Anglo-Mohammedan Law: Colonial Transformations to Sharia in India

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Recommended: British Imperialism in India

The history of the British colonization of India, from a commercial trade relationship to a relationship of control, is deeply tied to the manipulation of Islamic law as was previously practiced by the Mughal Empire. With the development of a 19th century sovereign nation state in India, the British found themselves increasingly in need of developing strategies of centralization and control. They responded to this need by borrowing preexisting concepts from Sharia that they modified in utilitarian ways to redistribute power from the hands of the Moghul rulers to British ones, and developed Orientalist philosophies that justified the colonizing project. In the process, the original application of Sharia was irrevocably changed, and remains to date substantially influenced by British common law. I will discuss these changes and manipulations in the light of the Ijtihad-taqlid controversy, Orientalism, and the dynamic between Sharia and the modern nation state.

The structure of pre-British Sharia during the Mughal reign was characterized by a relationship of relative distance between the state government and legal proceedings in the courtroom. (Giunchi 2010, 1121) Though, quadis (judges) were appointed and dismissed by the emperor, they often based their decisions on non-binding opinions; fatwas, of learned Muftis, who sanctioned a particular course of action in reference to textual evidence from the sources of law. Though fatwas were requested in response to real social situations, the muftis used a hypothetical template to document their decisions, not bearing any details about the identity of the plaintiff and thus allowing for the document to serve as a reference for later occasions. (Hallaq 1994, 32-33) Fatwas did not bear a...

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...1, no. 1: 29-65.

Hallaq, Wael B. 1984. "Was the Gate of Ijtihad Closed?" International Journal of

Middle East Studies. 16, no. 01: 3-41.

Kozlowski, G. "A Modern Indian Mufti." Islamic Legal Interpretation: Muftis and their Fatwas, A Casebook, Cambridge, Mass.: Harvard University Press, 1996. 242-249.

Kugle, Scott. Alan. 2001. "Framed, Blamed and Renamed: The Recasting of

Islamic Jurisprudence in Colonial South Asia". Modern Asian Studies. 35,

no. 2: 257-313.

Rankin, George. 1939. "Custom and the Muslim Law in British

India". Transactions of the Grotius Society. 25: 89-118.

Schacht, Joseph. An Introduction to Islamic Law (Oxford [Oxfordshire]; New

York: Clarendon Press, 1982. 69-88.

Wilson, Nicholas Hoover. “From Reflection to Refraction: State Administration in

British India, circa 1770- 1855.” AJS 116 no. 5. 2011. 1437-77.

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