In this wide-ranging and ambitious study, Julia Stephens offers a compelling, revisionist analysis of the formulation of Muslim law in colonial and postcolonial South Asia. Her interventions are numerous, and her selection of case studies illuminating. Rather than providing a standard chapter-by-chapter summarization, this review will delve into the multi-pronged conceptual apparatus that Stephens deploys to chart legal change over a nearly two-hundred-year period. After explaining her theory of “colonial secular governance”, I will turn to her use of a “‘rubber-band’ state model” to clarify how legal rulings entrenched gendered hierarchies and how the demarcation of personal law propelled the rise of extra-judicial legal forums.
For Stephens, the justification for “colonial secular governance” or “secular legal governance” rested on a series of persistent, never-fully-crystalized “binaries that pitted family against economy, religion against reason, community against state” (4). Questioning the accepted chronology that traces the circumscription of Muslim personal law to the late eighteenth century, Stephens draws our attention in Chapter 1 to the juridical debates surrounding the first Indian Law Commission (1833) and its proposed Lex Loci Act. Unlike the layered Mughal state, which tolerated a degree of legal pluralism, the British sought a uniform law in keeping with their understanding of territorial sovereignty. At the same time, a countervailing “historicist” sentiment within the administration insisted that legal codes should be congruent with customary practices. Engineering a sort of compromise, the Commission advocated the extension of English law throughout India; Muslim law was too immutable in theory and too flexible in practice to adequately serve as a lex loci. Its members also conceded that separate Hindu and Muslim codes should be used to decide domestic concerns like “marriage, divorce, and adoption” (45).
By privileging English law as a universally applicable product of reasoned debate, the Commission effectively created a hierarchy of law that established religious personal law as “less than”. Stephens even suggests that the Commission was attempting to initialize a process of “secular conversion”, wherein sustained engagement with rational English law would gradually sap Indians’ religiosity (47). Elsewhere in the text, secularism similarly appears as a vehicle for assimilation or a rhetorical tool to denounce Muslim fanaticism. In Chapter 5, which investigates the government's move in the 1920s to criminalize deliberate attempts to outrage “the religious feelings of any class”, we learn that ardent Hindus like Lala Lajpat Rai were welcoming a secularist turn in politics and charging Muslims with fomenting divisions through their “religionism” (150).
Although colonial secular governance necessitated the legal bifurcation between economic and domestic spheres, these boundaries were debated continuously. Issues like inheritance seemed to straddle both realms; adjudication of Muslim women's property rights, which Stephens explores in Chapters 2 and 3, was particularly vexing and could result in the curtailment of economic autonomy. The Privy Council's ruling that Shumsoonnissa's transfer of money to her husband was void on account of her observation of pardah overrode Muslim law (and served the plaintiff's purposes), but this paternalist, orientalist decision deterred Indian men from brokering contracts with pardah nashins thereafter. Turning to Punjab—the “bread basket” of India—Stephens suggests that the colonial courts selectively elevated customary law over religious law to ensure that agricultural lands remained in possession of their male holders. In other instances, however, British judges privileged the dictates of Muslim law to prevent “immoral” transactions and “regulate low-class marriages”. For Stephens, these legal acrobatics were indicative of the colonial state's “rubber-band” mode of rule, for which “internal flexibility was a source of cumulative power” (69).
While the colonial state may have aspired for a uniform legalism befitting its territorial sovereignty, fiscal prudence and political practicality forced it to turn “to religious communities and local elites to accomplish many of the day-to-day tasks of maintaining social order and mediating disputes” (12). This assessment corroborates the findings of historians like Sandria Freitag that suggest the colonial state often abstained from direct participation in the public arena. Stephens thus seeks to recover instances in which “marginal subjects” built “law-like institutions in competition” with the state apparatus. The operations of the dar-ul-ifta (fatwa department) established at the Deoband madrasa in 1893 provide fertile ground for this kind of analysis. Under Aziz-ul-Rahman Usmani's helm, this agency took an active role in arbitrating “ritual and domestic matters” while taking pains to “check the abuses of patriarchal dominance” (77). Other legal minds articulated their findings in pamphlet form and circulated them throughout India; Stephens lingers on Nazir Husain's revivalist Meyar-ul-Haqq tract, which critiqued Muslims’ over-dependence on taqlid and “provoked a firestorm of pamphlet warfare” in the 1860s and 1870s (118). While this circulation of knowledge is fascinating, a casual reader might be overwhelmed by the inherently technical—and sometimes esoteric—nature of the doctrinal debates that ensued.
While Chapters 1-5 generally focus on the repercussions of colonial secular governance and the legal debates that evidenced the elasticity of the rubber-band state, Chapter 6 shifts our attention to the intellectual production of Muslim revolutionaries and scholars associated with Hyderabad's Osmania University in the 1930s and 40s. These fascinating individuals were very much alive to the global political climate of their day. Critiquing the excesses of capitalism and communism alike, they looked to Islamic institutions and practices to reconcile the expression of free will with the alleviation of social inequality. Likely, many readers will not have encountered Hamidullah, Gilani, and Qureshi before; a more in-depth investigation of their careers and theorization may have helped explain why they seemed to be focused “on ideas rather than pragmatic policy recommendations” (165). Indeed, this tendency to proceed apace through engrossing, dense material reflects the text's occasional emphasis on conceptual innovation at the expense of character development. In Chapter 1, for instance, mention is made to the “Romantics”, whose historicist dispositions were similar to those of influential German jurist Friedrich Carl von Savigny. Presumably Stephens is referring to Scottish scholar-administrators Mountstuart Elphinstone, John Malcolm, and Thomas Munro; historians elsewhere have exhaustively debated the extent to which these thinkers were influenced by stadial theorists, Edmund Burke, and even possibly Jeremy Bentham. While this oversight is a small quibble, such context would have fleshed out a narrative that may be a tad skeletal in places for non-specialists.
It is possible to read Stephens’ account of colonial secular governance and its ramifications as a story of insufficient foresight and unintended consequences. She acknowledges that the British officials who heeded Victorian gender norms and affirmed the “law's systemic patriarchal biases” were not necessarily aiming to channel “colonial economic development into distinctly gendered patterns of exploitation” (104). Similarly, she floats the possibility that the British were not consciously courting intra-communal violence by abstaining from the adjudication of Muslim ritual practices. Instead, it was the judges’ haphazard support of taqlid (and the presumption of a “single, unified sharia”) in some cases and their tolerance of “diverging interpretations and practices” in others that created a combustible situation (131). Given the tendency of these colonial rulings to breed disaffection, we might question the success of the rubber-band model of governmentality in negotiating the “persistent instability” between personal and secular law. If we accept historian Mark Doyle's conclusion that it was not in the colonial interest to stoke communal conflicts, we might also wonder at what point the rubber band would have conceivably broken. These questions aside, Stephens’ illuminating study invites the reader to interrogate the connections between codification, secularism, and gender relations through a rigorous examination of colonial and vernacular sources—it deserves the thorough engagement of any student of legal or South Asian history.
