Everyday Islamic Law and the Making of Modern South Asia

Everyday Islamic Law and the Making of Modern South Asia

Islamic Civilization and Muslim Networks

Carl W. Ernst and Bruce B. Lawrence, editors

Highlighting themes with historical as well as contemporary significance, Islamic Civilization and Muslim Networks features works that explore Islamic societies and Muslim peoples from a fresh perspective, drawing on new interpretive frameworks or theoretical strategies in a variety of disciplines. Special emphasis is given to systems of exchange that have promoted the creation and development of Islamic identities—cultural, religious, or geopolitical. The series spans all periods and regions of Islamic civilization.

A complete list of titles published in this series appears at the end of the book.

Everyday Islamic Law and the Making of Modern South Asia

ELIZABETH LHOST

The University of North Carolina Press   Chapel Hill

This book was published with the assistance of Dartmouth College.

© 2022 The University of North Carolina Press

All rights reserved

Set in Charis by Westchester Publishing Services

Manufactured in the United States of America

The University of North Carolina Press has been a member of the Green Press Initiative since 2003.

Complete Cataloging-in-Publication information for this title is available through the Library of Congress.

ISBN 978-1-4696-6811-6 (cloth: alk. paper)

ISBN 978-1-4696-6812-3 (pbk.: alk. paper)

ISBN 978-1-4696-6813-0 (ebook)

Cover illustrations: Photo of the mufti's library at the Madrasa Aminiya in Delhi, with photos of fatwa files (upper left corner) and postcard stamps (background, center blue title square).

To everyone who has tried to make sense of the law

Contents

Note on Translation and Transliteration

Introduction

Life, Law, and Legal History

Part I

Professionals

Interlude I

Rethinking Law, Religion, and the State

1  Becoming Qazi in British Bombay

Imperial Expansion, Legal Administration, and Everyday Negotiation

2  Creating a Qazi Class

Navigating Expectations between Company and Community

3  From Petitions to Elections

Islamic Legal Practitioners and the Exigencies of Colonial Rule

Part II

Paperwork

Interlude II

Crown Rule in the Context of Noninterference

4  Personal Law in the Public Sphere

Fatwas, Print Publics, and the Making of Everyday Islamic Legal Discourse

5  From Files to Fatwas

Procedural Uniformity and Substantive Flexibility in Alternative Legal Spaces

6  Accounting for Qazis

Negotiating Life and Law in Small-Town North India

Part III

Possibilities

Interlude III

Analyzing Shariʿa, State, and Society

7  Of Judges and Jurists

Questioning the Courts in Islamic Legal Discourse

8  Whose Law Is It, Anyway?

Navigating Legal Paths in Late Colonial Society

Conclusion

The Limits of Legal Possibilities

Acknowledgments

Glossary

Notes

Bibliography

Index

Figures, Maps, and Table

Figures

0.1  Front page of the Bombay Chronicle, xviii

2.1  Sample text for a qazi sanad, 60

2.2  Facsimile of a qazi sanad, 61

3.1  Recommended register layout for recording Muslim marriages, 103

4.1  Printed fatwa from the Majmūʿa-yi Fatāwá-yi Ṣābriya, 128

5.1  Formal fatwa issued by the dar-ul-ifta of the princely state of Hyderabad, 141

5.2  Cover sheet for a fatwa file from the dar-ul-ifta of the Sadarat-ul-ʿAliya in Hyderabad, 143

5.3  Internal office memo, produced as part of a fatwa file in Hyderabad, 144

5.4  Draft fatwa, 145

6.1  Page from the registers of Muslim marriages produced by the qazis of Meerut, 1881, 173

6.2  Marriage register entry from Bharuch, 1859, 177

6.3  Marriage register entry produced by Qazi Bashir-ud-Din, 1919, 180

Maps

British India, xii

Bombay Presidency, xiii

British Empire, xiv

British India, marking places of interest, xv

Table

3.1  Fees collected by the qazi of Bombay, 87

Note on Translation and Transliteration

Transliteration follows Francis Joseph Steingass’s Comprehensive Persian-English Dictionary.¹ For the sake of clarity, I have omitted the final hamza on many words that appear throughout the text (e.g., iftāʾ, istiftāʾ). When possible, I retain the original, archival spellings of names (e.g., Hyatoolakhan vs. Ḥayāt Allāh Ḵẖān) to reflect (and respect) orthographical difference across South Asia.² To aid the reader, I supplement these original spellings with full transliteration in brackets, acknowledging that access to multiple spellings can be beneficial for some readers. For place-names, I retain the historical spellings (e.g., Bombay vs. Mumbai) but have noted current or conventional spellings in brackets for clarity (e.g., Broach

[Bharuch]).

Other terms (e.g., kazi, kadi, cazy, cauzy, cazee, qazee, qadi, etc.) appear as written when taken from archival sources but otherwise appear according to Persian/Urdu pronunciation (e.g., qazi vs. qadi) in the main text. For terms that have entered the English language (e.g., mufti, begum), I follow Merriam-Webster. All translations from Persian, Urdu, Arabic, and other languages are my own, unless otherwise noted.

British India, showing the presidencies of Bombay, Bengal, and Madras. Created by Jonathan W. Chipman, Dartmouth College.

The Bombay Presidency, showing regions and places of interest. Created by Jonathan W. Chipman, Dartmouth College.

The British Empire, showing the places where laws relating to Muslim marriages were enacted. Created by Jonathan W. Chipman, Dartmouth College.

British India, marking places of interest. Created by Jonathan W. Chipman, Dartmouth College.

Everyday Islamic Law and the Making of Modern South Asia

Introduction

Life, Law, and Legal History

FIGURE 0.1  Front page of the Bombay Chronicle, August 16, 1931, showing Mufti Muhammad Kifayatullah prominently featured in a photo array, along with several other leading members of the ʿulama (scholarly community).

Picturing Law

In August 1931 the Bombay Chronicle published a picture of Muftī Muḥammad Kifāyatullāh (ca. 1875–1952) alongside coverage of the Indian National Congress Working Committee’s recent meetings in Bombay (figure 0.1).¹ Shortly after its publication, a reader of the Chronicle asked Kifayatullah about the photograph.² The reader likely knew about Kifayatullah’s work as an Islamic legal scholar and was perhaps also familiar with the Islamic legal opinions (fatwas; fatāwá) he had written—including fatwas against photography.³ Was the mufti aware that his photograph had appeared in the Bombay newspaper, and did he consider its publication permissible (jāʾiz)? the reader inquired. Drawing attention to the photograph’s unexpected publication, the Chronicle’s unnamed reader called on the mufti to account for his presence in the paper and to make sense of the rules he had seemingly broken.

Two months after the photograph appeared, in October 1931, Kifayatullah addressed the reader’s concerns by writing a fatwa for his own periodical, the Urdu-language newspaper Al-Jamʿīyat, which was published by the organization he headed as president, the Jamʿiyat-ul-ʿUlama-yi Hind (Council of Indian Muslim Theologians): "I consider it impermissible [nā-jāʾiz] to take photos [fōṭō lēnā] or to have photos taken [fōṭō banwānā], he began, before continuing, I did not give anyone permission to take my photo … I also do not know who took this photo or when it was taken.… These days, anyone’s photo might be taken with a

hand[held]

camera [dastī-kaimrōṉ sē] without him even knowing. That is how my photo must have been taken."⁴ More an explanation or justification than an edict or decree, the mufti explained that the publication of his photograph in the newspaper did not mean that he had granted the photographer permission, nor had he agreed to be photographed. Technology made it possible for the photographer to publish the photo without his permission.

Kifayatullah printed this fatwa in the Ḥawādis wa Aḥkām (Incidents and injunctions) column of Al-Jamʿīyat.⁵ It included the reader’s greeting, Honored and respected Mufti, Sir, may your shadow never vanish, and ended with the mufti’s sign-off, "Muhammad Kifayatullah, may God forgive him, Madrasa Amīnīya, Dihlī." Sandwiched between these lines was a brief description of the incident, followed by the mufti’s response to it, presented in the form of a fatwa—a legal question and answer. Rooted in communication networks tied to the vibrant English and Urdu public spheres, the entire exchange represented the new character and contours of Islamic legal discourse in twentieth-century South Asia. It was, in other words, an example of everyday Islamic law. The reader’s question was simple, the mufti’s response straightforward, yet the exchange participated in a wider world of Islamic legal activity in which ordinary individuals (newspaper readers) and legal experts (muftis) played important roles; in which postcards, letters, and telegrams carried their exchanges; and for which expert opinions were as dependent on religious fundamentals as they were on changing circumstances and diverse experiences. In the context of nationalist movements and political change, this exchange stands out not for being unique or extraordinary but for being routine and ordinary. It was, and is, one of thousands of possible examples of everyday Islamic law and legal practice from this period.

Traveling from Bombay, where the Chronicle was published, to the Jamʿiyat’s headquarters in Delhi, the reader’s question tied English-language reporting on political events in one region to a legal opinion published in an Urdu-language newspaper elsewhere. It tied the political activities of the Indian National Congress to the status and reputation of Indian Muslim leaders and the institutions they ran; and it linked Kifayatullah’s writings on Islamic law, photography, and life in British India to the public sphere of English- and vernacular-language newspapers, periodicals, and the broader circulation of information on the subcontinent.⁶ Everyday Islamic law bound together these (and other) activities in an evolving sense of being and belonging in the world—one that was tied up in law but framed by circumstance; that was constant and unrelenting yet commonplace and accommodating; and that drew from time-honored traditions yet was characterized by modern technology and tools. Everyday Islamic Law and the Making of Modern South Asia tells the story of how these practices came into being, how they contributed to the making of modern South Asia, and how they produced the plurality, multiplicity, and possibility that have defined it since then.

Everyday Islamic law refers to a cluster of overlapping and intersecting practices that developed across the nineteenth century in response to the challenges of foreign rule, in conjunction with the rise of technological modernity, and alongside the shrinking of time and space that accompanied the expansion of steam navigation and print communications. Focusing on the social history of law, I use the expression everyday Islamic law to describe the quotidian practices and banal encounters that came to define ordinary individuals’ engagement with and understanding of law. By focusing on the law part of everyday Islamic law, I recognize a common distinction between sharīʿa—divine guidance for correct living—and Islamic law, the earthly and human-driven interpretation of that guidance. Yet the history of everyday Islamic law is about more than simply separating divine guidance from its earthly manifestations and its particular interpretations for a specific time and place. It is also about the rise of the modern, administrative state and its effects on ordinary individuals’ understandings of what law is and the influence it has on their everyday affairs. Teasing apart the legacies of the colonial state, the modern state, and the postcolonial nation-state in South Asian society has been a principal preoccupation among historians of South Asia for decades.⁷ This study builds on that robust literature but does so by shifting the focus away from nationalism and the nation-state to the procedural mechanisms of law and the process of legal change. In this book, then, law is not an object that can be picked up and analyzed outside the social context in which it originates. Rather, law is an amalgamation of strategies and tactics (to borrow from Michel de Certeau’s discussion of the everyday) that come into being when called on to solve problems, settle disputes, or define one’s place in the world.⁸

Law and society scholars use the term legal consciousness to describe ordinary individuals’ engagements with law. On one level, this term encapsulates and reflects lay persons’ ideas about justice and equity—the higher aims and objects of law and the legal system. People go to court because they feel they have been wronged and want the courts to do something about it. They want their neighbor to pay and to prove that they are right and he is wrong.⁹ On another level, legal consciousness refers to the knowledge and wherewithal that ordinary individuals possess about the law—what it means, what it does, and how it works.¹⁰ Sometimes, this knowledge accurately reflects formal legal procedure: if I want to sue my neighbor, I must file this form; if I want to contest my tax bill, I must follow this process. Other times, it does not. In the words of socio-legal scholar Sally Merry, law is a complex repertoire of meanings and categories understood differently by different people depending on their experience with and knowledge of the law.¹¹ The ordinary individuals who populate parts II and III of this book possess this type of knowledge to varying degrees. They (or their relatives, allies, supporters, and adversaries) have some knowledge of what the law is and how it works, but they have gaps, lapses, inconsistencies, and uncertainties in their knowledge.¹² In most cases, they enter the archive—and their experience with legal expertise begins—where their informal knowledge ends.¹³ They also carry with them an interest in doing what is right or just in relation to their circumstances and in relation to what it means to be a good Muslim. Their legal consciousness is not only patchy but also layered.

Along with the story of everyday legal consciousness, this book also tells the story of a rising Islamic legal consciousness in the context of colonial legal pluralism. Legal pluralism—with different laws applied to different groups (citizens/foreigners; adults/children)—has always been a feature of human societies, but beginning in the sixteenth century, European imperial expansion created unique flavors of legal pluralism that have had lasting effects on postcolonial societies.¹⁴ British India’s brand of legal pluralism separated personal, family law from public law (making areas of family law the exception to the general rule of law) and made religion (and religious identity) the basis for legal distinction, beginning with distinctions between Hindus and Muslims but eventually expanding to other communities and becoming a defining feature of South Asian secularism.¹⁵ If everyday law refers to rising legal consciousness in response to the expansion of the modern state, then everyday Islamic law refers to Muslims’ experiences navigating and negotiating British India’s variegated legal terrain as Muslims and in conjunction with Islam.¹⁶

As with the troubles that arise from efforts to disentangle modernity from colonial modernity, the emergence of everyday Islamic law is also bound up in changing definitions of law. Wedded to the idea of the nation and trapped in the framework of written legislation, most efforts to implement Islamic governance today embrace the project of legislating shariʿa.¹⁷ This approach assumes different forms in different contexts, but as critics contend, moving from shariʿa to statute either misses the point of divine guidance entirely or obscures the forest for the sake of the trees.¹⁸ My approach to everyday Islamic law departs from these didactic, prescriptive approaches to focus less on what Islamic law should be and more on how ordinary individuals made sense of what the law was or could be. Each part of the expression thus works in tandem to form everyday Islamic law.

The idea of the everyday gestures toward the quotidian contexts and banal practices that constitute ordinary individuals’ engagements with law.¹⁹ Law, in this framework, is not separate from everyday life. Rather, law and everyday life are mutually constitutive.²⁰ Much the same way Certeau describes the subconscious or semiconscious strategies of planning, preparing, and executing an evening meal, the people who occupy the social history outlined in this book draw on tools that are available to them and knowledge they have accumulated (sometimes formally but often informally) to work toward the aims and objectives they hope to fulfill (defined in part by their needs and also by social context).²¹ In reflecting on Islam in the context of the everyday, Islamic law’s consumers, then, also contribute to the history of secularism and the secularization of British India, recognizing (but not always accepting) the separation of law and politics from religion and family.²² If the everyday refers to practices that are at once conscious and unconscious, prescribed and implied, quotidian and mundane, then the choice to engage with specific legal genres, experts, and fora makes those practices Islamic.²³

While the making of everyday law is tied to the evolution of the modern state more broadly, the specific forms interrogated here reflect the process of making that law distinctly Islamic, as it became part of what defined one’s life in relation to Islam; gave shape to one’s familial, interpersonal, and economic relations; and defined those relationships in terms of being Muslim. It determined how one would live, work, and play in the world. Yet in so doing, everyday Islamic law operated not at the level of diktats or decrees but at the level of conversations, inquiries, dialogues, and debates. Today, with much of the popular discourse portraying Islamic law negatively, newcomers to the field of Islamic legal studies expect to encounter something baffling, terrifying, or even awe-inspiring. Few expect to encounter the quotidian inquiries that ordinary Muslims made or the banal issues that they brought to legal experts, and fewer still expect to find Islamic law expressed in generic forms like letters and newspaper columns. Whereas postcards, telegrams, pamphlets, and printed stationery defined everyday Islamic law in the nineteenth and early twentieth centuries, today one might instead locate it in text messages, email inboxes, YouTube videos, and television programs.²⁴ The modalities change with each generation, but the patterns of ordinary inquiry and quotidian interpretation that characterized Islamic legal practice in the nineteenth century still resonate today, as debates continue over who defines, interprets, and controls Islamic law across parliamentary, political, and institutional forms.²⁵ The Chronicle reader’s inquiry, one of thousands of inquiries that ordinary individuals transmitted in the first half of the twentieth century, was part of this larger process.

Like the Chronicle reader’s exchange with Kifayatullah, everyday Islamic law depended as much on material forms as it did on ideological commitments. Trading in documents, registers, files, and forms, the British East India Company (EIC) bred a fetishization of documentary forms that drew from earlier, precolonial interests in writing, reading, and recording but accelerated under British rule.²⁶ Not only did the Company and Crown governments introduce innumerable laws pertaining to documentation, but they also engaged in acts of reviewing, authenticating, and validating precolonial documents. Colonial law’s emphasis on material forms undergirded and propelled a corresponding turn toward written documents among Islamic legal practitioners, who not only commented on the meanings and implications of the Anglo-Indian legal system’s documentary requirements but also worked to make Islamic legal practice compatible with those demands. The result was a hybrid system of legal activity that adopted the material forms of the colonial state but simultaneously pushed back against that state’s authority.

By this token, technology and materiality are necessarily part of the story here, but they are not its sole point of origin. It would be difficult to imagine everyday Islamic law emerging as it did without the availability or accessibility of increasingly complex documentary forms and the technologies that enabled their production, but the networks of exchange from which they grew and the patterns of migration and mobility on which they relied had antecedents in the precolonial period as well.²⁷ Communications technologies facilitated the exchange of ideas from South India to the north, from East Africa to North India, from Mecca to Meerut, but these exchanges could not have flourished without the broader interest that Muslims took in what their coreligionists over there, in that place, or halfway around the world were doing.²⁸ Likewise, print culture enabled the publication and dissemination of new ideas, but its arrival and availability played only a small role in promoting the cultures of citation, quotation, and accountability that accelerated with its arrival. Scholasticism and an investment in textuality had deep roots in Islamic learning before the arrival of these technologies, though new modalities certainly extended and expanded their reach.²⁹

In addition to drawing on new technologies, everyday Islamic law also emerged from new institutions. These institutions included the ones where students studied and scholars trained, where books were authored and periodicals published, where debates were held and divergent opinions addressed. They were the places where scholars of Islamic law set up offices specifically for the purposes of receiving and responding to legal questions (the dār-ul-iftāʾ, fatwa institute), including the government-sponsored dar-ul-ifta in Hyderabad and the Madrasa Aminiya in Delhi, where Kifayatullah worked. They were newly formed institutes like the Dar-ul-ʿUlum at Deoband (est. 1866), Nadwat-ul-ʿUlama in Lucknow (est. 1891–94), and the Muhammadan Anglo-Oriental College in Aligarh (est. 1875)—all of which borrowed from British models, built on existing Islamic foundations, and grew from established centers of learning like those of the famed Farangi Mahall family.³⁰ They were civic societies and social organizations like the Anjuman-i Islam (Islamic Society) in Mumbai, whose president consulted the government on judicial appointments in 1879; the Anjuman-i Panjab (Punjab Society), which compiled a multipage report in 1880 outlining the status of Islamic judges (qāẓīs) in response to proposed legislation relating to them; and the Anjuman-i Mustashar-ul-ʿUlama (Society of Consulted Scholars) in Lahore, which published a collection of fatāwá using consensus and collective authorship in 1907.³¹ Printing presses and publishers, which Islamic legal practitioners like the qazis in Meerut commissioned to print their marriage registers and like the dar-ul-ifta in Hyderabad hired to print its innovative fatwa forms, were also part of this institutional landscape.³² These institutions gave shape to and made accessible the practice of everyday Islamic law, through the physical offices (daftars, dafātir) they occupied, the written records and registers (daftars, dafātir) they introduced, the routine procedures they employed, and the spaces they created for conversation, discussion, and exchange.³³

By participating in this wider world of everyday Islamic law, the unnamed Chronicle reader was doing more than verifying the substance of the legal question on the permissibility of representing human figures in photographs. He was also thinking about Islamic law in action. Assuming that he was already aware of the mufti’s stance against photography (as the question’s phrasing seems to imply), then he was also checking the general rule’s application to this specific context. In response, the mufti’s reference to these days (āj-kal) was an acknowledgment that context mattered: the rules were not timeless, their application not blind, nor their interpretation eternal. Authoring an answer that reflected the contingency of the moment, Kifayatullah acknowledged the photo’s presence, denied his acquiescence to its publication, and reiterated his general stance against photography. Using the newspaper, printing press, and fatwa form, he, too, contributed to the making of everyday Islamic law.

Legal Practitioners and the Making of Everyday Islamic Law

The everyday Islamic law that developed across the nineteenth century was orchestrated by Islamic legal practitioners and motivated by ordinary individuals. Qazis and muftis, the two groups of professionals under consideration here, each traced their origins back to the time of the Prophet. In their earlier iterations, qazis (qāḍī/qāẓī), a title conventionally translated as judge, Islamic judge, or shariʿa-court judge, supervised the day-to-day administration of justice.³⁴ They were typically appointed by rulers (emperors, sultans, or governors) and were responsible for executing imperial orders and upholding God’s commands on earth. From the outset, however, the qazi’s commitments to interpreting divine will, on the one hand, and to representing the state, on the other, complicated his position.³⁵ Moral duty made it incumbent on appointees to accept their nominations, but everyone recognized the moral hazards of holding a judgeship, owing to the corrupting influence of earthly temptations and rewards.³⁶ Evidence of the judgeship’s putative irreverence is available in sources ranging from Arabic maxims, to the Eurasian folktales that influenced William Shakespeare’s plays, to Max Weber’s critical writings on the despotism of arbitrary kadijustiz (qadi-justice), to the judicial opinions of American jurist Felix Frankfurter (1882–1965).³⁷ Undoubtedly, some assessments of the qazi’s baseness and corruption were true. After all, despite their assignment to uphold God’s will on earth, qazis were human and therefore susceptible to the temptations and pleasures of bodily existence. At the same time, however, many also had long (and successful) careers as ordinary, run-of-the-mill bureaucrats and administrators in Islamic states from Sumatra to sub-Saharan Africa and from Turkey to Tunisia.³⁸ While much work still remains to uncover the granular details of the lives and careers of these imperial agents, studies looking at qazis across the Islamic world have provided historians with a rich picture of what it was like to serve as an Islamic judge.³⁹ For some cases, first-person narratives and the diaries of prominent jurists can supplement the details historians have painstakingly gleaned from the court records (sijills) that imperial qazis left behind.⁴⁰ Yet despite their richness, most of these studies examine the qazi’s role in Muslim states, for the premodern period, or in Muslim-majority states, for the modern period.⁴¹ The history outlined here departs from that scholarship first by looking at qazis in a colonial context and second by looking at the history of the qazi’s office in a Muslim-minority setting.

The qazi, the Islamic state’s judge-administrator, was accompanied by the mufti, its scholar-jurist. Muftis, who qualify for office through their training and expertise in futyā or iftāʾ (resolving legal questions), also have their origins in practices of inquiry and analysis that first emerged during the Prophet’s lifetime and subsequently expanded into a robust practice of legal inquiry, evaluation, and opinion writing.⁴² Where qazis sat in court and heard cases, often involving disputes between two or more parties, muftis occupied more scholastic spaces—schools (madrasas), libraries (kutb-ḵẖānas), and universities. There, they engaged in deep study and intellectual inquiry, plumbing the revealed sources—the Qurʾan (revealed text) and Hadith (recorded sayings of the Prophet)—for insights and employing analytical methods, drawn from logic and philosophy, to determine the application of divine principles to real-world scenarios. They developed systematic means for creating analogies to extend existing principles to new cases and precise methods for evaluating and ranking possible interpretations. They produced scholarly lineages that guided these approaches and facilitated their opinion writing. These lineages eventually became recognized as schools of jurisprudence (maẕhab, pl. maẕāhib). Adherence to or departure from one’s school varies by jurists over time, but in South Asia, the Ḥanafī school has been dominant among the subcontinent’s inland and northern Muslims, while the Shāfiʿī school maintains a robust presence along the southwest coast. Following the traditions of his school shaped a mufti’s approach to legal questions and the sources he might consult to support his answer but did not necessarily dictate it. The making of everyday Islamic law called on muftis to offer shariʿa-minded guidance on a range of new issues and ideas, many of which became legal ideas (as opposed to moral or ethical concerns) in response to colonial legal change.

From the formative period onward, whenever new technologies came into existence, muftis would reason on the basis of their similarity to or difference from existing technologies to determine whether their use was acceptable or unacceptable, laudable or condemnable, or perhaps simply neutral.⁴³ When new crops, foodstuffs, stimulants, social structures, environments, or peoples entered Islamic states, muftis addressed questions of assimilating, tolerating, differentiating, or accepting new goods and peoples in those contexts.⁴⁴ From then until now, muftis have continued to engage with questions of novelty in light of principles and precepts passed down from the Prophet and in line with their own abilities to rationalize, comprehend, engage with, or accept those innovations. Today, with countless online fora and digital media dedicated to interpreting legal issues and offering religio-legal advice in the form of fatwas, it is hard to imagine everyday life unfolding for ordinary Muslims without constant input and guidance from these legal experts.⁴⁵ Thus muftis, who write legal opinions in response to the questions (istiftāʾs) they receive, connect changing contexts and technological innovations to enduring principles of law, morality, ethics, and comportment.

Developments in the nineteenth and twentieth centuries, which form the core focus of this book, not only drove legal change during this period but also made law an everyday object for ordinary Muslims around the world. British India was not the only place in which these changes occurred, but the status of Muslims as a minority made the development of everyday Islamic law on the subcontinent a template for its expression in postimperial, postcolonial, and diasporic contexts today.⁴⁶ Continuity between the responses of Indian Muslims living under British rule and the practice of Islamic law around the world today makes South Asia especially relevant for the study of Islamic legal history—not to mention the fact that India is home to the world’s third-largest Muslim population, even though Muslims constitute only 10 to 15 percent of the country’s total population.⁴⁷ To understand Muslim life in North America and Europe today, one needs to understand the history of Islamic law and legal practice during British rule in India. Indeed, many of the institutions that developed and the debates that played out in that context not only resonate in South Asia today but also reverberate around the world.

The history of Islamic law and legal practice in the colonial period, as in any period, necessitates thinking about qazis and muftis—judges and jurists, practitioners and scholars—together. While one was engaged in adjudication and enforcement, the other dealt with interpretation and ideology. While one evaluated conflicts and disputes, the other considered questions and authored answers. In the simplest setup, qazis would hear testimony and decide cases, while muftis would evaluate points of law and offer legal interpretations. Ideally, the two worked together, with qazis referring legal questions to muftis and muftis offering their answers to aid the qazis’ decision-making, but much of the qazis’ work was likely rote and routine—hearing cases, questioning witnesses, and applying laws—and much of the muftis’ work was highly specialized and sometimes detached from the qazis’ day-to-day activities.⁴⁸

Professionals employed in any legal system today will likely find familiar parallels with the broader patterns of judicial administration and legal inquiry that defined qazis’ and muftis’ everyday activities: While the majority of cases fit routine patterns, giving lawyers and judges little room to experiment with novel arguments or unconventional interpretations, cases that require new approaches or novel arguments are few and far between. Islamic legal practice was (and is) no different. Day-to-day practices are run of the mill; drastic, game-changing developments are rare. What differentiates everyday Islamic law in this analogy, however, is the way that it has been displaced as the legal system for the state and has accordingly had to adjust, to recognize—and to redefine—itself as separate, not as the law of the land but as the law of a particular religious community. In some places, perhaps, this accommodation has been more successful than in others.⁴⁹ In modern South Asia (particularly in India but also in Pakistan, Bangladesh, and Sri Lanka), the process of adjustment and negotiation has been fraught, to say the least. While it is still possible to find qazis and muftis working across the subcontinent, the way they operate and the authority, respect, and recognition they receive change depending not only on the legal issue involved but also on whom one asks. Everyday Islamic Law thus follows the evolution of these individuals’ careers—as private practitioners and as a community of experts—to understand why and how they operate today.

To uncover this history, I draw from material written and produced by qazis and muftis and move away from official colonial narratives. Looking beyond the imperial archive, my analysis draws from two extraordinary collections of records from the nineteenth and twentieth centuries. These collections come from Bharuch (Gujarat) and Meerut (near Delhi) and consist of the unpublished notebooks, registers, and papers from two families of qazis whose lives and work span the precolonial, colonial, and postcolonial periods. Written in Persian and Urdu, and authored and recorded by the chief qazi and his assistants, these records showcase everyday Islamic law in action, and their preservation on microfilm has made them accessible to researchers.⁵⁰ In addition to these unpublished qazi collections, I also draw from the published and unpublished records of South Asia’s most prominent and less well-known muftis. While published, multivolume fatwa collections speak to the breadth and depth of a mufti’s engagement with questions of life and law, unpublished fatwa files, like those from the dar-ul-ifta of the princely state of Hyderabad, complement these publications to provide a detailed picture of Islamic law on the ground.⁵¹ As the files accumulated papers and moved from initial inquiry to final answer, they not only engaged with personnel across the dar-ul-ifta but also moved between offices and through various genres of paperwork and writing. Money orders, memos, certified mail receipts, postcards, and telegraphs came into and were sent from the dar-ul-ifta as its employees worked to solve fatwa seekers’ problems. To understand what law means also requires looking at how law works, and these archives provide that perspective.

These sources, complementary in some places and contradictory in others, paint a picture of law and legal life that often escapes traditional legal histories.⁵² They show how legislation peppered ordinary individuals’ understandings of how they should live and the countless ways in which new acts and regulations created, added to, and augmented their confusion about what the law was and how it applied to them. They reveal in great detail how individuals, and the legal experts they consulted, took the messiness of everyday life—the petty squabbles of rural life, the domestic spats of reluctant couples, and the complaints of ordinary people going about their everyday business under colonial rule—and turned their problems, disputes, and disagreements into written records, legal deeds, authoritative documents, and formal complaints.⁵³ They show that in many cases, different ideas and definitions of law were operating at different levels, that there was often more than one way to solve a legal problem, and that experts frequently contributed different opinions and different types of advice at various stages. To call the whole process messy would be one way to put it, but to think instead about law and legal dispute resolution as framed by diversity and multiplicity offers a more productive framework.

In highlighting the multiplicity that emerges from these records, my discussion untangles these component pieces to distill the main ingredients that went into the making of legal life not for lawmakers, legislators, and colonial officers in London but for railway clerks in Lahore, students in Surat, and traders in Calcutta. At the same time, it draws attention to the fact that there were multiple ideas about Muslim personal law in circulation and multiple understandings of the elements of Islamic jurisprudence (fiqh) that went into its making. Within the formal legal system, legislation provided one means for capturing the spirit of Islamic law in legible rules that everyone could follow, interpret, and apply; this approach was grounded in ideas of legal codification and produced a stultifying, if not inaccurate, portrait of Islam. By contrast, Indian Muslim judges, a cadre of primarily English-educated elites, thought they could open new doorways to authentic interpretation by accessing the untranslated texts of prominent Islamic jurists.⁵⁴ In turn, they would author many of the concurring and dissenting opinions that further defined the limits and reach of Anglo-Muslim jurisprudence.⁵⁵ Outside the formal legal system, an array of Muslims occupied other institutions, engaged in formal and informal legal debate, and worked alongside and against the colonial legal system to resolve their disputes. They petitioned for and promoted new laws and legislative interventions to rectify the colonial state’s construction of Muslim personal law, while at the same time protesting the state’s intervention into religious personal law and criticizing its failure to uphold the principles of religious noninterference. Nonstate legal actors—such as muftis employed in private institutions and community qazis who retained authority in some areas but not in others—also weighed in on how law (sometimes meaning statutes and legislation, sometimes meaning the Qurʾan) should be interpreted. Adjudication under Anglo-Muslim law was thus one of several possible approaches to Islamic adjudication at the time, and even within the framework of Muslim personal law, there were multiple modes and methods for its interpretation and application.⁵⁶ Decentering the role of state law from the narrative of Islamic legal practice and its evolution in British India is one of this book’s main aims.

To complement existing histories of legal pluralism and religious personal law, the narrative I offer creates and excavates an alternative archive of legal information. If law on the books is the companion to law in action, then focusing on law in action requires moving away from the archive of law on the books. Colonial legislation appears in several chapters but is not the primary focus of any of them (with the exception, perhaps, of chapter 3). What the book draws from instead is a library of legal sources that in many cases evaded or stayed below the radar of the formal legal system. For instance, petitions from qazis that never made it to imperial offices in Calcutta or Delhi, let alone to London, offer a unique perspective on who these legal practitioners were and how they viewed the work they performed (see chapters 1–3). They also reveal how real-time decisions contradicted and obscured the larger aims and objectives of British policy. Likewise, fatwa questions and their answers—whether formally published or left unpublished—provide another set of sources for this study. These materials cover much of the substance that made up everyday Islamic law outside and beyond the ambit of colonial legislation and reported cases, but as a body of evidence, they lack the sense of definitiveness that discussions of the law tend to demand. As the discussion in chapter 4 reveals, fatwas contributed to the making of law but did so through collaborative and cumulative processes of affirmation, repetition, and accretion. In histories of lawmaking, such sources provide messy narratives at best and obfuscate any effort to find a clear narrative at their worst. Everyday Islamic Law thus provides a social history of law in society that focuses less on what the law was and more on how ordinary individuals thought the law should work.

Looking at legal history from this perspective forces law as product to fall away and law as process to take over, as divergent voices step in to grapple with what a guideline means or an institution might be authorized to do. It is my hope that the reader will continue to learn about Islam and law and how they shape everyday Muslim life but will also enjoy having the opportunity to peer into the experiences of a family, a community, or a specific jurist to learn not about what Islamic law is or says but about how people called on its practices and principles at specific moments in their lives when looking for an equitable solution or meaningful resolution to the problems they faced. Legal practitioners, the institutions they inhabited, and the people they encountered are the substance of this history, but the ideas they conjure are ones that not only resonated in the past but also continue into the present.

Capturing Change over Time amid Pluralism and Multiplicity

On the surface, the basic contours of Islamic legal practice have remained constant across centuries and wide swaths of the world, but change and differentiation are also evident at multiple levels. While the titles of the qazi and the mufti may have historical connections to precolonial practices and resonances with legal institutions that still exist today (e.g., qazi courts, shariʿa courts, shariʿa councils), shared terminology should neither stand in for shared practices nor signal static, unchanging approaches. The process of approaching a qazi in 1947, when British rule came to an end on the subcontinent, was quite different from what it was in 1847, which again was quite different from what that process was in 1747. Similarly, not only was the process of approaching the mufti, registering a fatwa request, and receiving an answer in 1947 different from what one would have encountered in 1847, but the process was also quite different from what one might expect in 2047. In other words, there may be similarities in abstract terms, but the day-to-day practicalities of calling on legal experts have changed considerably over the past several centuries and continue to evolve. For that reason, the narrative that unfolds here is one that remains aware of history’s dramatic breaks and ruptures while at the same time offering a narrative that allows change to unfold gradually over time. Emphasizing law as process also lends itself to fuzzy chronologies, as processes from earlier periods carried over into later ones, as shifts in interpretation preceded changes in legislation, and as formal breaks in government and politics ignored the continuity of practices on the ground.

A political history of this period might chart a path through the defining moments of British rule, beginning with the EIC’s victory in the Battle of Plassey in 1757 and receipt of the dīwānī rights (right to collect revenue) from the Mughal emperor Shah ʿAlam II in 1765 after the Battle of Buxar and the signing of the Treaty of Allahabad.⁵⁷ The Uprising of 1857 and the Government of India Act of 1858 brought Company rule to an end and ushered in the next phase of political history: Crown rule. Independence in 1947 brought Crown rule to a close, though earlier acts promulgated in the first half of the twentieth century (specifically the 1919 and 1935 Government of India Acts) paved the way for decolonization—a process that for many still continues today. Political history thus provides one way to navigate this period, but the history of everyday Islamic law tends to take place below the momentous frames of political history. That history requires another chronology.

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