A. Sharī ʿa and the Translation Problem: Between (Crypto-) Islamism and Islamic Nomocracy

In the voluminous literature on the concept of “Islamism” (and its close cousin, “political Islam”), more serious work urges caution in understanding the forces that drive the varieties of agitation that can be grouped under its heading.Footnote ¹³ The oft-proclaimed importance of Islamic doctrine must, therefore, be balanced against the fact that it is all too easy for both actors and observers alike to assume that normative religious ideas are the sole or main source constituting political outlooks and undertakings.Footnote ¹⁴ However, despite the potentially teleological overtones of the concept,Footnote ¹⁵ there does remain good reason why it is worth retaining. Because the notion of Islamism highlights a shared point of view according to which its partisans can be understood to hold credible (despite the problem of circularityFootnote ¹⁶ ), the prospect that there is a form of collective life the Islamicity of which can be made to follow deductively from the rules—both substantive and epistemic—of a type of law that is, itself, autonomously Islamic in some meaningful sense.

Viewed in this way, Islamism cannot simply be regarded as a mutation of modernity. As a set of abstract intellectual commitments, its various incarnations build on a long-standing tendency within the history of Islamicate civilizations to envision the sharī ʿa as a kind of normative infinity. Within the canonical Islamic sciences, there has always been a project of fashioning means for conceptualizing the sharī ʿa as an all-encompassing scheme of normative ordering. Its total collection of substantive “legal determinations” (the ahkam al-sharī ʿa) have therefore been depicted as being grounded in a deeper foundation of epistemic norms comprising the distinct discursive field of the uṣūl al-fiqh. Elaborating the “roots of jurisprudence,” uṣūl discourse has long been seen from within the tradition as clarifying meta-rules about permissible sources for discerning valid juristic conclusions. Among these are not only textual sources such as the Quran and the verbalized recordings (ḥadīth) of the practices and pronouncements of the prophet and his early community (sunna),Footnote ¹⁷ but also nontextual sources such as “interpretation” (ijtihād) and the “consensus” (ijmā ʿ) of the community (of expert jurists).Footnote ¹⁸ (Although usually described as “sources,” these nontextual “roots of jurisprudence” might better be seen as constraints on properly reasoning with or in deference to textual sources proper.)Footnote ¹⁹

At the same time, Islamism is obviously not any completely straightforward extension of the past. Even putting aside larger questions about the structural changes in political and economic context that have gone hand in hand with modernity, the equation between “sharī ʿa” and “law” that undergirds Islamist orientations depends on anachronism. The exponents of political Islam thus borrow liberal legalism's (quasi-Austinian) hyper-positivism insofar as they too envision whatever the state—in this case a so-called Islamic state—does (or would do) as a form of its “legal” output.Footnote ²⁰ For this very reason, Islamist orientations do not simply coincide with, but also necessitate a blindness to what I have been calling the translation problem.

Although the translation problem has clearly been more pressing for scholars from the secular academy,Footnote ²¹ even here, consistency in enjoining the equation of “sharī ʿa” with “law” is rare. In discussion of the formative period in the sharī ʿa tradition's development prior to the nineteenth century, for example, restraint in rendering the two synonymous has usually been invoked only to be jettisoned as needed.Footnote ²² Nor has the comparativist's discussion of the legal systems of the contemporary Muslim world demanded any serious reckoning with the problem, the need to do so being limited by the very nature of the enterprise. Whether by way of overcorrecting for orientalist allegations about the discretionary nature of “kadi justice,”Footnote ²³ or on whatever other grounds, discussion has often instead insisted on the nomocratic character of the sharī ʿa tradition. In the scholarly renaissance that has given rise to the new field of Islamic legal studies since the 1990s,Footnote ²⁴ a further convergence has thus inadvertently resulted with the viewpoint in which Islamism itself is grounded.Footnote ²⁵

Even the most vociferous exponent of the idea of a sharī ʿa-based nomocracy now seemingly senses as much. In recent years, the esteemed scholar Wael Hallaq has thus explicitly called for “the modern nation-state and Islamic governance” to be thought of as differing radically in kind.Footnote ²⁶ According to this view, the “sharī ʿa practices” of contemporary Muslim states (let alone those proposed by agitators for more militant forms of political Islam) are “simply irrelevant” for understanding pre-nineteenth-century paradigms of sociopolitical ordering.Footnote ²⁷ Although in one sense it may appear ahistorical to so rigidly distinguish past from present in the evolution of Islamicate juridical life, in another it is anything but.Footnote ²⁸ This is because Hallaq's dichotomy is simply an extension of the view that the passage through the nineteenth century entailed the (quasi-) colonializing force of European encroachment transforming the sharī ʿa. Confined to domestic affairs alone, whatever of its contents remained were subordinated to the very ruling order—of the modern nation-state—that negated the forms of (nomocratic) governance that it had once underpinned.Footnote ²⁹ In contrast both to those focused on the premodern past and to those trained in the legal systems of contemporary Muslim states, scholarship on the long nineteenth century has implicitly embraced, more than shied away from, the translation problem.Footnote ³⁰ For more than a generation, the common sense position has been that legal modernization made an elision from “sharī ʿa” to “Islamic law” the very content of history itself.

B. Limits to the (Traditional) Thesis of Domestication

In effect, then, the traditional thesis of domestication mitigates the otherwise discomfiting resemblance between modern Islamist orientations and the more sympathetic scholarly picture of the historical sharī ʿa tradition as a font of nomocracy. It is notable, therefore, that in recent years scholars—including of the Islamicate world—have begun to sharply qualify received wisdom about law's modernization amidst European empire as the imposition of an alien legal knowledge onto the mutilated norm traditions of subject/subordinated peoples. As with the study of knowledge, power, and modernity more generally the understanding of legal orientalism has been shifting away from earlier readings of the relationship between colonizer and colonized in binary terms.Footnote ³¹ Where the colonial legal encounter is concerned, however, this has been rooted less in any mission to find continuity where others previously saw rupture than it has been in emphasizing the always dialogic and processual nature of its output.

In some cases, the qualification of the received view has more specifically meant prioritizing an embodied or institutionally mediated understanding of the law, or as Lauren Benton summarily puts it, one based on the new frames of “legal politics,” “jurispractice,” or “legal practice.”Footnote ³² Independent but complementary is the emerging focus on the transnational movement of lawyers, judges, and litigants through empire's legal circuits, whether on “itineraries” of travel across Indian OceanFootnote ³³ or from the colonial interiors of Nigeria to the metropole to appear before Britain's Privy Council.Footnote ³⁴ Still others have proposed to simply re-embrace the methods of traditional intellectual history, as in an important recent study of Islamic jurists and their education in Egypt amidst “the reception of European law” after 1870.Footnote ³⁵ Even in work that continues to make its connection to Edward Said's Orientalism more explicit there is a detectable hesitancy about earlier ways of seeing the long nineteenth-century legal encounter with non-Western juridical traditions. Again summarizing larger trends, Carol Tan finds a “more nuanced, complex, and more complicated, picture” in new work on “law and orientalism.”Footnote ³⁶ Speaking more narrowly, in his excellent 2013 monograph on Euro-American views about China's law/(supposed) lack thereof going back to the 1840s, Teemu Ruskola urges that we replace the “impossible morality of anti-Orientalism” with an “ethics of Orientalism.”Footnote ³⁷

In other instances, the shifting approach to legal modernization in the non-Western world has been tied up with an ongoing re-evaluation of the relationship between liberalism and empire, which has been moving beyond a concentration on the former's complicity in the latter.Footnote ³⁸ Whether by revisiting how Western liberal thinkers deployed legal concepts at the outset of European expansion in the New World,Footnote ³⁹ or by shedding new light on vernacular forms of Afro-Asian liberalism in the age of high imperialism, such work has been advanced both by juniorFootnote ⁴⁰ and senior scholars alike.Footnote ⁴¹ Tracking liberalism's ethico-legal categoriesFootnote ⁴² into the Indian countryside, for example, Andrew Sartori highlights how for Bengali actors even so central an ideological instrument of colonial “domination and exploitation” as “property” led a simultaneous life as a means of “vernacular” resistance to the same.Footnote ⁴³

Perhaps most directly qualifying the traditional thesis of domestication is the new spirit of questioning whether the main outcome of the legal encounter with empire really was to rigidify the norm content of the juridical traditions that it subordinated. As one important scholar of the Anglo-Hindu legal regime in South Asia puts it, the “focus on law as colonial construction has only taken us so far,” even possibly “mirror[ing] colonial officials’ own belief that there existed ‘pure’ and ‘authentic’ social practices that had been followed by Indians prior to rule.”Footnote ⁴⁴ Keeping to South Asia, with respect to its Islamic legal tradition, Nandani Chatterjee similarly observes that “[r]esearch published since 2000 has begun to point out that colonial rule did not merely” lead to the “fossilis[ation]” of its norms “as had been argued earlier, but also offered many opportunities for creative interpretation by those adept at negotiating the system.”Footnote ⁴⁵ This line of analysis reinforces (and is reinforced by) the aforementioned ones as well, adding to the sense that the lawyers and judges who staffed empire's rank were not simply unwitting tools for marginalizing non-Western law, but mediators engaged in complex processes of adapting it.Footnote ⁴⁶

Important as the ongoing revision of our understanding of legal modernization in the (quasi-) colonial world is, it makes it harder, not easier, to address the translation problem is a key limitation that its various strands share. When the product of empire's long nineteenth-century encounter with non-Western juridical forms is seen less in terms of their marginalization than in terms of their adaptation through embodied intellectual and cultural ferment, there becomes much less reason to regard the law other than from the standpoint of its naturalization; and as noted earlier, especially in the Islamicate context, this is bound to be a mixed blessing. Without pushing the translation problem to its logical limit (in the way that Hallaq has, in recent years) the seemingly crypto-Islamist implications of seeing the sharī ʿa tradition's past in terms of a supposed nomocracy it underpinned will remain unabated. In other words, if the passage through the long nineteenth century primarily involved adaptation rather than transformation, the sharī ʿa tradition of the past becomes a consistent basis for a rule of Islamic law in the present/future.

A. From Family to Household in the Anglo-Common Law Mainstream

Without denying the unquestionable insights qualifying the traditional thesis of domestication, one way around the difficulties that they produce is to begin from the historical contingency of the law in general rather than just from Islamic law in particular. A different perspective can thus be opened by situating the long nineteenth-century domestication of the sharī ʿa in the wider context of what has been called the rise and globalization of classical legal thought. Although there are various ways to understand classical legal thought—including those that too reductively equate it with an era of formalistic “mechanical” jurisprudence—it is Duncan Kennedy's that remains most lucid.Footnote ⁴⁷ In a recent discussion of the prehistory of the family/patrimony (or the family law/market law) distinction in the work of the great nineteenth-century German jurist Friedrich Carl von Savigny, Kennedy observes that “[i]t seems to be now quite generally agreed that in the second half of the nineteenth century the Western legal systems entered a new phase, classical legal thought, involving a variety of transformations of the legal thought of the previous early modern period.” Among the key characteristics that rendered classical legal thought an internally coherent attitude was, first, what Kennedy calls “the will theory, i.e., the theory that law derives either from private or from public will, with the distinction between the two being of primary importance, and with the dominant imagery being that of wills as ‘powers absolute within their spheres.’” Second, there was the “deployment and redeployment of the public/private distinction as the central way of organizing legal rules within both public and private law; in other words, the nested (chiasmatic) repetition of the distinction within each of its iterations.”Footnote ⁴⁸

As I have sought to highlight elsewhere, there was also another key feature of classical legal thought that was made particularly clear in the colonial/quasicolonial world that partook in the global history of its rise outside of the Western legal mainstream.Footnote ⁴⁹ This was, namely, the patently metaphysical implications that went with the classicizing attitude. As a scientizing schema for organizing the parts of a norm system—called by the name of “the law”—that was imagined to be a perfectly integral whole capable of encompassing any actual or potential social fact, classical legal thought was a means of ontologizing its object as a world historical universal. As such, it also was an answer to the great question of jurisprudence—about what law really is—that had several other convenient implications. First, classical legal thought helped quell the once highly troubling issue of whether social formations outside of the West were not also organized historically other than on the basis of discretion, given that they too clearly had “laws” that factored into the administration of justice. Second, within the form of legal consciousness that it inspired, classical legal thought dispensed with any necessary connection between law and the state;Footnote ⁵⁰ it did so, not uncoincidentally, at the very same time that the former was obviously becoming ever more a function of the latter, as politics and administration were further enclosed within the liberal archetype of the territorial bureaucratic state's perfect circle of legalist legitimation. Both of these implications are indicative of a third as well, because the rise of classical legal thought was not simply tantamount to early-nineteenth-century German or continental jurisprudence being incorporated, after a lag, by common law thinkers. To understand matters in such terms is to lose sight of the nature and extent of the British Empire by the end of the nineteenth century; because even if classical legal thought was simply Germanism Anglicized, it was still painted on a much wider canvass from that upon which its palette was originally dispersed.

Judged from the ontologizing standpoint of classical legal thought's own imaginary, therefore, nothing peculiarly imperialistic distinguished the concern of the colonial state in a place such as India with determining the contours of the law of (personal) status by which jural relations within the domestic community (of the family) were to be governed. Rather than to marginalize the rules that normed such relations, discerning their scope and content was to anoint them as part of the law writ large. In this respect, elaborating a law of the family—or, as per the related heading, a law of domestic (status) relations—was not necessarily any different from discerning the principles of property and contract claiming to norm private jural relations in the market.

Although to this point I have been speaking of family law, the law of (personal) status, and the law of domestic (status) relations interchangeably, understanding the more precise relationship between headings these is not simply terminological. The idea of a distinct law of the family—a Familienrecht—for example, appeared only in the early nineteenth century as part of German pandectist thought. As Janet Halley has shown, it is consequently best seen as a historically contingent element within a shifting taxonomy for organizing knowledge about the legal. Building on Kennedy's analysis of Savigny, Halley demonstrates that whereas by the twentieth century the term family law had diffused into American and (later) English legal thought, this had not been the case earlier. Rather, given the burden of the common law past, post-Austinian efforts at systematization in the Anglophone context started from trying to identify the contents of what was instead more commonly identified as the law of domestic relations.

Underlying this project of discerning a law of domestic relations in the Anglo-common law mainstream was a shift away from “the household” as the relevant object of governance to “the family” and toward a “conceptual dependency” of the latter on the idea of contract.Footnote ⁵¹ As signaled in William Blackstone's famed Commentaries on the Laws of England, in the late eighteenth century, the household was still typically conceived as a community of oeconomical relations of neither a fully public nor a private kind.Footnote ⁵² As such, it was still inclusive of the laws governing relations between masters and servants and guardians and wards.Footnote ⁵³ The laws of the household thus stood alongside of the discourses relating to its proper management, which, as per the original meaning of our own notion of economics, continued to be tied to a know-how about the “proper husbanding of resources” and the “intelligent management of their circulation.”Footnote ⁵⁴ As Halley notes, “[t]his pattern corresponded with a social order in which cohabitation, legitimate sexual relations, reproduction, and productive labor were assumed to belong” to a single realm in which “the wife, the child and the servant were not just subordinate,” but each subordinate in a similar way. As the pattern came to seem “increasingly inopportune,” after the mid-nineteenth century, “the family”—in contrast to the household—came to be construed as a set of entirely noneconomic jural relations. The notion of the law of domestic relations in the Anglo-common law mainstream consequently excluded all but the rules for governing ties between husband and wife, on the one hand, and parent and child, on the other.Footnote ⁵⁵

Although the emergence of family law was thus a formal phenomenon, it did not simply involve formal change. Nor did the household have to fully give way to the family for formality to have been irreducibly linked to actuality. The very point of looking at the law's historicity in terms of a change in legal consciousness is to find a distinct level of actuality at which the link was undeniable. Appealing to legal consciousness thus provides a necessary supplement to emerging views of law's actualization in the form of its social embodiment through agentive jurispractice or new institutional forms for educating jurists.

B. The Conjugal Family in Late Colonial India

To whatever extent the transition from the household to the family was incomplete in the Anglo-common law mainstream when the law of domestic relations began emerging, it would have been that much more so in Britain's India.Footnote ⁵⁶ Moreover, the transposition of Halley's narrative onto the Indian context is further limited by the well-known fact that the Hindu family was legally constructed as a joint or undivided coparcenary/firm rather than any simple nuclear unit.Footnote ⁵⁷ Even so, however, British rule in the subcontinent was still clearly marked by the “ideological deployment of the family.” Partha Chatterjee, for example, has famously argued that the family came to symbolize “the last unconquered space under colonialism,”Footnote ⁵⁸ an inner “spiritual” realm for asserting a sovereignty otherwise denied over the “outer” realm of polity and economy.Footnote ⁵⁹ Others, in contrast, emphasize its role as being more akin to “‘an enterprise to be administered, an army to be led, [and] a state to be governed.’”Footnote ⁶⁰

Whatever the valence of the family, as in late Victorian Britain, in late colonial India as well there was clearly an increasing insistence on conjugality as the familial ideal. Whether through the rise of a “new patriarchy”Footnote ⁶¹ among middle class Bengalis or the discourse that often went with it about Western marriage being “loveless” (compared with the Hindu version),Footnote ⁶² the transformation from matrilineal kinship and hypergamous sexual practices to proper spousal unions among nair caste reformers on the Malabar coast,Footnote ⁶³ or the drive to discipline “concubinage” as an illicit institution in Tamil country,Footnote ⁶⁴ the “simple conjugal family of nationalist male aspiration” became a recurrent “site of desire” throughout British India, even if—as in the West—it was not any fully “accomplished fact.”Footnote ⁶⁵ No more than its Muslim counterpart did the Hindu undivided family make for any exception to this ideal, together with the “heuristic” separation it elicited between the economic and the noneconomic.Footnote ⁶⁶

Moreover, even in the legal sphere itself, the ideal of conjugality was hardly without impact. “From the 1870s onward” it was the marital relationship of the husband and wife rather than the relationship of either with their extended relations that became the center of the jural entity that the family comprised, its Hindu version included.Footnote ⁶⁷ Especially in the case of the Hindu family, early East India Company rule had effectively stopped well short of refashioning it into any kind of exclusively spiritual/cultural community, given the judiciary's insistence on treating jointness as a means for advancing the state's own extractive aims.Footnote ⁶⁸ However, in the wake of the transfer of power, even this tendency diminished markedly. After 1858, although jointness thus remained notionally important to Hindu inheritance law, the same was less and less true for any role it had in keeping movable property within families so as to create more readily targeted amalgams of unmarketed wealth/longer chains of liability for the Company to pursue debt servicing through.Footnote ⁶⁹ By 1870, the more expressly economic features that formally defined the Hindu coparcenary as a so-called household firm were themselves being sharply curtailed.Footnote ⁷⁰

If the principle of jointness remained (diminishingly) salient to questions about inheritance and succession among the subcontinent's Hindu communities, this does not mean that the colonial legal regime was any exception to the more general tendency for the household to be replaced by the conjugal family. No more than in eighteenth- or nineteenth-century England, in neither early nor late colonial India was there a need to norm questions about the intergenerational transfer of wealth via the rules of the so-called personal law that coded relations within the kin group as more versus less oeconomic in character. On the contrary, similarly to elsewhere in the world of classical legal thought, in India as well the family was made into a realm of ostensibly noneconomic relations because of a growing preoccupation with deciphering the rules for governing the two key relations that the ideal of conjugality was built on: of the parent and child, on the one hand, and of the husband and wife, on the other. As the next two sections discuss, it is against this backdrop that the question of how more precisely to understand marriage—whether as a relationship of status or contract—became key in late colonial India in much the same way as it did in the Anglo-common law mainstream more generally.Footnote ⁷¹

A. Contextualizing the Abdul Kadir Decision: Marriage as Contract or Status in Classical Legal Thought

As in many other parts of the world of classical legal thought, it should not be surprising that in India as well the law could become beset by confusion over how to see marriage. With the formal move from the household to the family, “marriage” as the strictly domestic jural relationship between husband and wife (rather than any mere way of pointing to husband and wife as oeconomical agents each in their own right) became “the critical category.”Footnote ⁹⁴ The question of how more precisely to conceive of that relationship therefore became increasingly important. Was marriage an ongoing state of relations characterized by “lifelong courses” of rights and duties that spouses bore in virtue of their differential capacitations as husbands and wives to bear rights and duties in the first place, as one prominent classical jurist put it?Footnote ⁹⁵ Or was it more like a willed and ostensibly mutual relation in which rights and duties were enforced through being made subject to rearrangement only by those party to the bargain themselves and actionable for breach?

Within the Anglo-common law mainstream, the confusion around the marital relationship was eventually contained through an overall arc that, as Halley puts it, witnessed a “double transformation” from the law of husband and wife to the law of marriage and from marriage-as-contract to marriage-as-status. “In the early decades of the nineteenth century,” as she further explains, “it was easy to answer that question affirmatively: marriage was a civil contract (like many other types of contract). But with the rise of classical legal thought, of free labor, and of separate spheres ideology, the answer to that question increasingly had to be ‘no.’ By the 1860s, the consensus view, even among early opponents of the idea, was that marriage was not contract. Instead it became status.”Footnote ⁹⁶

However, even if the view of marriage as contract in the Anglo-common law mainstream followed from the larger “separation of the law of familial intimacy from the law of productive labor,” the logics that were left to operate on its two sides were not completely severed.Footnote ⁹⁷ On the contrary, the law of the family stood as part relative to a whole made up by the law writ large, because together they formed a single norm system, the essence of which was to carve out realms of interest held absolutely by their respective (right) holders. Within these realms, legal persons could then be conceived or mandated to operate by the logic of some selection made from a shared and finite menu of animating principles rather than on a basis that varied in an ad hoc way from realm to realm.

Of course, in the high imperial worlds of Afro-Asia, the incentives for ontologizing the law took root amidst different assumptions about the subject's identity and civilization's level of progress. Here, the way in which the rules of “familial intimacy” or “productive labor” disposed of the possible realms of interest that different juridical individuals could hold were, therefore, all the more likely to be structured according to a mixing of the principles otherwise purporting to animate distinct subsystems of the law in the late-nineteenth-century Anglo-common law mainstream. This might occur, for example, through appeal to the idea that the state should capacitate spouses to treat marriage more like a mutually willed agreement than like a community of less than fully legalized kin reciprocity headed by he who held status as husband or father. One can even see how in theory the confounding question of how exactly to see marriage could leave the way open for counterpatriarchal assertion to take the more specific form of opposing its construction as a relation of status. In late colonial India, it was through argumentative moves gesturing in precisely such a direction that controversy over how to construe marriage first took center stage.

This occurred at one of the key doctrinal sites—involving suits for the restitution of conjugal rights—at which the equivalence between the taxonomic heading of the personal law in the subcontinent and family law/the law of domestic relations in classical legal thought ended up being worked out. It was, therefore, through a series of cases in Bombay brought by Parsi, or Indian Zoroastrian, wives against their estranged husbands beginning in the 1840s that conjugal restitution started to change from an obscure remedy of English ecclesiastical law to an ordinary civil remedy for breach of contract. Importantly, the process of transformation involved neither the straightforward assertion of the sovereignty of personal law concepts over the spoils of a marginalized domestic sphere nor any unitary ethico-legal category of contract being made to appear in whole cloth in the course of articulating a vernacular form of liberalism.

Rather, initially during the 1840s, the halting contractual view of marriage was evoked only as a small argument bite annexed to some always more protracted effort at convincing the Bombay judiciary to take up conjugal restitution cases under its general jurisdiction. This is not to deny that Parsi wives obtained an additional means of securing a real goal of alimony and maintenance against their more socially powerful husbands through such suits. However, the ability to use the law's systematically equivocal value of contractual individualism remained a double-edged sword. By the time the Parsi cases reached their zenith in the late 1850s, conjugal restitution was well on its way to being taken up not only by litigants from all communities throughout British India, but also, mainly, by husbands against their estranged wives.Footnote ⁹⁸

B. Between Mediation and Marginalization: Reading the Abdul Kadir Decision from the Standpoint of Classical Legal Thought

It was in the very context of patriarchal reassertion that the individualist ethos of reading marriage contractually—rather than as a status—was perfected in colonial India in a series of cases that took place between Muslim spouses from the late 1860s onward. The most important of these was the aforementioned Abdul Kadir v. Salima, which culminated in an 1886 decision of the High Court of Allahabad penned by the famed reformist Muslim lawyer-intellectual Justice Syed Mahmood.

Mahmood was the son and intellectual heir of Sir Syed Ahmed Khan, alongside of whom he played a pivotal role in the founding of the Mohammedan Anglo-Oriental College at Aligarh. Born in Delhi (only a year after Amir Ali, whose treatise I touched on earlier) in 1850, Mahmood was admitted to Lincoln's Inn in 1869 (the very same year as his compatriot from Calcutta). While in England, he studied classics and oriental language at Cambridge and much of his initial education in the Islamic juridical tradition came (also like Ali's) through Western learning. In 1872, Mahmood returned to the subcontinent, taking up a barristership in Allahabad; by the end of 1870s, he had gone on to become a judge at the district court level. From there (again paralleling Ali) he reached the bench of the Allahabad High Court, where after serving in temporary capacities on four different occasions starting in 1882, he earned full appointment in 1887 (retaining that position until 1893). During this period, Mahmood authored more than 300 decisions in all, earning a reputation both for his prolificacy and ornately documented reasoning.Footnote ⁹⁹

If this brief biographical sketch of Mahmood is worth highlighting, it is because as a so-called loyalist Muslim-official there is unlikely to be a better example of the domestication thesis personified. That is, as a functionary within a colonial judiciary that was forging something so evidently distant from the “authentic” Islamic juridical past as the late colonial era's so-called Anglo-Mahommedan law, Mahmood comes as close as one can imagine to a living embodiment of the mechanism by which lip service was paid to sharī ʿa only for it to actually be marginalized.Footnote ¹⁰⁰ For the very same reason, however, his biography also testifies to how deep the now unfolding challenge to the domestication thesis runs. This is because to revise the thesis is not simply to cut against the grain of any hard and fast distinction between the historical sharī ʿa tradition and post-nineteenth-century “Islamic-law.” It is also to work against the grain of another long-standing element of historiographical common sense that divides Islamic modernism (in South Asia) into reform versus revivalist camps.Footnote ¹⁰¹ Whereas the first has normally comprised “loyalist” Muslim lawyers like Mahmood (and Ali), the second has encompassed those “traditional” Muslim jurists who redoubled focus onto madrasa-based training.Footnote ¹⁰²

On close reading of his decision in Abdul Kadir v. Salima, however, Mahmood's example reveals a third way of accounting for the long nineteenth-century colonial encounter with Islamic juridical tradition. Such a reading carries the promise of avoiding the pitfalls of the traditional thesis of domestication without simply assuming an ontologizing imaginary that takes the law's naturalization as a given. Although the Abdul Kadir decision was issued in 1886, as noted at the outset, the dispute originated in events going back to March 1883 when the parties, two Sunni Muslims, wed. Formal proceedings began the same year as the decision, when in June 1886 Abdul Kadir, the husband, brought suit soon after Salima, the wife, left their marital home to take up residence with her father because of alleged abuse and ill treatment. The primary legal question that the case was supposed to involve concerned whether a husband who had failed to meet his dower obligations under Islamic shar ī ʿa rules could still bring a claim for his conjugal rights to be restored. At the initial stage of proceedings, which took place before the local munsif court, the case was decided in Abdul Kadir's favor. The munsif court therefore held that at the time of the marriage, the parties had failed to specify whether the dower was to be paid immediately—in sharʿī terms making it a mahr muqaddam (a “prompt dower”)—or only by a later date, which in sharʿī terms was known as a mahr muakhkhar (a “deferred dower”).Footnote ¹⁰³ As a result, the decision at the munsif court was premised on there being no choice but to follow what it claimed was the default rule among Hanafi jurists, requiring that “only a part of [the mahr] becomes, under the Muhammadan law, payable on demand.” Because the court further found that Salima had failed to make her demand for the mahr prior to answering Abdul Kadir's initial complaint, it rejected each of the points her representative offered on her behalf.Footnote ¹⁰⁴

On appeal, however, the district court at Mirzapur overruled the lower court's ruling, dismissing Abdul Kadir's claim and holding that the “the whole of the dower was to be considered as ‘prompt’ under the Muhammadan law.”Footnote ¹⁰⁵ The payment Abdul Kadir had entered, in the meantime, with the munsif court in August 1883 (after already commencing suit) was therefore deemed inadequate, and the district court held that there was no justifiable cause of action for seeking restitution of his conjugal rights. It was on appeal from the district court that the case reached the Allahabad High Court in March 1885. At this final stage of the proceedings, the sole matter Justice Mahmood referred for the full bench's consideration concerned whether Abdul Kadir had the right to maintain the conjugal restitution claim.

Although at each previous point in the litigation the question of how the mahr was to be classified according to sharʿī categories stood on its own as the determining issue, this was no longer the case in Mahmood's decision for the full bench. To this end, he began by quoting from the opening remarks of Shama Sircar's Tagore Law Lecture of 1873 on The Muhammadan Law, which noted that

Reinforcing the same point, Mahmood proceeded to make further reference to Neil Baillie's 1869 Digest of Moohummudan Law, which also pronounced that

Most significant about the analogy Mahmood sought to strike between “eejab” and “kubool” as they pertained to the fiqh notion of ʿaqd (literally meaning “to tie” or “join together”) and the idea of offer and acceptance in the high nineteenth-century classical theory of bilateral contractFootnote ¹⁰⁸ was that it was his starting rather than his ending point. Although marriage was seen by the canonical schools of Islamic jurisprudence to be one subspecies of ʿaqd, ʿaqd, itself, corresponded only to the rather ad hoc preclassical ideas of binding obligation in the legal systems of the Anglo-common law mainstream.Footnote ¹⁰⁹ As Hussein Hassan points out, “[i]t would seem that ‘aqd [was] used… in its etymological sense…rather than as a technical term” during the formative and postformative eras of the Islamic juridical sciences. Whether it corresponded to any generalized technical notion of legal obligation in the Islamic tradition is, therefore, doubtful. As Hassan further notes, for example, even where the concept did appear in juristic manuals as a term denoting two party transactions, it was still typically used to refer to one sided obligations such as bequests and gifts, not to mention “acts merely juristic in nature” such as divorce and the manumission of debts. Overall, therefore, the breadth of the notion of ‘aqd speaks to its ordinary rather than technical valence, “covering obligation in every field: one's religious obligations to God, the interpersonal obligations of marriage, the political obligations expressed in treaties, and the commercial obligations of the involved parties in a range of particular contracts.”Footnote ¹¹⁰

If Mahmood insisted more emphatically on contractual right as the heart of the law of marriage among Muslims than seems warranted, then it is because doing so came in the face of a shar ī ʿa tradition that—when taken on its own terms—insisted on the same in only a relatively loose sense. As has just been mentioned, lacking as that tradition was in any general theory of binding voluntarist agreement of the type so important to the imaginary of the law in classical legal thought, this can hardly be regarded as surprising.Footnote ¹¹¹ In the very works Mahmood was drawing upon, and especially in Baillie's Digest of Moohummudan Law, the analogy between contract and Islamic marriage thus tended to extend only so far as the act of marrying. For his own part, however, Mahmood sought to effectively press the analogy much further, invoking “eejab” and “kubool” as indicators of the contractual nature of the ongoing state of being married as well. It was by way of implying as much that he so vehemently amplified his insistence that marriage in Islam was no less than a “purely civil contract.” In turn, he was able to completely jettison the status-like character—along with the “lifelong courses” of reciprocity attendant with itFootnote ¹¹² —that in previous conjugal restitution decisions the colonial judiciary still tended to see as attaching to the state of affairs following the act of marrying.Footnote ¹¹³ In Mahmood's view, instead, the ongoing marital relation became no different from the aftermath of a contract in the market, when the rights and duties prospectively set out for the parties to take on were actually taken on. Therefore, he proclaimed that “authorities leave no doubt as to what constitutes marriage in law, and it follows that, the moment the legal contract is established, consequences flow from it naturally and imperatively as provided by the Muhammadan law.”Footnote ¹¹⁴

The path to approving Abdul Kadir's claim for conjugal restitution was now clear. For Mahmood had rendered the previously central question of the mahr—namely, about whether it was prompt or deferred—all but secondary. As a state of “purely” contractual relations that was implicitly being proclaimed every bit as legal as the archetypical ties that bound private voluntarist action in the market, the agreement underlying Muslim marriage scarce depended on the mahr for its validity in Mahmood's reasoning. Rather, it depended only on the existence of an offer and acceptance, as per the high nineteenth-century classical ideal of contract as an embodiment of the mutuality of two juridical wills according to which Mahmood was reimagining the Islamic category of ‘aqd and the notions of “eejab-o-kubool.”

According to this view, it became perfectly justified for the state to enter into the field of family relations to partially dissolve the delegalized jural system of status reciprocities governing the would-be spousal community. By instead availing of the possibility to individuate spousal rights and treat the ongoing state of marriage as a “purely civil contract,” not only was Justice Mahmood making the Muslim marital relation perfectly amenable to a remedy for breach, he also was marshaling the inner equivocality of liberal legalism, albeit for him, in order to demonstrate the truly law-like nature of the Muslim personal law and, by extension, the sharī ʿa tradition from whence it purported to issue.

The pursuit of the analogy between Muslim marriage and contract in Abdul Kadir did not end here. The case involved further disagreement that Mahmood was compelled to address concerning whether the mahr should not instead be analogized to some other element in the high nineteenth-century theory of contract. Salima's representative, for example, argued that if Muslim marriage was, indeed, a “purely civil contract” then it was Abdul Kadir who was the party in breach, because the dower was really no different than price in the sale of goods (or consideration in technical parlance). Not surprisingly, Justice Mahmood counted this a contractualist step too far. At most, he insisted, the wife's right to a so-called prompt dower was like a vendor's provisional lien on goods once sold if some part of their purchase price remained unpaid. However, there was no rule, Mahmood claimed, that “would render such lien capable of being pleaded so as to defeat altogether the suit for restitution of conjugal rights.”Footnote ¹¹⁵

Both by way of ensuring that his own appeal to contractualism would trump that which the wife was proffering and by way of inadvertently making manifest the real (ideological) importance of the analogy between the Muslim law of marriage and the classical law of contract, Mahmood concluded his decision with the highly telling observation cited in the Introduction. The larger set of reflections it came as part of are worth quoting in full:

All told, then, although it is certainly true that the Abdul Kadir decision represented another important example of what scholar Padma Anagol has called the “rearguard action by Indian men” to seize control of conjugal restitution from Indian women, this was not all there was to the matter.Footnote ¹¹⁷ Clearly the law of the (Muslim) family also became a field of contestation given the different ways in which the internal equivocality of classical legal thought's will theory could be made to incline, especially in the course of adjudicating seemingly obscure doctrinal issues. Through Mahmood's appropriation of conjugal restitution as a stage on which to proclaim that marriage in Islam was nothing but contractual, therefore, the Muslim personal law was not only being made to work on patriarchy's behalf. It was also being made to prove that it, too, was animated by the same ethos of contractualist right that was at the heart of the law's most celebrated and emblematic rules for governing relations between private juridical individuals in the market.

Ultimately, for Mahmood, conjugal restitution became a means for demonstrating how the Muslim law stood to the law writ large: namely, as part did to whole. Against such a backdrop, that in another sense the Muslim law was supposed to be animated by an ethos of personalty tied to the particular ascriptive status of those who were subject to its authority was of little moment. This is because at the level of disputation, rather than at that of the discourse of the public sphere, a doctrine such as conjugal restitution made plain how rallying around the Muslim personal law did not entail making any assertion about its sovereignty over the domestic realm so much as it did a demonstration that the classical vision of (marriage as a) status was only the other side of the equally classical vision of (marriage as a) contract. The two visions were not opposites, in other words, but options that could be made to come in or out of focus depending on how more precisely the concept of the juridical will that underlay them both was to be made to flip.

In the final analysis, it is important to see that Mahmood was not simultaneously lamenting the status of the “Muhammadan law” as a colonial forgery in the course of championing its irreducible legality. Rather, he was implicitly committed to a view holding that the ongoing transformation of the Islamic juridical tradition's past into the late-nineteenth-century Anglo-Muslim law's present entailed a process that conserved what the sharī ʿa had always been; and what that was had never merely been a law personally of the Muslim community's own but rather a part of a world-historical universal called “the law” which, without partaking in, no civilizational tradition could rival the West's own.

In this last respect, Mahmood's closing declaration in Abdul Kadir v. Salima must be considered prescient. On the one hand, no less than the traditional thesis of domestication's contemporary discontents, he, too, was demanding that “Islamic law” be regarded as a living and breathing tradition that would always remain in continuity with its prior incarnations. On the other hand, as one whose own embodied agency was actively remaking the past, he reminds us that perspectives such as his—or, for that matter, those of other embodied agents, be they lawyers or litigants—may not be the most reliable. By reading Muslim marriage as consisting of “nothing except right, in its legal sense,” he was doing more than simply making a statement about the inseparability of present from past in the ongoing career of the law that Muslims paid homage to; he was also being ventriloquized by the ontologizing attitude of classical legal thought in a way that made the naturalization of Islamic law the very basis of its marginalization.Footnote ¹¹⁸