Introduction

This paper will look at the legal career of Saiyid Amir Ali (older spelling: Syed Ameer Ali) (1849–1928), the first Indian and first Muslim judge on the Judicial Committee of the Privy Council. To South Asianists, Amir Ali is known mainly as a politician and writer. He was a founder member of the All India Muslim League and its London branch, and as such he played a key role in lobbying the British government of India for special constitutional safeguards that would recognise Indian Muslims as a distinct political entity.¹ Thus he has been seen as a separatist leader, or conversely as a contributor to the nationalist movement for Pakistan. More broadly, Amir Ali has been seen as an Islamic modernist and a liberal – albeit one who remained more concerned with salvaging Islam’s public image than with genuine restructuring of gender and class relations, or the formation of a truly liberal polity.²

In general, historians remain unenthusiastic about this weak-kneed liberal, who also arguably lost touch with India by marrying an Englishwoman and moving to England.³ In all this, very little attention has hitherto been paid to his legal career – although he was an acknowledged authority on Islamic law, and one of the most eminent Indian judges and legal scholars of his generation. This paper works from the premise that a pioneer non-European judge with well-developed socio-political views on precisely the area of his professional expertise – Islam and Islamic law – deserves more attention as a cultural intermediary, specifically within the field of cultural translations that colonial law provided.

This observation is in line with recent transnational historiography on ‘colonial lawyering’, incisively surveyed by Mitra Sharafi.⁴ In her extended review of recent research on (principally) non-Western lawyers in Mandate Palestine, India, Singapore and the Gold Coast (now Ghana),⁵ Sharafi directs attention to the manner in which such legal professionals acted as cultural intermediaries. Cultural mediation, she says, involved inhabiting and exploiting the imperial legal system in order to construct legally recognised cultural truths about the collectives that these lawyers claimed to represent, either through belonging or sympathetic expertise. Pointing to the wide range of cultural and political agendas pursued by these legal professionals, who, like ‘native anthropologists’ claimed authoritative knowledge about ‘their’ communities, Sharafi urges researchers to resist slotting them into heroic or villainous roles in colonial epics. She also recommends being methodologically cautious in uncovering the personal beliefs of professional lawyers, and resisting conflating the views of these ‘experts’ with the perceptions of those that they claimed to represent.

These warnings are particularly relevant when evaluating Amir Ali’s oeuvre. Besides the matter of the accuracy of Amir Ali’s highly opinionated representations of Indian Islam, there are significant obstacles in reconstructing the dense interplay between his own professional and personal views. His private papers no longer exist, having been destroyed by his family on his express instructions. Although a published memoir is available, this is a complex document in which the facts of the protagonist’s life and his aspirations are mixed, possibly with those of his wife and son, who posthumously edited and published it.6 On the other hand, Amir Ali wrote copiously in various forums – newspapers, proceedings of professional and amateur societies, legal treatises, works of history, as well as his remarkably detailed judgments. He was inclined to constantly self-reference, as a result both of a near-obsessive social vision based on a progressive conception of Islam, and as a strategy of argumentation, such that having established the ‘truth’ in one area, he was wont to draw on it for evidence that Islam was a civilising, moral force working through universal human history. This paper proposes to read his legal treatises with close attention to his writings in other genres. It does so with the specific aim of tracing his intellectual debts, creativity and challenges in establishing his favoured vision of Islam within the British imperial legal system.

Research published since 2000 has begun to point out that colonial rule did not merely fossilise the Islamic legal tradition, as had been argued earlier,⁷ but also offered many opportunities for creative interpretation by those adept at negotiating the system.⁸ In the specific area of law, this was enabled by judicial interpretation of, and legal activism over the uncodified religious laws that applied to Indians under British rule. Added to this was a dramatic internal re-evaluation of the sources of religion in all communities, leading to a sort of scriptural fundamentalism. In Islam, this entailed the necessity for every Muslim individual to understand and act upon the Quran and the sunna (traditions), without reliance on traditional experts for mediating these texts.⁹ Amir Ali’s successes and challenges deserve to be evaluated against the backdrop of that multilayered and multilingual milieu of debate over the nature and implications of Islamic law.

Islamic law in colonial India until Amir Ali

At least since the 1770s, East India Company officials, judges and scholars had been engaged in projects of discovering what they called by variations of the term Muhammadan law. The context for this was the setting up of the Company state in eastern India, and the erection of what were effectively two separate systems of tribunals. According to a scheme of judicial reform adopted in 1772, there was to be a hierarchy of criminal and civil courts under the Company’s aegis, which would apply a modified Islamic criminal law, and admit Islamic and Hindu laws for Muslims and Hindus in certain civil matters.10 British Parliamentary legislation (by the Regulating Act of 1773) also created Crown courts, located at the three cities of Calcutta, Madras and Bombay, which generally applied English law, but had rules for admitting Islamic and Hindu civil laws as personal status laws. The jurisdictions of these courts overlapped.¹¹

For the first twenty years or so of their existence, all these courts depended exclusively on Indian legal experts, Muslim maulvis and Hindu pundits, to state the relevant law for specific cases. In privately published reports of cases from this period one finds both a continuation of the traditional process of Islamic jurisconsults or muftis delivering non-binding fatawas or responsa to particular problems,¹² as well as a British-led process of abstracting more generalised rules from these responses.¹³ This was particularly so where the cases impinged upon pressing policy imperatives. As others have shown, the need to create adequate deterrence against homicide,¹⁴ to prevent the burning of Hindu widows,¹⁵ or to regulate slavery,¹⁶ all produced sets of rules that were supposed to be the Muslim and Hindu laws on the subject, and that then could be accommodated, modified or rescinded, depending on the political climate. Very soon however, this ad hoc discovery of law was partly replaced by the production of more stable texts – in English – in which British judges could discover the truth about Hindu and Mahommedan laws without having to rely on the ability, and especially the honesty, of traditional Indian experts, a matter that British judges were never confident about. Such experts were removed altogether by Act No. XI of 1864.¹⁷

It would be simplistic to suggest that this Act represented the replacement of embodied authority with socially abstracted texts. Islamic law from the classical period onwards was very much concerned with texts of several kinds. The difference was in terms of the status of particular texts within the overall system and the nature of the judicial process itself. While the ultimate referent for Islamic law was always the Quran, and secondarily the collections of traditions or hadith, the main texts that muftis or Islamic juriconsults referred to when their opinion or fatawa was sought were fiqh texts. Fiqh texts ranged from collections of individual fatawas to more abstract texts (furu‘), which summarised the doctrines of a particular school of law, or the doctrines on particular matters such as sale.¹⁸ No such single text formed the inevitable source of law in any particular trial or dispute – muftis could choose between different texts, and qazis or judges decide whether or not to apply any individual fatawa.

Initially, it was such fiqh texts that were translated as part of the British effort to pin down Islamic law, beginning with the twelfth-century text called al-Hidayah (Hedaya) – translated first to Persian by a team of Islamic scholars and then to English by Charles Hamilton in 1791. This was followed by the translations of Al-Sirajiyyah on inheritance, and its commentary Al-Sharafiyah, by the Orientalist and Supreme Court judge William Jones in 1792. Eventually, books with a somewhat greater degree of British authorship were produced, such as A Digest of Mohummudan Law According to the Tenets of the Twelve Imams (1805) – an incomplete work on commercial transactions – based on several Shi‘a fiqh works and compiled by Captain John Baillie, a Scottish Orientalist and East India Company employee. In the meantime, Muslim law officers continued to write fatawas for every case – citing several other texts,19 and Company officials produced long bibliographies of the many fiqh texts in use in and around Calcutta.²⁰

Baillie’s work of synthesis was followed by that of another Orientalist and judicial official, William Macnaghten. His Principles and Precedents of Moohumuddan Law (1829), ran into several annotated editions, and was a result of harvesting the colonial legal system itself. Macnaghten collected the fatawas given by the muftis in the Company’s courts and treated them like common law precedents, generating from them a logically arranged set of ‘principles’ or doctrines of Islamic law – limited, of course, mainly to family, inheritance and personal status matters, which were the only matters for which Islamic law remained relevant in the British Indian legal system. The final and intellectually poorest stage in the textualisation process was the production of manuals based on Macnaghten, such as the one produced in 1869 by Standish Grady (1869), styled Reader in Hindu, Muhammadan and Indian laws to the Inns of Court, as well as further simplified manuals of deteriorating quality.²¹ These books omitted the ‘precedents’ of real-life legal reasoning, and turned Islamic law into a list of tedious rules for British students studying Indian law in Britain to memorise – or ignore.

Scholars working on Islamic law in colonial India generally agree that by the late nineteenth century what emerged out of this process was a seriously truncated set of laws, applying mainly to family matters.²² The substantive law was transformed by sourcing it from a very limited set of translated texts and precedents derived from the colonial courts themselves. All of this was even further transformed by being combined with alien laws of procedure and, as indicated, was characterised by the removal of Indian legal experts and expertise. It is in this context that Amir Ali’s efforts to reopen the question of sources and content of Islamic law, and his success in establishing himself as an authority on the subject, should be evaluated.

The boyhood and education of Amir Ali

Amir Ali belonged to a Shi‘a Muslim family of Iranian ancestry long settled in India. The family came to rest in Chinsurah, a Dutch settlement near Calcutta, and Amir Ali’s father decided to give his sons a modern English-language education, apparently under the influence of a high-ranking British official.²³ He sent them to a government school attached to a Shi’a religious institution – the Hugli imambarah – the largest religious endowment in Bengal, created by a private donor and subsequently managed by the government as a public charity.²⁴

The religious head of the imambarah, a scholar called Karamat Ali, formed an important influence in Amir Ali’s life, or so Amir Ali liked to claim subsequently. They were certainly close enough, and Amir Ali had sufficient Urdu as well as English to co-translate Karamat Ali’s treatise on the origins of knowledge, Makhazi uloom (1867). This book, written in response to an official invitation issued by the Evangelical and reformist official, G.E. Trevelyan, was one of several made-to-order Indian exegeses on the value of modern (i.e. English) education. In a style of argument that Faisal Devji has called ‘apologetic modernity’,25 and which Amir Ali would clearly reproduce in his later works, the book asserted the Quranic origins of all the basic scientific principles; an assertion that then enabled the author to take a liberal stance on all subsequent exchanges of information between different cultures. This translation project and the resultant publication also offered Amir Ali his first opportunity to claim traditional theological learning, and he billed himself as ‘Moulvie’ on the book’s title page.

Like other elite Muslim boys, Amir Ali was taught Persian and Urdu at home by a maulvi or Muslim religious teacher; and learned some Arabic as well. When college-level classes were introduced at Hugli (in 1857 – according to the year of affiliation), Amir Ali became one of the first students, and the first Indian Muslim to gain a MA from Calcutta University. When Amir Ali prepared for his examinations for the Bachelor of Law degree from Calcutta University in 1868, he studied, alongside Blackstonian jurisprudence, international law and contracts, Hindu and ‘Mahommedan law’. For Muhammadan law he read Macnaghten’s Principles and Precedents, but unlike British students, who by this time were likely to read only Macnaghten or further simplified manuals, Amir Ali had to also study a classical language from a range of options, of which he most probably chose Arabic or Persian – having already studied them at home.²⁶

Funded by a government scholarship, Amir Ali travelled to England to acquire further qualifications, and enrolled with the Inner Temple in 1869. In general, Amir Ali’s time as a student at the Inner Temple appears to have been uneventful – although he may have been involved with a successful student petition against a proposal in 1872 by the Council of Legal Education to discontinue classes on ‘Hindu and Mahommedan Law, and on the Law in force in British India’.²⁷ Thus, during Amir Ali’s student days in Britain, the point had been made by Indian law students, possibly by Amir Ali himself, that Hindu and Islamic laws formed an integral part of the British legal system. This would eventually become a crucial argument in Amir Ali’s subsequent publications.

Forming the social vision

In contrast to his quiet presence (or perhaps absence) in the Inner Temple, Amir Ali led a hectic social life outside. Thus he fell in with British Unitarians, suffragists and abolitionists, including Milicent Garrett Fawcett and her husband, Henry. While these connections provided his access to public platforms, they also subjected the young man to uncomfortable social and intellectual challenges as he found himself cast as Islam’s representative in the West, and called upon to answer for its supposed propensity towards enslavement, especially of women. The result was an early sharpening of apologetic language, one focused on women’s rights in particular.

In his first public lecture from the National Indian Association’s platform in 1872, Amir Ali asserted that Islam, far from enslaving women, gave them rights far beyond any of the ancient systems of law. His first English-language publication, A Critical Examination of the Life and Teachings of Mohammed (henceforth Critical Examination), published the following year, expanded on the same ideas, asserting that with the Prophet Muhammad ethics and law were fully and effectively united for the first time, and without the assistance of any royal disciple – unlike Jesus, Moses, Zoroaster or Buddha.28 There were, he said, five principal bases on which Islamic laws were built – these turned out to be not the traditional sources of Quran, hadith, ijma and qiyas – but unity of Godhead, charity, subjugation of passions, gratitude to God and accountability for one’s actions.²⁹ Clearly, he was talking somewhat generally about social ethics, with little professional attention to the sources of law.