There has been an explosion of interest in interrogating the impact and legacies of European colonialism in recent decades. To an extent, this interest reflects a broader global yearning. First the subject of much theorization within the academy, the conclusion that the world is in the grips of a postcolonial malaise now finds common (and confident) expression in public discourse. As such, it is now not uncommonly asked what the history and legacies of empire have to do with the contemporary global and local condition. Indeed, this ‘present-minded’ lens into the past continues to power many reform and renaissance projects, particularly in the formerly colonized world. Historians of colonialism have not been immune from this tendency; even as presentism remains eschewed in scholarly investigations, it is increasingly hard to maintain that the surge of academic interest in investigating the history of colonialism is disconnected from the contemporary global memory of empire. For legal historians, this irresistible pull of the colonial memory is only reinforced by the now-common recognition that “law was the cutting edge of colonialism;”[1] the yearning to make sense of colonialism is therefore met with an urgent need to interrogate “law” as a fertile site for studying the contestations and transformations engendered by empire—and for probing the enduring afterlife of these processes.
Arguably, the abovementioned factors are only more salient in studying Muslim societies. Enduring narratives of a civilizational clash between the ‘West’ and the ‘Muslim World’ works hard at retroactively rehabilitating European empire while also fueling a framing of Islamic law as the primitive ‘other’ of Western law. At the same time, it is hard to miss the hand of empire in the forms of Islamic legal practice that survived formal colonialism,[2] which is unsurprising given that empire went to great lengths to make “law” its “emissary.”[3] In one sense, therefore, to study the impact of colonialism on Islamic law is to contend with this enduring popular imagination of Islam (and Islamic law) as the antithesis of Western civilization while also grappling with the lasting transformations of western colonialism on Islamic legal practice. Studying colonialism’s impact on Islamic law is also to ponder on why and how this tension matters.
These were some of the issues running through my mind as I wrote Entangled Domains: Empire, Law, and Religion in Northern Nigeria (Cambridge University Press, 2023). Admittedly, to study the Northern Nigerian colonial experiment (since colonies were, after all, “laboratories of experimentation”[4]) was to take on a unique site given that Northern Nigeria was one of those rare places where Islamic law formally remained public law in the age of European imperialism. Indeed, in the case of the British empire—that empire on which “the sun” supposedly “never set”[5] —Northern Nigeria was only one of the two places (the other being the Aden Protectorate) where the colonial state formally retained Islamic law in public law through its application of criminal law.[6] Northern Nigeria remains an important site for studying Islamic law and Muslim legal practice because of its high Muslim population—Nigeria has the highest concentration of Muslims in Africa. The urge to turn a searchlight on the colonial past in understanding Islamic law in Nigeria is particularly compelling due to the stronghold that the memory of the colonial experience continues to have over constitutional discourse on the status of Islamic law.[7]
Indeed, the most contested constitutional tussle since Independence has been over the place of the Sharī‘a in the state. Contending that the colonial state had undermined the precolonial caliphate and altered its Islamic legal practice, proponents of the Sharīʿa (courts and criminal law, depending on the time in Nigerian history) frame theirs as a revival project. Opponents of the Sharīʿa, however, insist that the colonial state reified the caliphate institutions through which it governed, including by elevating Islamic law and subjugating non-Muslim colonial subjects.[8]
Entangled Domains intervenes in this debate by reclaiming the history of the colonial state’s governance of religion and religious difference. As chronicled in the book, British indirect rule entailed governance through Islamic institutions, producing the need to maintain appearances of a ceremonial deference to those institutions.[9] However, indirect rule, at the same time, meant governance of those institutions, leading to radical transformations. Hence, colonial governance amounted at once to the ostensible deference to and transformation of precolonial caliphate institutions and Islamic law. Moreover, the book argues that the colonial technique of governing religion—secular governmentality—as nebulous enough to authorize these seemingly inconsistent moves (of on the one hand, rhetorically elevating Islamic law and on other subjugating it). Specifically, the combination of ideas of religious liberty and shades of arguments about the state’s separation from religion—the two notions integral to the constitutional idea of secularism—were employed by colonial officials and colonial subjects to legitimize these varying outcomes for Islamic law. Colonialism, in sum, simultaneously governed Islamic law while governing through and reifying it. Entangled Domains charts the history of this governance technique and illuminates its profound consequences for the colonial and postcolonial constitutional politics of Islamic law.
The book makes three contributions to answering the question: what was the impact of colonialism on Islamic law? First, Entangled Domains argues that to answer this question is to interrogate the colonial state. Colonialism’s most marked impact was investing the state with the unprecedented constitutional authority to pronounce the law. This entailed the relocation of the foundational source of constitutional authority from the divine claims that characterized precolonial discourse to the colonial state and those who purported to speak in its name.
The book’s second contribution to understanding the impact of colonialism on Islamic law lies in its illustration of “how” this relocation of constitutional authority to the state occurred. I argue that that change of the fons et origo of constitutional authority to the state occurred through a conceptual shift in what siyāsa (jurisdictional powers of politics authorities) entailed. Understood in precolonial discourse as a siyāsa contained by Shar‘ī constitutional limits—siyāsa shar‘iyya—and that could not overshadow jurists’ fiqh (despite practical violations), colonial-era siyāsa witnessed a remarkable expansion in scope. This took the form, first, of expanding the lawmaking (and judicial) authority of Muslim rulers-emirs who were ultimately vessels of the colonial state. Ultimately, however, the expanded siyāsa came to be directly deposited in the central state itself, from where it legitimated unprecedented reforms.[10] Entangled Domains argues that this “how” question of the constitutional transformation ushered in by colonialism, a question that has been underexplored, sheds new light on the substantive Islamic doctrinal transformations that occurred in the colonial encounter.
The book’s third contribution is to suggest that understanding the impact of colonialism on Islamic law requires viewing the imperial encounter as more than a two-way encounter featuring Muslim societies and their elite actors on the one hand, and colonial officials representing European empires, in the Northern Nigerian case, the British empire, on the other. Investigations of the colonial impact on Islamic law have missed much by this narrow lens. Because the politics of religious difference was integral to both the nature and stakes of the contestations over Islamic law, Entangled Domains spotlights actors with ‘religious’ projects that were irreducible to those of Muslim elites or colonial officials. Foremost among these actors were European Christian missionary actors whose nineteenth-century alliance with the British empire gave way to a strained relationship when empire turned to indirect rule through caliphate institutions upon the formal annexation of Northern Nigeria in 1903.[11] By interrogating colonialism with a lens that encompasses these key actors, Entangled Domains foregrounds the power relations undergirding the discursive struggles that shaped the fate of Islamic law in the colony. By zooming in on contestations over diya and ‘afw (the Islamic legal institutions permitting compensation or forgiveness in response to unlawful killings or bodily injury), the next two essays illuminate these theoretical contributions of Entangled Domains.
Notes:
[1] Martin Chanock, Law, Custom, and Social Order: The Colonial Experience in Malawi and Zambia (Portsmouth, N.H.: Heinemann, 1998), 4.
[2] See Tamir Moustafa, Constituting Religion: Islam, Liberal Rights, and the Malaysian State (Cambridge: Cambridge University Press, 2018); Ebrahim Moosa, “Colonialism and Islamic Law,” in Islam and Modernity: Key Issues and Debates, eds. Muhammad Masud, Armando Salvatore, and Martin van Bruinessen (Edinburgh: Edinburgh University Press, 2009), 158–81.
[3] Upendra Baxi, “The Stateʼs Emissary: The Place of Law in Subaltern Studies,” in Subaltern Studies, vol. 7, Writings on South Asian History and Society, eds. Partha Chatterjee and Gyanendra Pandey. (Delhi, 1993); Ranajit Guha, “Chandra’s Death,” in Subaltern Studies, vol. 5, Writings on South Asian History and Society, ed. Ranajit Guha (New Delhi: Oxford University Press, 1987), 134–65.
[4] John L. Comaroff, “Colonialism, Culture, and the Law: A Foreword,” Law & Social Inquiry 26, no. 2 (2001): 310.
[5] John Wilson, “Noctes Ambrosianae No. 42,” Blackwood’s Edinburgh Magazine. XXV (cli), April 1829, 527.
[6] John N. D. Anderson, Islamic Law in Africa (Routledge, 1955).
[7] There have been important earlier attempts to grapple with this colonial past of Northern Nigerian Islamic law. See Auwalu H. Yadudu, “Colonialism and the Transformation of the Substance and Form of Islamic Law in the Northern States of Nigeria,” Journal of Law and Religion 9, no. 1 (1991): 17–47; Abdulmumini A. Oba, “Islamic Law as Customary Law: The Changing Perspective in Nigeria,” International and Comparative Law Quarterly 51, no. 4 (2002): 817–50; and Sarah Eltantawi, Shari‘ah on Trial: Northern Nigeria’s Islamic Revolution (Oakland: University of California Press, 2017). Yet, these prior accounts have a tendency to interrogate the fate of Islamic law in Northern Nigeria in isolation from the broader colonial governance of religions and religious difference in the territory.
[8] See for instance Proceedings of the Nigeria Constituent Assembly: Official Report 1977, vols. I and II (Lagos: Federal Ministry of Information, 1977).
[9] Rabiat Akande, Entangled Domains: Empire, Law and Religion in Northern Nigeria (Cambridge University Press, 2023), 1.
[10] For a report illustrating this shift in the late colonial state, see “Report of the Panel of Jurists Appointed to Examine the Legal and Judicial Systems of the Region,” S.MOJ/12/S.1, vol. I, National Archives Nigeria, Kaduna.
[11] Akande, Entangled Domains, 31–38. See “Lord Salisbury and Foreign Missions,” The Times Weekly Edition, June 20, 1900, 10b; Colonial Reports-Annual, no. 409, Northern Nigeria, 1902 (HM Stationery Office, 1903), 16.
(Suggested Bluebook citation: Rabiat Akande, Colonialism and Islamic Law, Islamic Law Blog (Oct. 5, 2023), https://islamiclaw.blog/2023/10/05/colonialism-and-islamic-law/)
(Suggested Chicago citation: Rabiat Akande, “Colonialism and Islamic Law,” Islamic Law Blog, October 5, 2023, https://islamiclaw.blog/2023/10/05/colonialism-and-islamic-law/)