Volume 5 Spring 2024

Editor’s Introduction to the Special Issue:

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This special issue explores the interplay of the norms of governance and Islamic law in Muslim societies, historically, from the eighteenth to late twentieth centuries, right at the moment when Western colonial powers arose to assert hegemony over the Muslim world. These four essays engage scholarly debates about continuities as well as discontinuities between historical and modern Islamic political–legal paradigms for state laws in imperial, colonial, and postcolonial contexts. Within this debate lies the opportunity to reexamine the modern legacies of early Islamic norms for law and governance as they intersected and diverged in novel ways.

The Ottomans and International Law:

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The Russian annexation of the Crimean Khanate was a severe blow to the Ottomans, since the empire was forced to accept the annexation of an independent polity populated by Muslims without a shot being fired, and against the stipulations of past treaties. While the Crimean population sent delegations to the imperial capital and asked for help, the Ottomans also feared the harm the annexation would inflict on their legitimacy; however, they were aware of their military and financial weakness in the face of the Austro-Russian alliance and could not risk a multi-front war. To handle this difficult situation, the Ottoman government resorted to two strategies: first, it sought an intra-bureaucratic consensus by employing the consultation principle of Islamic governance to allow bureaucratic participation in the decision-making process with unanimous decisions to avoid any criticisms that would trigger a popular backlash and, secondly, legitimizing the government policy by benefiting from the principles of Islamic law and portraying the current situation as a temporary one which would be corrected once the empire gained enough military strength. This article will use primary and secondary sources to show how the Ottoman government navigated this diplomatic crisis while aiming to legitimize its decisions by creatively adapting the principles of Islamic international law (siyar). It will emphasize the interaction between political authority, legitimacy, and Islamic law by discussing how the Ottomans interpreted Islamic law with respect to the termination of treaties and to power asymmetry in war decisions when the empire faced a multi-front war with Russia and Austria.

Between Code and Custom:

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Departing from narratives that simplify colonial law as a top-down imposition, this work reveals how middle-ranking British officials were pivotal in shaping a hybrid and strategically manipulative legal system within Sudan’s Anglo-Egyptian Condominium. Focusing on inspectors lacking formal legal training, the analysis highlights their crucial role in exercising wide legal discretion to selectively blend elements of British Penal Codes, customary law, and a distorted interpretation of Islamic law. This pragmatic approach, driven by the interests of colonial control, allowed for the selective application of certain Islamic legal principles, even within British criminal courts, by subsuming them under the vague term “Mohammedan Law.” The case of Sir Harold MacMichael offers insights into this broader trajectory, illustrating how these middlemen, themselves shaped by the colonial system, wielded agency to transform legal frameworks. Ultimately, this article demonstrates how colonial legal systems were dynamic and contested sites where hybridity was a tool of control, shaped by the selective use of Islamic elements, extensive legal discretion, and a pragmatic focus on maintaining power.

Recasting al-Siyāsa al-Sharʿiyya in 1920s Egypt:

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This article primarily explores one of the Muslim scholarly discourses aiming to construct an Islamic governance model, harmonious with the modern state, that is intertwined with premodern Islamic traditions. It scrutinizes the reinterpretation and reconceptualization of the premodern concept of siyāsa sharʿiyya in 1920s Egypt by modernist ʿulamāʾ (religious scholars) to align with the nation state’s legal and constitutional landscapes. The study focuses on the legislative aspects of this modernized theory of siyāsa sharʿiyya and demonstrates how under this theory the state conceptually begins to play a legitimate role in defining Islamic law. Special attention is given to ʿAbd al-Wahhāb Khallāf’s (d. 1375/1956) book, al-Siyāsa al-sharʿiyya, which highlights the transformative epistemological and constitutional repercussions of this discourse. Comparative analysis is conducted with the works of premodern progenitors of the concept, such as Ibn Taymiyya (d. 728/1328) and Ibn Qayyim al-Jawziyya (d. 751/1350) and later authors who have used the concept, to identify discrepancies between premodern and modern discourses in siyāsa sharʿiyya. The study also cites practical implementations of this modernized theory through a law project proposed in Egypt in 1926 that demonstrates how the new siyāsa sharʿiyya discourse bestowed an inherent legal authority to the state to independently legislate on sharīʿa laws based on an expanded conceptualization of maṣlaḥa (public benefit).

Conjuring Sovereignty:

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Although the legal institutions of postcolonial Egypt and much of the Arab world had been reconstituted along the lines of Napoleonic civil code in the 1940s, Islamic political discourse remained encumbered by claims in which the nation, the umma, was defined by faith rather than territorial boundaries, and lacked a notion of secular citizenship and sovereignty. South Asian scholar Hamidullah’s apologetic recasting of the Ṣaḥīfat al-Madīnā in the 1930s as the “world’s first written constitution” may have handed Egyptian Islamic reformists like the Islamic reformist and lawyer Salim El-Awa the solution to this problem. Wildly successful, El-Awa’s strategically ahistorical reading in Sadat’s Egypt pitted the purportedly liberal Prophetic politics against a constrictive juristic tradition. The resulting discourse made the Ṣaḥīfa available to anyone who wished to get past the structural incompatibility between Islamic politico-legal tradition and the territorially constituted nation-state. Besides disarticulating the relationship between Islamic law and politics, the Ṣaḥīfa may have performed another unintended function. As a treaty that placed no limits on a sovereign’s power, now elevated as the true Islamic constitution that had been obscured by later tradition, it became something of a modern oracle, providing the perfect instrument of legitimation to the modern Arab authoritarian states looking to deploy Islam but to bypass the tradition of Islamic jurisprudence.