The Politics of Islamic Law

Local Elites, Colonial Authority, and the Making of the Muslim State

Iza R. Hussin

• Publisher: University of Chicago Press
• Year: 2016
• ISBN:
  9780226323480
• Topic: Política y relaciones internacionales
• Subtopic: Política

In The Politics of Islamic Law, Iza Hussin compares India, Malaya, and Egypt during the British colonial period in order to trace the making and transformation of the contemporary category of 'Islamic law.' She demonstrates that not only is Islamic law not the shari'ah, its present institutional forms, substantive content, symbolic vocabulary, and relationship to state and society—in short, its politics—are built upon foundations laid during the colonial encounter.Drawing on extensive archival work in English, Arabic, and Malay—from court records to colonial and local papers to private letters and visual material—Hussin offers a view of politics in the colonial period as an iterative series of negotiations between local and colonial powers in multiple locations. She shows how this resulted in a paradox, centralizing Islamic law at the same time that it limited its reach to family and ritual matters, and produced a transformation in the Muslim state, providing the frame within which Islam is articulated today, setting the agenda for ongoing legislation and policy, and defining the limits of change. Combining a genealogy of law with a political analysis of its institutional dynamics, this book offers an up-close look at the ways in which global transformations are realized at the local level.

PART I

Contexts

CHAPTER ONE

The Historical Roots of a Contemporary Puzzle

The Pangkor Treaty is just like the Koran, it is impossible to add a line to it, or to take a line from it.

The first British Resident in Malaya had neither a long nor a successful career. James Birch was appointed to the post in 1874, his task to raise revenue, abolish slavery, pacify a succession dispute among Malay nobles, and bring an end to war between Chinese secret societies. His position in the state of Perak, and the first achievement of British indirect rule in Malaya, was formalized by the Pangkor Engagement, signed in 1874. When one of the Malay chiefs in Perak attempted to negotiate a more advantageous position for himself through this newly signed treaty, Birch replied, “The Pangkor Treaty is just like the Koran, it is impossible to add a line to it, or to take a line from it.”1 The analogy was outrageous—the chiefs knew it, and his high-handedness and contempt for their authority rankled to such an extent that they organized his murder, not a year into his tenure. During that short tenure, however, Birch spent a great deal of effort attempting, on behalf of the British Crown, to make real what all around him were convinced was make-believe: he pursued elusive Malay nobles to secure the insignia of rightful office for the new sultan; he traveled the river courses, nailing proclamations about new tax laws to trees; he insisted that the sultan accept his authority and seek his advice as representative of the Queen of England, as the Pangkor Treaty dictated. To make real what all around him knew was make-believe, Birch attempted to make the law as fixed and as unassailable as the Qur’an—impossible to add a line to it, or take a line from it—an outrageous equivalence. Law in the early days of British colonialism in the Malay states was a thin fiction—the Pangkor Engagement itself signed on the deck of a British battleship by a shaky sovereign and reluctant chiefs, its English and Malay versions differing from each other, the reality it described only enforceable by war.

Yet within a few decades of this episode, it was the law of these same states that had come to deliver the law of the Qur’an—judges as employees of the state who interpreted its pronouncements, the administration of the state that enforced their rulings. Not just in Malaya, but across the Muslim world, by the end of the nineteenth century the equivalence between the law of the state and the law of the Qur’an was no longer a matter of outrage, but of steadily increasing acceptance and aspiration. In Malaya, all the Malay states delivered Islamic law through state administrative hierarchies within forty years of the Pangkor Treaty; in Egypt, efforts to make Islamic law stronger involved its translation into codes in the 1870s; in India a century earlier, the East India Company had decreed that the Qur’an would be the source of laws applicable to Muslims in matters of inheritance, marriage, and religion. Today, demands for Islamic states are articulated based on the assumption that in such states, the laws of the Qur’an and the laws of the state will be as nearly equivalent as modern man can manage. And for many Muslims today, the aspiration to equivalence works powerfully in both directions—just as the laws of the Qur’an should be expressed in the shape of modern state law, so should the laws of the modern state be as clear, as authoritative and as unassailable as the Qur’anic text. The demand for Islam is therefore very often expressed as a demand for state intervention, through law; contention over the place of Islam in the state is based on an assumption that it is the law of the state that will define, contain, and deliver Islam.2 This remains so, even though our lived experience, as subjects of the law or as readers of sacred text, is that both are rarely as clear as we might wish.

This book began as an exploration of how Islam was transformed by the colonial encounter in Malaya, and seeks to understand the processes of that transformation and their political consequences. Instead of understanding these transformations as unavoidable outcomes of colonial and imperial dominance, I sought first to investigate how Muslim elites became invested in the translation of local norms, Islamic institutions, and varied structures of adjudication into the overarching logic of the colonial state. What combination of institutional arrangements, ideas, and interests made this transformation possible, and what accounted for its maintenance and growth? It became clear, as my research progressed, that the dynamics of this transformation in Malaya drew from the British experience in India and that, as the nineteenth century unfolded, changes in Malaya became increasingly connected to those in South Asia and the Middle East—Egypt, in particular. While Malaya remains the central case of this book, asking these questions within the empirical context of eighteenth- and nineteenth-century archives of Malaya, India, and Egypt allowed two analytic perspectives to emerge: first, instead of an overarching colonial logic, colonial officials and local elites conditioned each others’ expectations of state capacity, the role of law, and the place of Islam. Second, “Islamic law” emerged as a central arena for politics out of the struggle between local elites and colonialism, first as a way to maintain a domain of local autonomy, and later as a basis upon which to build a challenge to colonial institutions and authority. To enter and leave the archives on any given day required passing through a world in which the space allowed to Islamic law—in Malaysia, in Egypt, in South Asia, in the United Kingdom—no longer seemed able to contain it, and as archival investigations encountered contemporary debates, other questions emerged: How has the contemporary institution of Islamic law been conditioned by its colonial antecedents? To what extent do structures of the modern Muslim state rely upon colonial-era frames, and to what effect? How have these institutional and theoretical frames shaped the future of Islamic law and what Muslims understand as its limits and possibilities?

“Islamic Law Happened to Me Yesterday . . .”

While traveling from one archive to another in Malaysia, I attended the installation ceremonies for a local notable in the state of Negri Sembilan. The rituals of this appointment carried all the markers of their multiple origins: yellow umbrellas nodded to the Hindu dynasties from which Malay rulers are descended; the assembled nobles wore Malay traditional costumes, augmented with British-style insignia on their sashes. Recitation of the Qur’an and prayers in Arabic punctuated each stage. The prominence of women in the ceremonies made evident that Negri Sembilan still held to aspects of adat minangkabau, the matrilineal customary practices of some Malays.

When the topic of my research arose, many of the men listening in would nod sagely and proceed to explain how—even though there might seem to be a number of matriarchal practices in Negri Sembilan—their adat (customs) really were all in accordance with Islam. At one of many meals shared after the ceremonies ended, one of the matriarchs of the clan raised her eyebrows at my research topic and said, “Yes, Islamic law happened to me yesterday [memang, semalam makcik kena hukum Islam].”3 She then proceeded to relate her view that the matrilineal practices of adat minangkabau were Islamic, but that new interpretations of hukum Islam in the courts were beginning to erode her claims on land that had been passed from her grandmothers, favoring her male relations instead. “These men, they are taking ownership of the law,” she said, and other women would nod in agreement, or sigh.

My research was mainly undertaken in archives, the voices of its major players muted by time and the constraints of the documents in which they were preserved. However, the driving concerns of my project came out of conversations and experiences beyond the archives. These conversations operated through two intersecting registers of debate and meaning, both of which have immediate political, economic, and social implications for many Muslims today, neither involving questions of political violence or the seizure of the state. For everyone I spoke with in this community in Negri Sembilan, it was important that Islamic law be obeyed, but each person spoke about Islamic law as if it were, at one and the same time, divine and vulnerable, immutable and contested, something in which they deeply believed and a pawn in a political game. There is the Islamic law of the shari’a, a matter for the judges to decide; but there is also the Islamic law of the community, passed down from their grandmothers. There is the Islamic law the state applies, but there is also the Islamic law that men and women call upon to critique the actions of the state. “Islamic law,” however and by whomever it is invoked, seems to carry the shades of all these meanings and the gray areas between them. For the Muslims I spoke with in Malaysia, to speak of Islamic law was to make a claim about what is legitimate at the same time as to index what was possible, to refer to the past as well as to aspire to the future. Each marked a receding horizon and an immediate problem: the difference between what should be and what is, even though the extent and content of that difference is itself a matter for intense disagreement.

Debates about what “Islamic law” should mean are well worn, and it is not my purpose to define the term yet again. I wish instead to focus on the terrain of contestation that surrounds it, and the institutional foundations which undergird the limits and possibilities of debates about Islamic law in the Muslim world today. These foundations mean that “Islamic law,” however it is defined, is deeply embedded in institutional and political parameters constructed within the last two centuries.4

To begin, my approach has been to look within historical sources for the ways in which Islamic law came to be defined by the multiple constituencies who invoked it—the genealogical tracing of a concept whose resonance has critical implications for Muslim life, state authority, and global politics. I understand Islamic law as multiple, slippery, and contested because for the resources I consulted in contemporary Malaysia, Egypt, India, and Pakistan, as well as for the actors I traced through the archives of colonial Malaya, Egypt, and India, Islamic law occupies a space of contradiction and tension. Three terms are commonly used to refer to the law of Islam, and all three represent that law partially: to say that Islamic law is shari’a, a divinely prescribed path of right conduct, effaces its ambiguities and its mutability in time and place; to parse it as fiqh, jurisprudential scholarship, allows for debate and difference, but minimizes the impact of institutional contexts and the embeddedness of jurisprudence within state and society; to read it as personal status or family law locates the law in its contemporary institutional loci, but diminishes its powerful symbolic and political appeal. The tensions and ambiguities among these coexisting definitions exist for most Muslims and Muslim states, and have for much of Islamic history, and they are powerfully productive of a range of meanings, discourses, and strategies for the conduct of Muslim life.

This project is particularly concerned with Islamic law as an arena for politics, a space whose scope, boundaries, rules, and content underwent a remarkable transformation during the late eighteenth and nineteenth centuries, throughout a large portion of the Muslim world. Of course, it is important to note crucial continuities, across borders and periods, in the relationship between Islamic law, the state, and Muslim identity. At the same time, the strategies, interests, and resources at each site of struggle made for important variations, and these dispel any preconception of Islamic law as monolithic or immutable. Therefore, my study seeks Islamic law not only in texts of fiqh, “Islamic” legislation or the courts that applied it, but through changing spaces of tension and struggle over Islam, law, and Muslim life during the colonial encounter. These spaces were marked not only by the workings of Islamic law, but often by its absence—after all, it was often not the provision of Islamic law but its diminution that catalyzed debates about the proper place and scope of Islam in state and society. Amid considerations of moral right, public good, social need, economic growth, and political power, which is the modifier in the phrase “Islamic law”? That choice is more important, analytically, than it may initially seem: if law is to be the modifier, then Islamic law is the application, in part or whole, of the legal aspects of Islam, which contains approaches to commerce, crime, and administration. If Islamic is the modifier, on the other hand, then there are other kinds of law, authorized by another source of organizational power: commercial, criminal, administrative, and Islamic law is one department among them, applicable in certain cases to certain people. The tension between these two understandings of Islamic law continues to drive many debates about the place of Islam in the contemporary state, and fuels much confusion on the part of external commentators. Broadly speaking, it is the historical shift from an emphasis on the first understanding of Islamic law to the second, and its attendant implications for state authority and power, that this book will trace.

At a time when the presence and absence of Islamic law is a matter not only of statecraft but of popular politics, I seek a way to look past questions of the accuracy or fidelity of any system of “Islamic law” to shari’a, fiqh, or modern state ideals, toward the politics that drive its appeal and the nature of its claims—to look for the political struggles and compacts that underlie it, to understand its assumptions and claims, its reliance on the past, and its vision of the future. Law continues to matter a great deal in the making of the Muslim state, and the dynamics of elite politics, institutional structures, and international interests continue to shape legal outcomes throughout the Muslim world. Current concerns about the future of Islam in the state, the prospects for reform, and the politics of Islamic legal change make an understanding of the local and historical conditions of the contemporary Muslim state even more critical. Given recent political and legal controversies in many Muslim states, the need for deeper understanding of the politics of Islamic law has rarely been greater; at a time when misunderstanding of the core dynamics of Muslim states and communities is prevalent, the need for systematic study of the underpinnings of contemporary Islam has rarely been more pressing.

This study should not be read as an argument for or against Islamic law, the shari’a, or the Muslim state. There are some readers who may infer that to say that Islamic law is political is to say that Islamic law is man-made—surely an argument that diminishes the shari’a. That is not my intention—surely the classical scholars of fiqh saw men and women to be crucial interlocutors for God’s law. Certainly the history of the past two centuries shows that the struggle over Islamic law was fueled by piety as well as by polity, by the commands of Allah as well as by the power of men. Muslim societies today continue to struggle to define what is Islamic, what is possible, and what is appropriate: a better understanding of past struggles may help inform future movements, whatever direction they take. Neither is this project meant to provide a historical account of changes in the letter or institutional form of shari’a or fiqh: throughout this study, Islamic law will be explored as a contingent and constructed political space, through which historical processes work and through which state, society, and individuals in the contemporary Muslim world might be better understood.

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