The Shari’ah is best distinguished from Islamic law. Islamic law, usul-al-fiqh, consists of four separate sources: the Qur’an, Hadith, the consensus of the Islamic community and analogical reasoning. The Arabic linguistic definition of Shari’ah is the “path” to water. Shari’ah is the immutable divine will of God and a comprehensive metaphysical philosophy to Muslims, while fiqh is a tool that Islamic jurists have utilised to discern the divine will of God. To Muslims, the Shari’ah governs every aspect of life, from the Muslim cardinal virtues of patience (sabr), trust in Allah (tawakkul), justice, prudence, excellence of worship and action (ihsan), gratitude and charity, to prayer, taxation and governance. The Shari’ah has an immovable role in the lives of Muslims. The Islamic legal school that has dominated the history of South Asia is that of Abu Hanifa. Hanafi Sunni Muslim scholars maintain that the law has a geographic jurisdiction and a personal jurisdiction. This is the legal model of law through which this article will address the transformation of Islamic law from the Mughal Sultanate through to the late British colonial period. This article will focus on the role of the Shari’ah during the Mughal Sultanate and the early British Colonial period in India, critically assessing how the Shariah was used and how its application changed through time.
Islamophobia: A Scourge of Our Time
In an age of unprecedented anti-Muslim lynching and violence against minorities in India, Islamophobic bigotry extends its arms into modern Indian State figures. India’s Chief Minister, Yogi Adityanath, who stated in 2015 that he would (if given the chance) install Hindu idols in every Indian Mosque, is a key example of this. In an undated video from 2014, he stated “if [Muslims] take one Hindu girl, we’ll take 100 Muslim girls. If they kill one Hindu, we’ll kill 100 Muslims”. The first portion of his hate speech referred to “love jihad”, a concept he helped popularise in India which holds the belief that male Indian Muslims secretly plot to deliberately seduce Hindu women with the aim of converting them to Islam. Conspiratorial claims such as these have no statistical backing, but are widely considered to be social norms among India’s political right and far right. Adityanath’s appointment to the position of Chief Minister has contributed to communal tensions in Uttar Pradesh, with his followers once proclaiming their desire to exhume the graves of Muslim women and rape them at a mass rally. If this does not make matters more morally unconscionable and ethically questionable, it has been reported from the interior of Uttar Pradesh that in the run up to the 2014 Indian election, Yogi Adityanath reportedly promised people a Muslim-free India if the BJP were to win. It is my contention that this very same Islamophobic bigotry is projected backwards against the backdrop of India’s Mughal history, through which it is argued that Mughal emperors, namely Aurangzeb, governed solely and specifically to tyrannise India’s Hindu majority. Audrey Truschke claims that the British created the modern legacy of Aurangzeb as a cartoonish bigot, which has included false and blatant selective translations of Mughal history to highlight Aurangzeb’s alleged hatred of his majority-Hindu populace. In connection with India’s modern-day, Muslims are perceived by Hindu Nationalists as the existential and ideological threat to a homogenous Hindu State. Truschke goes on to state that Hindu Nationalists are embarrassed upon reflecting on how India was ruled for so long by a Muslim minority. This is a phenomenon that can often precede the rise of ethnonationalist politics (that does not depend on the phenomenon being factual), such as the change in political sentiments in Weimar Germany following the Treaty of Versailles being signed.[5,6] I ask readers to keep the following quote in mind as both a backdrop of how ahistorical Hindu Nationalism is as an ideological position and how it is used as a weapon against India’s minority groups:
“…troubling to the claims of Hindu nationalism, why was Mughal India characterised by fruitful Hindu-Muslim relations in many areas, including state administration, literature, painting, music, and even religion and spirituality? Instead of admitting the complexity of the past, Hindu nationalists insist that religious oppression must have been the signature trait of Mughal rule.”
The Mughal Sultanate (1562-1858)
The flexible role of the Shari’ah under the Mughal Sultanate harmonised into the social, political and religious conditions of late medieval India through to the end of the pre-Modern period. It is salient to note that the historiography of the Mughal Sultanate is marked by a slight scarcity of qualitative and quantitative primary source documents and materials. A significant portion of the Western historical scholarship of this period has been marked by a large orientalist presence, aimed at criticizing what M. Reza Pirbhai describes as the “rigidity” of Islamic law. This is a claim refuted by primary source material now available from the period. As the successors of the Turko-Afghan dynasties, the Islamic law of the Mughal empire was heavily influenced by the legal and cultural pluralism of their predecessors. The laws of the empire were divided into religious laws, administrative laws, criminal laws and laws applicable to non-Muslim non-citizens that freely moved for trade purposes. The Mughal sovereigns permitted many of the laws and customs of Muslims and non-Muslims to continue without change. For instance, while the judicial structure was based on Islamic traditions, the law permitted that Hindu law be applied by panchayat for issues of marriage and inheritance where they concerned Hindus. The Mughals permitted and near-preserved the public practice of the Hindu ritual sati, the self-immolation of a widow on her husbands’ funeral pyre. However, Islamic law had total precedence over all civil, criminal and contractual disputes in the empire, which were decided by qualified Qadi courts. The Islamic administrative laws of the Mughals were the jus gentium of the empire. Covering justice, finance, the military and revenue, it evolved to become compiled under Emperor Aurangzeb. Led by over 500 experts in Islamic jurisprudence of his time, Emperor Aurangzeb commissioned the Fatawa-e-Alamgiri. It was a legal code that contained Hanafi rulings on topics ranging from family, war and taxation. As noted by Mona Siddiqi, the document was not a fatwa (legal opinion) issued by the Emperor. Rather, it was a text that made constant reference to the earliest Hanafi legal texts and rulings as justification for its instructions without formal procedural codification. For example, it laid out the specific inheritance rights of Muslims, the interpersonal rights and obligations citizens had to one another and went as far as to directly instruct Muslim men to treat their wives justly and honourably. Following the Hanafi doctrine on governance, non-Muslims that lived under the empire were classified as dhimmi’s (protected people) who had to pay a specific tax (jizya) to retain this social status. Contrary to some scholarly and modern political opinion, the Shariah did not tyrannise the non-Muslim majority. Indeed, under Aurangzeb’s rule, numbers of non-Muslim temples were built and funded by the emperor, and he employed significantly more non-Muslims into his imperial bureaucracy than any of his predecessors.[15,16,17] In their administrative oversight, the Qadis and Muftis of the late empire were not obligated to strictly adhere to the Fatawa-e-Alamgiri. For example, at the same time as the creation of the Fatawa-e-Alamgiri, the Farmin-i-Adalat was practiced by Qadis in the then-province of Gujarat. This collection of legal opinions made no distinctions between “hadd” and “ta’zir” criminal punishments and did not enforce the fixed punishments for theft and highway robbery as prescribed by the fiqh and the Fatawa-e-Alamgiri. The Shariah was not practiced as a homogenous set of rules. The Shari’ah had a transient presence through the Mughal period and underwent immense codification during the British colonial era.
British Rule in India (1858-1947)
Following the collapse of the Mughal empire in the 18th century, the East India Company’s influence grew. During this period of legal, cultural and social change, the Shariah was “bureaucratised” by the British. The Hastings Plan of 1772 established a hierarchy of colonial courts that applied generalised “indigenous legal norms” to all Indian citizens regarding marriage, inheritance, religious matters and caste disputes. The English courts ruled on Islamic legal matters to Muslims, and the laws of the “Brahmanic shasters” to India’s Hindus. The Hastings Plan was built upon the notion that the indigenous legal practices of India’s Muslims and Hindu’s could be moulded into British legal procedures and court systems. As Michael Anderson notes, the presumption that a homogenous set of legal rules could apply to all people who identified as Muslim “violated both Islamic theory and South Asian [legal] practice.” The Islamic laws of the Anglo-Muhammadan era became formally textualised. W. H. MacNaghten compiled his “Principles and Precedents of Mohammedan Law” in 1825, in which he attempted to distill over 600 years of Islamic legal scholarship into one “unified rule”. The complex relationship English common law had upon Islamic law in British India is clearly displayed in the Privy Council case Abul Fata v Russomoy . The case concerned whether a waqf (an Islamic charitable endowment) was truly a charitable endowment or whether it aggrandised the family who created it. Led by English judges, the Privy Council ruled that the waqf aggrandised the family, and that their endowment was not charitable by nature. Under English trust law, a charitable endowment could not (and still can not) be made with any other purpose than charity, conflicting with the broader legal position available within Hanafi jurisprudence. The ruling disallowed the Muslim plaintiffs from utilising the Shari’ah for private matters. Anderson notes that the decision was symptomatic of a wider colonial attack on the implementation of Islamic law; the Privy Council viewed the Shari’ah as a hindrance to the growth of the British market economy in India. The decision was met by mass disagreement from India’s Muslims. Led by the advocacy and pressure of Muhammad Ali Jinnah, the later-founder of Pakistan, the Waqf Validating Act of 1913 was passed which overturned the Privy Council’s ruling. The Act gave India’s Muslims common law access to the Shari’ah, letting them make charitable endowments that served charitable and personal purposes. Jinnah’s central aim of passing the act was to restore access to Islamic law in India for India’s Muslims. However, as Anderson notes, the form and purpose of the Shari’ah had become irrevocably shaped by British common law procedures. The textualization and codification of the Shari’ah transformed it into something it had never been before: a fixed body of “immutable rules beyond the realm of interpretation and judicial discretion”. By the final century of colonial rule, the Shari’ah had been completely reshaped by the British administration.
The Shari’ah in the Late Colonial Period
The Shari’ah has an immovable role in the lives of Muslims. The Shari’ah governs every aspect of life, from the Muslim cardinal virtues to prayer, taxation, interpersonal morals and governance. A complex metaphysical science and jurisprudence, its role in South Asia’s pre-modern history has been transient. Although it was flexible and harmonised into the socio-political conditions of the pre-Modern period, the Shari’ah became irreparably codified into a set of homogenous, rigid laws and processes under British rule. The Shari’ah became state-led instead of remaining provincially jurist-led, contrary to teachings of orthodox Islam. The codification of the Shari’ah under British rule became its distinctive feature. The textualization of Islamic law alongside the introduction of the English common law procedures went on to cast over Pakistan’s history, with the nature of its current legal system being an imprecise hybrid of English and Islamic legal traditions. With this said, what is clear is that the complexity of the past ought to be admitted to, especially when so many would seek to mythologise or slander that which they have not studied or interacted with, whether due to hatred, ignorance or for political gain. As commanded to us by Allah and stated by our beloved Prophet ﷺ, “I have forbidden injustice for Myself, and have made it forbidden amongst you, so do not oppress one another”. Our embodiment of justice should not solely reside through our deeds in the present. For the sake of our future and for the future of generations to come, it must continue in our reading, discovery and preservation of the past.
- Shaw, Alison. “Review of Crime and Muslim Britain: Culture and the Politics of Criminology among British Pakistanis by Marta Bolognani,” Journal of Islamic Studies, 2011.
- Ahmad, Atif Ahmad. Islamic Law: Cases, Authorities and Worldview. Bloomsbury, 2017; p 74.
- “Meet the militant monk spreading Islamophobia”, Washington Post, (2017) (https://www.washingtonpost.com/news/global-opinions/wp/2017/03/24/meet-the-militant-monk-spreading-islamophobia-in-india/).
- “A Much-Maligned Mughal”, Aeon, Audrey Truschke (2017) (https://aeon.co/essays/the-great-aurangzeb-is-everybodys-least-favourite-mughal).
- “How the Treaty of Versailles contributed to Hitler’s Rise”, Robert Wilde (2019) (https://www.thoughtco.com/treaty-of-versailles-hitlers-rise-power-1221351).
- 2008 School Projekt Heinrich-Heine-Gesamtschule, Düsseldorf (http://www.fkoester.de/kursbuch/unterrichtsmaterial/13_2_74.html) described as “verletzung der ehre”.
- “A Historiography of Islamic Law in the Mughal Empire”, M. Reza Pirbhai. The Oxford Handbook of Islamic Law (2018).
- Choudhury, M. L. Roy, and M. L. Roy Chowdhury. “PRINCIPLES OF LAW IN THE MUGHAL EMPIRE.” Proceedings of the Indian History Congress, vol. 10, 1947, pp. 367–370., http://www.jstor.org/stable/44137161.
- Defined as, “village council”
- Choudhury, M. L. Roy, and M. L. Roy Chowdhury. “PRINCIPLES OF LAW IN THE MUGHAL EMPIRE.” Proceedings of the Indian History Congress, vol. 10, 1947, pp. 367–370., http://www.jstor.org/stable/44137161.; Badauni, Lowe, op, cit, II, pp. 405-07
- Defined as “law of nations”, “international law”, or “law of the nation”
- Siddiqui, Mona. The Good Muslim: Reflections on Classical Islamic Law and Theology. Cambridge University Press, 2012, pp. 12-16.
- Fatawa i-Alamgiri, Vol 1, p. 381.
- Ahmad, Atif Ahmad. Islamic Law: Cases, Authorities and Worldview. Bloomsbury, 2017, p 74.
- Truschke, Audrey. Aurangzeb: The Life and Legacy of India’s Most Controversial King. Stanford University Press, 2017.
- Ian Copland; Ian Mabbett; Asim Roy; Kate Brittlebank; Adam Bowles (2013). A History of State and Religion in India. p. 119.
- B. N. Pande. Aurangzeb and Tipu Sultan: Evaluation of Their Religious Policies. University of Michigan, 1996.
- Masud, Muhammad Khalid. Religion and State in Late Mughal India: The Official Status of the Fatawa Alamgiri, p. 9.
- Ibid., p.13.
- Gilmartin, Davis. Empire and Islam: Panjab and the Making of Pakistan, p. 13.
- “Islamic Law and the Colonial Encounter in British India”. Michael R. Anderson, 1996.
- The Waqf Validating Act (1913); Ss(3)(a)-(b).
- “Islamic Law and the Colonial Encounter in British India”. Michael R. Anderson, 1996.
- The Jurisprudence of the Codified Islamic Law: Determining the Nature of the Legal System in Pakistan: Zahid Rehman v The State PLD 2015 SC 77. Kamran Adil.
- Reported by Abu Dharr, Ṣaḥīḥ Muslim 2577.
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About the Author: Bharath H. is a writer for Traversing Tradition. He holds a degree in Law (LLB) from the University of Exeter. His interests range from law, history, business and economics, Islam, global politics, and theology. You can follow him on Twitter here.
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