Reflections on religious difference and permissive inclusion in Mughal law
Journal of Law and Religion
Cambridge University Press
This article investigates the “pre-history” of the colonial and postcolonial personal (status) laws of India, which tie religious identity with legal status, particularly in matters of family law. It examines the concept of law and legal jurisdictions in Mughal India (1526-early eighteenth century; officially 1857): a unique political formation in which an Islamic state ruled over a populace which was predominantly non-Muslim. Using Mughal official orders, Persian-language legal documents produced between the sixteenth and eighteenth centuries, and Persian-language legal formularies, the article proposes that despite frequent local delegation, the Mughals, their officials, and their subjects did not conceive of law as divided up into several religion-based jurisdictions. Instead, an inclusive operationalization of shariʿa1 (Islamic moral code, in a more specific sense Islamic law) appears to have popularized Islamic legal concepts and forms, and a host of pragmatic concerns attracted many who were not Muslims to the courts of the imperially appointed qazis (Islamic judges). Based on this evidence, this article proposes that Mughal India represents an instance of widespread “permissive inclusion” into shariʿa, whereby in non-criminal matters the qazis' courts allowed and attracted, but did not require, all Mughal subjects to avail of their civil jurisdiction. This proposition is examined further in connection with the acrid debates between late Mughal administrators (particularly, Muhammad Reza Khan of Bengal) and their British overlords. It is thus suggested that while instituting colonial rule in the late eighteenth century, British imperialists also introduced a new concept of religion-based distribution of legal authority to India.
© Center for the Study of Law and Religion at Emory University. Accepted manuscript version deposited in accordance with SHERPA RoMEO guidelines. The definitive version is available at http://journals.cambridge.org/abstract_S0748081414000204.
Vol. 29, Issue 3, pp. 396 - 415