The story of Islamic law in colonial India is one dominated by top-down narratives of how colonial state legal institutions and reforms reshaped Muslim legal culture. The institutional embodiment of this transformation is the hybridized Anglo-Muhammadan law, which attempted to codify Islamic law by fusing it with English common law principles. Modeled after earlier transformations in legal procedure, the British goal was to promote legal pluralism by granting autonomy to India’s religious communities, but under centralized state adjudication, thus removing the flexibility of earlier legal cultures. Elizabeth Lhost’s Everyday Islamic Law and the Making of Modern South Asia tells the story of these transformations, but through a bottom-up “social history of law” (3) that centers the practices and writings of local legal practitioners like judges (qāẓīs) and private legal specialists (muftīs) as well as everyday Muslim litigants. In essence, Lhost seeks to explain not what the law was but how ordinary individuals thought it should be.
The book’s key concept is “everyday Islamic law,” which Lhost defines as “quotidian practice and banal encounters” (3) at a particular jurisprudential site: personal or family law. Using the “everyday” as an analytic, the author shows how Muslim personal law was not just the product of the state. Rather, competing definitions of personal law by nonstate legal actors played an equal role in shaping its contours. As Lhost explains, “Everyday Islamic law gives voice to ordinary Muslims with run-of-the-mill problems . . . who were not always looking for the most accurate answer . . . but . . . [rather] for the answer that would work for them” (20). Lhost’s utilization of the “everyday” draws on the French thinker Michel de Certeau, effectively shifting the focus from Bourdieu’s idea of “habitus” to de Certeauian discourse on “strategies and tactics.” This conceptual shift allows Lhost to demonstrate how everyday Muslims actively critiqued, negotiated, and absorbed the law.
Lhost’s book follows a tripartite structure marked chronologically by three developments for legal pluralism in colonial India: the Hastings Plan of 1772, the Queen’s Proclamation of 1858, and the Shariat Application Act of 1937. The first three chapters deal with state administration of Islamic law following the Hastings Plan using records from the home department and judicial and legislative offices in the Bombay Presidency. Lhost shows how the Hastings Plan overemphasized and essentialized textual sources in the administration of legal practice at the expense of indigenous interpretive legal mechanisms. As Lhost contends, the Hastings Plan’s conceptualizations of communal difference in legal pluralism essentially “whitewashed local difference and diversity for the sake of simplifying judicial practice” (26) while simultaneously making communal categories more concrete.
The rest of part 1 focuses on state appointments and management of qāẓīs in the Bombay Presidency, showing how qāẓīs played a key role in colonial expansion as state legal agents with ties to local communities. However, the perpetual refashioning of and confusion over the position of the qāẓī in British India underscores how “entanglements” (33) emerge between religion and state even as the latter professes religious neutrality. Lhost is astute in pointing out how British noninterference reinforced the secular divide between religion and politics, with the office of the qāẓī symbolizing how shari’a and state law became mutually dependent. This interdependence, then, continues to complicate how Muslim personal law is interpreted and adjudicated today.
Part 2, marked by the Queen’s Proclamation in 1858, offers profiles of private muftīs to show how the law operated beyond courtrooms and positive legislation. Lhost shifts the geographical focus in chapters 4, 5, and 6 to North India and the Deccan, where key institutional and technological developments, such as printing presses, madrasas, and fatwa institutes, played a pivotal role in contesting colonial constructions of personal law. Lhost illustrates how the Queen’s Proclamation signaled a shift to legal codification and a new venue for determining correct Muslim practice: the courts. But as Lhost shows, questions about Islam did not just play out in the courts but also in the public sphere. For instance, muftīs and other nonstate legal actors relied less on “black-and-white” (115) colonial definitions and considered the nuances and complexities of religious identity in answering questions of correct Islamic practice that the courts were ill-equipped to answer.
Moreover, Lhost shows how fatwa-writing challenged the hegemony of state law and how institutions like the Dār al-Iftā’ interacted with qāẓī courts, often resulting in conflicts. Despite the shift to legal formalism and the judicial supremacy of state legal institutions, Muslim litigants used private nonstate venues like the Dār al-Iftā’ to remedy their legal problems more creatively. Fatwa-writing essentially provided litigants with an alternative legal pathway when the courts failed them. Muslim practice, then, was shaped through the interactions, negotiations, and contestations between formal and nonformal legal actors and venues.
Part 3 focuses on the Shariat Application Act of 1937 and its effect on ordinary Muslims. Despite the significance attributed to the Act by Muslim jurists, Lhost lays bare the secular nature of this legislation in its reduction of shari’a to personal law while using “the mechanisms of state law to make shari’a the source of that law” (197). Chapter 7 concerns renewed court efforts to displace qāẓīs and the adverse local responses engendered by those efforts, while chapter 8 illustrates the continuities in law between the colonial and postcolonial state.
Everyday Islamic Law is a unique contribution that demonstrates the author’s dexterity in Islamic and South Asian studies. Methodologically, Lhost’s descriptive approach allows her to uncover the multiple layers of and inter-penetrations between formal and informal law-making. Particularly unique is her attention to interactions between fatwa institutes and qāẓī courts and how entanglements between shari’a and state law impact everyday litigants. One minor criticism is that the book’s structure sometimes makes it difficult to track how discontinuities in legal culture occurred during the Mughal to British transition. For instance, how did the Mughals handle qāẓī claims differently and how were gaps in legal adjudication filled prior to evolutions in legal genres like fatwa-writing? Overall, Everyday Islamic Law is an erudite and granular account of South Asian legal history that shifts the lens from the state and nationalism to everyday litigants who were equal participants in the construction of Muslim legal life.
Adam Z. Matvya is a PhD student in history at the University of Notre Dame.
Adam Matvya
Date Of Review:
April 4, 2023