Contemporary legal life around the globe is full of institutional actors. Even informal means of dispute resolution like mediation are now often given institutional form rather than relying on the good intentions and efforts of casually engaged third parties. Operating as councils, tribunals, commissions, boards, and—last, but not least—courts, both state and non-state legal processes have located meaning and importance in institutional monikers and forms. As this contribution cautions, however, we need to be quite careful about our linguistic translation of legal institutions. Despite everyday usage, the above institutions are not necessarily synonyms for each other and there can be serious material and political implications of each legal label. In particular, translating non-state institutions as “courts” has particularly fraught implications that need to be considered. Here I will draw out some translation lessons that my work on Indian dar ul qazas—often characterized as “Muslim courts”—has brought into relief.
In India, the “usual” legal institutional mix is further diversified by the existence of panchayats, adalats, and—for Muslims, especially—dar ul qazas. Research on the complex roles played by a network of dar ul qazas operating across India since the early twentieth century is at the heart of my recent book, A Secular Need: Islamic Law and State Governance in Contemporary India. While longstanding, these non-state Muslim dispute resolution bodies have come under much scrutiny and criticism over the past fifteen years, spearheaded by a public interest litigation petition filed against them in the Supreme Court of India in 2005. The Supreme Court’s eventual 2014 decision in the case of Vishwa Lochan Madan v. Union of India was confusing and deeply ambivalent but seemed largely to refute efforts by the petitioner in this case, Mr. Madan, to interfere with or shutter dar ul qazas. Translating dar ul qazas for an English speaking audience, Mr. Madan argued to the Court that it should “[d]eclare that the . . . activities being pursued by the All India Muslim Personal Law Board . . . and other similar [nongovernmental] organizations for establishment of [a non-state] Muslim Judicial System (Nizam-e-Qaza) and setting up of [non-state] Dar-ul-Qazas (Muslim Courts) and [non-state] Shariat Court[s] in India is absolutely illegal, illegitimate and unconstitutional.” Resisting Mr. Madan’s invitation, however, the Court allowed dar ul qazas (and similar non-state bodies) to continue to help alleviate the Indian legal system’s staggering and burdensome caseloads. Government lawyers arguing the case (against Mr. Madan) had highlighted this useful role and, amidst several other observations in its decision, the Court expressed its agreement with this positive view of dar ul qazas.
One criticism of dar ul qazas leveled by Mr. Madan was that Muslims, and especially Muslim women, were deceived into taking their disputes to dar ul qazas rather than the state’s courts. The issue of deception has come up even more recently in the 2017 Madras High Court case of Abdur Rahman v. Secretary to Government, where the divorce efforts on behalf of a Muslim woman by a “shariat council” were challenged in front of the High Court by this woman’s British educated husband. In its decision shuttering the council, the High Court evidenced sharp concern with the council’s physical and procedural operations, and the way in which these operations might convince (unsophisticated) persons that this non-state council was operating as a state court. In the High Court’s own words: “[T]he impression which is conveyed to the public at large is of a Court functioning. We have also to take note of the fact [here] that persons visiting the mosque [where the shariat council was based] may be from different social status and [be] less educated persons . . . or women who are vulnerable.”
Dar ul qazas are thus placed in a double bind. On the one hand, they must resist being too “court-like” or they will be accused of deception. On the other hand, they must also avoid unprofessionalism lest they be accused of incompetence, crude illegality, or even worse.
Our translations matter here crucially. It can be satisfying to simply and relatively literally translate dar ul qaza for English-speaking audiences as a “place of adjudication.” However, this translation is also clunky, somewhat exotic sounding, and, hence, susceptible to Orientalist uses and interpretations. Instead of “place of adjudication,” then, I have sometimes translated dar ul qaza using common Indian English terms. “Muslim court” and “shariat court” are two such terms I have used, following the lead of other English speakers, including Mr. Madan and many Indian journalists.
These two terms, however, suffer from their own problems. As I articulate in A Secular Need, the dangers accompanying these two translated terms are that they, too, can be easily deployed by Islamophobic or Orientalist audiences. To quote from the beginning of my monograph’s Chapter 1:
“[S]uch expressions tend to ascribe a simultaneously sensational and sclerotic ‘Islam-ness’ to dar ul qazas, in the process denying them [to paraphrase an idea from Hussein Ali Agrama] ‘ordinary Muslim agency.’ Although dar ul qazas are Islamic legal institutions both founded by and currently run by Muslims, the Islamic credentials of the dar ul qaza network focused on [in this book] are just as much imbricated in the anticolonial, pro-nationalist, and interreligious orientations of the early twentieth-century Indian Muslim founders of this non-state legal network, as they are in some sort of sensationalized shariʿa.”
The expression “shariat court” has the additional problem of inaccuracy: the concept of shari‘a is a much bigger one than the ordinary mediation processes and fiqh engagements that generally occur in dar ul qazas.
“Shariat court” is also a peculiar usage to the extent that “shariat” is being understood (restrictedly and inaccurately) as first and foremost a type of law. Used this way, going to a “shariat court” seems as odd as going to a “law court,” even if this latter qualifier does make one’s destination less prone to potential misunderstanding about going to a basketball court! Our language practices are often unscientific and all sorts of technically unnecessary fillers routinely seep into our spoken and written practices. Indeed, in one dar ul qaza case that I focus on in Chapter 4 of A Secular Need, the actual dar ul qaza case decision (or faislah) records the dar ul qaza describing itself on the first page of the faislah as a “dar ul qaza adalat.” If we were to translate this somewhat literally, we would refer to this institution as a “Muslim court court.”
Such a possibility seems to push us away from paying too close attention to how institutions describe themselves. And, indeed, self-description can be a peculiar thing to focus on when engaging in the process of translation. Translation is in many ways an incitement to redescription rather than literal description.
Yet without listening to the self-description of institutions, we run the risk of wild mischaracterization. To appreciate this point, it may be helpful to shift our focus from the non-state to the state and, moreover, all the way up the institutional ladder to the Supreme Court of India. English-speaking audiences both inside and outside of India routinely refer to this court by its chosen name. Indeed, people continue to use the moniker “Supreme Court” for this institution even though 1) its judgments routinely suffer from lack of enforcement in a manner “typical” of non-state rather than state institutions, 2) this institution routinely exercises a kind of “public interest” jurisdiction wildly different than the circumscribed role in society and politics that comparable global institutions set out for themselves, and 3) this institution routinely issues judgments grossly undermining fundamental rights and even basic norms of human decency. In short, we call this institution the “Supreme Court” even though it often exercises neither supremacy nor courtliness. By way of contrast, it could be more accurate to describe this institution as India’s Supreme Panchayat or, more critically—and contemplating its longstanding dalliances with Hindu nationalism—as the Supreme Caste Panchayat.
That said, India’s Supreme Court is understood as it is for longstanding political and cultural reasons that bely easy resignification. It is a Supreme Court because it is a Supreme Court and efforts to recharacterize it could be costly, confusing for its immensely diverse set of interlocutors, and also come across as imperialist (particularly to many Indian stakeholders). To be sure, following Talal Asad, we could also see the deployment of a Supreme Panchayat vocabulary as resisting the imperative for less powerful contexts to “submit to forcible transformations in the translation process [rather] than the other way around.” But what might seem a powerful rebuke of India’s colonial past to some could come across to others as a troublesome insistence that the Indian Supreme Court give up its adopted court moniker or that its courtliness be judged by the terms set by other global (Anglo) cultures. It is worth remembering that the “Supreme Court” in the United States is itself a wild outlier on many fronts, as well as a longstanding perpetrator of racism. Further, ignoring the unique significances of local nomenclatures is arguably what led to the easy problematization of dar ul qazas and shariat councils (as imposter “courts”) in the Vishwa Lochan Madan and Abdur Rahman litigations discussed earlier.
Ultimately, we can be well served to resist the impulse to translate in a manner desiring sameness across linguistic and cultural traditions and, rather, to treat legal institutions on their own terms unless there is a deeply compelling reason to do otherwise. Translation is never easy, always fraught, and must be engaged in cautiously in a world where the stakes are so high.