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

allowed to obtain under what he must have seen as an efficient state discipline. His voice echoed Hastings’ complaint that Islamic law was irregular, lacking in efficacy and “founded on the most lenient principles and on an abhorrence of bloodshed.” 3 (Ironically, these colonial perceptions of Islamic law have been diametrically reversed since the 1970s.)
    Thus between 1790 and 1861 Islamic criminal law was gradually replaced by its British counterpart, so that by the latter year no trace of Islamic criminal law was being applied. As one historian perceptively noted,
     
British justice [in India] turned out to be far more draconian – in practice as well as in principle – than Islamic justice had been, resorting much more frequently to capital punishment, and much less often to community-based methods of enforcement and reconciliation . . . [TheEIC] was far more concerned with public order, and with the specific use of the law to protect its own trade and commerce as well as authority, than was the old regime. 4
     
    Another fundamental change caused by the creation of Anglo-Muhammadan law and its translated texts was therigidification of Islamic law as a whole, a rigidification intensified by the adoption of the doctrine of stare decisis (the obligation of courts to follow the uncontroversial previous judicial decisions of higher courts). This doctrine could have evolved in Islam, but for a good reason did not. The Sharia assigned legal expertise and, more importantly, ijtihad ic authority to the mufti andauthor-jurist, not to the qadi who, while possessing more or less the same amount oflegal knowledge as did his British counterpart, was deemed insufficiently qualified to “make” law.Linguistic andlegal interpretation was the very feature that distinguished Islamic law from modern codified legal systems, a feature that permitted this law to reign supreme in, and accommodate, such varied and diverse cultures, sub-cultures, local moralities and customary practices as those which flourished in Java, Malabar, Madagascar, Syria and Morocco. But insofar as judicial practice was concerned, the bindingness of a ruling according to the specifically British doctrine of precedent deprived the qadi of the formerly wider array of opinions to choose from in light of the facts presented in the case. Once a determination of law in a specific case was made binding, as would happen in a British court, the otherwise unceasing interpretive activities of the Muslim mufti andauthor-jurist were rendered pointless, both in law and in the life of the community.
    Enshrining in Anglo-Muhammadan law a doctrine of stare decisis in effect transformed the sources oflegal authority altogether. Instead of calling upon the school principles and the juristic authorities whose props were the dialectics of textual sources and context-specific social and moral exigencies, the Anglo-Muhammadan lawyer and judge were forced to look to thehigher courts, and the higher courts in turn to thePrivy Council, which sat in London, not Delhi or Bombay. The Council was remote not only geographically but also from the real concerns of the colonized natives.
    Be that as it may, during the second half of the nineteenth century a major displacement of Anglo-Muhammadan law was effected, especially after the transforming effects of the1857 Rebellion. The 1860s and 1870switnessed the abolition of slavery, as well as the Islamic laws of procedure, criminal law and evidence. All these were superseded byBritish laws enacted by statute. By the end of the century, and with the exception offamily law and certain elements of property transactions, all indigenous laws had been supplanted by British law. But all this was introduced piecemeal, answering, in an ad hoc and generally incremental manner, the growing anxiety of the British to exercise control over their Indian subjects, especially after the events of1857 and in a world where London ruled directly, rather than