An Introduction to Islamic Law (20 page)

Thus, when in 1927 the Dutch government declared that
adat
, not the Shari
a, constituted the normative law, institutional changes began to take effect, and further scholarship aimed at systematizing
adat
(especially by
Bernard Ter Haar) came to bolster that policy with renewed vigor. Henceforth, Dutch scholars and their native students – who hailed mainly from the Javanese aristocracy – as well as colonialist advisors and administrators were officially trained
in
adatrecht
as the paradigmatic law. The confluence of the Dutch and native elites’ interests ensured the relegation of the Shari
a to a largely secondary status, where it would be accepted only insofar as it was provisionally allowed to modify
adat
in a particular locale (this having been termed “
reception theory”).

Concurrent with these later judicial and legal developments was the gradual introduction to
Java and
Madura of the
Dutch educational system that proved itself – here as in the Ottoman Empire and elsewhere – instrumental not only in facilitating the legal transformation but also in accelerating the latter’s dissemination and extending its cultural roots deeper in the new Muslim soil. Put differently, the introduction of Western-style schools, wittingly or not, tended to produce a number of effects besides the obvious Westernization of education in Muslim lands. In the
Ottoman Empire, by the end of the nineteenth century, European forms of education facilitated the ousting of Shari
a
legists through the ready supply of a new Westernized elite in whose interests it was to promote the Western institutions upon which it depended. But more importantly, Western education was both the prerequisite to, and the means of, naturalizing the new imperial culture without which no hegemony would be viable.

No
system of
madrasa
s could be established in Indonesia on any scale similar to that which had existed in the Ottoman Empire
, and thus the Dutch schools (which numbered more than a thousand by 1910 and which were quickly imitated by the native population) did not have the same effect. Their primary effect lay in affording to the local population an opportunity to rise in the Western system, which was the locus of government and power. It gave the
Javanese and other elites the means of education that prepared them to pursue their legal studies in Western institutions, whether these were located in Batavia or Leiden. And it was from amongst this elite that students of the
adatrecht
, many of whom advocated the
reception theory
, emerged.

On the other hand, and as happened in Malaysia earlier, the Islamic impulse grew as colonial power consolidated its grip over the colony. Just as the legal transformations in the Ottoman Empire and Egypt informed each other, so too were the religious movements of South East Asia influenced by the
Hejazi–Egyptian world of Muslim legal scholarship and religious thought. By the early decades of the twentieth century, the European steamship became the dominant mode of transportation in the Indian Ocean, a phenomenon that promptly brought with it a tremendous increase in the number of Javanese scholars studying in the Hejaz and at
Cairo’s
AZHAR
University. The overall result was an increase in Islamic consciousness, both as a marker of cultural identity and as a prop for a counter-movement that generated resistance not only to the secularized national elite but to the centuries-old and venerable
adat
as well
.

By the end of the sixteenth century, the Ottomans had built the largest and most powerful empire in the Muslim world. However, by 1812, they began to experience major
military defeats at the hands of the
Russians, losing on the way their control of the northern shores of the Black Sea and the Crimea. By this time,
Arabia and
Egypt had defected, the former taken by the
Wahhabites and the latter by
Muhammad
Ali. The Empire appeared on the verge of crumbling.

The rise during the eighteenth century of European and
Russian
military power meant dramatic and in effect unprecedented corollary increases in military expenditure for the Ottomans. The financial resources needed to remedy the military weakness of the Ottoman center lay in the provinces which, in order to produce the necessary income, in turn needed central military control. That a strong army was needed to raise money, and that money could not be raised efficiently without a strong army, constituted the most fundamental dilemma for the Ottomans during the second half of the eighteenth century. This dilemma had always existed, and was, as a rule, managed relatively successfully. But during that century, European military technology was too extensive and too rapidly developing for the Ottomans – as well as for all Afro-Asian dynasties – to be able to adjust to the swiftly changing realities
. Add to this a high
level of inflation which brought with it not only higher prices but countless popular riots. Just when the demand on financial and material resources was at its highest, not to mention unprecedented, provincial income was on the decline. The consequences were devastating.

With the weakening of central power and authority,
provincial governors, the
Janissaries, tax-collectors and local magnates lacked the
restraints and the checks and balances that had been characteristic of the sixteenth and seventeenth centuries. The provincial officials began to act with a free hand, not only against the local populations but also in defiance of the courts and law of the land. Extortion, harsh
taxation and violent punishment of civilians began to occur with increasing frequency and without the option of recourse to higher courts of justice. Toward the end of the eighteenth century, governors, who were not trained judges, began to adjudicate civil cases, hitherto the distinct purview of the Shari
a court. Punishments were at times corporal, going beyond the Shari
a prescriptions, but they were almost always sure to include pecuniary penalty, constituting another source of income for the ruling provincial elite. The level of intimidation dramatically increased, and on-the-spot punishments without trial became ever more frequent
.

With the Empire in near disarray and its armies defeated by the Russians and Europeans, the
Sublime Porte realized that reform had become imperative. In 1826, the traditional army units (the
Janissaries) were eliminated, and because they were also guildsmen who engaged in crafts and the manufacture of goods – and therefore advocated economic protectionism – their disappearance from the scene opened the door to economic liberalism. Thus, a dozen years after the extinction of the Janissaries, the ground had been adequately prepared to impose on the Empire a “reform” program that would open its population and markets to European exploitation
.

The
1838 Treaty of Balta Limanı between Istanbul and the British not only confirmed all previous capitulatory privileges (which gave to European subjects more extensive rights in the Empire than its own subjects), but now ensured the final removal of any form of monopoly that could protect Ottoman manufacturers against European competition. In effect, it abolished all restrictions on foreigners’ movement within the Empire, thereby exposing the hitherto protected and surviving Ottoman economic sectors to the annihilating competition of the European market. Thus, the famous reformist
1839 Gülhane Decree came to confirm and sanction trends that had begun earlier, but it also formalized a state of affairs that was taken for granted when further reforms were imposed in the future. This Decree, in effect an Ottoman payment to the superpowers (Britain, Austria, Prussia and Russia) for their aid against the separatist
Egyptian Muhammad
Ali, rejected traditional economic forms and declared material wealth a desideratum. All indigenous impediments to economic development were to be removed, and the model of change would become European culture, science and capital.

Opening Ottoman markets to European capitalism was only a part of what the Gülhane Decree was intended to accomplish, though it was
perhaps the most important goal. Another, better-known, aspect of the Decree was to grant equality to all subjects of the
Empire, irrespective of their religion
.
The new distributive freedoms had of course little to do with any intrinsic democratic interest that Europe had in the religious minorities of the Ottoman Empire, and much more with increasing European interests among segments of Ottoman populations that might act as middlemen, in both the economic and political spheres. Having secured the Ottoman economic market as a source of raw materials and having ensured the political cooperation of the sultanate, the European powers found it unnecessary to break up the Empire, now the so-called “sick man of Europe.” Keeping the sick man alive was also dictated by the rival interests of
Russia,
Britain and
France, whose potential disagreement over how the Empire might be divided amongst them kept such a division a remote possibility, at least until the middle of World War I. That the Empire was “sick” became, by virtue of European
military and economic superiority, a self-evident reality; that it had been “of Europe,” being all but directly colonized by it, was an undeniable truth.

Similar developments occurred in
Qajar
Iran (1779–1924). Within four decades of their coming to power, the Qajars had suffered crushing
military defeats at the hands of the
Russians and, just as in the Ottoman Empire, by 1828 Iran had lost much of its territory in the Caucasus as well as all rights to navigate the Caspian Sea. The
1828 Treaty of Turcomanchay, and the Persian–British treaty of 1836, placed foreign subjects and their property outside Persian jurisdiction, and created special tribunals to adjudicate cases involving foreigners and Persians. As happened in the Ottoman Empire, no judicial decision of these courts could be deemed valid or binding without the final approval, not of Persian courts, but of the consul or ambassador. In addition to this political subjugation, wars with Russia and the Ottomans had a devastating effect on Iran’s economy and reduced the populations of its major cities to half their usual size
. Identical effects began to show themselves in the independent Muslim principalities in
Transoxiana, Afghanistan and North Africa. The
Khanate of Khiva and the
Mangits lost their continental trade and were reduced to no more than local, small-time merchants. The usurpation by Europeans of the sea trade and the unprecedented efficiency and
militarization of European navigation significantly detracted from the importance of land routes, the backbone of
Irano-Transoxianan commerce. By the middle of the nineteenth century, it was a rare Muslim country that had escaped surrendering its political and juridical powers to foreign nationals and, particularly, in favor of European states.

The Ottoman reforms, however, started in earnest as early as 1826. It was in that year, and for the first time in Islamic history, that the
waqf
s
supervised by the
Shaykh al-Islam, the Grand Vizier and a number of important others were placed under the control of a new
Imperial Ministry of Endowments, thus depriving these particular statesmen of an independent economic base. Shortly thereafter, the
incomes of more substantial
waqf
s were claimed by the Ministry, and within less than a decade the incomes of all major
waqf
s
in the Empire were seized. This process led to the creation of salaried posts for local notables who would administer the endowments on behalf of Istanbul.

The Ministry further seized the
Water Works Administration, since public fountains and the public water supply were largely constituted as
waqf
endowments. But the most striking fact about these appropriations was the volume of property involved. At the beginning of the nineteenth century, it is estimated, more than half of real property in the Empire was consecrated as
waqf
. The government’s economic and political gains were thus enormous: economically, it had become the “middleman” who secured considerable profits in the process of collecting the revenues of the endowments and then paying out salaries for the minimal upkeep and operation of the
waqf
-foundations. In part due to the government’s diverting of funds to
military and other projects, and in part due to corruption within the ranks of the Ministry, this back-payment of
salaries to the educational and other public endowments progressively declined, reaching zero point by the middle of the century. The central
waqf
administration was charged with financing and supervising, at its own expense and obviously from endowment money,
military and public projects, such as the building of tramways in Istanbul and of yarn factories for the production of military uniforms – all of which were intended to, and did indeed, strengthen the emerging
modern state, but at the expense of the traditional recipients of
waqf
revenues.

The
mosques, and the
madrasa
s along with them, appeared to many observers to stand on the brink of total collapse. Politically, the absorption of the
waqf
s into the central imperial administration weakened the allies of the now vanished
Janissaries, i.e., the
ULAMA
and the
SOFTA
S
(law students) who had shown some resistance to the early reforms. Thus, the reorganization of
waqf
administration, which reflected the rise of an aggressive new form of bureaucratization, delivered, together with the abolition of the Janissaries, the first major blow to the strong position of the traditional legal profession in the Empire. (The
Iranian experience also attests to an overarching transformation that led to an
étatist
administration of
waqf
. In 1854, the
Ministry of Pensions and Awqaf [pl. of
waqf
 ] was created, and a decade later it became mandatory for every
waqf-
foundation and administrator to register with the Ministry all assets under his/her control.)