An Effective and Affective History

12
An Effective and Affective History of Colonial Law

Judith Surkis
How can we situate present-day legal thought in relation to its history, and
what is the place of historical analysis in critical engagements with contem-
porary legal thought? Concerns about the relation between legal past and
present in history and theory have gained new urgency for the future of legal
criticism. Commentators in both history and law have, of late, pointedly ques-
tioned emphases on historical disjuncture and contingency as effective points
of departure for critique. They wonder whether such focus on historical dis-
continuity and the instability of meaning has obscured politically trenchant,
structural analyses of law (Tomlins 2013; Desautels-Stein 2015; Sewell 2005).
Paradoxical as it may seem, critical evaluations of contemporary legal thought
frequently invoke history and historical analysis. In this chapter, I contribute
to this discussion of how to critically historicize present-day legal conscious-
ness from a temporally, geographically, and conceptually decentered vantage,
namely the “unconscious” history of colonial law.
A helpful guide to tracing contemporary formations of legal thought in
relation to past ones, Duncan Kennedy’s essay on the “Three Globalizations” of
law serves as a crucial touchstone. Informed by (post)structuralist method, the
essay focuses on the deep structures that underlay three successive moments of
globalization: Classical Legal Thought (CLT), the Social, and this volume’s
point of departure, the “Contemporary.” Kennedy traces in each instance the
contours of “consciousness, understood as a vocabulary of concepts and typical
arguments, as a langue,” while also attending to specific articulations of that
consciousness, which are understood, following Saussure, as a kind of parole.
The essay poses an implicit question of how to understand the relationship
between overarching theoretical structures and their contingent and practical
articulation.
This question animates the critical ambition of Kennedy’s work. In mapping
both the underlying structure of “contemporary legal thought” and its internal
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An Effective and Affective History of Colonial Law 239
incoherencies, he aims to unsettle its global economic and legal hegemony

by turning to marginal sites of contestation (Kennedy 2006: 24). Understand-
ing the historical as well as contemporary relationship between center and
periphery in the “globalization” of legal consciousness is central to Kennedy’s
project. In his account, colonial law was a crucial vehicle for local articula-
tions of “global” legal consciousness, especially in its “classical” iteration. The
history of colonial law thus speaks to how legal ideas and practices travel, not
just from center to periphery, but also from periphery to center. The global
ambitions invested in colonial law thus contributed to other globalizing pro-
cesses, economic as well as social, including the production of a distinction
between market law and family law.
In Kennedy’s powerful account, CLT transformed economic structures to
conform to ideas of market freedom and private property. As part of the same
process, and in opposition to the domain of will-based contracts, it produced a
moralized reconceptualization of the family as an affectively saturated domain
of care and obligation. For Kennedy, “it is no more possible to understand
the second and third globalizations than the first without an analysis of how
the liberal idea . . . worked in symbiosis with or in contradiction of the coun-
terideal, counterethic, counterreality represented by the household” (Kennedy
2006: 36). In all three phases, then, the transformations in economic structures
wrought by CLT depended on what Raymond Williams famously described
as emergent “structures of feeling,” the shifting contours of which take con-
tradictory rather than “fixed explicit forms” (Williams 1977: 130). Kennedy’s
argument underscores the structural parallel and connection between the lib-
eral idea of the market and its limit and counterideal in the affective family.
What his schematic global overview does not account for, however, are the at
once global and local historical processes that gave rise to this new conception
of the family.
In this chapter, I highlight a singular moment in the history of colonial law
in order to bring these questions to the fore. In the process, I seek to highlight
how affective investments alongside economic ones shaped legal globaliza-
tion. These affective dimensions might be understood less as a diffusion of a
discreet legal “consciousness” than as its unconscious. The latter was manifest
in the projective fantasies that shaped colonial jurists’ approaches to Algerian
law and, just as importantly, in their unintended and uncontrollable effects.
In exploring the affective alongside and in conjunction with the material, we
grasp here both the idealized structure of colonial law and its internal inco-
herencies. The recognition of such blockages, blindspots, and moments of
resistance in the past may furnish crucial resources for critical approaches to
contemporary law.
240 Judith Surkis
This chapter thus engages the question of the contemporary by returning

to the history of colonial law. For Kennedy, the global extension of CLT was,
in many instances, the effect of “direct Western imposition in the colonized
world” (Kennedy 2006: 24). As a historian, I am interested in the specific
mechanisms of global diffusion and their effect, in turn, on “Western” legal
thought. The French colonization of Algeria in the 1830s lies on the cusp
of Kennedy’s first phase of globalization. Revisiting this past makes visible
the shadow cast by colonial history on contemporary legal globalization. The
effective history that I envision plumbs legal and economic structures, traces
affective and local contingencies, and illustrates how they were conjoined in
the past and remain linked still today.
More specifically, this affective and effective history points up contemporary
controversies surrounding religious and sexual rights, from same-sex marriage
and adoption to the headscarf affairs and contraception, while disrupting a
view of these recent disputes as necessary or inescapable. Working in and
between the registers of structure and contingency, we understand better why,
in our present conjuncture, the diffusion of what Kennedy describes as a global
“langue” of identity/rights in matters of sex and religion produces affectively
invested conflicts at the level of local practice or “parole” (Kennedy 2006: 70).
I would suggest that colonial legal history partially accounts for why these
conflicts have reemerged in postcolonial contexts, both on the periphery and
in former metropoles (Mahmood 2015; Scott 2007). In order to better trace
these dynamics, I focus on a specific instance of global legal “diffusion”: the
introduction of colonial law in French Algeria.
1 instability at the origin

Algiers was conquered in July of 1830 by French forces sent by an increasingly
unpopular “ultra” Catholic king, Charles X. The reactionary monarch’s effort
at political distraction failed and his reign collapsed within several weeks.
Forged by the July Revolution, the new government of King Louis-Philippe
was founded on the liberal and secular constitutional principles laid out in the
constitutional Charter of 1830. But the conquered territory’s legal status soon
posed problems for this new regime. Because many politicians were skeptical
of the material and military benefits of Algerian colonization, the eventual
shape of French rule remained unclear for the next four years. Even after
France asserted sovereignty over “the possessions in North Africa” in 1834, the
legal structure of French rule remained a work in progress.
Opponents named multiple reasons why France should not pursue col-
onization: among them excessive costs, local resistance, and the barbarous
violence of the French army. In these early years, colonization of the ex-
Ottoman Regency was not a foregone conclusion. In heated parliamentary
discussions, critics such as Deputy Xavier de Sade (Aisne) argued that given
“the enormous sums to protect and develop them,” the new holdings would
never be “useful.” The losses to be incurred, he and many other opponents
contended, were not only economic; they were also cultural. Speaking of the
extralegal massacre of a peaceful tribe, the El Ouffias, in 1832 by French army
officers, Sade warned that “rather than bringing to this people the lessons of
civilization, you should fear learning lessons in barbarism.”1
In response to these critics, proponents of expansion claimed that the Alge-
rian project was in fact legally, economically, and culturally viable. Yet even
they avowed that the French had acquitted themselves badly, illegally even, in
the first years of the conquest. Deputy Justin Laurence (Landes), who eventu-
ally drafted the plan for Algeria’s judicial organization, witnessed the disarray
up close. He had visited Algeria as a member of the Commission d’Afrique
charged with deciding what kind of colony – if any – Algeria should become.
Learning there of the “disasters and harms” caused by French actions, he
reported that Muslim legal authorities in Algiers, the local qadi and mufti, had
issued emotionally charged condemnations of the conquest:
In their expressive language, they reminded me, with tears in their eyes,
of the promises that had been made to them, giving me the documents, the
proclamations that were published to reassure them; next to these now illusory
guarantees, they unfurled their long list of complaints and the betrayals
[manques de foi] of which they accused the French administration. Sadly, all
of these charges were well founded.2
For procolonial politicians such as Laurence, Algerian colonization could

only proceed within a clearly established legal framework, one that would
promote a free exchange of land from Algerians to European settlers.
Within weeks of becoming an official colony in July 1834, Algeria was
furnished with a “judicial organization,” drawn up by Laurence and adopted
as a royal ordinance. It established French courts and placed indigenous law for
both Muslims and Jews under the mantle of French sovereignty. This system
of local law remained in place even after Algeria became a legal extension of
France in 1848. In 1870, the territory’s northern departments were transferred to
civilian rule and legally “assimilated” to the metropole. Although jurisdictional
1 Xavier de Sade, April 28, 1834 in Procès-verbaux, Chamber, Series 2, Vol. 89, April 17–May 5,
1834 (Paris: Dupont, 1894), 404, 409.
2 Justin Laurence, April 30, 1834 in Procès-verbaux, Chamber, Series 2, Vol. 89, April 17–May
5, 1834 (Paris: Dupont, 1894), 62.
242 Judith Surkis
boundaries between French civil and local law were repeatedly reorganized,
this basic structure of legal pluralism remained in place throughout the history
of French Algeria (Barrière 1993; Christelow 1985).
France’s postrevolutionary legal order was premised on a commitment to
the homogeneity emblematized by Napoleon’s Civil Code. The new colony’s
legal pluralism evidently broke with that unified – and national – legal imag-
inary. How can we account for such willingness to depart from the Code’s
commitment to legal unity and integrity? The question condenses broader
concerns – the relationship between continuity and rupture, as well as struc-
ture and sentiment – in the formation and transformation of colonial law.
2 the persistence of plural legal orders

French legal modernization was designed to abolish the ancien régime’s patch-
work of civil jurisdictions. The Napoleonic Civil Code’s most prominent
author, Jean Marie Portalis, lamented in 1801 how “up until now the diversity
of customs created, in the same state, a hundred different statuses” (Portalis and
Portalis 1844: 142). The new Civil Code, by contrast, unified the jurisdiction of
citizens, making all French nationals subject to a singular “personal law” (art.
3). A Roman legal category that determined the individual’s legal identity and
capacity, “personal status” followed persons as they traveled and lived abroad,
unlike territorial laws of property and police. French nationals who settled
in Algeria clearly maintained their French national “personal status.” But the
legal status of local inhabitants and of their property was far less settled.
In principal, local law was protected. According to the terms of the capitu-
lation convention signed by the General Louis Auguste Victor Bourmont and
Hussein Dey on July 5, 1830, the French guaranteed the freedom of religion
and protected native Algerians’ property and “their women.” The text of the
convention thus read: “The exercise of the Muslim religion remains free. The
freedom of the inhabitants of all classes, their religion, their property, their
commerce and industry, will not be disturbed. Their women will be respected”
(Estoublon and Lefébure 1896: 1). But from the outset, the excesses and errors
of the military’s actions – from summary executions to the appropriation of
mosques and the destruction of cemeteries – violated these legal strictures
(France 1834: 67–76). Jurists nonetheless claimed to be following the Conven-
tion when they recommended that existing tribunals – Muslim, Mosaic, and
customary – be maintained alongside new courts established for the French
and foreign population.
French officials were sent to study the system that existed on the ground.
A government legal advisor to the Conseil d’Etat, Charles Paravey, traveled
to Algiers in 1832. He issued a strikingly positive assessment of the previous

regime. For Paravey, “nothing could have been more inexact” than his own
preconceived ideas about the arbitrary character of law in the former Ottoman
Regency. The last Dey had been, in his assessment, “very legal,” with justice
“constantly rendered by its regular and legitimate organs.” Because these courts
and law had been so effective, he wondered whether “a French judge” could
competently “apply Moorish law.” There were basic problems of expertise and
legitimacy: “Could he obtain the authority, inspire the necessary confidence to
be a conciliator? How could he get mixed up in questions of family . . . and that
host of questions in which religious law is mixed with civil law . . . ” Because
only a Muslim judge, the qadi, seemed fit for this task, Paravey proposed
that indigenous law be maintained for different communities. In coming to
this conclusion, Paravey and many jurists who followed in his wake assumed
an intimate association between religious and family law that needed to be
preserved.3
Following in Paravey’s footsteps, the Commission d’Afrique conducted a sec-
ond study of local law as part of its assessment of Algeria’s colonial prospects
in 1833. Written by Laurence, the report similarly held that native tribunals
should be maintained, at least for a time. In contrast to Paravey, Laurence wor-
ried about how to square French sovereignty with indigenous justice. Under
the Regency, Koranic prescription applied to all, including the sovereign
(France 1834: 283). The French sovereign could not, however, be so bound.
Laurence thus asserted the sovereign right to overturn Muslim magistrates’
judgments. In other words, he aimed to expand French authority and influ-
ence over native tribunals, even while maintaining native courts (France 1834:
286). Some members of the Commission were more circumspect, holding
that “it is necessary to allow the already existing customs [usages] to remain
in place, to not upset the Qadis’ jurisdiction and follow the Arabs’ moeurs”
(France 1834: 305). Over the course of the next decades, French policy regu-
larly shifted between these two positions, but worked to increasingly limit the
jurisdiction of Muslim jurists.
According to the terms of the royal ordinance adopted in August 1834, the
government appointed Muslim jurists. From that point on, the French impe-
rial state oversaw Muslim law in Algeria, progressively regulating and restrict-
ing it to the “personal status” questions of marriage, divorce, and inheritance.
Colonial government thus made Muslim law French law. But in glaring con-
trast to the Civil Code’s legal ideal of homogeneity, Algerian colonization
3 Rapport to Justice Minister on the Judicial Organization in Algiers, October 3, 1832, by C. H.

Paravey, BB 30/616 Archives Nationales.
244 Judith Surkis
reasserted a pluralism and diversity of status that had been associated with
the ancien régime. Pluralism thus trumped the ideal of legal coherence and
universality. The government, whose colonial ambitions remained subject to
internal political contestation as well as local armed resistance, did not have
the resources, the expertise, or the authority to organize justice in the new
colony differently. There were limits to how the principles and practice of
French law would be imposed on Algeria and Algerians.
Jurists struggled with the task of resolving contradictions between codes.
Polygamy, which became a synecdoche of colonial legal conflict and cultural
difference, remained permissible for those “indigènes” or natives – both Mus-
lim and Jew – whose marriage contracts were based on local law (Surkis 2010).
As in other contexts of colonial legal pluralism, this judicial structure reified
the coherence of native communities, families, and laws by asserting an inti-
mate link between religious, familial, and legal identity (Cohn 1996; Merry
1991; Kugle 2001). The adoption of a plural structure did not, however, prevent
persistent conflicts over the legal status of persons and property. Colonial law
in Algeria, as elsewhere, was elaborated through these conflicts, not in spite of
them.
Rather than being fixed from the outset by the 1830 capitulation or by the
1834 Ordinance, Algeria’s judicial organization remained in flux. Domestic
political pressures and resistance on the ground contributed to the instability.
Not least, the colony’s new subjects, including seemingly marginal women,
challenged this plural order. Indeed, in 1834, only weeks after Algeria’s judicial
organization, the conversion of a young woman to Christianity made visible the
uncertain foundations of the territory’s legal order. Aı̈cha bent Mohammed’s
case illustrates how emotion as well as economy shaped law in French Algeria.
3 affective and effective histories

Aı̈cha bent Mohammed appeared before the Governor General Théophile
Voirol in September 1834 with a request to convert to Catholicism. Algeria’s
new judicial organization, based on presumptively “religious” jurisdictions,
did not make provisions for conversion. Generated on the ground by a woman
in Algiers, the legal quandary rose to the highest level of the colonial admin-
istration: the Governor General and the Minister of War. Lauren Benton has
aptly captured this seeming paradoxical feature of colonial legal conflict: how
“the question of the legal standing of the most marginal people in the colonial
order became symbolically central to the development of legal culture and
the broader realignment of the political order” (Benton 2002: 209).
Reading the paper trail produced in the wake of Aı̈cha’s predicament “along
the archival grain,” to use Ann Stoler’s phrase, reveals some of the confu-
sions created by one woman’s case. Dramatic plot twists, administrative blind-
ness, bureaucratic conflict, and ministerial backtracking display the haphazard
responses of metropolitan officials as they sought to remedy the unsteady situ-
ation from afar (Stoler 2009). The archive demonstrates, in other words, that
official “policy” when it came to legal and religious status was not worked out
in advance. It was highly reactive and less than coherent. The ripples caused by
Aı̈cha’s actions make clear how contingency and confusion as much as calcu-
lation contributed to the elaboration of Algeria’s legal order. There was more
than a unidirectional diffusion of “global legal consciousness” at work here.
What should we make of the role of such contingencies in the development
of Algerian colonial law? And how should we situate this scandalous event in
relation to the political and economic imperatives guiding the elaboration of
law in the settler colony?
As Benton has suggested, colonial states assumed an increasingly important
role in the management of jurisdictional conflicts in the long nineteenth cen-
tury. The legal history of French Algeria follows this global imperial trend, as
the French state took on an increasing role in the administration and regu-
lation of native law courts and in shaping the contours of their jurisdictions.
One of the earliest changes was a forceful assertion of the state’s monopoly on
violence. By 1842, French courts assumed exclusive responsibility for criminal
law jurisdiction, with the exception of crimes that existed in “local law” [la loi
du pays], but not in French law. The ordinance also confirmed the application
of military law beyond the circumscribed limits of French occupation. In that
part of the territory still considered to be at war, military courts had criminal
jurisdiction. Muslim law courts, meanwhile, managed questions of civil status
[l’état civil], which were to be judged according to “the religious law of the
parties involved” (Estoublon and Lefébure 1896: 22–30). With the exception
of a brief experiment granting Muslim law courts greater autonomy in 1854–
9, qadis were positioned in an appellate hierarchy and subject to review by
French tribunals (Christelow 1985).
The consolidation of such state-centered legal pluralism was not determined
in advance, nor was it a simple or straightforward effect of the economic trans-
formations that helped to spur colonial expansion. Drawn into conflicts initi-
ated by local actors, the colonial state adjudicated and ordered the apparently
“cultural” conflicts that inevitably arose in a plural legal order. Indeed, they
contributed to the elaboration of colonial conceptions of culture itself. These
debates may have ultimately led to the strengthening of the colonial state,
246 Judith Surkis
but, as Benton observes, they were not directed by a coherent and centralized
“uniform policy” (Benton 2002: 152).
Scholars of legal pluralism often stress how colonial law remained flexible
and incomplete, thus allowing legal subjects to act by exploiting its oversights
and incoherencies (Merry 1988). Benton’s account provides an ironic twist on
this familiar story of interaction between “law and society.” Marginal colo-
nial subjects had agency, but their actions had unanticipated consequences:
they “produced a strengthening of state authority that neither side precisely
embraced or predicted” (Benton 2002: 148).
Questions of what came to be seen as “cultural difference” were part and
parcel of the struggles over the economy and sovereignty that fueled the devel-
opment of colonial law. These local, contingent dynamics were thus integral
to colonial law’s global “diffusion.” In Benton’s account, culture is a spatial-
ized field of negotiation and struggle, a “legal and political space.” Its form was
shared in a global legal imaginary even if its differential content was not. The
institutions that took shape to manage and order difference thus gave rise to a
“globalizing imaginaire” that was, she argues, “quintessentially cultural” (Ben-
ton 2002: 262). The political and legal moral of her book lies in this account
of culture and contingency. Gesturing toward this horizon at the end of her
introduction, she writes: “By revealing modern-state centered legal pluralism
as historically recent and contingent, we may perhaps help to make space
for other frameworks that would allow for greater legitimacy for alternative
political authorities without threatening the rule of law” (Benton 2002: 30). In
other words, for Benton, the revelation of such historical contingency makes
alternatives imaginable.
Taking inspiration more from Michel Foucault than Bourdieu, Ann Stoler’s
account of the colonial state and its law similarly emphasizes contingency and
especially affective instability. She, too, contends that the practices and policies
of colonial officials were less directed by state reason than animated by epis-
temological uncertainty. More specifically, she focuses on inchoate anxieties
over how and where to legally mark cultural and racial boundaries. Studying
the Dutch colonial archive, Stoler highlights the salience of what she refers to
as “affective states.” In her account, sentiments are not ideological veils for real
material interests, nor are they mere metaphors of rule. They are, rather, at the
“heart” of colonial governmentality. Thus, rather than viewing the colonial
state as an agent of “reason,” Stoler maintains that “ ‘the political rationalities’
of Dutch colonial authority . . . were grounded in the management of such
affective states” (Stoler 2009: 58–9).
There is a crucial lesson to be learned here about the epistemological limits
and affective grounds of colonial policy. Far from exercising logical mastery,
colonial authorities struggled to govern volatile emotions and the uncertain

situations and solutions to which they gave rise. Such focus on sentiment and
epistemological uncertainty illuminates how and why jurisdictional politics
were so central to cultural boundary making. The anxious, affective invest-
ments of colonial officials made these questions objects of considerable offi-
cial attention. The organization and regulation of affective relations exceeded
the register of the metaphorical; they were the concrete medium or vector of
that power (Stoler 2010). But, if we grant their historical salience, how can
we grasp the diffusion of global legal consciousness in the long nineteenth
century?
It is helpful to place these arguments alongside Andrew Sartori’s global
conceptual history of how “culture assumed a global status” (Sartori 2008:
17). Sartori’s intervention reminds us that “culture” cannot be assumed, but
rather needs to be historicized as a globalized form that took on variable con-
tent, as the expansion of capitalist markets did not have purely homogenizing
effects. While emphasizing this variation and variability, Sartori’s account of
the global diffusion of culturalist consciousness nonetheless privileges “struc-
tural continuity over contingency.” It thus departs in crucial ways from Ben-
ton and Stoler’s focus on struggle and uncertainty. Calling into question the
“conventional disaggregative wisdom” of genealogical approaches, he seeks a
“deep coherence to the history of the culture concept”(Sartori 2008: 67). For
Sartori, genealogy’s emphasis on contingency and conceptual disaggregation
cannot historicize a globalized concept such as culture. In his view, a focus
on institutional and discursive disjuncture remains inevitably partial. Unable
to account for historical motivation, genealogy’s critical explanatory force is
limited, especially for thinking at a global scale.
Genealogy is indeed written against a singular conception of historical ori-
gin and causation. But it is precisely for that reason that it is compelling. Its
commitment to understanding multiple “beginnings,” the conjunctures and
contingencies that coincide in historical events, recovers a plurality of histor-
ical contradictions, rather than insisting on their singularity (Foucault 1977:
144–5). Genealogies, in short, identify dynamics of historical overdetermina-
tion that might, in Althusser’s suggestive phrasing, be understood as a “ruptural
unity” (Althusser 1996: 100).
In the last section of this chapter, I explore how Aı̈cha bent Mohammed’s
request to Governor General Voirol can help us to think through the con-
tingent and the causal in the consolidation of Algeria’s juridical order. In the
wake of the legal and social chaos provoked by the young woman’s actions,
subsequent policy maintained that religious conversion would not alter Alge-
rians’ legal status and jurisdiction. Christian converts were subject to “Muslim
248 Judith Surkis
law,” regardless of their altered faith. The paradox of what jurists ironically
described as “Catholic Muslims” exemplifies how Algerian “Muslim law” had
an ethno-racial basis rather than a religious foundation. This particularized
law became the basis for Algerians’ political exclusion and their subjection to
an exceptional regime of criminal law (Bonnichon 1931; Weil 2002). In retro-
spect, the policy appears to be an effect of a cynical colonial legal strategy built
on ethno-racial exclusion. A study of Aı̈cha’s case illustrates, instead, how the
policy emerged out of a precarious juridical order and the hesitant reactions
of French colonial officials. In tracing this history and its afterlife, I hope to
arrive at an “effective” as well as affective history of colonial law, which is to
say, one that restores the place of contingent events and visceral emotions in
the shaping of legal structures (Foucault 1977: 154).
4 aı̈cha’s case and after

When Aı̈cha bent Mohammed announced her intention to convert to Catholi-
cism to Alexandre Pierre Cottin, the acting Mayor of Algiers, he was suspicious
of her intentions. While avowing abuse by her husband, she claimed that the
mistreatment did not motivate her conversion. She urged that, as a divorced
woman, “he no longer has any right over me.” Cottin tried to dissuade her
from pursuing her plans, insisting that, “even if you remain Muslim, you will
be no less protected by French authority than if you become Christian.” The
woman remained firm, insisting on her heartfelt convictions: “I repeat, I fear
nothing; I want to become Christian to be Christian; it is my heart that wants it
this way.” [c’est mon coeur qui l’exige ainsi] She apparently persuaded Cottin.
In his report to the interim Governor General Voirol, he recommended that
Aı̈cha be allowed to convert after a few days of considered reflection.4
This archival story holds out a tantalizing promise of accessing Aı̈cha’s
voice, and with it, a sense of how she seized on new legal possibilities created
by the French presence. We further grasp how Aı̈cha’s actions had unintended
effects, as her case ended up challenging the entire edifice of the new legal
order. The legal implications of her change in belief thus became a source of
scandal and a sensitive matter of state.
Remaining records attest to the emotional volatility of the conflict. French
colonial officials as well as Algerian notables were deeply unsettled by the
affair. According to a report by Civil Intendant Pierre Genty de Bussy, “the
event created a sensation and became the pretext for two or three outbursts
4 Cottin to Gov. Gen., September 3, 1834, 1 H 28 Service Historique de la Defense (hereafter,

SHD).
that reached a fever pitch [scènes poussées de part et d’autre au dernier degré].”5
Voirol was aware of the risk and recommended that her case be treated “with
prudence” (Voirol 1924: 784).
Seeking to absolve himself of responsibility, Voirol explained in a letter to the
Minister of War that he had wanted to dissuade the woman from her spiritual
venture. But he was also convinced by Aı̈cha’s profession of faith. To deny her
protection would have, in his eyes, represented an “abdication of authority.”
He thought that, in religious matters, the government must allow “complete
liberty to individual determinations.” Upon meeting her, Voirol judged that
Aı̈cha “was free in all her actions” and hence competent to convert. According
to his own admission, he had even granted permission to the abbé Spitz to
act as her spiritual advisor. He worried that forbidding her conversion would
compromise French authority, even if, as he also acknowledged, in Algeria’s
judicial organization “religion engendered a kind of nationality” (Voirol 1924:
787). In privileging her religious freedom, Voirol overlooked the effect of
conversion on her jurisdiction.
The problem, of course, was that Muslim law had become French law. After
the September 10, 1834 Ordinance on judicial organization, religio-legal status
was an attribute of French sovereignty and not merely a matter of personal
conviction. Muslim tribunals were “maintained” for natives, but were now
subordinated to French authority. Voirol had just chosen the Muslim magis-
trates, the qadi and mufti, when Aı̈cha presented her case.6 These jurists were
legally French state officials, whose jurisdiction over all “Muslim” subjects
was authorized and guaranteed by the state. In establishing this segmented
order, the law clearly assumed that individuals would retain allegiance to their
confessional communities. No provision was made for individuals who, like
Aı̈cha, sought to change their religion – and hence, at least potentially, their
legal status.
News of Aı̈cha’s planned conversion spread throughout the city, creating
legal and social chaos. The new Maliki qadi Abdel Aziz requested an audi-
ence with Aı̈cha in an attempt to dissuade her. According to Voirol, Aı̈cha
feared being whipped in a bastonnade, a punishment that the French reg-
ularly denounced as emblematic of Algerian penal cruelty. When she was
brought before the qadi, she reportedly cried out for help (Voirol 1924: 785).
Her pleading brought swift reaction on the part of several translators in the
employ of the French military, including the Syrian-born priest Jean-Charles
Zaccar. Aı̈cha was quickly given refuge in a church. Aided by the abbé Larue,
5 Genty to Minister of War, September 13, 1834, 1 H 28 SHD.

6 Note, September 12, 1834 1 H 28 SHD.
250 Judith Surkis
she converted in extremis in the hope that doing so would allow her to escape
the jurisdiction of her “juges naturels.”
Muslim jurists were outraged by the French intervention into their court.
Abdel Aziz demanded that Aı̈cha be returned to his authority. He threatened
to kidnap and return her to her husband. In public protest, he closed his
tribunal, thus leaving the city’s Muslim citizens without a judge and notary.
Local notables addressed petitions to the Ministry of War, denouncing this
encroachment on their religious liberty. One petition described the qadi’s
protestation. It clearly seized on the legal guarantees that had been made
on the part of the French state to the recently named Muslim jurists: “For
everything that touches on our religious law, we cannot tolerate any tyranny.
We have placed our confidence in the sovereign [the King] in order that he
should respect our laws, our harems, and our children, in the interest of the
general good. After what has just happened, I can no longer sit at my tribunal
and allow the privileges of the position of the qadi to be thus violated.”7
Meanwhile, civil intendant Genty de Bussy found himself in a heated conflict
with Voirol. In a letter addressed directly to the Minister of War, he denounced
the Governor General’s handling of the case: “In this one affair, the General-
in-Chief has lost in the eyes of the Maures all that he had accomplished in two
years of paternalist government . . . This woman should have been left in the
hands of her natural judges; her conversion should not have been so carelessly
permitted.”8
The Ministry of War concurred. In its view, Aı̈cha’s action and Voirol’s
imprudent decision jeopardized the colony’s new judicial organization. An
internal report denounced this failure to respect the “independence of the
Muslim magistrates.”9 The political bind was clear: by violating Muslim
officials’ jurisdiction, the young woman’s actions compromised secular legal
authority and French rule.
But what of Aı̈cha’s supposed religious “freedom”? After all, Voirol had guar-
anteed her liberty of conscience. The new administration abruptly changed
course. Upon his installation later in the month, the permanent Governor
General Jean Baptiste d’Erlon reversed Voirol’s misguided decision. As an
internal report written by legal advisor Paravey explained, “the Administration
has other things to do than to offer up commonplaces about religious liberty.”
The War Ministry’s recommendations to the new Governor General were
7 Translation of the Petition of the Inhabitants of Algiers, September 13, 1834. 1 H 28 SHD.
8 Genty to Minister of War, September 13, 1834. 1 H 28 SHD.
9 Rapport to Minister of War, 13 October 13, 1834, On the conversion of a Mauresque. And the
letter based on the report, Minister to Gov. Gen. Erlon, October 13, 1834. 1 H 30 SHD.
clear: conversions should be opposed in the name of “preventing anything

that might trouble order.” The Ministry further justified its actions by dis-
puting the purity of Aı̈cha’s motives on explicitly sexual grounds. According
to rumors detailed in several anonymous letters and confirmed by Genty de
Bussy, the real reason that she wanted to convert was that she was having
an affair with a European. In the Minister’s eyes, Voirol had inadvertently
“protected debauchery in the name of the freedom of conscience.”10 Aı̈cha’s
supposed sexual misconduct helped to obscure the juridical quandary posed
by her case. In the wake of this disruption, the Ministry and new Governor
General sought to reassert sexual and legal order.
The archives of Aı̈cha’s case recall the affectively charged reports written
by Stoler’s Dutch colonial officials. Confused and contradictory missives from
Governor General Voirol, Civil Intendant Genty de Bussy, and competing
petitions from Algerian notables indicate the strong emotions provoked by
Aı̈cha’s case. Forced to sort out competing narratives, including charges and
countercharges between civil and military authorities as well as competing
claims between Algerian notables, the War Ministry faced epistemic uncer-
tainty. Legally and militarily precarious, the Ministry adopted a cautious policy
that reinforced legal and religious as well as sexual boundaries between com-
munities, which only further entrenched, without resolving, the problem of
difference that confounded but also authorized the colonial project.
In the months that followed, more women came forward expressing their
desire to convert. The handling of their requests signals how gender structured
an emerging policy. A second woman named Aı̈cha bent Mohammed (or
perhaps it was the same petitioner) came before the Governor General in
February 1835. According to local officials, she was an orphan and prostitute.
Claiming that the qadi had imprisoned and beaten her on learning of her
intentions, she sought the protection of French authorities. In order to avoid
the disorder created by Voirol’s earlier efforts, d’Erlon opted for an alternative
solution: he sent her to Marseille aboard a government vessel.11 Deportation
was, in this instance, the best strategy for doing away with a woman who was
a legal and social anomaly in the new juridical order.
In May 1835, yet another woman, whose name does not appear in the archival
record, approached d’Erlon with a conversion request. This woman, in contrast
to Aı̈cha, had too much family, rather than not enough. She wanted to escape
10 Minister of War, Report to Minister, October 13, 1834 “On the conversion of a Mauresque.” 1
H 30 SHD.
11 Gov. Gen. to Minister of War, February 1, 1835; and Minute, Minister of War to d’Erlon,
February 27, 1835. 1 H 30 SHD.
252 Judith Surkis
her mother-in-law’s mistreatment and her father’s excessive authority. In her

case, however, relocation was not an option. The Governor General refused to
extend legal protection to her and returned her to her family. “Conversion,” he
averred, would “in no way absolve her of the obedience she owed her father.”
Technically free to follow her conscience, she remained subject to her father’s
law.12 The War Ministry endorsed d’Erlon’s decisions in both cases. Sensitive
to the threat posed by the women’s attempts to convert, it reasserted the new
order’s fragile integrity. Troublesome women were removed from the scene,
either sent home or shipped abroad. The result of the Ministry’s actions was
to legally anchor Algerian women in their family and “Muslim” jurisdiction.
This colonial construction of “the Muslim family” as a presumptively affective
as well as legal unit would have a long and important history in Algerian law
and beyond it. It eventually became a crucial component and complement
to colonial property reform, which worked to make property exchange subject
to French civil law, while maintaining “Muslim law” for matters of “personal
status” (Surkis 2010).
The legal history of French Algeria is inseparable from its status as a settler
colony. What historians have not adequately analyzed, however, is how these
property reforms relied on and ultimately shaped Muslim “family law” as
well. The specific development of Algerian colonial law thus reflects the
broader Janus-faced aspect of Kennedy’s globalized CLT and its enactment
of a distinction between a will-based market law governing property and an
affectively invested and moralized construction of the domestic family that
limited individual freedom, especially that of women. The early history of
Algerian colonization demonstrates how this construction of the “Muslim
family” emerged as a structure of colonial legal feeling before it was fixed in
and by law.
But what seems to be a structurally inevitable logic only appears as such in
retrospect. Expropriative desires were not alone in shaping Algerian legal devel-
opments. In order to secure a still precarious juridical order, French authori-
ties went beyond tolerating and “preserving” religious and family power. They
shored it up and secured it. Authorized by military as well as judicial force,
familial power dynamics within Algerian households became instruments and
extensions of French rule.
conclusion
Algeria’s 1834 judicial organization was supposed to create a legal framework
that facilitated colonization – and, more specifically, property exchange. As
12 Gov. Gen. Erlon to Minister of War, May 14, 1835. 1 H 32 SHD.
Laurence explained to the Parliament, regular announcements in the Moni-

teur algérien, the colony’s official journal, would publicize how “the trans-
mission of land is accomplished freely and voluntarily between natives and
Europeans.” This uneventful transfer of property supposedly had no impact
on the lives of families. In his idealized account, “the environs of Algiers
offer up the singular spectacle of the French set up next to Arab families,
European homes facing Muslims houses, inside which we find the secret of
interior life and the enclosure of women, without any fear, without any anxiety
about this proximity.”13 Laurence’s observations make explicit the structural
and specifically economic logics underpinning Algeria’s judicial regime. The
figure of the undisturbed home exemplified how the Arab family became a
“counterideal, counterethic, counterreality” of the market in land. His speech
and the law it described highlight an emerging opposition between market
and family that became so central to the “classical” phase of global legal con-
sciousness (Kennedy 2006: 36). As I have suggested, this economic and legal
structure also entailed, and was buttressed by, a structure of feeling.
The controversy provoked by Aı̈cha’s case further demonstrates, however,
that the legal status of Algerian persons and things remained uncertain – and
hence a cause of colonial disorder and anxiety. There was, in other words,
considerable play in this emerging structure that could also be seen as an
effect or emanation of its “unconscious.” Above all, women’s place in the new
judicial organization proved to be a consistently troublesome node – a potential
site of conflict that was embedded in the colony’s legal regime at the outset. The
affectively charged responses to one woman’s conversion by colonial officials
as well as by local inhabitants in Algiers reveal problematic projections and
unintended consequences, disavowed desires and their unforeseen effects.
Viewed in this light, Aı̈cha’s case carries broader historical and histori-
ographical resonance. It allows us to reflect critically on the relationship
between contingency and structure in the production of global legal con-
sciousness, both in the past and today. Indeed, the controversy over Aı̈cha’s
conversion tellingly prefigures contemporary scandals such as those provoked
by Coptic women’s conversions to Islam in Egypt. As Saba Mahmood has
recently shown, these scandals are a “flashpoint” in broader narratives of
Muslim-Christian conflict in which the faith of women serves as a focal point
of intercommunal struggle. These conflicts should be understood, however,
not as an inevitable expression of local and seemingly archaic culture, but
as an effect of the modern secular state’s governance of religious and family
law (Mahmood 2015). Far from persisting as a remnant of local tradition, the
13 Justin Laurence, May 21, 1835 in Procès-verbaux, Chamber, Series 2, Vol. 96, May 13-June 1,
1835 (Paris: Dupont, 1897), 286.
254 Judith Surkis
religious status of women continues to unfold as a modern – and global – legal

development.
My aim in returning to a case from the Algerian colonial past has been
to highlight how affectively invested and contingent actions have shaped this
and related developments. Doing so delineates the terms of uncertainty that
Duncan Kennedy makes central to his narrative of legal globalization – and
his vision of its open future. Kennedy seeks to capture the critical necessity
and possibility of undecidability as a way of taking back “alienated powers that
can be used for local or national or transnational change.” I would suggest that
confronting what he calls “the existential dilemmas of undecidability” requires
attending precisely to the affective and effective dimensions of legal history that
his approach, with a focus on consciousness, leaves yet unexplored (Kennedy
2006: 73). In particular, charting how disruptions and discontinuities coincide
with and contribute to apparently structural logics clarifies how structures
emerge as well as how, when, and where they come undone.
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1400–1900. Cambridge University Press.
Bonnichon, André 1931. La Conversion au Christianisme de l’Indigène Musulman
Algérien et ses Effets Juridiques (Un Cas de Conflit Colonial). Paris: Recueil Sirey.
Christelow, Allan 1985. Muslim Law Courts and the French Colonial State in Algeria.
Princeton University Press.
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Princeton University Press.
Desautels-Stein, Justin 2015. “Structuralist legal histories,” Law & Contemporary Prob-
lems 78: 37–59.
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Royale.
Kennedy, Duncan 2006. “Three globalizations of law and legal thought: 1850–2000,”
in Trubek and Santos (eds.), pp. 19–73.
Kugle, Scott Alan 2001. “Framed, blamed and renamed: the recasting of Islamic
jurisprudence in colonial South Asia,” Modern Asian Studies 35: 257–313.
Mahmood, Saba 2015. Religious Difference in a Secular Age: A Minority Report. Prince-
ton University Press.
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in Colonial Rule. Berkeley: University of California Press.
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12

An Effective and Affective History of Colonial Law

incoherencies, he aims to unsettle its global economic and legal hegemony

This chapter thus engages the question of the contemporary by returning

1 instability at the origin

For procolonial politicians such as Laurence, Algerian colonization could

2 the persistence of plural legal orders

to Algiers in 1832. He issued a strikingly positive assessment of the previous

3 Rapport to Justice Minister on the Judicial Organization in Algiers, October 3, 1832, by C. H.

3 affective and effective histories

colonial authorities struggled to govern volatile emotions and the uncertain

4 aı̈cha’s case and after

4 Cottin to Gov. Gen., September 3, 1834, 1 H 28 Service Historique de la Defense (hereafter,

5 Genty to Minister of War, September 13, 1834, 1 H 28 SHD.

clear: conversions should be opposed in the name of “preventing anything

her mother-in-law’s mistreatment and her father’s excessive authority. In her

12 Gov. Gen. Erlon to Minister of War, May 14, 1835. 1 H 32 SHD.

Laurence explained to the Parliament, regular announcements in the Moni-

religious status of women continues to unfold as a modern – and global – legal

works cited – chapter 12

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