In societies shaped by an Islamic past, memories of empire frame contemporary debates about religion and politics. In heterogeneous contests about religious authority and political power, anti-colonial national narratives compete with visions of a past defined by the global community of the faithful. Muslim movements in Algeria, Turkey, Iran, and elsewhere have nonetheless adopted the space of the nation-state as the framework for the implementation of their programs.^[1] Nationalists and Islamists alike seek to appropriate Muslim empire-builders such as the Ottomans for their respective projects, while claiming the history of the struggle against European colonialism as their own.
As the ostensible repository of religious and cultural values untainted by colonialism, the shari‘a has become central to these varied narratives. In the past quarter century, conflicting representations of the shari‘a have shaped debates about the relationship between Islam and politics and between “tradition” and “modernity.” Among both its apologists and its opponents, there is broad agreement only in the widespread image of the shari‘a as a timeless and static religious law, derived from texts whose meanings are univocal and fixed.^[2]
Scholars have recently challenged this view. Numerous studies have shown how, in practice, Muslim jurists and judges displayed flexibility in engaging with and continually rethinking the traditions of Islamic jurisprudence (fiqh) in early modern Muslim societies.^[3] A rich literature on the Ottoman empire has shown how Muslims adapted the shari‘a to varied social environments and local customs, while accommodating the evolving demands of administrative law (kanun). Not just religious elites, but communities played a role in negotiating justice rooted in Islamic and imperial law. “Normative legal discourses were designed not to be rigidly applied,” Leslie Peirce has argued in her study of a sixteenth-century Ottoman court, “but rather to be used as legal guidelines whose interpretation depended on local particulars.”^[4]
Colonial regimes transformed the practice of the shari‘a. Indeed, it was during the nineteenth century that European legal thinkers began to conceive of the shari‘a, like the Jewish halakhah, as “law.” This conception departed from localized readings of diverse texts, read for a multiplicity of outcomes and interpretations, that understood the shari‘a as “a pattern of ethical conduct” or “a system of practical reason morally binding on each faithful individual.”^[5] In the minds of Orientalists and many Muslim elites, the shari‘a, or rather a limited collection of texts associated with it, became both a fixed code of law and a statement of orthodoxy.^[6] Moreover, in colonial contexts, Islamic law often gained the backing of centralized, hierarchically organized courts and police. It is this shari‘a of the powerful colonial state, Gregory Kozlowski has suggested, not the fluid ethical practice of pre-colonial times, that champions of the shari‘a have in mind when they call for its introduction today.^[7]
If European colonial rule gave rise to a more homogenous and inflexible Islamic law shaped by codes, police, and bureaucratic institutions, what was the relationship between the shari‘a and the state in the Russian empire, with its distinctive legal and Orientalist traditions? Tsarist authorities shared their European rivals’ aspirations for the codification of Islamic law, but beyond a few handbooks on limited subjects, these schemes remained incomplete. Instead different administrative responses prevailed in each region of the empire.^[8]
A closer look at the interaction between the Russian state and the shari‘a in one locale, Samarkand, reveals a distinctively tsarist variation on a global pattern. Reimagining the shari‘a was a dynamic process, shaped by a wide range of actors, and marked by discontinuities. Though Orientalists and Muslim men of religious learning (‘ulama) proposed novel kinds of state intervention in the realm of the sacred law, neither dictated the course of these changes. Litigants, including Muslims and Jews, brought their own understandings of the law to contests over its definition. Muslims developed new notions of the shari‘a, but in relation to the communities, institutions, and categories specific to this locale and the Russian imperial environment. In this context, disputes about the jurisdiction, scope, and meaning of Islamic law intersected with arguments about citizenship, morality, community, and memory.
In the early twentieth century, Muslims and Jews stood at the center of a conflict surrounding the jurisdiction of state and Islamic law, and of universal and particularist legal norms. A focus on the strategies of litigants who were central to these disputes restores a sense of contingency to the history of the shari‘a and of the rule of law in the empire. It shows how subjects, acting as individuals and as groups, contributed to the framing of such disputes. This approach does not view such legal controversies as a struggle between “pre-modern” and “modern” legal understandings or as a clash between mutually exclusive realms of state and customary law.^[9] Like other imperial states, the tsarist regime excelled in acting as an arbiter among groups with divergent legal norms. It presented “a framework for conflict” in which subjects could make claims on the state to fulfill its universalist pretensions.^[10]
Many officials expressed skepticism about the “humanity” of Islamic law as an adjunct of a “civilized” administration. But officials like G. A. Arandarenko, an administrator in Samarkand, rejected such criticism. Despite some shortcomings, he countered, Islamic law merited the respect due an “ancient law” with “many progressive, many humane principles.”^[11] Indeed, Russian authorities expected their Muslim subjects in Turkestan to organize their lives (and even property) in strict conformity with the shari‘a, as interpreted by Russian administrators and scholars.^[12]
By seizing the power to mediate arguments about “orthodoxy” and by introducing precedents, appeals, prisons, and bureaucratic means of enforcement, the regime placed itself at the center of disputes about the shari‘a. Confronted with the resulting market in legal forums, litigants adapted their claims to each case and moved between jurisdictions. Whereas Jews invoked the rule of law before Russian authorities, Muslims looked to the regime to back a more expansive understanding of the shari‘a, less as a personal code of ethical conduct than as a state-supported means to discipline public morality and police communal boundaries. While claiming to emancipate Central Asia’s Jews, the regime authorized voices who privileged punitive over mediated outcomes in a shari‘a reconfigured within imperial institutions.

* * *

Tsarist elites pledged to liberate the subjects of the khans and amirs of Transoxiana from the fetters of despotism and bring about their moral rebirth by imposing the universal protections of law. In administrative practice, however, doubts about law’s civilizing capacity persisted. Despite claims that Russian rule brought an end to slavery, authorities continued to confront evidence that it survived.^[13] And though women also figured as objects of liberation, the administration hesitated to pursue a systematic program of reform on their behalf. Instead, they continued to integrate “customary law” in the everyday administration of Turkestan, relying on Muslim policemen, tax collectors, judges, and elders to discharge a variety of governmental functions, including policing in “native” settlements and towns. Whereas slaves and women appeared to be beyond the immediate reach of Russian law, Jewish communities stood out as clear candidates for emancipation. Like Europeans elsewhere, Russians highlighted the persecution of non-Muslims under Muslim rule. Thus Captain L. F. Kostenko of the General Staff claimed in 1870 that Jews were “persecuted brutally” and therefore “await the arrival of the Russians, like the Messiah.”^[14]
In Samarkand, the largest Jewish community under direct Russian rule in Central Asia became the focus of this project of liberation. An ancient hub of commerce on the Silk Road, Tamerlane’s capital had long attracted traders and settlers from East and West. Jews resided there from at least the twelfth century. In the sixteenth century it had a Christian and a Jewish quarter and was home to Indian, Gypsy, Iranian, and Afghan communities. The Bukharan amir ruled the Jews through a variation of the Pact of Omar. Defined as dhimmis, “people of the book,” Jews enjoyed certain protections in exchange for recognition of Muslim sovereignty. They paid a special tax (the jizya) and were subject to residential, clothing, and other restrictions designed to distinguish Muslims from non-Muslims.^[15] In 1868, a Russian visitor recalled how Samarkandi Jews greeted the arrival of tsarist troops with a “joyous welcome” because “the Jews were constantly subjected to brutal oppression on the part of the Muslims.”^[16]
The new order inaugurated a language of “rights” as the basis for subjecthood. Policies intended for the western provinces initially had little practical significance as Jews from the Pale of Settlement fought in military campaigns and then stayed on in Turkestan as soldiers, doctors, artisans, and merchants. Though tsarist law established the privileged status of Russians (and other Christians) vis-а-vis local peoples, “native” subjects, too, enjoyed rights. “Subjecthood” (poddanstvo) brought a degree of entitlement, including the right to claim fundamental protections like due process and equal justice.^[17]
This distinction was premised on exclusions, however. Subjects of the amir of Bukhara or members of the Indian diaspora did not become naturalized and thus did not attain full civil status. Article 262 of the Statute on the Administration of Turkestan of 1886 guaranteed “native” subjects the right to acquire and own land and real estate in Turkestan, while denying the same right to foreigners who settled in Turkestan after the conquest and to non-Christians who migrated there from elsewhere in the empire.^[18] Three years later an amendment explicitly identified Jews “who had settled in the Turkestan region from time immemorial” as well as their descendents as “natives” with the same rights. From the 1870s, several thousand Jews migrated from Bukhara to settle permanently in the governor-generalship.^[19] Many of these recent immigrants became naturalized as Russian subjects, despite the letter of the law. By the late nineteenth century, some 5,000 Jews had established residence in the region of Samarkand (roughly equaling the number still under Bukharan rule).^[20]
The exercise of civil, property, professional, and other rights hinged on “native” status, but documenting this identity proved a challenge. Treaties between Russia and Britain did not demarcate the boundaries of Turkestan until 1895, when Russians established customs and military posts separating the protectorate of Bukhara and Afghanistan.^[21] Borders remained porous, however, and Turkestan continued to attract laborers, merchants, pilgrims, clerics, refugees, and exiles from surrounding states.^[22] The empire benefited from the circulation of labor and merchant networks, but the administration also confronted security concerns, heightened by anxiety about exercising sovereignty over such a vast space and its bewildering ethnographic variety.
Lacking accurate census records, Russian officials sometimes took ethnographic categories as the determinant of legal status. In 1873, officials in Tashkent rejected a request from Russian Jewish settlers to legalize their communal institutions.^[23] Similarly, in 1890, a court ruled that two brothers had no right to own property in old Tashkent because they were “Tatars.” However, they protested that their father had migrated some fifty years before from Orenburg province and settled permanently in Tashkent, where he married a Sart woman.^[24] Their appeal persuaded the governor-general and the Senate, which reversed the ruling. This judgment also prompted the collection in 1893 of lists of non-natives, especially Tatars and Jews, which served as the basis for individual expulsions from the region.^[25]
The treatment of Indian merchants demonstrated the value of the rights attached to the category of “native.” In 1866, officials targeted their moneylending activities by limiting the interest they could charge. In 1877, governor-general K. P. von Kaufman sought to “fence off the population of the region under my rule from the Indians’ exploitation.”^[26] He declared it illegal for them to own or acquire property, a decision that local officials interpreted as an order to liquidate their property. Despite Kaufman’s attempt to limit the ban to the acquisition of agricultural land (and not shops, caravansarais, homes, and gardens), Indian merchants protested their losses. By the turn of the century, some two thousand (roughly two-thirds of their total) had joined one seventy-year old Indian community in Tashkent and abandoned Turkestan.^[27]
Tsarist authorities envisioned law as a civilizing agent with the capacity to create loyal and productive subjects. The protections that European law guaranteed for property, together with its tolerance of native religion and custom, were to initiate a break with the practices of Oriental despots and inaugurate a period of transition to broader participation in the institutional life of the empire. Governor-General N. O. Rosenbach summed up this vision in 1888 when he advocated the establishment of a Russian justice of the peace court in Bukhara. “As soon as the native population of the khanate becomes clearly persuaded that the Russian court is definitely a ‘speedy, just, and merciful court’,” he explained, “then this conviction, more than the force of arms and trade advantages, will prompt the residents to be disposed not only out of respect, but out of sympathy toward the Russian administration.”^[28]
In the near term, however, officials looked to indigenous institutions to maintain order and stability, easing the transition to European law. Tsarist rule thus conferred the right not to be judged by state law, creating a legal space to be governed according to “custom.” As Captain Kostenko explained, the Russians permitted the population to maintain “many of the essential forms of administration and life according to the shari‘a,” while prohibiting aspects that proved “too harmful for the people’s development.” Russian authorities thus diminished some of the powers of Islamic law court judges (qazis). They proscribed the application of corporal and capital punishments and extended to unsatisfied litigants the right to be judged “in Russian courts, which should judge them according to conscience.”^[29]
Though the Statute of 1886 provided “natives,” as well as the “residents of the neighboring khanates residing within the boundaries of the Turkestan region,” with the right to adjudicate a broad range of legal matters in accord with “custom,” it transformed the organization and functioning of these courts. Following the abolishment of the post of senior qazi in each town, the law territorialized the jurisdiction of these courts. It obligated litigants to resort to the judge appointed for their district, rather than turn, according to the more fluid practice of the pre-conquest period, to whichever judge in the town might be most sympathetic. Previously appointed by Muslim rulers, judges now stood for elections, supervised by the administration, for a three-year term. Russian authorities scrutinized their “moral qualities” as well as their rulings and could remove qazis or annul their judgments. The law also created a second instance, in the form of an assembly of qazis, to review rulings on the basis of the shari‘a. Moreover, litigants frequently petitioned Russian authorities to intervene in individual cases or act against judges when their rulings or conduct departed from the shari‘a.^[30]
At the same time, tsarist law gave judges broad powers that they had not enjoyed under local Muslim rulers. Unlike qazis in many other societies, these judges had an extensive police force on hand to summon litigants to court and implement their rulings. They gained vast discretionary authority to fine litigants (up to 300 rubles) for a variety of offenses. In the most striking innovation, the law gave qazis the power to sentence violators of the shari‘a to prison terms of up to eighteenth months. Though lay people could exert pressure on judges through the electoral process and by way of denunciation, their right to appeal was limited. According to article 233, fines of less than 30 rubles and jail terms of less than seven days were not subject to review. Formerly the charge of temporal authorities in the region, various criminal violations now came under the purview of the shari‘a courts. Studies of such courts in other settings have emphasized their concern with creating social harmony, equity, and reconciliation.^[31] But here tsarist law gave these courts incentives not simply to reconcile disputing parties but to impose “winner-take-all” judgments backed by the threat of police enforcement and incarceration, freeing these judgments from many social constraints.^[32]
The Statute of 1886 defined an extensive jurisdiction for these courts. They oversaw commercial transactions, marriage, divorce, inheritance, and guardianship, that is, all “civil” cases between settled “natives,” with the exception of matters involving documents generated or witnessed by Russian authorities. The law also authorized these courts to handle criminal matters, excluding violations against Christianity, the administration, property, and Russians (or in Russian settlements), as well as offenses like murder and robbery. The law treated the “custom” of the steppe as entirely different from that of the town, with the former supposedly based on essentially secular traditions, and the latter drawn from Islamic precepts found in the Qur’an and related texts. The statute thus assigned civil cases between natives and non-natives, and between representatives of different native peoples (narodnosti) with separate customary courts, to be transferred to the justice of the peace or district courts, administered by Russian officials. Article 210 of the Statute allowed litigants in mixed cases to take suits to a customary law court, in the event that both sides agreed to do so. The system thus provided numerous links between the realm of custom and that of state law, and Islamic law fulfilled essential functions in administration, policing, and the regulation of social and economic life. This arrangement accorded litigants a significant degree of initiative and room for maneuver, however. By choosing between qazi and state courts, and by filing appeals from the former, litigants played a key role in determining the reach of imperial and Islamic legal norms.

* * *

At the turn of the century, the Jews of Old Samarkand initiated a debate about the nature of the “rights” that defined Russian poddanstvo. Their challenge grew out of two initially unrelated disputes. The first involved a case of petty theft. Sometime in 1901 a Muslim was accused of stealing money and goods from the home of a Jewish woman. On 17 December, the district court of Samarkand ruled that because the case involved two parties with “native” status, it belonged to the jurisdiction of the native customary law court, the qazi court. The second case concerned the estate of a Muslim, Makhmudzhan Mukumbaev, who had left his heirs responsible for a debt to Jewish merchants. In early 1902, the trustee of his estate, Tursun Baki Kabyl’baev, filed suit in a qazi court against Il’ia Khaim Aminov, a Jewish merchant, for 7,750 tangas (the Bukharan currency still in circulation), charging Aminov with overstating Mukumbaev’s debt. Apparently emboldened by the ruling of the court that had affirmed the jurisdiction of the qazi over cases between Muslims and Jews, Muslim judges claimed authority over all such mixed cases.
The Jewish merchant responded to the ruling by organizing a petition campaign. Aminov protested to the governor, calling the customary court “foreign” to the Jews “in the political and the social, and finally, the religious sense.” Although Jews had formerly been subject to these courts, he conceded, they were subject to Russian laws alone from the moment they received “Russian subjecthood.” With this ruling, he complained, “we are deprived of the right to enjoy a just and merciful court and are again given over to the yoke of the shari‘a, from which we were liberated by the appearance of Russian civilization.”^[33] Muslims had now begun to file suits against Aminov and other Jews in the Islamic law courts. Fearing the loss of his “good reputation and credit among merchants,” Aminov asked the governor to clarify the law and defend him from the qazi.^[34]
Jewish representatives of Old Samarkand filed a similar petition. “In 1868,” it recalled, “the Russian Banner was hoisted in Samarkand, putting an end to Muslim supremacy in Tamerlane’s capital and creating a new era in the history of the lives of the peoples of Central Asia.” “We, Jews,” it continued,

“having suffered for centuries all possible oppression from Muslim rulers, in the sense of the limiting of our rights in accord with the commands of Islam, [and] having become citizens with equal rights [ravnopravnye grazhdane] of the powerful Russian Empire first sighed freely and, from small to great, in recognition of the great blessing bestowed upon us, pronounced a warm prayer for the TSAR and Russia.”

Freed from the grip of the shari‘a, they argued, Jews enjoyed the “security and protection of the laws of the Russian Empire” and “the complete security of person and property of citizens,” which had encouraged them to strive for the attainment of “Russian culture and civilization.” But a “great misfortune” now threatened their rights: the Statute of 1886 established separate jurisdictions for nomadic and settled populations but ignored the distinctions “of origin and confession” among the latter. “We can not be counted as one or the other,” the petitioners protested, “because... we make up a separate unit, having our own peculiarities... which explains the fact that from the very first days of the subjugation of the region we cut all ties to the law of our former rulers [and came under] the new general state law.”^[35]
Other petitioners called for protection against the qazi, Mirza Niaz. In September 1902, Rabbi Abram Kalantarov and the elder Mushiiakh Fuzailov accused him of taking on cases already in “Russian court.” Their petition added that in January of the same year the Samarkand district court had contradicted itself, ruling that mixed cases belonged to the general courts in accord with an article of the statute that provided for separate courts for litigants of different peoples (narodnosti).^[36]
The Jewish elder Suleiman Achil’diev and six other notables complained about the qazi’s attempts to compel them to appear before the court by issuing summons through the police. “Native Jews found protection in the Russian court, which is understandable,” they explained, “because Muslim law has no relationship to the Jews.” These petitioners asked that the case be decided by the cassational department of the Senate – and not the district court, which, they reminded the Russian authorities, did not have the power to change laws by serving “as a guide for other cases.”^[37]
For his part, the qazi Mirza Niaz complained in October to the head of the district that Aminov still refused to appear in his court. He asked the official to send the defendant, together with the elders of his quarter, to appear before him to be fined “on the basis of the shari‘a.” The judge maintained that Aminov ignored a second summons sent through the bailiff and senior elder, asserting that the defendant claimed to have a telegram announcing that Jews were not subject to his court. The qazi countered that he had received a notice from the procurator confirming that the Senate had ruled that Jews must appear before him. When the elder Suleiman Achil’diev again refused to send Aminov, Mirza Niaz explained that he had fined the Jews “on the basis of the shari‘a.”^[38]
In the meantime, Aminov accused Mirza Niaz of using the ruling to reopen cases that long had been resolved. The judge only sought to “show his power over the Jews and take revenge” against them. He pointed out that the deceased Mukumbaev owed Aminov and another Jew, Suleiman Shakarov, a promissory note of some 9,530 rubles, with over half still unpaid upon his death. When Aminov and Shakarov planned to turn to the justice of the peace court to recover the debt, the qazi and other Muslims approached the Jews to end the matter by offering a settlement, which they accepted. The creditors received goods and money as well as Mukumbaev’s home as collateral, and the debt was extended. Aminov noted that the entire transaction was recorded in the qazi’s “book of transactions.”^[39] To his surprise, Aminov faced a suit from the trustees of Mukumbaev’s estate. Facing similar legal action, Shakarov agreed to pay to end the suit. This transaction was also recorded in the qazi’s register. Like the suit, the qazi’s fine, Aminov claimed, “is even illegal according to the shari‘a.” The qazi had become “too severe contrary to the law,” Aminov charged, because “he sees how native Jews evade his judicial influence.”^[40]
Each party expected tsarist justice to stand on its side. As “citizens with equal rights,” Jewish notables demanded exemption from the particularist claims of the Muslim community and the protection of universal law and “civilization.” Russian Orientalist scholarship supported this view. Following the Andizhan rebellion of 1898, a study commissioned by governor-general S. M. Dukhovskoi asserted that Muhammad counted Christians and Jews among the “unbelievers, which should not be the friends of the Muhammadans and which must be exterminated at the first opportunity.”^[41]
Despite tsarist avowals of liberation from the Muslim “yoke,” however, administrative practice also gave the qazi confidence that Russian authorities would back his writ, even over non-Muslims. Muslim elites in Samarkand had expected the Russian authorities to reinforce their authority over Jews from the first days of the conquest. The chronicler Mirza ‘Abdal ‘Azim Sami recounted an exchange between tsarist officials and Samarkandi notables in 1868 that seemed to affirm the continuation of Muslim preeminence through a union with the new Christian rulers against common foes, the Jews. After the Russians demanded surrender and offered temporary exemption from taxation, the mufti Mulla Kamaladdin responded that “God had communicated about this in the Qur’an: ‘You know that of all [people] the most brutal haters of the believers are the Jews; and you also know that those who love the believers more than all are those who call themselves Nazarenes.”^[42] Kamaladdin offered this quote as clear proof that “Christians will relate to Muslims sympathetically and kindly, adding that the “just ruler remains [in power], even if he is an unbeliever, and a brutal one can not, even [if he espouses] Islam.” The Russian governor apparently concluded this exchange and sealed the Muslim-Christian pact by appointing Kamaladdin to the position of chief judge of the region (oblast’).^[43]
When Jews appeared to flout the authority of Islamic law under the new order, Mulla Fazil, the qazi of neighboring Katta Kurgan, sent a protest in 1869 to General Abramov. Mulla Fazil’s petition insisted that

“at the time of my appointment... His Excellency Governor-General Kaufman said to me: apart from capital punishment and the cutting off of hands and feet and the like, you (ty) can do everything, you will be everything, and you will supervise the correctness of all [tax] collections and where you notice abuse of any kind, you can inform our authorities.”^[44]

Tsarist officials thus faced the challenge of balancing the imperatives of “civilized” rule with the collaboration of Muslim intermediaries, who expected Russian power to reinforce qazis’ rulings among Muslims and Jews alike.
The situation became further confused when evidence emerged that, even after three decades of tsarist rule, Jews continued to use the Islamic legal system, sometimes in conjunction with Russian courts. A survey of courts for the years 1901-1903 contradicted the standard accounts of persecution. The investigator, Captain Davletshin, showed that Jews turned to the qazi in Kokand to seek the adjudication of disputes and transactions in which both parties were Jews. They even won judgments against Muslims, as when an Islamic court convicted a Muslim of raping a Jewish child.^[45] In the Ferghana region, with a population of 1,654 “native” Jews, Jewish litigants did not resort to the Islamic courts in cases involving other Jews. But they did appear 129 times before these courts in dealings with Muslims. In 2,375 cases in Ferghana, Jews and Muslims resorted to the justice of the peace courts; Jews went to these courts in 494 cases with other Jews. In Samarkand oblast’ (with some 4,300 “native” Jews), by contrast, the qazi courts recorded 47 cases between Jews and 241 between Jews and Muslims, while the justice of the peace courts recorded 594 Jewish and 784 mixed cases.^[46]
Though Samarkandi Jews had established a communal “court of arbitration” out of dissatisfaction with the community elder (kalontar), Jews like Nasim David-Alaev continued to use both the qazi and state courts. In January 1902, he turned to the district court to appeal the ruling of a justice of the peace court on the guardianship of his ten-year-old niece. Among the documents submitted by David-Alaev was a ruling of a Samarkand qazi, stating that “on the basis of the shari‘a and the law,” David-Alaev was the legal guardian of the girl.^[47]
Indeed in the merchant Aminov’s own testimony against qazi Mirza Niaz, he divulged that his business dealings had taken place in the qazi’s court. It will be recalled that he and his partners accepted Mirza Niaz’s offer to mediate; collateral was exchanged, and a disputed debt extended. Each of these transactions, including his partner Shakarov’s agreement to make payment to bring a suit to a close, had been notarized in the judge’s register. From his own account, we see that Aminov had not simply used the notarial services of the qazi. He engaged in contracts according to the shari‘a with Muslim merchants and felt confident enough of his knowledge to declare that the qazi’s imposition of a fine upon him was “even illegal according to the shari‘a.”^[48]
Through this strategy Aminov and his backers aimed at invoking the state’s own claims about the universal protections of European law to gain a tactical advantage in the dispute with Mukumbaev’s heirs. Yet Jewish merchants had conducted business in the qazi court independently of the Samarkand district court’s ruling. Islamic law formed the basis for many kinds of contracts in Samarkand and elsewhere, whether the parties were Muslim or Jewish. Moreover, despite the petitioners’ claims of estrangement from their Muslim oppressors, significant evidence points to other shared forms of sociability among Samarkandi Muslims and Jews that went beyond business transactions. They both revered common religious sites and spoke Persian; in both communities, men shaved their heads, and women covered themselves in public spaces.^[49] Aminov’s argument about the absence of common ground between Jews and Muslims represented an attempt to use the regime to effect a novel form of communal separation. Alongside new residential patterns created by Jewish migration from the “old” indigenous cities to the adjacent Russian settlements, the imperial legal sphere became a space for the assertion of distinctive identities and the redrawing of the boundaries of community.
Narodnost’ had become a potential asset in the new legal order. Introduced by the tsarist bureaucracy, ethnonyms began to appear in the court records and petitions through which locals interacted with the regime. Previously, local sources had used the names of tribal confederations and labels derived from toponyms, but the language of Russian ethnography was largely absent from qazi court records.^[50] From the perspective of the broader Jewish community, Aminov and his partners’ use of Russian law – and their representation of their relationship to the shari‘a – formed an innovative legal strategy against familiar business associates (who happened to be Muslims). Indeed, investigators noted that this Jewish community in Samarkand was the only one in Turkestan to petition the state for removal from the jurisdiction of the Islamic court.^[51]
Officials read these appeals as a test of Russia’s promise to introduce law to a region that had been deprived of justice from time immemorial. In a report to the Minister of War in November 1902, governor general N. A. Ivanov noted that this issue had not formally arisen with respect to the Jews before and that the administration had no uniform policy. Citing Davletshin’s report, he observed that one qazi’s records in Kokand included several cases in which both litigants were Jews. In the Syr’-Daria region, by contrast, Jews fell under the jurisdiction of the general courts. Meanwhile, the district court of New Margelan had ruled that Jews could not complete acts of purchase and sale through the qazi courts because article 235 of the Statute prevented the customary law court from presiding over a case involving “Sarts” and “native Jews.” The Tashkent Judicial Chamber agreed with this judgment, but in December 1901 the Samarkand court ruled that Jews were subject to the customary law court. Later, a suit between an Afghan and a Sart raised the same jurisdictional issue, but the Tashkent Judicial Chamber ruled in July 1902 that differences in narodnost’ “in the narrow sense of the word do not have significance and that the cases of such persons are subject to the customary law court.”^[52] Morever, it explained, the Afghan had settled in the region before the conquest and thus, as a Russian subject, “should be recognized as having all rights enjoyed by a settled native.”^[53]
Ivanov argued for a uniform policy of separate jurisdictions for Muslims and Jews. The general maintained that because the law of these courts was based on the shari‘a, “a code based on a strictly religious foundation – the Qur’an,” permitting them jurisdiction over the Jews “would hardly be correct, because the foundation of all European law, including the Russian, [is] the equality of litigants in court – [which] is not present in Muslim law.” Claiming that non-Muslims could not be witnesses even on behalf of a Muslim, Ivanov argued that the courts had erroneously concluded that the law permitted only two types of courts, one for settled, and another for nomadic populations. Citing the example of nomads who should be encouraged to adopt a settled way of life without giving up their secular customary law for the shari‘a, Ivanov argued that “legal customs,” and not the settled/nomadic distinction should determine jurisdiction. Moreover, he noted, the Statute had established Russian courts for litigants of different narodnosti with separate customary courts. Excluded from elections to customary courts, Jews represented a “completely different ethnographic group.” Their “native” status guaranteed by article 262 concerned only “their rights to obtain real estate in the region.” He concluded that “in cases among themselves and with native Muslims [they] are subject to the court operating on the basis of the general laws of the Empire.”^[54]
The General Staff disagreed with the governor-general’s view. It rejected his characterization of Islamic law and its supposed disregard for equal treatment.^[55] In December 1902, Major General Vasil’ev countered that customary law based on “the decrees of the shari‘a” corresponded completely “to the people’s understanding of justice” and that it conformed “to the level of its mental and moral development.” Inadequacies in the courts were due, he argued, to the unsatisfactory condition of judges produced by a corrupt electoral system. Central Asian Jews, “having completely assimilated in their customs with the rest of the native population,” had long been subject to these courts. Removing them now and placing them under the “general court,” he protested, would represent a “special privilege, which is awarded only to natives who have attained special rights of service.” Moreover, Vasil’ev warned, Jews would take the opportunity “to abuse, with the art peculiar to that nation,” the court’s exclusive use of written evidence and thus place them in a “special privileged position.”^[56] The move would also thereby break the Jews’ “dependence upon the general mass of the indigenous population which is somewhat desirable.”^[57]
In March 1903, the Minister of Justice N. V. Murav’ev entered the debate. He agreed that a literal interpretation of the Statute supported the War Ministry’s view but retorted that the law-makers’ intentions should also be taken into account. Murav’ev noted that they had always seen the retention of such courts as “temporary.” The government conceded their existence only because it did not want to “intrude by force into the sphere of the moral understandings of the population and change the reigning customs” and because of the “practical necessity” of securing “Russian success in Central Asia and the quiet possession of a Muslim region.”^[58] However, the Minister noted, the State Council had judged in 1886 that “with the strengthening in the people of civilization and the development of its economic interests, the population will itself recognize the superiority of Russian law over its antiquated customs and little by little voluntarily submit to it.” Moreover, while Jews differed little from other natives “in clothing and way of life,” the Statute did not intend to make them subject to the legal prescriptions of Islam. Given the “intolerance of Muslim law toward non-believers,” he argued, the “customary law court would not guarantee for Jews the application of the most basic principle of legal proceedings, namely, the equality of the sides before the court.”
The Minister added that the regulations for the customary law court had been formulated with a population of the “Turko-Mongol tribe” in mind, which had “its immemorial legal norms.” The law-makers had not desired to diminish the rights of native Jews. At the same time, he expressed doubt about Vasil’ev’s contention that “the protection of the natives from the exploitation of the Jews would be achieved by way of the lessening of the procedural rights of the latter.” Rather, Murav’ev pointed out, it was in “the Russian court [where] both the Jew and the native always find a defense of their legal interests.”^[59]
The General Staff’s response to the Minister of Justice in October 1903 reaffirmed its support for retaining customary jurisdiction over the Jews and dismissed the objection that Jews did not enjoy equal rights with other natives in the qazi court. Vasil’ev insisted that restrictions noted by some interpreters of Islamic law were not applied in practice even in Muslim states. Together with punishments like amputations and stonings, he claimed, such aspects of the shari‘a remained a “dead letter.”^[60] Against the Minister of Justice’s objection to the General Staff’s positive view of Jewish dependence, Vasil’ev countered that natives were not yet familiar enough with the Russian court. Forcing them to turn to it in cases with the Jews would leave them in an “unfavorable position.” While agreeing that the customary court was a “transitional institution,” Vasil’ev insisted that measures to limit it be applied “equally in relation to all natives of the region, without making exceptions in this regard for any separate people.”^[61]
The Ministries of Justice and War failed to resolve their differences, and the question was shifted to the State Council and Senate. In the meantime, local courts struggled to evaluate the place of narodnost’ in determining the reach of state law. In October 1907, the Tashkent Judicial Chamber ruled that cases arising between Jews and Sarts were subject to the general courts. It reasoned that the customary court coincided with “racial difference and the particularities of the morals and customs” of each people: “the racial, tribal principle [and] the individuals’ belonging to one or another tribe, that is, the identity of blood origin, are placed at the foundation of the organization of the customary courts.” Alongside this “racial, tribal principle,” Muslim intolerance toward Jews prevented the latter from finding justice in such courts. The law, the Tashkent judgment concluded, “always intends the realization of expediency and fairness.”^[62]
Undeterred by such rebukes, Muslim elites in Samarkand utilized the occasion of Count K. K. Palen’s inspection of Turkestan in 1908 to press the regime to expand the scope of the shari‘a. Invoking the common good of the empire, such calls envisioned the systematic and uniform implementation of shari‘a practices in areas where diverse customs – and even past Muslim rulers – had placed limits. One petition asked that “all court decisions,” “newly published laws,” as well as instruction in madrasas and Qur’anic schools conform to the shari‘a.^[63] Overriding doctrinal and legal differences among Muslims, it requested that “All peoples of Turkestan, including the Kirgiz, Kazakhs, Turkmen, Afghans, Iranians, Sarts and Uzbeks submit to the shari‘a, because they are all Muslims.” The petitioners requested that the shari‘a govern the appointment of these peoples’ judges (and other religious posts) and replace their customary laws, which should be “abolished.” The state should assist Muslims, it maintained, in ensuring that Muslim women covered their faces, that violators of the holy law not be permitted to testify in court, and that Muslims be punished according to the shari‘a for opening brothels and bars. The petition appealed for the publication without censorship of “all books in Muslim script,” excluding those of the Baha’is, who, it argued, should be banned from using “Muslim letters.” These petitioners not only sought the application of their concept of the shari‘a at the expense of local custom and religious differences; they also encroached upon areas such as the handling of water resources and criminal matters, which were regulated by state law in pre-colonial times.^[64] Asserting continuity with tradition, they argued that conflicts over irrigation rights should be administered according to the shari‘a, claiming that “the people is already accustomed to this.” Similarly, the petition requested that murderers, thieves, and other criminals be punished “according to the shari‘a” or by a “more severe law” than the tsarist one. In both cases, these assertions mapped out a jurisdiction for the sacred law that exceeded that established under the amirs.
Echoing these and other demands, another petition from Samarkandi notables protested the behavior of local Jews.^[65] It charged that many had acquired Russian subjecthood by bribing officials, with whom they drank and played cards. In 1905, the petition alleged, Jews had insulted Muslims after prayer. When a qazi sentenced them to four months in prison, the Jews extricated themselves by running to the Russian authorities and sending a telegram to the Senate, which annulled the judgment. Lamenting the “Jewish yoke” under which they lived, the petitioners complained of disputes with Jewish butchers and requested a separate slaughter-house, “one for ourselves, and one for the Jews themselves.” In the meantime, Palen’s investigation revealed that a local qazi had used his state-delegated power to jail violators of the shari‘a to discipline co-religionists who failed to maintain communal solidarity, sentencing a Muslim butcher who had dared to sell Muslims meat prepared by a Jewish butcher to a fifteen-day term.^[66]
Despite the entreaties of Samarkand’s Muslims, in 1913 the Senate confirmed the Tashkent court’s decision of 1907, removing the Jews of Turkestan once and for all from the Islamic courts and bringing them under the jurisdiction of state law.^[67] Formerly a common legal resource of local Jews and Muslims, the shari‘a was now bound by precedent, redefined by the imperial center as a communal law. Deprived of jurisdiction over the Jews, qazis retained their newly won powers to direct the shari‘a into channels authorized by imperial institutions. The tsarist state thus shaped how Muslims imagined the possibilities of the shari‘a. The regime limited the application of the sacred law with respect to non-Muslims; however, it amplified the authority of the interpreters of the shari‘a to apply punishments, utilizing the implements of the bureaucratic state, in the name of orthodoxy and communal cohesion.
The strategy of Aminov and his fellow notables had successfully mobilized the regime, despite the opposition of the General Staff, to fulfill its promises of liberation. In the language of subjecthood created by empire, Jews, like other “native” subjects, appealed to the universal protections of the law. The migration of the protean concepts of narodnost’ and, later, race bolstered the claims of cultural difference articulated by Jewish litigants. Their particularist claims advanced universalist goals, while effecting their legal separation from the mixed urban environment shared by Muslims and Jews.^[68] Though the regime hesitated to break with its instrumentality of rule through the shari‘a, the shift toward state jurisdiction for the Jews reflected a concern among tsarist elites with the international norms of some variation on the “rule-of-law” state as a legitimizing principle of empire.
In Turkestan, as in other European imperial possessions, the rule of law resided in a heterogeneous legal space, in tension with notions of law central to the liberal imagination. This conception of law countenanced legal norms based on “custom” or “religion” in ways that defied uniformity and constrained the autonomy of individual subjects. The pluralism of the imperial system nonetheless accommodated difference in ways unforeseen by liberal proposals for uniform civil codes. At the same time, the tsarist imprint on disputes about the sacred law transformed how local Muslims conceived of its place in a changing world. An empire in search of order tempted its subjects with the enforcement mechanisms of an illiberal state, a legacy that would animate diverse political projects in the twentieth century and beyond.^[69] Local Muslim communities’ engagements with such colonial regimes have yielded heterogeneous reworkings of the shari‘a. It is in these disparate colonial memories that the makings of today’s visions of the “Islamic state” are to be found.