(As part of our blog round-table book discussion, this is the fourth of the substantive responses to Julia Stephen’s Governing Islam: Law, Empire and Secularism in South Asia, by Dr. Geetanjali Srikantan.)
In “Governing Islam: Law, Empire and Secularism” Julia Stephens crafts a compelling, immensely readable account of the ways and forms in which the British colonial encounter produced an understanding of Islam as religion through legal norms and forms of governance. Relying on social theorists such as Talal Asad, Michel Foucault and Judith Butler, Stephens argues that colonial governance was characterised by internal contradictions which allowed it to be persistent and coercive in its effects. As an illustration, she uses the example of the” rubber band state” whose internal flexibility allows it to be more malleable, creating the potential for dominance. Drawing on Butler’s model of performativity based on gender binaries Stephens further argues that the rubber band state operated on a set of binaries which pitted “family against economy, religion against reason, and community against the state” (p 4).
The basis for this argument is laid down in the first chapter where Stephens challenges the current understanding of “personal law” as having emerged on the basis of Warren Hastings’s Plan of 1772 which provided that Hindu and Muslim religious communities would be governed by their religious laws. She convincingly shows that Muslim personal law as a distinct sphere of regulation governing the family/ domestic sphere emerged in the mid -19th century due to the influence of European legal thought on territorial sovereignty and legal historicism. She characterises the legal developments leading to this law as “secular conversion” pointing out that legal reformers emphasised reason and conscience as being associated with Christian morality and devalued Indian traditions as being irrational and superstitious.
Such an argument invites us to rethink Foucault’s governmentality as archaeology. Governmentality is not law but in directing law towards process of normalization (as Stephens suggests) it orients us towards legal categories and concepts such as the public and the private. The marginalization of Islamic law and the development of a colonial Anglo-Muhammadan law enshrined in textbooks and court decisions involved importing conceptions of legal domains in Western law. Islamic law was widely understood as not having “public law”. This aspect has received attention from legal commentators such as Joseph Schacht who have commented on the lack of institutionalization of state power within Islamic governance.
The inadequacy of Mughal law as a form of governance led the British to dismiss it as lex loci. However the history of the public and private distinction in Western law has been a recent one involving a departure from medieval conceptions of sovereignty. As Horowitz (1982) points out this distinction was based on the market as a legitimating institution. The messy task of constructing the domain of private law necessarily involved distinguishing the domain of the domestic sphere from contract and property. Duncan Kennedy (2010) points out that Savigny’s family/patrimony distinction had an influence on European colonial powers -leading to an understanding that the law relating to the family was about moral relations in contrast to the law of potentialities which was considered a matter of individual wills. The attempts to create distinctive domains of Muslim and Hindu family law can be seen in this light.
Stephens’s work invites us to reconstruct this trajectory and ask ourselves as to how we might want to theorize colonial law. How far was colonial law dependent on theories of sovereignty in the 19th century? Savigny’s tracts on how law must manifest the unique spirit of each nation was also balanced by his approach to Roman law as a supranational law. Such a law was manifest in the legal evolution of nobler nations such as the Germans.
How do we understand colonial law- making in the context of epistemology and the theory of law itself? Henry Maine’s observation was that Hindu law had become corrupt due to a religious oligarchy, unlike the Romans who were protected by the Twelve Tables. He observed that the content of Hindu law was mainly family law with very little contract or criminal law. Colonial attempts to construct a domain of Muslim family law thus needs to be viewed through the prism of the history of Western legal theory. The attempt to isolate family law as the law of moral relations also meant that such morality was defective and that Islam could never produce a science of positive law being condemned to borrow from the West.
This provides an avenue to understand the other chapters that follow. The manifestation of multiple legal orders shown in the strategies by litigants and their efforts to access non -state law shows a resistance to the normative frameworks being imposed by the colonial state. What were the legal possibilities of resisting the epistemology of custom within Western law which prescribed tests of longevity, standardization, continuity, morality and public policy? Stephens’s work shows that morality was crucial to understanding how claims to customs were adjudicated. In showing how British reluctance to adjudicate claims of ritual difference on the basis of ritual being individual preference, the question of morality comes once again to the forefront. The ability to see religion as individual belief is necessary for the adoption of the public and private as legal categories. This would discipline the irrational and emotional Muslim moved to excessive displays of sentiment.
How did Muslims contest the descriptions of themselves? The idea of social justice through the economy appears to be one way in which such descriptions were contested. Although this was short-lived. Stephens draws us to think of possibilities by which the legal history of Islamic law in South Asia can be articulated differently.
The important contribution of this book lies not just in its extraordinary well written narrative but the theoretical possibilities that it raises for teaching Islamic law in the classroom. For many of us, challenging students to confront the stereotypes and binaries undergirding the populist discourse on Islamic law is not easy. Stephens’s work offers us a way to think of new legal pedagogies in both comparative law and legal history.