Saturday, June 21, 2014

The Colonial Origins of Muslim Law

Muslim personal law has been a hot button topic for the past 30 years and every time there are even hints at doing away with it, certain segments of Muslims raise a ruckus, drawing on religion and tradition to make their case.

In that regard, Ayesha Jalal’s book Self and Sovereignty: Individual and Community in South Asian Islam Since 1850 does a good job of revealing the MPL as nothing more than a colonial creation. Under the Mughals et al, the Muslims of the Subcontinent followed a bewildering variety of laws and customs and it was only after the colonial state had created religion-based political communities of “Muslim” (and “Hindu”) that Muslims started to clamour for a law (ostensibly) based on an interpretation of the sharia. Here is an interesting excerpt from the book:
Bombay and the Central Provinces were sparsely populated by Muslims.
But a Muslim majority region did not necessarily mean the greater admissibility
of Islamic law. At the time of its annexation, the Punjab had no ‘authorised
expositors of Muhammadan law’. Initially the courts dealt with Muslim
personal law by referring to non-official qazis in whose fatwas the disputants
had confidence. This was also the administrative practice in the frontier
districts. In these areas custom superseded Islamic law on matters of
inheritance. With few exceptions, Muslim women were rarely allotted their
assigned share in Islamic law. In special cases a Muslim woman without any
sons could inherit the property of her deceased husband like a Hindu widow.
The question of when Muslim law was superseded by custom arose only when
a party claimed to be ruled by one as opposed to the other. Despite numerous
departures in practice, Muslims of Peshawar and Derajat as well as Rawalpindi
divisions claimed to follow Islamic rules of succession. Such assertions were
‘partly dictated by bigotry and partly by ignorance’. Outside a select circle,
Muslims were more likely to ‘feel aggrieved if their customs…g[a]ve way to
Muhammadan law’ since ‘they have never been accustomed to observe it’. The
problem was ‘not so much to ascertain what the Muhammadan law [was] as to
discover how far it [was] followed’.

As Justice W.H.Rattigan explained, Muslim law scarcely mattered in the
Punjab because the people themselves ‘adhere[d] …to a different system’.
After taking over the province, the British had tried to ‘preserve the traditions
both of Hindu and Muhammadan law’. During the first twenty years, ‘instead
of superseding Muhammadan law’ the British did ‘a great deal to introduce it
into a country where it was practically unknown’. But the Punjab Laws Act of
1872 gave primacy to custom in civil cases. George Campbell, the originator
of the idea, defended it on the grounds that one out of a hundred Muslims in
the Punjab was governed by the strict provisions of Islamic law. By privileging
custom, Punjabi Muslims had voluntarily overlaid the sharia. Disputants
seldom raised complex questions on Muslim personal law which were covered
by the Punjab civil code of 1854.

Cornered by the logic of its own categorization of the Indian Muslim
and the expediency of accommodating local customary practices, the
colonial state chose to contradict itself than engage in the unrewarding
task of enforcing legal consistency where none existed. When it came to
the machinery of law and justice, the British kept the guardians of legalist
religion at a safe distance.

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