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State Building: Law, Surveying, and Boundary Making

Panel VIII-28, 2023 Annual Meeting

On Saturday, November 4 at 11:00 am

Panel Description
  • Ms. Yosra Hussein
    In Badāʾiʿ al-Zuhūr fī Waqāʾiʿ al-Duhūr, Muḥammad Ibn Iyās al-Ḥanafī (1448-1522), the famous Mamluk chronicler, narrates a compelling story of an unusual case of adultery involving the wife of a ḥanafī judge cheating on him with a shāfi‘ī colleague. Adjudicated by the chamberlain (ḥājib al-ḥujjāb) at the time, the case reaches Sultan Qānṣawh al-Ghawrī (1441- 1516) who overrules the chamberlain’s verdict and sentences the couple to death by stoning, countering the advice of the four chief judges of Cairo. Against the backdrop of this story, presented before and adjudicated by a maẓālim court, this research examines questions on the shar‘īness of maẓālim. Was maẓālim-justice distinct from that of sharī‘a? Were maẓālim a secular sphere of justice in the hands of the executive? Could we speak of maẓālim as a mere political tool at the disposal of the Sultan used to curtail the supposedly independent sphere of qāḍīs? Investigating the historiography on maẓālim courts in the Islamic tradition, this paper argues that maẓālim and those residing over them—be it a sultan, a deputy, or a qāḍī—thought of their roles to fall right within the boundaries of sharī‘a, though with distinct tracks of investigation, establishing evidence, and punishment. Arguing against scholarship that approaches maẓālim in contradistinction to shar‘īa (Schacht, 1983; Nielsen, 1985; Fuess, 2009), the present work shows how such accounts apply a modernist categorization anachronistically by extending the separate spheres of the shar‘ī and the secular to the Islamic past. Contrasting these accounts, it traces how the very institutionalization of maẓālim grew in close proximity to ideas of ‘adl (justice)—as understood through concepts like the circle of justice (Darling, 2006). Understanding this wholistic conception of justice as crucial for the perpetuation of the ruler’s reign, their image, legitimacy, and legacy— I argue that a symbiotic relationship between the executive and realms of justice, envisioned through sharī‘a, uncovers how such analyses continue to employ modern ideals of separation of power and checks and balances. Using chronicles and annalistic sources of the Mamluk period as well as fiqh works, this work investigates how the actors involved (the sultan, the chamberlain, and the qāḍīs) viewed their own roles. In so doing, it undertakes a close reading of these sources, taking seriously their own understandings and articulations of their roles in serving justice and how this justice relates (or not) to sharī‘a.
  • The paper traces the history of the modernization of Islamic law in Egypt during the early twentieth century through examining the education and authorship at Madrasat al-Qaḍāʾ al-Sharʿī (The College of Sharʿī-Judges). Three main forces contributed to the process of the modernization of Islamic law: Iṣlāḥ (reform) movement, the colonial power and the modern nation-state. The paper argues that the reformist scholars, professors and alumni, of Madrasat al-Qaḍāʾ al-Sharʿī were at the forefront of the modernization process that aimed to make Sharīʿa compatible with modern laws and nation-state values. The research examines two main ways reformist scholars contributed to the reformation process of Islamic law. Firstly, the reinforcement of the comparative approach in studying Islamic law was provided by those scholars through developing al-fiqh al-muqāran (comparative Islamic law) as well as the extensive comparative study of Islamic law with modern Western laws. Secondly, it gave the state the legal authority, through the reinterpretation of al-siyāsah al-sharʿīyah (politics of Islamic governance) based on maṣlaḥah (public benefit), to select the legal opinions that fit its needs and to enact new legal positions that may contradict the views of the premodern legal scholarship. These two projects paved the way for the final stage of the codification of law in Egypt by offering a spectrum of views and by legitimizing the legislative authority that could allow the state to choose the legal opinions that fit its demands. The paper traces and examines these ideas in the writings of some of the scholars affiliated with the college whose impact continued even after the college closed in 1930 as some of them assumed teaching positions at the newly established Sharīʿa and law colleges at Al-Azhar, Cairo University, and Dār al-ʿUlūm.
  • This paper will examine how European colonial surveys relied upon existing surveying traditions in the Middle East, yet by transforming it into a tool of control and colonization. Surveying had a long history in the Ottoman Empire, which used it for social and political practices ranging from distribution of shares to taxation. Most mathematical practitioners like surveyors were architects or scholars who were trained on site in collaboration with them. However, there happened a shift in the surveying practices in line with demands to have well defined borders during the Ottoman diplomatic exchanges with European countries such as Austrian-Hungarian empire. On the other hand, in Egypt, French colonialists introduced new surveying methods for efficiency. Yet, despite the emphasis on the transfer of European knowledge, the impact of existing surveying traditions and the ways in which diverse surveying methods merged, which enabled the colonization of lands, have been rarely studied. Today, recent scholarship shows that the science of surveying, used in a variety of areas such as architecture and building infrastructure like irrigation canals, developed into a complex system under state control in the Ottoman Empire between the 16th and 18th centuries (Kale 2019, 2020). What was the impact of these enduring traditions on colonial surveys? How did European surveyors manage to survey vast areas in foreign lands, which is impossible to consider without taking into consideration the local surveyors’ and workers’ efforts? I will explore such interactions based on a few case studies on border making, building waterways, and the division of lands.
  • Dr. Carl Shook
    This paper examines the relationship between the law and the creation of Iraq’s national territory and citizenry in the context of British Mandate rule in Iraq between 1920 and 1932. Specifically, I examine the possibility for, and scope of, a relationship between the mandate-era Tribal Criminal & Civil Disputes Regulation (TCCDR) and the process of delimiting, or “bordering,” Iraq, and defining its citizens. This is important because the population that this law specifically targeted – persons identified as “tribal” – were the overwhelming majority of people living in the highly sensitive and evolving borderlands between Iraq and Mandate Syria, Trans-Jordan, and the kingdom of Ibn Saud. The developing field of Iraqi border formation rightly examines the diffuse security, commercial, and political factors involved in the process of boundary making after WWI, but is yet to directly implicate the very law that shaped governance over those most impacted by those new borders. In this study, I will argue that the TCCDR was a factor in the origins and development of Iraq’s boundaries formed under British rule between 1920 and 1932. In addition to a thicker and more cohesive picture of boundary making in Iraq and the region, and a series of new evidence about the lived effects of Iraq’s notorious dualistic legal system, this paper’s most significant contribution is to the growing body of research that shows the borders of Mandate-era Iraq, like most other states, were not arbitrary or pre-determined, but deeply embedded in their political, social, and historical contexts. To do this, I ask: What impact did the TCCDR have on processes of early Anglo-Iraqi territorialization and boundary making, and vice versa, and how did this tribal law code inform AND reflect ideas of Iraqi-ness and citizenship at the physical (largely rural) margins of the new state? To answer these questions, I employ the theoretical frame of legal impact – how laws influence society in intended and unintended ways – at the level of communal (tribal) relations to the nascent Iraqi state and its constituent institutions and legitimizing discourses of authority. In addition to the TCCDR, my sources are the Iraqi Nationality Law of 1924, the reports of Iraqi and British administrative and intelligence officers working in the provinces, and petitions and other sources by impacted tribal leaders.