‘Islamic law’ in the British post-colonial world, as an example, is neither simply the shari’ah codified, nor the autonomous domain of Muslim elites, but occupies a middle ground constructed by the interaction of multiple circulations of law, actors, ideas and institutions. This middle ground seems at one and the same time to be a marginal legal space and a central symbolic and political space. This paper takes as its point of departure the travels of British colonial law: it traces the path of laws concerning Islam and Muslims from the United Kingdom to India, Egypt and Malaya in the late nineteenth century, following colonial agents as they attempted to define state, criminality, private property, and social order. Upon arrival, though, these officials negotiated the content, scope and meaning of law with local elites, whose interventions had enormous importance for the eventual domestication of law. These elites at times drew from other circulations of law in which they were active participants, such as laws taken from the Ottoman system. British colonial concerns for stability, private property, order and justice required accommodations with some local elites who saw opportunities for the furtherance of their own varied interests. Rather than a monolithic Arab export, therefore, Islamic law is a product of negotiations (at many time and in many places) both local and transregional, negotiations that themselves had multiple outcomes. The most important of these, for the purposes of this project, were the transformation of local elite Muslim identity, the increased role of the state in the administration of Islamic law, and the construction of a limited space within which Islamic law could be administered.

Muhammad Qadri Pasha’s code of “personal status law,” published in 1875, was a manual of reference in Egypt’s Mixed Courts and National (Ahli) Courts, and was taught in the Khedival Law School. Thus although not enacted as law, it significantly influenced modern Egyptians’ understanding of Muslim family law. It also was introduced in Sudan, Palestine, and Iraq under British rule, and was a source for Morand’s Algerian code (1916) and the Syrian personal status law of 1953. Qadri attended the School of Languages directed by Rifa`a al-Tahtawi, and later taught there. He participated in the translation of the French codes into Arabic and became an expert in comparative French and Islamic law. It is likely that he was influenced by French scholars’ discussion of the need to “systematize and rationalize” Islamic law in a code. The influence of colonial Algerian jurisprudence is evident in his borrowing of the term statut personnel (al-ahwal al-shakhsiyya) to refer to Muslim family law administered within an otherwise French civil law system. His code resembles a European code, with numbered chapters, sections and paragraphs, for easy reference. In addition to addressing the influences on and of Qadri’s personal status code, this paper will discuss how the process of codification transformed the Sharia, originally a jurist’s law, into positive law. The illustrative issue is whether and how far a husband is permitted to force his wife to move from the place they were married. A comparison of Qadri’s code with the works of leading nineteenth-century jurists shows that he opted for the contemporary juridical practice (`amal), whereby a husband was permitted to move his wife less than a three days’ journey. In the discussion in the juridical texts it is clear that this was a practice based on a contingent interpretation (ijtihad). Yet by inscribing it as a rule (hukm) and eliding the discussion of the juridical history of this question, Qadri gave that practice a greater degree of authority than it would have had otherwise, and closed the door to further discussion of the issue. In sum, by rendering the Sharia in the form of positive law, codification radically transformed it. Although Qadri’s code was the work of a civil servant in a non-colonized state, it was the product of transnational flows of colonial knowledge, including the need to “systematize and rationalize” Sharia.

My goal in this paper is to discuss the changes underwent by the Palestinian sharia courts in the pre-mandate years (1917-1922) following administrative decisions made by the British authorities concerning the legal system they inherited from the Ottoman Empire. I will argue that during these five years, the colonial administration turned the sharia courts into Muslim communal courts for personal issues. This was a major change. Historians of Islamic law tend to perceive the Ottoman legal reforms of the nineteenth century as a turning point in the status of the sharia courts (and Islamic law, as a whole), when their jurisdiction was restricted for the first time to family law and personal status. Subsequent changes in the post-Ottoman nation states are thus perceived as a "natural" continuation of an overall process of marginalization. I argue, in contrast, that the Ottoman sharia courts were not on their way to marginalization when the Ottoman Empire lost the war and eventually, shrunk into a Turkish nation state. Granted, the new Ottoman Family Law (October 1917) included for the first time changes in substantive sharia family laws, but certain aspects of this code indicate that the Ottoman legislature did not mean to reduce in this way the role of the sharia courts in the Ottoman judicial system; on the contrary. At least in the Palestinian case, the change in the status of the sharia courts following the defeat of the Ottoman army was an immediate outcome of measures taken by the British administration, aimed at restructuring the judicial system in Palestine. I will present in this paper preliminary findings from my current research, which explores the dynamics that shaped the transformation of the sharia courts during these formative five years. My sources include Palestinian sharia court records, documents from Müftüluk (the archive of ?eyhülislam), Ba?bakanl?k (the Ottoman state archive), and the British National Archive.

During the Italian occupation of Libya from 1911 to 1943, colonial judges faced the problem of having to adjudicate over matters related to Islamic law or customary practice that were entirely absent from Italian legal codes. Although they accepted the general principle according to which Italy would respect local customs and principles of Islamic law, the absence of a clear and written compendium of what ought to be considered the local custom or shari‘a made it impossible for the colonial courts to pass judgment on such matters that referred to principles or institutions linked to Islamic law or customary practice. This was especially problematic in matters related to criminal law and law of contracts, which were under the sole jurisdiction of the colonial tribunals. In order to overcome this shortcoming, from the very outset of the colonial enterprise Italian authorities established that the sentences of the Court of Appeals of Libya constituted a body of jurisprudence that had binding legal value whenever there was silence of the law. The underlying idea behind this procedural novelty was that the sentences of Libya’s Court of Appeals would be the most immediate way to start sketching a new legal framework that would take into account local realities that found no correspondence in the Italian legal codes. The idea that a court ruling could become a legal norm is not without its problems, since, unlike common law, the Italian positive law rejected the formal use of court verdicts as a legal precedent. The recourse to such a system attests to the large degree of improvisation in which the colonial courts of Tripoli operated in order to make up for the absence of appropriate laws necessary to rule on customary or Islamic law matters that the Italian legislators were confronting for the first time. In this paper I propose to analyze how Italian authorities in Libya went about using the sentences of the Court of Appeals to create legal precedents in matters related to principles of Islamic Law and customary practice. A general discussion of the topic will be followed by a close look at the jurisprudence of the Court of Appeals of Tripoli on four matters that illustrate how Italian authorities sought to harmonize Islamic and customary law with their own colonial legal order. These four topics are: the right of pre-emption (shuf‘a), blood money (diya), Muslim Treasury (bayt al-mal) and patronage (wala’).