By Sohaira Siddiqui (Georgetown University in Qatar)
This essay is part of the Islamic Law Blog’s Roundtable on Islamic Legal History & Historiography, edited by Intisar Rabb (Editor-in-Chief) and Mariam Sheibani (Lead Blog Editor), and introduced with a list of further readings in the short post by Intisar Rabb: “Methods and Meaning in Islamic Law: Introduction.”
For this roundtable, I would like to provide some reflections on the discourse of dichotomies in the field of Islamic law, the problematics it creates, and how I have sought to overcome it in my current research. The construction of a dichotomy can be a useful heuristic tool at the disposal of the scholar which enables the presentation of a coherent narrative for an otherwise complex phenomenon. The utility of dichotomies, however, fades when these dichotomies are overly reductive or result in a closing of scholarly inquiry.
Representative of this practice, in relation to Islam, would be the discourse of traditional/modern, moderate/extreme, and conservative/progressive. Alongside these dichotomies, which scholars have begun to challenge, is the rather resilient dichotomy of continuity/rupture. Given the sustained invocation of this dichotomy and its role in shaping the field of Islamic law and legal history, it will be the focus of the first part of my essay.
My first encounter with the rupture/continuity dichotomy was in graduate school where it was employed by both scholars of Islam and scholars of religion to understand the modern period as phenomenologically distinct. Within the field of Islamic law more specifically, the modern period, ushered in by the violence of colonialism, was seen as dismantling not just political authority, but religious authority, legal institutions, and ways of relating to the Sharīʿa. As such, the best way to understand the shift was accurately through the lens of rupture. Thus, the study of Islamic law was primarily directed at the past and the closer one got to the modern period, the greater the focus on change and rupture. Arguably, the paradigm of the “closing of the gates of ijtihād,” after being put to rest, re-emerged somewhat in the dichotomy of rupture/continuity which identified a new cataclysmic moment of change.
This lens of rupture/continuity, while being crucially attendant to changes of modernity and the multitudinal violence of the colonial project, problematically evokes the dichotomous theoretical approach to history as either linear or cyclical. The former approach casts history as a series of singular events, each reliant upon the previous one, giving rise to a linear notion of history. The latter approach, while still broadly assuming a progressive notion of history, relies upon recurring structures or events that similarly usher in the future. In all cases, time progresses through the unfolding of certain key events.
Reinhart Koselleck, the famed German historian, challenges this historical dichotomy and suggests instead a “theory of sedimentations of time” in which multiple historical times are present in a single moment. He notes that the “advantage of a theory of sedimentations of time lies in its ability to measure different velocities—accelerations or decelerations—and to thereby reveal different modes of historical change that indicate great temporal complexity.” Through a theory of sedimentations of time, Koselleck highlights that in various historical moments, there are “different speeds of change and transformation” that resist the simple classification of linear or cyclical time. In his reflections on legal history, he notes that “the history of law proceeds more slowly and has a different speed of transformation than the sequence of events that is characteristic at least of political history.” Thus, both his broad notion of sediments of time and his reflections on legal history would challenge the basic dichotomy of rupture/continuity as applied to Islamic law.
The consequences of adopting the dichotomy of rupture/continuity are clear: it has resulted in the scholarly lens being focused on either the pre-modern/pre-colonial or the modern/post-colonial as the primary sites of inquiry, assuming them to be discreet moments on a historical continuum. My contention is that due to an overreliance on this grand narrative, a sustained engagement with Islamic law during the colonial moment, the moment of rupture, is largely absent. This is not to ignore the important scholarly work about Muslim societies and Islamic law during the colonial moment such as Iza Hussain’s, The Politics of Islamic Law, Brinkley Messick’s Sharīʿa Scripts, and most recently, Nurfadzilah Yahaya’s Fluid Jurisdictions, to name but a few; rather, it is to note that in writing Islamic legal history and the development of Islamic law, the colonial moment is relatively neglected.
The absence of the colonial moment in the writing of Islamic legal history is even more apparent when looking at South Asia. In fact, the history of Islam in South Asia generally speaking is relatively understudied by scholars of Islamic legal history. There are multiple reasons for this—Islamic legal history from the 18th-20th centuries privileges Ottoman legal history; South Asian studies is often undertaken by scholars in regional studies departments, while individuals trained in Religious Studies, Theology, Near Eastern Studies, or Middle Eastern studies often have little to no exposure to South Asian Islamicate history; and beyond a proficiency in Arabic, a proficiency in Urdu and Persian is also necessary.
These challenges were recurrently manifest to me as I began researching more about Islamic law in colonial India. Whereas before I was easily identified as a scholar of Islamic law, working on the fifth/eleventh century famed jurist, Abū Maʿālī al-Juwaynī, at conferences when I now presented my work about Anglo-Muhammadan law I was often met with comments such as, “So what made you leave studying Islamic law?” or “The British completely destroyed Islamic law, so what is left to study?” These comments, while not malicious, reveal the underlying assumptions about studying Islamic law in colonial India—how can you study a phenomenon that doesn’t really exist?
However, if Koselleck’s assertion that legal change is actualized at a slower rate than political change is true, then the assumption should be that despite the colonial moment surely resulting in forms of rupture; alongside this rupture, legal historians are also likely to discover legal contestation, transformation, and reformulation. Indeed, in the South Asian context, the work of Muhammad Qasim Zaman, Barbara Metcalf, Ebrahim Moosa, and most recently SherAli Tareen, all point towards the resilience and reformulation of intellectual traditions as opposed to their complete enervation.
The question then becomes, how should scholars of Islamic law study this period? Unsurprisingly, the study of Islamic law in the colonial period is largely the same as the study of Islamic law in the precolonial period: it involves the study of transmitted textual traditions, the rise of institutions and institutional authorities, and the lived practices of Muslim communities. However, in addition to the aforementioned, colonial institutions, and specifically colonial courtrooms and Muslim interactions with them, are another space that is crucial both for the study of Islamic law in the colonial period and for writing Islamic legal history.
In a series of posts I wrote as the guest editor for the Islamic Law Blog, I attempted to shed some light on this chapter of Islamic legal history by briefly exploring the rise of Anglo-Muhammadan law and its adjudication in colonial courtrooms. The series of blogposts ended with an analysis of a judicial case that was adjudicated in both the High Court and the Privy Council in which the senior judges in both cases relied upon the opinion of a subordinate court judge, likely a muftī, who constructed his argument on the basis of key Ḥanafī fiqh texts. The case was meant to highlight the ways in which Islamic law appeared in colonial courtrooms, albeit in limited ways. However, the courtroom itself was a contested terrain, and Muslim scholars were largely unwilling to give the colonial courtrooms legal sovereignty over Muslims.
Muftī Kifāyatullah Dihlawī (1875-1952) who lived during the height of British judicial control, was adamant in his fatwās that the rulings of the colonial courts were not binding on Muslims. In one fatwā preserved in his Kifāyat al-Muftī, he is asked specifically about the efficacy of a judgement passed in the Sessions Court which annulled the marriage of a woman whose husband was absent. He responded, “The ruling of a non-Muslim judge is not sufficient. In this situation, the [Muslims] should petition the non-Muslim sessions judge that he appoint a Muslim scholar for matters such as these. This Muslim scholar can provide the shar’ī ruling and after that the Sessions judge can [simply] apply the rulings [of the Muslim scholar] in his court.” In other cases requiring the ruling of a qāḍī, Muftī Kifāyatullah suggests travelling to a neighboring territory where there is a Muslim judge or forming a local panchayat with at least one scholar who can provide individuals with rulings. Other scholars who were his contemporary, such as Sayyid Naẓīr Ḥusayn Dihlawī (1805-1902), instead of encouraging individuals to seek out qāḍīs in other locations, gave women the broad agency in the case of abandonment to annul their marriages based on the Mālikī school. In these cases, the woman’s annulment simply needed to be recognized by the local panchayat, something he also exhorted members of the panchayat to do.
The vehement scholarly disagreement over this case and others related to women seeking divorce was the backdrop for Ashraf ʿAlī Thanwī’s (1863-1943) famous al-Ḥīla al-Nājiza. In it, he reneges on his earlier fatwā that women should not be allowed to rely on the Mālikī opinion, and instead he details exactly how women can avail themselves of the Mālikī opinion. In the discourses of these scholars, and countless others, living at the height of judicial colonization, there was a consistent delegitimization of the decisions of the colonial courts and a broad rejection of colonial legal sovereignty alongside an attempt to contend with new legal challenges. In other words, the very experience of rupture was generative of new discourses and legal thinking.
Curiously, notwithstanding the scholarly critiques of judicial colonization, these same scholars also found a way to legitimize the participation of Muslims within the colonial judiciary, as we saw with the judge discussed in the blogpost. What does this all mean for the history of Islamic law in colonial India? How did Muslim scholars both delegitimize the courts but then legitimate the appointment of Muslim judges? Where did individuals seeking legal recourse go? More broadly, in what ways did scholars in the colonial period engage with the Ḥanafī legal tradition, and specifically its conception of territoriality in light of the loss of political sovereignty? And how can we understand this period of political upheaval and largescale change?
Invoking rupture allows scholars to sidestep these questions and gloss over complex debates regarding Islamic law that were taking place in colonial courtrooms, in new institutions of Islamic learning, and indeed, in the public sphere itself. To be clear, I am not advocating for privileging the discourse of continuity over that of rupture: the historical violence of colonialism and its continuation perpetuated through discourses of secularism and modernization does mark a rupture in significant ways. What I am saying is that scholars must be attendant to the dangers of grand narratives and the ways in which they can direct the historian’s gaze away from complex phenomena that are already understudied and undertheorized.
To this extent, as opposed to continuity or rupture, the colonial moment brought to the fore important discourses on legal sovereignty, legal change, territoriality and the reformulation of Islamic law beyond political sovereignty. These debates, on the cusp of modernity and the emergence of modern nation-states, are perhaps some of the most important debates to excavate for the purposes of understanding Islamic law today. This requires that the writing of Islamic legal history move away from the dichotomies of rupture versus continuity and pre-colonial versus post-colonial, and engage more substantively with the contestation over Islamic law in the colonial period. It also requires scholars within Islamic Studies to broaden their scholarly gaze to include the reception, development, and transformation of Islamic law in South Asia and other contexts that have been continuously neglected. This type of textured Islamic legal history certainly cannot be written by a single scholar, but by cultivating an appreciation for various neglected sediments of Islamic legal history, they can contribute to the telling of a more holistic story that is being taught, discussed, and indeed debated.
 See, for e.g. Wael Hallaq, “Was the Gate of Ijtihād Close?,” International Journal of Middle East Studies 16 vol. 1 (1984): 3-41; Wael Hallaq, “On the Origins of the Controversy about the Existence of Mujtahids and the Gate of Ijtihād,” Studia Islamica 63 (1986): 129-41.
 Reinhart Koselleck, Sediments of Time: On Possible Histories, trans. Sean Franzel and Stefan-Ludwig Hoffman (Stanford: Stanford University Press, 2018), 7.
 Ibid., 9.
 Ibid., 136.
 Iza Hussain, The Politics of Islamic Law: Local Elites Colonial Authority, and the Making of the Muslim State (Chicago: Chicago University Press, 2016); Brinkley Messick, Sharīʿa Scripts: A Historical Anthropology (New York: Columbia University Press, 2018); and Nurfadzilah Yahaya, Fluid Jurisdictions: Colonial Law and Arabs in Southeast Asia (New York: Cornell University Press, 2020).
 Muhammad Qasim Zaman, The Ulama in Contemporary Islam (Princeton: Princeton University Press, 2007); Muhammad Qasim Zaman, Modern Islamic Thought in a Radical Age (Cambridge: Cambridge University Press, 2012); Barbara Metcalf, Islamic Revival in British India (Princeton: Princeton University Press, 2014); Ebrahim Moosa, What is a Madrasa? (Chapel Hill: University of North Carolina Press, 2015); and SherAli Tareen, Defending Muhammad in Modernity (Notre Dame: University of Notre Dame Press, 2019).
 Muhammad Kifāyatullah Dihlawi, Kifāyat al-Muftī (Karachi: Dār al-Ishāʿat), 6:131-2.
 Sayyid Naẓīr Ḥusayn Dihlawī, Fatāwa Nazariyya, 2: 563.
 In his fatāwa he notes that abandoned wives and the broad agency to annul marriage and instead maintained that Muslim women should seek legal recourse in a Muslim territory with a Muslim judge or petition for the appointment of a Muslim scholar. See Ashraf ʿAlī Thanwī, Imdād al-Fatāwa, ed. Muḥammad Shafīʿī, (Karachi: Maktaba Dār al-ʿUlūm) 2:386-88. For his later treatment and allowance of the Mālikī opinion see al-Ḥīla al-Nājiza (Karachi: Dār ul-Ishāʿat), 59-60 and Fareeha Khan, “Traditionalist Approaches to Sharīʿah Reform” (PhD diss., University of Michigan, 2008), 112-17.
(Suggested Bluebook citation: Sohaira Siddiqui, Rethinking Dichotomies: Beyond Continuity and Rupture in Islamic Law in the Colonial Period, Islamic Law Blog (Jan. 4, 2021), https://islamiclaw.blog/2021/01/04/rethinking-dichotomies-beyond-continuity-and-rupture-in-islamic-law-in-the-colonial-period/)
(Suggested Chicago citation: Sohaira Siddiqui, “Rethinking Dichotomies: Beyond Continuity and Rupture in Islamic Law in the Colonial Period,” Islamic Law Blog, January 4, 2021, https://islamiclaw.blog/2021/01/04/rethinking-dichotomies-beyond-continuity-and-rupture-in-islamic-law-in-the-colonial-period/)