M. Reza Pirbhai
The
Oxford Handbook of Islamic Law
Edited
by Anver M. Emon and Rumee Ahmed
Abstract and Keywords
Whereas political and cultural histories of the Mughal Sultanate (1526–1858) abound, the study of Islamic law under the state’s auspices is less clearly drawn. This article considers the reasons behind the dearth by outlining the process by which major archival collections came into being and critically evaluating the secondary works produced over the last century and half. It argues that two factors are primarily responsible: 1) the qualitative and quantitative paucity of extant documentation as a consequence of no Mughal state archives and the fact that contemporary collections originated with British colonialism; 2) the approach too often taken by historians of South Asia. Early secondary works make little to no distinction between treatises reflexive of legal theory and practice, while many late works compensate by considering theory entirely divorced from Mughal practice. For the study of Islamic law under the Mughals to progress, practical and theoretical obstacles must be overcome.
Keywords:
Mughal, Islamic law, India, South Asia, colonialism, Orientalism, fiqh, fatawa
The
Mughal Sultanate (1526–1858) dominated the political landscape of South Asia
during the early modern period with considerable influence extending into the
present. Putting aside histories produced in the period of Mughal rule, the
state’s importance to both South Asian and Islamic Studies has produced over a century
and a half of scholarship on dynastic, administrative, fiscal, military,
diplomatic, and cultural history. The study of Islamic law as theorized and
practiced under the state’s auspices, however, is less clearly outlined and
remains a fertile and necessary area for research. Journal articles and book
chapters devoted to the subject are few in number and of varying quality, while
no comprehensive book-length work, monograph or anthology, dedicated to the
subject has been published in the postcolonial era. The most pressing question
for a historiography of Islamic law in the Mughal context, therefore, is how to
account for this dearth?
It
is argued here that two factors are primarily responsible. First and most
obvious is the qualitative and quantitative paucity of extant documentation
relative to such contemporaries as the Ottoman Sultanate. This is particularly
so in the case of works related to legal practice. The type of court documents
(mahadir and sijills) upon which the scholarly understanding of legal practice
has been constructed in Ottoman and other domains are conspicuously rare in the
case of the Mughals. Such deficiencies can be primarily accounted for by the
lack of Mughal state archives, and additionally as a result of the fact that
contemporary collections of documents originated with British colonialism late
in the Mughal period. A second, but no less significant contributor to the thin
study of Islamic law under the Mughals, is the approach to Islam and Muslims
too often taken by historians of South Asia. In essence, early writings make
little to no distinction between treatises reflexive of legal theory (treatises
on usul al-fiqh and fatawa collections) and the actual practice of the Mughal
judiciary. On the other hand, many influential late works compensate for early
errors by considering theory entirely divorced from practice, thus placing all
emphasis on Indic, Indo-Persian and/or Turko-Mongol institutes at the expense
of an Islamic framework. This later trend reflects the presumed irrelevance of
Islamic law apparent in the works of many contemporary South Asianists, and
dissuades others from pursuing the line of inquiry. For the study of Islamic
law under the Mughals to progress, therefore, the hurdles on the scholar’s path
are both practical and theoretical.
To begin to come to grips with the legal history of the Mughal Sultanate as it is currently understood, it is useful to briefly outline the state’s rise and fall[1]. When Sultan Zahir al Din Muhammad Babur (r. 1526–30) dethroned the Lodi Sultan Ibrahim of Delhi in 1526, his venture into South Asia had been driven by no more than political expediency. His memoir, titled Babur Nama, soundly establishes the fact that the gaze of this descendant of Amir Timur (a.k.a. Tamerlane, d. 1405) and Genghis Khan (d. 1227) remained focused on his ancestors’ homelands in Central Asia, from which he had been driven by Uzbek rivals. His descendants, however, would not only consider Delhi their primary capital, but eventually extend their sovereignty over virtually all of South Asia, establishing the region’s most prominent and long-lived Muslim regime. It is most significant to the state’s legal institutes, however, that this lengthy history falls into two distinct phases: the era of the “Great Mughals” (1526–1707) and that of the “Lesser Mughals” (1707–1858). The first phase begins with Sultan Babur’s establishment of Mughal authority over the former territories of the Lodi Sultans, extending from Kabul in the west to the borders of Bengal in the east. In the reign of his son and successor, Sultan Humayun (r. 1530–56), the state was contested by local rivals, but eventually placed on firmer footing. Thus, it was not until the reign of Humayun’s son and successor, Sultan Jalal al-Din Muhammad Akbar (r. 1556–1605), that the state’s territorial possessions were expanded west to Qandahar and Baluchistan, north to Kashmir, east into Bengal, and south to Gujarat. It was also in this period that the bureaucratic and ideological features for which the state is known were instituted. The borders and the institutions established under Akbar passed onto his successors: his son Nur al-Din Muhammad Salim Jahangir (r. 1605–27) and grandson Shahab al-Din Muhammad Shah Jahan (r. 1625–58). A further period of expansion began in the late years of Shah Jahan’s reign and continued throughout the extensive rule of his son and successor, Muhyi al-Din Muhammad Aurangzeb (r. 1658–1707); the loss of Qandahar in the north-west being more than made up for by the annexation of almost the entire southern peninsula of the region, known as the Deccan.
The
death of Aurangzeb in 1707 marks the end of the era of Great Mughals and the
advent of the Lesser Mughals. Between 1707 and 1719, no less than seven sultans
rose to the throne, mostly maneuvered on and off by powerful wazirs, until the
last of them, Sultan Muhammad Shah (r. 1719–48), re-established some semblance
of sovereignty. By his reign, however, the writ of the sultan over his viceroys
(nizams) and governors (subahdars/nawabs) beyond the environs of Delhi had been
eroded to the point that most established themselves as independent rulers in
all but name, leaving Delhi itself open to the predations of the Iranian
Afsharid ruler, Nadir Shah (r. 1736–47), followed by the Afghan Abdali ruler,
Ahmad Shah Durrani (r. 1747–72). The first sacked Delhi in 1739, after annexing
all of the Indus Valley provinces, while the second invaded, sacked, and
annexed Mughal territory five times between 1747 and 1761. Six more sultans
would sit on the throne of Delhi after Muhammad Shah, but as no more than pawns
of their wazirs, local potentates like Ahmad Shah Durrani or the Maratha
Peshwas, and after 1765, as pensioners of the English East India Company. The
last mentioned force occupied Delhi in 1803 on the way to colonizing all of
South Asia, dethroning the last sultan and abolishing the Mughal state in 1858,
promulgating in its place the direct rule of the British government on the
heels of the Mughal-backed 1857 Uprising (a.k.a. “The Great Indian Mutiny”).
Nevertheless, it must be noted that many of these successor states, including
the British Indian Empire, inherited a variety of the institutions established
in the heyday of the Mughal Sultanate. As for the precipitous fall of the
Mughal regime during the eighteenth century, most contemporary scholars offer
the well-documented argument that the state was a victim of its own success.
The law, order, and economic development instituted by the Great Mughals gave
rise to various capital-holding classes (petty landlords, tribal heads,
merchants, bankers, entrepreneurs, etc.) outside the state’s fiscal ambit;
classes that ultimately allied together on more local levels and with European
trading companies to undermine central authority and form multiple, sub
regional successor states before the rise of British authority.
Given
this long and more lately torturous history, Mughal primary sources are
scattered in archives and libraries across South Asia and Europe. Two of the
largest repositories of Mughal manuscripts and documents are the National
Archives of India and the British Library. In both cases, the vast majority
date from the period of Lesser Mughals, only stray records of the Great era
surviving. Important legal works from the earlier period, however, are included
in the Oriental Records and Manuscripts division at the National Archives of
India. For example, the Inayat Jung Collection dates back to the period of the
last Great Mughal, Aurangzeb, and represents the day-to-day administrative records
of the state’s southern provinces. A number of smaller collections also gather
documents related to revenue, endowments, grants, and other administrative
records from a patchwork of locales in Arabic, Persian, Urdu, and more local
vernaculars. As well, the Fort William College Collection contains works that
span the tenth to the twentieth century, including histories and
(auto)biographies, jurisprudential works (usul and fatawa), and records (e.g.
madad-i ma’ash, akhbarat, hukum, parwana, dastur, insha’, taqsim, fatawa, and
farman). The vast majority of this collection’s documents, however, were
eventually transferred to the British Library. Along with the types of
administrative records available at the National Archives of India, therefore,
the latter archive also holds a number of Arabic, Persian, and Urdu works of
relevance to legal study, as well as treatises on theology (kalam), mysticism
(tasawwuf), and jurisprudence (fiqh). What treasures may be held in other
archives, university libraries, and private collections scattered across South
Asia and elsewhere is naturally difficult to summarize, but there can be no
doubt that valuable supplementary sources can be extracted. A case in point is
the M. Iqbal Mujaddidi Collection at the Punjab University Library in Pakistan,
which includes a variety of manuscripts relevant to the legal theory and
practice of Lahore and environs under the Great Mughals. Various collections in
more local Indian libraries similarly shed light on the legal practices of
their localities.
Although
a considerable body of primary literature is extant, and some of it has even
been translated and published, in comparison with the type of sources available
in other contexts, particularly concerning the day-to-day practice of courts
beyond the imperial center, scholars of Mughal law are at a disadvantage.
Records (mahadir/sijills) of specific cases tried in the state-sponsored courts
and by independent jurists of even the capital, let alone in provincial towns
and districts, are few and far between in the major collections, or have yet to
be sifted from the mass of documents in more local collections. This can
primarily be attributed to the fact that the Mughals did not establish
centralized archives, as was the case in Ottomans realms, apparently leaving
individual judges to retain their own records. The value of such documents,
however, is proven beyond a doubt by the legal and social history produced on
the Ottoman setting, and their effective absence in the Mughal is undeniably a
factor in explaining the relative lack of writing on Mughal legal theory and
practice.
The
deficiency of Mughal archiving also explains why the brunt of sources available
to scholars of Mughal history date from the mid-eighteenth century on, and not
before. In fact, the major collections mentioned are at their core the work of
British Orientalists in the employ of the English East India Company. Their
interest in collecting works was largely driven by the administrative need to
come to grips with the region’s institutes for the purpose of increasingly
governing it. This plays an additional part in explaining the difficulties
faced by contemporary scholars of Islamic law in the Mughal context, for the
coincidence of scholarly knowledge and imperial power, of course, implies that
the works they collected and the approach to Mughal history they applied
remains a potent example of Orientalism as discourse. Regarding legal history
in particular, beginning in the 1780s, Company rule limited the exercise of
Islamic law to the personal realm (i.e. marriage, divorce, inheritance, etc.),
reserving all other legal domains (civil and criminal) for British jurisprudence administered by British
judges[2]. Furthermore, few works were collected even to ascertain Islamic
personal law and those accessed were read from the perspective of British
jurisprudential norms of the day, eschewing case law and allowances for custom
(“urf/”ada), equity (istislah), and juristic preference (istihsan) in favor of
codification based on literal readings of primary sources (i.e. Qur’an and
[3]Hadith). For example, Al-Hidaya of Burhan al-Din ‘Ali al-Marghinani (d.
1196)—a Central Asian work—was judged most authoritative and first translated
in the mid-nineteenth century for official use, while works such the South
Asian Fatawa-i Ghiyathiyya (c.1200s), Fatawa-i Qarakhani (c.1200s), Fatawa-i
Tatar Khani (c. 1300s), as well as four collections from the era of Great
Mughals themselves, including the Fatawa-i Barahaniyya (c.1500s) from the time
of Akbar and Fatawa-i ‘Alamgiri (a.k.a. Fatawa al-Hindiyya; c.1600s) [4]
compiled under the patronage of Aurangzeb, were largely ignored. The writing of
Anglo Muhammadan Law, rather than an understanding of Islamic legal theory and
practice in the Mughal context, therefore, underwrites the legal sources
initially gathered for consideration in the major collections mentioned above.
Thus, the works on Islamic law produced by British authors were, in R.S.
Humphrey’s appraisal, “culturally naïve, conceptually inadequate, and full of
errors. [5]
While
British jurists were codifying Islamic personal law according to their own
interpretations of limited sources, the same and other officers of the British
Empire began writing Mughal history, paying as little heed to the complexities
of Mughal administrative norms. As represented by the works of H.M. Elliot,
G.B. Malleson, W.W. Hunter, V.A Smith, S. Lane-Poole, and others, these
historians also reflected the inadequacies of their legist colleagues. Both
sets of scholars rested on the assumption of [6] their subject’s resolutely despotic nature.
The only saving grace they found, in fact, was the perceived persecution of
Islam begun by Akbar under the influence of Hindu thought, which they argued
led to his forming a new religion of his own, while the collapse of the Empire
was ultimately attributed to his great-grandson Aurangzeb’s revival of Islamic
jurisprudence. Such ideas also carried into the writings of South Asians
contributing to Mughal history by the turn of the twentieth century, and in
some ways continue to maintain influence into the present. This point is
well-illustrated by the works and influence of J.N. Sarkar. His Mughal
Administration, first delivered as a series of lectures in 1920, then published
as book in 1925, is groundbreaking insofar as it seeks to take [7] scholarship
beyond the Orientalist’s dynastic history to consider Mughal institutions.
However,
like the Orientalists whom he acknowledges with admiration, Sarkar begins by
pointing out that the Mughal state, as an “Islamic” regime, is essentially an
example of “centralized despotism,” or “military rule” by “one man.” The raison
d’etre of the state, according to Sarkar, was to extract revenue, expending
nothing on social structures such as schools and courts of justice. It is therefore
somewhat ironic that Sarkar initiates the historical discussion of Mughal legal
institutions. He points out that the “only law recognized” was “Quranic law”
(which he considers “incapable of growth”), but “Hindu caste courts” and
“Brahmanic courts [were] sanctioned” for the non-Muslim population. The sultan
himself acted as the “highest court of appeal,” advised by various qadis (judges) and muftis (jurisconsults)
particularly of the Hanafi madhhab, but below him ranged a formal institutional
structure headed by a Qadi al-Qudat and a Sadr al-Sudur— the former presiding
over the qadis of the realm trying cases, the latter administering the
judiciary and grants/endowments for schools (maktabs, madrasas, khanqahs, and
non Muslim institutions) and individual scholars. Muhtasibs were also under the
purview of the Sadr. Sarkar notes that the same institutions and functions were
replicated in every provincial capital, but concludes that beyond those cities,
community-based, custom bound bodies (e.g. panchayat) prevailed in the
villages, while in the cities where qadi courts were present, pragmatism or
corruption ameliorated the exercise of Islamic legal [8] theory and the
dispensation of justice.
Sarkar
apparently did not recognize it, but what he began revealing was a state
dependent on a vast network of Islamic legal thought and institutions rather
than the capricious whims of “one man.” Later scholarship in the colonial era
added to the scale of legal institutions, the sense of an Islamic character
comparable to such contemporaries as the Ottomans, as well as change over time,
though none more so than W. Husain’s Administration of Justice during the
Muslim Rule in India (1934), Ibn Hasan’s The Central Structure of the Mughal
Empire (1936), and M.B. Ahmad’s The Administration of Justice [9]
in
Medieval India (1941). These works reconfirmed the basic institutional
structure outlined by Sarkar, but challenged some of the shallowness and
venality of legal institutions he had portrayed under the influence of Orientalist
assumptions. Most significantly, they showed that qadi-courts, administered by
an array of qualified jurists and administrators beside the qadi (e.g. mir
‘adls), extended to the district (pargana)
level, and naib-i qadis (deputy judges) were present further below.
Panchayats were indeed frequently resorted to by villagers, but only for minor
issues, while serious cases (civil and criminal) came under the purview of
qadis. As well, under Aurangzeb, various clarifications of the appeals process,
requirements for recording judgments through particular documents
(mahadir/mahzar namas) and advocates (wakils) were added to the judicial
process, while the theoretical domain was vastly expounded upon in the
compilation of the Fatawa-i ‘Alamgiri.
Although
a number of books adding to the scholarly understanding of Mughal law have
appeared in the postcolonial era, few have ventured further than those
mentioned above in providing deeper analysis of theory or practice, viewing the
subject of law within the context of administrative history. Early examples are
S.R. Sharma’s Mughal Government [10]and Administration (1951), and U.N. Day’s
The Mughal Government, 1556–1707 (1970). These works are, however, complemented
by a far richer consideration of economic[11] System of Mughal India, 1556–1707
(1963). Occasionally translated and published collections of documents in the
field are also important, such as B.N. Goswamy and J.S. Grewal’s focus on
madad-i ma’ash grants in The Mughals and the Jogis of Jakhbar (1967), and S.P. Gupta and S.H. Khan’s review of
taxation papers in Mughal Documents: Taqsim, [12] 1649–1800 (1996). It is also
in this field that women most directly enter the discussion [13] of Mughal
history, as in R.M. Bilgrami’s “Women Grantees in the Mughal Empire.”
Although
these and other works on fiscal policy, land tenure (including awqaf),
contracts, and trade shed much light on hisba under the Mughals, they are
generally less concerned with viewing evidence in relation to Islamic doctrine
than outlining Mughal institutes in isolation and evaluating their
ramifications in terms of local institutions and subjects.
A
few books have also ventured to pick legal institutions out of the general
administrative structure of the state, including M.J. Akbar’s The
Administration of Justice by the Mughals (1948), S.P. Sangar’s Crime and
Punishment in Mughal India (1967), and B.S. Jain’s Administration of Justice in
Seventeenth Century India (1970). However, [14] Orientalism continues to color
interpretation. Thus, for example, Jain’s book begins with the statement that
Mughal rulers were “absolute despots.” Nevertheless, Jain must be credited for
appeals to various sources representing not just theory, but the judicial
practice of the sultans. He draws some enlightening conclusions, therefore,
including the fact that cases of judicial despotism among the sultans are
“exceptions and not the rule.” As well, reflecting a growing body of
scholarship aware of the ideal nature of Islamic legal theory relative to
practice, he argues that the Mughals followed earlier sultanic practice of
putting into effect whatever was “judged to be for the better government of
[15] the country … [whether it] … was or was not authorized by the law.” Later
works, such as Z. Islam’s Socio-Economic Dimensions of Fiqh Literature in
Medieval India (1990), and M.L. Bhatia’s Administrative History of Medieval India: A Study of Muslim
Jurisprudence Under Aurangzeb (1992) and The Ulama, Islamic Ethics and Courts
Under the Mughals: Aurangzeb Revisited (2006), have further developed both
these themes, though no monographs or anthologies on the subject of Mughal law
specifically have followed Bhatia. [16]
Although
spanning nearly a century of scholarship, the books mentioned reveal the slim
number devoted to a subject as vast and important as Islamic law in the Mughal
context. Of course, they have been supplemented by journal articles and book
chapters by such celebrated scholars as A. Ahmad and J. Schacht, but the tally
of in-depth study remains [17] meagre. Nevertheless, those works mentioned have
been very influential in the late writing of Mughal history, whether related to
the law or not, and for better or worse. On the positive side, thanks in part
to the complex legal structures outlined by everyone from Sarkar to Bhatia, as
well as late critiques of Orientalist approaches, the Mughal state is no longer
broadly understood as despotic, but rightly as a vast, bureaucratic regime,
inclusive of non-Muslims with various centers of power. The Orientalist’s
eternally fixed dichotomies of Islam/Muslim versus Hindu/Indic have been
largely forfeited for more subtle readings of Mughal sources, taking into
account the distance between theory held in Islamic texts and the practice of
Muslims interpreting them in light of pragmatic realities. Other sources of
Islamic doctrine, such as mysticism and philosophy, have supplemented the
Orientalist’s elevation of law as the only truly Islamic creed, and Indic,
Indo-Persian, and Turko-Mongol fonts of inspiration for the state’s
institutional and ideological initiatives have also been explored. Such trends
are well-represented in some monographs and by the articles included in a
number of anthologies at least partially concerned with the law. These works
include: R.M. Bilgrami’s Religious and Quasi Religious Departments of the
Mughal Period (1984); B.D. Metcalf’s Moral Conduct and Authority: The Place of
Adab in South Asian Islam (1984); E.P. Ewing’s Shari’at and Ambiguity in South
Asian Islam (1988); M. Alam and S. Subrahmanyam’s The Mughal State, 1526–1750
(1998); D. Gilmartin and B.B. Lawrence’s Beyond Turk and Hindu: Rethinking
Religious Identity in Islamicate South Asia (2000); and, R.M. Eaton’s India’s
Islamic Traditions, 711–1750 (2003). [18]
On
the more negative side, many of the former authors’ representations of the
Islamic legal system as a long-ago ossified, foreign code describable as
Qur’anic law, has not been entirely jettisoned. That is to say, the works of
specialists in the discipline of Islamic Studies that not only reveal Islamic
law to be a rich, jurisprudential process, but reconcile theory and practice as
in G. El-Nahal’s recognition that the shariʽa represents an “ideal doctrine for
a very real society”—are not uniformly reflected in the works of [19] South
Asianists. Rather, evidence of the Mughal assimilation of Indic, Indo-Persian,
or Turko-Mongol norms, whether intellectual, institutional, or cultural, as
well as the influence of other expressions of Islamic thought and institutions,
have been read as the transgression of ideal Islam, which often remains equated
with an inflexible conception of the shariʽa. This is easily identifiable in
the legal connotations of contemporary South Asian history, including some of
those articles concerned with the Mughal Sultanate in the aforementioned
anthologies. In Eaton’s India’s Islamic Traditions, for example, I.A. Khan’s
“The Nobility Under Akbar and the Development of His Religious Policy, 1560–
80,” argues that Akbar’s initiatives (such as the ideological adoption of the
Sufi concept of sulh-i kull [peace with all]) represent an “attempt to distance
himself from a pro [20] Islamic policy.” S. Chandra’s “Jizya and the State in
India during the Seventeenth Century,” sees the abolition of this poll tax as
the reflection of a “concept of state [that] [21] was strikingly modern and
secularist.” And looking beyond the state, the identical approach to Islamic
law is evident in various works concerned with society at large. For example,
in Y. Friedmann’s contribution to precisely the subject of “Islamic Thought in
Relation to the [Mughal] Indian Context,” Islamic law is presented as
“[d]iametrically opposed” to “the attempt to find a common denominator” with
local cultural traditions. Thus, only in the life and work of the legalistic
Naqshbandi Sufi, Shaykh Ahmad Sirhindi (d. 1624)—a vocal critic of the Mughal
legal regime—does Friedmann find that “Islam preserved its pristine purity and
refused to make concessions to the pagan environment,” while other Islamic
philosophers, mystics, theologians and jurists accommodating the local
environment within Islamic frameworks are judged “deviant” and placed “beyond
[22] the pale of medieval Indian Islam.”
Given
such approaches to Islam by the experts in the field of South Asian Studies,
there can be no doubt the same understanding of Islamic legal theory and its
implications in practice are also represented in more general histories of the
Mughals. H. Mukhia, at a loss to explain how Islamic law is related to Mughal
practice in his The Mughals of India (2004), reverts to Orientalist ideas by
pinning Akbar’s enterprises on the ideological construction of the Mughal ruler
himself as “divinity,” thus empowering him to make his [23] own religious law.
Aurangzeb’s re-imposition of jizya, on the other hand, is roundly considered an
attempt to re-emboss an “Islamic character onto the political culture,” as [24]
in J.F. Richard’s The Mughal Empire (1996). What an Islamic character means to
such scholars as well as those drawing from their insights to write the Mughals
into broader South Asian history is described most plainly in B. Stein’s A
History of India (1998), as “religious bigotry,” eschewing “practical political
rationale” to “place most … subjects[25] under continuous pressure to convert.”
The entire thesis is repeated most succinctly in S. Bose and A. Jalal’s Modern
South Asia (1999), considering Akbar’s purported distance from doctrinal Islam
as a sign of “a pragmatic streak and determination to adapt to the Indian
environment,” while Aurangzeb’s legalism, alone considered Islamic, is argued
to be representative of a “reversal of the politics of alliance building and
religious flexibility[26].”
The
historiography of the Mughals, therefore, renders it most evident that the late
scholarly understanding of Islamic legal theory as more than the Qur’anic code
assumed by Orientalists is not uniformly returned in the writing of Mughal
history. Not only is an informed understanding of the relationship between the
ideal and practical absent, the implications of other related fields of Islamic
doctrine, including political philosophy, let alone more esoteric disciplines,
are also often absent. For example, the latitude allowed Muslim rulers to
appeal to customary law in state legislation (dawabit) is evidently not
considered in the above mentioned evaluations of Akbar’s institutes, and the
variety of modes by which custom, equity, and juristic preference is
accommodated by Hanafi jurisprudence in particular does not figure in
appraisals of Aurangzeb’s legal reforms. Indeed, even in works such as
Friedmann’s on Islamic thought itself, the fact that “custom had become a
virtually independent source” of Hanafi jurisprudence by the sixteenth century,
as pointed out by G. Libson more than a decade ago and others even [27]
earlier, plays no role in judging what is pristine and what is deviant. Rather,
in the study of legal theory and its influence on practice by the Mughal state
and those living under its watch, Orientalism’s assumptions and essentialisms
live on. The result is that the Mughals, once erroneously characterized as
uniformly Islamic by Orientalists, are now often shorn from their Muslim
contemporaries outside South Asia, to be branded as Indic, Indo-Persian, and/or
Turko-Mongol, at the expense of broadly common Islamic identifiers. Given that
the aforementioned assumptions about Islam and its legal tradition are implicit
in even late evaluations of the Mughal regime, it must be said that they have
undoubtedly contributed to the dearth of study in the field of Islamic legal
theory and practice in the Mughal context, diverting attention to other
categorizations of thought and institutions.
There
are, as always, exceptions to the rule, particularly in articles appearing most
lately. Regarding legal theory, A.M. Guenther’s “Hanafi Fiqh in Mughal India:
The Fatawa-i ‘Alamgiri,” redeems the representation of Mughal legal pursuits in
Eaton’s anthology by placing this monumental work in the context of previous
legal compendiums, illustrating development over time while outlining the ideal
relationship between jurists and the state [28] sought by its compilers in the
seventeenth century. Also focused on this source, M. Khalfoui’s “Together But
Separate: How Muslim Scholars Conceived of Religious Plurality in South Asia in
the Seventeenth Century,” further reveals the development of Hanafi fiqh in the
region over time, making the important observation that the Fatawa-i ‘Alamgiri
not only legitimated the accommodation of South Asia’s non-Muslim majority
within an Islamic legal framework, but did so by placing emphasis on eighth to
tenth century ‘Iraqi [29]works, rather than more recent Central Asian
contributions like Al-Hidaya. And finally,
M.R. Pirbhai’s “British Legal Reform and Pre-Colonial Trends in Islamic
Jurisprudence,” builds on a large body of scholarship begun by the likes of F.
Rahman, A. Ahmad, J.M.S. Baljon, and B. Metcalf to use the Fatawa-i ‘Alamgiri
as the launching pad for a discussion of non-state legal trends in the
eighteenth century that sought to remove the accommodation of customary law in
Hanafi fiqh known in the period of the Great Mughals, thus recalibrating the
ideal relationship between Muslims and non-Muslims in the era of the Lesser,
with significant implications for the rise of late Muslim movements and
colonial legal codes[30].
Turning
to legal practice, a number of works have lately illustrated the functioning of
Islamic law, rather than its transgression, in South Asia’s majority non-Muslim
environs with anything but the one-sided bigotry assumed by earlier scholars
and carried forth in more general histories. R.A. Khan’s “The Practice of
Escheat and the Mughal Nobility” illustrates the widespread use of this Islamic
legal principle by the state, with its broad acceptance among the nobility, to
confiscate property upon the holder’s death in the case [31]
of
Muslims of all ethnicities, but not Hindus. As well, G.C. Koslowski’s “Imperial
Authority, Benefactions and Endowments (Awqaf) in Mughal India” provides an
overview of the state’s extensive use of grants and endowments with specifically
Islamic theoretical roots issued to Muslim and non-Muslim religious figures and
institutions, though in the interests of pragmatic rather than pious state
interests throughout the [32] period of Great Mughals. S. Moosvi’s
consideration of marriage contracts (nikah nama) in Gujarat reveals the strict imposition of
Islamic norms on the groom, such as the condition of monogamy, restrictions on
violence, and compensation for desertion and the [33] wife’s right to
divorce/annulment if any of these conditions are violated. Regarding the role
of the qadi and his court, N. Chatterjee’s “Hindu City and Just Empire: Banaras
and India in Ali Ibrahim Khan’s Legal Imagination” shows how well into the
period of Lesser Mughals, custom, locality, and colonial exigencies continued
to shape and be influenced [34] by Islamic legal principles and procedures. On
the other hand, S. Sen’s “Retribution in the Subaltern Mirror: Popular
Reckonings of Justice, and the Figure of the Qazi in Medieval and Precolonial
Bengal” considers how the judge was perceived by subaltern non-Muslims, both as
an exponent of Islam and that of elite authority[35].
The
critique of historians that interpret or assume Islamic legal theory to be
rigid, exclusionary, and divorced from practice—scholars who therefore consider
the inclusiveness of the Mughal regime a sign of its un-Islamic character—also
extends beyond works dealing exclusively with fiqh. M. Alam is one of a few
historians who have long drawn from works written by Islamic mystics and
philosophers to illustrate the vibrant debates among Muslims regarding legalism
and their impact on Mughal ideology and legal praxis, most lately in the
article: “The Debate Within: A Sufi Critique of [36] Religious Law, Tasawwuf
and Politics in Mughal India.” That is to say, fiqh is not the only Islamic discipline to be considered when
evaluating the Mughal legal regime and the state’s legitimation as Islamic.
Mysticism and philosophy espouse alternative approaches to the definition of
shariʽa. Thus, in stark opposition to Friedmann’s general thesis, noted above, Alam writes, “Sirhindi’s condemnation
of Akbar was not shared by all Muslims, nor even by the other Sufi shaikhs
[sic] … The Sunni Muslim view of religion and politics is thus not solely
represented by Shaikh Ahmad Sirhindi … Rather … this view must be complicated
if we are to understand the full range of Muslim political and religious positions in Mughal India[37].”
Although
not an exhaustive survey, such late works force the conclusion that knowledge
of the administrative structure of Islamic law in the Mughal Sultanate has
steadily grown for well over a century, but a similarly developed appreciation
of the theory and practice of Islamic law under Mughal aegis begs further
consideration. The approaches these late scholars take and the conclusions they
draw most starkly reveal that for the study of Islamic law to proceed, the
advantages of expunging the remnants of Orientalism’s perspective on Islam in
general and its legal disciplines in particular bears much fruit. This not only
references the equation of legal theory with an unchanging, exclusionary form
of Qur’anic code, but encompasses the revisionist implication based on this
assumption that Islamic legal theory has little to no bearing on the practice
of the Mughal state or its subjects. That is not to say that Indic,
Indo-Persian, or Turko-Mongol institutes and customs are inconsequential, or
that political pragmatism does not come into play. It is a question of
appreciating how these influences and exigencies are accommodated by and
wrapped in an Islamic legal framework, rather than assuming that their
acknowledgement is a natural signifier of Islamic doctrine’s transgression.
Yet, it must be added that the scholar’s theoretical approach is not the only
obstacle in the way of further study. The shallow reading of legal practice
beyond courts presided over by the sultan himself is, no doubt, additionally a
consequence of the absence of court registers and other such records in the
largest collections of Mughal documents. Although this can be partially
explained by the fact that the foundations of contemporary archival collections
were laid by Britons in the late-eighteenth century—thus reflecting the wants
and ideological perspectives of colonialists—the more direct explanation is the
lack of Mughal state archives. Lesser Mughal or successor state legal
documents, therefore, dominate extant materials. Hopefully, the records of
individual judicial officers and the cases over which they presided in the
foundational era of the Great Mughals will be located in more minor library and
private collections. Perhaps, the scholarly approaches applied to such primary
sources and those already read will be carefully reconsidered. Much progress
has been made on both fronts over the last century, but acknowledging the
importance of the legal theory and practice of any political regime, it is
apparent that a concerted effort to leap the hurdles still standing between
historians and the law is a necessary condition
for the Mughal Sultanate’s place in South Asian and Islamic history to be fully
realized.
References
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in Mughal India.” South Asian History and Culture 2, no. 2 (2011): 138–159.
Alvi,
S. “Religion and State during the Reign of Mughal Emperor Jahangir (1605):
Nonjuristical Perspectives.” Studia Islamica 69 (1989): 95–119.
Bilgrami,
R.M. “Women Grantees in the Mughal Empire,” Journal of the Pakistan Historical
Society 36, no. 3 (1988): 207–214.
Khalfoui,
M. “Together But Separate: How Muslim Scholars Conceived of Religious Plurality
in South Asia in the Seventeenth Century.” Bulletin of SOAS 74, no. 1 (2011):
87–96.
Khan,
I.A. “Tracing Sources of Principles of Mughal Governance: A Critique of Recent
Historiography,” Social Scientist 37, nos. 5/6 (2009): 45–54.
Khan,
R.A. “The Practice of Escheat and the Mughal Nobility.” Historicity Research
Journal 1, no. 2 (2014): 1–3.
Koslowski,
G.C. “Imperial Authority, Benefactions and Endowments (Awqaf) in Mughal India.”
Journal of the Economic and Social History of the Orient 38, no. 3 (1995): 355–
370.
Kugle,
S.A. “Framed Blamed and Renamed: The Recasting of Islamic Jurisprudence in
Colonial South Asia.” Modern Asian Studies 35, no. 2 (2001): 257–313.
Chatterjee,
N. “Hindu City and Just Empire: Banaras and India in Ali Ibrahim Khan’s Legal
Imagination.” Journal of Colonialism and Colonial History 15, no. 1 (2014):
e-journal accessed September 2, 2015.
Pirbhai,
M.R. “British Legal Reform and Pre-Colonial Trends in Islamic Jurisprudence.”
Journal of Asian History 42, no. 1 (2008): 36–63.
Schacht,
J. “On the Title of the Fatawa- al-’Alamgiriyya.” In Iran and Islam: In Memory
of the Late Vladimir Minorsky. Edited by C.E. Bosworth, 475–478. Edinburgh:
Edinburgh University Press, 1971.
Sen,
S. “Retribution in the Subaltern Mirror: Popular Reckonings of Justice, and the
Figure of the Qazi in Medieval and Precolonial Bengal.” Postcolonial Studies 8,
no. 4 (2005): 439–458.
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Akbar,
M.J. The Administration of Justice by the Mughals. Lahore: M. Ashraf
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Alam,
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Baillie,
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Notes:
(1
) For a sample of contemporary monographs together covering the state’s rise
and fall as summarized here, see, C.A. Bayly, Indian Society and the Making of
the British Empire (Cambridge: Cambridge University Press, 1988); D.E.
Streusand, The Formation of the Mughal Empire (Delhi: Oxford University Press,
1989); J.F. Richards, The Mughal Empire (Cambridge: Cambridge University Press,
1996); A. Hintze, The Mughal Empire and its Decline (Aldershot: Ashgate, 1997).
(
2) See, e.g., A. Hamid, A Chronicle of British Indian Legal History (Jaipur:
RBSA Publishers, 1991).
(
3 ) S.A. Kugle, “Framed Blamed and Renamed: The Recasting of Islamic
Jurisprudence in Colonial South Asia,” Modern Asian Studies 35, no. 2 (2001):
257–313.
(4
) For the mid-nineteenth century translations of segments of Al-Hidaya and
Fatawa-i ‘Alamgiri, see Charles Hamilton, trans., The Hedaya or Guide: A
Commentary of the Mussulman Laws (Lahore: Premier Book House, [reprint] 1963);
N.B.E. Baillie, trans., The Moohummudan Law of Sale according to the Huneefeea
Code: from the Futawa Alumgeeree, a Digest of the Whole Law. Prepared by
Command of the Emperor Aurungzebe Alumgeer (Delhi: Delhi Law House, [reprint],
n.d.); and N.B.E. Baillie, trans., A Digest of Moohummudan Law Compiled and
Translated from Authorities in the Original Arabic with an Introduction and
Explanatory Notes Containing the Doctrines of the Hunifeea Code of
Jurisprudence (Lahore: Premier Book House, n.d.).
(
5) R.S. Humphrey, Islamic History: A Framework for Inquiry (Princeton:
Princeton University Press, 1991), 210.
(
6) These authors’ works were first gathered in two major book series published
in the late-nineteenth and early-twentieth centuries: W.W. Hunter, ed., Rulers
of India, 28 vols. (Oxford: Clarendon Press, 1893–95); A.V.W. Jackson, ed.,
History of India, 9 vols. (London: Grolier, 1906–07). For a late review of such
works, see S.C. Mittal, India Distorted: A Study of British Historians on India
(New Delhi: M.D. Publications, 1996).
(
7) See J.N. Sarkar, Mughal Administration, Six Lectures (Patna: Government
Print Office, 1920); and J.N. Sarkar, Mughal Administration (Patna: Patna
University Press, 1925).
(
8 ) Sarkar, Mughal Administration, Six Lectures, 3–14.
(
9 ) See W. Husain, Administration of Justice during the Muslim Rule in India
(Calcutta: University of Calcutta, 1934); Ibn Hasan, The Central Structure of
the Mughal Empire (London: Oxford University Press, 1936); M.B. Ahmad’s The
Administration of Justice in Medieval India (Allahabad: Aligarh Historical
Research Institute, 1941).
(10
) See S.R. Sharma, Mughal Government and Administration (Bombay: Hind Kitabs,
1951); U.N. Day, The Mughal Government, 1556–1707 (New Delhi: Munshiram
Manoharlal, 1970).
(11
) I. Habib, The Agrarian System of Mughal India, 1556–1707 (Delhi: Oxford
University Press, [reprint] 1999).
(
12 ) B.N. Goswamy and J.S. Grewal, The Mughals and the Jogis of Jakhbar (Simla:
Indian Institute of Advanced Study, 1967); and S.P. Gupta and S.H. Khan, Mughal
Documents: Taqsim, 1649–1800 (Jaipur: Publications Scheme, 1996).
(13
) R.M. Bilgrami, “Women Grantees in the Mughal Empire,” Journal of the Pakistan
Historical Society 36, no. 3 (1988): 207–214.
(
14 ) See M.J. Akbar, The Administration of Justice by the Mughals (Lahore: M.
Ashraf Publishers, 1948); S.P. Sangar, Crime and Punishment in Mughal India
(New Delhi: Reliance Publishing, [reprint] 1998); B.S. Jain, Administration of
Justice in Seventeenth Century India (Delhi: Metropolitan Book Company, 1970).
(
15 ) Jain, Administration of Justice, 2, 12.
(16
) See Z. Islam, Socio-Economic Dimensions of Fiqh Literature in Medieval India
(Lahore: Dyal Singh Trust, 1990); M.L. Bhatia’s Administrative History of
Medieval India: A Study of Muslim Jurisprudence Under Aurangzeb (1992), and Z.
Islam, The Ulama, Islamic Ethics and Courts Under the Mughals: Aurangzeb
Revisited (New Delhi: India Manak Publications, 2006).
(
17) See A. Ahmad, “The Role of the Ulema in Indo-Muslim History,” Studia
Islamica 31 (1970): 1–13; J. Schacht, “On the Title of the Fatawa-
al-’Alamgiriyya,” in Iran and Islam: In Memory of the Late Vladimir Minorsky,
ed. C.E. Bosworth (Edinburgh: Edinburgh University Press, 1971), 475–478.
(
18) See R.M. Bilgrami’s Religious and Quasi-Religious Departments of the Mughal
Period (New Delhi: Munshiram Manoharlal Publishers, 1984); B.D. Metcalf, ed.,
Moral Conduct and Authority: The Place of Adab in South Asian Islam (Berkeley:
University of California Press, 1984); E.P. Ewing, ed., Shari’at and Ambiguity
in South Asian Islam (Berkeley:
University of California Press, 1988); M. Alam and S. Subrahmanyam,
eds., The Mughal State, 1526–1750 (Oxford: Oxford University Press, 1998); D.
Gilmartin and B.B. Lawrence, eds., Beyond Turk and Hindu: Rethinking Religious
Identity in Islamicate South Asia (Gainesville, FL: University of Florida
Press, 2000); R.M. Eaton, ed., India’s Islamic Traditions, 711–1750 (New Delhi:
Oxford University Press, 2003).
(
19 ) Cited in Humphreys, Islamic History, 210.
(20
) I.A. Khan, “The Nobility Under Akbar and the Development of His Religious
Policy, 1560–80,” in India’s Islamic Traditions, 120–132. Also by the same
author, see “Tracing Sources of Principles of Mughal Governance: A Critique of
Recent Historiography,” Social Scientist 37, nos 5/6 (2009): 45–54.
(
21) S. Chandra’s “Jizya and the State in India during the Seventeenth Century,”
in India’s Islamic Traditions, 133–149. It should be noted that the same idea
of transgression is carried through at least into the reign of Sultan Jahangir,
as typically represented in S. Alvi’s assertion that this son of Akbar was not
interested in legal “Islam,” so was “liberal” and “just” in his rule. See S.
Alvi, “Religion and State during the Reign of Mughal Emperor Jahangir (1605):
Nonjuristical Perspectives,” Studia Islamica 69 (1989): 95–119.
(
22) Y. Friedmann, “Islamic Thought in Relation to the [Mughal] Indian Context,”
in India’s Islamic Traditions, 50–63.
(23
) H. Mukhia, The Mughals of India (Oxford: Blackwell, 2004), 49.
(
24) Richards, The Mughal Empire, 164.
(25
) B. Stein, A History of India (Oxford: Blackwell, 1998), 171–173.
(26
) S. Bose and A. Jalal, Modern South Asia: History, Culture, Politics, Economy
(London: Routledge, 1999), 40–41.
(
27 ) G. Libson, Jewish and Islamic Law: A Comparative Study of Custom during
the Geonic Period (Cambridge, MA: Harvard University Press, 2003), 69–71. For
custom more generally, see M.Z. Othman, “The Status of “Urf in Islamic Law,”
IIUM Law Journal 3, no. 2 (1993): 40–51; and “Ada’,” Encyclopedia of Islam
(Leiden: Brill, CD ROM Edition).
(28
) A.M. Guenther, “Hanafi Fiqh in Mughal India: The Fatawa-i ‘Alamgiri,” in
India’s Islamic Traditions, 209–233.
(29
) M. Khalfoui, “Together But Separate: How Muslim Scholars Conceived of
Religious Plurality in South Asia in the Seventeenth Century,” Bulletin of SOAS
74, no. 1 (2011): 87–96.
(
30) M.R. Pirbhai, “British Legal Reform and Pre-Colonial Trends in Islamic
Jurisprudence,” Journal of Asian History 42, no. 1 (2008): 36–63. Also see F.
Rahman, Islam (Chicago: University of Chicago Press, 1979); J.M.S. Baljon,
Religion and Thought of Shah Wali Allah Dihlawi (Leiden: E.J. Brill, 1986); A.
Ahmad, Studies in Islamic Culture in the Indian Environment (New York: Oxford
University Press, 1964); B.D. Metcalf, Islamic Revival in British India:
Deoband, 1860–1900 (Princeton: Princeton University Press, 1982).
(
31 ) R.A. Khan, “The Practice of Escheat and the Mughal Nobility,” Historicity
Research Journal 1, no. 2 (2014): 1–3.
(
32 ) G.C. Koslowski, “Imperial Authority, Benefactions and Endowments (Awqaf)
in Mughal India,” Journal of the Economic and Social History of the Orient 38,
no. 3 (1995): 355–370.
(33
) See S. Moosvi, People, Taxation and Trade in Mughal India (Delhi: Oxford
University Press, 2009).
(
34 ) N. Chatterjee’s “Hindu City and Just Empire: Banaras and India in Ali
Ibrahim Khan’s Legal Imagination,” Journal of Colonialism and Colonial History
15, no. 1 (2014): e-journal accessed April 1, 2015.
(
35 ) S. Sen, “Retribution in the Subaltern Mirror: Popular Reckonings of
Justice, and the Figure of the Qazi in Medieval and Precolonial Bengal,”
Postcolonial Studies 8, no. 4 (2005): 439–458.
(
36) M. Alam, “The Debate Within: A Sufi Critique of Religious Law, Tasawwuf and
Politics in Mughal India,” South Asian History and Culture 2, no. 2 (2011):
138–159. Among other works by the same author, see “Shariʽa and Governance in
the Indo-Islamic Context,” in Beyond Turk and Hindu, 229–233. A scholar and
work of great influence on Alam is S.A.A. Rizvi, Religious and Intellectual
History of Akbar’s Reign (Delhi: Munshiram Manoharlal, 1975), and both Alam and
Rizvi’s influence can be read in, M.R. Pirbhai, Reconsidering Islam in a South
Asian Context Leiden: E.J. Brill, 2009).
(
37) Alam, “The Debate Within,” 152.a