Influenced by Orientalist assumptions and Utilitarian ideals, and needing to enforce a system of adjudication that responded to their interests, the East India Company's officers selected among varied religious texts a set of norms and tried to apply them consistently. The decision to rely on texts rather than practice, the choice of certain precepts at the expense of others, and their rigid application ran counter to the traditional administration of justice, which had been fluid, contextual, and plural. They also distorted the meaning of Hanafi fiḳh, turning what had been an instrument of legitimation, a moral reference, and a source of social standing into a system of organized dispute settlement. The emphasis on religious textual sources and the attempt to use them as a basis for codification coincided with the idea, which gained ground in the nineteenth century among Muslim reformist movements, that political weakness could be countered by returning to a pristine scripturalist Islam, focused on its legal aspects and seen as a systematic doctrine devoid of ambiguities. These ideas can be also found in the Islamist thought that subsequently spread among urban reformist movements and in legal reforms adopted in Pakistan. A review of case studies, however, suggests that the flexibility and contextuality that characterized the enforcement of Islamic law in precolonial Islam is still to be found in legal practice.
Elisa Giunchi ([email protected]) is Assistant Professor of History and Institutions of Islamic Countries in the Department of International Studies at the Università degli Studi di Milano, Italy.