Rethinking the Nineteenth-Century Domestication of the Sharīʿa: Marriage and Family in the Imaginary of Classical Legal Thought and the Genealogy of (Muslim) Personal Law in Late Colonial India

Abstract

This article situates the ‘personal law’ in late colonial India in the nineteenth-century genealogy of the idea of ‘family law.’ In doing so, it also looks at a case between Indian Muslim spouses before the judge and Islamic modernist Syed Mahmood. Involving the doctrine of the restitution of conjugal rights, the case was conducted in the shadow of a question about whether marriage was a status or contract that had a much wider resonance in the late nineteenth-century Anglo-common law world. The overall goal of the article is to critically reconsider a common view about legal modernization in the long nineteenth-century Islamicate world as a process of domesticating the Islamicsharīʿatradition to the sphere of family affairs and personal status. Working along a distinct path from other new scholarship that is moving past this thesis, I suggest that domestication should be seen as part of what some have called the globalization of classical legal thought after 1850. Because the era of domestication continued to be an important point of reference for later exponents of political Islam the article also argues that seeing the categories of personal law and family law genealogically has implications for the problem of translation that has often made scholars reticent about striking an equivalence between ‘Islamic law’ andsharīʿa(or beyond the Islamicate world, between ‘modern law’ and Afro-Asian juridical tradition).