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Author: Scott Allan Kugle Published: Modern Asian Studies (2001) Reviewer: Umer Gilani ***************

Framed, Blamed and Renamed: The Recasting of Islamic Jurisprudence in Colonial South Asia
I
The article under review falls under the broad categories of legal history and colonial history. It deals with the history of Anglo-Mohammadan laws in British India, focusing on the period from 1771 to 1832. The perspective adopted is primarily sociological, but like many other works in colonial history, it brings together diverse elements from philosophy, jurisprudence, politics, and literature. The resulting mix is unmistakably erudite; at times, however, the authors language becomes highly unintelligible and it is hard to extract any general proposition that the paper, as a whole, propounds. If one has to pin the paper down to a single thesis, such a thesis is concisely stated in the title Renamed, Blamed and Framed: The Recasting of Islamic Jurisprudence in Colonial South Asia. The author draws upon a range of historical sources to trace the development of what came to be known as Anglo-Mohammadan jurisprudence. The author contends that although this system of jurisprudence managed to perpetuate an illusion of continuity with Islamic jurisprudence, the two were actually very different and the former eventually replaced the latter. As the years passed, what the British were dispensing in the name of Anglo-Mohammadan jurisprudence had barely any traces of Islamic law. It could more aptly be described as pieces of legislation severed from the organic body of Islamic jurisprudence, and grafted onto the judicial machine of a modern colonial state. Quite understandably the new system was far from perfect. The British managed to put all the blame on the straw-man they had created; that is, all the imperfections of the new system were blamed on the Mohammadan part of the laws, which were eventually abrogated altogether. Through a process of complete recasting, Islamic law was renamed, framed and blamed for all sorts of vices and, eventually, replaced by a new system fraught with its own contradictions.

II

This is how the paper proceeds. At the very onset is a discussion about defining jurisprudence. Jurisprudence is defined as an interpretative experience backed by coercion. The parameters of the article basic questions for the inquiry and the time period under discussion are laid down. Next follows a historical overview of the whole period. The prominent events discussed are: British conquest of Bengal in 1757; assumption by the British of the title of Diwan in 1765 and the consequent responsibility for settling civil disputes; Governor-General Hastings active role in reforming the legal system from 1772 onwards; assumption of the right of Nizamat(control over criminal courts) in 1790; passage of Bengal Regulations in 1832; promulgation of the Indian penal code in 1862 and the subsequent codification spree. During this historical overview many arguments are made. Some of the major themes discussed are: the gradual replacement of Islamic law in the sub-continent by other laws derived primarily from British common law and notions of equity; the illusion of continuity with the past maintained so as to appropriate for the British the legitimacy enjoyed by the previous system; the replacement of local texts and personnel by British or British-trained personnel; constant manipulation of the system to serve the ends of the British. An example that features prominently is that of auqaf which was eventually purged from Anglo-Mohammadan jurisprudence because it did not fit in with the British notions of capitalism and private property. A prominent part of the paper is devoted to looking at the process whereby the British codified Islamic law in the sub-continent through the process of translation and codification. During the period when the British were administering to the subject populace what they considered Islamic law, they had to rely on texts which were translated from Arabic or Persian. Examples of such oft-used translated texts include the translations for al-hedaya and al-musaffa. The author contends that these translations were not completely faithful to the original texts, rather they sifted out material and changed emphasis to a great extent; indeed, it would be proper to say that the British did not just find texts, they created new ones. The problem was even more severe with codification, which changed the very nature of Islamic law and transformed its substantial rationality into formal rationality, using Webers terms. Also, at one point the author points out how the reform-minded company bureaucrats were able to proceed with drastic legal reforms and modernization in India at a pace far greater than in Britain itself. The latter half of the paper engages in a very interesting and controversial debate about the role of ijtihad versus that of taqlid in Islam. The authors contention here is fairly simple but powerful: taqlid, as a legal ideology, was far more suited to the needs of the new, modernizing

and centralizing colonial state is South Asia, when compared to the highly unpredictable and independently dynamic practice of ijtihad; also, taqlid resembled the doctrine of stare decisis which the colonial administrator were more used to. Therefore, the colonial state put all of its weight behind the doctrine of taqlid, and this process ended up stifling ijtihad, taking all the life and spirit out of Islamic jurisprudence. A most interesting example is that of Justice Amir Ali who tried to revert to the original sources of Quran and Sunnah and resorted to ijtihad for the purpose of extracting a new ruling. This attempt, however, was overruled by the superior court, thus crystallizing the doctrine of taqlid. Although the author does a good job at proving that the colonial administrators promoted the doctrine of taqlid within Islamic law, it remains to be seen how far this doctrine relies upon such external factors for support, and how far it draws its support from conservative tendencies endemic to the tradition of Islamic law. Finally, the paper examines the new class of lawyers operating within colonial South Asia who bought into this manipulated colonial discourse, but nonetheless tried to fight the system from within. It also looks at the exceptional case of Badrudin Tyebji, who, well ahead of his time, was able to see through the whole process of colonial recasting of Islamic jurisprudence.

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