In recent years, a number of authors have observed that the Islamist current plays an important role in uprooting traditional cultures, which are already under attack from globalization (Roy Reference Roy2002). In harking back to a distant past, that of the Prophet Muhammad and of the “well-guided” caliphs, as an ideal to be transplanted into a morally corrupt present, Islamist leaders are creating, these authors argue, a new religious identity, one severed from its links with tradition in terms of both social and legal practice. It is what Edward Said (Reference Said1993) would have called “abandoning history.” Like the creation of “invented traditions” described by Eric Hobsbawm (Hobsbawm and Ranger Reference Hobsbawm and Ranger1992), this return to the past can be read as an attempt to mitigate the insecurity created by a context of vast, rapid changes and to provide a sense of permanence to the flux of history and social relations. The living past, considered unsuitable to face external challenges, is replaced by a remote and mythicized past that, by coinciding with the birth of Islam, has a particularly strong emotional appeal.

The legal dimension is an important but neglected aspect of this construction. The multiform and varied local traditions are replaced by a set of norms whose foundations are to be found in the Qur'an and the Sunna, interpreted on the basis of a literalist hermeneutics that transforms them into closed texts to be applied regardless of practice and context. Religion itself is transformed into an ideology. For Abul A'la Mawdudi, the founder of the Pakistani Jamaat-e-Islami and one of the main ideologues of political Islam, Islam is “a well-ordered system, a consistent whole, resting on a definite set of clear-cut postulates” (Reference Mawdudi1960, 133). The perspective of religion as a system (niẓām), a recurring feature of Mawdudi's works,Footnote ¹ can be found among other Islamist thinkers and has trickled through Pakistani historiography and political thinking from the early 1950s.

The idea that beneath a substratum of local beliefs and traditions lies an essence to be reintroduced as a panacea for all evils, and that it can be found in the main textual sources of sharī‘a is not new, of course, but has periodically characterized, particularly at times of social upheaval and political change, the entire history of the Muslim world. To this we may add that the dialectic between what is and what should be is, after all, part and parcel of a religion whose main doctrinal source, the Qur'an, is considered by the majority of followers as divine word, valid for all time and in all places. But it was during the nineteenth century, when European colonialism was at its apex, that there were increasing attempts in the Muslim world, by neotraditionalists and modernists alike, to return to a pristine essence and from this start anew, skipping centuries of history, to reconstruct a coherent doctrine that could be applied systematically. Although it is difficult to establish cause and effect precisely, it is reasonable to imagine a connection between this endogenous search for consistency and authenticity and the European emphasis on coherence and uniformity, which was spreading in the same period with the growth of colonialism. The reconstruction of sharī‘a in the Anglo-Muhammadan legal system, in particular, might have shaped the Muslim conception of Islamic law on the Subcontinent, contributing to the transformation of what had been a morally driven and contextual method of reasoning into a “system.”

Legal Practice under the Mughals

The scarce and fragmentary information that can be gleaned from court chronicles, memoirs, and travelers’ anecdotes indicates that at the time of the Delhi sultanates, and then under the Mughals, the application of sharī‘a was an important form of legitimacy for the rulers, as well as a way of justifying a social hierarchy at the top of which was the knowledge of adab—the rules of good conduct. The actual application of sharī‘a was not, however, a primary concern of these rulers—not even the more orthodox ones such as Aurangzeb (Akbar Reference Akbar1984; Fyzee Reference Fyzee1963; Jain Reference Jain1970; Sangar Reference Sangar1967; Sarkar Reference Sarkar1920; Yusuf Reference Yusuf1965). It was through formal abidance to Islam, which was administered independently by the ‘ulamā’, and patronage of Islamic institutions and holy men that the rulers secured support for their own assertions of authority, rather than enforcing the details of Islamic law. In observance of the prevailing relationship between political power and religion, as well as for pragmatic reasons—the actual impossibility of imposing sharī‘a on a population in which the majority was non-Muslim and that was spread over extremely vast territories, and the need to ensure the acquiescence of prominent non-Muslim lineages—the authorities left great freedom to their subjects in settling their disputes autonomously, through local arbiters and forms of assembly that enforced customary laws that often had little to do with the religious prescriptions to be found in the written texts (Ahmad n.d.; Hussain Reference Hussain1935; Sharma Reference Sharma1951). The distinction between the law applied to Muslims and the law applied to non-Muslims, a stereotype in the literature on the subject, was extremely blurred. Not only was the jurisdiction the same in the case of crimes, but also both communities settled their disputes for the most part without the intervention of the state. Some research also suggests that disputes concerning members of a religious community were often mediated by individuals belonging to other communities (Torri Reference Torri1987, 705–7). The distance from central power was enormous, particularly in the family sphere, as disputes regarding honor were settled almost exclusively out of court.

Only particularly serious breaches of public order or crimes involving prominent persons who lived in urban areas were settled through formal channels that referred to sharī‘a laws. However, even in these courts, Islamic penalties were not considered mandatory or enforced consistently (Jain Reference Jain1970, 67–71).Footnote ² And even when Islamic laws were actually enforced according to the prescriptions contained in the treatises of Hanafi jurisprudence, the courts took into consideration a vast set of factors in deciding which opinion to follow, sometimes (one might say “even”) dissenting from the opinions of jurists (Jain Reference Jain1970, 32). The fiḳh texts were to the ḳāḍī a source of moral reference, which opened up different possible applications. The judges were familiar with the context and, on the basis of this context—what Bayly calls “the sense of the neighbourhood” (Reference Bayly1983, 353)—applied the law. One might be tempted to claim that there was no rule of law, but this would not be quite true. What determined the decision was the interest of the community, or maṣlaḥa, a term that indicated the desire not to disturb the peace and to avoid all forms of fitna, to which the concept of equity was inextricably linked as a means of preventing one group from prevailing over the other and protecting the most vulnerable sections of the population, albeit without altering the status quo. The written prescription was associated with social considerations, but also with a certain empathy for human weaknesses. It is noteworthy that the courts usually paid attention to the good faith of the parties (Briggs Reference Briggs1919, 352), an attitude that often led to cases of clemency (Ahmad Reference Ahmad1939, 61, 130, 155). The duality of procedure—the use of custom for ordinary justice and the use of fiḳh for extraordinary justice— served to reestablish and reiterate the religious ideal in “prominent” cases. But, as mentioned before, even in these cases, idjtihād was practiced, guided by attention to the context.

The attitude of the judges was not the result of their arbitrariness, or of the arbitrariness of the rulers, as would be claimed by the British, but was in keeping with what was proposed by the jurists themselves. Islamic jurisprudential treatises were made up of individual contributions, and it was not unusual to have contrasting positions. This is evident by reading the Hidāya, a collection of the twelfth century that sets out the opinions of Abu Hanifa (d. 767), the founder of the Hanafi legal school, and those of his disciples Abu Yusuf (d. 798) and Shaybani (d. 804), which rarely coincided. To cite just a few examples: Abu Hanifa considered that in the case of discrepancies in testimonies as to consent in relation to an act of unlawful sexual intercourse (zinā’), the alleged perpetrators were to be acquitted, while in the view of his disciples, only the woman was to be acquitted; according to his disciples, in the event of an error regarding the act or a contractual error, an irregular union that was based on apparent legality and on the good faith of the parties should not lead to a ḥadd conviction of zinā', while in the case of an error on the individual, the couple could be prosecuted by ḥadd if they were aware of the irregular nature of the union; for Abu Hanífa, the mere existence of a matrimonial contract, irrespective of the good faith of the parties, impeded ḥadd punishment (Hamilton Reference Hamilton1870, 184). Clearly, these theoretical questions take on fundamental importance in the courts: following one line rather than another may have very different consequences, in the areas in which Islamic criminal law applies. Even the Fatāwā-i-‘Ālamgīrī, a set of religious decrees and extracts from Hanafi treatises that was compiled under the emperor Aurangzeb in the seventeenth century to systematize and simplify legal precepts, contains contradictory opinions.

The reason behind these inconsistencies is that the treatises were part of an evolving jurisprudential tradition that accepted internal contradictions and allowed the judge wide decision-making freedom. Islamic law was a doctrine in fieri, which was meant to respond to the historical context and social considerations, while observing the ultimate meaning of religious prescriptions (Hallaq Reference Hallaq1997, 258). In other words, both legal practice and legal theory indicate that Islamic law was “a fluctuating, elastic quid” (Carusi Reference Carusi1919, 198), in which ultimate ideals and context were closely linked in a constant dialogue. This idea was not, it may be argued, unique to the milieu in which the Hanafi fiḳh was compiled: after all, the structure of the Qur'an itself, as has been argued in a compelling way by Nasr Abu Zayd (Reference Abu Zayd2006), and the theory of abrogation subsequently elaborated, indicate that the relationship between the sacred text and the context was dialogical.

This is a far cry from the image, common in much writing on Islamic law, of a monolithic and well-defined doctrine, which, after being systematized, would be completed with the “closing of the gate of idjtihād” after the ninth century by the jurists themselves and then blindly reproduced in the following centuries until the arrival of European colonialism, which was to set a static situation again in motion.Footnote ³ Sociologists, too, when describing in Weberian terms the creation of a closed corpus completing the transition from revelation to rationalization, presuppose the same scheme of things: namely, that the systemization in the first centuries after the death of Muhammad concluded with the closure of the gate of idjtihād, and that this gate would only be reopened thanks to the influence of European thought in the colonial era. Behind this, there is clearly the idea that it is Europe that imprints movement on what is static, a central axiom of Orientalist thought. This perspective is not true in terms of doctrinal developments (the idea of the closure of the idjtihād only actually appeared in discussions in the twelfth century, and there has never been any subsequent consensus on this issue) or, as we have seen, in terms of legal practice. In India, as elsewhere, it was the colonial administrators and scholars who, driven by their stereotypes as well as by their needs, helped make Islam a rigid law-centered entity in the lives and minds of the colonized peoples. The same process has occurred with regard to Hindu tradition, as many studies have highlighted (Derrett Reference Derrett1968; Galanter Reference Galanter1968; Menski Reference Menski2003).

Orientalism and Asia

Between the eighteenth and nineteenth century, Europe produced an ahistorical vision of the Orient in which the peoples observed were attributed immutable specificities, rather than defined as the product of historical circumstances. The quintessence of the Orient was India: the changes that took place in the course of its history were seen as superficial in nature, and, as such, they did not affect the “basic” rules and institutions that were presumed to be unchangeable. In a dual connotation, which had already emerged at the time of Herodotus, the Orient was contrasted with the dynamic West, on which befell the moral duty to impose movement on all that which by its nature was not. The legal dimension, an aspect neglected by Edward Said, was the expression of this opposition between the stagnant and fluid: for the British in India, Islamic law, like Hindu law, was a fixed, timeless entity that in the course of time had been submerged by traditions. Uncovering it and “modernizing” it would be, as we will see, one of their first tasks.

At first, the Orient, and specifically India, was not seen as necessarily inferior. As Warren Hastings, the governor-general of Bengal from 1772 to 1785, noted, with a relativism that informed other early Orientalists, “it is not unreasonable to suppose that the power of the mind is distributed in equal perfection among all the human races” (Marshall Reference Marshall, Anne Whitman and Dickinson1973, 257). The example of the Roman Empire strengthened their conviction that a great empire had to respect the colonized society and tolerate differences. Accordingly, indigenous law should be applied to the extent that it was more “consonant to the ideas, manners and inclinations” of the population than other legal systems (Jones Reference Jones1918, 337–38). Expecting the local population to adhere to an external value system would be, in fact, both irrational and unjust.

Respect for India was enhanced by the early Orientalists’ view of history. Influenced by their classical education, they thought that India had been the seat of a great civilization that had undergone, like all other civilizations, progressive deterioration. This state of decline could be reversed by returning to the pristine authenticity of Indian civilization, which was to be found in its religious texts. Behind the idea of reinstating ancient religious law, there was the conviction of a pristine purity, the myth of a primitive society not only better than the one they encountered but also, in some respects, better than European society of the time. Legal transformation was indeed marked, at least until the second half of the nineteenth century, by a certain idealization of the Orient and by a parallel discontent with British society. Reliance on religious texts rather than unwritten customs also responded to practical motives—the need to ascertain legal rules quickly; to limit the complexities of local mores, in the assumption (which was to prove wrong) that textual sources contained clear-cut rules; and to forge an alliance with the religious establishment, thus ensuring the loyalty of a population that was imagined as deeply religious.

As time went by, Indian culture was increasingly seen in a negative light. While the main ingredients of Orientalism, such as the opposition of a rational Europe and a traditional India, continued to influence the European vision, the law-centered theories of Utilitarian liberals, focused on the ideals of uniformity and certainty, gradually gained ground, shaping the image of India. The respect for local laws preached by Hastings and his aides contradicted the utilitarian quest for a “modern” society based on a uniform legal system, the protection of individual rights and freedoms, and equal and impartial protection under the law. These ideas were seen as the final and inescapable products of civilization: to Jeremy Bentham and his followers, history was not cyclical but rather progressive, and progress coincided not with the reinstatement of India's ancient past, but with the implementation of Utilitarian ideals. Legislation, which was seen as an essential instrument of social change, was what was needed: reliance on religious norms, which were seen as lacking the necessary ingredients of a “modern” legal system, should be replaced by a single, comprehensive, and uniform code (Kopf Reference Kopf1969; Marshall and Williams Reference Marshall and Williams1982).

Criticism by Utilitarians of the Indian legal system reflected their criticism of the English legal system, characterized by what to them seemed to be unsystematic, unequal, and overly flexible norms and multiple systems of judicial administration. To these reformers, who thought that certainty was a fundamental component of a modern legal system, ambiguity, in England as well as in India, had to be removed from the law. For some like Lord Macaulay, who served on the Supreme Council of India between 1834 and 1838 and was a prominent member of the Law Commission, legislative reforms in India would actually lead the British to change their own laws: India was a testing ground, a laboratory of ideas that could, and should, have repercussions on the home country (Singha Reference Singha1998, 299, 310).

Reformists were not homogeneous in their approach to change, however. Early Utilitarians, including Bentham, despite preaching the adoption of Utilitarian ideas by Indians, admitted that time and space were determining factors in deciding what was a good law (Bentham Reference Bentham1843). Macaulay agreed that change had to be tempered out of respect for local feelings. Subsequent reformers such as James Mills (the author of The British History of India who, significantly, had no firsthand knowledge of India) had no such qualms, and saw India as a tabula rasa on which law should be injected from the outside (Majeed Reference Majeed1990). This progressive devaluation of Indian culture was reinforced by an increasing self-confidence among the British following Napoleon's defeat and the technological breakthroughs of the industrial revolution, and by the evangelical discourse, which increasingly influenced the Company's higher echelons: to most missionaries, India was backward not because customs had watered down a pristine golden age, but because the religion of the local population was itself inferior.

From Religious Experts to Translation

The exercise of judicial power by the East India Company began with the Charter of 1661, about fifty years after its first trading colony was set up in Surat, in Gujarat. Subsequently, the Company gradually extended, along with its commercial network, its administrative and judiciary activities. The Company's officials, who were judges and executors at the same time, limited themselves to applying the customary laws of the local populations, with one important condition—that they were considered not to differ excessively from the English law and values of the time. So, for example, in 1748, the East India Company established that sex offences were to be punished “in such a way as shall by them be found most efficatious and agreeable to the nature of the people and not contrary to the laws and statutes of the Kingdom of England” (Fawcett Reference Fawcett1979, 25). In 1753, a new charter established that the indigenous peoples were to use their own religious laws instead of those of the East India Company on issues related to the private sphere. In 1772, the Hastings Regulations reaffirmed the principle whereby religious law would be applied to Hindus (“gentoos”) and Muslims (“mahomedans”) on issues of inheritance, marriage, caste, and “other religious customs and institutions,” precisely the topics that would have been within the jurisdiction of ecclesiastical English courts of the time (Derrett Reference Derrett1968, 233). Lord Cornwallis, governor-general between 1786 and 1793, further extended Hastings's preservationist policy so as to avoid “collision with the habits and prejudices” of local people (Stokes Reference Stokes1990, 23).

By reinstating indigenous law, the Company was not only responding to the cultural milieu of eighteenth-century England, but also furthering its own interests. The study of society and its religious “roots” responded to the necessity to know the colonized society, while the implementation of religious norms might have won the allegiance of elite groups. These two elements were essential to exert control, to minimize resistance, and to collect tax revenues and debt (Cohn Reference Cohn1996). It should be remembered that the Company, as the legatee of Mughal rule, was bound to respect the religion of the local people. It was hoped that under the guise of respect for Mughal nominal authority, external dominion would become acceptable to the local population. This was, after all, what had happened in previous centuries, when the acceptance of local mores by Muslim rulers had ensured loyalty.

In order to supervise the application of religious law and adapt it to their needs, it was, first of all, necessary to know that law. To this end, the British attached to the district and appeal courts experts on sacred matters—pandits for the Hindus and maulvis for the Muslims—who were asked to retrieve the norms contained in religious texts. These local advisors, however, were deprived of the possibility of performing their traditional role: the English judge listened to the parties through a translator and asked the religious officials what the doctrinal position was on the matter. The questions were asked in an abstract manner, with no contextual details, and, as a consequence, the answers were equally abstract, as law reports indicate.Footnote ⁴ This meant, among other things, that it was not uncommon to receive contradictory answers. This state of affairs also confirmed stereotypes that were increasingly common among British civil servants: because the true indigenous law was imagined by early civil servants, as we will see, to be homogeneous, the contradictory fatāwā given by the religious officials were interpreted as the product of ignorance or corruption. This might have been true in many cases, but the point to make here is that the maulvis contradicted themselves precisely because they lacked what had been the mainstay of Islamic legal practice on the Subcontinent, that is, connection to the context (Anderson Reference Anderson1996). The fatāwā had another drawback: as the maulvis were expected to give concise and coherent responses, they necessarily glossed over many subtleties of fiḳh, of which, as a consequence, British judges were for some time unaware.Footnote ⁵

The Company, which considered fatāwā, and the norms that the fatāwā elucidated, as binding rules, was exasperated by their lack of uniformity. Driven by a desire for consistency, and possibly perceiving their dependence on local advisors as a form of disempowerment, they soon decided to seek a direct relationship with the source texts. Starting in the second half of the eighteenth century, indigenous religious texts were translated from Sanskrit, Arabic, and Persian, and transposed into manuals aimed at instructing practitioners and aiding judges.Footnote ⁶ The contextual consistency of the fiḳh, which had inspired the contextual consistency of the ḳāḍī, was to be thus transformed into formal and substantial consistency through precise formulas, procedures, and concepts that the British judges could understand.

Thanks to the efforts of Hastings, who was an expert in Urdu and Persian, David Anderson began, in 1774, translating part of the Fatāwā from Arabic into Persian, and then from Persian into English. At the same time, translation of the Hedāya was begun into Persian; in 1783, Charles Hamilton completed the translation from Persian into English, which was published in 1791. Soon after, other texts on the Islamic inheritance law were translated by William Jones and Neil Baillie. A similar process occurred in relation to Hinduism, whose essence was found in the Dharma Śastra. The first compilation and translation of that text was prepared by a group of pandits, again under the supervision of Hastings. Following its translation from Sanskrit into Persian, a young official from the East India Company, Nathaniel Brassey Halhead, completed the translation into English. The text was published in 1776 under the symbolic title A Code of Gentoo Laws—symbolic because translated texts were seen as codes. Significantly, Hamilton stated in relation to Islamic law that “[t]he Mussalman code has been the standard of judicial determination …, as an invariable principle of all Mussalman governments, namely a rigid and undeviating adherence to their own Law” (Kugle Reference Kugle2001, 270).

As this and similar statements indicate, the underlying Orientalist assumption of many Company administrators was that the religious texts were internally consistent.Footnote ⁷ This assumption conveniently fit into the British imperative of identifying precise norms to apply: it was a product of their Orientalist assumptions as well as their imperial needs. However, the Company soon recognized that religious texts could not offer clear-cut solutions. Translation made it clear that the original texts reflected “the perpetual conflict of discordant opinions and jarring deductions” of Muslim scholars, as Thomas Edward Colebrooke, a prominent expert of Sanskrit and later on director of the Royal Asiatic Society, observed (Reference Colebrooke1884, iii). This made it imperative to determine what were the “true principles upon which that law was founded.”Footnote ⁸ Translation, which in Hamilton's words was intended “to clarify the ambiguities of the text” (1870, xliv), was the starting point in this process of simplifying. William Jones, judge at the Crown Court of Calcutta from 1773 until his death in 1794 and translator of numerous texts from Arabic and Persian, underlined that his knowledge of these languages allowed him to read the original texts and therefore to choose the “correct” opinion from among the contradictory ones given by the religious experts (Cannon Reference Cannon1964, 666–80, 718; Mukharjee 1968). This assumption influenced the translation effort, undermining its accuracy. It was not uncommon for translators to interpose their own views with the translation, loosely paraphrase, or omit some parts of the original text (Ali Reference Ali1929, 1:23). To undermine translation further, mistakes abounded, and sometimes, as in the case of the Hedāya, the copies available to the English translator were not the original Arabic text, but a Persian commentary.

Translations were followed by commentaries and reference manuals that were arranged in ways that could be understandable to British judges, so as to overcome what were seen as the “extravagant hypotheses” and the “immethodical” approach of the original texts, where “each argument, however absurd, … is urged and combated” (Macnaghten Reference Macnaghten1825, i–vi). Important manuals such as Macnaghten's Principles and Precedents of Muhammadan Law, as well as those written later on by prominent justices such as Ameer Ali, Abdur Rahman, and Tyabji, admitted that texts of Islamic jurisprudence contained differing opinions but tended in their expositions to gloss over areas of contradiction,Footnote ⁹ in order to simplify and systematize the discussion. Nor could it have been otherwise, as they were all trained in England or according to a British syllabus, and had no deep knowledge of their own legal traditions.Footnote ¹⁰ The opinions that corresponded to their own perspectives were highlighted, as is evident in the writings of Ameer Ali, who glossed over opinions that did not suit his idea of a modern society. At the adjudication level, judges, when confronted with differing views, favored some opinions over others,Footnote ¹¹ though they seemed to be increasingly at pains to distinguish between rules of greater and lesser authority.Footnote ¹²

The attempt to classify the Indian population into strict religious categories proved increasingly complex, and led judges in some cases, typically concerning Khojas and Kutchi Memons, to state that litigants could be governed by customary law in derogation of textual Islamic law, though the existence of custom required very high standards of proof,Footnote ¹³ or to choose between differing options by recurring to the formula of justice, equity of good conscience.Footnote ¹⁴

Reliance on precedents helped make the solutions adopted by the British judges binding. In line with the desire to find a secure essence in what was perceived as a labyrinth of fluid norms, they had, in fact, established the procedure of stare decisis, or binding precedent, which was unknown to Islam, although it had an apparent similarity to the principle of taklīd, the observance of one legal school at the exclusion of others. However, whereas taklīd had not stopped legal theory and, above all, legal practice from evolving, and it recognized contradictions within single judicial schools, the influence of precedent, accompanied by the reluctance to differ from established positions on religious matters and to accept fresh interpretations,Footnote ¹⁵ including those based on Islamic primary sources,Footnote ¹⁶ limited the flexibility that the judiciary had previously possessed to maneuver between different scriptural authorities and, within them, between different opinions.

As a consequence of these processes, the rules of the Hanafi school, which under the Mughals had been confined to the urban and gentry groups and interpreted liberally, spread beyond these groups as the colonial courts disseminated a unified “Muhammadan law,” something that the Mughals in the long centuries of their rule had proved unable to do (and which, in all likelihood, they had not been interested in doing).

These Hanafi rules, however, were only part of a wide array of possibilities that had been open to traditional judges. The subtleties of fiḳh, the existence of alternative voices, and the idea itself of the legitimacy of differing opinions were increasingly forgotten by Indian lawyers and judges with British legal training.

The Process of Codification

Already at the end of the eighteenth century, British judges were referring to the Roman law formula of “justice, equity and good conscience,” by which they meant British laws, “if they could be applied to the Indian society and circumstances” (Tyabji Reference Tyabji1919, 74) though there were differing opinions as to its scope and whether it could supersede explicit Islamic norms.Footnote ¹⁷ Hastings thought that when the administration of law seemed “repugnant to the principles of good government and common sense,” the British should step in with a remedy (Misra Reference Misra1959, 324). Allied with these principles—common sense and good government—was the presumption of the English, which gained ground beginning at the end of the eighteenth century, that they could “elevate” the colonized societies by extending to them more “humane” principles and norms. In the name of these moral aims, the Company increasingly did away with religious tenets: for example, in 1792, it was decided that, contrary to Islamic law, Muslims could be convicted on the testimony of non-Muslims. The purpose of the Raj, in the words of one British high official at the end of the eighteenth century was, after all, to “preserve … the institutions and laws of the natives of Hindoostan, and attemper them with the mild spirit of British government” (Bruce 1793, quoted in Kügle 2001, 257). As Sir Roland Knyvet Wilson was to write a century later, “British statesmanship determines from time to time how much of Oriental precept is to be treated as Law in the English sense, and how much left to the consciences of those who acknowledge it as religiously binding, and how much forcibly suppressed as noxious and immoral” (Reference Wilson1894, 2).

Out of increasing dissatisfaction with texts, which were considered uncertain and obsolete, under the influence of Utilitarian ideas and evangelicalism, and faced with the growing contradiction between the preservation of traditional law, based on status, and the introduction of free market principles, which required the free movement of goods and labor (Washbrook Reference Washbrook1981, 652–55), the British gradually stepped up the introduction of English concepts and norms. Religious law, however, was not simply done away with, but rather was transformed. Thus, in the case of criminal law, in the first half of the nineteenth century, the “barbaric” punishment of stoning for the crime of adultery was banned, flogging was restricted, and women were exempted from it, but all those expedients contained in the fiḳh and particularly in the Hedāya that made it practically impossible to convict someone of zinā' were not taken into consideration. The consequence was that under the British, the number of persons convicted of zinā' grew drastically, while the fiḳh had made it punishable only in more obvious cases, that is, in the more blatant breaches of order and of religious law.Footnote ¹⁸

The growing weight of English norms went hand in hand with an increasing interest in “a known and intelligible code” that would replace “the hidden mysteries” of religious experts (East India 1842, 717), with dissenting voices mostly limited to a few Indian scholars (Menski Reference Menski2003, 203). The Indian Law Commission created by the Charter Act of 1833, which strongly argued in favor of codification, decided as its first task to focus on criminal law, possibly a reflection of the fact that this had been the main preoccupation of the reformist movement in England (Raman 1984; Skuy Reference Skuy1998). Macaulay, who was asked to draft a criminal code, thought that in the name of uniformity, the Indian legal system should give preeminence to one system of law only (Macaulay Reference Macaulay1898, 11:579) and that that system of law had to be the English system as tempered by Utilitarian ideals. The process of replacement of Indian religious law through the enactment of codes accelerated after the 1857 mutiny, when the Crown government took a more active role in the “modernization” of the Indian administration. By 1875, Anglo-Muhammadan law was replaced in all matters except for family law, for certain transactions, and for some offenses affecting the human body.

The new legislation, although taking into consideration local circumstances, radically distanced itself from classical Islamic law, particularly in the field of criminal law. The Penal Code of 1860 only considered adultery a crime, but not fornication, and prescribed that women should not be subject to corporal punishment, contrary to the fiḳh; the code, in addition, did not consider zinā' a crime against God, but against the husband, with the consequence that if the latter withdrew the charge, criminal proceedings were automatically dropped; finally, custody and fines replaced the penalties prescribed by the fiḳh and established that women could not be prosecuted for sexual crimes. In 1872, the Indian Evidence Act also reformed the law on evidence, establishing, unlike classical sharī‘a, that the testimony of men and women was of equal value, even in criminal cases related to ḥudūd sex offenses, where before women did not have the right to testify. Not all legal changes were beneficial to women: the British, for instance, introduced two principles, the grave and sudden provocation clause and the restitution on conjugal rights, that negatively affected women, particularly those belonging to vulnerable groups, and discouraged local customs that gave women greater freedom and rights, for instance by legitimizing patriarchal lineage even where it was not in force, and by limiting women's control over their sexuality (Poonacha Reference Poonacha and Patricia1996, 39–63).Footnote ¹⁹

These changes were made possible by the formal abolition of the Mughal empire, which resolved the internal contradictions in the political and cultural construction of British India, divided between the need to respect the nominal authority of the Mughal rulers and its increasing confidence in its own superiority. European dominance in the second half of the nineteenth century was seen as irreversible. As James Bryce would write toward the end of the nineteenth century, “Europe [has spread] over their native customs and beliefs a layer of European ideas which will sink deeper and deeper until the old native life dies out … European forms of thought and ways of life will come to prevail everywhere” (Reference Bryce1914, 2). In the face of the “rising tide of European law,” Bryce concluded, with evident satisfaction, that “both Hinduism and Islam may … begin within a century or two to show signs of approaching dissolution” (131, 129). The codes adopted in the second half of the nineteenth century completed, in his view and in those of many other British observers, a process that had been initiated in the second half of the eighteenth century, that is, rationalization (“order was evoked out of chaos”) and uniformity (“the progress of the world is towards uniformity in law”) (118, 133).

In the meantime, maulvis and pandits had been made irrelevant by the rapid changes in Indian society and economy, which created situations for which reference to texts provided no answer,Footnote ²⁰ and by the increasing reception of British law. Their role gradually diminished, and their fatāwā were increasingly overruled, until, following the abolishment of the Mughal rule, the religious experts had no reason to exist, and in 1864, it was decided to do without them. Their demise was also a product of a shift to village elders and landed classes as sources of correct practice, particularly in areas that were absorbed at a later stage, such as the Punjab and the North-West Frontier Province. This development in favor of customary law, which is evidenced by several cases,Footnote ²¹ particularly before the enactment of the Shariat Act in 1937, was rooted in the imperatives of British rule: less rigidity was thought to be more suitable to newly annexed territories of great strategic significance; reinforcing local power networks would also cement alliances with established elites, thus facilitating governance, provide economic advantages (e.g., in Punjab by furthering the colonization of wastelands), and facilitate tax collection (Tupper Reference Tupper1881). Customs were allowed to prevail over religious law, provided that their existence was proved. Custom, to be considered valid, had to be “ancient, certain and invariable”—the characteristics that had been initially assigned to religious texts—in addition to not contravening express law and British ideas of morality encapsulated in the formula of justice, equity, and good conscience.Footnote ²² As it had happened with the collection of religious norms from textual evidence, customs also were collected, written down, and “rationalized” so as to turn them into fixed norms and ensure uniformity. Ambiguities and differences were ironed out, and what did not conform to the prevailing discourse—which, in turn, was consonant with British interests and sensibilities—was termed anomalous and rejected (Bhattacharya Reference Bhattacharya, Champakalakshmi and Gopal1996, 20–51).

Orientalism and the Orientals

The British influence is easy to see today in those institutions, procedures, and laws introduced by the Raj that were enacted by the states born after decolonization. Examples include the use of written documents instead of oral testimonies, which reflects the strong presumption by the colonial power in favor of written texts; the focus on punishment rather than on reconciliation; and the presumption that one party is guilty and the other innocent, without consideration of the wider social context in which the crime occurred. However, it is in another, less evident, and more complex epistemological area that British influence has had long-lasting and profound consequences: the sharing on the part of colonized society of Orientalist and positivist axioms in the perception of its own religion.

The insistence on the part of the British on a systematic and uniform legal system, in particular, fed local perceptions of law, turning many of them, including the renowned reformist Sayyid Ahmed Khan, into champions of codification. The British search for clear and uniform principles and their reliance on religious texts also came to coincide with the efforts of Indian reformist movements to cleanse their religion of what they regarded as negative customary encrustations. Starting in the mid-nineteenth century, the elites who made up the leadership of the reformist movements, whether at Deoband, in the Ahl-e-hadith, or at Aligarh, tried to systematize their core values and eliminate inconsistencies, convinced that straying from “authentic” sharī‘a had been the main cause of political decay. Whereas before, scriptural sharī‘a had been an unattainable ideal and a source of moral reference and social preeminence, now divergence from the ideal contained in the primary sources could not be tolerated any longer. The status of the ‘ulamā’ was given increased importance by this revaluation of scriptural Islam and by the formal demise of the Mughal power, which altered the relationship between religion and political authority. The ‘ulamā’, deprived of their traditional role as legitimizers of the Muslim rulers, increasingly focused on correct behavior and adherence to the ideal in everyday practice.

In reconstructing the ideal, they concentrated on the legal aspect, seen as the main component of Islamic identity, without realizing that, but for a few exceptions, it was a component whose characteristics had been deeply altered. As to Muslim lawyers and judges graduating from “modern” schools, one of their primary sources were the reported cases of the Anglo-Indian courts, while their terminology and assumptions had little in common with Indian legal tradition. Although in some cases, they were critical of the way in which Islamic law had been applied by the British,Footnote ²³ they did not challenge the premises of Anglo-Muhammadan law and, in particular, the idea that Islamic religious doctrine consisted of a set of norms,Footnote ²⁴ and that idjtihād had ceased to be practiced fairly early.Footnote ²⁵ Scholars such as Sayyid Mahmood, who attempted to highlight the intricacies of fiḳh and their context-base nature, had minimal influence over British and Indian lawyers and judges. Differences within fiḳh, which had been increasingly glossed over, gradually disappeared from the Muslim conscience: it thus became common among Pakistani lawyers and scholars to hold that there had never been any substantial difference between medieval jurists.Footnote ²⁶

The British emphasis on scriptural religion also facilitated the establishment of boundaries between Muslims and non-Muslims, customs and sharī‘a, adab, and be-adab (Gilmartin Reference Gilmartin and Ewing1988, 43–62): the self was created through difference with respect to the other. The British distinction between treatises that were applicable to Hindus, and others that were applicable to Muslims, had in particular the effect of leading the people to choose which category they belonged to. It was this that led the nizāri Ismaili community to feel obliged in the second half of the nineteenth century to define itself explicitly as such, and to abandon non-Shia rituals and behavior (Nanji Reference Nanji and Ewing1988, 63–78). Groups such as the Khojas who thought of themselves as Muslims but followed Hindu law in some areas were asked to choose: as a British judge said, “they cannot have it both ways.”Footnote ²⁷

The effects of British legal constructions would also be felt in the political sphere: first of all, the sacralization of the Indian distant past allowed the local population to define its own identity with respect to the British Raj, turning the reconstruction of the past by the British into an ingredient of the revolt against the colonial power (Guha Reference Guha1997, 3). There was also a legal element to this: Islamic law, upon transformation into a consistent system like the British one but, unlike the British one, also endowed with religious consensus, became grounds for pride and moral superiority. Religious self-definition according to rigid rules would lead to well-known consequences in the relationship between Hindus and Muslims: it would contribute to the increase in clashes between the two communities and to the fortunes of the nationalist movement led by the Muslim League, which led in 1947 to the partition of the Subcontinent along religious lines. Significantly, many prominent politicians in the Muslim League, including Mohammed Ali Jinnah, the “founding father” of Pakistan, were lawyers who had been trained in British law and in some cases had practiced in England. Rehmat Ali himself, when devising the name of Pakistan, was studying law at Cambridge. It should also be pointed out that it was ultimately the need to establish clear identity borders that led to an increasingly exclusionary discourse within Pakistan, causing the disenfranchisement of the Ahmadiyya, growing clashes against the Shia, and the attempt to “objectivize” Islam, as became evident when the Supreme Court compared it in 1993 to a product covered by copyright laws.Footnote ²⁸

The Islamization Process in Pakistan

The myth of a fixed law, to be found in a distant past and detached from practice, is inherent in the attempts to “Islamize” the Pakistani legal order by way of codification. As the debates in the Constituent Assembly reveal, already in the early 1950s, Islam was widely seen by the Pakistani political class as an ideology containing a set of norms to be applied consistently.Footnote ²⁹ In the aftermath of the secession of eastern Pakistan and in the context of growing ethnic grievances and persistent territorial disputes with India and Afghanistan, upholding sharī‘a became part of the state's search for legitimation and unity and allowed it to cements its alliance with religious groups, while at the same time preserving its legal structure, which was heavily influenced by British procedural norms, in the face of increasing Islamist and ethnic challenges. Thus, while in Mughal times, the legitimacy of the rulers derived from formal abidance to Islam and from patronizing religious institutions and holy men, in Pakistan, the government's legitimacy became increasingly associated with the actual implementation of Islamic law, where the latter was interpreted as a set of norms extrapolated selectively from the doctrine.Footnote ³⁰

General Zia ul-Haq, who came to power in 1977 by promising the introduction of the niẓām-e-islām, issued with the support of Islamist and neoconservative groups ordinances that restored some elements of classical sharī‘a: in the field of criminal law, for example, fornication was made a crime; stoning, flogging and mutilations were reintroduced for ḥudūd crimes; and it was established that women could be subjected to corporal punishment. This return to Islam, however, was affected by India's colonial past: Zia's Islamic laws were applied according to procedural laws inherited from the British and, very similar to Anglo-Muhammadan law, were devoid of the nuances that had characterized Hanafi jurisprudence and legal practice under the Mughals. To mention just a few examples, consideration was not given in the new ordinances to those Hanafi precepts that would have mitigated the severe punishments prescribed for sexual crimes and made them difficult to apply, such as the attention to the bona fide of the litigants, the concept of “legal appearance” of marriage, and the legal fiction of the “sleeping foetus.”

The Islamization of the law implemented in Pakistan also differed from the precolonial tradition on another point: while under the Mughal, the ḳāḍī had been independent of the center, the codification of Islamic law in Pakistan was accompanied by the attempt to control the higher echelons of the judiciary, as was evident in 1981, when a decision of the government on the religious legitimacy of stoning was imposed on a reluctant Federal Sharīat Court.Footnote ³¹ The distinction between state and ‘ulamā’ that had characterized the Mughal period thus became increasingly blurred.

However, if we look at how the law on ḥudud offenses introduced by Zia are actually enforced, we note that judges continue to exercise ra'y, that is, personal opinion guided by contextual considerations, thus following a long tradition that has clearly not been completely forgotten. Moreover, the reference to one opinion rather than another, and the use of the talfiq— that is to say, the practice of combining principles used by the different Islamic law schools—is followed by the judges on the basis of the concept of maṣlaḥa and, in particular, the desire to maintain the status quo while protecting the most vulnerable sections of society from abuses of the law.Footnote ³² Pakistani courts have also been referring in several cases to the bona fide of the litigants by claiming that mens rea is a fundamental ingredient of conviction.Footnote ³³ Although similar cases can result in differing sentences according to the religious source the judges refer to, the aim of ensuring the status quo while protecting vulnerable groups still inspires the courts. Thus, religious law has retained at the adjudication level some of its traditional flexibility, though, in a significant departure from pre-British tradition, it is not only religious figures sitting in the Federal Shariat Court or in the Shariat Bench of the Supreme Court, but also lay judges, with no formal schooling in Islamic law, who refer to sharī‘a, sometimes giving precedence to it over statutory norms. Finally, the continuing recourse to customs, particularly to settle matters related to honor and the domestic sphere, and to informal systems of adjudication indicates that the actual legal practice has largely remained free of government interference (Chaudhury 1999). The hiatus between written and “living” law that surfaced under the British has thus remained a defining characteristic of Pakistani society.