Anglo – Muhammadan Law

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Genesis of the reading

 The British wanted to preserve the existing institutions with

some basic British principles no major change was seen to be
needed

 Anglo muhammadan law was seen as a system by which british

exerted control and exercised state power

 Anglo-muhammadan law functioned as a interface between the

EIC and larger society

 Islamic jurisprudence could not be done away with it was a

necessary language of communication
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Impact on sharia

 Sharia became static in a rapidly changing society

 Shariah was varied – wide range of sanctions on a range of issues

whether they were permissible or not

 moral authority was a basis of sharia

 sharia provided legitimacy to company officials to administer

 translation and codification was needed for the state to administer

 Anglo muhammadan law was anglicized, more anglo than

muhanmmadan
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EIC EXPANSION AND
APPROPRIATION OF SHARIA
 The delightful region of Bengal was cheered by the rays of Government of the Nawab
Governor-General, Mr. Warren Hastings ... [who desired] that the care and protection
of the country and administration of public affairs would be placed on such a footing,
that the community, being sheltered from the scorching heat of the sun of violence
and tyranny, might find the gates closed against injustice and oppression.-
introductory address of the composers of the Persian version of the Hedaya4 During
the last thirty years of the eighteenth century, two simultan- eous changes took place
among the British in India. The Parliament in London asserted its control over the
East India Company, forcing a mercantile company to transform into a government
administra- tion. At the same time, the 'home office' in Calcutta systematized relations
between different local powers and tried to identify and buttress a 'traditional India'
which could serve as the foundation for a colonial state.5 Before 1757, the Company
had relied on both local authorities and local custom to settle legal disputes
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Initially there was no separation of
English and local justice
 As English merchants grew more actively involved with local polit- ics,
moneylending and trade, the facile separation between 'English justice' and
'local justice' became useless. Intermarriage and the employment of Englishmen
by the Mughal court also problematized this ad hoc style of adjudication.9 Bayly
describes the centers of English trade as 'multi-racial corporate cities in which
Indians were justices, members of civic bodies and in which a variety of Mughal
officers retained honour'.'0 South Asians not only held respected posts as
justices, but also must have been tried in English courts; the new charter
granted to the Company in 1753 mentions that Indians could have recourse to
their own religious laws rather than adjudication in the company's courts." In
1757, the East India Company gained military control of Bengal as a result of
the battle of Plassey.'2 At first, they saw this victory only in terms of the
expansion of trade networks
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Some important points
why nawab governor general?
 In the initial years after battle of buxar in 1764

 British seem less interested in governing

 Existing institutions were working just fine.

 'The British were still wary of straying too far from what they consid- ered
"traditional" forms','5 and Hastings became known as 'the Nawab Governor-
General'. But Hastings' actions under the umbrella of that title were very unlike
a Mughal ruler's. He authorized Com- pany officers to spread into the
hinterland of Bengal as revenue col- lectors. He also ordered English officers to
supervise directly the settlement of disputes. In the 1772 Regulations, Hastings
stated the basis for arbitration between Indians: officers would apply 'the law' of
Hindus and Muslims to matters of inheritance, marriage, caste and religiou
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Hindoo law for hindoos and muslim law
for muhammadans

 Their inheritance and succession to lands, rents, and goods,

and all matters of contract and dealing between party and party,
shall be determined in the case of Mahomedans [Muslims] by
the laws and usages of the Mahome- dans, and in the case of
Gentoos [Hindus] by the laws and usages of Gen- toos, and
where one only of the parties shall be a Mahomedan or Gentoo,
by the laws and usages of the defendant.16
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Changes and yet continuity

 Hastings wanted proper order and administration but he also

wanted Mughal legitimacy

 English judges could interfere to correct the inconsistencies of

Islamic law which was a sovereign right

 State was assuming sovereign and judicial role

 With the assumption of nizamat in 1770, things changed no

longer Mughal legitimacy was needed and English courts were
set up presided by English judges
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Why Islamic law was needed

 For the sake of continuity

 Raj felt anxious about its position

 Land ownership and zamindari was recognized but failure to pay

or collect could mean liquidation

 New market economy and political economy and judicial courts

to aid it was needed they wanted to function like the Mughal
polity but couldn’t
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waqf

 The greatest wrong which we did to the Mussalman aristocracy was in

defining their rights [that private ownership equals taxation
responsibility]. Up to that period their title had not been permanent, but
neither had it been fixed ... we gave them their tenures in perpetuity; but
in doing so, we rendered them inelastic.38 Many families tried to find
both flexibility and permanency by con- verting their land into awqaf; this
would support their family in per- petuity and avoid the British institution
of private property and the state control it represented. The beneficiaries
of a waqf own the produce of the land, rather than the land itself;
therefore awqaf, by their very nature, opposed British jurisprudence and
its politico- economic goals.39
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Translation and questioning qazis

 Earlier language was a barrier

 With translations, decisions of qazis could be questioned. The

problem was there was no single Islamic code that could be
relied upon

 Hedaya formed the foundation of anglo-muhammadan law but it

did not deal with inheritance
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solutions

 Record and publish the decisions of the cases of the anglo-

muhammadan courts.

 These precedents could then be used to decide cases

 This allowed for uniformity in the decisions thus made

 At the time when codification began in India, law was not even
centralized back in England , there were several localized courts
which dispensed with justice.

 Law professionals in England were being set up, chairs of law at

oxford and Cambridge were only established in the 1780s.
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Why create a private property in land?

 There were two major legal philosophies in circulation at this time. The Whig
position conceived of law as built on accumulated experience, with an aim to
promote private rights in property, espe- cially land, in order to prevent
encroachment by the state. The Utilit- arian position, advocated by Mill and
Bentham, denounced experi- ence piled on top of experience as 'groping blindly
in the dark'. Instead they demanded a systematized, hierarchical legal structure.
Utility-minded reformers criticized both English and Indian systems of
jurisprudence, but were more able to formalize codes of law in India, where
power was already in the hands of a few, and arbitrary government could
overpower opposition. Although Whigs and Utilit- arians were in conflict in
England, these philosophies were freer to overlap in South Asia; the same
series of Regulations by the colonial state established private property in land
and rationalized the admin- istrative system.
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Rule of law versus rule of men

 Rule of law was to replace the rule of ’men

 This meant that law unaffected by local conflicts and local issues
would function in an unbiased manner

 The principle of neutrality that the british harped on from time to

time
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But the purpose of law was also the
subjection of control

 the necessity of investing the mufassil [local district] courts with

their residual jurisdiction, of making them subject to a system of
law which, while not being English law, provided a fair standard
which the Supreme Court could apply to them, giving them at
once protection, security, and a measure of subjection to
control.67
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 Day to day affairs were guided by local custom and government

procedure

 Sharia was only invoked in certain decisions

 Codification was a complicated process, the early work failed to

produce the desired results
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Was the Islamic law replaced

The indigenous codes provided the substance of the law,

and the British state provided the procedure which
administered this substance. Despite the Company's early
rhetoric, the British did not simply step into the enforcing
role vacated by the Mughal-patterned Bengali Nawabs.
The procedure through which the shari'ah was
implemented subtly enframed and reshaped the content of
Islamic jurisprudence. A system of law cannot be divided
between substance and procedure and retain its former
character and use.
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What was Islamic law?

 Islamic law was not just one text

 it was a corpus of law include a number of texts- sharia , hedaya, customary codes, ulema
pronouncements, fatwas.

 It also depended on what the local imam said about the law.

 It also depended on justice , equity and fair conscience

 The phrase was easily reversed to justify English procedures: Derrett explains that the intention 'was
that if an English rule was applied, this was to be because it happened to be an expression of justice,
equity, and good conscience'." Especially in the nineteenth century, English rules dominated the
application of Islamic law. The East India College at Haileybury taught young civil servants English
law and the 'principles of universal jurisprudence', but nowhere men- tioned that Islamic law was
anything but a previously codified system of substantive law. I
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Problems and criticisms

 Mughal courts were deemed as careless and lenient and ineffective

 Textual sources were given primacy over others, making law more
textual in nature

 Translation was not the endgame the implementation was another

issue

 Islamic law was never monolithic , there was cases of ordinary

justice and extra-ordinary

 They had no knowledge of fiqh, they claimed superiority than the

Mughal courts
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Company courts and their problems

 The location of Company courts was fixed to certain official build- ings. Their
geographic jurisdiction was also fixed and bounded. Each court was set in a
hierarchical order, with mofussil courts in the towns under the jurisdiction of
superior city courts, which were ulti- mately crowned by the Supreme Court in
Calcutta. 'The government guaranteed the superiority of metropolitan tribunals
over local insti- tutions. Thus the Company's organization of the courts and
proced- ure followed more closely the British Isles than it did of Mughal India.'83
In the Mughal pattern of adjudication, the qazi was not tied to an official building;
he could exercise his authority anywhere as long as witnesses were present to
insure fair proceedings. The qazi's authority was not clearly differentiated from
that of other govern- ment officials. Nor was the qazi considered the sole judicial
authority; people had other options such as extended family, religious leaders
like local religious guides (Pirs), scholars, or village elders.
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 Fixing the qazi geographical position made them delegitimized

their local options

 People were forced to travel and it incurred costs

 Qazi was no longer an independent judge but a judicial officer

 Magistrates decided the cases, thus English interfered

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Role of fatwas

 Through the instrument of a fatwa, the qazi was expected to issue

his decision on which litigant was justified by 'Islamic law'. This use
of the fatwa constituted a major departure from the fatwa in classical
fiqh or Mughal jurisprudence. The Anglo-Muhammadan fatwa deter-
mines guilt or innocence in a specific case according to a fixed
stand- ard codified in legal hand-books. The Muhammadan law was
to be regulated by the Fatwa of the law officers, which was directed
to be given according to the doctrine of [Abu] Yusuf and [Imam]
Muhammad ... the Judges were enjoined to refer to the trans- lation
of the Hedaya by Hamilton ... as likewise to a tract entitled 'Obser-
vations' which then constituted a part of the criminal Code.87
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Fatwas and how they underwent a
radical change
 Pre british fatwa was non-binding

 A person could consult another jurist and call for a rechecking

the decisions

 The use of fatwa itself was transformed, they were binding,

uniform and left little scope for manouvre.

 Fatwa in Mughal times were result of free outside court

interactions between Islamic jurists, they were not forcibly
imposed on the basis of precedence
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he case Abul Fata v. Russomoy Dhur Chowdhury,91

British magistrates of the Privy Council overrode the
opinion ofJustice Amir Ali. The Muslim justice argued that
family waqf grants were valid as charitable institutions, as
proved by both a long tradition of medieval decisions
upholding them, and by hadith reports from the Prophet to
the effect that the best charity is supporting one's family
and dependants in need. The British magistrates rejected
this opinion. They warned that the Muslim judge was
returning to the original texts in order to extract a new law.
Such an extraction of law from sacred sources was, of
course, the traditional method of fiqh, yet it stood as an
illegitimate procedure in the Colonial courts. The Privy
Council conversely declared family waqf grants to be void.
The
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iously present. They advocated the concept of an indi-
vidual living in an abstract entity called 'society', the poles
of which were mediated by a centralized state. The
responsibility of such a state would be to patrol religious or
social institutions which are defined as 'public'. Such a
dichotomy between public and private affairs seems
intuitive to those living in the world shaped by modern
European norms such that the importance of such an
innovation could be easily overlooked. Their advocating
this dichotomy affected religious leaders very early: the
qazi was enframed in a state bureau while the mufti was
pushed into the role of private citizen with no state
recognition or authority. Within the courts, the state first
asserted veto rights, then controlled staffing, and then
claimed out- right authority on its own terms. The state
justified its interference
iously present. They advocated the concept of an indi-
vidual living in an abstract entity called 'society', the poles
of which were mediated by a centralized state. The
responsibility of such a state would be to patrol religious or
social institutions which are defined as 'public'. Such a
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Individual versus the community

 The British believed that people acted in individual capacity and thus justice
had to mirror that

 they completely did away with community way of thinking

 mufti was pushed to the role of inconsequential official only functioning in the
private space.

 Crime then became a violation of public order. Whereas crime in the Mughal
period was a private offence which affected the family of the deceased or the
victim

 the purpose of exemplary punishment was to insure crime was not repeated
again- mutilation was done away with and capital punishment was introduced.
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 Concept of private justice was suppressed

 If the victim wanted to pardon the aggressor then the magistrate

wouldn’t allow it

 social background in the proceedings did not matter

 British notions of justice , individuals were given equal treatment

before law

 Different strands of justice was different for other social classes

 Qazis under the Mughals desired reconciliation if possible

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Case studies , crimes and punishment

 Qazis' methodology in a potential case of theft was to separate

out an act of crime from the similarity it bore to other legal
actions. A series of categories measured the situation, and
separated out cases of theft which merited punishment.'04 Such
categories included adult responsibility of the thief (baligh and
'aqil), the non-coerced condition of the thief (niya), minimum
value of the stolen object (nihab), type of good stolen (mal),
relation of the thief to the victim, and the location of the stolen
object (hirz).
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 Under the colonial state, crime and intent mattered a great deal.

 Property was defined by state and not social boundaries

 groups and boundaries. From a utilitarian stand- point, that a

crime depended on the willingness of the victim to complain was
'a law of barbarous construction, and contrary to the first
principle of civil society, by which the state acquires an interest
in every member which compo
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Why was awqaf problematic

 In the field of civil jurisprudence, awqaf were a major concern of

British magistrates because they obstructed the transformation
of land into easily liquid wealth, and because the treatment of
awqaf in fiqh offered contradictions to the British method of
appropriating fiqh. The issue of awqaf illustrates two important
points. First, Brit- ish adjudication was never objectively distinct
from their economic needs; second, rather than simply applying
Islamic law, they had to selectively reinterpret it. Awqaf fused
public and private functions, and mixed religious with legal and
econo
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waqf

 Waqf was divided into public and private types.

 British wanted to liquidate the wealth stored in waqf which they

felt was locked in waqf

 waqf were of two types waqf-i-aam and waqf-i-khandaan

 they were of the view that public auqaf because of their public
nature should be managed by public officials.
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 Private awqaf fared no better; they were subject to a textual assault rather
than a managerial assault. The British interpreted 'private' awqaf as a way
to subvert the Islamic laws of inheritance, which because they are in the
Qur'an, must be immutable, rigorous, and sacred. On that basis, they
argued that 'private' awqaf were later innovations, corruptions of the
original law, which ought to be excised.114 J. T. Woodroffe, Advocate
General of Bengal in 1892, said: 'This matter of private wakfs [awqaf] is an
offspring of purely modern and secular considerations'."5 British
administrators also saw these awqaf as tax-dodging, but argued against
them on a scrip- tual basis. This particular incidence of reworking scripture
select- ively on the basis of British legal preconceptions was hotly
contested by later Muslim lawyers; however, most other incidents
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What was codification then?

 Codification is a term which entered the English language through the

rationalist, reformist writing of Jeremy Bentham

 cornwallis. Legal codification con- sisted of a two-fold process: the

first process is to reduce a complex aggregation of practices into a
single process, and the second is to systematize that process so that
it has an internal logic and operates as a closed system. Codification
packaged the law, allowing it to stand in the illusion of independence,
separate from persons of authority. The British saw that if the
indigenous judges could limit their citations 'to a few works of
notorious authority, it might have a salutary effect in curb- ing their
fancy, if not their
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Importance of precedence

 Earlier qazis did not give much attention to precedence now

they did .

 Earlier decisions were based on social reality

 Codification and bureaucratization went hand in hand

 a single version of the sharia had not been forced on all

muslims there were variations in the Mughal period
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 Case law did not lay down rules beyond the basic premise of a
case

 Codification was based on limiting divergent opinions and

sticking to a single line of thought

 Independent reasoning of itijihad (legal reasoning limited to a

learned few) had always been there , opposite of taqlid( past
cases)
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 Many jurists practiced without official sanction and avoided political

entanglements

 In 1862 code of criminal procedure and Indian penal code was

established, last traces of Islamic law was removed

 1864 muslim assitants to courts were debarred. 1872 evidence act

was passed, all elements of overtly Islamic law were replaced, only
personal law was retained , Islamic law in public matters was done
away with

 Court reporters became mandatory. To publish decisions which would

then function as preceedents
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a new category- lawyers, scribes and
reporters
 New lawyers and men at bar were created who were trained in
English legal institutions.

 They authored books based on anglo-muhammadan law patterns

 Fyzee was one such lawyer and British jurists

 Muslims increasingly turned towards law to define themselves as a

community. Muslims actually needed law to define themselves

 Muslim religious elite to protect personal law

 Religion of the litigant did not matter in case of lawyers or the scribes
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Lawyers and court hierarchy

 Lawyers had a stake in court hierarchy.

 They became of spokesman of muslim community in courts

 Islamic law became a form of a rhetoric

 British jurisprudence defined islam as a monolithic community

 Muslim political leaders overtime built their leadership around

their rights , issue of representation of their community.
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Bounding sharia

 British were able to bound the sharia to certain limited tasks ,

and certain limited people, manuals and translations

 This was not possible before

 the deoband school started in 1867 was an attempt by muslim

orthodoxy to revive fiqh

 Daily lives of south Asian muslims continue to revive around

their community leaders
st time, to the notice of many concerned ... If ities on Muhammadan law are searched, they appear ext but the difficulty is almost insurmountable when only out of these translations are read. It is not implied tha an ancient law to modern circumstances is easy in any strictu

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Faiz badrudin tyabji

 He was the only critique who has said that alien concepts had
been introduced
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