A review of Evolution of the Place of Islamic Law within the Indian Legal Order, 1600-2014, by Jean-Philippe Dequen.
In this thought-provoking and lively dissertation Jean-Philippe Dequen attempts to synthesize four centuries of historical development in the Indian subcontinent in order to set out a framework for understanding the shifting place of Islamic legal tradition therein. The organization of the dissertation comes in two main sections, after an introductory chapter. Part I (entitled “Jurisprudential Issues”) comprises a bit less than half of the dissertation and consists of chapters 2 and 3, which respectively look at definitions of the “legal” in the Indian context and at several “legal modes of association” relevant to it. Part II (entitled “Legal History: Evolution of the Place of Muslim Law in Colonial and Independent India”) comprises the last 90 or so pages of the dissertation. It consists of one lengthier chapter (chapter 4) on “Islamic Law in the Colonial Era up to 1909: “From Domestic to Foreign Law”, and of a brief last chapter (chapter 5) entitled “Islamic Law and the Constitution of India from 1909 to 2014: From Sovereign Exception to Religious Integration.”
Given its aims, Part I primarily draws on secondary literature. Chapter 2 is thus grounded in the literature of modern legal and social theory. Chapter 3 turns more directly to issues of legal history—both Indo-Islamic as well as, for comparison’s sake, that of England and the continent—and so the secondary literature it is grounded in shifts accordingly. The chapters of part II place greater emphasis on case law and various statutory materials. For expository purposes, the footnote apparatus is also used liberally throughout the thesis.)
One of the chief virtues of the study comes from Part II’s attempt to illuminate the history of Muslim law in colonial and independent India–some of which has been previously travelled by historians–on the basis of a solid engagement with the vast array of literature in legal theory and philosophical jurisprudence in Part I. Overall, Dequen seeks to forge an explanatory framework that meaningfully encompasses not only the era of Mughal domination, which represented the culmination of Indo-Islamic rule over North India, but also everything that has come after. This includes the colonial periods of Company and high nineteenth-century Crown rule, the closing and highly turbulent years of British imperialism from World War I to 1947, and the Republic of India’s subsequent career as an independent state up to the present.
The overarching argument of the dissertation can be summarized as follows. Using Bruno Latour’s notion of “legal ecology” and the attendant idea of law being a “mode of association through enunciation” (as outlined in Part I), in Part II Dequen argues that four main shifts took place in the career of Islamic Law in India. The first involved a movement from “Indo-Islamic Law”, under Mughal imperium, to “Anglo-Muhammadan Law” following the East India Company’s first seventeenth-century contacts with subcontinental society and lasting. until 1909, when Indian Muslims were assigned separate electorates by the British Crown-in-Parliament. Subsequently, Dequen argues, a second shift ensued as Anglo-Muhammadan Law gave way to “Muslim Personal Law” proper, although this second era truly came to an end only with the passage of the Muslim Personal Law (Shariat) Application Act of 1937. Following the extremely short tenure of Muslim Personal Law proper, the third shift is said to have started by 1950, when separate electorates were abolished. In effect,Muslims came to be defined as homo sacer under independent India’s new constitution. Here, Dequen borrows Giorgio Agamben’s influential elaboration on Carl Schmitt’s notion of “state of exception” to argue that Indian Muslims were allowed to remain governed, for certain purposes, under ostensibly Islamic/Muslim legal norms–and thereby to stand apart from the fundamental rights provisions of the Indian constitution, which otherwise call for the creation of a uniform civil code. For Dequen, the fourth and final shift involved the eclipse of this Agembenian/Schmittian “state of exception.” Around 1960, a process is said to have begun under which Muslim Personal Law has been getting re-absorbed into the Indian constitution, via its freedom of religion clauses. Dequen substantiates this claim through case studies of recent judicial decisions involving Islamic “triple ṭalāḳ” divorces.
For the curious reader, this dissertation offers insights into the long-standing problematic of whether (and in what sense) non-Western juridical tradition is adequately understood in terms of law. The reader more familiar with such concerns, and the way they obtain in the South Asian context, will not fail to notice that, in charting the progression from Indo-Islamic to “Anglo-Muhammadan” to “Muslim Personal Law,” Dequen is attempting more than simply to restate the basic thesis that colonial modernity went hand in hand with a reification or, as he prefers to call it, a “fossilization” of “Islamic law.” Indeed, the dissertation seeks to reverse the conventional scholarly narrative of a long era of Personal Law preceding (rather than following) the emergence of a more thoroughly standardized Anglo-Muhammadan Law during the late nineteenth-century. (That said, it is worth noting that even in this conventional portrait,it has not gone unacknowledged that “Anglo-Mohammedan” law played a key role in confining ostensibly Islamic norms to “personal” matters having to do with family and religion.) Also defying conventional scholarly discussion is the extremely short interval—little more than a decade after 1937—during which the dissertation claims that Muslim Personal Law truly held sway.
As a work of legal theory and legal history, the dissertation is a provocative and appreciated effort. That the author strives to take on the daunting task of making sense of an overarching subject (“Islamic Law” in the South Asian subcontinent) all in one place is admirable. Given that many scholars of Indo-Muslim legal development will be interested in different epochs whatever their own particular expertise, the dissertation should appeal to a varied audience once revised into a monograph.
Faisal Chaudhry, JD, PhD
Department of South Asia Studies
University of Pennsylvania
Indian Law Reports
University of London, School of Oriental and African Studies. 2015. 240pp. Primary Advisor: Werner Menski.
Image: Ahmadabad, Sidi Sayyid Mosque, West facade, Henry Cousens, 1885