A Historiography of Islamic Law in the Mughal Empire

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

Articles

Ahmad, A. “The Role of the Ulema in Indo-Muslim History.” Studia Islamica 31 (1970): 1– 13.

 

Alam, M. “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.

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.

Books

Ahmad, A. Studies in Islamic Culture in the Indian Environment. New York: Oxford University Press, 1964.

Ahmad, M.B. The Administration of Justice in Medieval India. Allahabad: Aligarh Historical Research Institute, 1941.

Akbar, M.J. The Administration of Justice by the Mughals. Lahore: M. Ashraf Publishers, 1948.

Alam, M., and Subrahmanyam, S., eds. The Mughal State, 1526–1750. Oxford: Oxford University Press, 1998.

Baillie, N.B.E., 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.

Baillie, N.B.E. 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.

Baljon, J.M.S. Religion and Thought of Shah Wali Allah Dihlawi. Leiden: E.J. Brill, 1986.

Bayly, C.A. Indian Society and the Making of the British Empire. Cambridge: Cambridge University Press, 1988.

Bhatia, M.L. Administrative History of Medieval India: A Study of Muslim Jurisprudence Under Aurangzeb. Delhi: Radha Publications, 1992.

Bhatia, M.L. The Ulama, Islamic Ethics and Courts Under the Mughals: Aurangzeb Revisited. New Delhi: India Manak Publications, 2006.

Bilgrami, R.M. Religious and Quasi-Religious Departments of the Mughal Period. New Delhi: Munshiram Manoharlal Publishers, 1984.

Bose, S., and Jalal, A. Modern South Asia: History, Culture, Politics, Economy. London: Routledge, 1999.

Day, U.N. The Mughal Government, 1556–1707. New Delhi: Munshiram Manoharlal, 1970.

Eaton, R.M., ed. India’s Islamic Traditions, 711–1750. New Delhi: Oxford University Press, 2003.

Ewing, E.P., ed. Shari’at and Ambiguity in South Asian Islam. Berkeley: University of California Press, 1988.

Goswamy, B.N., and Grewal, J.S. The Mughals and the Jogis of Jakhbar. Simla: Indian Institute of Advanced Study, 1967.

Gilmartin, D., and Lawrence, B.B., eds. Beyond Turk and Hindu: Rethinking Religious Identity in Islamicate South Asia. Gainesville, FL: University of Florida Press, 2000.

Gupta, S.P., and Khan, S.H. Mughal Documents: Taqsim, 1649–1800. Jaipur: Publications Scheme, 1996.

 

Habib, I. The Agrarian System of Mughal India, 1556–1707. Delhi: Oxford University Press, [reprint] 1999.

Hamid, A. A Chronicle of British Indian Legal History. Jaipur: RBSA Publishers, 1991.

Hamilton, C., trans. The Hedaya or Guide: A Commentary of the Mussulman Laws. Lahore: Premier Book House, [reprint] 1963.

Hintze, A. The Mughal Empire and its Decline. Aldershot: Ashgate, 1997.

Humphreys, R.S. Islamic History: A Framework for Inquiry. Princeton: Princeton University Press, 1991.

Hunter, W.W., ed. Rulers of India, 28 Vols. Oxford: Clarendon Press, 1893–95.

Husain, W. 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.

Islam, Z. Socio-Economic Dimensions of Fiqh Literature in Medieval India. Lahore: Dyal Singh Trust, 1990.

Jackson, A.V.W., ed. History of India, 9 Vols. London: Grolier, 1906–07.

Jain, B.S. Administration of Justice in Seventeenth Century India. Delhi: Metropolitan Book Company, 1970.

Metcalf, B.D., ed. Moral Conduct and Authority: The Place of Adab in South Asian Islam.  Berkeley: University of California Press, 1984.

Metcalf, B.D. Islamic Revival in British India: Deoband, 1860–1900. Princeton: Princeton University Press, 1982.

 

Mittal, S.C. India Distorted: A Study of British Historians on India. New Delhi: M.D. Publications, 1996.

Moosvi, S. People, Taxation and Trade in Mughal India. Delhi: Oxford University Press, 2009.

Mukhia, H. The Mughals of India. Oxford: Blackwell, 2004.

Rahman, F. Islam. Chicago: University of Chicago Press, 1979.

Pirbhai, M.R. Reconsidering Islam in a South Asian Context. Leiden: E.J. Brill, 2009. Richards, J.F. The Mughal Empire. Cambridge: Cambridge University Press, 1996.

Rizvi, S.A.A. Religious and Intellectual History of Akbar’s Reign. Delhi: Munshiram Manoharlal, 1975.

Sangar, S.P. Crime and Punishment in Mughal India. New Delhi: Reliance Publishing, [reprint] 1998.

Sarkar, J.N. Mughal Administration, Six Lectures. Patna: Government Print Office, 1920. Sarkar, J.N. Mughal Administration. Patna: Patna University Press, 1925. Sharma, S.R. Mughal Government and Administration. Bombay: Hind Kitabs, 1951. Stein, B. A History of India. Oxford: Blackwell, 1998.

Streusand, D.E. The Formation of the Mughal Empire. Delhi: Oxford University Press, 1989.

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