Book Chapters by Jean-Philippe Dequen
State Law and Legal Positivism The Global Rise of a New Paradigm , 2022
Anglo-Indian positivisms are an integral part of an Anglo-Saxon transnational legal thought, whic... more Anglo-Indian positivisms are an integral part of an Anglo-Saxon transnational legal thought, which affected the Sub-Continent, the North American colonies and ex-colonies as well as the British Isles themselves. It originated at the end of the Seven Years' War (1756-1763), from which the definition of subject was extended and thereby that of legal personality, which constitutes the origin of a new reflection on the science of law. Therefore, if we can effectively see the setbacks of the positivation of law in India in the 19th century – such as its unfinished codification and its stifled liberal aspirations – this failure, when placed from the angle of a historical ontology of law, appears less as the consequence of a process of random application, than that of irreconcilable differences between the two legal discourses which guide, more than they result from, this same process. Indeed, while they both intended to renew Anglo-Saxon legal thought through a methodology leading to the codification of law, the two versions of Anglo-Saxon positivism that emerged at the start of the 19th century were radically distant as for their ideological foundations. Utilitarian-inspired positivism intended to recast into a unitary concept the concept of sovereignty, and thereby that of the state, against the common law tradition. On the other hand, positivism of contractualist inspiration is based as much on the essentialist heritage of common law as on its two-headed conception of sovereignty, which it wishes to formalise through the rediscovery of Roman law. The Mughal legal order, and by extension Indo-Islamic law, however, appears to be the keystone on which each of its theories is based, albeit for radically different reasons. If utilitarian positivism seeks to recognise and preserve Indian-Islamic law in order to better overcome it, contractual positivism, on the other hand, needs to deny its existence, as it would be able to hinder the natural development of 'ancient' Indian law, understood as essentially Hindu law.
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Despite India not being a Muslim country, its Muslim citizens are nonetheless governed by Islamic... more Despite India not being a Muslim country, its Muslim citizens are nonetheless governed by Islamic law in matters relating to custody and guardianship through a personal legal system. Irrespective of the large number of Muslims it affects, Muslim personal law remains however a minority law, and it is both administered and fashioned within a secular legal framework inherited from British colonisation. This chapter seeks, through a legal-historical approach, to present the evolution of Islamic guardianship and custody laws in India, particularly in relation to the Guardians and Wards Act of 1890, which still holds force today. After briefly detailing the place of Islamic law within the Indian legal order, it will be shown how the Guardians and Wards Act 1890 has profoundly changed the legal characterisations pertaining to guardianship and custody, which but partially reflect the classical Islamic dichotomy between wilāya and ḥaḍāna. It is argued that the subsequent ‘secular’ legal categories of ‘guardianship of the person’ and ‘guardianship of property’, upon which Muslim personal law is applied, have had an adverse effect on both the rights of the mother and on the minor’s property. Furthermore, it is submitted that the status of Islamic law as a minority law in India has also hindered the enforcement of the notion of the ‘best interests of the child’. Although Islamic law has traditionally integrated this concept within its jurisprudential framework, its transformation into Anglo-Muhammadan law within the British Raj has impeded the incorporation and development of the ‘best interests of the child’ principle within Muslim personal law, especially if compared to the evolution of Hindu personal law or English law in that regard.
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Articles by Jean-Philippe Dequen
Südasien-Chronik, 2020
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Journal of Law and Religion, 2019
Filiation among Muslims in India is governed by Muslim personal law, a largely uncodified corpus ... more Filiation among Muslims in India is governed by Muslim personal law, a largely uncodified corpus of key Islamic legal treatises that has subsequently been interpreted and applied through the Common Law frame of British colonial courts and the post-Independence Indian judicial system by virtue of the Muslim Personal Law (Shariat) Application Act 1937. Muslim personal law recognizes only legitimate filiation resulting from a valid or irregular marriage, barring illegitimate children from maintenance and intestate succession and prohibiting adoption. However, a number of legislative enactments have modified key aspects of the law of filiation among Muslims: shifting the presumption of legitimacy arising from a valid marriage to the time of the wedding, rather than the time of conception; invalidating the doctrine of dormant fetus; and lifting certain disabilities incurred from illegitimacy. Further, although adoption based on customary law is somewhat common in India and has been recognized by courts, its effect among Muslims has tended only to lift the bar to paternal succession and seldom creates filiation with the adoptive family. Notwithstanding, following the enactment of the Juvenile Justice (Care and Protection of Children) Act 2000 and its subsequent amendments, an optional secular legal framework for adoption is now available to Muslim prospective parents. The procedure set forth by the Act is nonetheless unwieldly and implementation faces the very practical difficulties of the state in managing and protecting the vast number of destitute and abandoned children in India, for the most part with an unknown filiation.
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Journal of Human Values, 2020
‘On the 26th of January 1950, we are going to enter into a life of contradictions. In politics we... more ‘On the 26th of January 1950, we are going to enter into a life of contradictions. In politics we will have equality and in social and economic life we will have inequality’. B. R. Ambedkar’s famous last speech to the Constituent Assembly on 25 November 1949 still resonates within contemporary Indian constitutional law, and even more so his following interrogation: ‘how long shall we continue to live this life of contradictions?’ Prima facie societal, the contradiction is however also a temporal one, Indian constitutional law being founded on both the British traditional idea of ‘continuum’ and the American inspired revolutionary principles of ‘pursuance’ of a novel legal and social order. Two recent Indian Supreme Court decisions pertaining to the de-criminalisation of same sex relations (Navtej Singh Johar v. Union of India) and for the right of menstruating women to enter the Sabarimala Temple in Kerala (Indian Young Lawyers Association v. Union of India) offer through their differing and sometimes dissenting opinions a glimpse at those temporal contradictions. Through an analysis of both decisions and in particular that of Chandrachud J. and Malhotra J.’s judgements, this article seeks to highlight two radically differing conceptions of temporality applied to constitutional issues, which can themselves be linked back to the transposition of the legal positivist discourse in India within the colonial era: on the one hand, an attempt to continue Common law’s empirical-based tradition and on the other hand, an (apparently) a-historical perception of Law drawn from neo-Roman civilian legal discourse and later normative positivism. If both branches of legal reasoning aim at protecting minorities’ rights, the value they inscribe to History within the realm of Law cannot be further apart.
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South Asia Multidisciplinary Academic Journal (SAMAJ), 2018
This paper seeks to briefly assess the place of Jammu and Kashmir within the Indian Union, as wel... more This paper seeks to briefly assess the place of Jammu and Kashmir within the Indian Union, as well as the latter’s repercussions on the daily administration of justice in Srinagar. Although regional States have retained certain specificities and prerogatives under the Constitution of India, J&K’s status is significantly different. Being the only State with its own constitution, J&K’s accession to India has been achieved through specific legal instruments granting it a peculiar type of sovereignty. In order to define the relationship between India and J&K, this article compares similar legal frameworks from a comparative perspective. It submits that J&K belongs to a sui generis legal category, similar to the one New Caledonia currently enjoys within the French Republic. It then seeks to explore how this peculiar status interacts with the administration of justice at the grass-root level in Srinagar. It suggests that the overall acceptance of the judicial system in J&K, as well as its growing integration into the Indian legal framework is closely linked to concerns about efficiency, and most importantly to the permanent residency status of its judicial officers.
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Südasien-Chronik, 2016
Taking the Shayara Bano petition asking the Supreme Court of India to ban the practice of Muslim ... more Taking the Shayara Bano petition asking the Supreme Court of India to ban the practice of Muslim unilateral divorce (triple talak) on constitutional grounds as a starting point, this article seeks to present the evolution of Muslim Personal Law (MPL) in India from a legal historical perspective. It focuses particularly on the development of the legal argumentation revolving around the administration of MPL and its place within the Indian constitutional order. It highlights the conundrum the Indian judiciary faced in administering a minority law within a sometimes explosive political context, and how it managed to do so by gradually putting forward a harmonious interpretation between Islamic law and constitutional fundamental rights provisions, whist moving away from the British colonial legal legacy. It finally stresses the importance of Jammu and Kashmir’s High Court in giving the necessary impetus and legitimacy to this change in legal reasoning.
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International Journal of Refugee Law, Oct 2013
This article centres on the decisional process in the administration of asylum law in France, as ... more This article centres on the decisional process in the administration of asylum law in France, as applied by the institutions of the Office for the Protection of Refugees and Stateless Persons (OFPRA) and the National Court of Asylum (CNDA) on the appellate level. It focuses on the recognition of the status of political refugee and subsidiary protection. Its starting point is the growing criticism this procedure faces, both from human rights groups and legal practitioners. It is based on a dual approach. First, analysing relevant legislation and case law, it explains why, from a positivist legal perspective, the process can sometimes be perceived as arbitrary and random; the reasons being the indeterminacy of international law on the matter, and the inability of the courts to propose a unified and accepted interpretation. Second, this study demonstrates that, despite this legal insecurity, the process is not as irrational as it may seem. This conclusion is based on anthropological fieldwork consisting of a qualitative sample of hearings at the CNDA, and twelve interviews with lawyers, interpreters, protection officers from OFPRA and rapporteurs from the Court, carried out between March and May 2010. Using the paradigm of ethnomethodology, this article contends that the current decisional process follows a consistent logic, founded on ‘common sense’ and an inter-subjective narrative construction between the asylum seeker and his administrative counterpart. The legal aspect of the decision is only a surface veneer, rather than the constitutive body of reasoning behind it.
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Journal of Law and Social Research, 2012
Muslim Women movements in India have been very active in the past decade, attracting attention bo... more Muslim Women movements in India have been very active in the past decade, attracting attention both in the Sub-Continent and beyond. This article vows to present a particular trend of this activism centred on the legal sphere, moreover within the frame of the Muslim personal law system and its non-State adjudicative bodies. Through the All India Muslim Women Personal Law Board (AIMWPLB), it will present the example of an attempt to challenge the ‘patriarchal’ legal discourse on Islamic Law by procuring an alternative dispute resolution forum specifically aimed at Muslim women’s issues, as well as advocating for a more gender equal interpretation of the Quran through the prism of ‘Islamic Feminism’. However, it will show that despite its President’s tremendous efforts, the AIMWPLB’s scope remains limited. Although establishing a somewhat successful mediation centre in the Lucknow area, it has for the moment failed to extend its reach in the rest of the Indian Territory. Likewise, its particular discourse on Islamic Law has had but little influence on its overall application in India, and paradoxically could even be counter-productive towards its progression towards a gender equalitarian interpretation.
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Conference Proceedings by Jean-Philippe Dequen
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Book Reviews by Jean-Philippe Dequen
South Asia Research, 2019
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Journal of Law and Religion, 2016
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Review of Abhinav Chandrachud's "An Independent, Colonial Judiciary: A History of the Bombay High... more Review of Abhinav Chandrachud's "An Independent, Colonial Judiciary: A History of the Bombay High Court during the British Raj, 1862-1947"
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Journal of Islamic State Practices in International Law (JISPIL), 2013, vol 9 (2), pp. 140-142, 2013
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Blog Posts by Jean-Philippe Dequen
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Conference Presentations by Jean-Philippe Dequen
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Notre présentation examine l’évolution historique de la place du droit musulman au sein de l’ordr... more Notre présentation examine l’évolution historique de la place du droit musulman au sein de l’ordre juridique indien, depuis les débuts de la colonisation britannique au 17ème siècle jusqu’à son application par la justice indienne au tournant du 21ème siècle. Considéré en tant qu’objet juridique autonome, notre but est de brièvement exposer les différentes qualifications juridiques attachées au droit musulman et leur influence sur son application normative.
Nous tenterons de démontrer que les différentes caractérisations quant à la nature du droit musulman en Inde - allant d’un système juridique générale, à celui d’un droit spécial constitué tour à tour de normes coutumières et étrangères, pour enfin être fondé sur la liberté religieuse garantie par la Constitution – sont intimement liées au concept de souveraineté et de son tiraillement entre la Couronne britannique, le Parlement de Westminster, la East India Company et enfin la République indienne.
Aussi, nous présenterons dans un premier temps l’évolution du statut de la East India Company au sein de l’ordre juridique anglais, afin de mieux cerner l’impact de ce dernier sur le statut du droit musulman indien, ainsi que de son utilisation et son administration dans un contexte colonial non-Etatique. La disparition de la ‘Compagnie’ au profit de la couronne britannique après la ‘révolution’ de 1857 nous amènera ensuite à examiner ses conséquences sur le statut du droit islamique – et plus généralement des musulmans indiens – au sein du Sous-Continent. Enfin, nous dévoileront l’influence de l’ordre constitutionnel de l’Inde indépendante quant aux fondations juridiques sur lesquelles s’appuie l’application d’un droit personnel musulman à l’époque contemporaine.
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Book Chapters by Jean-Philippe Dequen
Articles by Jean-Philippe Dequen
Conference Proceedings by Jean-Philippe Dequen
Book Reviews by Jean-Philippe Dequen
Blog Posts by Jean-Philippe Dequen
Conference Presentations by Jean-Philippe Dequen
Nous tenterons de démontrer que les différentes caractérisations quant à la nature du droit musulman en Inde - allant d’un système juridique générale, à celui d’un droit spécial constitué tour à tour de normes coutumières et étrangères, pour enfin être fondé sur la liberté religieuse garantie par la Constitution – sont intimement liées au concept de souveraineté et de son tiraillement entre la Couronne britannique, le Parlement de Westminster, la East India Company et enfin la République indienne.
Aussi, nous présenterons dans un premier temps l’évolution du statut de la East India Company au sein de l’ordre juridique anglais, afin de mieux cerner l’impact de ce dernier sur le statut du droit musulman indien, ainsi que de son utilisation et son administration dans un contexte colonial non-Etatique. La disparition de la ‘Compagnie’ au profit de la couronne britannique après la ‘révolution’ de 1857 nous amènera ensuite à examiner ses conséquences sur le statut du droit islamique – et plus généralement des musulmans indiens – au sein du Sous-Continent. Enfin, nous dévoileront l’influence de l’ordre constitutionnel de l’Inde indépendante quant aux fondations juridiques sur lesquelles s’appuie l’application d’un droit personnel musulman à l’époque contemporaine.
Nous tenterons de démontrer que les différentes caractérisations quant à la nature du droit musulman en Inde - allant d’un système juridique générale, à celui d’un droit spécial constitué tour à tour de normes coutumières et étrangères, pour enfin être fondé sur la liberté religieuse garantie par la Constitution – sont intimement liées au concept de souveraineté et de son tiraillement entre la Couronne britannique, le Parlement de Westminster, la East India Company et enfin la République indienne.
Aussi, nous présenterons dans un premier temps l’évolution du statut de la East India Company au sein de l’ordre juridique anglais, afin de mieux cerner l’impact de ce dernier sur le statut du droit musulman indien, ainsi que de son utilisation et son administration dans un contexte colonial non-Etatique. La disparition de la ‘Compagnie’ au profit de la couronne britannique après la ‘révolution’ de 1857 nous amènera ensuite à examiner ses conséquences sur le statut du droit islamique – et plus généralement des musulmans indiens – au sein du Sous-Continent. Enfin, nous dévoileront l’influence de l’ordre constitutionnel de l’Inde indépendante quant aux fondations juridiques sur lesquelles s’appuie l’application d’un droit personnel musulman à l’époque contemporaine.
Under English legal theory, and specifically in relation to the latter’s non-conceptualisation of the State as a distinct legal entity, the East India Company’s (EIC) rule over large parts of the Subcontinent was not founded on a claim to sovereignty, be it corporate or otherwise, but rather on its intent to represent the Indian ‘commonwealth’ following the English parliamentary model and its articulation to the Crown. The creation of Admiralty Courts at the turn of the 18th C. (as well as their relative failure), and later the grant of Diwani in 1765 thus tend to show that the EIC’s aim consisted in legally claiming an independent legislative authority from Westminster on Indian soil. This aim will be subsequently legally reinforced following the decisions of Campbell v. Hall (1774) and consecrated in the Lex Loci Report (1840) of the first Indian Law Commission.
As such, it is advanced that although the history of legal transfers in India may be perceived haphazard on a substantive level; they nonetheless were born out of a consistent overarching theoretical legal framework, and far from a “fit of absentmindedness”.
Through the example of the institution of Admiralty Courts at the turn of the 18th C. it exposes how India was not part of the broader Imperial framework based on Locke’s agriculturist paradigm, but rather submitted to public international law and thus to the Indian local States’ legal frameworks. With the grant of Diwani to the East India Company in 1765, the latter would then use the perceived Mughal model of sovereignty in order to extend its territorial possessions within the Subcontinent. The shift from de facto to de jure British sovereignty within these territories would then be justified through Common law ideas of sovereignty, gradually set up following Campbell v. Hall (1774) and Indian Chief (Skinner Master) (1801), refined up to the Lex Loci Report (1840) of the first Indian Law Commission, which supplanted the Mughal legal framework with the British one. However, with the abdication of Mughal Emperor in 1857, the British Crown will paradoxically re-ignite the Mughal concept of sovereignty in order to claim Paramountcy over the remaining princely States, gaining de jure control over the entire Subcontinent.
This paper thus seeks to present both the pragmatic and rather inconsistent nature of British sovereignty within the Subcontinent, nonetheless highlighting how the colonial framework upon which it stood was not a simple factual situation, but also a legal endeavour which took nearly two centuries to establish.
However, few studies have concentrated on the legal justification upon which this alteration was grounded upon, except as to explain it via the 'fait du Prince' following the deposition of the last Mughal Emperor to the benefit of the British Crown in 1858. Nonetheless, the question of the place of Islamic law within the Indian legal order had been a matter of concern from the 18th C. up until the middle of the 19th C., when both the East India Company and the Crown were to deal with an extraneous legal order in the form of the Mughal Empire. The extent upon which English legal transfers were to take place in India were then a matter of debate, both within India between the Company and Crown Courts, as well as in Westminster itself.
The question of the place of Islamic law became even more controversial given the relatively novel form of colonial endeavour which took place in India: its indistinctive nature between a private and public venture (stressing the dissensions between the East India Company and the Crown, the former having the intention of forming a State of its own within the Subcontinent, see: Philip J. Stern, The Company-State: Corporate Sovereignty and the Early Modern Foundations of the British Empire in India (Oxford: Oxford University Press, 2011)); its encounter with an already 'tilled' land (one could here point out the difference between the Royal Charter granted to the East India Company in 1600, and the ones relative to the colonisation of America (notably to the Lords Proprietors of Carolina in 1629 and 1663), India not being considered as res nullius); and finally whether or not the East India Company had even the legal capacity to enter treaties with a foreign power (notably became an acute problem following the grant of Diwani by Shah Alam II (d. 1806) to the East India Company in 1765). These interrogations ultimately led to the establishment of the first Indian Law Commission in 1833, whose first matter of concern would be to determine whether or not India had a lex loci.
This paper proposes to focus on these debates. It does so through a 'longue durée' perspective, in order to highlight the shifting place of Islamic law within an Indian legal order, which itself was undergoing major changes between the late 18th C. and the beginning of the 20th C. The aim of this presentation is thus to advance a 'genealogy' pertaining to the justification of Islamic law's application in the Indian colonial period, in order to better the understanding of its administration leading up to the famous Muslim Personal Law (Shariat) Application Act, n°XXVI of 1937. In doing so, it argues that the status of Islamic law as lex loci is closely linked to the independent and private nature of the East India Company. Hence, Islamic law's shift from lex generalis to that of a lex specialis in the form of one personal law amongst others could be traced back to the Company's own loss of independence at the turn of the 19th C.
As means of illustration, this paper seeks to present how the famous 'Patna case' (1779), where the Calcutta Supreme Court arguably extended its jurisdiction over Mofussil territories, led to certain interpretation of the Regulating Act 1773 (13 Geo 3 C 63) rendering the East India Company a delegate of the King of England, rather than that of the Mughal Emperor as its Diwan. This decision will then have ripple effects on future Statutes – notably the Charter Act 1833 (3 & 4 Will 4 C 85) – and the progressive dislodgment of Islamic law from lex loci to the benefit of English law, paving the way for the latter's Indian transplants.
The supplanting of Islamic law did not however go without legal uncertainty as to its future status within the Subcontinent. The 19th C. in this regard was a period of great insecurity where Islamic law (and by extension Indian Muslims) has successively been considered as a religious norm (already on par with Hindu law in Warren Hastings' 1772 'Plan for the administration of justice' in Bengal); a custom among others (hence the progressive recognition of custom among Muslim sub-communities, such as the Cutchi Memons, Khojas and Mappilas); and finally a foreign law (prolonging the debate of whether India under the British Crown had or not become Dar al-Harb), only to be re-integrated to the Indian legal order via the Indian Councils Act 1909 (9 Edw 7 C 4).
Therefore, this paper, on focusing on the procedural - rather than the substantive - aspects of Islamic law in colonial India, seeks to question the classical periodisation of the start of English legal transfers in the Subcontinent. It also points out through legal history, how the place of Indian Muslims has been a contentious issue in colonial times; an issue which continues to produce its effects in contemporary India.
The ubiquitous nature of English legal transfers can be exemplified through a rather under-studied period of English legal expansion in India. Indeed, following the transfer of Bombay to the English Crown in 1661, Admiralty Courts were progressively set up and acted as appellate jurisdiction to the Court of Judicatures in both Bombay and Madras at the turn of the 18th C. This ‘experiment’ was however short lived and widely considered as a failure, whilst pushing the East India Company and then the British Crown to set up more inclusive jurisdictions in the form of Mayor Courts, lasting throughout the 18th C.
If the downfall of Admiralty Courts was largely explained – especially in Bombay – through the personality of the Judge-Advocates who were appointed to these jurisdictions; this project seeks to concentrate on the legal aspects of this first failed attempt of legal transfers within the Subcontinent. Thus, through an analysis of the remaining Court records and the correspondence of the East India Company, this research aims at highlighting the ambiguities of English legal transfers in India: the ubiquitous nature of the East India Company between private corporation and agent of the Crown, the former’s attraction to Roman law and yet its unwillingness the face the latter’s judicial consequences and finally the paradoxical legal architecture to administering Common law through a civil jurisdiction.
This paper seeks to take this case as a starting point to present how, despite appearances and popular depiction in the Media, Muslim personal law in India notwithstanding very few statutory changes since the famous 1937 Muslim Personal Law (Shariah) Application Act, has evolved in the recent years to be more in-sync with societal changes. This change results from judicial activism, as well as an evolution and dispersion of Muslim legal associations in the Sub-Continent regarding key matters such as divorce and subsequent maintenance for the estranged wife. Irrespective of the lasting effects of this evolution, it may however prove influential on the global debate surrounding reforms within Islamic Family Law, Indian Muslims representing one of the largest Muslim communities in the world today.