Free An Introduction to Islamic Law by Wael B. Hallaq Page A

Hastings the creation ofcodes or what he termed a “complete digest of Hindu and Mussulman law.” 1 The justification for the creation of such an alien system within Islamic law rested on the claim that this law was unsystematic, inconsistent and mostly arbitrary. The challenge thus represented itself in the question of how to understand and legally manage native society in an economically efficient manner, which in part shaped Jones’ ambition of constructing a system that offered “a complete check on the native interpreters of the several codes.” 2
    Hastingswas impressed by Jones’proposal. Before long, he commissioned thetranslation of a handful of classical Islamic legal texts into English, the immediate purpose of which was to make Islamic law directly accessible toBritish judges who deeply mistrusted the native Muslim legists advising them on points of law. Furthermore, the British thought that reliance on these few texts would reduce the likelihood of juristic disagreement, for them the source of much detested legal pluralism. The texts were concise enough to qualify as codes.
    As it happened, these translations largely succeeded in codifying Islamic law – for the first time in its history. Through this act of translation (and codification), the texts were also severed from their Arabicate interpretive and commentarial tradition, which meant that they ceased to function in the way they had done until then. There were at least three dimensions to this process. First, through this act, the British in effect disposed of the Muslimjurists and mufti s who had served in the system and who were its backbone. Second, Islamic law was slowly transformed into astate law, where the legal and judicial independence of the socially grounded legal profession was displaced by the corporate and extra-social agency of the modern state. And third, the law was simultaneously being changed to resemble, if not to be,English law.
    Yet another consequence of undertaking the translations was the suppression ofcustomary law, whose elimination was intended to streamline (or homogenize) the otherwise complex and complicated legal forms with which the British had to deal. At the same time, Islamic law was deprived of one of its mainstays: the communal and customary laws that were entwined with the Sharia on the level of application. Thus the very act of translation uprooted Islamic law from its interpretive-linguistic soil, and, at one and the same time, from the native social matrix in which it was embedded, and on which its successful operation depended.
    The law that emerged out of the application byBritish judges of these translatedlaws became known asAnglo-Muhammadan law, a designation that reflected a heavily distorted English legal perspective on Islamic law as administered to Muslim individuals. It may even be argued that Anglo-Muhammadan law at times involved the forceful application of English legal precepts as Islamic law, such as the highly subjective notions of “justice, equity and good conscience.”
    Furthermore, Anglo-Muhammadan law was no less affected by British perceptions of governance, themselves heavily derived from the intractable connections between law and themodern state. For instance, GovernorsHastings andCornwallis (1786–93) both rejected, as did their British counterparts elsewhere, the entire tenor of the Sharia law ofhomicide on the grounds that this law granted private, extra-judicial privileges to the victim’s next of kin, who had the power to decide on meting or not meting out punishment (ranging from retaliation, to payment of blood money, to pardon) as they saw fit. This right, they held, was the exclusive preserve of the state which, by definition, had the “legitimate” right to exerciseviolence. Reflecting an entrenched state-culture of monopoly over violence, Cornwallis further argued that too often criminals escaped punishment under the rule of Islamic law, a situation that would not be