An Introduction to Islamic Law (25 page)

Nonetheless, the
Qajar legal reforms – if they can be called that at all – were ineffective. Compared with the Egyptian and Ottoman reforms, they cannot be said to have started in earnest until the reign of
Reza Shah (1925–42). The reason for this was the fact that Iran was difficult to centralize. Between the collapse of the Safavids in 1732 and the consolidation of the Qajars in 1794, the country had enough time to fall prey to multiple competing tribal chieftains who aspired to general control. The Qajars arrived in the midst of this scene, and were too weak to bring the chieftains under their control. Their fiscal system also adopted the abhorrent practice of selling tax-farming offices to the highest bidder who, to recuperate the high fees, had to extort taxes at the price of depleting local resources. Peasants and all tax-paying subjects developed a great deal of resentment and distrust of the ruler.

The problem of
decentralization and the severe lack of government control were further aggravated by the rise, not only of
chieftains, but also of powerful
Shi
i legists who stepped in to fill the vacuum. Beginning with
Isma
il (r. 1501–1524), the
Safavid shahs had proclaimed themselves representatives of the hidden
Imams, thus investing themselves with attributes of infallibility and divine authority that embraced both the political and the legal realms. Neither the Qajars nor any of their political competitors made such religious or legal claims, thereby creating a void. Replacing the religious powers of the Safavid shahs
, the Shi
i legists
stepped in and proclaimed their own divine representation on behalf of the Imams, thus complementing the exclusively temporal competence of the Qajars. After the decline of the Safavids, but certainly by the rise of the Qajars, Twelver-Shi
ism developed a grass-roots constituency, standing apart from the ruler and his government
. The
fatwa
s of the great legists (the
mujtahid
s) could therefore pronounce any imperial decree invalid with impunity, and for such acts it was easy for these
mujtahid
s to garner massive support from their followers, namely, the majority of the population that had been overly burdened by excessive taxation and maltreatment.

The ulama thus continued largely unperturbed in their control over the judiciary and education, and the nascent secular schools – unlike the new Ottoman and Egyptian schools – were ineffective in producing a Westernized elite that would form a cadre sufficient to push for reform. Whereas hundreds of thousands of new bureaucratic positions opened in the wake of applying Ottoman and Egyptian
centralization policies (thus permitting the formation of new reform-minded generations), the Qajar bureaucracy – which barely reached the outskirts of the capital – was too small to accommodate even the relatively few graduates of the new, secular schools. Real reform had thus to await the end of the first quarter of the twentieth century
.

In July 1830, a French naval expedition captured Algiers, beginning an extraordinarily brutal occupation that was to last for no less than a century and a quarter. It would not be until a decade after this conquest that the occupation forces were able to extend their power beyond the littoral and into the interior of what is today known as Algeria. But the French were very quick to use the law as a tool of conquest, and the Algerian experience provides a supreme model of the use of raw legal power to accomplish colonialist objectives. What made the Algerian case an especially intense colonial experiment were such crucial facts as: (1) the French perceived themselves as replacing the Ottomans as masters of a colony that had never enjoyed a sovereign status – in effect, what had belonged to the Ottomans now belonged to them; (2) a large, and in time powerful, French population settled in this colony as permanent residents, claiming it as their land; (3) France, in time, began to harbor a design to claim the country, not as a colony, but as an integral part of France; and (4) the French settlers continued for decades to exercise tremendous pressure on their Paris government to facilitate their commercial ambitions by granting them land or by permitting them to purchase real property from the natives on a large scale.

Thus, while the colonial interest in the Ottoman Empire was to penetrate the local consumer markets, in Algeria the French interest was direct appropriation and exploitation of the agricultural and mineral resources of the country. The problem, as the French saw it, was that too many Muslims lived in the country and, what is more, that these natives somehow possessed all the lands coveted for commercial exploitation. As genocide involving a population of over 2 million natives was – at least at the time – not a practical option for the colonial authorities, freeing the land from the grip of the natives by other means dominated all considerations, in the legal field no less than in the political.

The coveted
land happened to be under various types of ownership, all regulated by Islamic law. In addition to freehold title and state land, there was the all-important
waqf
land (known in North Africa as “
HABOUS
”) which alone constituted no less than one-half of all arable land. The latter, as elsewhere in the Muslim world, also formed a substantial part of non-landed real property, especially religious and educational institutions, as well as residential buildings. By hook or by crook, the French settlers managed to amass a good deal of property deriving from the
waqf
domain, sparking what became a common practice for many natives who were beneficiaries of the endowments, i.e., suing for restoration of the sequestered property to its original
waqf
state.

During the first year of conquest, France had already declared the entire colony, including
habous
or
waqf
lands, as belonging to the public domain. In 1844, the
habous
were confiscated and the administration was charged with the task of funding the religious and educational endowments and their employees. (This
centralizing act – simultaneously depleting the income of these endowments – was nearly identical to the
waqf
centralization policy adopted by the Ottomans in 1826 and thereafter.) Furthermore, disputes over illegally seized
waqf
property had just been resolved in 1840 when a decree retroactively declared all property in the hands of the
colons
, whether acquired lawfully or not, to be lawfully owned by its colonial usurpers. Deprived of their
waqf
income and support, the legitimate Muslim beneficiaries were left to fend for themselves.

By 1844, all aspects of
property law in the Shari
a were replaced by French law, which by design was made to facilitate the commercial ambitions of the settlers. Further steps toward this goal – and specifically toward forcing the
waqf
properties onto the open market – were taken when, against every principle in Islamic law, all
waqf
property was deemed to be, legally speaking, alienable. Nevertheless, the Muslim natives generally refused to sell or buy
waqf
property, rendering this policy somewhat ineffective.

The legal fray that accompanied the
habous
appropriation, as well as the attendant political and military policies that undergirded that dispute, were not the domain of politicians alone. French lawyers, jurists and academicians who knew anything useful about North Africa (and some who knew very little) began to discourse on matters legal and otherwise. Many of them were
colons
who were mostly both scholars and civil servants, and who often became involved in the colonialist administration of justice. After the middle of the century, they began to produce what became a massive bulk of legal literature about Islamic law in its North African context, especially about the theory and practice of the dominant
Maliki school. (This literature, it is worth noting, was to become an integral part of Western scholarship on, and therefore Western knowledge of, Islam.) Certain of these writings acquired an academic guise but some were in the nature of legislation, exemplified in the so-called
Code Morand
. This juridical and legislative body of discourse came to be known as the
droit musulman
-
algérien
, somewhat cognate to, but larger in scope and academic interest than, the British colonialist notion of
Anglo-Muhammadan Law.

Like their British and Dutch counterparts, French Orientalists – co-founders of the field of Islamic legal studies – proved to be quite helpful in the implementation of the government’s and settlers’ policies. As far as
habous
was concerned, for instance, the French administration attempted
to control the religious endowments through a series of legislative enactments, aided along the way by the French Orientalists who “campaigned to discredit the institution among the Algerians themselves.”
⁹

This campaign, if not struggle, to “conquer minds” was as essential a project for the colonists as any material conquest. And much of this project revolved around the production of cultural and academic discourse. There ensued a flood of argument to the effect that there exists a fundamental distinction between
family and
public
waqf
s – a notion that had never acquired the same meaning in Muslim cultures. Since French scholars by then understood the importance of the Quran in Islam, they began to argue that family
waqf
was a development that occurred subsequent to the formative and foundational phase of the religion, distinctly implying that it was an inauthentic accretion, a bad innovation, so to speak. They concluded that these family endowments circumvented the Quranic law of
inheritance which operates by the principle of shares (and therefore led to the fragmentation of family property). Accordingly, family
habous
and Quranic inheritance were declared – on behalf of Muslims – mutually exclusive; and since the
raison d’être
of the former was the skirting of the dictates of the latter, family endowments were deemed both immoral and illegal. This argument was offered in parallel to another: that family endowments inherently tied up property and prevented it from “efficient” exploitation, a fact that ineluctably led to economic stagnation. From here, it was a short and easy step to link this stagnation with cultural malaise and, indeed, a stunted civilizational progress
.

The singling out of family endowments as reprobate appeared in the 1850s as a move concomitant with an unusually liberal call by the
colons
and their government to the effect that Islamic law must
be centralized in an effort to build an Algerian religious unity. The condemnation of the family endowments, while underscoring the Quran’s integrity – which was part of a call to maintain the “true” form of Islam – constituted a two-in-one strike aimed at opening the gates to the application of Quranic rules of inheritance which would, perforce, break up property held in joint ownership. This material ambition combined with the fear that, if Islamic law were to be completely dismantled and assimilation were to run its full course, the Algerian Muslims would demand full political rights.

The contradictions between the need to absorb and control the law and its native subjects, on the one hand, and keeping these colonized subjects
at bay and away from the exercise of political power, on the other, underlined much of the colonial policy of the French. But it still served several ends at one and the same time. The Islamic legal system was asserted but centralized and bureaucratized, thereby imposing on it a form of European rationality that was alien to it. And maintaining it not only served enormous economic interests but provided an example to the Ottomans to afford their subjects at least the “
liberté et égalité
” of the French Revolution.

Having prepared the way to dispense with family endowments, the
colons
and the supporting Orientalists moved to the next stage. Toward the end of the century, enormous areas of cultivable
land had already fallen into the hands of the
colon
entrepreneurs, with the result that the need to maintain the argument for the Quran’s integrity had by then largely vanished. Thus, having already accepted the premise that the Quranic law of inheritance was fragmentary (which in the first place had caused Muslims themselves to circumvent it), the Orientalists now set out to reform the Islamic law of succession, at least by writing scholarly treatises on it. In this project, they enlisted the efforts of Middle Eastern students who had come from various Arab regions to study with French Orientalists. For example,
Professor M. Morand, President of the Faculté de Droit d’Alger, supervised doctoral works by such students who called for reforming the Quranic law of inheritance or setting it aside altogether
. (It must be emphasized that the discourse of this campaign – against
waqf
in particular but also against the Shari
a in general – was inseparable from the Ottoman discourse which took its inspiration from French cultural models.)

On another front,
French penal law was promulgated in 1859, while in 1873 the so-called
Loi Warnier
decreed that all land in Algeria was to be regulated by French law and, what is more, that the Muslim courts would henceforth be confined to adjudging cases pertaining to personal status, including inheritance. The displacement of the penal system reached a high point in 1881 with the promulgation of the repressive
Code de l’indigénat
which empowered civil administrators to mete out harsh punishments, without due process, against Muslim subjects charged with any of forty-one specified offenses. These penalties included detention without trial, collective punishment and discretionary confiscation of property. The
Code
continued in force until 1927.

The French, however, did not limit their attention to criminal and commercial matters. As promulgators of a “civilizing” mission, they saw themselves as advocates of causes that went beyond efficient exploitation of natural resources and labor. Whereas in most other parts of the Muslim world no government, whether local or foreign, risked the introduction at
the time of any changes in civil law, the French repeatedly attempted to implement a civil law that would alter what were seen as unprogressive, if not uncivilized, rules. From the middle of the nineteenth century and for many decades thereafter, they promulgated and retracted many codes and decrees, including the famous
Code Morand
of 1916, which was never applied. Like several other decrees, this
Code
attempted to effect a number of fundamental changes to matters of personal status.