As the French conquered Muslim lands in their nineteenth- and early-twentieth-century quest for empire, they encountered multiple and sometimes mixed judicial systems among the native populations. In many places, legal codes were shaped by either fiqh, meaning Islamic law, one component of which is customary law, or by non-Islamic custom, or some combination of the two. To administer native justice in French colonies and protectorates, officials sorted through this multiplicity in order to standardize procedures, principles, and punishments. The standardization of customary law codes, whether written or oral prior to submission to the makhzan (the central Moroccan government, lit. “storehouse”) under the Protectorate, required that French officials both maintain pre-contact codes and create new institutions to administer and monitor them. Through new judicial bureaucracies, the French transformed indigenous law. Customary law was a “residual category” in the sense that it consisted of what remained after colonial powers ferreted out what they considered morally offensive and politically objectionable. Legal codification involved what Vincent calls “a compromise between those recognized as leading elements in indigenous societies and the colonial administrators who co-opted them.” Yet customary law, “if understood as allowing local people to do their own cultural ‘thing,’ should also be understood to have been a carefully restricted fragment of ‘tradition.’” This tradition when manifest as customary law “implies that there is a different kind of law with which it can be contrasted,” making customary law “the ongoing product of encounters between subordinate local political entities and dominant overarching ones.” In such encounters the distinction made between custom and law has long preoccupied legal historians, as well as anthropologists, colonial administrators, and importantly, lay people. Throughout French African colonies and protectorates, this distinction was key to the French usurpation of social institutions, as was true in British overseas territories as well.
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