This is part 1 of a six-part series of posts that will examine Anglo-Muhammadan law in the courts of British India.
For this month’s series, I will examine the rise and implementation of Anglo-Muhammadan law in British India. These posts stem from my current book project which seeks to move beyond the dichotomy of continuity and rupture as it applies to Islamic law in the colonial period. In the book I trace the transformation of Islamic law in various colonial domains by analyzing the legal thought of Muslim lawyers and judges. Though these lawyers and judges had varying degrees of training in, and commitment to, Islamic law, they were united by the fact that their modes of Islamic legal reasoning were constrained in varying ways by Anglo-Muhammadan law and the colonial legal terrain of British India.
Anglo-Muhammadan law is an early attempt at the codification of Islamic law and is valuable for scholars and practitioners who are interested in modern attempts to codify both Islamic criminal and civil law. The blog series is progressive: it starts with the circumstances that led to the development of Anglo-Muhammadan law, then explores the method of incorporating Islamic law within the newly minted legal codes, and finally looks at the actual invocation of Anglo-Muhammadan law in civil court cases.
Prior to the ascendancy of English law in India, Mughal authorities (1526-1858 CE) ruled India in a de-centralized fashion with towns and cities assuming responsibility for dispensing justice. Leaders of these towns and cities were subject to the law of the Mughal emperor, but also adopted local laws on the basis of the madhhab dominant in the area, and customary practice. The results were municipalities that were uniformly governed by the law of the emperor, but continued to have the legal autonomy to enact and enforce discretionary laws within their domain.
English law was introduced in India in 1601 at the hands of the British East India Company. In that year, the British Crown gave the Company legal jurisdiction over areas in which it had leasing rights from the Mughals. At this point, English law could only be applied to British subjects under the jurisdiction of the East India Company, while local citizens remained subject to Mughal law. In 1661, King Charles II of Britain expanded the jurisdiction of the company to “exercise power and command over its fortresses.” This meant that the Company, beyond having legal jurisdiction, began to function as the de-facto rulers of Company controlled areas in India.
A watershed moment for English Law in India came with the Charter of 1726 issued by King George I. Also known as the Judicial Charter, it expanded administrative power in Madras, Bombay, and Calcutta and also established royal courts in these ‘presidency towns.’ On the administrative side, each town was to have a Governor-in-Council entrusted with fashioning laws for the administration of the Company and the individuals residing within the principality. Additionally, these towns now had a mayor and nine aldermen. From the perspective of the law, the Charter established Civil and Criminal Courts with the Privy Council in England as the appellate court. The Civil Court was overseen by the mayor and the nine aldermen, and the Criminal Court was overseen by the governor and five council members. The 1753 Charter further expanded the jurisdiction of the East India Company. With the continuous expansion of the Company’s power over territories, the Company was no longer merely concerned with trade, but expanding their control over other parts of India in order to reap more economic benefits. With the British crown ready to delegate full authority to the Company, it was not a question of whether the Company had power and control, but rather how much power and control they wanted.
The definitive answer to the expansion of the Company’s power came with the rise of Warren Hastings, a long-time civil servant in India. In 1772 he was made the Governor-General. He decided that in order for the Company to maximize benefit from their presence in India, they needed to exert more influence over the local population and create a more efficient administrative body. Given that Company officials did not have knowledge of local laws at this time, in the courtrooms they were heavily reliant on who they referred to as ‘native officers,’ Indians who held legal positions prior to the Company’s arrival, many of them were often muftīs in their own right. At first, Hastings was primarily concerned with administrative affairs because as the new Nawab Governor General he was tasked with revenue collection. Finding that revenue collection was ineffective he tasked a committee with investigating the sources of inefficiency within India. The report’s findings were especially critical of Islamic legal courts, noting that they were haphazard and without any clear laws. The absence of laws in the court translated into the public sphere, making revenue collection difficult. This served as the impetus to fully control local law. The first step to achieve such was to separate the jurisdiction of the two types of law: uniform application of English law was to be administered in territories governed by the Company, while the administration of Islamic law, now referred to as Muhammadan Law, was restricted to “all suits regarding inheritance, succession, marriage, caste, and other religious usages or institutions.”
This was difficult, however, as the English were, until that point, largely unaware of the mechanics of both Islamic and Hindu law. So, the first task was to gain an understanding of the local law, setting into motion the creation of what would come to be known as Anglo-Muhammadan law. The creation of Anglo-Muhammadan law was by no means an unreflective process of legal ingenuity. Drafters and promoters of the project were acutely aware of the challenge that lay before them. Their task was to create a body of laws that appeared authentic and legitimate to their Muslim subjects, while remaining intelligible to British judges responsible for interpreting and implementing the laws through an expanded court system. To satisfy their subjects, the English rulers sought to translate texts of Islamic law that were already accepted as authoritative within India. Moreover, they enlisted the assistance of Muslim jurists to expound upon the broad workings of Islamic law and the interpretation of more complicated doctrines. Despite their desire to engage with authoritative Islamic legal sources, they approached these texts, as Scott Kugle has argued, from the framework of English law. This meant that the legal texts placed before them were understood to be comprehensive codes, thereby obscuring the distinguishing features between the frameworks of English and Islamic law. Before delving deeper into this point, it is important to highlight the sources the drafters utilized and the extent of their understanding of Islamic law.
One of the most important works that scholars of Islamic law in the colonial period have at their disposal to help understand the drafting of Anglo-Muhammadan law is William Morley’s The Administration of Justice in British India: Its Past History and Present State Comprising an Account of Laws Peculiar to India (1858). In it, Morley details both fundamental assumptions that the English carried about Islamic law, and the process whereby they fashioned Anglo-Muhammadan law. Based on their conversations with legal scholars, Morley states that English law makers recognized four sources of law: the Qur’ān, the ḥadīth, juristic consensus (ijmāʿ), and independent reasoning (ijtihād). They also recognized the four distinct Sunnī legal schools, but treated them as distinct sects as opposed to distinct legal methods. Focusing on Ḥanafī law in particular, as it was the dominant school in the sub-continent, they noted that disagreement often existed between the eponym of the Ḥanafī school, Abū Ḥanīfa, and his two most prominent students, Abū Yūsuf and Muḥammad al-Shaybānī. It is not entirely clear why, but English law makers preferred using Abū Yūsuf’s opinions when difference arose between him and the other two. It is likely that the reasons for disagreement between Abū Ḥanīfa and his two students were not properly understood by the British, but given their desire to have a uniform law, it was important to have a singular pole of authority and not three distinct authorities. After acknowledging the basic sources of law, and the four legal schools, the next step was to select the sources that would form the backbone of Anglo-Muhammadan law.
What became Anglo-Muhammadan law derived from Islamic legal texts already deemed legitimate by the governed populous. The primary text, and the one often invoked in the courtroom, was the Hidāya of Burhān al-Dīn al-Marghinānī (d. 1197). It was lauded by Ḥanafī scholars in the subcontinent as one of the most decisive texts of Ḥanafī law and was therefore a natural starting point for British law makers. The translation of the Hidāya was based on a Persian edition translated by Charles Hamilton and published as The Hedaya (four volumes, London, 1791). For inheritance law, Sirāj al-Dīn Muḥammad al-Sajāwandī’s (d. 1411) Kitāb al-Farāʾiḍ, more popularly known as the Sirājiyya, was translated by William Jones as The Muhammadan Law of Inheritance (1792). In addition to these texts, judges relied on the al-Fatāwa al-ʿālamgīriyya, which was commissioned by the Mughal Emperor Aurangzeb in the 17th century. It is said that Aurangzeb gathered over five hundred scholars from around the Mughal Empire to compile a legal code that would cover both public and private matters. The resulting multi-volume text, al-Fatāwa al-ʿālamgīriyya, became a standard legal reference point in the subcontinent. Given its sheer volume, no comprehensive translation project was undertaken, but due to its stature, it was often quoted by English judges once it was partially translated by Neil Baillie in his The Moohummudan Law of Sale (1850), A Digest of Moohummedan Law (1865) and The Land Tax of India (1873).
Anglo-Muhammadan law was less a defined code, and more a defined body of texts that English judges had at their disposal when adjudicating matters of Islamic law. However, these translated texts were not always straightforward and accessible to the English judges, leading to an emphasis on the creation of precedent. Eventually these ‘precedential cases’ were included as notes to the updated editions of the aforementioned translations so that judges could more effectively apply the law and also train future judges in the adjudication of Anglo-Muhammadan law. However, beyond merely assisting English judges in the courtroom, by emphasizing and utilizing precedent, the English believed they were introducing much needed stability and predictability into the law, something they saw as the primary shortcoming of Islamic law.
Despite efforts to create a common law legal system that revolved on statute and precedent, English judges and lawyers found the referencing of cases in the Anglo-Muhammadan code too haphazard for actual application. One such British lawyer, Willian McNaughten, said of The Hedaya that it is “of little utility as a work of reference to indicate the law on any particular point which may be submitted to judicial decision.” In response to what he saw as the shortcomings of The Hedaya he penned his Principles and Precedents of Muhammadan Law (1825) based on al-Fatāwa al-ʿālamgīriyya, as well as cases adjudicated in India. Half of the book is dedicated to precedents that judges can refer to and the other half to principles that all judges should know regardless of a specific case. Though the book never eclipsed the other texts of Anglo-Muhammadan law, Principles and Precedents became a valuable teaching tool that demonstrated the extent to which the British desired both codified statute and an oeuvre of precedents, or in other words, a system that resembled the common law system back in England.
Moving towards such a system was catalyzed once the British Crown assumed official control over parts of India after the Great Rebellion in 1857. As part of the legal changes they introduced, the British passed the 1875 the Indian Law Reports Act which necessitated the publication of key decisions from each High Court in court-specific compilations known as the Indian Law Reports (hereafter ILR). Cases seen as establishing long-standing precedents were published in full. The impetus behind these publications was part of the larger project of codification and standardization, which entailed the creation of legal codes, the formation of a precedent-based model of adjudication, and the displacement and restriction of Islamic law to only matters of personal status such as inheritance, marriage, divorce, and succession. The eventual aim was to not only create a more predictable and efficient legal system, but one that would facilitate British governance through expunging Islamic law from the process of law making on all but a few matters.
Now that the basic contours of the rise and creation of Anglo-Muhammadan law have been presented, we turn to look at cases from the ILR to see precisely how Anglo-Muhammadan law was used inside the courtroom. In the next series of posts, I will examine specific cases from the ILR to explore the following questions: To what extent did Islamic law dominate private matters? Did judges actively engage with Anglo-Muhammadan law? What was the position of litigants? And how much interpretational jurisdiction was given to judges in matters of Anglo-Muhammadan law? The cases I will explore are not meant to give definitive answers to these questions; rather they expose the workings of the legal art within the colonialized courtroom. The full history of how Anglo-Muhammadan law developed and utilized in the courtrooms is something I take up in greater detail in my forthcoming monograph. Whereas current scholarship on the Anglo-Muhammadan law treats it as a singular phenomenon, I will argue and demonstrate in the book that it evolved greatly through the centuries of foreign presence in India and can only be adequately analyzed by looking at its varied application within colonial courtrooms.
 Scott Kugle, “Framed, Blamed and Renamed: A Recasting of Islamic Jurisprudence in Colonial South Asia,” Modern Asian Studies 35, no. 2 (2001): 257-313.
 William Morley, The Administration of Justice in British India: Its Past History and Present State (London: G. Norman, 1858), 241-57.
 William MacNaghten, Principles and Precedents of Moohummudan Law Relative to the Doctrine of Inheritance, Contracts and Miscellaneous Subjects; and A Selection of Legal Opinions Involving Those Points (Madras: Higginbotham and Co., 1890), 16.