The Politics of Islamic Law

Nurfadzilah Yahaya's picture

Welcome to Toronto to those of you at our annual ASLH meeting! Our blogger today is Iza Hussin, Lecturer in Asian Politics and Mohamed Noah Fellow at Pembroke College, University of Cambridge. Her new book, The Politics of Islamic Law: Local Elites, Colonial Authority and the Making of the Muslim State was published by University of Chicago Press earlier this year. Her profile can be found here.



In his book The Impossible State: Politics, and Modernity's Moral Predicament published in 2013, Wael Hallaq argues that “(t)he political, legal, and cultural struggles of today’s Muslims stem from a certain measure of dissonance between their moral and cultural aspirations…and the moral realities of the modern world…realities with which they must live but that were not of their own making.” (3) The ‘impossible state’ that the book explores is the contemporary Islamic state, but the conditions of its impossibility are embedded in the modern state project itself. The book does a great deal in bringing Islamic legal studies and the historiography of law in Muslim states and societies into engagement with debates on the secular modern, sovereignty, and political theology. Reading this work as I was completing the final drafts of my book, The Politics of Islamic Law: Local Elites, Colonial Authority, and the Making of the Muslim State, it struck me that the statement above, and others in which Hallaq sees the rise of the modern state as signalling the “structural death” of the “shari’a episteme” (Hallaq 2009, 15) raised a great number of questions for scholars of Muslim legal history and politics. For Hallaq, the modern state project represented a fatal rupture, but the colonised Muslim rulers, lawyers, judges and bureaucrats I was following through the archives in Malaya, India and Egypt weren’t aware they were moribund. The world they helped make is the world most Muslims live in today; neither the “dissonance” Hallaq diagnoses as afflicting today’s Muslims, nor the power imbalances, are new.

Certainly, my research in British colonial India, Egypt and Malaya shows that state encroachment over institutions of Islamic jurisprudence and adjudication, increasingly rigid approaches to interpretation and codification, and enforcement mechanisms aligned to the interests of a centralising bureaucracy, did spell the takeover and circumscription of Islamic legal institutions by the state. However, even this circumscribed arena provided room and resource for powerful challenges to the colonial state, for continued articulations of the meaning and utility of the shari’a, and in fact for new political and intellectual commitments to the shari’a in the nineteenth and twentieth centuries. The Politics of Islamic Law works to show how these conditions were in fact productive of a range of accommodations and strategies amongst Muslim elites who helped formulate and defend the ideal of a state authorised by its ability to deliver and control Islamic law in a limited domain – family law, personal status, ritual observance.

In Malaya, the sultans articulated their authority in terms of their sovereignty over an autonomous domain of religion and ethnicity; in India, Muslim lawyers, judges and civil servants translated Islamic jurisprudence into the idiom of British colonial law; in Egypt ruling elites chose to ‘modernise’ and ‘Westernise’ in order to maintain their power in the face of colonisation. For each of these groups, the institutional marginalisation of Islam and its elites set into motion a new series of strategic negotiations that made the delivery of ‘Islamic law’ central to the legitimacy of the state.  But this Islamic law was neither fiqh (Islamic jurisprudence) nor shari’a (a divinely guided path of right conduct): in its content, its scope, its logic and its relation to the state, Islamic law was a new construction.

Teasing apart the multiple strands of state, society and law that together constructed the category of Islamic law requires a methodology that looks for the making of law in multiple registers and archives. The Politics of Islamic Law traces the making of Islamic law through the moment of colonial encounter, into struggles over the meaning and extent of colonial intrusion, and through local strategies to capitalise upon colonialism, to translate and redefine Islam and Muslims. This methodology treats archives as artefacts of the colonial encounter, the circumstances of their production contingent and strategic, seeing “documents…(as) mediations, their writers mediators, between the enduring text of shari’a law and the particular events of their world,” and seeking out ways to make sense of “the problematic way documents fit the law to the world, and the world to law” as Brinkley Messick wrote (1989, 26-27). Following Messick, I seek to present a way of reading Muslim politics through a multiplicity of transformations in text, code, and discourse, with an analysis of the institutions and politics that were transformed alongside them. Consequently, each of the book’s central chapters revolves around a different set of artefacts – treaties, trials and representations – each linking discursive, institutional and legal changes in a chain of iterated processes that together produced these transformations. Chapter Three begins with treaties to discuss the wide-ranging ramifications of jurisdictional struggle between local and colonial elites. Chapter Four focuses upon trials in and of Islamic law to tease out the problem of defining law, Islam and Muslim in the developing state, and the strategies and dilemmas of both colonial officials and their Muslim counterparts in the arena of formal adjudication. Chapter Five takes texts of Muslim representation – portraiture, constitutions and publications – to illustrate the ways in which the ‘Muslim state,’ as a condition of being and a governmental formation, elaborated upon and renegotiated the new discourses and institutions of Islamic law.

In each case, the making of Islamic law was a process that consisted of two arcs of transformation: the first was of marginalisation, limiting the latitude and capacity of Islamic legal actors and institutions; the second was of centralisation, through which this newly limited domain of Islamic law was located at the centre of the politics of the colonial state. As Robert Cover reminds us, moments of juris-diction are both jurispathic and jurisgenerative; the treaties, trials and texts in the book make legible multiple, competing and often mutually exclusive juris-dictions – the speech and the logic of Islamic jurisprudence, itself entextualised and embodied in institutions, scholars and discursive logics, against that of British colonial law, a variant of the common law particularly insistent on law’s legibility, codification and rationalisation.  Jurisdictional crises, brought on by efforts at legal centralisation, and by the challenges of new territory, competitors and subjects, helped elaborate the power and language of law, elevating law to being the central guarantor of the Islamic character and legitimacy of the state.

Tariq al-Bishri, the Egyptian jurist and constitutional scholar, commented in his 1996 book The Islamic-Secular Dialogue [Al-Hiwar al-Islami al-‘Almani], “when we look at the closing years of the nineteenth century and the opening years of the twentieth, we are struck by names applied to what they do not mean.”  Transformations in law were accompanied and facilitated through transformations in language and meaning, in processes authored and enacted at least in part by Muslims themselves, in a process where old and new, Western and Islamic, Egyptian and European, came to evoke each other, “names applied to what they do not mean.” ‘Islamic law’ may be one of these names; as we attempt to make sense of Muslim politics in the world today, closer attention to colonial processes and the meanings Muslims make of them, and through them, will no doubt continue to be of critical importance.


Iza Hussin


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