Introduction

In the autumn of 2010 we toured Khorezm, a region nestled between modern Uzbekistan, Turkmenistan and Kazakhstan, to inspect private manuscript collections. It was the end of September and, on account of the balmy weather favourable to our travelling, we thought it would be the most propitious moment to head to Nukus, the capital city of what is today Karakalpakstan. Our informants had told us about a manuscript library belonging to a local savant, himself scion of a family of scholars of Islamic sciences, called Sotiboldi Umarov. In fact, the library did not have many surprises for we had encountered similar collections along our way. As we leafed through the various items, however, we came across a rescript addressed to the chancellery of the Qonghrat Khans of Khiva, the last Muslim dynasty to rule over Khorezm prior to Sovietisation. The record offered a concise account of a dispute solved by representatives of the Qonghrats, a legal practice that we shall discuss further in this chapter. As we paused to read this record, the owner of the manuscript told us a story from his childhood memories. The story took place in the second half of the 1980s in Janbulak, a small village in Karakalpakstan located in a desert area to the east of To’rtko’l. His maternal grandmother, Umarov told us, an elderly and infirm woman, was staying in his uncle's house and he visited her quite often. During these visits his grandmother repeatedly complained about her eldest son who pressured her to bequeath her property, a house and a large garden, solely to him. Whatever the facts of the matter, the stubborn behaviour of his uncle forced his mother and aunt to act very cautiously in deference to their brother. It was decided therefore to resolve the situation by involving a former fellow village man and a distant relative, who at that time lived in Nukus and held a high position at the provincial Ispolkom (Rus. ‘Executive Committee’).

One Sunday morning, as had been agreed beforehand, Umarov's relatives travelled to Janbulak and waited for the man from the Ispolkom to arrive from Nukus.

Introduction

A half-century or more in which colonialism has been examined both in imperial history and Islamic studies has produced a colossal amount of scholarship. But it has also yielded a host of assumptions and narratives about colonial sharīʿa, which are seriously in need of problematising and refining. One such narrative propounds that in the nineteenth century sharīʿa underwent a process of transformation that ultimately led to what many observers have called a ‘rupture’. Such a process is usually interpreted as the outcome of modernisation, that is, some kind of inevitable evolution in which the West imposed its legal episteme consisting of a new codification ethos, superimposed institutional rearrangements and imported secular normative sensibilities. In other words, we are dealing here with a narrative of irreversible decline according to which sharīʿa fell apart and its broken pieces could not be glued back together.

Indeed, it does not take a great effort to very real changes in the Islamic juridical field under colonial rule. One notes, for instance, the following: (i) It is today common knowledge, for example, that Western empires that extended their power over Muslim-majority regions claimed an exclusive prerogative over punitive institutions and punishments, thereby truncating qāḍīs’ jurisdiction and constraining this latter to the so-called personal status law, itself a colonial legal category. ii) One notes the institutional arrangement common to many a colonial situation whereby Muslim legists were organised into a juridical hierarchy and made subject to judicial review, either by their Muslim peers or their colonial masters. Such arrangements affected the moral standing of qāḍīs and other members of the ʿulamāʾ whose rulings became easier to quash on grounds of judicial malpractice, either actual or purported. (iii) Many have noted that the codification of sharīʿa by means of translation and massive publication of a narrow selection of juristic sources had lasting effects that rigidified the very understanding of Islamic law and overhauled its basic governing principles. (iv) One can detect changes at the semantic level: we are put in mind of the transformation of agrarian systems from a regime of usufruct to one of ownership, that is, from status to contract. Another major transformation in the field of Islamic law, which was ushered in by colonisation, is the possibility to free up property that once belonged to waqf assets.

Introduction

‘I expected from you more mistakes than you actually made, some¬thing like your assuming that you can take on yourself the role of the muftī among Kazakhs and solve conflicts among them according to the Mohammedan law.’ These sardonic words were committed to writing in 1856 by the then chairman of the Orenburg Border Commission (henceforth referred to as OBC) and the famous Orientalist Vasilii Grigor’ev (1816–81), when writing to A. A. Bobrovnikov, a specialist of Mongolian studies who at that time acted as ‘border administra¬tor’ (popechitel’) among Kazakhs in the Governorship of Orsk. This small fragment of an otherwise intense correspondence reflects two diametrically different ways in which Russian Orientalists and imperial officials alike came to view the law of the Kazakhs. Grigor’ev (and many others with him) cultivated the conviction that Kazakh custom¬ary law (Rus. adat < Arab. ʿādat) was and had always been detached from sharīʿa. He thus emphasised differences between them because he believed that Islam would represent a menace to the Russification of the Kazakh Steppe. In his view, upholding ʿādat would be an effec¬tive means of showing that Kazakhs were only superficially Islamised and therefore more amenable to assimilation than Muslim communi¬ties in Transoxiana. Bobrovnikov, by contrast, was guided by practical expediency and his judgment was informed by what one could term ‘participant observation’. While serving in the capacity of popechitel’, he often had to visit Kazakh nomadic encampments (auls) and thus took advantage of many opportunities to examine local legal practices. Enjoying privileged access to local knowledge, Bobrovnikov came to view sharīʿa as an integral component of Kazakh legal culture in the nineteenth century. As we shall see, Bobrovnikov was not alone in nurturing this idea, an idea that encountered the forceful opposition of the echelons of Tsarist power in the Kazakh Steppe.

The purpose of this chapter is to show that the codification of Kazakh customary law (ʿādat) was central to a policy pursued systematically by the Russian Empire from the 1820s to disentangle Kazakhs from their political and cultural ties with Central Asian Muslims. Such a policy was premised upon the assumption, widely shared within imperial bureau¬cratic circles, that Kazakhs were culturally different from the subjects of the Central Asian polities, being immune from that so-called Islamic fanaticism that, in Russian eyes, made Central Asians so potent a threat to the stability of the Tsarist Empire.

Why a History of Islamic Law in Russia?

When it comes to writing the history of Islamic law from the 1600s to the early 1900s, Russia is, perhaps, not the first state to come to mind. As of 1897, the Russian Empire's Muslim population, numbered at about 13.9 million or 11.7 per cent of Russian subjects, appears small when compared to the British Empire's approximately 62.8 million Muslims. However, Russia's Muslim population was, in fact, not much smaller than that of the neighbouring Ottoman Empire, which was about 15.5 million in 1906. Some early twentieth-century observers noted, furthermore, that Tsarist Russia's sphere of unmediated influence over the Islamic ecumene transcended the boundaries of the empire and expanded well into the neighbouring regions of Iran and western China. Thus, the number of Muslims who experienced some form of Russian administration may have been as high as 25 million. This larger figure suggests that, in numerical terms, Russia's influence over the Muslim world in the late 1800s and early 1900s was roughly on par with that of the Dutch Empire, which boasted a Muslim population of about 30 million in Southeast Asia by 1905. To compare Muslim communities numerically may be regarded as a rather dry statistical exercise. However, it is precisely when one considers comparatively the size of the Muslim community inhabiting the Russian Empire that one begins to realise that Russia was one of the major imperial and colonial forces that profoundly shaped the Muslim world in early modern and modern history, a process of transformation that continues to affect Muslim societies today.

Nor could imperial Russia's Muslim population be characterised as marginal to the greater Islamic world. Embracing diverse communities ranging from the Volga river basin, the Ural Mountains, and Siberia to the Kazakh Steppe, Central Asia, Crimea and the Caucasus, imperial Russia's Muslims stood at the confluence of multiple cultures and political spheres. They occupied the central and northern sections of what once was the Mongol Empire, from which they inherited specific forms of governance and cultural practices. The cultures of the khanates of Kazan, Astrakhan, Siberia and Qasim, as well as the Kazakh khanate, all emerged from the fragmentation of the Golden Horde, and their history (considered either separately or collectively) offer numerous examples of traditions that can be traced back to the Mongol period.