazis did not previously give much e
to precedent. Rather their decisions were anchored in social
outside the court itself. However, under the Colonial state, the
fication of a bureaucracy separated the judges from other so
texts. In such a bureaucracy, authority was invested in an
rather than in a person. The dual processes of codification a
eaucratization transferred the responsibility of adjudicatio
from the Muslim scholars and into the company's offices.
The types of texts created by British codification differ from
eval and Mughal handbooks of fiqh: as compilation differs from
fication. Compilation brings together many different decisio
the reasoning behind them into a single folio. This comp
allows the judge to have more resources in making
decisions.119 A compilation gives verdicts which can serve as
"8 W. H. Macnaughten, Principles and Precedents of Moohummudan Law (

1825) as cited in Rudolph and Rudolph, 283-
119 This line of reasoning has a long genealogy (the importance of whic
clear in the section concerning taqlid, below). Zarkashi, an eighth-centu
wrote that the crystallization of law provides more material for later jurists
new legal reasoning easier, more efficient, and more broadly practicable.
(who died in 1838) revived this viewpoint in arguing that compiling manual
was not evidence of manifest taqlid, but rather fuel for further ijtihad. Sh
followed by Iqbal in his lectures on the 'Reconstruction of Religious Tho
Islam', and later by Wael Hallaq, 'Was the Gate of Ijtihad Closed?' Inter
Journal of Middle East Studies (vol. 16, 1984), 32. This article was reprin
with other concise and pertinent articles in Hallaq, Law and Legal Theory in
and Medieval Islam. (Hampshire: Valorium Press, 1994).

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but the path of reasoning based on Qur'an and Ha
fully displayed. Compiling does not iron out cont
or force decisions to become pure precedent,
foundations in the reasoning of usul al-fiqh. 'Eve
their influence and power, the Mughals did not a
forcing a single version of shari'ah on India's disp
lation ... the compilation of [Fatawa-i-Alamgir
some scheme to impose its views on all Muslims.'"2
certainly do not merit the label 'code'. They were
evolving tradition of jurisprudence which accept
within its fold. '[The Fatawa] include numerou
either raised to be decided for the first time, or old
were reinterpreted through fresh legal reasoning
the Fatawa-i-Alamgiri is the most famous of thes
Hedaya is similar in structure and purpose.'22
Although these compilations were the first text
by the Company, British magistrates did not find
even after taking liberties in the translation pr
and simplify the diversity of opinions. A selectio
make a code, as Banerjee notes. 'Case-law does n
down general rules beyond the limits prescribed b
of each case. It does not provide for different ki
may arise later, nor does it prevent co-ordina
decisions from standing side by side.'""123 Rather, c
limit divergent opinions, both by limiting the r
decisions may be based, and by minimizing the v
tualizations under which any case might enter a
British jurists in the early nineteenth century
generation of texts which secured this end. Thes
quickly became more authoritative than the origi
which they were based. Neil Baillie documente
wrought on the Fatawa-i-Alamgiri during and aft
120 Kozlowski, 105. Rather Kozlowski suggests that the co

purpose of asserting Imperial control over religious scholar
government legitimacy rather than for primarily juridical m
121 Hallaq, 19.
122 In 1663, the Emperor Aurangzeb (known as Alamgir) ap
sion to write this compilation in Arabic. It was completed i
into Persian a few years later. Morley claims that this collec
cient in providing the arguments of the cases, and that the H
in this regard.
123 Banerjee, 16o.

:ffff:ffff:ffff:ffff:ffff:ffff:ffff on Thu, 01 Jan 1976 12:34:56 UTC
rule adopted in making selections was to retain everything of th

nature of general proposition, but to reject particular cases, excep
when they were considered to involve or illustrate some principle
maxim of law.'"24 Only those sources could be used in the courts
which had been processed through translation, separation from tr
ditional authorities, and codification into a system. In order to sy
tematize these compilations, selected cases were elevated into gen
eral principles and propositions, which could suffice as precedent for
all later decisions. The greater a text's distance from original
sources, the greater its frequency of use in courts.
The British did not see their changes to Islamic law as codificatio
in the terms just described. Rather they assumed that Islamic law
had already been codified centuries ago, when 'the door of ijtiha
was closed'. By assuming the reality of taqlid the British essential
created stagnation and enforced it.125 The transmutation of fiqh into
Muhammadan law undermined ijtihad in any recognizable form. Th
British did not create the term taqlid; it arose out of debate betwe
different Muslim jurists during times of political crisis. Most Wes
ern scholars continue to call taqlid 'an accepted doctrine' since th
ninth or twelfth century; Schacht repeats this view eloquently.
Islamic law had been elaborated in detail; the principle of the infalibility
the scholars [ijma'] worked in favour of a progressive narrowing an
hardening of doctrine; and, a little later, the doctrine which denied th
further possibility of 'independent reasoning' (ijtihad) sanctioned official
a state of things which had come to prevail in fact.'26
Wael Hallaq has bravely challenged this notion (following the mor
gingerly lead of Iqbal in the 1920s). Hallaq reverses the component
of the argument. He claims that the 'doctrine' of taqlid was neve
actually accepted as a doctrine, and that the consensus of Muslim
jurists supported the continuing practice of ijtihad.
Rather than taqlid being a description of a social reality 'which
had come to prevail in fact', it was actually a rhetorical gesture b
a limited group of jurists whose prime concern was the growing se
124 Morley, 315.

125 Ijtihad refers to the use of legal reasoning to make juridical decisions whic
are binding upon the community. The authority of ijtihad was limited to a few
scholars who were well trained in religious scripture and the principles of lega
reasoning. Taqlid is the opposite of ijtihad, and means being bound to apply the
decisions of past legitimate jurists without the application of new juridic
reasoning.
126 Schacht, 67.

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aration between the Khalifah's political authority
practice of usul al-fiqh.'27 The social reality had al
had, although from the sixteenth century on, th
contested.128 As the voices in favor of taqlid grew
disguised itself under a number of other guises, na
but it never died out.'29 Hallaq argues against the heg
from the nature of fiqh itself, from the actual writi
and finally from an analysis of the political position
the rhetoric of taqlid since the sixteenth century.
Hallaq finishes his argument with an indirect
pierces to the heart of the matter. If almost ever
into the rhetoric that the possibility of ijtihad has
the past, who exactly has taken on the authority
decision? 'Insadda baab al-ijtihaadi [the closing of the
ent reasoning] conveys no idea as to who had ac
gate'. With reference to South Asia, either the si
enteenth-century Mughals achieved this notori
closed the 'gate of ijtihad', or else the eighteenth
century British rulers did. Bryan Turner equates
of religio-legal taqlid with the establishment of pa
elites.132 In Turner's view, 'an alliance of necessity be
"27 When Sunni jurists of the medieval period consider th

they do so in reference to politics. The Khalifah [Caliph] wa
political leader based solely on military qualifications, and b
able to combine political supremacy with religious leadership
situation, a chain of scholars and jurists (from Baghdadi an
Juwayni to Ghazali) grew to accept the idea that the Khalif
(unable to make his own legally reasoned decisions, but rat
decisions of another scholar), as long as the real power of ijt
ated to able jurists. Imam Ghazali asked: 'What difference does
reaches a legal opinion through his own interpretation or thr
tions of a mujtahid?' The use of the term taqlid was used to
disintegration of Islam and the distance from a 'golden age'.
Hallaq, 14.
128 Hallaq, 29.
129 Guises such as the practice of maslaha or istihsan which are essentially ijtihad
yet bear different names for rhetorical purposes.
130 He notes, for instance, that Sunni jurists condemned as heterodox some move-
ments which denied the relevance of reason to the building of the shari'ah (such as
the Hashawiyya, or the Hanbalis before the tenth century); he also notes that the
leading jurists' stated qualifications for acting as a mujtahid actually became more
flexible with time, rather than more stringent. Hallaq, 7 and 9.
131 Hallaq, 2o.
132 In Weber's terminology, patriarchy is the situation in which an elder male
dominates his household and uses the extended family to control a political unit.
Patrimonialism expands this model as the patriarch recruits a staff outside the

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ary and the 'ulama' set the conditions for picturing the sh
an 'unchanging code'.'"3 In this cultural environment, polit
gion, and law were shaped by a social ethic 'which stressed d
obedience and imitation'.~34 Yet there is reason to doubt the histor-
ical framework that Turner erects; it is doubtful whether all the
scholars, especially the relatively independent jurists, were ever in
alliance with the military leaders. Of course, qazis out of necessity
found a place in official government service. However, other jurists
practiced jurisprudence without official sanction, and many avoided
political entanglements and struggled to keep the practice of juris-
prudence well outside the sphere of political control. In this environ-
ment, siyasa (and not legal taqlid) became the military elite's
method of influencing judicial decisions. Not until the British took
over the mantel of siyasa from the Mughals could they enforce sys-
tematic taqlid through a centralizing state, bureaucracy, translation
and printing. The British did not create the term taqlid, but their
presence in India did give the term a legal reality which it did not
enjoy in any period prior. British dislocation and remodelling of
Islamic law erased all presence or potential for ijtihad: once again,
their assumption slowly became a coercive reality.
British procedure sapped the very 'substantively rational' method
of fiqh, that is finding a new rule to extend authoritative behaviors
into present conflicts. This is the very essence of ijtihad, which Brit-
ish magistrates found unacceptable in contemporaneous Muslim
judges or lawyers. Kozlowski presents an illuminating case. Sir
Arthur Wilson, a Privy Councillor, challenged the decisions of a
Muslim justice, Sayyid Mahmud,'35 which upheld the legitimacy of
'private' awqaf.'36 Wilson accused the Muslim justice of drawing
'fresh logical inferences newly drawn from old and disputed texts ...
[It is an] extremely dangerous principle ... that new rules of law
confines of the extended family, depending on slaves, conscripts or courtiers.

Turner, 8o-1.
133 Turner, 142.
134 Turner's use of a Weberian 'elective affinity' skirts the issue of casual relation-
ships between these various social forces. He does not see the need to illustrate an
actual causal link between military rule and the reaction of the scholars. An argu-
ment relying solely on 'elective affinity' tends to create a monolith out of any histor-
ical period, with all social forces acting toward one unified result.
'13 He was the son of Sayyid Ahmad Khan, studied Greek, Latin and Arabic at
Cambridge, was called to the Bar in England, and served as Justice between 1883
and 1893. He was dismissed from that post due to alleged 'chronic drunkenness'.
136 Baqar Ali Khan (and another) v. Altaf Hasan Khan (and another), Indian Law
Reports, Allahabad Series, xiv: 430 and 254.

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are to be introduced because they s

day to follow logically from ancien
In the British eyes, such interpret
norms of Islamic Law, which had be
waiting only for fair application. Ex
of a new law, is not a justifiable m
defined and encased shari'ah in thei
ical power.
VI. From Jurisprudence to a Persistent Cultural Pattern

Little or no change has taken place in the religious opinions of the natives
since the days of Hastings and Jones: the Hindu still venerates the Insti-
tutes [of Manu] that have served to regulate the conduct of his forefathers
for upwards to twenty centuries; and the Muhammadan looks with undimin-
ished respect on the precepts of the Koran.-William Morley'"8
The British replaced this elastic customary law by judicial decisions based
on the old texts ... In the way it was done, it resulted in the perpetuation
of the ancient law unmodified by subsequent customs.-Jawaharlal Nehru'39
All of these incremental changes over the preceding century took

their full form in the decade between 1862 and 1872. In a series
of legal enactments and reforms, the British administrators finally
engineered 'Islamic law' into a personal code of law governing the
private transactions of Muslims and their religious usages. This
series of broad reforms came in the wake of the 'war of independ-
ence' waged by the loosely combined forces of Mughal authorities,
Rajput nobility, and mutinying soldiers of the British army. By the
time the British had recovered from shock, reconquered Awadh and
Delhi, and punished all suspected traitors, there was no longer a
Mughal empire to serve as either a model or a foil for their own
government. Accordingly, the colonial administration erased any
props of legitimacy left over from that earlier era of tense co-
operation and competition with Mughal rulers and their administrat-
ive forms. In 1862, the Indian Penal Code and the Code of Criminal
Procedure finally removed the last traces of Islamic law from the
criminal field. In 1864, Muslim assistants to the colonial courts (the
137 Kozlowski, 119.

138 Morley, 193-
139 Jawaharlal Nehru, The Discovery of India (Garden City, New Jersey: Anchor
Books, 1959)-

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vestiges of the qazis) were finally disbarred and all Persia

were discontinued. In 1872, the Evidence Act was passed, re
Islamic legal elements from the procedure of testimony a
ence. All elements of overtly Islamic practice were erased f
realm of 'public law', while they were retained in a rigid form
'personal' code governing Muslims.140
This series of reforms had a persistent effect on later jur
scholars, both Muslim and non-Muslim. Through them, th
hierarchies of Company courts and Presidency courts merg
single bureaucracy. Court reporters were made mandatory,
to publish decisions and build up a system of preceden
officers learned 'the law' from British published text books
on precedents built up in Anglo-Indian courts over the pas
years. The final move in sealing the process was that
Muhammadan law became known in practice as simply 'Mu
dan law'. British courts effectively erased the record of t
production, and allowed 'the shari'ah' to stand on its own,
by the frame they had provided.141
Many of the South Asian Muslims who might have pr
against this situation had been killed or scattered by the war i
Those who were left accepted this situation, because British
tion of property disputes led to their de facto power in jurisp
The basic rules governing the ownership of real property were e
by colonial legal fiat, they had little choice [but to take their di
British courts]. Only the imperial courts provided definitive judgem
rights to property. Those Muslims who won their suits were probabl
fied with the Anglo-Indian courts' understanding of 'Muhammada
Among those 'who won their suits' were the newly created
Muslim lawyers who were trained in British educational in
140 Actually the Reforms of 1862 promulgated multiple Codes, one code
recognized religious group. This sealed the division between Hindu an
and in addition broke the Muslim community into its constituent 'sects',
its own code of law.
1"' Textbooks published in the second half of the nineteenth century and early
twentieth century reveal this grand erasure in their titles. Muhammad Hidayatullah
and Arshad Hidayatullah, Mulla's Principles of Mahomedan Law (nineteenth edition,
Bombay: N. M. Tripathi Publishers, 199o; first published in 19o6) and Asaf A. A.
Fyzee, Outlines of Muhammadan Law (fourth edition, Delhi: Oxford University Press,
1974, first edition in 1949). Even contemporary scholars who are not attentive to
the disruptions of British colonial rule continue to perpetuate this illusion of con-
tinuity, such as the very misleadingly titled book, David Pearl, A Textbook on Muslim
Law (London, 1979)-
142 Kozlowski, 154.

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in India and in England. These profess

turers and entrepreneurs include Syed
Faiz Badruddin Tyabji.'43 On the one h
textbooks on Islamic law, whose form
copied Anglo-Muhammadan patterns. A
from Arabic texts, their English trans
British lexicon.144 Because they lacked
were unable to bypass British procedur
there might be alternate routes. One s
Fyzee, comments that the British Magi
sibility of ijtihad and creative expan
adjusted to the needs of Indian Muslims
is assumed and never demonstrated) th
their law changed in any way.145 Fyze
cultural pattern that emerged after the w
tion of the vestiges of Mughal authority.
to 'law' as the sole pillar of their comm
define a single Muslim community thro
only after the umbrella of Mughal legi
shut. However, as leaders of the Musli
after the war turned to shari'ah to de
necessarily turned to 'the shari'ah' that
Muhammadan court activity as 'Muslim
Although some lawyers of the new gene
British regime, many others had a mor
143 Some of their biographies are detailed in
lawyers were not drawn from the body of schola
to, ability with, or need to preserve traditional s
pite their appropriation of 'religious law', the
sphere in which religious affiliation was no lo
Muslim litigant, arguing a case under Muhamm
Hindu or Englishman to represent him... Such c
viction was not required of a lawyer ... indeed
of legal objectivity'. Kozlowski, 122. The courts
religion was sealed off. Ironically, this situation
ity communities, such as Shi'i or Isma'ili, to ente
144 Kozlowski, 1 17.
145 Fyzee, Outlines of Muhammadan Law (Delh
this evident stagnation to two factors: the doct
Muslim jurists, and 'the common law doctrine of
only apply the law and shy away from expanding
These two factors have 'had the effect, in the las
stationary and static except for two broadeni
healthy introduction of the principles of the Eng
displays his loyalty to the British judicial institu

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the colonial government. They were reliant on the governm

their profession, yet they could be critical of legal decisions
ernment policies. Many lawyers shared in the power of the
hierarchy, and became the self-styled spokesmen for the M
community, since their voices could reach the ears of colonial au
ities. For these men, Islamic law became a form of political r
although admittedly an 'Orientalized' form. Muslim lawyers d
test individual decisions during British administration of s
but they did so from within the conceptual framework set up b
British involvement with Islamic law. They could contest the
of certain decisions, but could not protest against the way
law had been framed by British courts. They did not try to stra
ally revive the creativity of the shari'ah or its former fluidity;
they voiced their opposition through nationalist or communa
itics. In cases of dispute, the lawyers simply claimed that the ch
less, ancient Shari'ah did not support what the British claim
did. Without succumbing to this language, there could be no
communication with British authorities; without drawing a b
arena, there could be no contest.
Through a legal lexicon, the Anglo-Muhammadan system
into the wider political consciousness of Muslims in South As
ish jurisprudence had defined Islam as a rarefied and mono
identity, and now Muslims accepted this definition as a veh
agitate for political rights and nationalist agendas. Muslim p
leaders advocated a representational government in whic
would represent the Muslim community, as if there were on
Their leadership was not grounded in regional identity, family g
ings, or religious learning because of their participation in t
fession of law; they were leaders in search of a constituency. La
a social base, they defined their constituency, the Muslim U
as those who strictly applied textual Islamic law, which the
ceived of as a one-dimensional 'legal canon'.
Those scholars who still actively promoted fiqh (and their
mastery of it) were marginalized by the creation of this new
of professional lawyers. Although they rejected the
Muhammadan fusion, and often rejected British colonialism
right, they were unable to escape the wider social changes
affected (and were effected by) the legal structure. 'Tradition
did not die out, but it was largely displaced to the private r
community ritual, family sanctity, and local politics. As a result
scholars who rejected British law as a profession were also

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to approach shari'ah with an intact m

had been defined and bounded by an aut
ally contradict. 'In restricting authority
small number of translations and intr
were able to accomplish something th
had. They assigned definite sovereignty
The shari'ah of the scholars became in
identity or separatist politics. The Deo
is the closest that South Asian Muslim
and authoritative attempt to revive t
were limited to the requests which their
them. After the initial enthusiasm pa
ited to ritual affairs, doctrinal points
daily lives of South Asian Muslims con
religious leaders and corporate social g
caste; however, any aspect of their li
was radically altered. They were forced
dual sets of authorities and dual ethics. The effects of British rewrit-
ing have created a lens of texts, terms and experiences which con-
tinue to distort the view of shari'ah today.
By the twentieth century, the self-conception of the British rulers
in South Asia had changed drastically. The administrative and judi-
cial distance which they had worked so hard to create and maintain
became a liability. Their original audacity and assumed superiority
were overwhelmed by the confusion and dissonance created by their
system of rule. G. C. Rankin (ChiefJustice, Calcutta Supreme court)
admitted that
not many people in this country have any settled notion of what we are
doing in India administering law to Indians, nor have means of readily
acquiring any well-founded notion of how we come to be doing so or of the
principles which we apply. Certain I am that when I went in 1918 to India
to engage upon the task, I had the smaller amount of information and no
real explanation of many facts of great historical importance.'48
As the British themselves lost confidence in their colonial mission

and civilizational superiority, Muslim lawyers began to voice a more
acute critique of the legal system that Anglo-Muhammadan jurispru-
146 Kozlowski, 131.

147 This forced introversion led to even greater sectarian division, springing up
from below as well as being codified from above. In fact the 'Deobandis' themselves
have become a sectarian label which persists until today.
"148 G. C. Rankin, Background to Indian Law (Cambridge, 1946), vii.

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dence had engineered. Many of their critiques were thoro

covered most of the points elucidated above in this study, t
a discontinuous and ad hoc manner as various issues cam
legal decisions.
The most incisive of these critical lawyers is Faiz Bad
Tyabji, who not only pointed out the injustice of various
decisions but launched a full critique of the British colonia
He was one of the few lawyers who saw clearly that British
tions in the eighteenth and nineteenth centuries had in fa
juridical and cultural realities for Muslims in the twentieth
He published his work, Muhammadan Law: the personal law of
in 1913, in which he provided a detailed critique of both th
of British judges applying Islamic law and the philosophy b
Tyabji alleges that the British administration of Islamic
warped by unfamiliarity with the language of the texts and w
notions and condition of life that underlie them. British m
assume that these texts are confused, inconsistent or inac
expressed from the outset. In addition, they assume that t
no 'forces of expansion and development' within Islamic law
and that its development cannot be on modern lines or be
reason unless filtered through British notions of legal equi
These assumptions [of British jurists] frequently underlie deci
Muhammadan law; and, being of too general a nature to form th
of direct decision, cannot well be discussed in argument at the b
are not, therefore, the less important, nor the less deserving of
scrutiny.149
In this important passage, Tyabji shows that the structure of litiga-

tion and the specialized language of jurisprudence actually hinder
any discussion of the fundamental assumptions that undergird the
colonial courts, since the lawyer is confined to a discussion of discrete
cases. His critique was the first attempt by a British-trained lawyer
to break out of this frame and critically assess how it developed over
the preceding century.
Most insightfully, Tyabji notes that alien legal conceptions have
been introduced, often unconsciously, by the lax use of English terms
and equivalencies.15o All in all, Tyabji alleges that the creation of a
hybrid system of Anglo-Muhammadan law (with the term Anglo first
149 Tyabji, 85.

150 Tyabji illustrates his point with reference to Doe v. Dorabjiv, Bishop of Bombay
(1848) Perr.Or. Cas. 498.

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and in a position of power) has rendered Muhamm
pletely hollow and lifeless.
[Muhammadan law] is presented in British India most
reports of decisions on a set of specific circumstances b
courts. The discussions on the law before the courts co
majority of cases, of the citation of passages from book
for the first time, to the notice of many concerned ... If
ities on Muhammadan law are searched, they appear ext
but the difficulty is almost insurmountable when only
out of these translations are read. It is not implied tha
an ancient law to modern circumstances is easy in any
stricture even law that is well settled and quite recent can
Difficulties in understanding the law laid down in the a
in the least degree prove that the text-writers were confu
... the difficulty experienced in appreciating their grea
in proportion to our own ignorance.151
He assesses that this profound ignorance of Islam

the judges' impression that Muhammadan law i
nature 'ossified and unable to expand except by t
British custom or litigation'. Tyabji protests that j
assume this if they had any understanding of the
law. It grew out of the original revelatory source
deduction and analogy, conflict and consensus, an
some decisions over others in the light of social w
ous rational operations would lead to a specific fat
specific case.
Had these stages in the growth and development of Muhammadan law been
present to the mind of the learned judge, [he might have] then come to
believe that the prejudice is on the part of those who think that, because it
is a characteristic of English law to expand, it must be a characteristic of
Muhammadan law to be absolutely rigid, and that all expansion of the latter
must be from forces brought to its aid from English law.152
It is clear from this passage that Tyabji protests not just against the
execution of a particular decision or the mechanics of the decision-
making process, as did Muslim lawyers before him. Rather, he pro-
tests against the whole premise and structure of Anglo-
Muhammadan law since it is founded upon colonial occupation. As
such, Tyabji's work is one of the earliest critiques of 'orientalism'
151 Tyabji, 85-6.

152 Tyabji, 86.

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and its uses by colonial powers.'53 In Tyabji's view, the whole

of law and courts rests on the assumption that the British al
understand law best and apply it fairly, and he rejects such a
as unsupported by experience and any notion of justice.
The observations made above have seemed necessary for justifying the
existence of the law of the Muslim community and for protecting
having imposed upon it interpretations of its law [by the British]
uncouth, impractical and fantastic ... [supported by the idea that
magistrates] represent the Muslim law best, and disclose a profun
knowledge on the part of the expositor only, when by the exposi
greatest difficulties are created in the way of those who are governed
... It would be an extreme hardship on the Muslims if the whole found
of their law were liable to be shaken and made uncertain on the baseless
grounds that the law is unintelligible, or inconsistent, or primitive. T
assumption that the law of Islam is incapable of developing and expandi
on the lines of justice, equity and good conscience as now understood, is
less a danger for the Muslim community as a whole.154
Tyabji saw that British manipulations of Islamic law actually po

a threat to the viability of the Muslim community. Although th
endeavored to preserve its outer appearance in a 'personal cod
they erased its inner dynamism. Despite the insight of his critiq
however, Tyabji does not recommend any political or social steps
remedy the situation. The one program he did advocate, increas
training for Muslim lawyers and British judges in the principles
Islamic jurisprudence, was apparently unviable and outside the eth
of his time.
Tyabji's critique passed unnoticed by his fellow Muslim thinkers
and politicians. Other South Asians were busy actively formulating
their own utopias as the British colonial confidence weakened. These
political utopias accepted British presuppositions about social organ-
ization and British definitions of the shari'ah, and used them as the
basis of a program of reform or revival of the Muslim community.
They addressed the perceived stagnation of Islam, and reacted
against Orientalist scholars who attributed stagnation either to the
essence of Islam as a religion or the essence of Muslims as people.
The difficulty is that most of these critics were not trained in fiqh
and were not able to revive it against the empowered structure of
153 Sadly, Edward Said did not consider lawyers or historians of law as possible
sites of protest against orientalism in his seminal work, Orientalism, published in
1976.
154 Tyabji, 87.

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Anglo-Muhammadan law. Muhammad Iqbal sy
gious need to revive fiqh with the political consc
teenth-century Indian lawyer. In his lectures du
he defined ijtihad as the 'Principle of Movemen
reconnect the vocabulary of fiqh with a sense of
political dynamism.
Iqbal attempted to fuse the self-worth of 'tradition
clout of the 'modern'. In this sense, Iqbal was al
Anglo-Muhammadan definitions, even as he tried to
out. Although he points out that Islamic law can and
no doubt that a deeper study of the enormous legal
is sure to rid the modern critic of the superficial o
of Islam is stationary and incapable of development'
that growth in the context of modern state insti
that individual ijtihad is not longer a viable optio
rhetoric that the gates were closed in the twelfth ce
tory' has coasted downhill ever since.'56 The alterna
had, is to be established through legislative councils
The transfer of the power of Ijtihad from individual
school to a Muslim legislative assembly which, in vi
opposing sects, is the only possible form Ijma' can ta
will secure contributions to legal discussion from lay
possess keen insight into affairs."'57
Iqbal presumes the existence of a lawyer class in w

reside; he also presumes the superiority of Europ
which can and should subsume local powers, reg
religious sects. Yet these British introductions ar
the terminology of fiqh, not only to empower t
155 Muhammad Iqbal, 'The Principle of Movement in the

The Reconstruction of Religious Thought in Islam (second edi
Islamic Culture, 1989; first edition London: Oxford Univers
156 Despite his insight, Iqbal equates 'the closing of the gate
crystallization of four legal methods [madhhab], and there
perspective on Islamic legal development. Instead he attrib
legal mind to the mu'atazili debates, the rise of 'other-wor
sack of Baghdad by Mongols. Iqbal, 118. Iqbal still accepts
that colonial intervention marks an important break with
(personified for Iqbal by lazy followers of Sufis) which wil
religious and political.
157 Iqbal, 138. In this passage, Iqbal silently invokes the c
government must be a collaboration between those who ha
other social authorities, including religious specialists but
crafts or trade.

106.209.137.92 on Fri, 01 Jul 2022 06:53:09 UTC
close the distance between the state structures and the pe

are governed.
Maududi's analysis of the neo-colonial inheritance is piercing; for
instance he correctly identifies the problem of translation which was
the foundation of British power. The West has power over language
and defining issues. 'How you define an issue, and in what language,
to a large extent determines the outcome of the debate.""5 Yet Mau-
dudi's solution to the problem presupposes the centralized, authorit-
arian, and distant state which the British created through their con-
trol of language, both political and legal. After extensive searching
for legislative and parliamentary options along the lines of Iqbal's
thought, Maududi concluded that an Islamic vanguard must control
the apparatus of the state in order to restore cohesion and self-worth
on that abstract entity called 'society'. 'Human civilization travels
along in the direction determined by the people who control power
... it can hardly resist. A society in the hands of those who have
turned away from God ... drifts towards rebellion against God'.159
As in the colonial state, Maududi's Islamic state propagates an order
which is not generated from the bottom up. The state must educate,
admonish, punish and reorganize the people under its authority in
order to bring about utopian progress. He criticizes those who claim
that the shari'ah is a 'private' realm of religiosity, limited to dress,
hygiene, etiquette, or prayer. Yet his alternative is 'public' in the
sense created and defined by the British presence. Maududi uses the
term shari'ah to mean the system created by such a state; the right
path is the glorification of a God-ordained system which is eternal
and external to the people who must inhabit it.160
Western scholars could not escape the cognitive constraints of the
recent past either. The legal lexicon resulting from the British occu-
pation of India has supported a persistent misunderstanding in West-
ern scholarship. Joseph Schacht laid the foundation for Western
studies of Islamic law. Although unstated, colonial intervention plays
a significant role in his portrayal. He accepts a paradigm of decay
and rigidity in defining the character of fiqh.
Islamic law, which until the early 'Abbasid period (ninth century) had been
adaptable and growing ... became increasingly rigid and set in its final
158 Abul Ala Maududi, 'Tehrik Islami ki Akhlaqi Bunyadain', a lecture originally
delivered in Urdu in 1945, published as 'Moral Foundations of the Islamic Move-
ment', in 1976, p. 27.
159 Maududi, 11.
160 Maududi, 97.

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mould. This essential rigidity of Islami

stability over the centuries which saw the d
of Islam. It was not altogether immutable
place were concerned more with legal theory
ture than with positive law.'16
Schacht divides shari'ah into two com

remained rigid, and 'legal theory and t
which did change. This bifurcation cor
sions created by the British interven
which preserved the inner core of law
bureaucratic, effective system of admi
Schacht's treatment of 'handbooks' of
period' is equally problematic. He clai
proves that authoritative law was derive
who qualified for ijtihad, but rather from
fied the current teaching of each school.1
ish technique of legal co-optation back in
makes them responsible for their ow
maneuver hard to fill in the slippage her
contain the latest stage of authoritative
in each school, but they are not in the
not a corpus of legislation but the living
late medieval handbooks are not codes, th
pass from a 'living result of legal science
ally relevant to Muslims, to a 'rigid sta
with the surrounding social needs? The a
of 'the recognized handbooks' which a
by whom? As early as 1773, the answer
nized by British courts as authoritative
who created them and used them.
Although Schacht claims Islamic law is essentially rigid and
immutable, he does qualify this generalization. However, the
examples he gives are mainly concerned with the Wahhabi move-
ment, and the later Salafiyya movement, and both movements are
reactions to colonialism, whether French, British, or Ottoman. The
underlying assumption is that the rigid 'essential nature' of Islamic
law invited colonial intervention, in order to spark a renaissance
under the influence of modernism.
161 Schacht, 75.

162 Schacht, 71.
163 Ibid.

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Schacht presents himself as a foundational scholar; however

Turner presents himself a revisionist who can set Weber's
gical generalizations within the historical context of Muslim
ence. Yet even Turner cannot see the pervasive colonial herit
his 'Islamic law'. Rather than claiming that taqlid is an es
character of Islamic thought, ritual and law, Turner claims t
ideology of taqlid was perfectly suited to the 'law and order' dem
of the dominant class in medieval patrimonial society. This
equation between law and order is more true for the British pre
in India, whose centralized control of law and police was expl
direct, than for the previous military elites. Turner misses the
that the British systematization of the law fully marginalize
pendent juridical thinking. Turner follows major Western
when he projects a colonial condition back into the past. To b
his argument, he quotes Maxime Rodinson; yet at the crucial
of talking about 'the closing of the way of Ijtihad', Turner d
feel the need to back up his facts or framework with any referen
Anglo-Muhammadan heritage allows that assumption to
independently.
Turner's earlier assumptions force him into a contradictory stance
with regard to Muslim Modernists. He both praises and blames them
for introducing capitalism into the Islamic community through
equating 'traditional' religious concepts with European intellec-
tual ideas. To illustrate this cultural translation, he quotes from
Hourani:165 'Ibn Khaldun's umran gradually turned into Guizot's
'civilization', the maslaha of the Maliki jurists and Ibn Taymiyya into
the 'utility' ofJohn Stuart Mill, the ijma' of Islamic jurisprudence into
the 'public opinion' of democratic theory.' Because Turner thinks of
the Islamic world only in terms of the Arab world, he cannot recog-
nize that this same conceptual translation happened a century earl-
ier in the courts of British India. The intellectual work of the
reformers does not automatically translate into the introduction o
capitalism; Turner does not endeavor to show how their writings
changed actual social relationships, property ownership, the organ-
ization of work, or judicial authority. The field of legal change in
South Asia is much more directly related to these economic and
political changes.
164 Turner, 143.

165 Albert Hourani, Arabic Thought in the Liberal Age, 1798-z939 (London: Oxford
University Press under the auspices of the Royal Institute of International Affairs,
1962).

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Conclusion
This study has aimed to untangle the hybrid term An

Muhammadan law. It is not an integral system of jurisprud
its practitioners may have claimed. Nor is it even a system
prudence that combines elements from Islamic legal traditi
British practical application, as its name may imply. Rather
Muhammad law is the contradictory surface of British co
that combines political, legal and cultural elements. The ef
has imposed upon South Asian Muslim society are certainly
ited to their field of law, but extend into the field of religion
alist politics, and the most basic Muslim self-understandin
twentieth century. For that reason, Anglo-Muhammad
deserves a fuller treatment than legal historians have so f
vided. This study has proposed to reframe the analysis of
Muhammadan law in the field of cultural history, and thus
its roots which are deeper than litigation, and its effects w
wider than law. Placing this topic in the field of cultural
necessitates our recognizing that jurisprudence is an ongoing
of creating the law. It is a process that is always changing and
interacting with the political systems, economic exchanges,
gious ideologies which surround and challenge it. This has b
since the inception of Islamic law, yet the first twelve cen
its evolution have allowed it to maintain the illusion of con
Although formally this continuity is a facade, the goals of its
and sustainers have been relatively constant and integral. H
colonial rule added a new component into the equation. Al
the British in some ways simply replaced the Mughals, in man
ways their manipulation and restructuring of society pen
deeper than Mughal rule ever did, or ever needed to penetr
establishment of a modern state in South Asia gave a new
Islamic law, and opened it to new and disruptive influen
operation of Colonial courts transformed customary into s
law. It displaced local law to be replaced by a national code
Further, Islamic jurisprudence lost its dynamic substance wh
reinforced and reified in form. The modern state neither abolished
'traditional' law, nor fulfilled its promises.
The British colonial administrators achieved these great changes
believing that they were setting South Asian society on the proper
path: the path of impersonal government, equal rights before the
law, public welfare, and profitable business. But perhaps South

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Asians did not need a modern state, either in its essential o

or in the way it was imposed. The British did not unders
consequences of their actions, nor did they have to bear th
twentieth-century scholars and Muslim reformers must do
least in South Asia.

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Framed, Blamed and Renamed: The Recasting of Islamic Jurisprudence in Colonial South

Stable URL: https://www.jstor.org/stable/313119

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Framed, Blamed and Renamed: The Recasting

SCOTT ALAN KUGLE

Duke University, USA

A system should be formed, which shall preserve as mu

Jurisprudence is the nexus where authoritative texts, cultural

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The shari'ah is a notoriously difficult concept to define. In its broadest terms,

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Muslims sought to regain political power through rhetoric

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it persists in the present through the p

I. Expansion from Company to Polity

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caste-the Moors [Muslims]'. Such multiple and parallel systems o

8 Asaf A. A. Fyzee, 'Muhammadan Law in India', Comparative Studies in Society a

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the English did not act out their resp

The wording of these Regulations seems t

'3 At this time the specie flow from Britain to

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The pattern was to remove 'native agency' and set up a govern-

The language of Company regulations reflects the movement of Brit-

which were administered directly by British government representatives in Cal-

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Even Fyzee (a genuine admirer of A

II. The Necessity of Deceptive Defer

2" Fyzee, 412.

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amount of tax demanded, his land mig

In any civil suits, the parties to such suits

British concepts and personnel are the

" Bayly notes that these two types of property

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Many families tried to find both flexibility and permanency by con-

III. Translation and Codification

From the labours of a people, however intelligent, whose studies hav

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in the search of truth have wanted that liv

As legal texts were translated, Company

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pletely codified in the remote past and ready to be simply a

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lem of where and how to ascertain wha

From the Persian, Hamilton rendered an English version.47 Not

The Hedaya alone was insufficient as a basis for Anglo-

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obtuse' for use in courts, and was superseded by Neil Baillie's

In fact, magistrates had little patience for cross-referencing texts at

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thus evolved a second strategy in order

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In this passage, Kozlowski paints a contradictory picture. In Britain,

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