By Iza Hussin
Whereas the first of these posts focussed on translation between one text and another, and the second on one set of vocabularies to another, this third post considers inter-imperial translation as a source for one of the most politically productive conflations in the history of modern Islamic legal institutions: personal status/family law/Islamic law. Muhammad Qadri Pasha’s Kitāb al-Aḥkām al-sharʿiyya fī al-Aḥwāl al-shakhṣiyya provides us with a touchstone from which to begin: in 1880s Egypt, Ottoman ideas of millet, French statut personnel, and British colonial personal law seem to have all come together in the Arabic translation of ‘personal status,’ which bound the concept of personal status, family law, and the sharī’a to the logic of modernising and reforming law.[1] How did this happen, and to what does this conflation of categories owe its peculiar durability?[2] The process through which personal law (which was understood by the British to derive from Roman conceptions of law adhering to communities), and statut personnel (which was understood by the French as separating laws of the person from laws of property), come to converge in common use to refer to ‘family law,’ requires a shift in our objects of inquiry and scale of analysis.
In India in the 1770s, personal law referred to differential jurisdictions – laws applied depending upon membership in religious communities, Hindu laws for Hindus, Muslim laws for Muslims.[3] Assumptions made by East India Company officials in the Hastings Plan of 1772 – that ‘Muslim law’ would be applied to Muslims ‘in all suits regarding inheritance, marriage, caste, and other religious usages or institutions’[4] – would by the end of the nineteenth century become part of the construction of a domain of ‘Muslim personal law’ that Indian Muslims would defend as authentic and privileged. Over the longue durée of British colonialism and imperialism, the religious and the private realm were co-constituted over the Muslim family, in the institutionalization of personal status law.
In Egypt, the French inherited an Ottoman system that differentiated among imperial subjects by confessional identity, drawing from the Ottoman imperial system of millet (in which recognized minority groups in the Ottoman Empire, such as Christians and Jews, could govern according to their own laws) and from the system of mixed and native courts imposed by European powers upon Egypt. Egyptian elites redefined a realm of Islamic legal practice that would overlap with these inherited legal classifications, and like their counterparts in India, sought to define this realm in order to preserve the latitude of Islamic legal reasoning while negotiating the boundaries of the colonial state. By the time the British took over the administration of Egypt, at the same time as Britain’s Muslim subjects in India were working to make themselves legible to the colonial state as a community based on confessional identity, an imperial consensus was evolving, that communities were divided by religious identity, that at the heart of religious identity were matters of ritual and the family, and that both ritual and family matters were to be understood as private matters. The meeting, in Egypt, of British common law approaches to the governing of Muslims, with Ottoman and French civil law practices and institutions, contributed further to the conflation of personal law with personal status. The movement of colonial officials between British India and Egypt in the later decades of the nineteenth century was also a significant network for the importation of ‘Indian’ ideas into the administration of Egypt. These mark a convergence between previously quite separate logics and institutional bases, due to the assumption by imperial officials that the principles for governing Muslims in India would translate to the Muslims of Egypt or Malaya, and to an increasing interest among varied Muslim elites to articulate Islam in ways that would be legible to the British, and translatable across multiple domains.[5]
This process of translation involved the spatial and hierarchical reassignment of the family to the private sphere, a process not restricted to colonial sites. Hussein Agrama has related the formulation of personal status to the problem of public order in Egypt, describing the 1897 reform of the sharīʿa courts as having “brought into affinity a new set of concepts and affects – family, intimacy, publicity, secrecy, and public order – through which the domains of public and private could be mutually entailed and authorized by the state.”[6] Across the British imperial world during this period, in fact, there were increasing similarities within Muslim communities in response to the encroachment of British law.[7] These strategies were twofold: local Muslim elites often accepted, and at times expanded upon, colonial categorizations of Islamic law as pertaining only to a narrow private domain of family, personal status and ritual worship, but at the same time continued to assert and renegotiate the proper division between matters of Islam and matters of the state, including the meaning and scope of Islam as articulated by British colonial law. By the time the formulation was instituted in Egypt as ‘al-Aḥkām al-sharʿiyya fī al-Aḥwāl al-shakhṣiyya,’ the “personal” in “personal law” carried two meanings – the first tied to communal affiliation, the second to the individual as a unit of administrative control.[8] This was a process neither of textual translation, nor of comparative law between jurisdictions, but of mutually reinforcing conflations in time, among the imperial, the international, and the modern.
Notes:
[1] Lama Abu-Odeh, “Modernizing Muslim Family Law: The case of Egypt,” Vanderbilt Journal of Transnational Law 37, no. 4 (October 2004):1043; Iza Hussin, The Politics of Islamic Law: Local Elites, Colonial Authority, and the Making of the Muslim State (Chicago University Press, 2016).
[2] Judith Surkis, Sex, Law, and Sovereignty in French Algeria, 1830–1930 (Ithaca, NY: Cornell University Press, 2019), 90-118.
[3] Thomas Metcalf, The New Cambridge History of India III, 4. Ideologies of the Raj, (Cambridge: Cambridge University Press, Cambridge, 1994), 38; Elizabeth Kolsky, “Codification and the Rule of Colonial Difference: Criminal Procedure in British India,” Law and History Review 23, no. 3 (2005): 631-83.
[4] “Letter from Governor-General and Council to Court of Directors, Fort William, 3 November 1772,” in Reports from Committees of the House of Commons, vol. 4, (East Indies, 1772-3); Bernard S. Cohn, The Command of Language and the Language of Command’ in Subaltern Studies, vol. IV (1985), 289.
[5] Hussin, Politics of Islamic Law; 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).
[6] Hussein Agrama, Questioning Secularism: Islam, Sovereignty, and the Rule of Law in Modern Egypt (University of Chicago Press, 2012), 100.
[7] Hussin, Politics of Islamic Law.
[8] Muhammad Qadri Pasha, “Kitāb al-Aḥkām al-Shar’iyya fī al-Aḥwāl al-Shakhsiyya ala Madhhab Imām Abū Ḥanīfa al-Nu’mān,” in Kitāb Majmu’āt al-Qawānin al-Shar’iyya, ed. Rushdi al-Sarraj (Jaffa, 1944), 80-182; Muhammad Qadri Pacha, “Code du statut personnel et des successions d’apres le rite Hanafite,” in Codes Egyptiens et lois usuelles en vigueur en Egypte (Cairo, 1939).
(Suggested Bluebook citation: Iza Hussin, How to do things with translation: ‘Personal law’, Islamic Law Blog (Dec. 27, 2022), https://islamiclaw.blog/2022/12/27/how-to-do-things-with-translation-personal-law/)
(Suggested Chicago citation: Iza Hussin, “How to do things with translation: ‘Personal law,'” Islamic Law Blog, December 27, 2022, https://islamiclaw.blog/2022/12/27/how-to-do-things-with-translation-personal-law/)