Maintaining Muslim Law

As we have seen, the Muslim law jurisdiction established by the 1834 ordinance comprised more than “personal status.” According to that law, French and native tribunals assumed reified categories of personhood—French, European, indigène musulman, and indigène israélite—whose distinctive attributions continued to shift in the early decades of colonization.⁹ The formal establishment of military-run Arab Bureaus in the 1840s reinforced this system of multiple jurisdictions.¹⁰ Relying on native chiefs and native justice to maintain control, military men adopted a tactical attitude toward Muslim law, even as they sought to circumscribe its effects both legally and territorially. Muslim legal constraints on properties sold to Europeans were increasingly curtailed, for example, by the October 1, 1844, ordinance, which disallowed indigenous claims that certain properties were “inalienable” because they were held in religious trusts (habous).¹¹ Projects of “cantonment,” beginning in the late 1840s, delimited tribes’ territories supposedly based on their needs, in order to free up lands for settlement. Part of Emperor Louis Napoléon’s project of an Algerian “Arab Kingdom,” the 1863 sénatus-consulte on the “constitution of property in territories occupied by Arabs” circumscribed lands on which colonization could be pursued. Despite its claims to conservation, it promoted disaggregation of collective tribal lands, albeit based on principles of Muslim property law.¹² While subject to such reinvention, Muslim law continued to regulate native property titles and transactions until the Warnier Law established French titles on selected “family” properties and collectively held lands in 1873.¹³

In these initial decades, interpretations of Muslim land law were bound up with competing models of colonization: whether it should be military or civilian, state-directed or based on private initiatives, focused on European settlers or native Algerians.¹⁴ Treatises debated the fine points of local land law and outlined the categories and concepts that structured successive approaches to land policy. Claiming to merely describe traditional forms of land tenure, they elaborated the nature of individual or “private” property (melk) and collective titles (arch), the status of pre-conquest “state lands” (beylik or Makhzen), and the complex legal construction of religious endowments (habous).¹⁵ In his defense of European colonization, Alexis de Tocqueville drew on these interpretations to claim that it was easier to settle in a territory like Algeria “that is owned only communally than onto land where every inch of soil is protected by right and a particular interest.”¹⁶ As John Ruedy has pointedly shown, “Muslim law” was, in these years, mobilized as an instrument of expropriation.¹⁷

As we saw in the last chapter, the civilian settlers who began to arrive from metropolitan France in the 1840s bristled against Algeria’s exceptional regime of land law. They denied the existence of indigenous property rights and titles, while boldly asserting their own. Citing King Louis Philippe’s speech to parliament on December 23, 1839, in which he declared “Africa” to be “forever French,” civilian settlers lobbied to make Algeria’s legal status conform to that of metropolitan France. They denounced violations of their property and personal freedom as so many “exceptions to the Charter”—the constitution of the July Monarchy—and called for a legal affirmation of their “civil rights.” Petitions and memoirs signed by wealthy and influential colons such as Baron Augustin de Vialar condemned military government and colonization schemes, asserting their rights as citizens whose rights were protected by the charter.¹⁸ Tocqueville’s writings and parliamentary reports on Algeria are just one prominent example of these appeals for greater legal guarantees on settlers’ land and political rights. Lesser-known authors similarly denounced the arbitrary regime, demanding that Algeria become legally part of France so that settlers might recover their “rights, so long trampled underfoot by an anti-national administration.”¹⁹

Focused on promoting civilian colonization, settlers lobbied to make Algeria’s real estate regime conform to the Civil Code, thus facilitating the sale of “Muslim” lands to Europeans. The provisional government’s revolutionary promise in 1848 to defend Algeria “as French soil” and to extend political rights to French settlers (but not native Algerians) gave official sanction to these demands and galvanized colon interests.²⁰ But the Second Republic was short-lived. During the Second Empire, Louis Napoléon’s model of the “Arab Kingdom” exacerbated the conflicts between the military regime and settler advocates. Over the course of the next two decades, the latter continued to combat centralized military policy and the exceptionality of Algerian land law in the name of their rights as French citizens. While the revolution of 1848 confirmed the settlers’ political citizenship, the nationality of native Algerians as well as that of foreign settlers remained unclear. The sénatus-consulte of 1865 was designed to address this legal lacuna.

Producing “Muslim Personal Status”

In declaring that all native Algerians were French nationals but not citizens, the 1865 sénatus-consulte sought legal clarification, not assimilation. One of the measure’s framers, Ismayl Urbain, a Saint-Simonian convert to Islam and adviser to Louis Napoléon, hoped to protect indigenous interests from erosion by increasingly vocal settlers. In order to do so, he rejected Algeria’s full legal assimilation to the metropole.²¹ Settlers, by contrast, called for “assimilation”—not of the population, but of Algerian property. They wanted, in other words, to make Algerian land—not Algerian persons—French. They achieved a partial victory with the passage of the 1873 Warnier Law. While territorializing French civil law for “real property” in the prized and fertile region of the Tell, it guaranteed that “personal status and inheritance” would be left intact (article 7).²² In its wake, colonial jurists asserted that Algerian Muslims maintained a traditional attachment to this novel legal entity, their “personal status.” These jurists obscured how that status was an artifact of the legal division between personhood and property created by the law. Purportedly traditional “Muslim personal status” was, in other words, a wholly French legal category. It was French not only because it was subordinated to sovereign French authority. The category itself was French.²³

Derived from the Roman law of persons, “personal status” fixed an individual’s legal identity and capacity, including how and when he or she could acquire or lose legal autonomy, marry and divorce, control property and create trusts. Following ancien régime treatises, nineteenth-century French jurists traced the history of personality to Frankish invasions of Gaul. The personality of law in Europe in this account emerged out of conquests and the ensuing confrontation between “Roman” and “Germanic” systems. Bound to a deep European history of empire, personal law governed diverse peoples who lived in a territory under a single political power. Histories of European legal development sketched a shift from the predominance of personality to the ascendance of territoriality. Personality nonetheless continued to exist alongside territoriality, albeit as an “exception” to increasingly territorial legal and political orders.²⁴

Personality organized important aspects of private law in the ancien régime. Multiple regional customs—of Brittany, Normandy, Paris, and Burgundy—existed alongside written Roman law in southern France, as well as canon law.²⁵ Established on the basis of domicile, personal laws determined the “estate and condition of the person.” While the jurisdiction of real laws regulating real estate transactions was confined to a given territory, personal law remained in effect everywhere a person traveled. Ancien régime jurists described it as metonymically attached to bodies. According to Charles Loyseau, it clung “like leprosy to the skin [adherent lepra cuti].”²⁶ For Henri de Boullenois, personal law “penetrated” the person.²⁷ In this legal imaginary, personal law was a corporeal supplement or “second nature.”

Postrevolutionary projects of codification were designed to abolish internal legal pluralism. In his speech introducing the first articles of the new Civil Code, Jean-Marie Portalis described how “up until now the diversity of customs created, in the same state, a hundred different statuses. The law, everywhere opposed to itself, divided citizens rather than uniting them.”²⁸ The Civil Code aimed to undo this confusion. One of its principal architects, Portalis explained its totalizing project to encompass “the universality of things and persons.” Following ancien régime jurists, architects of the Code adopted the triumvirate Roman framework of persons, things, and actions (modes of acquiring property) as an organizing framework.²⁹ “Personal laws” regulating status and capacity presumed mobility beyond the territorial borders of the nation. As Portalis explained, “In this way, French law, with the eyes of a mother, follows the French to farthest regions; it follows them to the extremity of the globe.”³⁰ With unified civil legislation, personality became a feature and function of the citizen’s nationality, rather than religion or domicile.³¹ Preliminary article 3 of the Civil Code held that all laws governing the “status and capacity of the person” governed French nationals even when “they resided in a foreign country.” Based on a principle of reciprocity between nations, subsequent codification projects in Europe and beyond adopted this model of personality.³²

Following older jurists, commentators in the late nineteenth century drew on corporeal metaphors to articulate nationality and personal status. The Belgian jurist François Laurent, a leading continental interpreter of international private law in the personalist school, for example, commented that “there are statutes which are part of our being, of our blood and which cannot be detached from our personality, because they [the statutes] are identified with it.”³³ Following Laurent’s bodily metaphorics, Louis Barde claimed that “the personal status of foreigners is, like that of the French, in the blood of individuals. Personal status is the juridical physiognomy of peoples.”³⁴ Both Laurent’s and Barde’s analyses drew links between nineteenth-century legal personality and that which existed in the Middle Ages. The Civil Code was supposed to abolish the last traces of this system in domestic or “internal” law. As we have seen, Algerian colonization recreated a plural legal structure and an internal diversity of status under French sovereignty.

Laurent and Barde asserted a historical continuity between modern and pre-modern theories. Armand Lainé, a professor of international law in Paris, posited a historical rupture between these older forms and a modern personal status based on territorial jurisdictions. In his view, “the new personality of law signified, no longer the application of a particular law to a race of men, but rather the application of a local law in a place other than its jurisdiction [ressort].”³⁵ Lainé thus distinguished between the earlier “racial” attachment to law that characterized the Franks and Gauls, and the modern national and territorial one. While this “racial” conception of law was supposed to be a thing of the past, Algeria represented an exception.

In Lainé’s historical narrative, Algerian personal status was a palimpsest in which ancient and modern were overlaid. On the one hand there were foreigners, who “maintain the usage of their national laws when it comes to their état, their relations with their family, and their capacity.” On the other hand, Algerians who had been declared French nationals were made categorically distinct from these foreigners, whose “personal status” was a function of nationality. As he explained: “The application of Muslim and Kabyle law in these conditions resembles more or less the regime of the personality of law as it was practiced in Gaul in Barbarian times. There is not perfect identity, since only indigenous Arabs and Kabyles benefit and not in an absolute manner; but the analogy is striking.”³⁶ This supposed “analogy” to an earlier form of racialized law was, of course, ideologically laden. For Lainé, “Muslim personal status” in Algeria recalled an antiquated, transitory legal and social condition. In drawing this comparison to “barbarian” times, Lainé depicted “Muslim personal status” to be at once a historical throwback and an organic emanation of archaic Muslim tradition.³⁷ His argument obscured the Roman and early modern European genealogy of the category. He instead asserted a political and social difference between modern “European” and traditional “indigenous” law that structured the differential juridical treatment of the two. This difference also distinguished international law, based on principles of territoriality and extraterritoriality, from colonial legal concerns.³⁸ Foreigners had a national territory that served as the seat of their law. In the case of Algerians, whose nationality was French, personal status became tautologically anchored, not in a national land, but in their embodied persons. “Muslim personal status” was, in other words, corporealized.

This genealogy clarifies how Muslim personal status continued to be closely associated with a fantasmatic—and specifically embodied—conception of Islam.³⁹ As a distinct corpus of law, it would apply only to particularized Muslims, investing Muslim bodies—rather than property or territory—as the locus of law. Ideas about “Muslim” sex were integral to this specifically embodied conception of law. As we saw in chapter 2, French jurists associated it with a sexualized account of Muslim law, in which polygamy was a potent symbol of masculine privilege and libidinal excess. This legal organization of sex became central to how the law distinguished property from persons. It underwrote the assimilation of Algerian real estate, while particularizing the Algerian persons that lived on that land.

While the 1865 sénatus-consulte presumed specific sexual and family arrangements as an unassimilable core of Muslim legal difference, the actual legal cleavage of personhood from property occurred eight years later in the Warnier Law. As Warnier explained in his report to parliament, “we must distinguish between the ‘personal status’ and ‘real property status’ of Algerian Muslims.” Citing article 3 of the Civil Code, he underscored that “immobile property, even that possessed by foreigners, is governed by French law.”⁴⁰ As one jurist explained after the law’s passage, this French “real property status, once imprinted on the land, would remain immutable.”⁴¹

French real estate law was inscribed onto Algerian land, while Muslim personal status was attached to Algerian bodies and families. As Warnier explained in his report, “We respect personal status, which touches on diverse matters of the freedom of conscience, of religion, of the intimate life of families; but, because it touches on real-estate interests, it is our duty to restrain real property law [le statut réel] in order to submit it to French law, to the fundamental principles of our public law which is in place wherever our national flag flies.”⁴² The law claimed to protect the “intimate life of families” and religion, as if these were the core elements of “Muslim law.” Article 7 of the law promised to “in no way alter the personal status or rules of inheritance of natives.” It was supposed to affect the legal status of land alone, not that of families, whose inheritance rules and “intimacy” would remain intact.

The law entailed a twin project of economic and emotional government. By casting landed property beyond the sphere of familial and religious intimacy, it separated the enjoyment of property rights from sexual rights. The colonial regulation of intimacy thus also carved out some domains of law and life as extra-intimate.⁴³ This structure of sentiment legitimated indigenous dispossession by denying an intimate attachment to land. It is an essential aspect of what Mark Rifkin describes as “settler common sense.”⁴⁴

The Warnier Law’s claims to conserve family and religious intimacy were evidently disingenuous. Indeed, the architects of the Warnier Law explicitly intended to convert what were “familial” or “communal” landholdings into individual property titles under French civil law. It had a devastating effect on actual families. While supposedly preserving “intimate” concerns, the law affected their radical transformation by constituting a novel legal domain.⁴⁵ “Muslim personal status” was produced by this cleavage from what was supposedly “improper” to it, property.

What Is a Family?

The 1873 law territorialized French civil law in piecemeal fashion by designating select areas to be surveyed and partitioned by government-appointed commissaire-enquêteurs. In these areas, the commissioners allocated individual title holdings for all those who could demonstrate “current possession” (jouissance effective) of privately held (classified as melk) land. Even more significantly, the law broke up collective lands (classified as arch) that were held in common by extended families and tribes, in order to facilitate the sale of property to European settlers. The economic liberalism of the law had limits. It allowed “indivision” to persist at the level of the family because, according to Warnier, Algerian “family ties are still strong enough to incite members to remain in indivision, even at the expense of their own interests.”⁴⁶ While claiming not to impinge on “the intimate life of families,” the reform placed the definition of the “Muslim family” at its core.

Critics of the law in the National Assembly, and most notably Alexandre Clapier, foresaw the difficulty of substituting individual holdings for familial and communal ones. He remained skeptical of this effort to change mœurs by decree, to substitute the “house for the tent,” and “individualism for the family.”⁴⁷ Article 4 of the legislation indeed allowed individual family members to sell off their parts of a collective holding by a judicially mandated auction or “licitation.” The provision was based on article 815 of the Civil Code, which held that no individual could be forced to remain in “indivision.” Warnier assumed a universal homo economicus, claiming that “one would have to be unfamiliar with man to doubt that before long, in each family, there will be someone who will ask for a share in order to better assure his independence and give greater force to his activity.”⁴⁸ The text of the law did not however specify what constituted “a family” and hence which family members would be granted titles. This blind spot gave rise to considerable administrative and legal confusion.

Once jurists detected the oversight, government officials tried to fill the definitional lacuna. Eugène Robe, a prominent lawyer at the Cour d’Alger and deputy on the Conseil général d’Alger, formulated the problem succinctly: “What is a family? Where does it begin and where does it end?”⁴⁹ Aiming to clarify matters, Governor-General Antoine Chanzy’s Instructions of July 1, 1875, explained that the law was designed “to constitute property not by the individual, but by the family unit.” Begging the question, he left the “family unit” undefined.⁵⁰ The Conseil supérieur de gouvernement revisited the question six months later, when Robe, now a deputy from the department of Alger, reported on proposed modifications. A fierce advocate of opening Algerian property to sale, Robe observed that the definition of “the family” directly impacted how the law would apply to land. As he explained, “Since what matters here is to divide the land between family units, what must be determined is the relation of the indigenous family to the land in order to say where it begins and where it ends. If it takes blood ties as its basis, the number of co-owners will be too large; it could even be a ferka [faction], a douar [circle], a tribe; the parts will be too small and, in this case, the ties of persistent indivision will be too difficult to break.” In other words, extended families would be more likely to maintain a collective holding, thus keeping their land off the market. By contrast, Robe believed that the bonds of indivision would be much weaker “if the unit of interest and possession is reduced to descendants of a single line.” Robe made the desired result brutally clear: if the “family unit” were reduced in size, “the wedge of division [le coin du partage] would penetrate easily.” Of course, single family lines were no less of an abstraction. It required painstaking work on the part of the commissaire-enquêteur to register these family members by drawing on “his knowledge and experience of Arab things.” This was, as Robe avowed, the very heart of the difficulty (“C’est là où la difficulté se trouvera”). He here underscored the governor-general’s 1875 instructions: “‘One of the most important things for the commissaire-enquêteur is to firmly grasp where the real family unit is formed.’”⁵¹

Other politicians and jurists remained unsatisfied by this definition of the “family unit.” Rémy Jacques, deputy of Oran, the department where much of the “Frenchification” of land was taking place, found it too vague. Jacques wanted land to be broken up into distinct units and thus argued for a more restricted definition of the family. Making his case in a debate over the 1876 budget, Jacques explained how the delimitation of families would dismantle collective holdings, while also reconfirming the rights of the “père de famille.” Jacques here endorsed a nuclear model of the family. “How should one understand the family unit?” he asked rhetorically. “Is it the European family made up of a father, a mother, and their children, with the unit of property in the hands of the father? If it is that, if you give the title to the father of the family, we agree.”⁵²

While commissaire-enquêteurs worked to implement the law, government representatives continued to debate its foundational categories. In 1877 and 1878, discussions by the Conseil supérieur de l’Algérie generated reform projects, including one authored by Jacques and his fellow deputies Gaston Thomson (Constantine) and François Gastu (Alger). According to Jacques, the law needed to be altered because Algerian families could have as many as 100 or 150 members. A government adviser, Évariste Vignard, defended the law, claiming that these Figures were exaggerated, “more of a legend than reality.” In his view, “the Arab family, in its greatest extent cannot stretch beyond the degrees conferred by inheritance” and hence never took on “the biblical proportions” imagined by Jacques. For Vignard, proceeding with the application of the law would demonstrate that, especially in the case of large holdings, possession was in fact held by “distinct families.”⁵³

Despite these assurances, the question of how to define “the family unit” continued to plague officials and the commissaires, in particular. Over the next decade and a half, they had to determine who belonged to “a family” and which family members would be granted titles. They consulted village councils (djemmas), qadis, and family members in order to map families and apply Muslim rules of inheritance.

Early directives tried to provide guidance. Following a discussion in the Conseil supérieur, a September 22, 1876, circular to departmental prefects explained that the commissaire’s mission was to find “the real owners of the ground.” “Current possession” (jouissance effective) was to be the sole criterion on which titles would be assigned, “without worrying about either the sex or the condition of the occupants.” The circular rejected a hereditary definition of family membership, as it would lead to “inevitable confusion.” The hereditary conception risked including all of those who descended from a single progenitor—“present or absent, blood relations and in-laws [directs ou alliés]”—rather than those who “lived in the same tent.” In making possession rather than heredity the central criterion, “no woman nor any minor who effectively participated in exploitation of the land was excluded.”⁵⁴ Effective possession rather than heredity was supposed to determine rights to collectively held land.

“Inevitable confusion” nonetheless persisted. While working closer to the ground, commissaires remained beholden to bureaucratic fantasies of the Algerian family and the power of state officials to apprehend it. The law assumed that local inhabitants would remain fixed in place, patiently waiting for colonial officials to survey their lands. This was not to be the case. When Commissaire François Gourgeot was sent to the douar of Messer in the department of Oran in 1874, he found that property possession was in a considerable state of flux. The passage of the law had sown chaos, rather than creating order.

Adding Disorder to Disorder

Immediately after the passage of the 1873 law, the Conseil général of Oran recommended that Messer along with the areas of Tirenat and Sidi Yacoub be converted to French law. The zones were chosen because of their proximity to Sidi Bel Abbès and its population of 8,786 Europeans. The operations would, according to council member Adolphe Pelliat, “make land transactions possible” and “facilitate in the most regular and legal manner the extension of French colonization.” Unsurprisingly, the measures targeted the “richest lands,” especially those that lent themselves to “industrial agriculture.”⁵⁵ That was the plan. But once on site, the commissaire reported that he suffered a “long and cruel perplexity.” Inhabitants moved around incessantly, claiming areas “that had never been cultivated by anyone” and selling these plots to Europeans. The law naïvely presumed that, prior to the commissaire’s arrival, “no one would move.” It imagined, in the commissaire’s telling visual metaphor, that he could “take a photograph of the lands and give them to those who cultivated them.”⁵⁶

This fantasy of the aerial photograph captures a bureaucratic desire for visual mastery and the immediate projection of French law onto Algerian land. The governor-general’s Instructions of 1875 underscored the need for rapid and uniform application, urging commissaires to work “methodically in order that, everywhere in Algeria, from the department in the East, to those in the West and Center, nothing deviates from the precise rules that are indispensable to follow.” Otherwise, affairs would risk falling into “the inextricable chaos in which indigenous property finds itself, because we will add disorder to a preexisting disorder.”⁵⁷ Such claims about the “chaotic” character of local property title had long been part of settler arguments for reform. In a report to parliament in 1847, Alexis de Tocqueville lamented that property in Algeria that remained under native title was “confused and unproductive”: “the same fields have been sold to several Europeans at once, by sellers whose right was either doubtful or nonexistent, and who in addition never indicated their boundaries.”⁵⁸ The 1873 law was supposed to straighten out this purported disorder.

FIGURE 7 / Detail of area of colonization around Sidi Bel Abbès. Based on Algérie—Carte de la Colonisation officielle (1902), redrawn by Bill Nelson.

Legal fantasies of immediate application did not last long. Local conditions thwarted the governor-general’s demand for speed and precision. These frustrations were symptomatic of a founding contradiction of modern (French) paperwork. As Ben Kafka has suggested, the unfulfillable desire for bureaucratic immediacy can be understood in a psychoanalytic sense “as a desire that is not reducible to a need or demand.” Precisely because bureaucracy relies on the messy mediation of paperwork, it can never fully deliver the order, efficiency, and transparency that it promises. The impossibility of immediacy paradoxically produces at once a desire for and a frustration with the mechanisms of the state.⁵⁹

The 1873 law produced just such bureaucratic frustration. Now endowed with greater political power, settlers placed more faith in the state to secure and guarantee property transactions. The fantasy of bureaucratic omnipotence entailed in legally remapping the territory was, however, inevitably compromised by its necessary mediation: the recourse to translators, informants, and the sheer complexity of the titling process itself. The commissaires’ work was haunted by uncertainty and anxiety.⁶⁰ Their often exasperated reports clearly express unfulfilled bureaucratic desires.

Critics of the law such as Clapier worried about the excessive power of the commissaire, who was poised to become the “sovereign arbiter of Arab property.”⁶¹ In fact, these “sovereign” land surveyors were relatively low-level officials who were entirely dependent on intermediaries—translators and qadis, members of municipal councils or the village elders appointed to djemmas to assemble written, oral, and eyewitness evidence of property ownership. As emissaries of the colonial state, the commissaires both wielded an extraordinary amount of power over local inhabitants and remained subject to manipulation by them, as subsequent trials made clear.⁶² These efforts produced the opposite of efficient order. As the commissaire who carried out the operations in Messer ironically noted, the law provoked “complete anarchy” instead.⁶³

Rather than organizing property titles out of native disarray, the law’s “method” created disorder. A marginal note by an inspector on the divisions carried out in Harrar in 1876 was, for example, succinct in its verdict: “very confused.”⁶⁴ On one level, this is unsurprising. After all, the law was designed to disrupt native property titles as a tactic of dispossession. Warnier’s report and subsequent commentaries made this clear. But these apparently straightforward economic aims do not entirely explain how the law’s form and tactics took shape, nor do they account for the struggles of commissaires and local property owners as they negotiated the confusion provoked by its implementation. The legal reshaping of Algerian property did not and could not correspond to fantasies of projecting civil law onto Algerian land. Instead, these operations produced considerable psychic as well as social “friction.”⁶⁵ The limits of the colonial state became perceptible at the very moment that these officials sought to render Algerian land and Algerian families visible to French officials.

The operations pursued in two villages close to Messer, Tirenat and Sidi Yacoub, illustrate the conflicts produced by efforts to determine the “current possession” of “existing family units.”⁶⁶ A heated exchange between Inspector Louis Gourgeot and Commissaire Louis Pontet over how to divide property demonstrates the contested meanings of both possession and “the family unit.” According to Gourgeot, Pontet’s operations had caused a local scandal by denying women and children’s property claims in Tirenat. The widow Fatima bent El-Kadi claimed that she was cheated out of her rightful ownership of lot 362, worth some 1,500 francs, by her husband’s nephew, Bou Medine ben Arricha, even though (or rather because) he was the president of the douar and her legal representative. After interviewing Fatima and other inhabitants of the village, Gourgeot asserted that Bou Medine had manipulated Pontet by claiming the parcel as his own. According to Gourgeot, Fatima denounced Bou Medine in his presence, explaining that “as a woman,” she “did not know the size of a hectare.” In her view, it was easy to take advantage of her, “because I am a woman and my children are still young, we were sure to end up victims.”⁶⁷ For Gourgeot, Commissaire Pontet erred in accepting Bou Medine’s verbal assertions of possession.⁶⁸ Pontet, meanwhile, offered an alternative interpretation of “current possession.” He claimed that minors who were too young to work the land “could not be considered as having effective possession of any land at all.” In Gourgeot’s eyes, this policy resulted in nothing less than the “dispossession of minors, women, and absent family members.”⁶⁹

The section of Gourgeot’s report devoted to properties that remained in “indivision” sheds light on his apparently indulgent attitude toward Fatima’s claim: he favored breaking large properties up into smaller units. In his view, Pontet did not sufficiently dismantle large familial property holdings, mistakenly allowing collective holdings to remain in place among brothers, who “in order to ensure their independence ask that their part be delimited.” For Gourgeot, “each brother, who is the head of a family [chef de famille], which is to say, who has children and a household of his own and whose name Figures on the tax rolls, should have his own lot, delimited and demarcated.”⁷⁰

Pontet wrote a fifty-four-page report to the prefect of Oran in response. He underscored the trying climatic conditions of winter rain that had made his operation particularly difficult. He avowed that Fatima’s rights had been denied, but stated that she should have alerted him. “A word or letter,” he claimed, would have sufficed.⁷¹ Pontet fiercely contested Gourgeot’s depiction of him as “an incapable agent, who became an instrument of hatreds, sympathies, rapacity and covetousness” and who allowed “intermediaries to give any information with impunity and to prepare as they wanted—literally ‘à leur fantasie’—solutions to questions of property.”⁷² Far from being matters of cold calculation, property claims solicited intense emotions. Gourgeot’s charge that Pontet was merely a tool of these passions gave rise to its own intense conflict between the two agents. Not least they struggled over how to define the “family.”

In the section of his response devoted to “Questions of Principle: Current Possession and the Rights of Women and Minors,” Pontet explained that he had been guided not by “personal opinion” but by the governor-general’s September 22, 1876, circular, which insisted that “current possession” rather than “heredity” determined land rights.⁷³ More broadly, he explained that his response was motivated “not by self-regard [amour propre], but inspired by the observation of the method followed by colleagues, with the support of the superior authority.”⁷⁴ Pontet presented himself as hewing to the rules, rather than as subject to folly or passion. In his view, the division of property held in common by families posed the greatest challenge. Citing Robe, he explained that he did not bother proceeding with unnecessary divisions when family members chose to maintain communal property. Gourgeot underscored his frustration in a marginal note on the report: “It all depends on the meaning of the word family.” For the inspector, the family should be limited and “not be extended to comprise several families.”⁷⁵ In his view, Pontet left too many families—and hence properties—intact.

Gourgeot developed these criticisms further in a virulent (and antisemitic) diatribe against the administration’s mishandling of Algerian affairs. He privileged Deputy Jacques’s limited definition of the family, which was based on the Civil Code’s père de famille.⁷⁶ Suffering, as we have seen, from “long and cruel perplexity,” commissaires frequently followed the instructions provided to them by the government in 1875 and again in an 1879 manual that outlined how to assign shares of collectively owned land. For Gourgeot, these repeated attempts at clarification simply sewed further confusion.⁷⁷ Commissaires were encouraged to calculate elaborate fractions in which the common denominator represented the entirety of the collective possession, and the numerator represented each of the individuated parts. When many family members were included as titleholders, the “quote parts” became infinitely small, while the common denominator grew in size. Strict adherence to this arithmetic created new difficulties rather than resolving them.

Insisting on the need for rule-bound conformity, the governor-general’s 1875 Instructions had also cautioned against the risk of its excess. These directives explained that, “in desiring to observe the law in its most absolute sense and to arrive at a mathematical determination of the parts belonging to each, some have gone so far as to the translate them into seven-Figure fractions and, in one case, a nine-Figure fraction, which, evidently cannot be represented in thought.” The governor-general warned against the dangers of these sublime fractions. The problem, of course, was that an “abstract right” could not be “translated by any measurement on the ground.”⁷⁸ In other words, the mathematical symbol, while impeccably calculated, had no terrestrial referent. Unable to close this gap in signification, the commissaires fixated on precise arithmetic. They devised a round sum on paper, even if it was impossible to arrive at on the land. This was bureaucratic fantasy at work.

The infinitely small fraction became a source of bureaucratic madness. In the commune of Messer, for example, the reason of state risked creating “anarchy.” While subsequent efforts to remedy the situation with further regularization only made it worse, the administration saw no other alternative than to (compulsively) repeat a call for order.

The 1879 Manuel du Commissaire Enquêteur once again outlined procedures. The document, in its first line, underscored how the “methodical work” of applying the law depended on “regularity and uniformity.”⁷⁹ It sought to impose standardized forms and procedures, down to the manner in which names should be abbreviated in the documents, the graph paper on which genealogical trees should be traced, and the kind of boxes in which the twenty-two distinct elements of the dossier were to be transported (reinforced and tied up with string).⁸⁰

Intended to regularize the actions of the commissaires, the instructions had perverse effects. Many continued to follow this template not just to the letter, but also to the number in establishing the division of shares in communally held property. For undivided property, the commissaire was supposed to trace back to the “ancestor from whom the property originally came” (l’aïeul d’où provient primitivement la propriété), enumerating successive generations until he arrived at living heirs. Once the order of inheritance had been established and shares apportioned “following Muslim law,” the sum for every living heir could be calculated. That sum would be represented as a fraction of the whole. In order to do so, the commissaire had to derive the lowest common denominator, sometimes dividing families into distinct branches in order to better determine the whole. For large, extended families, the denominator was very high, resulting, as the previous instructions had noted, in “numbers that are hard to read and hard to comprehend.” In order to address the problem, the manual determined that “denominators should not be more than five Figures, or 99,999.”⁸¹ Pages outlining how to proceed with these elaborate calculations followed.

FIGURE 8 / Official model of genealogical tree. Adapted from Manuel du commissaire enquêteur pour l’application de la loi du 26 juillet 1873 (Alger, 1879). Redrawn by Julianna Teoh.

The most challenging case presented in the manual was for the inheritance of Mohammed Krodja, which spanned five generations, detailed in an extensive genealogical tree, which served as a model for the commissaires. The accompanying text demonstrated how to establish the lowest common denominator for the shares of this enormous family. Once all the calculations for the different branches of the family were added up, the number came to the round sum of 34,560! And this was the instruction manual that was designed to establish a bureaucratic norm. This effort to make the process more orderly and exact produced the opposite effect.

This official model gave rise to greater confusion for men who were sent into the field. Seeking to trace the history of property ownership back to “a primitive ancestor” (l’auteur commun), the commissaires went in search of a primal father. According to Gourgeot, they “believed that they had to go back centuries in order to discover the chef de famille. This is what led to the construction of gigantic genealogical trees, whose principal default was that they were false.”⁸² The painstaking effort to achieve knowing mastery of persons and property resulted in elaborate fictions. For many, the practical effects of this painstaking exercise were no less disappointing. Critics charged the commissaires with unwittingly encouraging large families to maintain communal property rather than dismantling it. Incomprehensible fractional shares could not be mapped onto the land and assigned to individuals, so families remained in indivision instead.

The execution of the law also took a toll on the commissaires, as Gourgeot’s own dyspeptic report and subsequent writing attests. The labor was exhausting and the results apparently pointless. The procureur général Jean Baptiste Fourcade lamented the commissaire’s travails before the Conseil supérieur de gouvernement in 1877: “We have required him to use genealogical trees and calculations to establish infinitesimal fractions of property. We have as a result found the impossibility of application, which we have tried to solve by half measures that remedy nothing and further slow things down.”⁸³ Commissaires themselves complained about the task. In his final report for the Commission d’enquête de Sidi Bel Abbès, an official charged with apportioning titles for the Amarna tribe listed some of the preposterous fractions that he had calculated, including numbers such as 154,903/406,950 and 3,369/10,720. He went on to write: “It was impossible to find other fractional expressions that would allow each beneficiary the share assigned by Muslim inheritance.” The fixed procedures were wholly inefficient, given that “the time it takes to do the calculations causes the expense to be greater than the value of the shares.”⁸⁴

Politicians like Fourcade recommended doing away with this pointless and costly exercise. Other jurists defended the practice as essential to realizing the true aims of the law. In their view, it allowed Europeans to “penetrate” properties held in common by families. As the directeur des finances Charles le Myre de Vilers explained, the apportioning of shares allowed “the European to penetrate, though licitation, into the undivided property which, in its current state, remains immobile in the hands of the Arab family.”⁸⁵ Using a similarly violent rhetoric of dispossession, Deputy Robe concurred that doing away with fractional division would weaken “the law’s most essential principle,” namely “to wrench Arab property from the impenetrable obscurity that the constitution of the Arab family has covered it with.” As these statements made starkly clear, the Warnier Law aimed to separate the “Arab family” from “Arab property.”⁸⁶ In theory, the family remained “impenetrable” because still enveloped in its obscure Muslim law. Once submitted to French law, property ideally become visible and hence divisible.

In order to map property, however, families also had to be mapped—and named. This was the purpose of the genealogical tree as well as the assignment of patronyms to property holders. In order to distinguish family members—and their property titles—the law required commissaires to give family names alongside unique first names to each title holder. The 1875 instructions outlined the desired procedure: “every family whose property has been confirmed [constatée] should be assigned a name that will be for each a way to recognize his individuality in indigenous society, just as the title delivered is a way to recognize individualized properties on Algerian soil.” The attribution of patronymic family names located individuals within a patriarchal family structure. The same name was given to “the family group, descendant from a common ancestor [l’auteur commun].”⁸⁷ The insistence on patronymics indicates how the Warnier Law, while theoretically focused on property to the exclusion of “personal status,” had a fantasmatic patriarchal model of the family at its core.

The 1873 law elaborated individual names and titles. Its procedures nonetheless produced what Elizabeth Povinelli has described as a “genealogical” conception of indigenous society. While supposedly breaking up “family communism,” this genealogical model grounded Algerians’ legal identity in the family and “Muslim law.”⁸⁸ As in the case of the widow Fatima, the presumptions and procedures built into this patriarchal model risked subsuming individuals, and especially individual women, in a fixed framework of the “Muslim family,” and occasionally divesting them of their property.

Women periodically addressed themselves to colonial officials in search of redress. In the spring of 1881, for example, Sultana bent El Hadj ben Ez-Zahaf petitioned the prefect of Alger. Written in broken French, her letter made a modest request. She wanted an official map of her extended family’s brush-covered property, located near the town of Ménerville (Thénia), where she claimed to have “a part a parcel.” “Having cleared” the plot, she had made “all the necessary expenditures to have a garden,” which she “planted with fruits.” Named “Tourtite Kebaïly,” the orchard was surrounded by Barbary figs.⁸⁹ Sultana’s note indicated a direct personal investment in the property and hence her current possession. To her dismay, another family member had claimed the land as his own, based on title documents issued by the commissaire. The quiet pathos of the letter in which Sultana lamented her lost garden did not stir the prefect to act on her behalf. Upholding the just application of French real estate law, he dismissed her plea. In this case, as in so many others, he classified the property matter as one of “private interest,” beyond the purview of state intervention.⁹⁰

Some jurists even sought to restrict married women’s property rights. A reform drafted by Robe and the president of the Cour d’appel d’Alger, Édouard Sautayra, went so far as to propose that Algerian women should, like French women, be made subject to marital authorization for all property matters. Article 5 of their reform held that “the married indigenous woman can no longer assume obligations [s’obliger] or testify in court without the authorization of her husband or a court.”⁹¹ In the end, the measure was rejected, even though many other elements of their proposal were integrated into the law’s 1887 reform. A committee of jurists charged with reviewing the proposal questioned whether it made sense to introduce “married women’s incapacity” into Muslim society, given that this legal inequality was “the work of centuries” and “the result of a particular conception [une conception particulière].”⁹² For these colonial legal experts, French wives’ subordinate “personal status” appeared to be a mark not of backwardness but of civilized distinction.

The 1873 law was evidently riven by contradictions at the levels of both theory and practice. Not least, and most tragically, it was, despite its apparently costly and notoriously inefficient procedures, highly effective as an instrument of dispossession.⁹³ The administrative morass that the procedures created and the prohibitively high legal fees that they entailed put native titleholders at a distinct disadvantage, making them vulnerable to exploitation. The law played on and produced conflicts in and between families. And it contributed in no small part to the disaggregation of communities when and where it was applied. In the face of this thoroughgoing legal and administrative onslaught, Algerian families sought to maintain control over their properties in the Muslim law courts that had been maintained for matters of personal status and inheritance.

An early and much contested ruling by Charles-François Bastien, president of the Court of Appeals of Algiers, upheld their rights to do so. In this complex inheritance case, the majority of Mahmoud ben Abd Eltif’s family resisted the efforts of his brother, Ali, to force the sale of a group of properties of which he was only a partial owner. At Mahmoud’s death in October 1875, their succession was overseen by the Maliki qadi of Algiers. Ali had sold off the majority of his inheritance share before Mahmoud’s death, maintaining possession in only one house. He nonetheless sought, with the aid of his European creditor Giroud, to force the rest of the family to sell all their holdings. To do so, he contested the qadi’s jurisdiction in the case in order to bring the matter before a French court. The family—which included Mahmoud’s sister Mimi, as well as cousins, fellow grandchildren of their “common ancestor” El Hadj Ahmed ben Abd Eltif—resisted Ali’s claim.

The question before the court was whether the 1873 law now required French courts to oversee inheritance cases such as this one. President Bastien refused to grant Ali’s appeal. As he explained, the 1873 law “expressly maintained the rules of Muslim inheritance in its article 7.” In his view, “everything in the management of estates [les successions] is attached to the family, to personal status, and thus requires particular care [ménagements].” For Bastien, in other words, the 1873 law drew a clear distinction between property matters and personal ones. The former comprised “contracts, which are always voluntary acts,” that would be treated by French courts and estate sales. In the latter domain were “events which are integral [nécessaire] and intimate to the indigenous family, and are reserved for Muslim judges.”⁹⁴ Robe, in his commentary on the case in his journal, noted that the findings on this “delicate question” directly contradicted his own.⁹⁵ Systematically privileging French law, he regularly denounced decisions that gave precedence to Muslim law jurisdiction for inheritance.⁹⁶

Given these provisions, local inhabitants regularly took recourse to Muslim law to thwart the operations of the commissaires prior to their completion.⁹⁷ They founded Muslim law trusts (habous) and appealed to their right to preemptively buy family property put up for sale (chefaa) in order to protect their land from French incursion. Colonial jurists continually worked to restrain these legal strategies in order to extend the territorial reach of French civil law.⁹⁸

More notably still, local inhabitants seized on the lability of the law’s language of the family, appropriating it for their own uses. For example, when Commissaire Eugène Houdas arrived in the town of Ouarizane in the Oranais in 1882, he learned that three large property-owning families, headed by El Hadj Mohammed ben Chehida, Si El Arbi, and Si Djelloul, declared themselves to be members of a single family.⁹⁹ Their doing so certainly made Houdas’s mission easier. They got to maintain their collective property, and he did not have to divide land up into infinitesimal fractions between a hundred or so kin.

In his inspection report on the operation, Gourgeot predictably raised questions about this outsize family property. In his view, it demonstrated the natives’ “absolute ignorance of the new law’s principles and of their own interests.”¹⁰⁰ In fact, it illustrated precisely the opposite. They understood very well that the “family” imagined by the Warnier Law was a colonial legal construction that they could mobilize toward their own ends. Other members of the family, including five women, Yajout bent El Hadj El Miloud ben Chehida, Fathma bent Si Ahmed ben Chehida, Zohra bent si B. Khedda, Helima bent Moammar Ben Arrer, and Meriem bent Mahi el Tourari, in turn adopted a different definition. In a petition to the prefect of Oran, they asserted that Houdas’s inquiry had violated their rights by assigning titles exclusively to men. As an advocate of maximal property division, Gourgeot endorsed the women’s claims—alongside those of another family member, Mohammed ben Bou Dehedj, and, most notably, a European landowner, Thullier, who also laid claim to a parcel. The three heads of family had used the legal uncertainty of “the family” in order to consolidate and protect their land.¹⁰¹ Colonial administrators, on the other hand, marshaled the details of Muslim inheritance law in order to counter those claims. In the conclusion to his report, Gourgeot instructed the commissaire “to end collectivity not only in the lots signaled in the present report but everywhere that it encompasses in a single lot parcels belonging to different families.”¹⁰²

Warnier’s initial defense of the law had focused on its advantages for entrepreneurial Muslim heirs. European settlers were nonetheless its true beneficiaries, despite its critics’ claims that its application was too costly and consuming. Robe and his colleagues thus lamented that, by 1882, only 295,891 hectares out of 12 million hectares in the Tell had been granted titles.¹⁰³ In the end, the law in its original and reformed versions significantly opened up the territory of the Tell to sale. According to an official report on colonization, between the years of 1877 and 1898, Europeans purchased 563,762 hectares of Algerian land, averaging, between 1877 and 1888, 28,721 hectares a year.¹⁰⁴

The 1873 reform was designed to progressively extract Algerian land from the “disorder” of Muslim law and assimilate it to the universal economic principles of contract enshrined in French civil law. According to the colonial jurist Alfred Dain, the law’s aims were clear: “to allow for the circulation of real estate wealth, until now immobilized in the confusion of family communism.”¹⁰⁵ “Personal status” law was, by contrast, supposed to remain a distinct and embodied domain of Muslim difference. Property reform imagined a separation of economy from religious and familial intimacy by making them subject to different laws. Inheritance occupied an uneasy position in this scheme. In using Muslim inheritance rules to map families and assign property titles, the law bound property and family law together in practice. In the face of persistent bureaucratic confusion over how to define “the family unit” and “current possession,” inheritance became the linchpin of the law’s implementation and hence a source of bureaucratic breakdown. As the law’s absent center, the “Muslim family” was a site of contradiction and hence also contestation.

Politicians and administrators, settler advocates and jurists approached these contradictions as loopholes that could ideally be closed by procedural reform. Critics compulsively diagnosed the law’s shortcomings and lamented its agents’ inability to follow through on its provisions. Despite apparent efforts to follow the letter (and number) of the law, the commissaire-enquêteurs’ precise—and indeed sublime—fractions could not be mapped onto the ground. In other words, the law’s own mechanisms could not realize settlers’ and administrators’ desire for the unmediated application of French property law, even as those same measures effectively dispossessed Algerian landowners. Wealthy Muslim landowners took advantage of these slippages when they could, in turn seizing on the law’s impossible separation between property law and family law. They mobilized the protection of their personal status in order to counter the imposition of French property law. Their doing so relied, however, on the very legal category that divided their personal estate from their real estate.

Dissatisfaction with the law revealed more than administrative oversight. Jurists and politicians who were deeply invested in a totalizing idea of the Civil Code continued to fantasize about the law’s eventual completion. That project remained haunted by the structural contradictions revealed by challenges to its practical implementation. The definition of the “Muslim family” as embodied in the intimate affairs of personal status was supposedly beyond the purview of the law and yet central to it. Its privileges embodied Muslim difference and justified Algerian political exclusion as well as the legitimacy of land appropriation. At the same time, the law’s application depended on the definition of the “Muslim family”—its structure and size as well as the nature of its inheritance law. In order to extend the law’s territory further, jurists and politicians continued to tinker with it.¹⁰⁶ Not least, they repeatedly sought to reform “Muslim personal status” and hence the Muslim family. The “Muslim family” was, in this sense, both inside and outside the Warnier Law.