Transformations of Islamic law in the Modern Period: From Colonial to Post-Colonial
Panel V-09, 2020 Annual Meeting
On Wednesday, October 7 at 11:00 am
Panel Description
How and why has Islamic law changed over the course of the modern period? This panel, entitled “Transformations of Islamic law in the Modern Period: from Colonial to Post-Colonial,” explores both continuities and ruptures in legal reasoning in the 19th and 20th centuries. Historians and anthropologists of Islam have debated the breadth and depth of this shift: while one side of the debate emphasizes the ways in which new modes of political, social and economic organization transformed Islamic law, the other argues for the continued relevance of a diachronic Islamic ethical tradition that includes but is not limited to legal observance. In parallel, scholars of colonial and post-colonial history have challenged a previous generation of research that emphasized the rupture between these two periods by showing significant continuities in legal reasoning, gender roles and the composition of elites. This panel seeks to bring these two debates together by foregrounding the ways in which Islamic law developed under colonial rule and how its logic and structure persisted in some instances and was transformed in others through the transition to national independence.
To do so, we explore the negotiation of the Islamic tradition from Egypt to Afghanistan to the Netherlands Indies (present day Indonesia). The presenters eschew a singular focus on the Arab world or a tendency for scholarship on Islamic law to silo itself geographically between an Arab “center” and non-Arab “periphery.” The first paper examines the emergence of the Egyptian Shari?a Supreme Court (al-Mahkama al-‘Ulya al-Shar‘iyya), and its role in transforming Islamic judicial practice in the late 19th and early 20th century. The second paper then moves from Egypt to Indonesia, charting the ways in which the Arab Diaspora in the Netherland Indies sought to exert their influence on fellow Muslims by seeking to generalize particular interpretations of Islamic law. The third paper shift northward, analyzing how government ministers in newly independent Afghanistan and legal scholars in British India debated the expansion of female education and longstanding interpretations of Islamic law on this matter. Finally, the last paper returns to the Middle East, tracing how Salafis across region transformed the longstanding boundary between acts of worship (‘Ibada) and Custom (‘Urf) between 1930 and 1990. Collectively, these papers thus cast light on the political shifts, demographic migrations and intellectual transformations that have underlaid changing understandings of Islamic law between colonial and post-colonial periods.
Purist Salafism arose in the 20th century, trumpeting a commitment to deriving all law from the Quran and Sunna, and to eliminating polytheism (shirk) and unlawful innovation (bid?a) alike. In its stead, this movement’s scholars articulated an understanding of God’s oneness (Tawhid) that pivoted on the centrality of worship (‘ibada) to daily life. This paper, however, argues that the Salafi conception of worship itself represents a significant rupture with both the early centuries of Islamic jurisprudence and the subsequent Islamic legal tradition because of the way in which it drastically reconfigures the boundaries between this category and that of custom (‘ada/‘urf). This innovation enabled Salafi scholars to offer a comprehensive theological and legal vision that paralleled the claims made by secular-nationalist states and Islamist competitors alike to shape daily practice.
To make this argument, the paper draws on an extensive personal archive of Salafi pamphlets, periodicals and legal works produced across the Arab World between 1930 and 1990. It is centered in Egypt, particularly on the country’s leading Salafi organization, Ansar al-Sunna al-Muhammadiyya and its flagship journals, al-Hadi al-Nabawi (1936-69) and al-Tawhid (1973-81, 1983-present). Just as importantly, though, it is engaged with legal and ideological debates by Salafis and non-Salafis across the region, drawing in particular on the Syrian Salafi periodical al-Tamaddun al-Islami (1936-81), the official journal of the Islamic University in Medina (1968-80), and the Kuwaiti Muslim Brotherhood’s al-Mujtama? (1970-92).
The argument of this paper is not that Salafis discarded the distinction between devotional acts and custom. Instead, it is that they broadened the domain of worship by redefining the category of custom as a constituent component of worship. It further shows that, while such a conversation had precedence within a longer Islamic legal tradition, the debates of this tradition were not the primary field of contestation. Instead, the move to expand the domain of worship was driven jointly by challenges of colonial rule, post-colonial secular nationalism (and its attendant understanding of customs as a core component of communal identity), and the claim of the Muslim Brotherhood to offer a comprehensive ideological program.
This paper explores the creation of the Egyptian Shari'a Supreme Court (al-Mahkama al-'Ulya al-Shar'yya), thereafter SSC, and its key role in managing Islamic judicial practice in the late 19th and early 20th century. I argue that the SSC is an example of a modern Islamic judicial institution that binds Muslim juristic scholarship with tight procedural requirements for dispensation of justice and emerging notions of public policy and procedural justice. The operations of the SSC demonstrate not only the centrality of the institutional apparatus––the Ministry of Justice, provincial shari'a courts, judges, and Shari'a Lawyers’ Bar Association––in fostering any potentiality for the shari'a as a system of governance but also the transfer of the authority of the Chief Judge––an Ottoman administrative judicial position that used to exercise oversight on shari'a courts––to this new institutional apparatus. It was through the creation of this higher court that Islamic judicial practice in lower courts across Egypt was readjusted to a set of evolving norms concerning internal coherence within the shari'a judicial practice, adoption of procedural rules to reflect the directives from the Ministry of Justice, and careful attention to the updated rules of evidence and appeal. To explore such dynamics, I center the Hanafi school of law in the operation of shari'a courts in Egypt until 1955 and I examine two court decisions with regard to the inheritance rights of patronate (wala' al-'itq) of manumitted slaves and their patrons.
In the Netherlands Indies, the Arab diaspora tried to exert their influence on fellow Muslims by generalizing particular interpretations of Islamic law to other Muslims but their efforts were curbed by Dutch authorities keen on checking Arab influence over other colonial subjects. Eventually, the few high-profile alliances between Arab subjects and Dutch authorities served Dutch interests more as the latter gathered knowledge on Islam with a view to control and police the lives of Indonesian subjects in religious affairs.
In 1924, the government of Afghanistan wrote to the Jam'iyat 'Ulama-yi Hind looking for legal justifications to support Amir Amanullah Khan’s (r. 1919–1929) proposed reforms—particularly those relating to female education. Known for securing Afghanistan’s independence from the British and now recognized as a pioneering modernizer and renegade constitutional monarch, Amanullah introduced a series of reforms during his reign that one scholar has recently characterized as “a burgeoning model of Islamic legal modernism.” Yet the story of Afghanistan’s experiments with Islamic legal modernism are greater and extend beyond the history of a single state. Taking the above claim about Afghanistan seriously, then, this paper offers a close reading of the exchange between Kabul and Delhi to interrogate ideas about Islamic legal reform, Islamic modernity, and inter-Islamic circulations at the time of waning empires and rising nation states.
In recent years, there has been a renewed interest in the idea of the Islamic world, Muslim cosmopolitanism, pan-Islamic connections and circulations, and the importance of inter-Islamic intellectual networks that gave shape to modernist ideas in the context of new nation-states and national(ist) reforms. This scholarship not only draws attention to the rich potential of examining cross-cultural and trans-regional connections but also raises questions about the directions in which influences, information, and ideas flowed. Building upon this expanding field of research, this paper focuses on one instance of inter-Islamic exchange from the beginning of the twentieth century.
At one level, the exchange between Amanullah’s government in Kabul and Mufti Kifayatullah (d. 1952) in Delhi revolved around the Amir’s proposed reforms for female education and the Indian 'ulama’s ability to provide legal justifications for the government's proposal. At another level, the exchange broached a range of topics from the relationship between Muslims and non-Muslims, to the idea of a global ummah, to questions of Islamic authority in the wake of the Ottoman empire’s collapse. Placing this exchange within the broader context of inter-war international affairs allows it to speak to broader issues of Islam, law, and governance that undergirded the Amir’s approach to reform. In drawing attention to the nature and context of this exchange, I argue that the 'ulama played a key role in supporting “modern” reforms that on the surface appear detached from “tradition.”
