The Rule of Laws, page 36
Despite the ostensible respect for African custom, Roume felt that natives needed a guarantee of the good administration of justice, which he thought only French officials could provide. He ordered that his administrators investigate and record local customs on marriage, contracts, descent, and inheritance and classify them ‘with a clarity they too often lack’. This meant modifying them according to fundamental principles of natural law as ‘the original source of all legislation’. In criminal cases, corporal punishments were to be replaced by prison sentences and the use of ordeals was to be eliminated, so that the processes would ‘conform to the principles of criminal law that apply to all countries, regardless of their level of civilization’.38 The goal of respecting African custom only extended to recognizing practices that conformed to French legal principles.
THE BRITISH IN Africa were, at least initially, less explicit about their ‘civilizing mission’. They established ‘protectorates’ in areas they considered to be without organized government, but they generally took a dim view of indigenous institutions and soon decided they would have to implement new systems of law.39 Administrators instructed local officials to apply English law; they were only to recognize African law in cases arising between Africans, and as long as it was not ‘repugnant’ to English legal principles. The new officials were rarely experienced administrators, and they lacked the resources to introduce elaborate courts and legal procedures. The more junior took up their posts with some trepidation, often feeling isolated and insecure in the African savannah. Unsure about how to keep the peace among Africans, whose lives and conflicts they barely understood, these officials generally meted out justice as they saw fit, trying to judge according to ‘natural justice’. They were endlessly puzzled by Africans’ demands for compensation, instead of punishment, for what they considered to be crimes, including murder. And they were horrified at the use of poison ordeals, which many Africans readily offered to undergo when accused of wrongdoing. Feeling they had to suppress violence, many officials resorted to summary justice, simply telling the local populations that certain things were ‘prohibited’, meting out harsh punishments, and punishing petty infractions, such as ‘wasting time buying food’ or ‘sitting around the fire instead of working’.40 Ignoring African ideas about wrongdoing did nothing to enhance their authority in African eyes.
By the early years of the twentieth century, the British colonial authorities recognized that the ideal of a superior ‘white man’s justice’ was not being realized. Although many officials genuinely tried to implement ‘prompt and efficient justice’, the reality was very different. In Northern Rhodesia (now Zambia), persistent complaints by lawyers persuaded the British government to appoint a Royal Commission. ‘It is the duty of the Government to civilize and maintain peace and good order’, the commission declared, which meant introducing British concepts of wrongdoing. It recommended the sanctions of imprisonment and fines in place of traditional African systems of compensation, since these were accepted by all ‘civilized nations’. But many of the local administrators objected to the commission’s recommendations, realizing that they would mean imposing alien ideas about justice on Africans. Most preferred the idea of ‘indirect rule’ promoted by Lord Lugard, governor general of Nigeria. Lugard characterized native institutions as ‘crude tribunals of primitive pagans’, but he recognized that it was only by supporting them that colonial governments could ensure respect for their own authority.
Lugard’s arguments were heard, and, in 1929, the Native Courts Ordinance granted authority over criminal issues to local African courts. The governments of other British colonies followed suit. In practice, this meant that colonial officials had to recognize the authority of African chiefs, whose status and powers they strengthened in the process. Possibly with the image of a hereditary aristocracy in their minds, they encouraged the chiefs to act as petty monarchs, receiving petitions and dispensing wisdom. But their procedures were hardly legalistic. African petitioners would present their problems and argue about the consequences of events at the same time, invoking notions of right and wrong in the context of particular social relations, rather than trying to use legal principles and questions of fact to reach a reasoned conclusion.41 The African processes had their own logic, but they hardly formed a system of rules that could be put into writing and applied directly, as the local administrators wished.
During the early decades of the nineteenth century, many Africans had been involved in wars, suffered invasions, and participated in the slave trade, all of which had upset traditional power structures, norms, and processes of conflict resolution. Yet the colonial powers talked as if customary African law had a fixed substance which could be formalized into rules and applied in the courts. British officials also expected chiefs to adjudicate on new offences they introduced in regulations on taxation, forestry, sanitation, and agricultural production. Now, the chiefs were forced to consider the regulations separately from the facts of a case, and they began to talk in terms of ‘laws’. Their courts began to consult documents and keep written records. They began to prohibit ordeals and to insist on a distinction between crimes and torts, eventually referring to the idea of mens rea, intent, which had not been important in traditional negotiations for compensation. Without even realizing it, the chiefs were creating a new sort of law on a British model.
Impressed by the Europeans’ military and organizational powers, many members of the African elite decided to support the colonialists’ project to ‘legalize’ the administration of justice. Some district officers and traditional leaders did realize the benefits of a more flexible administration of justice, and debates continued over the wisdom of the new legal projects. But the nationalist leaders who campaigned for independence generally argued that African law should be applied in ‘proper’ courts and objected to the idea of a two-tier system.
By the 1960s, when many of the former British colonies had achieved independence, representatives of the new countries met in Dar es Salaam to discuss the role and jurisdiction of their courts.42 The delegates agreed that ‘customary law’ should continue to be a significant part of their legal systems, but they confirmed the importance of creating a ‘unified’ body of laws. These laws would integrate African customary law with the rules and procedures they had inherited from the colonial administrations. Implicit in their conclusions was the assumption that African customary laws still survived, in much the same form as they had taken in the past, and that they could be recorded and integrated seamlessly into the new structures of government. But, as in India, this was to assume that historical and traditional systems were much closer to European forms than they ever had been.
India and Africa were not the only territories in which colonial administrations struggled to understand, record, and apply indigenous laws. In the twentieth century, legal scholars in Dutch-controlled Indonesia persuaded their colonial government to record, recognize, and apply the local law, ‘adat.43 This effectively formalized and fixed what had been a shifting set of customs, practices, and norms. No less important for that, it was hardly a good basis for colonial administration. And when an independent Indonesia eventually established its national legal system, it followed the models introduced by the Dutch colonialists, with only faint recognition of the ancient systems of ‘adat which had shaped—and still shape—the lives of indigenous populations.
THROUGHOUT THE WORLD, colonial projects to record and apply local laws were supported by local elites who embraced the new projects of government. The existence of law had by now become an important marker of development, so no one wanted to deny that their ancestors had had their own laws, even if they were not written down. This meant that they effectively had to create a new type of law, which they called ‘customary’, or ‘traditional’, out of the fluid norms and practices that had characterized traditional systems of government.
Even in India, with its ancient and sophisticated legal traditions, the local elite soon embraced European ideas about law and government. Among the first casualties of the East India Company’s activities were members of the Mughal ruling classes, who saw their world turned upside down after the grant of the diwani. ‘Every heart was aflame with grief and every eye brimmed with tears’, as one Muslim poet put it. Hindu intellectuals saw the seizure of power by ‘white faced upstarts’ as heralding a new age of demons.44 Turning around the language of the British to critique the project of their colonial overlords, the Indian Muslim preacher Shah Ismail Shahid declared that those who acted without regard for the shari‘a or for custom were ‘despots’. But resourceful Indians learned to live with the new political order, and high-caste Bengali Hindus were able to profit from the new framework of landed property rights, entering the world of commerce and trade and sending their sons to acquire an English education in Calcutta. Many supported the British in their wars with Napoleon, and one Indian, Ram Mohun Roy, born in 1772, launched an ambitious and influential movement to reform traditional Indian practices such as widow-burning. In the long run, familiarity with English ideas about rights and liberty gave Indian nationalists the confidence to stand up to personal indignities and complain that the privileges of English law were confined to the ruling classes. From the early nineteenth century, they consistently used the language of law and rights in their agitation for self-determination.45
In all these ways, European colonial powers introduced new social and political ideas into their territories, and these continued to shape the postcolonial constitutions, especially in the hands of an indigenous elite keen to participate in the emerging international order. The new nation-states had clearly bounded territories, languages, religious conventions, and their own laws. Behind it all lay ideas about universal progress and an international order that recognized the ‘comity of nations’, a concept emphasizing mutual respect for laws in a world of equal political entities. With this model, European forms of government, law, and property rights took hold in the far more fluid and segmented societies that had formed the civilizations of Asia and Africa.
During the twentieth century, these ideas became so dominant that new states and postcolonial regimes around the world turned to European models of law. Even those that had not been colonized chose the French Code Civil as the basis for new legal systems, which they hoped would allow them to participate more readily in the new economic and commercial order. Postcolonial states in Latin America had already adopted European models. Brazil’s laws were largely derived from the Portuguese, and these, in turn, influenced Argentina. Meanwhile, the Chilean Civil Code of 1855 was based on the Napoleonic code and the Spanish Siete Partidas, along with elements of canon law. Japan’s nineteenth-century Meiji constitution was based on a German (Prussian) model, and Thailand’s constitutional monarchy, established in 1932, replaced laws derived from the Hindu Dharmashastras with codes based on civil law principles. Similar developments took place in the countries that emerged from the quasi-colonial protectorates of the Middle East which had been established after the fall of the Ottoman Empire in the early twentieth century. Even China, which resolutely followed its own path under Mao, eventually adopted legal forms and practices that essentially followed European forms. As China developed its economy and engaged in international commerce in the late twentieth century, its leaders found they needed laws that international partners could understand. The longest lasting of the ancient legal systems had finally given way to a European model.
THE LAWS THAT the European powers exported and imposed around the world were primarily instruments of government designed to support new colonial administrations, regulate commerce, and impose order on large populations. Officials may have paid lip service to the ancient laws of India and the customs of Africa, but they could only recognize those that would fit into their new bureaucratic structures. Morality and religion, and with them, the sophisticated religious laws of the Hindus, Jews, and Muslims, as well as the more fluid and negotiated processes used by many Africans to resolve disputes, largely became confined to a separate realm.
But the colonial project was not an entirely pragmatic one. Europeans felt they needed to justify their activities, and they did so by making claims about the transformations their laws would bring about: efficient administration, private property regimes, individual rights, and the rule of law. It was a promise of civilization. Rulers of the states that later gained their independence, and even those that had never been colonized, eventually came to accept this model of law, turning their backs on centuries of sophisticated legal scholarship and the dynamics by which their own predecessors had maintained order. By the late twentieth century, most had adopted European models and taken their seats at the United Nations. But this form of law, powerful as it was, did not totally eclipse all that had preceded it.
CHAPTER FOURTEEN
IN THE SHADOW OF THE STATE
Islamic Law in the Modern World
By the end of the nineteenth century, the rising European states were promoting a new international order. The ‘Great Powers’, led by France and Britain, had established systems of bureaucratic government, law, and landholding in their colonies and dependencies, where governors were supposed to promote ‘civilized’ regimes. In India, the rules of the Dharmashastras and the authority of the brahmin pandits were reduced to matters of ‘personal law’, codified and applied in specialist family courts. Even the Chinese legal system was swept away when the Nationalist government overthrew the remnants of the Qing dynasty in 1911, and Mao’s communist regime finally turned its back on all vestiges of imperial law in the 1950s.
But Islamic law was not so easily overcome. By the early twentieth century, the great Muslim empires had largely disintegrated, along with their networks of courts, judges, and jurists. Ottoman sultans, Egyptian leaders, and Iranian shahs had all embarked on extensive reform programmes, with modernity and European examples in mind. But the scholars had not lost all status and influence. In fact, the twentieth century saw a resurgence in appeals to the shari‘a and calls for return to government by Islamic law. Muslim-majority states throughout the Middle East and North Africa still claim to recognize Islamic law, while political movements hostile to westernized forms of government, including the Muslim Brotherhood in Egypt and the Wahhabis of Saudi Arabia, have called for its strict application.
Observers and scholars have debated whether these political movements are trying to implement anything that could truly be called ‘Islamic law’, and most doubt that an Islamic state is even a possibility.1 The problem faced by those trying to implement Islamic laws is that the shari‘a was never wholly, or even partly, a state system. Its scholars, the ulama, distanced themselves from the control of political rulers. They pronounced fatwas and advised judges, but they regarded themselves as morally superior to state-appointed officials. In practice, people observed the shari‘a in many areas of their daily lives, where the rules and principles of Islamic law, the fiqh, mingled with local customs and practices. Here, social regulations were barely distinguishable from the rules of morality and ritual requirements, which mediators invoked as they sought pragmatic and effective solutions to people’s disputes. These practices have been disrupted by state-building and the introduction of new courts and laws, and contemporary governments struggle to incorporate them into state structures. But in many settings shari‘a courts continue to hear family disputes and Islamic scholars retain their authority. And the most charismatic continue to foment popular movements, even revolution. Islamic law is still a force to be reckoned with.
BETWEEN THE FIFTEENTH and eighteenth centuries, the Safavid, Mughal, and Ottoman rulers generally treated one another with respect, corresponding in Persian and following accepted protocols and customs. The Ottoman Empire had its origins in Anatolia, where Oghuz Turkic tribes had established a base in the fourteenth century.2 When he captured Constantinople in 1453, Mehmed the Conqueror embarked on a period of imperial expansion, which his successors extended into Central Asia and North Africa. The ancient cities of Mecca, Medina, and Jerusalem had all fallen under Ottoman sway by 1517, and their leaders persuaded the Abbasid caliph to move to Constantinople. The Ottoman sultans quickly realized that in order to secure popular legitimacy, they needed to co-opt the Islamic religious scholars, the Hanafi ulama. So they channelled substantial resources into the madrasas, effectively centralizing religious education in Constantinople. The chief mufti, the sultan’s adviser, retained the power to declare that an unfit ruler should be deposed, something that did occasionally happen, but the sultans could claim to be upholding the justice of the shari‘a.
The rules of the fiqh, Islamic law, had taken shape almost a millennium earlier in the deserts of Arabia, however, and they hardly provided the legal resources needed by a rising military power. So, in the sixteenth century, Suleiman the Lawgiver, known in the West as ‘the Magnificent’, issued a raft of new laws. His kanun, from the Greek canon, provided rules and penalties on highway robbery, theft, injury, homicide, adultery, usury, taxation, and land tenure, and he established administrative courts. Suleiman was careful to obtain approval from the ulama, and his new rules confirmed many aspects of Islamic law, but they necessarily remained distinct from the shari‘a. Suleiman also appointed a chief qadi to every major provincial town, granting him authority to adjudicate legal cases, including complaints against government officials. He was trying to ensure a more standard application of both his kanun and the shari‘a.
