Translating the Hedaya: colonial foundations of Islamic law

Chapter 11
Translating the Hedaya

Colonial foundations of Islamic law

John Strawson

World history is the history of empires. Islamic history is no exception. The rise of the European empires in Asia, including the British, was not the introduction of empire to the continent but rather the replacement of one by another.1 In India, the British succeeded the Moghuls, and adapted their rule to the administrative and legal systems that had gone before. This chapter is part of a wider project to analyse the discourses of Islamic law (accounts of usul al fiqh and shari’a) during British rule in India. The concern here is with the translation of a twelfth-century text al hidaya (Hedaya) of Marghinani by Charles Hamilton in 1791.2 This translation, it has been argued, constitutes a pivotal moment in the construction of colonial images and indeed of systems of Islamic law.3 The translation served the British colonial objective of establishing its rule in the eighteenth century through a careful policy of putting indigenous legal systems to the service of empire. At the same time the form of the translation and the introduction to it were to remain influential into the twentieth and twenty-first centuries.4 While this line of historical analysis is well trodden5 the quality of the construction is rarely considered. The focus of this chapter is to rethink the translation and the text itself in the context of the relationship between Islamic law and empire. The purpose of this reconception of the relation ship is to attempt to avoid two problems that are associated with postcolonial discourse: first the essentialist argument that Western colonialism sullies a pure ‘other’ and second the circular reinscription of the centrality of the West.

In attempting to assess the power of the images of Islamic law circulated in the wake of European imperial conquest, attention is naturally given to the way in which the colonial powers intervened and reconstructed the occupied society. Law has a particular significance in this process for it intimately affects governance as it negotiates the relationship between the governors and the governed. Rajah Shehadeh has argued that legal narratives are an account of the relationship between a people and its land.6 This account is seductive, and sets the scene well portrayed in postcolonial accounts of law, where the violent interruption of the colonial power separates the people from their land through the constitution of a new legal order which becomes the occupiers’ law. In this account the assumption is that the law of the pre-colonial society is deeply embedded within society itself and had a demotic character. It is this binary distinction between the colonial self and the colonized other that is played out as law is used to transform all levels of legitimacy. Through this process law is taken out of the hands of the colonized and reconstituted on the colonial terrain.7 This account contains the notion of the defilement of pre-colonial society. Two problems arise with this starting point. First, law is constructed as a natural social institution that is never in conflict with the community, but an outgrowth of it. Second, the assumption is often that pre-colonial society lacks any hierarchical or stratified character that is associated with a state. In this account the pre-colonial designation is highly abstract and lacks its own history. In this chapter I seek to reconstruct the translation of the Hedaya within a concrete historical setting. In other words my purpose is to analyse what it was that was translated. While not setting out to sooth the violent impact of British colonialism on India, the concern is to understand the nature of the disturbance to Islamic law caused by the English translation of the Hedaya. Although this chapter does not undermine the insights of postcolonialism it takes its cue from Edward Said and his injunction to take into account the ‘gravity of history’.8

The British encounter with Islamic law in Bengal was necessarily a very specific one. The local law was not a generic Islamic law, nor was it Islamic law in its classical form, but a system of Islamic law that had been crafted by the Mogul Empire, itself a successor to several centuries of Islamic rule in India.

The legal situation in Bengal following British control after the Battle of Plessey in 17579 was somewhat fluid as the British East India Company attempted to promote increasing British control of commerce while acting in concert with the Mogul system. As Harington observed, ‘previous to the year 1793, the territorial possessions of the East India Company were without a general code of British Laws and regulations’.10 While many regulations had been adopted, no settled system has been created. This unsatisfactory situation needed to be remedied, as Harington argued, because it was ‘a primary and essential duty of every government towards its subjects, that of publishing and enforcing an equitable system of law, adapted to their actual condition and circumstances and calculated to protect them in the secure enjoyment of their rights, natural and acquired’.11 In this context he recorded that ‘the inhabitants, Mohomedans as well as Hindoos, were in possession of their respective written laws; under which they had acquired property, by descent, purchase, gift and other modes of acquisition; and which, from their religious tenets and prejudices they had been educated and habituated to regard and venerate as sacred.’12 It was against this background that Warren Hastings as Governor General began to place law in a more systematic order that would be able to accommodate both British laws and regulations and the legal systems of Muslims and Hindus. As part of this project he initiated the translation of a series of legal works of scholars of those systems. The translation project was to provide colonial administrators and judges with independent knowledge of both so that they would no longer be dependent on Muftis and Pandits to interpret them alone. In addition the translations would provide the colonial administration with an overview of the legal orders of the conquered; in a sense a juridical map that would facilitate their incorporation into the imperial order, much as cartographical maps had facilitated physical occupation. The work on the Hedaya was well known before its publication. In 1786 Francis Gladwin13 published his Epitome of Mohammedan Law14 a translation of excerpts from the Persian work Mirat al Miffayil. In the preface Gladwin explains the purpose of his book:

[It] conveys a general idea of Mohammedan law, of which we are at present but little informed, it may prove acceptable to the publick, till such time as they shall be favoured with that noble work the Hedayah, which has been translated into English by Mr James Anderson and Captain Hamilton, under the immediate patronage of Mr Hastings.15

The choice of the Hedaya as the key reference for Islamic Law was not accidental and was on the advice of the Muslim scholars. Hamilton16 who completed the translation from the Persian explains this in his introduction to the text: ‘Some learned Mohammedans who were consulted on this occasion, thought it, moreover, unfair that the British rulers should receive their first impression of the Mussulman legislation from a bare recital of examples, such as composed the Fattawee Allumgheeree.’17 The latter is somewhat misleadingly named as the text is actually an attempt to create a systematic account of Islamic legal principles that underpinned fatwas during the Mogul period. Accordingly, it is a distillation of principles rather than just a series of fatwas.18 As such this reflects the rather different manner in which the Mogul legal system used fatwas less in their classical role as the purely independent opinion of the jurist on a particular circumstance and more as an instrument of general use in a process of conversion that Kugle suggests was to be radically developed by the British in the nineteenth century.19 This collection then was an interesting early Islamic legal project, which has some features similar to codification.20 However, as Hamilton and the British learnt from their native informers, the publication constituted merely evidence of legal norms and would not explain the method of articulating legal principles. The Islamic scholars advised that:

previous to any further step, a translation should be executed of some work which, by comprehending, in the same page, the dictum and the principles, might serve at once as an exemplar and an instructor; and for this purpose they recommended the HEDAYA, because of its being regarded (particularly throughout Hindostan) as of canonical authority, and uniting, in an eminent degree, all the qualities required.21

As to the translation itself, Hamilton is open about his approach to the task, explaining:

In this comment Hamilton perhaps reflects the first signs of some frustration that the Hedaya is not a codified legal text. He also accepts the difficulties of dealing with a text over which experts have argued the accuracy of some of its passages over centuries. However, he seems not to have quite grasped the full reason why Muslim scholars had recommended the text in the first place, which was not its exposition of norms but rather that it contained Islamic legal reasoning. The book is accurately described by its title as it provides a guide through the complexities of Islamic legal issues. It offers not legislation but rather a series of arguments and interpretations of the sources of Islamic law by eminent scholars who sometimes reach different conclusions on the same point.23 It leaves the final choice of interpretation and application to the intended reader, the judge or the official who is assumed to be an expert in Islamic jurisprudence. The book’s prominence among Indian Muslim scholars and jurists was a direct result of the way in which Islamic imperial powers had circulated Hanafi jurisprudence and with it the Hedaya throughout the region.

None the less, at another level Hamilton does understand the character of the text. In his account the rich sources of Islamic law have to be seen historically. As a result he is keen that the reader will be introduced to the critical moments in the development of Islamic law. In introducing the Hedaya he sets the context of Islamic law through a narrative of the Qur’an, the Prophet, the post-Prophetic period and the development of the schools of law:

[It is] an extract from a number of the most approved works of the early writers on jurisprudence, digested into something like the form of a regular treatise… it possesses the singular advantage of combining, with the authorities, the different opinions and explications of the principle commentators on all disputed points.24

He was aware that the Hedaya, the leading handbook within the Hanafi school of law,25 had been written for scholars learned in Islam and its law and that it required explanation. His introduction, he thought, would also play a role in helping British judges understand the key selections of the text and the context in which they were written. Hamilton accurately provided the chain of authority that had produced the work, earlier digests and commentaries in Hanafi jurisprudence. Beyond Abu Hanifa and the founders of the other Sunni schools, Hamilton is keen to introduce the reader to three other scholars, Aboo Yoosaf, Mohammed and Ziffer26 because he understands that it is difficult to make sense of the book unless the reader understands the sources of Islamic law and the status of those authorities interpreting it and their place with Islamic legal history.27

Hamilton explains the colonial reasons for the selection of the Hedaya. The brief that had been given to colonial officials was to provide ‘some authentic guide for aiding them [the British] in their superintendance [sic] over the native judicature’.28 However, ‘they discovered in the books… a system copius without precision, indecisive as a criterion (because each author differed from or contradicted another), and too voluminous for the attainment of ordinary study.’29 He rejects one method of making colonial sense of this:

[F]rom these a compendium might indeed have been abstracted but, being a mere compilation, it would have been considered rather as a new code than as a revision of the old, and would not, in the idea of those upon whom it was intended to operate, have borne the authority of an original work.30

In Hamilton’s opinion the selection of the Hedaya was an attempt to ensure that there was an authoritative text that held a genuinely significant position in Islamic law.

A feature of Hamilton’s preliminary discourse is his history of the Hanafi school of jurisprudence and his desire to place the authority of the Hedaya within it. This determination to make the case for its authority is striking and underlines the sensitivity of the colonial administration to prove not merely to the colonized elites but also to the colonial officials that it was in command of the legal field. His exposition of the history of the Hanafi school is thus not merely a display of scholarship. It aims to give the colonial administrator and judge the confidence that the imperial power has special access to local knowledge. It also illustrates the way in which colonial knowledge claims to be universal knowledge.31 However, Hamilton’s history of the Hanafi school, although accurate in identifying some of its main jurists, has none of the drama that characterizes his early passages that outline the early phases of Islam: the prophet’s mission, the divisions after his death and the battle of Karbala. Nevertheless, in order to place his translation in context it is necessary to reflect that the emergence and development of the Hanafi School, as with all Islamic law, is intimately bound up with empire.

Islamic law as a system defined by both jurisprudential scholarship (usul al fiqh) and as a normative order (shari’a) emerges in the eighth and ninth centuries CE, and in particular as the Umayyad Empire declines and the Abbasid Empire establishes itself.32 In geographical terms this represents the movement of the centre of Islamic power eastwards from Damascus to Baghdad. This shift in the middle of the eighth century undoubtedly played a major role in fashioning the intellectual environment in which Abu Hanifa (699–767 CE

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