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REFLECTIONS ON RELIGIOUS DIFFERENCE AND PERMISSIVE INCLUSION IN MUGHAL LAW

Published online by Cambridge University Press:  07 October 2014

Nandini Chatterjee*
Affiliation:
Lecturer in History, University of Exeter

Abstract

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.

Type
SYMPOSIUM: RE-THINKING RELIGIOUS FREEDOM
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 2014 

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References

1 Note on transliteration: For Persian and Arabic words, I have used a transliteration system based on a modification of Steingass, F. J., A Comprehensive Persian-English Dictionary (London, 1892)Google Scholar. I have avoided the use of diacritics in general, except for the ʿayn. I have therefore not indicated the length of vowels, nor used the hamza to indicate consecutive distinctly pronounced vowels. In case of Arabic words commonly in use in Persian, and Hindi/Urdu (such as qazi), my transcription reflects the South Asian pronunciation pattern; for the same reason, I have indicated the possessive ezafe with –e rather than –i. I have used the English plural signifier s to pluralize Arabic, Persian, and Hindi/Urdu words. The exceptions are book titles in which other scholars have preferred to use different transcription systems.

2 See Guha, Ranajit, A Rule of Property for Bengal: An Essay on the Idea of Permanent Settlement, 2nd ed. (New Delhi: Orient Longman, 1982), 1223Google Scholar, for a brilliant discussion of the earliest British schemes for legal preservation, and of the ethical and political arguments made to justify them. Of course there were also arguments made for the sweeping away of meaningless and harmful traditions, in the name of progress and humanitarianism. On the whole, however, the tenacity of the personal laws is testimony to the strength of the conservative and conservationist strand of the colonial tradition.

3 For a mid-twentieth-century British judge's fulsome praise for Warren Hastings, the founder of the system, see Rankin, George, “The Personal Law in British India,” Journal of the Royal Society of Arts 89 (1940–1941): 426–42Google Scholar. For a more detailed discussion, and other relevant examples, see Chatterjee, Nandini, “Muslim or Christian? Family Quarrels and Religious Diagnosis in a Colonial Court,” American Historical Review 117, no. 4 (2012): 1101–22CrossRefGoogle Scholar.

4 Travers, Robert, Ideology and Empire in Eighteenth Century India: The British in Bengal (Cambridge: Cambridge University Press, 2007)CrossRefGoogle Scholar. For one of the best known efforts to combine the two arguments (that the British were maintaining and also improving the Mughal constitution), see Dow, Alexander, The History of Hindostan from the Death of Akbar to the Complete Settlement of the Empire under Aurungzebe, 3 vols. (London, 1792)Google Scholar; see especially “Dissertation on the Origin of Despotism in Indostan,” in ibid., 3:i–cx.

5 See, for example, Singha, Radhika, A Despotism of Law: Crime and Justice in Early Colonial India (New Delhi: Oxford University Press, 1998)Google Scholar; Fisch, Jörg, Cheap Lives and Dear Limbs: The British Transformation of Bengal Criminal Law, 1769–1817 (Wiesbaden: Steiner, 1983)Google Scholar.

6 Travers did so through the framework of transition to colonialism in Ideology and Empire, 100–40. Michael Dodson provides a very useful, brief history of projects translating Sanskrit texts with legal relevance. Dodson, Michael, Orientalism, Empire and National Culture: India, 1770–1880 (Basingstoke: Palgrave, 2007), 1939CrossRefGoogle Scholar, 45–48. Farhat Hasan has offered the clearest statement of the role of shariʿa in Mughal legal governance. Based on his use of Persian-language court records, mainly from Surat and Cambay, he proposes that shariʿa was a normative code, flexible in practice, that was widely subscribed to and claimed in legal disputes, and not only by Muslims. Hasan, Farhat, State and Locality in Mughal India: Power Relations in Western India, 1572–1730 (Cambridge: Cambridge University Press, 2004), 7190Google Scholar. Based on a different body of sources and a distinct disciplinary standpoint, Mouez Khalfaoui has written on the nature of jurisprudential argumentation in the best-known Indian compendium of fatwas (responsa) the Fatawa-yi ʿAlamgiri, sponsored by the emperor Aurangzeb ʿAlamgir and compiled by a team of ʿulama (scholars) between 1664 and 1672. Khalfaoui, Mouez, “Together But Separate: How Muslim Scholars Conceived of Religious Plurality in South Asia in the Seventeenth Century,” Bulletin of the School of Oriental and African Studies 74 (2011): 8796CrossRefGoogle Scholar.

7 Hallaq's, Wael B.Shariʿa: Theory, Practice, Transformations (Cambridge: Cambridge University Press, 2009)CrossRefGoogle Scholar, is both an excellent introduction to the subject and an expression of caution regarding the incommensurability of certain key categories of translation. As Hallaq forcefully argues, to translate shariʿa as Islamic law is to expect state power and coercion where moral authority proved effective in most cases (obviously a debatable point), and to fail to take note of the tremendous, locally sensitized diversity of fiqh that the actuation of shariʿa was based on. The book also provides a detailed and systematic (also systemic) picture of the process of evolving jurisprudence.

8 See Alam and Subrahmanyam's appeal for comparative and connected, pan-Asian research and study of the early modern world, but also their note of caution regarding the static and institutional focus that studies of Mughal law, are, in their opinion, likely to slip into. Alam, Muzaffar and Subrahmanyam, Sanjay, eds., The Mughal State: 1526–1750 (New Delhi: Oxford University Press, 1998), 171Google Scholar; see especially page 6.

9 There is a vast body of literature and divided historiography on the nature of the Mughal state; for a very useful summary, see ibid., 1–71.

10 For one brief discussion of British references to the Roman model, see Hyam, Ronald, Understanding the British Empire (Cambridge: Cambridge University Press, 2010), 2CrossRefGoogle Scholar. For British efforts to draw on the Mughal tradition, see Travers, Ideology and Empire; Bernard Cohn, “Representing Authority in British India,” in The Invention of Tradition, eds. Eric Hobsbawm and Terence Ranger (Cambridge: Cambridge University Press, 1983), 165–210.

11 For an overview of this period in history, see Marshall, Peter, Bengal: The British Bridgehead (Cambridge: Cambridge University Press, 1987), 7092Google Scholar.

12 The personal laws, or personal status laws, are controversial for a number of reasons. Since the first decades after India's independence, they have been the subject of both academic and popular criticism for representing the incursion of religious laws into the fabric of a constitutionally secular state and for allegedly offering disproportionately greater accommodation of the religious codes of minority communities over others. Given that the personal laws are gender discriminatory, they also pose a serious conundrum for liberal feminists arguing for legal reform but unwilling to act as pawns of majoritarian agendas. See Smith, Donald Eugene, India as a Secular State (Princeton, NJ: Princeton University Press, 1963)CrossRefGoogle Scholar; Larsson, Gregory James, Religion and Personal Law in Secular India: A Call to Judgment (Bloomington: Indiana University Press, 2001)Google Scholar; for a somewhat different view, see Jacobson, Gary, The Wheel of Law: India's Secularism in Comparative Constitutional Context (Princeton, NJ: Princeton University Press, 2003)Google Scholar; Galanter, Marc, “Hinduism, Secularism and the Judiciary,” in “Symposium on Law and Morality: East and West,” special issue, Philosophy East and West 21, no. 4 (1971): 467–87CrossRefGoogle Scholar; Mitra, S. K., “Sacred Laws and the Secular State: An Analytical Narrative of the Controversy over Personal Laws in India,” India Review 1, no. 3 (2002): 99130CrossRefGoogle Scholar; Sangari, Kumkum, “Gender Lines: Personal Laws, Uniform Laws, Conversion,” Social Scientist 27 (1999): 1761CrossRefGoogle Scholar; Hasan, Zoya, “Gender Politics, Legal Reform, and the Muslim Community in India,” in Resisting the Sacred and the Secular: Women's Activism and Politicized Religion in South Asia, eds. Jeffery, Patricia and Basu, Amrita (New Delhi: Kali for Women, 1999)Google Scholar; Ghosh, Partha, “The Politics of Personal Laws in India: The Hindu-Muslim Dichotomy,” South Asia Research 29, no. 1 (2009): 117CrossRefGoogle Scholar; Modi, Nawaz, “The Press in India: The Shah Bano Judgment and Its Aftermath,” Asian Survey 27, no. 8 (1987): 935–53CrossRefGoogle Scholar; Shodhan, Amrita, A Question of Community: Religious Groups and Colonial Law (Calcutta: Samya, 2001)Google Scholar.

13 For an outline of this process, see Derrett, J. Duncan M., “The Administration of Hindu Law by the British,” Comparative Studies in Society and History 4, no. 1 (1961): 1052CrossRefGoogle Scholar; Anderson, Michael R., “Islamic Law and the Colonial Encounter,”’ in Institutions and Ideologies: A SOAS South Asia Reader, eds. Robb, Peter and Arnold, David (London: Curzon, 1993), 165–85Google Scholar; Kugle, Scott Alan, “Framed, Blamed and Renamed: The Recasting of Islamic Jurisprudence in Colonial South Asia,” Modern Asian Studies 35, no. 2 (2001): 257313CrossRefGoogle Scholar; Jalal, Ayesha, Self and Sovereignty: Individual and Community in South Asian Islam since 1850 (London: Routledge, 2001), 139–52Google Scholar; Hallaq, Shariʿa, 371–83. Hallaq calls the process “jural colonization”—an inexorable steamroller uprooting Islamic law from its “interpretive-juristic soil.” Hallaq, Shariʿa, 376.

14 These officers were removed by An Act to Repeal the Law relating to the Offices of Hindu and Muhammadan Law Officers and the Offices of Kazi-ul-Kuzaat and of Kazi, and to abolish the Former Offices, Act XI of 1864.

15 For instances of such radical judicial and legislative interpretation, see Derrett, J. D. M., The Death of a Marriage Law: Epitaph for the Rishis (New Delhi: Vikas, 1978)Google Scholar; Caroll, Lucy, “Law, Custom, and Statutory Social Reform: The Hindu Widows' Remarriage Act of 1856,” Indian Economic and Social History Review 20, no. 4 (1983): 363–88CrossRefGoogle Scholar; Guenther, Alan, “A Colonial Court Defines a Muslim,” in Islam in South Asia in Practice, ed. Metcalf, Barbara D. (Princeton, NJ: Princeton University Press, 2009), 293304Google Scholar; De, Rohit, “Mumtaz Bibi's Broken Heart: The Many Lives of the Dissolution of Muslim Marriages Act,” Indian Economic and Social History Review 46, no. 1 (2009): 105–30CrossRefGoogle Scholar. De, however, emphasizes the association of traditional fiqh experts and others in the advocacy movement of the 1930s, which led to the Muslim Personal Laws (Shariat) Application Act, XXVII of 1937 and the Dissolution of Muslim Marriages Act, VIII of 1939.

16 For the conundrum faced by Indian feminists, see Sangari, “Gender Lines.”

17 Hasan, “Gender Politics, Legal Reform, and the Muslim Community in India”; Ghosh, “The Politics of Personal Laws in India”; Modi, “The Press in India”; Shodhan, A Question of Community.

18 For several such articles, see the essays collected in Forum: Maneuvering the Personal Law System in Colonial India,” Law and History Review 28, no. 4 (2010): 9731065Google Scholar.

19 Jones, Justin, “‘Signs of Churning?’ Muslim Personal Law and Public Contestation in Twenty-First Century India,” Modern Asian Studies 44, no. 1 (2010): 175200CrossRefGoogle Scholar.

20 Srinivas, Mytheli, “Conjugality and Capital: Gender, Families and Property under Colonial Law in India,” Journal of Asian Studies 63, no. 4 (2004): 937–60CrossRefGoogle Scholar; Newbigin, Eleanor, “A Post-Colonial Patriarchy? Representing Family in the Indian Nation-state,” Modern Asian Studies 44, no. 1 (2010): 121–44CrossRefGoogle Scholar.

21 While too many to list here, the works that have inspired this article include, apart from the works by Hallaq, the earlier work of Coulson, N. J., “Doctrine and Practice in Islamic law: One Aspect of the Problem,” Bulletin of the School of Oriental and African Studies 18, no. 2 (1956): 211–26CrossRefGoogle Scholar; Coulson, N. J., Conflicts and Tensions in Islamic Jurisprudence (Chicago: University of Chicago Press, 1969)Google Scholar; Johansen, Baber, Contingency in a Sacred Law: Legal and Ethical Norms in the Muslim Fiqh (Leiden: Brill, 1998)Google Scholar; Messick, Brinkley, The Calligraphic State: Textual Domination and History in a Muslim Society (Berkeley: University of California Press, 1993)Google Scholar; Tucker, Judith, In the House of the Law: Gender and Islamic Law in Ottoman Syria and Palestine (Berkeley: University of California Press, 1998)Google Scholar; Powers, David, Law, Society and Culture in Maghrib, 1300–1500 (Cambridge: Cambridge University Press, 2002)CrossRefGoogle Scholar; Makdisi, J., “Legal Logic and Equity in Islamic Law,” The American Journal of Comparative Law 33, no. 1, (1985): 6392CrossRefGoogle Scholar. Many of these authors frequently and vigorously disagree with each other, which demonstrates both the vibrancy of the field and the space for greater research. See Powers, David, “Wael B. Hallaq on the Origins of Islamic Law: A Review Essay,” Islamic Law and Society 17, no. 1 (2010): 126–57CrossRefGoogle Scholar.

22 Hallaq, Wael, “Was the Gate of Ijtihad Closed?,” International Journal of Middle East Studies 16, no. 1 (1984): 341CrossRefGoogle Scholar.

23 Hallaq, Wael, “From Fatwās to Furūʿ: Growth and Change in Islamic Substantive Law,” Islamic Law and Society 1, no. 1 (1994): 1756Google Scholar; Hallaq, Shariʿa, 159–96.

24 Kugle, “Framed, Blamed and Renamed,” 263; see also Jalal, Self and Sovereignty, 139–52.

25 Hallaq, Shariʿa, 159.

26 Robinson, Francis, The ʿUlama of Farangi Mahall and Islamic Culture in South Asia (London: C. Hurst, 2001)Google Scholar; Metcalf, Barbara, Islamic Revival in British India, Deoband, 1860–1900 (Princeton, NJ: Princeton University Press, 1982)Google Scholar.

27 Khalfaoui, “Together but Separate.”

28 Gerber, Haim, State, Society, and Law in Islam: Ottoman Law in Comparative Perspective (Albany: State University of New York Press, 1994)Google Scholar. Gerber is careful to discard any notion of the Weberian kadijustis, agreeing instead with Powers, David, “A Court Case from Fourteenth-Century North Africa,” Journal of the American Oriental Society 110, no. 2 (1990): 229–54CrossRefGoogle Scholar.

29 Goodblatt, Morris S., Jewish Life in Turkey in the XVIth Century as Reflected in the Legal Writings of Samuel de Medina (New York: Jewish Theological Seminary of America, 1952), 132–33Google Scholar; Cohen, Ammon, Jewish Life under Islam: Jerusalem in the Sixteenth Century (Cambridge, MA: Harvard University Press, 1984), 1CrossRefGoogle Scholar. Both works are cited in Benton, Lauren, Law and Colonial Cultures (Cambridge: Cambridge University Press, 2002), 102–14Google Scholar.

30 Jennings, Ronald C., Christians and Muslims in Ottoman Cyprus and the Mediterranean World, 1571–1640 (New York: New York University Press, 1993), 69Google Scholar.

31 Al-Qattan, Najwa, “Dhimmis in the Muslim Court: Legal Autonomy and Religious Discrimination,” International Journal of Middle Eastern Studies 31, no. 3 (1999): 429–44CrossRefGoogle Scholar. This both confirms and refines the argument by Bernard Lewis that distinctions between Muslims and non-Muslims were significant and legally regulated in all medieval and early modern Muslim states; but such distinctions rarely descended to oppression before such states were weakened by European incursions. Lewis, Bernard, The Jews of Islam (Princeton, NJ: Princeton University Press, 1984), 166, 121–48Google Scholar.

32 The Mughals officially ruled from 1526 to 1857, although the area under their dominion varied widely during this period, generally expanding until 1707, and then falling back gradually until they were officially removed following the Indian rebellion of 1857–1858. There are said to be “Great Mughals”: Babur, Humayun, Akbar, Jahangir, Shah Jahan, and Aurangzeb ʿAlamgir (d. 1707).

33 Ewing, Katherine, ed., Sharīʿa and Ambiguity in South Asian Islam (Berkeley: University of California Press, 1988), 122Google Scholar.

34 Alam points to the key text Akhlaq-e Nasiri, written by Nasir al din Tusi, around 633 AH/1235 CE. Tusi's text circulated widely in Mughal India, and several Akhlaq treatises produced in India were modeled on his work. Tusi expressly left out any discussion of fiqh, or “Islamic jurisprudence” in the precise sense, on grounds that his concern was with universal principles, such as the Divine law (shariʿa) enacted by the Divinely inspired lawgivers (in the plural, and possibly referring to ideal kings), whereas fiqh was something that changed with the times. See Tusi, Nasir al-din, The Nasirean Ethics, trans. Wickens, G. M. (London: George Allen & Unwin Ltd., 1964), 191–92Google Scholar.

35 Alam, Muzaffar, Languages of Political Islam: India 1200–1800 (London: Hurst, 2004)Google Scholar. For a criticism, see Khan, Iqtidar Alam, “Tracing Sources of Principles of Mughal Governance: A Critique of Recent Historiography,” Social Scientist 37, no. 5/6 (2000): 4554Google Scholar, which merely claims a different ideational genealogy for admittedly tolerant Mughal policies.

36 Sharma, S. R., Religious Policy of the Mughal Emperors (London: Oxford University Press, 1940)Google Scholar (Sharma also mentions attitudes towards conversion to, and apostasy from, Islam); Nizami, K. A., Akbar and Religion (Delhi: Idarah-e Adabiyat-e Delli, 1989)Google Scholar; Richards, J. F., “Crown Versus Ulema” in The Mughal Empire (Cambridge: Cambridge University Press, 1993), 3640CrossRefGoogle Scholar (based on Nizami); Ahmad, Muhammad Basheer, Judicial System of the Mughul Empire: A Study in Outline of the Administration of Justice under the Mughul Emperors Based Mainly on Cases Decided by Muslim Courts in India (Allahabad: Aligarh Historical Research Institute for Aligarh University, 1941)Google Scholar; Jain, B. S., Administration of Justice in Seventeenth Century India (Delhi: Metropolitan Book Co., 1970)Google Scholar; Husain, Wahed, Administration of Justice during the Muslim Rule in India (Calcutta: University of Calcutta, 1934)Google Scholar.

37 Bernier, François, Travels in the Mogul Empire AD 1656–1668 (London: Humphrey Milford, Oxford University Press, 1916), 200–38Google Scholar.

38 Mubarak, Abul Fazl ibn, “Abul Fazl's Preface,” in The Ain i Akbari, ed. and trans. Blochmann, H. (Calcutta: Baptist Mission Press, 1873), 1:i–xGoogle Scholar.

39 Ain i Akbari, 2:37–40.

40 Ibid., 2:40–41; see also Siddiqi, Noman Ahmad, “The Faujdar and Faujdari under the Mughals,” in The Mughal State, 1526–1750, eds. Alam, Muzaffar and Subrahmanyam, Sanjay (London: Oxford University Press, 2001), 234–51Google Scholar (discussing the faujdar's judicial functions); see especially Siddiqi, “The Faujdar and Faujdari,” 248–51 (based on legal documents at the Uttar Pradesh State Archives, India, within what is called the “Allahabad Collection.”). However, this analysis is not fully convincing—since in the case discussed, that of a land property dispute in AH 1080/CE 1669, it appears that the litigants were directed to first appear in the court of the qazi of the small city of Gorakhpur, the faujdar merely issuing the order according to the judgment. However, like his superior the provincial governor, the faujdar would have had more independent jurisdiction in law and order cases. Although it is problematic to designate all such actions as “criminal trials,” some of these did involve investigation and evaluation of evidence, not mere executive action.

41 Ain i Akbari, 2:41–43.

42 Ibid., 2:41.

43 See for example, Al-Marghinani, , “Book XXI. Of Shahadit, or Evidence,” in Hedaya, ed. and trans. Hamilton, Charles (London: T. Bentsley, 1791), 2:665727Google Scholar.

44 “Akbar's Dasturu'l-ʿamal (a Circular Enumerating the Duties of Officers) addressed to the ʿUmmal and Mutasaddis of the Empire,” in Mukatabat-e-ʿAllami (Insha’-i Abul Fazl), Daftar I, ed. and trans. Haider, Mansura (New Delhi: ICHR, 1998), 7988Google Scholar.

45 See “Book XX. Of the Duties of the Kazee,” in Hedaya; see especially ibid., 338.

46 Both in Ain, and in the Dastur al-ʿamal of 1594.

47 Benton, Law and Colonial Cultures, 80–81.

48 Badauni, Abdul Qadir, Muntakhab al-tawarikh, trans. Ranking, Haig, and Lowe, revised Ambasthya, B. P. (Patna: Academica Asiatica, 1973), 2:279–80Google Scholar. For a discussion of the evolution of Akbar's religious policies, and the unsuccessful place of the mahzar within it, see Khan, Iqtidar Alam, “The Nobility under Akbar and the Development of His Religious Policy, 1560–80,” The Journal of the Royal Asiatic Society of Great Britain and Ireland 1, no. 2 (1968): 2936CrossRefGoogle Scholar.

49 Farman of Aurangzeb, thirty-fourth regnal year, 1690, Persian manuscript no. 2608/12, National Archives of India (henceforth NAI), New Delhi. This order has been commented on by several scholars, including Irfan Habib and Muzaffar Alam, to demonstrate the increasing entrenchment of grants-holders and loss of control by the state. This article, on the other hand, looks on the order as an instance of state creation of property rights.

50 Parwana of Muaʿzzam Khan, second regnal year of Muhammad Shah, 1720, Persian manuscript no. 2714/11, NAI.

51 Zameeruddin Siddiqi, “The Institution of Qazi under the Mughals,” Medieval India, a Miscellany 1 (1963), 240–59.

52 Hasan, Ibn, Central Structure of the Mughal Empire (New Delhi: Munshiram Manoharlal, 1980, first published 1936), 306–44Google Scholar; see especially ibid., 310–16. This chapter in Hasan on the “judicial system” of the Mughals is very heavily reliant on non-Indian medieval fiqh texts which describe what the legal system ought to be like. See also Bilgrami, Rafat M., Religious and Quasi-Religious Departments (New Delhi: Munshiram Manoharlal, 1984)Google Scholar; Bhatia, M. L., The Ulama, Islamic Ethics and Courts under the Mughals: Aurangzeb Revisited (New Delhi: Manak Publications, 2006), 124–25, 160Google Scholar.

53 See the eighteenth-century gazetteer of Gujarat, written by the last diwan (chief revenue official) of Gujarat, Mughal, Mirat-i Ahmadi, Supplement, ed. Ali, Syed Nawab (Baroda: Oriental Institute 1930), 169, 174Google Scholar. In addition to the emoluments associated with their mansab (position), which included payments for zat (personal) rank as well as tabinan (pay for whatever sawar or military contingent they were required to maintain), offices frequently had additional mashrut (conditional) pay attached to them. In Gujarat in the eighteenth century, for example, such conditional additional emoluments for the provincial governor included a payment for fifteen hundred sawar (horsemen); 20,185,900 dams (copper coins), and pishkash (tributes) from land holders. The provincial qazi was entitled to, besides his personal mansab (including zat and tabinan), a conditional payment for twenty sawar (horsemen) only. For an explanation of the mansabdari system and calculation of payments in relation to the composite ranks, see Ali, M. Athar, The Mughal Nobility under Aurangzeb (Delhi: Oxford University Press, 1997), 3953Google Scholar.

54 Siddiqi, “The Institution of Qazi,” 249.

55 “A farman-i-thabti (Letters patent),” in Mohiuddin, Momin, The Chancellery and Persian Epistolography under the Mughals (Calcutta: Iran Society, 1971), 7779Google Scholar. I have read the facsimile of the Persian document, opposite p. 77, as well as Mohiuddin's translation.

56 A hukm nama dated 24 Ram 1162 (7 September 1749) issued by Shamshir Begh Khan during the second regnal year of Ahmad Shah, Document 66 of the Batala collection, as per the detailed descriptive catalogue of Shakeb, M. Z. A., A Descriptive Catalogue of the Batala Collection of Mughal Documents, 1527–1757 (London: British Library, 1990), 6061Google Scholar; I.O. Islamic 4720/66, British Library, London.

57 A mahzarnama of c. 1122 (date on latest seal) (1710/11), submitted by craftsmen and artisans of Batala, Document 34 in Shakeb, A Descriptive Catalogue., 30–31; I.O. Islamic 4720/34, British Library.

58 Persian manuscript no. 2738/8, NAI, New Delhi. For a careful study of legal deeds, particularly those pertaining to sale, from Qajar Iran and the role of formularies, see Werner, Christoph, “Formal Aspects of Qajar Deeds of Sale,” in Persian Documents: Social History of Iran and Turan from the Fifteenth to Nineteenth Centuries, ed. Nobuaki, Kondo (London: Routledge, 2003), 1350Google Scholar.

59 Farhat Hasan cites the document of registration enacted by two Hindu women who registered the sale of their house in Cambay in 1657, to record that the transaction was lawful according to the shariʿa. Hasan, State and Locality in Mughal India, 72.

60 Bhatia, The Ulama, Islamic Ethics and Courts under the Mughals, 194–99.

61 M. Mohiuddin, The Chancellery, 16–28; see also Islam, Riazul, A Calendar of Documents on Indo-Persian Relations (Tehran: Iranian Culture Foundation, 1979–1982), 1:137Google Scholar, which mentions a sub-genre of “purely” literary inshas—dedicated, for instance, to the beauties of spring and the like.

62 Zilli, Ishtiyaq Ahmad, ed., The Mughal State and Culture 1556–1598: Selected Letters and Documents from Munshaat-i-Namakin (New Delhi: Manohar, 2007)Google Scholar. This book is a selectively abridged Persian edition, compiled from three manuscripts, with a helpful introduction. The chapter on legal forms is titled “Miscellaneous” (mutafarriqat).

63 “Chapter VI: Of Instruments and Contracts of Law [Dar khatut wa qibalat-e shariʿa],” in Insha-ye Harkaran [The Forms of Herkern], trans. and ed. Francis Balfour (Calcutta: 1781).

64 Tarikh-e Shakir Khani, Add. MSS 6585, British Library, relevant folios reproduced in Ibn Hasan, Central Structure, 362–63.

65 The classic monograph on this subject remains Guha, A Rule of Property for Bengal.

66 Persian manuscript no. 2703/27, NAI, New Delhi.

67 Hasan, Farhat, State and Locality in Mughal India: Power Relations in Western India, c. 1572–1730 (Cambridge: Cambridge University Press, 2004), 7190Google Scholar. The two main schools of Hindu law were the Mitakshara (and its regional sub-schools) and the Dayabhaga. Derrett, J. Duncan M., Introduction to Modern Hindu Law (London: Oxford University Press, 1963), 2227Google Scholar.

68 As Alam, Muzaffar has shown in The Crisis of Empire in Mughal North India: Awadh and the Punjab, 1707–1748 (Delhi: Oxford University Press, 1986), 110–16Google Scholar.

69 Marshall, Bengal: The British Bridgehead, 70–92.

70 For the authoritative biography of Muhammad Reza Khan, see Khan, Abdul Majed, The Transition in Bengal: A Study of Saiyid Muhammad Reza Khan (Cambridge: Cambridge University Press, 1969)CrossRefGoogle Scholar.

71 “Regulations Proposed for the Government of Bengal, Composed by Mr Hastings, I Believe about the Year 1765,” Orme Collection, British Library Orme, 41.

72 Alexander Dow, History of Hindostan, 3:ci.

73 “Letter from Fort William to the Chief of the Controlling Committee of Revenue at Murshidabad, 20 December 1771,” in Proceedings of the Controlling Committee of Revenue at Murshidabad, 4 January 1772, IOR G/27/6, pp. 10–11, British Library, London.

74 “Representation on the Subject Thereof (the President and Council's Letter of 2nd December Recorded in the Consultation of 4th January) Delivered by the Naib Duan,” in Proceedings of the Controlling Committee of Revenue at Murshidabad, 26 March 1772, IOR G/27/6, [no page numbers], British Library, London.

75 “Letter from Fort William to Chief of the Council of Revenue at Murshidabad, 13 April 1772,” in Proceedings of the Controlling Committee of Revenue at Murshidabad, 20 April 1772, IOR G/27/6, [no page numbers], British Library, London.

76 “The Persian Translator Sends in a Translation of the Naib Subah's Representation in Reply to the Honourable the President and Council's Letter Regarding the Administration of Justice,” in Proceedings of the Controlling Committee of Revenue at Murshidabad, 4 May 1772, IOR G/27/7, [no page numbers], British Library, London.

77 Extracts from the Consultations Respecting the Administration of Justice, Add. MSS 29079, British Library, London.

78 Travers, Ideology and Empire, 171. This view is also taken by Dodson, Orientalism, Empire and National Culture, 45–48.

79 For a seminal article on the subject, see Cohn, Bernard, “Some Notes on Law and Change in North India,” Economic Development and Cultural Change 8, no. 1 (1959): 7993CrossRefGoogle Scholar.

80 Quoted in Travers, Ideology and Empire, 126.

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REFLECTIONS ON RELIGIOUS DIFFERENCE AND PERMISSIVE INCLUSION IN MUGHAL LAW
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REFLECTIONS ON RELIGIOUS DIFFERENCE AND PERMISSIVE INCLUSION IN MUGHAL LAW
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REFLECTIONS ON RELIGIOUS DIFFERENCE AND PERMISSIVE INCLUSION IN MUGHAL LAW
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