By Iza Hussin
Having focussed in the first blog post on a Malay world text and its internal translations of concepts relating to law in Malay, Arabic, and English, this second blog post considers translative dynamics within adjudicative institutions. In the case of the Kitab Undang-Undang Qanun Yang Dipakai Dalam Negeri Johor, we focused on the work of translation undertaken by a copyist, translator, and author, Munshi Abdullah. In Johor, the processes of narrowing and selection by which a broad range of legal sources and institutions became increasingly equivalent to British understandings of ‘law’ involved a series of institutional and textual transmutations, foreshadowed in the translational efforts of figures such as Munshi Abdullah.
In Queen-Empress v. Ramzan & Ors (March 7, 1885), a case that revolved around questions of how to define a Muslim, and who had the right to do so, we turn to the translative efforts of judges. The case bears the standard hallmarks of colonial processes of state-making: the work of defining the subjects of colonial authority, labeling the targets of administrative intervention, and arranging them according to a predetermined hierarchy of value, aimed at the production of social and political order for the colonial state. Yet it also makes particularly visible the nature of the effort involved in asserting the authority of Islamic law within British colonial courts, efforts that were translative not just of Islamic law but of Muslim life, worship, and politics in India.
The original conflict referred to in Ramzan occurred in a mosque in Benares in 1884: three men, among them Ramzan, entered the mosque and pronounced the word amin (amen) during prayer, a practice regarded by some other congregants as heterodox. A heated argument ensued about whether this was permitted during prayers, and the three were expelled from the mosque with the help of police and prohibited from entering again unless they recanted their position on this practice. Ramzan and the others were accused by other members of the mosque of not being Muslim, and of “the offence of insulting the religion of the Hanafia Musalmans” under Sections 297, 298 and 352 of the Indian Penal Code (1860). The Magistrate tried the case and found the three guilty under Section 296 (“disturbing religious assembly”) and sentenced them to a fine or a month’s imprisonment, based on the interpretation that saying amin loudly during prayers in a mosque constituted causing disturbance to religious worship and was therefore a criminal offense. Eventually the case reached the Allahabad High Court and was heard by a bench that included Judge Syed Mahmood (1850-1903). On the face of it, the case turned on whether saying amin could be understood to constitute an offense under the Indian Penal Code, of disturbing religious assembly; underneath the facts of the case were issues of congregational politics, of possible financial misconduct, of doctrinal differences used to draw a line between those who were considered Muslim, and those not.
Judge Mahmood built upon the facts of the case a foundation for enlarging the scope of application of Islamic law in British India, based on the argument that “Muhammadan Ecclesiastical Law” needed to be consulted in cases such as these. In fact, he argued, “the Muhammadan Law shall be administered with reference to all questions regarding ‘any religious usage or institution.’” The judgment argued for a more prominent role for Islamic legal sources and reasoning within the legal system of British India, while at the same time working to make Islam legible in terms of Anglican Christianity. Through cases such as Ramzan, the “Indian Muslim” was made legible as a category in law comparable to the “Christian,” as was the “Hindu”; the mosque and temple were understood as spaces equivalent to churches, and the activities performed in them categorized as “worship.” Cases such as these allow a closer look at the involvement of local agents in epistemic and political processes, delineating processes through which the state sought to produce comparability and ubiquity across its domains, and suggesting that these processes were themselves translative and comparative, dialogical rather than unidirectional.
Mahmood used the institution of precedent and the citational practices of British law to bring Islamic legal logic and texts back into the legal system of British India. His legal legacy sheds some light on how Muslim elites navigated colonial institutions of law to bring sharʿī content back into the system. Whereas the earlier replacement of fiqh experts with legal texts in colonial law courts served to reify Islamic law into a limited and somewhat static domain, Muslim lawyers and judges working in the colonial law courts in the late nineteenth and early twentieth centuries found ways of turning this reliance on text and precedent to their advantage. These elites actively participated in the new institutions of colonial law, and their presence provided a visible signal of the legitimacy and justice of the colonial state, at the same time that their actions within these institutions continued to negotiate the state’s boundaries. In particular, despite their acceptance of the forms of colonial rule, its logics, and its jurisdiction, they continued to negotiate the boundaries of Islamic law and struggled to retain sharī‘a content and logics, using the new institutional avenues of the colonial law system.
The participation of British-trained lawyers and judges in the courts of British India also profoundly altered the content and meaning of Islam in the legal system. The institutional inclusion of Indian Muslims in the legal system of British India made possible a renegotiation of the place and content of Islam in the law, but their inclusion also transformed the ways in which Islam would be understood, both by the state and by Muslims themselves. Judge Mahmood translated the case of Ramzan according to the vernacular of British India, that included a value system based upon Anglican Christianity and a legal hierarchy of canonical texts, all the while acknowledging an underlying tension with the methods and logic of Sunnī Islamic jurisprudence.
Ultimately, the work of British-trained lawyers and judges such as Mahmood, working within the system to enlarge the jurisdiction of Islamic law, would bring about a system of law that prioritized canonical text over learned debate, prioritized precedent over judicial reasoning, and located the proper domain of Islam over the narrower arena of family law and ritual matters. This process translated Islamic legal institutions, logics, and texts into the idiom of Anglican Christianity, and Islamic law into the language and order of common law, and would in time help to answer an expectation among British judges and jurists that Islam in a Muslim state could occupy the same place as Christianity in England. As conflicts in the courts over the proper interpretation of Islam continued, the effort to communicate Islamic law and Muslim practice as comparable to, and legible in terms of, Christianity, also contributed to an understanding of the religions of British India as occupying similar spheres of life and representing equivalent confessional communities.
The second half of the nineteenth century saw epistemic and political processes through which both local and colonial elites sought comparability and ubiquity, processes with trans-regional and trans-imperial reach. The late nineteenth century saw the emergence of newly capacious categories of law, not just in India, but across empires and continents – personal status law, family law, religious law, customary law. These became indispensable components of the modern state’s tool chest, but were neither wholly state inventions nor durable legacies from the past. Inter-imperial dynamics such as Ottoman, French and British entanglements in Egypt furthered this sense of universally legible categories of life and law. The next blog post in this series explores the emergence of the category of personal status through the comparative and translative mechanisms of empire.
 Indian Law Reports Allahabad series (Government Press, 1885), 461. For a fuller discussion, see Iza Hussin, “Making Legibility Between Colony and Empire: Translation, Conflation, and the Making of the Muslim State,” in The Many Hands of the State, eds. Ann Orloff and Kimberly Morgan (New York: Cambridge University Press, 2017).
 Alan Guenther, “A Colonial Court Defines a Muslim,” in Islam in South Asia in Practice, ed. Barbara Metcalf (Princeton: Princeton University Press, 2009), 293-304.
 Indian Law Reports Allahabad series (Government Press, 1885), 461, at 13.
 Ibid., 7.
 Guenther, “Colonial Court,” 293–304.
 Iza Hussin, “Making Legibility Between Colony and Empire: Translation, Conflation, and the Making of the Muslim State,” in The Many Hands of the State, eds. Ann Orloff and Kimberly Morgan (New York: Cambridge University Press, 2017), 349-68.
(Suggested Bluebook citation: Iza Hussin, How to do things with translation: ‘Law’ in the Malay world, Islamic Law Blog (Dec. 22, 2022), https://islamiclaw.blog/2022/12/22/how-to-do-things-with-translation-religion/)
(Suggested Chicago citation: Iza Hussin, “How to do things with translation: ‘Law’ in the Malay world,” Islamic Law Blog, December 22, 2022, https://islamiclaw.blog/2022/12/22/how-to-do-things-with-translation-religion/)