SEHR, volume 5, issue 1: Contested Polities
Updated 15 February 1996
Jane F. Collier
If, as seems possible, Islamic "fundamentalism" comes to replace communism as the principal perceived threat to Western reason and democracy, sociolegal scholars may incur a special obligation to analyze the historical processes that constructed the cultural opposition between "our" supposed rule of law and "their" imagined religious fanaticism. Law, particularly criminal law but also family law, occupies a central place in the developing opposition between "us" and "them," in contrast to the focus on economic issues that dominated the cultural opposition between "communism" and the "free world." In the coming new world order of nationalist struggles and ethnic confrontations, sociolegal scholars may not be able to remain silent, for if we fail to explore connections between Western and Islamic legal systems, we only contribute to media stereotypes of Islamic law as regressive and feudal and of Islamic political activists as religious fanatics.
In his new book Culture and Imperialism, Edward Said argues that scholars must analyze connections between the histories of Western imperialist powers and the places they colonized and dominated, because only by understanding our shared history can we counteract the divisive and destructive forces of contemporary movements to rediscover "essential" cultural values, be they American, British, Arab, Muslim, Christian, Indigenous, or whatever. Said criticizes both imperialists and those they dominated. He condemns Westerners for misunderstanding the role of imperial conquests in shaping their culture -- a culture they continue to regard as superior to all others. And he condemns dictatorial leaders of successful national liberation movements for putting national security above the goals of human liberation and democratic participation. Although Said focuses on literature rather than law, his criticism of essentialist thinking is as applicable to legal treatises as to novels. Histories of Western law that ignore the imperialist context in which it developed and histories of dominated peoples that stress their preservation, rather than their innovative uses, of tradition both fuel dangerous stereotypes of Western law as dynamic (whether progressive or decadent) and Islamic law as conservative (whether pure or backward).
The books reviewed here analyze the complex relationship between Western and Islamic legal systems, offering excellent guides to the subject for sociolegal scholars like me who are not specialists in Islamic law. These books demonstrate that "Islamic law" is neither a holdover from the past nor a return to ancient roots but rather a complex, multistranded set of ideas and practices that Islamic peoples molded and modified as they resisted and accommodated Euro-American imperialist ventures. Modern Islamic legal systems, like the modern common and civil law systems of Western democracies, took their present form over the past two centuries as Westerners spreading capitalism and others pursuing different goals interacted and influenced each other across the globe. Fitzpatrick, in a book not reviewed here, analyzed the role of Euro-American imperialism in the invention of modern Western law. Drawing on Foucault's history of disciplinary systems, Fitzpatrick argues that the eighteenth-century man of reason was constructed by imagining others as slaves to despots, custom, or biology, while nineteenth-century Western thinkers represented their law as the pinnacle of human achievement by inventing an evolutionary sequence leading from primitive custom through archaic status codes to modern contract law.
Starr's Law as Metaphor and Messick's The Calligraphic State analyze changes in Islamic legal traditions, providing the kind of historical perspective that Said advocates. Focusing on transformations in the legal systems of what became Turkey (Starr) and Yemen (Messick), their books reveal the creativity of Islamic peoples who were defined by nineteenth-century imperialist powers as stuck with archaic status codes that failed to separate religious from secular law. Both Turkey and Upper Yemen escaped direct colonial domination, but local elites nevertheless had to find ways of preserving as much independence as possible in a world where Western powers were eager to provide "law and order" for those deemed to lack these benefits. Both books also discuss recent movements in Turkey and Yemen to create Islamic, as opposed to secular, states.
In writing this review, I face a problem recognized by the authors: how to write about historical transformations in legal systems without invoking, however unwillingly, an evolutionary narrative implying that changes toward contemporary Western models are progressive. Messick is particularly sensitive to this issue. He tries to disrupt the narrative of progress by discussing changes in various aspects of the legal system in separate sections of his book and by stressing the local, unique character of developments in Yemen. But his strategy is only partly successful. The changes he describes are so similar to those occurring elsewhere that they invite comparison. I will try another strategy: the project of tracing intertwined histories proposed by Said. I will suggest that the legal ideas and practices of very different peoples developed in similar ways because all groups were interacting over the past two centuries. The appearance of evolutionary progress is not coincidental. Western imperial powers had, and continue to have, the control over communication technologies and the military might to define our legal system as the goal of human development.
The books reviewed here identify three moments in the recent intertwined histories of Islamic and Christian peoples, a first moment before European imperialism, a second moment of imperialism and the development of resistances to it, particularly in the form of national liberation movements, and a third, most recent, moment of ethnic or essentialist revival. The books concentrate on the long second moment, analyzing struggles among and within imperializing powers, modernizing elites, and traditionalists who often defined modernizers as sell-outs and heretics. Said and Starr observe that such struggles provide the context for understanding the third moment of recent efforts to revive or purify ethnic and religious heritages. Messick offers the most complete discussion of the first moment. But because he agrees with Mitchell's observation that "[c]olonial power required [colonized societies] to become readable, like a book," Messick is wary of trying to describe other ways of being. Instead of depicting supposedly precolonial practices, he focuses on the colonizing processes that constructed previous forms as backward and disorderly.
June Starr's book analyzes the history of Turkey's legal system, providing an excellent framework for understanding recent developments in Islamic legal systems and societies. When Starr studied disputing processes in the Western Turkish town of Bodrum in the mid-1960s, she found almost no traces of Islamic legal structures and little interest in pursuing Islamic solutions to conflicts. But when she returned to Turkey in the late 1980s, she found that increasing numbers of Turks believed it was impossible to be both a good Muslim and a good citizen of the secular Turkish state. Starr disagrees with those who treat Islamic fundamentalism as a recent development. Instead, she argues that secularizing and Islamicizing elites have been contesting state power for more than a century, first in the Ottoman Empire, then in the Turkish nation.
Islamic and Christian polities have had, of course, a long history of opposition to and borrowing from one another, often borrowing under duress or to become more effective opponents. During the Renaissance, Europeans borrowed scientific ideas, statecraft, and military strategies from imperialist Islamic states. A few hundred years later, Ottoman rulers borrowed from imperialist European republics. Early in the nineteenth century, Ottoman civil servants instituted what Starr describes as a revolution from above in an attempt, led by the military, to strengthen the Ottoman Empire against its Western European and Russian enemies without and to obtain Western arms and help for conquering rebellious groups within. Building on an Ottoman tradition of imperial legislation in areas supposedly not covered by the shari`a (an Arabic term referring to Holy texts and their commentaries that Messick translates as "God's plan for the Muslim community; the central societal discourse; Islamic law"), Ottoman bureaucrats founded technical military schools, instituted military conscription, replaced tax farming with fixed taxes, paid salaries to officials to discourage corruption, sent students to France to learn European languages, and (under pressure from European imperialists) established secular commercial courts.
During the first half of the nineteenth century, modernizing bureaucrats avoided direct challenges to Islamic power holders by setting up alternatives to Islamic schools and courts rather than replacing them. In 1858, however, Ottoman bureaucrats bowed to European pressure and adopted a criminal code based on the Napoleonic code of 1810 that abolished Islamic punishments, treated all citizens of the Empire as equal regardless of ethnicity or religion, and allowed appeal to higher courts. In 1868, they separated legislative and judicial functions, establishing a Ministry of Justice to administer the hierarchy of courts enforcing the secular commercial and criminal codes. And in 1867, they undertook the task of codifying parts of the holy shari`a that were deemed to deal with economic transactions. Finally, in 1876, in a moment of military crisis, they enacted a constitution modeled on the Belgian Constitution of 1831, establishing a constitutional monarchy with an elected chamber of deputies.
Only two years after enacting the Constitution, the sultan placated outraged Islamic leaders by suspending the Constitution and closing parliament. Many reformers fled to Europe where they adopted an increasingly nationalist rhetoric. Communicating through newspapers, they created the idea of a Turkish people and a Turkish nation, in contrast to the idea of a multiethnic, hierarchical, Islamic empire ruled by a sultan who combined secular and religious offices. During the early years of the twentieth century, the reformers moved in and out of power, finally taking control after the Ottoman defeat in World War I and the dismemberment of the empire in the Treaty of Versailles in 1919. Led by Ataturk, who established a Turkish nation by 1923, the reformers set about creating a secular state. Ataturk's government curbed the power of Islamic leaders, required children to attend secular schools, strengthened the system of secular courts, put Islamic courts under the Ministry of Justice, adopted a Roman script for Turkish, advocated Western dress, and gave women the vote in 1930.
Against this historical background of political struggles, Starr analyzes developments in Western Turkey where she did field research. She explores the interplay between legal changes and the growth of commercial agriculture, focusing on transformations in landholding patterns and family arrangements. She observes that by the 1960s, the secular courts seemed well integrated into local patterns of life. Court dockets were full, the judges were respected. No one criticized the legal system. Starr writes that "It never occurred to me in the year and a half I studied disputes in Bodrum courts to ask if there were a misfit between the legal system and the values of the local population." Since the 1970s, however, Islamic groups have gained power in Turkey and are increasingly challenging secular rulers. Starr not only notes continuities with earlier struggles between secular and Islamicizing elites but suggests, ironically, that the very success of democratic processes after Ataturk's death in 1938 may have encouraged the development of political parties seeking the Islamic vote.
Messick also emphasizes continuities in the long struggle between secularizing and Islamicizing elites, but he focuses on identifying moments of significant change, when exercises of power elicited new practices that transformed the context of subsequent struggles. Messick did field research in Upper Yemen, a highland area that even Arab scholars tend to view as exotic and backward. Lower Yemen, particularly the important port of Aden, was a British colony from 1839 until 1967, but Upper Yemen remained free from colonial domination by European powers. In 1872, however, it was conquered by and incorporated into the Ottoman Empire. When the Empire was dismembered in 1919, Upper Yemen was returned to its former rulers, imams who traced descent from the Prophet Muhammad. In 1962, a revolution overthrew the Islamic imams to create the Yemen Arab Republic. Finally, in 1990, Upper Yemen united with lower Yemen, which had become the People's Democratic Republic of Yemen after decolonization in 1967, to form the Republic of Yemen.
Messick shows how the nineteenth-century Ottoman reforms discussed by Starr transformed the context and, therefore, the consequences of legal interpretation and practice in Upper Yemen. He observes that even though the ruling imams experienced their struggle with invading Ottomans as a fight between two schools of shari`a jurisprudence (rather than as a struggle against foreign invaders), Ottoman reforms transformed the debate from a theological one between interpretive traditions to one between "tradition" and "modernity," experienced as an opposition between Islamic theocracy and Western secularism. The Ottoman penal code of 1858 that abolished Islamic punishments, for example, established those punishments as a key symbol of legitimate Islamic rule, replacing earlier theological debates over whether a sultan or an imam should govern. Even more transformative were Ottoman efforts to codify sections of the shari`a dealing with economic transactions. Messick shows that simply attempting to codify the shari`a transformed it from God's plan for the Muslim community, as revealed in sacred texts and passed down through generations of revered teachers, to a cumbersome and obscure source of law whose mixture of normative, moral, and religious precepts required untangling in order to serve the needs of a modernizing state. Similarly, Ottoman secular schools transformed mosques from centers of learning into places of religious instruction. And by introducing court registration of legal documents, the Ottomans established written texts as more authoritative than the oral testimony of reputable witnesses.
When the hereditary imams returned to power in 1919, they restored theocratic rule, but retained many Ottoman innovations. They reinstituted Islamic punishments, but by publishing accounts of them in newspapers, they affirmed their importance as key symbols of legitimate rule. The imams closed Ottoman schools, but transformed instruction in the mosques by providing salaries for teachers, sending teachers out to rural districts, and organizing students into graded classes based on passing examinations. And they continued to register legal documents. Most importantly, the post-Ottoman imams faced political opposition, not from adherents to a different school of shari`a jurisprudence, but from modernizing elites who disparaged theological differences as attempts by hostile outsiders to divide and weaken "the people of Yemen." Over time, the imams, too, slowly transformed their justification for rule from God's will to the will of the people.
When modernizing elites deposed the reigning imam in 1962, they continued the slow transformation of the shari`a from God's plan for living into one source of Yemeni law among others (legislation, custom, and justice). In 1975, the Ministry of Justice commissioned a body of shari`a jurists to draft legislation reflecting "Islamic shari`a principles in the form of modern codified laws appropriate to the spirit of the age and its requirements." Messick observes, however, that the resulting volume of laws contains mainly legislation drafted by government economists and commercial experts, along with administrative regulations drafted by ministry bureaucrats. Messick thus documents the slow shift in Yemeni political ideology from an imagined hierarchy established by God, in which it was the duty of the educated to guide the ignorant, to an imagined nation of equal citizens, each of whom has the duty to know and obey the law. Messick argues that the development of a homogeneous citizenry reflects, not the progressive evolution of Yemeni social forms but rather the gradual incorporation of Yemen into the structures of the world system.
In contrast to the books by Starr and Messick, which provide detailed accounts of historical changes in specific societies, Said studies the structures of the modern world system by analyzing the intertwined histories of Western imperialists and those who resisted them. He focuses, in particular, on the role of Euro-American imperialism in spreading static notions of cultural identity, such as that reflected in the Preamble to Yemen's 1967 Constitution, which describes the Yemeni people as sharing "character, customs, and heritage." Said observes that nineteenth-century imperialists may not have invented the idea "that there is an 'us' and a 'them,' each quite settled, clear, unassailably self-evident," but they propagated it. The idea of distinct cultures became a hallmark of imperialist cultures as well of those resisting imperialism. Said, as noted earlier, condemns essentialist thinking wherever it occurs: "No one can deny the persisting continuities of long traditions, sustained habitations, national languages, and cultural geographies, but there seems no reason except fear and prejudice to keep insisting on their separation and distinctiveness." Human survival, he argues, depends on recognizing connections. Instead of celebrating cultural uniqueness, or even comparing cultures (a project that assumes their separateness and difference), intellectuals should explore the historical relationships between national literatures (and legal systems).
Said's book is devoted to documenting his assertion that "because of empire, all cultures are involved in one another; none is single and pure, all are hybrid, heterogeneous, extraordinarily differentiated, and unmonolithic." In the book's longest chapter, he explores the role of imperialism in shaping Western culture, showing, for example, that the British imperial vision pervades Jane Austen's domestic novels as well as the overtly colonialist novels of Kipling and Conrad. Even "scientific" contributions, such as Sir Henry Maine's analyses of legal change and Sir Roderick Murchison's invention of geology, grew from their authors' experiences as colonial officers. Said observes that for the last two centuries, at least, the achievements of British, French, German, and U.S. culture reflect an unquestioned sense of superiority derived from interactions with others whom Westerners classified as inferior.
When criticizing essentialist thinking among people who were the objects of Western imperialism, Said is equally harsh on those who view liberation movements as direct continuations of preconquest battles against Western invaders and those who treat democratic aspirations as derivative of Western models. The former miss the role of imperialism in shaping today's inevitably hybrid cultures; the latter miss not only the inventiveness of non-Western peoples but also their contributions to world culture. In a fascinating section documenting such contributions, Said compares two books from the 1930s to two more recent books, noting a transition from optimistic, accessible narratives of national emancipation to ironic, fragmented, scholarly texts that disrupt and contest the imperial myth of progress. The books by C. L. R. James (1938) and George Antonius (1938), who wrote about the Caribbean and Arab worlds respectively, deal with "events in the past" in order to detect "a native or colonial reality that was ignored or betrayed by Europe." The two more recent books by Ranajit Guha (1963), an Indian scholar, and S. H. Alatas (1977), a Malaysian, deconstruct Western ideologies in order to detect contradictions in colonial strategies that continue to inform the policies of postcolonial governments. This change from optimistic to critical narratives may reflect a shift in the stance of intellectuals related to the replacement of colonial governments by postcolonial regimes after World War II.
Said concentrates on explaining, in convincing detail, why we, as humans and intellectuals, must analyze the role of Western imperialism in shaping the world's inevitably hybrid cultures. Only by exploring our intertwined histories can we hope to counteract the destructive power of essentialist thinking that pits "us" against "them." Despite his plea to explore connections among cultures, however, Said devotes little space to discussing the cultural productions of people who consider themselves non-Westerners. His book remains focused on European and North American culture. Non-Western efforts seem to be counted as contributions to world culture primarily when they address Western concerns. Nor does Said confront the question of why essentialist thinking flourishes today, apparently assuming its lure. He thus leaves readers to wonder why attempts to recover essential cultural values are attracting so many followers around the world.
Mitchell's Colonising Egypt offers an answer. In the preface to the 1991 paperback edition, he observes that his "book is not a history of the British colonization of Egypt, but a study of the power to colonize." He focuses on "representation," using Foucault's insights to explore how European imperialists infiltrated and reorganized the minutiae of Egyptian life by creating representations that enabled them to imagine, and so to manage, the "realities" conjured up by those representations. For example, when Europeans represented Egyptian populations, streets, towns, landscapes, laws, culture, and so forth, they conjured up the idea that there were real individuals to be counted; real streets to be straightened; real towns to be planned; real landscapes to be divided, cultivated, and taxed; real laws to be codified and enforced; and real beliefs and values to be studied in order to determine how colonized subjects might react to government initiatives. It is thus little wonder that when people sought to wrest control of their persons and lands from imperialists and colonizers, they should begin by claiming the right to represent themselves.
Mitchell, unfortunately, pays little attention to law or to the concept of representative government, but he does compare an earlier vision of the body politic, imagined as a set of differentiated organs performing distinct, but necessary, functions, to the colonizers' image of the body politic as a machine, distinguished both from the operator who runs it and the society it orders. Mitchell focuses on the managerial power that the machine metaphor granted to Egypt's colonial rulers, but it is easy to understand how the concept of an operator, separated from both society and the machinery of control, could also allow the idea of representative government to develop among the colonized. Whereas a foot in an organic body politic would probably find it difficult to imagine performing the function of a head, heart, or strong right arm, any member of a machine-managed society, even a poor farmer, can imagine participating in managerial decisions about where and how to direct the machine's efforts. The machine metaphor may have allowed imperial colonizers to conjure up the image of an Egyptian society for them to rule, but the metaphor also allows colonized groups to imagine -- and to represent -- themselves as nations capable of self-government.
Mitchell's analysis thus suggests that Said is unfortunately wrong when he declares that "there seems no reason except fear and prejudice to keep insisting on [the] separation and distinctiveness" of cultural traditions, languages, and territories. The ideal of self-government is a powerful incentive for members of groups who would claim the right of governing themselves to define and delimit a "self" distinct from others. The eighteenth-century European philosophers who argued men of reason must govern themselves rather than submit to divinely ordained kings may have ignored cultural differences, imagining that all men of reason would reason similarly, but nineteenth-century romanticists, faced with Napoleon's efforts to impose a French version of human reason on everyone else, soon realized that stressing cultural and racial distinctiveness would allow them to demand self-government from both kings and Napoleons. This cultural logic continues to inform national liberation movements. The more "authentic," or less mixed, the cultural and racial heritage a group succeeds in affirming, the stronger is that group's claim to self-government. Sadly, the more clear-cut the distinction between "us" and "them," the easier it is for political leaders to argue that we cannot allow them to participate in determining the rules that govern us.
Mitchell's discussion of the machine metaphor also suggests a reason why celebrations of essential cultural values appear to be increasing in frequency, intensity, and volume as we approach the twenty-first century. Those who aspire to operate the machinery of government must announce goals that can, potentially, garner popular support, both during the fight against former rulers and during the period of rule. Egypt's turn-of-the-century colonizers, for example, justified replacing native elites by claiming to provide law and order for a people they defined as lacking these benefits. Leaders of national liberation movements, particularly in the aftermath of World War II, commonly justified replacing colonial governments by promising to protect the nation's economic resources from foreign exploiters. Today, when the conflict between capitalist and socialist routes to economic development has ended in the apparent triumph of capitalism, and when development itself appears increasingly illusive, leaders attempting to challenge the heirs of national liberation movements seem to find that promises to "restore our illustrious heritage" are potent ways to mobilize political support.
Although none of the books reviewed here addresses the question of why groups seeking their essential cultural values seem to turn most often to religion and family life, Starr's book suggests an answer. These were the areas that nineteenth-century Ottoman reformers left untouched by legislation, thus unwittingly establishing them as realms where future generations could look to find their supposedly authentic traditions. Starr, for example, notes that Ottoman reformers did not challenge Islamic schools and courts. They merely set up secular alternatives to them. And she observes that Ottoman jurists charged with codifying parts of the shari`a dealing with commercial transactions deliberately left untouched those parts dealing with family matters, such as marriage, divorce, inheritance, succession, and adoption.
Messick, of course, argues that legal reforms, such as those enacted by the Ottomans, have profound effects on all aspects of life, transforming even those features that reformers intend to leave untouched. When Ottoman reformers established secular schools and courts, for example, they unwittingly transformed Islamic schools and courts into religious institutions. And when reformers began to codify parts of the shari`a, they transformed sacred texts into confusing and disorganized sources of law. Although Messick does not explore the unintended consequences of codifying only commercial transactions, it is easy to understand how "rationalizing" market exchanges established other types of property transfers, such as those involved in marriage, inheritance, succession, and adoption, as governed by "irrational" (i.e., emotional or religious) principles. The Ottoman reformers who subjected commercial transactions to the requirements of modernity, reason, and law, thus unwittingly established family life as a realm governed by tradition, sentiment, and biology.
While documenting the role of Western imperialism in transforming the context, and therefore the meaning and consequences of Islamic legal practices, Messick's analysis also offers evidence for assessing the role of local concerns in shaping imperialism's impact. He shows that the Islamic fundamentalists vilified by the Western press are engaged in a very different debate from Christian fundamentalists in Western democracies. Instead of advocating religious values in opposition to reason or science, Islamic activists -- both scholars and politicians -- are engaged in dynamic and ongoing discussions among scholars and politicians over how to use reason and science in the task of applying the shari`a to the requirements of life in the twenty-first century. The rich tradition of shari`a jurisprudence continues to shape people's lives and concerns. Legislation may have replaced the old texts and manuals copied by generations of Yemeni scholars, but the "people of Yemen" continue to argue over interpretations of God's plan for the Muslim community. "Islamic law" remains a "general societal discourse." It has not become the narrow concern of lawyers.
If internal struggles shaped Islamic reactions to Western imperialism, then it seems reasonable to imagine that an exploration of internal struggles within Western democracies can help us to understand why Islamic "fundamentalism" appears more threatening to Western secular values than other forms of religious revival occurring around the world. European Christians have, of course, long demonized Islamic infidels (and vice versa), but history suggests that the triumph of parliamentary governments over divinely ordained kings in Europe and North America transformed both the medieval theological opposition between Jesus and Muhammad, and the early modern opposition between human reason and religious superstition, into a new cultural opposition between types of religion: those that recognize the separation of church and state and those that do not. During the nineteenth century, Britain and the United States, in particular, experienced internal debates over the proper role of religious and moral values in political life, due to the alliance between Methodism and the developing working class, growing demands to extend the franchise, and the apparently amoral character of unfettered capitalist development. Western imperialists thus had at least two good reasons to portray the still large and powerful Ottoman Empire, which stood in the way of their colonizing ventures, as exemplifying the adverse effects that resulted from using state power to enforce religious norms. By portraying Islamic rulers as despots, Islamic punishments as barbaric, and Kadi courts as irrational, Western imperialists could simultaneously muster public support for their wars abroad and discredit their enemies at home.
Nineteenth-century European imperialists also lamented the fate of Islamic women (as they lamented the fates of women in other colonized territories). Chatterjee has argued convincingly that British imperialists in India took up the cause of Indian women as a way of discrediting and undermining the power of Indian men, a strategy imperialists undoubtedly pursued in Islamic territories as well. But images of veiled Islamic women and walled harems must also have played a role in constructing understandings of Western women's liberties. It seems no accident, for example, that consent emerges as a key difference between "oppressed" Islamic women and "free" Western ones during the nineteenth century, when industrialization was transforming adult women from productive members of family enterprises into economic dependents of wage-earning husbands. Just as images of Islamic despots undoubtedly contributed to the symbolic construction of Western secular governments as democracies, so images of oppressed Islamic women, who could neither marry for love nor develop intimate relations with polygamous husbands, must have played a crucial role in constructing images of Western women as consenting to their disempowerment within increasingly privatized and confining homes. And images of "enslaved" Islamic women must have helped reconcile Western men to marriages that were increasingly difficult to distinguish from prostitution as the devaluation of women's work left women only "love" to offer in return for the money they and their children needed to survive.
In summary, the four books discussed here offer rich insights into the historical construction of the increasingly salient conceptual opposition between secular Western democracies and Islamic theocracies. Starr and Messick explore the struggles and concerns of Islamic peoples as they selectively borrowed Western ideas and imaginatively reworked their rich cultural heritages in attempts to retain control over their persons and properties under the onslaught of imperialist forces. Said and Mitchell focus on Western cultures, revealing that imperialists not only developed and tried out techniques of control through constructing representations of colonized peoples but unwittingly represented themselves in the process. Said's discussion of Western imperialism, in particular, suggests that Islamic fundamentalism is emerging as the antithesis (and current nemesis) of Western reason and democracy because Western imperialists and resisting Islamic peoples, through their intertwined histories, have constructed it that way.
This article is reprinted with permission from Law & Society Review 28.2 (1994): 395-408. I would like to thank Joel Beinin, George Collier, John Comaroff, Saba Mahmood, Bill Maurer, Sally Merry, and Barbara Yngvesson for their helpful comments on earlier drafts. They are in no way responsible for problems that remain.
1. Peter Fitzpatrick, The Mythology of Modern Law (London and New York: Routledge, 1992).
2. See Michel Foucault, Discipline and Punish (New York: Random, 1977) and The History of Sexuality, Vol. 1 (New York: Random, 1978).
3. By focusing on historical changes, Messick and Starr complement Rosen's fascinating, but less historically oriented, analyses of the relationship between law and culture in another Islamic country, Morocco. See Lawrence Rosen, Bargaining for Reality: The Construction of Social Relations in a Muslim Community (Chicago: U of Chicago P, 1984) and The Anthropology of Justice: Law as Culture in Islamic Society (Cambridge: Cambridge UP, 1989).
4. Dipesh Chakrabarty, Rethinking Working-Class History: Bengal 1890-1940 (Princeton: Princeton UP, 1989).
5. Sally Merry, for example, notices similarities between Messick's story of legal change in Yemen and Bernard Cohn's story of the construction of Hindu law in India. See Sally Merry, "Law and Colonialism: Review Essay," Law and Society Review 25.4 (1991): 889-922, and Bernard Cohn, "Law and the Colonial State in India," History and Power in the Study of Law, eds. J. Starr and J. Collier (Ithaca, NY: Cornell UP, 1989) 131-152.
6. Although I decided not to put quotation marks around the words "modern," "modernizing," "tradition," or "traditional," I hope readers will realize that I do not endorse the implicit narrative of progress implied by the words.
7. Brinkley Messick, The Calligraphic State: Textual Domination and History in a Muslim Society (Berkeley: U of California P, 1993) 33.
8. While Mitchell is correct to argue that those who describe pre-colonial ways of being play into the hands of colonizers who need "readable" societies, successful national liberation movements have not lessened the danger of incurring unwanted political consequences. Post-colonial ethnic and essentialist movements continue to require readable pre-colonial pasts, ensuring that all attempts to describe a moment before European imperialism have political implications, whether intended or not by their authors.
9. Messick 262.
10. June Starr, Law as Metaphor: From Islamic Courts to the Palace of Justice (Albany: State U of New York P, 1992) 169.
11. Messick 8.
12. Messick 68.
13. Edward W. Said, Culture and Imperialism (New York: Knopf, 1993).
14. Messick 71-2.
15. Said xxv.
16. Said 336.
17. Said xxv.
18. Said 245. See C. L. R. James, Black Jacobins: Toussaint L'Ouverture and the St. Domingo Revolution (1938; New York: Random, 1989) and George Antonius, The Arab Awakening: The Story of the Arab National Movement (1938; Beirut: Librairie du Liban, 1969).
19. Ranajit Guha, A Rule of Property for Bengal: An Essay on the Idea of Permanent Settlement (Paris and The Hague: Mouton, 1963) and Syed Hussein Alatas, The Myth of the Lazy Native: A Study of the Image of the Malays, Filipinos, and Javanese from the Sixteenth to the Twentieth Century and Its Function in the Ideology of Colonial Capitalism (London: Cass, 1977).
20. Timothy Mitchell, Colonizing Egypt (1988; Berkeley: U of California P, 1991).
21. Mitchell ix.
22. Mitchell 156-160.
23. Mitchell 336.
24. See Talal Asad, Genealogies of Religion (Baltimore: Johns Hopkins UP, 1993).
25. Messick 253.
26. See Talal Asad, ed., Anthropology and the Colonial Encounter (London: Ithaca, 1973).
27. Partha Chatterjee, "Colonialism, Nationalism, and Colonized Women: The Contest in India." American Ethnologist 16.4 (1989): 622-633.
26. See Talal Asad, ed., Anthropology and the Colonial Encounter (London: Ithaca, 1973).
27. Partha Chatterjee, "Colonialism, Nationalism, and Colonized Women: The Contest in India." American Ethnologist 16.4 (1989): 622-633.