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Rethinking the Nineteenth-Century Domestication of the Sharīʿa: Marriage and Family in the Imaginary of Classical Legal Thought and the Genealogy of (Muslim) Personal Law in Late Colonial India

Published online by Cambridge University Press:  23 October 2017

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Abstract

This article situates the ‘personal law’ in late colonial India in the nineteenth-century genealogy of the idea of ‘family law.’ In doing so, it also looks at a case between Indian Muslim spouses before the judge and Islamic modernist Syed Mahmood. Involving the doctrine of the restitution of conjugal rights, the case was conducted in the shadow of a question about whether marriage was a status or contract that had a much wider resonance in the late nineteenth-century Anglo-common law world. The overall goal of the article is to critically reconsider a common view about legal modernization in the long nineteenth-century Islamicate world as a process of domesticating the Islamic sharīʿa tradition to the sphere of family affairs and personal status. Working along a distinct path from other new scholarship that is moving past this thesis, I suggest that domestication should be seen as part of what some have called the globalization of classical legal thought after 1850. Because the era of domestication continued to be an important point of reference for later exponents of political Islam the article also argues that seeing the categories of personal law and family law genealogically has implications for the problem of translation that has often made scholars reticent about striking an equivalence between ‘Islamic law’ and sharīʿa (or beyond the Islamicate world, between ‘modern law’ and Afro-Asian juridical tradition).

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Law and History Review , Volume 35 , Issue 4 , November 2017 , pp. 841 - 879
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Copyright © the American Society for Legal History, Inc. 2017 

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Footnotes

The author is grateful to all those who have provided feedback on this article or earlier versions of it in the Departments of History and South Asia Studies at the University of Pennsylvania as well as the University of Pennsylvania Law School's legal history writing group and Harvard Law School Institute for Global Law and Policy Conference's “Islamic Law and Empire” mini-conference.

References

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2. Ibid., 151.

3. The controversy is exhumed in exhaustive detail in Chandra, Sudhir, Enslaved Daughters: Colonialism, Law and Women's Rights (Delhi: Oxford University Press, 1998)Google Scholar.

4. For the larger trajectory of conjugal restitution cases from the 1840s, see Faisal Chaudhry, Legalizing the  Normative: The Historical Ontology of Law's Rule in British India and the Globalization of Classical Legal Thought, 1757-c. 1920 (PhD diss., Harvard University, 2011, UMI No. 3491957), ch. 8. Other key cases in this lineage included Ardaseer Cursetjee v. Perozeboye ([1856]  6 M.I.A. 348) and Moonshee Buzloor Ruheem v. Shumsoonnissa Begum ([1867] 11 M.I.A. 551).

5. The most well-known example is the controversy around the 1985 Indian Supreme Court decision in Mohd. Ahmed Khan v. Shah Bano Begum. The controversy around the Shah Bano case has been extensively discussed. See, for example, Larson, Gerald James, ed., Religion and Personal Law in Secular India: A Call to Judgment (Bloomington: Indiana University Press, 2001)Google Scholar.

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8. For a more sustained discussion of how I am construing the term “Islamism” see Section I.

9. The way in which I am using the term “ontologization” is related to the work of Ian Hacking. See his Historical Ontology (Cambridge, MA: Harvard University Press, 2002)Google Scholar.  On the so-called “ontological turn” in social theory more generally, see for example Paleček, Martin and Risjord, Mark, “Relativism and the Ontological Turn within Anthropology,” Philosophy of the Social Sciences 40 (2013): 3–23 Google Scholar.

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12. Halley and Rittich, “Critical Directions in Comparative Family Law,” 775.

13. For some recent discussions see, for example, Ayoob, Mohammed, The Many Faces of Political Islam: Religion and Politics in the Muslim World (Ann Arbor: University of Michigan Press, 2009)Google Scholar; Martin, Richard and Barzegar, Abbas, eds., Islamism: Contested Perspectives on Political Islam (Stanford: Stanford University Press, 2010)Google Scholar; and Shehata, Samer S., Islamist Politics in the Middle East: Movement and Change (New York: Routledge, 2012)Google Scholar.

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15. The teleological nature of the concept of Islamism exacerbates a tendency that is already at work in more generic terms such as “fundamentalism,” especially when used as a common (mis-)translation for the diverse family of so-called modern salafi ideologies. On salafism, see Lauzière, Henri, “The Construction Of Salafiyya: Reconsidering Salafism From The Perspective Of Conceptual History,” International Journal of Middle East Studies 42 (2010): 369–89Google Scholar.

16. See Chaudhry, Faisal, “Revisiting Hallaq's Sharīʿa: Between Legal Orientalism and a Rule of Islamic Law,” Journal of Islamic Law & Culture 15 (2014): 44 Google Scholar.

17. These two sources, in particular, are sometimes fashioned as the sources of the sharī ʿa proper. According to this view, fiqh refers to the output by which its additional content is extrapolated from the sources of the sharī ʿa proper––in a possibly fallible or otherwise mutable way. At the same time, conceived as a way of extrapolating the ostensibly more derived content of the sharī ʿa, fiqh jurisprudence is supposed to be conducted in accord with its proper uṣūl or roots. That these roots include sources of sharī ʿa proper, such as the Quran, leads one back to the circularity problem that is at the heart of the Islamic tradition's own way of self-fashioning the sharī ʿa as an all-encompassing norm order.

18. It is the latitude allowed to the operationalization of such nontextual sources that constitutes one of the primary differences among the various schools (madhhabs) of Islamic jurisprudence. It also provides the basis for the pluralism that scholars now so often attribute to the historical sharī ʿa tradition. See, for example, Jackson, Sherman, “Legal Pluralism Between Islam and the Nation-State: Romantic Medievalism or Pragmatic Modernity?” Fordham International Law Review 30 (2006): 163–71Google Scholar.

19. The conduct of ijtihād is, therefore, said to depend on observing principles, for example, such as those for striking analogies (qiyās) in a proper way and those for properly arriving at conclusions on the basis of something closer to utilitarian grounds of “public interest” (istiṣlāḥ). In calling istiṣlāḥ––or counterpart concepts such as juristic preference (istiḥsān)––constraints on reason, the point is not to rule out that they may also have made greater latitude in resorting to the free exercise of reason possible, especially as the centuries went by. The matter is admittedly complex. To make too much of the constraining effect is to risk falling into the orientalist trap of envisioning the sharī ʿa as static, unchanging, and lacking in any real practical/social relevance. (For a recent study that focuses on the latitude such principles allowed see Ibrahim, Ahmed Fekry, Pragmatism in Islamic Law: A Social and Intellectual History [Syracuse, NY: Syracuse University Press, 2015)])Google Scholar. Without attempting to resolve the complexity here, two points are worth making. First, making too little of the role of principles such as istiṣlāḥ and istiḥsān in their capacity as constraints on reasoning processes is also problematic. To do so is to fail to see the way in which the development of uṣūl al-fiqh discourse during the formative period in the development of the sharī ʿa tradition was clearly driven by a discernible wariness about the free conduct of interpretive reasoning, as evidenced in the steady narrowing and increasingly negative connotations of the term raʾy (opinion/personal judgment). This is why more elaborate theories of qiyās and concepts such as istiṣlāḥ and istiḥsān came to be developed in the first place. Second, the extent to which such principles functioned historically mainly as constraints on rather than as means of widening the latitude for interpretive reason is not necessarily important for conceptualizing “Islamism” as a modern phenomenon. This is because Islamist projects are hardly detained by whatever was or was not historically the case. Moreover, the ostensibly backward-looking stance that tends to define Islamist dispositions lends itself to envisioning the original Muslim community as the paradigm for all future generations. It is in this last respect that Islamist projects have so often seemed to overlap with salafist-projects more generally, both being back-to-basics ethics that privilege “revelation” over “reason.” Finally, it is worth noting that one meaningful way to distinguish more vociferously Islamist movements from earlier forms of Islamic modernism may be on the grounds of the extent to which principles such as istiṣlāḥ and istiḥsān are regarded, as they often were in the early twentieth century, as means for modifying and transforming the sharī ʿa. Certainly, this feature of past modernist projects has become an important factor in precipitating a more explicit and staunchly Islamist counter-politics, with the effort to expand ijtihād beyond its historical limits all too easily accused of being clumsy or outright disingenuous. The issue is discussed in Hallaq, Sharī ʿa, 448–50.

20. By “Austinian” I mean to distinguish the historiographically more trenchant sense of the term positivism as the will of the sovereign from the philosophically less rudimentary sense. See, for example, Green, Leslie, “Legal Positivism,” in The Stanford Encyclopedia of Philosophy, ed. Zalta, Edward N. (Fall 2009)Google Scholar http://plato.stanford.edu/archives/fall2009/entries/legal-positivism. Accessed August 13, 2017.

21. See, for example, El Fadl, Khaled Abou, Reasoning with God: Reclaiming Shari'ah in the Modern Age (London: Rowman & Littlefield, 2014), xxxii–xxxiii Google Scholar (distinguishing sharī ʿa as “a way or path to well-being or goodness” from “Islamic law” as “the Islamic legal system” that has existed for some fourteen centuries in the form of “institutions, determinations and practices” and distinguishing both from “Muslim law”). For Hallaq's (not unproblematic) way of sorting these terms see Hallaq, Wael B., The Impossible State: Islam, Politics, and Modernity's Moral Predicament (New York: Columbia University Press, 2013), 23–33 Google Scholar.

22. For examples of inconsistency consider El Fadl, Reasoning with God, xxxiii–xxxiv; and Hallaq, Sharī ʿa, 361.

23. The term kadijustiz is Max Weber's. See Swedberg, Richard and Agevall, Ola, The Max Weber Dictionary: Key Words and Central Concepts (Palo Alto, CA: Stanford University Press, 2005), 136–37CrossRefGoogle Scholar.

24. Robert Gleave, “Introduction,” in Norman Calder, Islamic Jurisprudence in the Classical Era, ed. Colin Imber, (New York: Cambridge University Press), 2–3.

25. Reference to Islam's “nomocratic” order appear explicitly in Jackson, “Legal Pluralism Between Islam and the Nation-State”; and Hallaq, Wael, “Can the Sharia Be Restored?” in Islamic Law and the Challenges of Modernity, eds. Haddad, Yvonne Yazbeck and Stowasser, Barbara Freyer (New York: AltaMira Press, 2004), 42–43 Google Scholar. Effectively equivalent assertions are also frequent. See, for example, Feldman, Noah, The Fall and Rise of the Islamic State (Princeton: The Council of Foreign Relations, 2008)Google Scholar.

26. Hallaq, The Impossible State, xiii.

27. Ibid., 2.

28. For a not atypical, if still tonally scathing review of The Impossible State that sees little of what is suggested here, see, for example, Odeh, Lama Abu, “Book Review of Wael Hallaq, The Impossible State: Islam, Politics, and Modernity's Predicament ,” International Journal of Middle East Studies 46 (2014): 216–18Google Scholar.

29. Hallaq, Sharī ʿa, 351–370.

30. See, for example, Kugle, Scott, “Framed, Blamed and Renamed: The Recasting of Islamic Jurisprudence in Colonial South Asia,” Modern Asian Studies 35 (2001): 257–313 Google Scholar; Odeh, Lama Abu, “Modernizing Muslim Family Law: The Case of Egypt,” Vanderbilt Journal of Transnational Law 37 (2004): 1075–97Google Scholar; and Cuno, Kenneth, Modernizing Marriage: Family, Ideology, and Law in Nineteenth- and Early Twentieth-Century Egypt (Syracuse, NY: Syracuse University Press, 2015), 123–84Google Scholar.

31. See, for example, Varisco, Daniel Martin, Reading Orientalism: Said and the Unsaid (Seattle: University of Washington Press, 2006)Google Scholar; Irwin, Robert, For Lust of Knowing: The Orientalists and their Enemies (Penguin 2007)Google Scholar; Marchand, Suzanne L., German Orientalism in the Age of Empire: Religion, Race, and Scholarship (New York: Cambridge University Press, 2009)Google Scholar; Hall, Bruce S., A History of Race in Muslim West Africa, 1600–1960 (New York: Cambridge University Press, 2011)CrossRefGoogle Scholar; and Mantena, Rama, The Origins of Modern Historiography in India: Antiquarianism and Philology, 1780–1880 (New York: Palgrave, 2012)Google Scholar.

32. Benton, Lauren, “AHR Forum: Law and Empire in Global Perspective, Introduction” American Historical Review 117 (2012): 1093 Google Scholar. For a recent monographic exemplification of such a focus, see Ibhawoh, Bonny, Imperial Justice: Africans in Empire's Court (New York: Oxford University Press, 2012)Google Scholar.

33. See, for example, the various articles collected in Mawani, Renisa and Hussin, Iza, eds., “Special issue on Travels of Law: Indian Ocean Itineraries,” Law and History Review 32 (2014): 733–889 Google Scholar.

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38. See, for example, Mehta, Uday Singh, Liberalism and Empire: A Study in Nineteenth-Century British Liberal Thought (Chicago: University of Chicago Press, 1999)Google Scholar.

39. See, for example, Fitzmaurice, Andrew, Sovereignty, Property and Empire: 1500–2000 (New York: Cambridge University Press, 2014)CrossRefGoogle Scholar.

40. Sartori, Andrew, Liberalism in Empire: An Alternative History (Oakland: University of California Press, 2014), 7 Google Scholar. On a distinct but still related note, see also Stephens, Julie, “The Politics of Muslim Rage: Secular Law and Religious Sentiment in Late Colonial India,” History Workshop Journal 77 (2014): 45–64 CrossRefGoogle Scholar.

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43. Sartori, Liberalism in Empire, 7–8.

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46. See, for example, Sharafi, Mitra, “A New History of Colonial Lawyering: Likhovski and Legal Identities in the British Empire,” Law and Social Inquiry 32 (2007): 1059–94Google Scholar; and Banerjee, Sukanya, Becoming Imperial Citizens: Indians in the Late Victorian Empire (Durham, NC: Duke University Press, 2010), 116–49Google Scholar.

47. For Kennedy's view in general, as well as others, see note 11.

48. Kennedy, Duncan, “Savigny's Family/Patrimony Distinction and its Place in the Global Genealogy of Classical Legal Thought,” American Journal of Comparative Law 58 (2010): 831–32Google Scholar.

49. Chaudhry, Legalizing the Normative.

50. On the notion of legal consciousness, as meant here, compare Silbey, Susan, “Legal Consciousness,” in Cane, Peter and Conaghan, Joanne, eds., New Oxford Companion to Law (New York: Oxford University Press, 2007)Google Scholar; and Silbey, Susan, “After Legal Consciousness,” Annual Review of Law and Social Science 1 (2005): 323 Google Scholar.

51. Halley and Rittich, “Critical Directions in Comparative Family Law,” 757.

52. See, generally, Halley, “What is Family Law: A Genealogy, Part I.” The foundation of Halley's view can be found in Kennedy, The Rise and Fall of Classical Legal Thought.

53. Halley, “What is Family Law: A Genealogy, Part I,” 8.

54. Mitchell, Timothy, Rule of Experts: Egypt, Techno-Politics, Modernity (Los Angeles: University of California Press, 2002), 4 Google Scholar.

55. Halley, “What is Family Law: A Genealogy, Part I,” 2.

56. It is Durkheim who was the most visible early figure highlighting—albeit on evolutionist grounds—the emergence of the “conjugal family.” See Durkheim, Emile, “The Conjugal Family,” reprinted in Emile Durkheim on Institutional Analysis, ed. Traugott, Mark (Chicago: University of Chicago Press, 1978), 229 CrossRefGoogle Scholar.

57. See, generally, Sturman, Rachel, The Government of Social Life: Liberalism, Religious Law, and Liberalism (New York: Cambridge University Press, 2012)Google Scholar. On the postcolonial complications surrounding the “jointness” of the Hindu family, its “undivided” nature, and its identity as a “coparcenary” see Newbigin, Eleanor, The Hindu Family and the Emergence of Modern India: Law, Citizenship and the Emergence of Modern India (New York: Cambridge University Press, 2013)Google Scholar.

58. Indrani Chatterjee, “Introduction,” in Unfamiliar Relations: Family and History in South Asia, ed. Indrani Chatterjee (New Brunswick, NJ: Rutgers University Press ), 3–4.

59. Chatterjee, Partha, “Colonialism, Nationalism and Colonialized Women: The Contest in India,” American Ethnologist 16 (1989): 623–24Google Scholar.

60. Chatterjee, “Introduction,” 4 quoting Sarkar, Tanika, Hindu Wife, Hindu Nation: Community, Religion, and Cultural Transformation (New Delhi: Permanent Black, 2001), 197Google Scholar. For a different critique of Partha Chatterjee's inner/outer distinction see Banjerjee, Himani, “Pygmalion Nation: Towards a Critique of Subaltern Studies and the ‘Resolution of the Women's Question,’” in Of Property and Propriety: The Role of Gender and Class in Imperialism and Nationalism, ed. Bannerji, Himani, Mojab, Shahrzad, and Whitehead, Judith (Toronto: University of Toronto Press, 2001), 34–84 Google Scholar.

61. Chatterjee, “Colonialism, Nationalism and the Colonialized Women.”

62. See Sarkar, Hindu Wife Hindu Nation, ch. 2, especially at 39–45.

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66. Ibid., 8.

67. Newbigin, The Hindu Family and the Emergence of Modern India, 94. On the “nuclearization” of the “joint” family, see Denault, Leigh, “Partition and the Politics of the Joint Family in Nineteenth-century North India,” Indian Economic and Social History Review 46 (2009): 27–55 Google Scholar.

68. Washbrook, David, “Law, State and Agrarian Society in Colonial India,” Modern Asian Studies 15 (1981): 669 Google Scholar. See also Sturman, The Government of Social Life, which, while accented differently, largely follows Washbrook's view on this matter and others about the law's political economic imperatives.

69. Washbrook, “Law, State and Agrarian Society in Colonial India,” 670–73, 698, 712; and Sturman, The Government of Social Life, ch. 3, especially at 113–35.

70. See, generally, Birla, Ritu, Stages of Capital: Law, Culture and Market Governance in Late Colonial India (Durham: Duke University Press, 2009)Google Scholar.

71. Halley, “What is Family Law: A Genealogy, Part I,” 2.

72. Müller-Freienfels, Wolfram, “The Emergence of Droit De Famille and Familienrecht in Continental Europe and the Introduction of Family Law in England,” Journal of Family History 28 (2003): 32–33 CrossRefGoogle Scholar.

73. Watson, Alan, “The Structure of Blackstone's Commentaries,” The Yale Law Journal 97 (1988): 808 CrossRefGoogle Scholar. For a competing account of Blackstone's attempt at organizing the common law, see Kennedy, Duncan, “The Structure of Blackstone's Commentaries,” Buffalo Law Review 28 (1978–79): 205–382 Google Scholar. Although I call these accounts “competing,” only Watson's is staged as a refutation. Without denying its general merits, however, it is hardly the negation of Kennedy's striking reading that it adverts to be. (Compare, for example, Watson's assertion about Kennedy's argument in Watson, “The Structure of Blackstone's Commentaries,” 802, with Kennedy's actual argument in Kennedy, “The Structure of Blackstone's Commentaries,” 227.)

74. Halley, “What is Family Law: A Genealogy, Part I,” 46.

75. Ibid., 37.

76. Ibid., 64, 72. See also Halley, Janet, “What is Family Law: A Genealogy, Part II,” Yale Journal of Law & Humanities 23 (2011): 204, 206–9Google Scholar.

77. Halley, “What is Family Law: A Genealogy, Part I,” 66.

78. Dyer, Adair, “The Internationalization of Family Law,” University of California Davis Law Review 30 (1996–1997): 625–29Google Scholar (explaining that “[i]n practice, English domicile came closer to the European concept of nationality, since upon departing from an acquired domicile the person automatically reacquired her or his original domicile”).

79. See, for example, Washbrook, “Law, State and Agrarian Society in Colonial India”; Cohn, Bernard, “Law and the Colonial State in India,” in History and Power in the Study of Law: New Directions in Legal Anthropology, eds. Starr, June and Collier, Jane F. (Ithaca, NY: Cornell University Press, 1989), 131–52Google Scholar; Mani, Lata, “Contentious Traditions: The Debate on Sati in Colonial India,” Cultural Critique 7 (1987): 119–56Google Scholar; Parker, Kunal, “Observations on the Historical Destruction of Separate Legal Regimes,” in Religion and Personal Law in Secular India: A Call to Judgment, ed. Larson, Gerald James (Bloomington: Indiana University Press, 2001), 184–99Google Scholar, especially at 184–85; Sturman, The Government of Social Life; and Newbigin, The Hindu Family and the Emergence of Modern India, 4–5. See, also, the articles in Newbigin, Eleanor, Denault, Leigh, and De, Rohit, eds., Indian Economic and Social History Review: Special Issue on Personal Law, Identity Politics, and Civil Society in Colonial South Asia, 46 (2009): 1–130 Google Scholar; and Kolsky, Elizabeth, ed., “Forum: Maneuvering the Personal Law System in Colonial India,” Law and History Review, 28 (2010): 973–1065 Google Scholar.

80. The view from bifurcation is evident both in older work (see, e.g., Anderson, Michael R., “Classifications and Coercions: Themes in South Asian Legal Studies in the 1980s,” South Asia Research 10 [1990]: 158–77Google Scholar) and more recent (see, e.g., Chandra Mallampalli, “Escaping the Grip of Personal Law in Colonial India: Proving Custom, Negotiating Hindu-ness,” in “Forum Maneuvering the Personal Law System in Colonial India,” Law and History Review, 1044).

81. For reservations compatible with this observation––that also provide independent basis for hesitance about the traditional thesis of domestication––see Wilson, Jon, The Domination of Strangers: Modern Governance in Eastern India, 1780–1835 (Basingstoke: Palgrave McMillan, 2008)Google Scholar.

82. Under clause 23, “Questions concerning Inheritance, Marriage, Caste” were to be “settled agreeably to the dictates of the Koran or Shaster”––a formula later adjusted to also include all “other religious usages, or institutions.” See Warren Hastings, “Plan for the Administration of Justice,” August 15, 1772, reprinted in Jones, M.E. Monckton, Warren Hastings in Bengal, 1772–1774 (New York: Oxford University Press, 1918), 324–26Google Scholar.

83. This was stipulated in section 17 of Lord North's famed Regulating Act of 1781 (21 Geo. III c. 70). See Rankin, George, Background to Indian Law (Cambridge: Cambridge University Press, 1946), 9–10 Google Scholar.

84. See, for example, Baillie's, John A Digest of Mohummudan Law According to the Tenets of the Twelve Imams, 4 vols. (Calcutta: 1805)Google Scholar and, most importantly, Hamilton, Charles, trans. The Hedaya or Guide: A Commentary of the Mussalman Laws (London: T. Bensley, 1791)Google Scholar.

85. Macnaghten the younger's companion text to his Principles and Precedents of Hindu Law was the best example in the context of the concern over the administration of Muslim laws. See his Principles and Precedents of Moohummudan Law (Mirzapore: 1825)Google Scholar.

86. See, for example, Rumsey, Almaric, Moohummudan Law of Inheritance and Rights and Relations Affecting it: Sunni Doctrine (London: W.H. Allen, 1880)Google Scholar; Wilson, Roland Knyvet, An Introduction to the Study of Anglo-Muhammadan Law (London: W. Thacker and Co., 1894)Google Scholar; Mulla, Dinshah Fardunji, Principles of Mahomedan Law (Bombay: Thacker & Company, 1905)Google Scholar; Rahman, A.F.M. Abdur, Institutes of Mussalman Law: A Treatise on Personal Law (Calcutta: Thacker Spink & Co., 1906)Google Scholar; Husein, Syed Karamat, A Treatise on Right and Duty: Their Evolution, Definition, Analysis and Classification According to the Principles of Jurisprudence Being a Portion of the Muhammadan Law of Gifts (Allahabad: 1899)Google Scholar; Rahim, Abdur, The Principles of Muhammadan Jurisprudence According to the Hanafi, Maliki, Shafi'i, and Hanbali Schools (London: Luzac Company, 1911)Google Scholar; Robertson, Alfred Julius, The Principles of Mahomedan Law, with an Appendix Tracing the Growth of Personal Law (Rangoon: Myles Standish, 1911)Google Scholar; Tyabji, Faiz Badruddin, Principles of Muhammadan Law (Bombay: D.B. Taraporevala Sons, 1913)Google Scholar; and, generally, the works of Syed H.R. Abdul Majid.

87. See, for example, Mayne, John D., A Treatise on Hindu Law and Usage (Madras: Higginbotham, 1878)Google Scholar. Much of this literature was geared toward highlighting the colonial state's failure to grasp the customary foundations of Hindu law. See Nelson, J.H., A View of the Hindu Law As Administered by the High Court of Judicature at Madras (Madras: Higginbotham, 1877)Google Scholar and Nelson, James Henry, Prospectus of the Scientific Study of the Hindu Law (London: C.K. Paul & Co., 1881)Google Scholar; and German Julius Jolly's contribution to 1896's Grundriss der Indo-arischen Philologie und Altertumskunde (Encyclopedia of Indo-Aryan Research, which was translated in 1928 under the title of Hindu Law and Custom, Calcutta: Greater India Society) and Outlines of an History of the Hindu Law of Partition, Inheritance and Adoption (Calcutta: Thacker, Spink & Co., 1885)Google Scholar.

88. Sir Wilson, Roland Knyvet, A Digest of Anglo-Muhammadan Law (London: W. Thacker, 1895)Google Scholar.

89. The relationship is more extensively detailed in Chatterjee, “Amir Ali's Interpretation of Islamic Law.”

90. Maine, Henry, Ancient Law: its Connection with the Early History of Society, and its Relation to Modern Ideas (London: J. Murray, 1861), 170 Google Scholar.

91. Ali, Syed Ameer, The Personal Law of the Mahommedans According to All the Schools (London: W.H. Allen, 1880), 124–25Google Scholar.

92. Report of the Fourth Law Commission, 1879, V/26/100/12, par. 32 (emphasis added).

93. Albeit in the contemporary context (and while contrasting legalization with outright delegalization) Frances Olsen has pointed to this same potential in positions about family law reform in the United States. See Olsen, Frances, “The Family and the Market: A Study of Ideology and Legal Reform,” Harvard Law Review 96 (1983): 1497–578Google Scholar.

94. Halley, “What is Family Law?: A Genealogy, Part I,” 3.

95. Holland, Thomas Erskine, The Elements of Jurisprudence (Oxford: The Clarendon Press, 1880), 165 Google Scholar.

96. Halley, “What is Family Law?: A Genealogy, Part I,” 2.

97. Ibid.

98. As noted at the outset, neither the Parsi nor subsequent cases can be discussed here in detail. For an overarching treatment of classical legal thought's role in the longer history, see Chaudhry, Legalizing the Normative, ch. 8. On conjugal restitution more generally, see Chandra, Enslaved Daughters; Agnes, Flavia, “Women, Marriage and Subordination of Rights,” in Community, Gender and Violence: Subaltern Studies XI, eds. Chatterjee, Partha and Jeganathan, Pradeep (New York: Columbia University Press, 2000), 106–37Google Scholar; Sylvia Vatuk, “‘Where Will She Go? What Will She Do?’ Paternalism toward Women in the Administration of Muslim Personal Law in Contemporary India,” in Religion and Personal Law in Secular India, 226–50; and Anagol, Padma, The Emergence Of Feminism In India, 1850–1920 (Burlington, VT: Ashgate, 2005), 181–218 Google Scholar.

99. For a sustained account of his life, see Alan M. Guenther, Syed Mahmood and the Transformation of Muslim Law in British India (PhD diss., McGill University, 2004), 80–82.

100. See, for example, Scott Kugle, “Framed, Blamed and Renamed.”

101. By the present, scholars have a considerable track record in registering dissatisfaction with the reform versus revivalist dichotomy. See, for example, Jalal, Ayesha, Self And Sovereignty: Individual And Community In South Asian Islam Since 1850 (New York: Routledge, 2000)Google Scholar and Zaman, Muhammad Qasim, The Ulama in Contemporary Islam: Custodians of Change (Princeton: Princeton University Press, 2002)Google Scholar.

102. See Metcalf, Barbara Daly, Islamic Revival in British India: Deoband, 1860–1900 (Princeton: Princeton University Press, 1982)Google Scholar; and Robinson, Francis, The ’Ulama of Farangi Mahall and Islamic Culture in South Asia (London: C. Hurst, 2001)Google Scholar.

103. It is often maintained that the very purpose of deferring (part of) the dower is for it to become payable only on divorce or the husband's death. The way Mahmood evoked the distinction between prompt and deferred dower in Abdul Kadir, however, did not depend on attributing to the mahr muakhkhar this kind of defining purpose. For more on the prompt/deferred distinction in Hanafi thought see Esposito, John and DeLong-Bas, Natana J., Women in Muslim Family Law (Syracuse, NY: Syracuse University Press 2001), 24 Google Scholar.

104. Abdul Kadir v. Salima, 151.

105. Ibid.

106. Ibid., 154–55 quoting Sircar, Shama Churun, The Muhammadan Law: Being a Digest of the Law Applicable Especially to the Sunnís of India (Calcutta: Thacker, Spink, and Co., 1873), 291 Google Scholar.

107. Abdul Kadir v. Salima, 155 quoting Baillie, Neil B.E., Digest of Moohummudan Law, 2nd ed. (London: Smith, Elder & co., 1875), 4 Google Scholar.

108. Atiyah, The Rise & Fall of Freedom of Contract, 1–4.

109. See, for example, Grant Gilmore, The Death of Contract (Columbus, OH: Ohio State University Press), ch. 1; Atiyah, The Rise & Fall of Freedom of Contract, chs.1–9; and Kennedy, The Rise and Fall of Classical Legal Thought, 157–241. Even those such as the illustrious Alfred William Brian Simpson––who criticized views emphasizing a move from contracts to general principles of contract––do not deny that there was a major shift by the mid-nineteenth century. See, for example, Simpson, A.W.B., “Innovation in Nineteenth Century Contract Law,” Law Quarterly Review 91 (1975): 247–78Google Scholar.

110. Hassan., Hussein “Contracts in Islamic Law: The Principles of Commutative Justice and Liberality,” Journal of Islamic Studies 13 (2002): 257 Google Scholar.

111. See Hamid, M. E., “Islamic Law of Contract or Contracts,” Journal of Islamic and Comparative Law, 3 (1969): 1–11 Google Scholar. The point is one Joseph Schacht also insisted upon in his Introduction to Islamic Law (New York: Clarendon Press, 1964), 144 Google Scholar.

112. Holland, The Elements of Jurisprudence, see note 95.

113. The most important earlier conjugal restitution case among Muslims was Moonshee Buzloor Ruheem v. Shumsoonnissa Begum, 11 M.I.A. 551 which reached the Privy Council in 1867.

114. Abdul Kadir v. Salima, 155.

115. Ibid., 171.

116. Ibid.

117. Anagol, The Emergence of Feminism In India,183. It is worth mentioning that as Anagol notes, statutorily speaking, this “rearguard action” by husbands was pursued through what were, by midcentury, actually two distinct kinds of suits for conjugal rights. The first came to be eventually embodied in Article 35 of the Second Schedule of Act XV of 1877. Such suits were for the restitution of conjugal rights proper and were available to both husbands and wives. The second type, however, was available only to husbands. In this class of cases, the husband would bring suit for the recovery of his wife on the basis of Article 34 of the same Schedule by claiming that she was being harbored by another with ill intent.

118. The point brings to mind Max Weber's famed switchmen metaphor. See Weber, Max, “The Social Psychology of the World Religions,” in From Max Weber: Essays in Sociology, ed. Gerth, H.H. and Mills, C. Wright (New York: Oxford University Press, 1946), 267–301 Google Scholar, at 280 (noting that “[n]ot ideas, but material and ideal interests, directly govern men's conduct. Yet very frequently the ‘world images’ that have been created by ‘ideas’ have, like switchmen, determined the tracks along which action has been pushed by the dynamic of interest”).

119. See, for example, Foucault, Michel, The Birth of the Clinic: An Archaeology of Medical Perception (New York: Routledge, 2002 [1969])Google Scholar and Discipline and Punish: The Birth of the Prison (New York: Vintage Books, 1995 [1975])Google Scholar.