The French Sénatus Consulte of 1865 on the Status of Persons and Naturalization in Algeria begins by stating that “the Muslim native is French, nevertheless he will continue to be governed by Islamic law”. Article I goes on to differentiate between French nationality and citizenship, continuing: “he can, upon his request, be allowed to enjoy the rights of the French citizen”, in which case “he will be governed by the civil and political laws of France”.Footnote 1 The assumptions underlying the article remain unarticulated, but it implies that since a willingness to be “governed” by the French civil code is a condition of citizenship, a “native”, by extension, cannot “enjoy” the full rights of a French citizen without renouncing Islamic law. Left unsaid in this opposition is what is lost when, “upon his request”, the Muslim native chooses to be governed by French law, and why Muslim law was regarded as incompatible with French political citizenship.
It was all about sex. Or, rather, about French sexual fantasies of what sex and family life in Algeria were allegedly like, how they differed from European norms, and how that difference, in turn, helped define the very concept of French citizenship. Judith Surkis's deeply researched and evocatively written Sex, Law, and Sovereignty in French Algeria, 1830–1930 exposes how jurists, reformers, and even novelists (some of whom were themselves also jurists), from the era of the French conquest of Algeria to its centennial, defined and deployed legal conceptions of Algerian sexual “deviance” in the service of establishing a colonial legal order wherein French law emerged as more “civilized” and superior, and the vast majority of nationals were deprived political rights. Playing out fantasies of the Muslim household as cloistered harem, they condemned polygamy, child marriage, and repudiation of wives as backward and un-French.
At the same time that Muslim personal status law was defined as aberrant, however, laws were promulgated to preserve it. Not even a month after had France officially annexed Algeria in July 1834, Surkis informs us, legislation was enacted to preserve Islamic courts, in effect making muftis and qadis French civil servants. Ultimately, it would be French jurists who upheld and enforced the native laws that, having been deemed un-French, disqualified Muslims from political citizenship. But, as Surkis makes clear, in doing so, “jurists, administrators, and politicians regularly enacted a colonial legal fantasy: they issued judgements and policies as if they knew “Muslim law” (p. 14). As manipulative an endeavor as this was, its real effects were such that law became “as important to Algeria's colonization as military might” (p. 18). Surkis convincingly makes the case for this by drawing on a wealth of incredibly varied sources, from civil registries (état civil) and other administrative documents to court cases, and from newspaper accounts to fiction, as well as psychoanalytic theory.
French law and Muslim law in colonial Algeria were, as Surkis shows, extimately connected. “Extimacy” is a concept elaborated by Jacques Lacan to convey the exteriorization of the most intimate desires. It is used productively by Surkis to show the extent to which fantasies about Muslim sexual and family life revealed the deep-seated fears of the fantasizer (in this case, the French). By fixating on the supposed excessive sexual privileges of the Algerian Muslim male, French men not only established Algerian men's difference from themselves, but also indulged in an imagined wish fulfillment of what had ostensibly been denied them by the French Civil Code. Although, as Surkis acknowledges, “French law itself left ample room for French men's extramarital sex” (p. 17), the Civil Code remained a monogamous ideal against which allegedly polygamous natives were measured and found wanting. This was especially the case after the Crémieux decree of 1870 granted citizenship to Algeria's Jews (save for those living in the as yet unconquered Sahara) and subsumed them under the French Civil Code, thereby relegating licit polygamy almost exclusively to Muslims, and making it a sign of their “inassimilable religious and legal difference, which justified exceptional legal treatment and political exclusion” (p. 57).
The Manichean distinction between French and Muslim law in Algeria, however, was never wholly stable. While legal pluralism solved some problems of colonial governance (allowing an extremely limited franchise in a putative democracy, for instance), it exacerbated others. Some of Surkis's deepest insights come in her examination of the exceptions that made, or threatened to unmake, the rule. The biggest exception to the rule of legal pluralism – and one of the most fascinating chapters of the book – came in the domain of real property. While persons came to stand as living embodiments of Islamic law and thereby were regarded as unassimilable, real property was assimilated fully. “Algerian land thus became fully French”, Surkis writes in the introduction, “while the Algerians living on it remained Muslim persons (albeit with French nationality)” (p. 5).
In metropolitan French law, legal personal status had been abolished during the Revolution, and the legal pluralism it rendered necessary was henceforth condemned as a throwback to Old Regime privilege. In colonial Algeria, the process of legal assimilation mainly concerned property. In Chapter Three, Surkis analyzes how the 1873 Warnier Law broke up collectively held (arch) and privately held (melk) lands and allocated individual titles to them. The chapter brilliantly demonstrates how, in trying to disaggregate Muslim families from land, the latter of which ostensibly could be abstracted from religion, the colonial state was confronted with the imbrication of the two. The French Civil Code held that individuals could not be forced to avoid alienating their personal share of a property if they wished, but Algerians frequently held property in common as extended families, not individuals. This then raised the question of how one should define the contours of family and ascribe title, not to mention manage property inheritance, which itself fell under personal status law. In the interest of property registration (and, it was hoped, eventual sale for the purposes of colonization), some politicians favored following a nuclear family model, even as they had already defined the Algerian Muslim man as polygamous. Meanwhile, a hereditary model that acknowledged extended families threatened to recognize too many co-owners and to parcellize the land beyond effective utility. Land commissioners spent untold hours tracing the “original” ancestors of the property in question and apportioning shares. In one incredible example, a commissioner calculated fractions of land shares for one clan at 154,903/406,950 (p. 112). Here, Surkis shows herself to be not only a skillful legal historian, but also an astute observer of the social history of Algerian families. She also traces how individuals brought lawsuits that mobilized the Warnier Law's definition of “family” to their own ends. Throughout the book, Surkis shows a much messier social reality than the social order imagined by jurists, who approached land law with the “fantasy of the aerial photograph” (p. 104) in mind.
The French also butted up against the logic of the bifurcated legal order they had established when French women married Algerian Muslim men. Under the Civil Code, women's juridical status (until reforms in 1927) was supposed to follow that of the husband. But had this been applied in Algeria, French women who married Algerian men – few in number but symbolically significant – would have fallen under Muslim law. Wishing to avoid this fate for French women, colonial jurists sought to “protect” European women “from the patriarchal excesses of Muslim law” (p. 197). Despite some early court decisions to the contrary, it eventually became “axiomatic” that French women “could never assume Muslim law status, even by marriage” (p. 203). In ruling this way, jurists ironically violated the Civil Code's principle of family legal unity that prevailed until 1927. In effect, they made white European women embodiments of French law, granting them a sort of personal status that stayed with them regardless of whom they married. As Surkis puts it in her clever reworking of Simone de Beauvoir, “one had to be born an indigène, one could never become one” (p. 190).
Other topics explored by Surkis in this volume include forced child marriage, a military sodomy scandal, and legal reform. She also makes the very interesting choice to focus the last full chapter on the connections between legal scripts and fiction written around the centennial of French rule. This allows Surkis to end her story by highlighting Algerian nationalist critics who “called out the sentimental fictions propagated by colonial jurists and politicians” (p. 281). An epilogue quickly traces the story over the next century, as decolonization “reconfigured these problems without resolving them” and “sexual fantasies about Muslim law have continued to haunt the imaginary of French sovereignty” (p. 293). One need look no further than the daily news in France to confirm how true this remains.
