The Colonial Origins of Muslim Law

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Muslim personal law has been a hot button topic for the past 30 years and every time there are even hints at doing away with it, certain segments of Muslims raise a ruckus, drawing on religion and tradition to make their case.

In that regard, Ayesha Jalal’s book Self and Sovereignty: Individual and Community in South Asian Islam Since 1850 does a good job of revealing the MPL as nothing more than a colonial creation. Under the Mughals et al, the Muslims of the Subcontinent followed a bewildering variety of laws and customs and it was only after the colonial state had created religion-based political communities of “Muslim” (and “Hindu”) that Muslims started to clamour for a law (ostensibly) based on an interpretation of the sharia. Here is an interesting excerpt from the book:

Bombay and the Central Provinces were sparsely populated by Muslims.

But a Muslim majority region did not necessarily mean the greater admissibility

of Islamic law. At the time of its annexation, the Punjab had no ‘authorised

expositors of Muhammadan law’. Initially the courts dealt with Muslim

personal law by referring to non-official qazis in whose fatwas the disputants

had confidence. This was also the administrative practice in the frontier

districts. In these areas custom superseded Islamic law on matters of

inheritance. With few exceptions, Muslim women were rarely allotted their

assigned share in Islamic law. In special cases a Muslim woman without any

sons could inherit the property of her deceased husband like a Hindu widow.

The question of when Muslim law was superseded by custom arose only when

a party claimed to be ruled by one as opposed to the other. Despite numerous

departures in practice, Muslims of Peshawar and Derajat as well as Rawalpindi

divisions claimed to follow Islamic rules of succession. Such assertions were

‘partly dictated by bigotry and partly by ignorance’. Outside a select circle,

Muslims were more likely to ‘feel aggrieved if their customs…g[a]ve way to

Muhammadan law’ since ‘they have never been accustomed to observe it’. The

problem was ‘not so much to ascertain what the Muhammadan law [was] as to

discover how far it [was] followed’.

As Justice W.H.Rattigan explained, Muslim law scarcely mattered in the

Punjab because the people themselves ‘adhere[d] …to a different system’.

After taking over the province, the British had tried to ‘preserve the traditions

both of Hindu and Muhammadan law’. During the first twenty years, ‘instead

of superseding Muhammadan law’ the British did ‘a great deal to introduce it

into a country where it was practically unknown’. But the Punjab Laws Act of

1872 gave primacy to custom in civil cases. George Campbell, the originator

of the idea, defended it on the grounds that one out of a hundred Muslims in

the Punjab was governed by the strict provisions of Islamic law. By privileging

custom, Punjabi Muslims had voluntarily overlaid the sharia. Disputants

seldom raised complex questions on Muslim personal law which were covered

by the Punjab civil code of 1854.

Cornered by the logic of its own categorization of the Indian Muslim

and the expediency of accommodating local customary practices, the

colonial state chose to contradict itself than engage in the unrewarding

task of enforcing legal consistency where none existed. When it came to

the machinery of law and justice, the British kept the guardians of legalist

religion at a safe distance.