The promise of preserving local personal status for Muslim and Kabyle customary law soon posed its own problems. Assuming a Janus-faced approach, colonial jurists simultaneously upheld and criticized local law, focusing in particular on the “forced marriage” of girls and women. In 1874, the general counsel of the Appeals Court of Algiers Paul Piette issued a forceful condemnation of the practice: “All too often, in the exercise of our functions, we have occasion to see the deplorable consequences; and there is nothing sadder than the role imposed on justice, which is obliged to respect for natives, as a right, what it is obliged to forbid to Europeans as a crime.” Speaking directly in the wake of the Warnier Law’s passage, Piette rebuked in emotionally forceful terms the very “personal status” whose provisions had been maintained as integral to the “intimate life of families.” Focused on Muslim men’s sexual prerogatives, this moral outrage underwrote legal differences between “Europeans” and “natives,” even as it deplored them. According to Piette, “we should never have engaged to respect laws that reject the least sentiment of human dignity.” In his view, “to not do what is in our power to change them, would be to desert the cause of civilization that we represent in this country.”1 French sexual fascination and horror marked Algerian law as barbaric, thus justifying sovereign intervention into that law.
Piette’s discourse targeted provisions in Muslim law and Kabyle customary law for a father to select marriage partners for his children—and especially daughters. French colonial jurists increasingly attacked this paternal prerogative—the wilayat al-ijbar, or what French jurists referred to as the droit de djebr—as “contrary to the fundamental principles of our legislation, contrary to morality and to human liberty.”2 Algerian colonial law, in sanctioning and supposedly preserving “Muslim personal status,” both upheld and condemned this “right.”3
In this chapter, I trace how this apparently paradoxical situation came about. In doing so, I draw out several broader observations about colonial legal culture in Algeria—and beyond it. First, I show how, beyond operating as an Orientalist fantasy, the question of “forced marriage” was a specific node of French colonial government. Jurists’ persistent concern with fathers’ “right to force” exemplified the ambivalent logic on which the simultaneous preservation and surveillance of Qur’anic and customary law depended. Marital consent trials both highlighted and managed conflicts between a supposedly “civilized” French law and “barbaric” local codes. Contested marriages illustrated the fraught fields of colonial “intimacy” that, as Ann Stoler has suggested, incarnated colonial relations in addition to symbolizing them.4 In studying the politics of the droit de djebr, I interrogate how these vexed intimacies were constituted as such in the first place—and by whom. In other words, I show how juridical attention to marital arrangements focused the regulation of intimacy on Muslim families.
This line of inquiry follows the colonial genealogy of Muslim and customary law over the course of the nineteenth century. As we saw chapter 3, after 1873, the jurisdiction of local law was limited to “intimate” matters of “personal status” and inheritance, while commercial and property transactions were increasingly supposed to be conducted under French civil law. These developments illuminate how family matters became a vexed core of colonial questioning about Muslim and customary law. Rather than presuming the self-evidence of “personal status,” I argue that these trials elaborated the novel domain of Algerian family law as extimate—at once intimate and foreign—to French civil law.
French juridical interest in the problem of marital coercion drew Algerian women into the purview of colonial law, thus configuring women’s legal agency in very specific and circumscribed ways: namely, as an expression and extension of marital desire. Women’s marital consent became hitched to the legitimacy of French law. Attending to these dynamics complicates what it means to locate women’s legal agency in these trials, even as it demonstrates the significance of these questions—and the role played by women—in the ongoing elaboration and contestation of colonial legal culture in French Algeria.5
Child Marriage on Trial
Piette’s speech indicates how French colonial critics focused on “prepubescent marriages” (mariages impubères) as exemplary of the civilizational differences between European and native law in Algeria. This legal disjuncture was not, in fact, as great as many colonial jurists claimed. The Civil Code actually contained multiple provisions requiring that parents consent to children’s marriages, up until the age of twenty-five for girls and thirty for boys. According to Portalis, these conditions were in the children’s interest, based on “parental love” and recognized by “all ancient laws.” Rather than “limiting the freedom of spouses,” they protected children “from the violence of their own penchants.” Casting the rules as an expression of affective rather than financial investment, he downplayed how parental consent functioned in effect to protect family property. Parents who, out of “avarice,” “abuse their parental authority,” were, in his view, unfortunate exceptions.6
By contrast, French jurists viewed the provisions for parental control in Muslim and customary law as an exorbitant patriarchal power. Islamic law set clear limits to this power, forbidding consummation before puberty and requiring women’s consent. These conditions had long played a role in the adjudication of marital and family disputes in which qadis intervened to annul marriages.7 French jurists, even when they acknowledged these legal limits, regularly recounted in lurid detail how girls, cynically “sold” by their fathers, were married before puberty and subjected to rape and sexual torture by their lust-filled husbands. By the last decades of the nineteenth century, the droit de djebr, like polygamy, came to embody the cultural and sexual difference of indigenous personal status. French colonial jurists ceaselessly invoked it as both obstacle to and an explanation for urgently needed legal reform.
This double discourse made women’s marital consent into a productive site for elaborating colonial law and governance. While posing a seeming moral quandary for French jurists who applied local law, it also asserted the superiority of French law over indigenous codes and culture. Images of the child brides and young women forced to submit to a father’s will were trans-imperial clichés. However, in contrast to their counterparts in British India, French administrators did not attempt to pass laws banning the practice outright, at least before 1930, and then only with respect to Kabyle customary law. Because Muslim personal status was, in principle, protected from legislative intervention, colonial legal experts focused on jurisprudence and bureaucratic regulation instead.8
Administrative and juridical preoccupation with marital consent repeatedly resurfaced from the 1850s through the 1930s, and indeed up until the Algerian war. In serving to negotiate and regulate the relationship between French civil and local law, marital consent trials were a recurrent node of colonial governmentality.9 They condensed and contained the challenges posed by a colonial legal order that depended on apparently conflicting systems of law: the French Civil Code on the one hand, and Muslim, Mosaic, and customary law on the other.10 As in other colonial contexts, court appearances gave some women a chance to voice domestic grievances. By focusing on women’s marital suffering and desire, they also framed their legal agency in constrained ways.11
French concern with “child marriage” began early on during the military’s period of “moral conquest” in the 1850s and 1860s. As Allan Christelow has shown, these efforts to intervene on behalf of the weak and socially disadvantaged, namely orphans and children, fit into a wider project of French colonial legitimation. They occurred in the context of two decades of brutal military conquest that intentionally targeted civilian populations in order to repress resistance to French rule.12 At the same time, French military officers tried to establish a reputation for justice by punishing parents, husbands, and qadis who perpetrated marriages with “non-nubile” girls.13 Military officers like Arab Bureau chief Ferdinand Hugonnet indicated their concern for young girls who rejected their father’s efforts to marry them.14 According to Arab Bureau reports from the 1850s, some French officers incited Muslim jurists to clamp down on cases of marital abuse.
By focusing on the sensitive question of child marriage, officers sought to exert control over local justices. The head of the Arab Bureau circle of Orléansville (Chlef), for example, explained in January 1852 that “several marriages contracted with underage girls were broken off. The most severe orders were given to diverse qadis that they follow in this matter the will of the law [which proscribed consummation before puberty], not the desire of certain parents.”15 Officers backed up their orders to follow the letter of the law by fining qadis who transgressed the rules for amounts as high as 300 francs. As a report from 1856 explained, the disciplinary measures were supposed to shine a “salutary light” on the shady dealings of certain Muslim jurists.16
The rules of shari‘a forbade consummation before puberty even if they did not specify a legal marriage age.17 Working in concert with local councils of jurisprudence, or Majlis, officers urged qadis to act within the framework of Islamic law. According to one report, a girl who succumbed to “the first efforts of marriage” in June 1852 had died because of her “tender youth.” The Majlis council garnered the officer’s support by issuing “a judgment that forbids, in conformity with the spirit of the law, all marriages prior to the epoch of puberty, and which renders fathers responsible for exercising their authority in the matter.”18 Writing in August 1856, an officer from Orléansville again hailed the advisory judicial body, whose pronouncements backed up his own actions. He meted out punishments against husbands whose wives were too young to be married, while the Majlis pronounced the dissolution of their marriages. As the officer explained, “With its powerful help we have every reason to hope that the tribal qadis will promptly follow the example that is given them.”19
The Majlis had expanded influence after the 1854 law on judicial organization, which granted Muslim jurists greater autonomy. While not reviewed by a French instance of appeal, qadis and the Majlis nonetheless were subject to administrative oversight by Arab Bureau officers. In order to regularize its administration, the colonial government also established an official Council of Jurisprudence in 1854 to fix Muslim legal doctrine. It advised French authorities on Muslim legal matters and hence also lent legitimacy to official directives.20 In 1856, Governor-General Jacques Louis Randon asked the body to fix a marriage age. In a notable departure from shari‘a, they established a numerical threshold. At age fifteen, they concluded, “young women are inclined toward men and can enjoy themselves in the company of a spouse.”21 With this recommendation in hand, Randon issued a circular in 1857 that declared qadis responsible for enforcing the new age limit.22
Disciplinary measures did not always stop early marriages and their occasionally tragic consequences. One report from the circle of Blidah in 1856 described a murder accompanied by a rape of an eight-year-old girl by her fifteen-year-old husband. While “marital rape” did not exist in French criminal law, the French officer claimed that their marriage lent the crime a “character that inspires the most profound horror.”23 In response, the officer issued “an energetic accusation against all vices and shameful customs contained by a society which tolerates such guilty unions, and illustrates the urgency of imposing reforms of a nature to lift it out of the degradation into which it has fallen.” Both the husband and the marabout who oversaw the marriage were punished.24
Muslim jurists’ relative autonomy was significantly curtailed by the 1859 law on judicial organization. As we saw in chapter 2, civilian settlers had pressed for this reform as part of their broader agenda of extending the reach of French civil law over Algerian territory. It made Muslim jurists’ decisions subject to appeal before the Imperial Court of Algiers. In addition to curtailing their legal authority, the new process was costly and time-consuming. It provoked immediate resistance. In Orléansville, tribal chiefs exhibited a “vive émotion” when they heard that the local instance of appeal, the Majlis, would be abolished. Like other military men, the head of the circle worried that the hasty measure would provoke “profound discontent.”25 A subsequent report noted the “distrust and alarm” with which the legislation had been met.26 The 1859 law’s disruptive effects on local religious elites contributed in no small part to the major wave of rebellions against French authority that took place in 1864.27
The new appellate structure did allow litigants to “forum shop” by playing Muslim and French jurists off one another (even if the French jurists were supposed to rule according to “Muslim law”). In the 1860s, cases involving women’s marital consent made the novel implications of French oversight increasingly visible.28 The Imperial Court of Algiers now exercised a new power to discipline “qadi justice.” The protection of women’s “right” to marital consent became a linchpin of much of its jurisprudence. Women’s marital consent, in turn, became an anchor for French discourse on the fate of Muslim law in Algeria.
Many of the early cases brought before the Court of Algiers involved the droit de djebr only obliquely. They featured men who asserted marital rights to a young woman based on claims of a prior convention with her deceased father (a promesse de mariage). Without directly challenging paternal power, these cases sought to correct the appropriation of that authority by mercenary family members, unscrupulous qadis, and manipulative prospective husbands. Most of the trials hinged on the unreliability of witness testimony—and hence on conflicts between French and Islamic legal procedures and standards of evidence. These cases were as concerned with transforming the procedural aspects of “Muslim law” as with modifying its presumptive content.29
Women who contested their marriage arrangements usually had considerable family support, including, occasionally, from their fathers. French legal opinion nonetheless focused on women’s individual consent. While these were technically “Muslim law” cases, they also drew on elements of the Civil Code, both the principle of “public order and good morals” (article 6) and the nullity of nonconsensual marriage (article 146). In one decision on June 11, 1862, the court held that “it is important for public order and good morals that marriages be freely contracted; and, as a result, that promises of marriage should not be obligatory, in the sense that a marriage must, of necessity, follow from them.” The qadi who first heard the case judged the engagement to be valid. In overturning his decision, the French court found that the witnesses called by Mohammed ben Amir did not “inspire the necessary confidence.”30
Some of the cases heard by the Imperial Court of Algiers were strikingly implausible. The court thus expressed skepticism regarding El Abassi ben Ahmed’s claim that, because Keltoun had been previously promised to him by her father Mohamed ben Ali, she was now his rightful wife. Keltoun had since been living “in perfect union” with another man, El Seïd ben Abderrahman, and was pregnant. El Abassi had even attended their wedding party without contesting the union’s legitimacy. Siding with El Seïd, the court found that the prior engagement could not “prevail” over a consummated marriage, a decision that was both “proclaimed by morality and existed in conformity with Muslim law.” Keltoun appeared here to be an object of contestation between two men, a contest that was adjudicated by a French court. With its decision, the court claimed to enforce both French morality and Muslim law. Under its watchful eye, the two were made to coincide even as its decisions also implicitly undermined the autonomy—and hence authority—of Islamic justice and its qadis.31
In the colonialist press, reports on the Imperial Court’s “Arab affairs” cases foregrounded the dissimilarity between French and local law, especially with respect to “family organization,” and thus helped to legitimate increased oversight of Muslim law. In L’Akhbar, an 1863 trial in which the French court overturned a qadi’s decision to find in favor of a woman (and her father) illustrated “the superiority of European civilization over Muslim civilization.” The article’s generic characters—“an Arab,” a “young woman,” and “the father”—made the trial into an expression of cultural difference. The author avowed that even “if our laws are more protective of young woman,” contemporary “mercantile tendencies” reduced marriage to an “act of commerce.” But in the end, he sought to restore the dignity and difference of French law.32
These cases did not merely present women as hapless victims who served as the ground for contests between men.33 Marital consent trials also constituted women as desiring (or just as importantly, as non-desiring) persons. In 1863, Messaoud bent Ahmed “formally denied the existence of a marriage” that El Taïeb sought to prove based on less than credible witness testimony. Overturning the qadi’s decision in his favor, the French court held that the conditions under which “testimonial proof” could be admitted had to be particularly stringent “when an act as important as marriage” was at stake.34 Similarly, in an 1866 case, Alia bent Caddour rejected an arranged marriage based on the claim that she had been previously married. In the eyes of the court, proof of her consent to the union was insufficiently established.35
In 1867, the court refused to allow a brother to make marital arrangements for his sister, Khadidja, finding his opposition to her stated desires to be “purely arbitrary and troublesome.” In the course of the trial, Khadidja asserted her own wishes, declaring “for her part, that she wanted no other husband than Hamed ben Bakhta; that she freely consented to the institution of her [other] brother Bel Kassem as her legal representative [wālī]; and that she gave her full adhesion to the contract realized under his auspices.”36 By recognizing Khadidja’s marital desire, the court effectively linked women’s marital consent to their acceptance of the Cour d’Alger’s jurisdiction. Women’s marital desire thus worked to legitimate the French court’s oversight of “Muslim law.”
The number of cases on appeal before French courts seems to have slowed once Napoléon III introduced a new judicial organization in 1866. In an effort to rectify the defects and discontents of the 1859 law, this reform reaffirmed the Majlis as an optional instance of appeal. A limited number of litigants opted instead for the French court, especially when it leaned in their favor.37 Cases of marital consent nonetheless made a strong impression on contemporary commentators. Stereotypical accounts of “Muslim” marriage written at the time predictably praised French officers and magistrates for limiting abuse. Condemning underage marriage as both immoral and unnatural, military officer Étienne Villot hailed these officials’ sensitivity: “Despite the deep mystery surrounding the Muslim, the cries of these young children, married before the age of puberty, have been heard, and the authority has forbidden the marriage of non-nubile girls.” This affective and moral appeal, in turn, justified new forms of intervention and oversight. As Villot exclaimed, “there is here a reform to be completed.”38
Individual Properties / Properties of the Individual
Created by the shift to civilian rule, legal transformations in the 1870s opened the way for reform. The government renewed its commitment to banning underage marriages in a circular issued by Governor-General Louis Henri de Gueydon on September 19, 1872. It called for “severe repression,” condemning “the spouses who consummate these barbarous unions and the parents who consent to them,” as well as the “Muslim magistrates who give them their sanction.” Part of Gueydon’s broader plan to curtail the power of Muslim justices, the directive threatened qadis with revocation and husbands with criminal charges for indecent assault.39
This new stringency coincided with the violent repression of the 1871 insurrections against French authority, the so-called Moqrani Rebellion. Settler advocates seized on the moment to enact legal reforms that they had been unable to achieve under Napoléon III’s Arab Kingdom. They justified these reforms by hailing the advantages and appeal of French law. In his inaugural speech in 1874 to what had now become, after the fall of the Second Empire, the Cour d’appel d’Alger (the Appeals Court of Algiers) on the “influence of the Algerian judiciary on the civilization of indigenes,” General Counsel Paul Piette pursued this argument. He praised the Warnier Law, which in applying French law in select areas of the Tell region converted communal property into what jurist Ernest Mercier described as an “available and marketable good [une valeur disponible et marchande].”40 The benefit of the law, according to Piette, was that Algerians would “lose their collective character” to become “what they have never been, individualities.”41 As we saw in chapter 3, the Warnier Law actually presumed a patriarchal Muslim family structure, inscribing “individualities” in genealogies and mandating proper “family names” or patronymics in order to guarantee the security of property titles.
Piette meanwhile proclaimed the need to curtail patriarchal excess, including how “natives can submit children less than thirteen years of age to their brutality.” He urged fellow magistrates to suppress “Muslim” laws that were “an affront to the dignity of justice [qui portent atteinte à la dignité de la justice].” In his view, forced marriages confused personhood and property, as children were “given over by greedy parents, without decency [pudeur] or pity.”42 In a lengthy end-note on “premature marriages,” he praised Gueydon’s 1872 circular as well as decisions by the Cour d’appel d’Alger that annulled suspicious unions. Citing reforms undertaken in British India on sati and widow remarriage as successful precedents, he urged the adoption of a legal marriage age to eliminate abuse.43
This call for legislation was, however, stymied by the construction of “personal status” by the 1873 land reform. While aiming to dismantle family property, French jurists continued to claim that the law had left what mattered most to Algerian Muslims—namely religion and the family—intact. The promise to maintain “personal status” did not, however, interrupt ongoing efforts to reform the “Muslim family” by making it more transparent to the French state and to prospective purchasers of Algerian land. Toward this end, settler advocates and politicians sought to extend the imposition of fixed family names initiated by the Warnier Law to the whole population. As Alexandre Bellemare explained in a report to the Conseil supérieur de gouvernement in 1877, “the civil registry [état civil], which is the point of departure for the patronymic name, cannot be limited to property holders alone, as the patronymic name must extend to all non-property-owning members of a family, whose one member is a property holder.”44 Patronymics became the focus of subsequent discussions of the civil registry.45 Acting Governor-General Albert Grévy explained why the names needed to be established by law: “When it comes to knowing who has the right to take or to give a name, when it comes to the status of the person and the constitution of the family, can these questions be simple matters of administration? The status of persons, in our law, is a question of the first order which takes precedence above all other interests.”46 The proposed legislation established the “Name of the Father” as integral to French sovereignty and law.47
Governor-General Grévy worked hard to advance this project in the National Assembly. In his report to the Chamber, Justice Minister Jules Cazot outlined why regularizing indigenous names was so urgent. The Warnier Law, by granting patronymics only to property holders, “created a real danger from the point of view of persons; in seeking to create order in property, it managed to create disorder in the family.” A “native civil registry” would, he claimed, “establish order in the Arab family.”48 Deputy Rémy Jacques from Oran, the reporter for the parliamentary commission, likewise explained how the registry would extend French administrative knowledge and authority over Muslim subjects and hence guarantee transparency and traceability in property transactions between “Europeans” and Muslims.49 As one contemporary observer remarked, “How is it possible to follow the transformations in a family and hence in the destiny of a property when every child has a unique name and it is unknown when he is born, when he marries, and when he dies?”50
After considerable discussion, the law creating a civil registry for all “indigènes musulmans” was passed on March 23, 1882. Like the 1873 property reform, it soon encountered difficulties. One major obstacle was the fact that “Muslim law” marriages did not require sanctification by a qadi. The private nature of the contracts made the public surveillance of marriage, including “child marriage,” difficult.51 Theoretically, the civil registry allowed the secular state to track the marriages without altering their private and “religious” form. As Deputy Jacques explained, “Marriage is, among them [i.e., indigènes], a religious act—polygamy is in their mœurs, as is divorce; let’s not touch it; but let’s not infer that this forbids us from applying our laws when they do not harm these principles in any way.”52 The law’s final version indeed required marriages and divorces to be registered, but the provision was almost impossible to enforce.
This inability to publicly document Muslim marriage remained an obstacle to administrative efforts to map Algerian families and assign proper names to their members, especially women. One solution was to give married women their fathers’ patronymic, rather than their husband’s. Over the course of the law’s application, however, administrators remained unsure of how to name married women who did not live close to their paternal family. This bureaucratic quandary brought new questions to the fore about what model of the family—an extended patriarchal one or limited, conjugal one—the law sought to inculcate and impose.53
Official characterization of the “indigenous” family thus shifted depending on the premises and stakes of the policy at hand. It could be legally conceived as either analogous to or incommensurably different from the “French” family. As we have seen, the 1873 legislation gave rise to bureaucratic chaos and legal debate over how to define the Muslim “family unit.” An 1887 law sought to remedy that disarray by again revising the definition.54 Deputy and large property owner Charles Bourlier (Alger) explained how delimiting “the family unit” would prevent the division of property into impossibly small, fractional parcels. He proposed breaking with the earlier definition: “The familial unit [unité familiale] on which property should be based could be found neither in the family as understood by General Chanzy [in his instructions of July 1, 1875], nor in the Islamic family.” In his view, the appropriate model had to be based on “indigenous society” itself.
In an effort to curtail the excesses of the 1873 reform, Bourlier proposed a much more restricted model as more accurate: “If one penetrates into indigenous territories, one recognizes that, whether under a tent or the roof of a hut [gourbi] or house, there are only ever a small number of beings, gathered around the same fire, bound together by the most intimate ties: a husband, a wife, children, and more rarely, sisters…. Never two households. In this milieu, one does not find any outstandingly different characteristic between a peasant family in France and that of an Algerian fellah, aside from bigamy, from polygamy, which are exceptions.” In other words, Bourlier claimed that the indigenous family barely differed from a traditional French family, headed by a père de famille: “The family, the hearth [feu], is the group formed by the adult [majeur], master of his rights, with the women, children, and incompetents who depend on his fortune.” For Bourlier, the division of communal property should take this model of the family—the hearth—as its guiding legal norm.55 After 1887, land surveyors were supposed to follow this definition in implementing property reform.56
According to its many critics, the new law again failed to forge an appropriately individuated, property-holding subject and family.57 Indigenous resistance to dispossession, alongside persistent confusion over the meaning of the “family” or “hearth,” could not be rectified by further legislative tinkering. By the 1890s, metropolitan politicians and concerned Algerian jurists took increasing distance from the unconsidered application of French property law.58 In 1897, yet another law abrogated the two previous reforms. Bringing an end to the generalized “operations” over large swaths of territory, it instituted more targeted “partial inquiries” instead. In his report on the legislation, Deputy Joseph Pourquéry de Boisserin (Vaucluse) explained that whatever care had gone in to better describing the shape of the indigenous family by “carefully explaining what ‘hearth’ should mean,” the results of the 1887 law were no less disastrous. He concluded that “in reality, natives are not in a condition which calls for the constitution and conservation of individual property.” In his view, the stubborn social and material reality of the indigenous family remained an obstacle to the administrative fantasy of the Warnier Law: “Property is familial, and these mœurs were not modified by the passage of the land surveyor.”59 This increasingly common argument presented local resistance to the law as a sign of indigenous social failure.
By the 1890s, metropolitan politicians and settler advocates pointed to Algerians’ opposition to land reform as evidence of their legal and political inassimilability. The history of property reforms revealed that “personal status” questions of marriage, divorce, and inheritance could not be easily cleaved from other domains of administrative and property law. Colonial jurists and politicians nonetheless continued to insist that the implicitly religious laws of this “intimate” and familial domain had been preserved, while the extra-intimate concerns of property and administration were subject to ongoing efforts of colonial reform.60 The apparent failures of the Warnier Law created new colonial “alibis” and discriminatory effects.61
A Law of Indigenous Exception
The idea of the intransigent “Muslim family” that emerged out of the property reform debates informed jurists’ approach to questions of personal status, including the droit de djebr, from the 1870s onward. Once the new civil government began to reduce qadi and customary law jurisdiction, more of these cases came before French judges. The harsh administrative response to the Moqrani Rebellion of 1871 was an important factor in this shift. After 1874, French juges de paix replaced locally elected djemaa councils and notables as judges in Kabyle customary law cases. Two subsequent laws on judicial organization, in 1886 and 1889, further expanded French jurists’ jurisdiction, reducing the number of qadi courts and giving juges de paix greater purview over Muslim law matters as well.62
In this jurisdictional transformation, the Appellate Court of Algiers made a frontal assault on parental authority and the risk of marital brutality symbolized by the droit de djebr. The court’s decisions simultaneously attacked the legal authority of qadis and the familial authority of fathers, husbands, and brothers. By undermining the extended family, this jurisprudence coincided with the aims of the Warnier Law.63 More specifically, “child marriage” cases supplemented economic arguments against collective property with emotionally charged ones against the dangerous excesses of Muslim law and patriarchal power.
Judges sought to claim the moral high ground for French law and courts. In one case, the thirteen-year-old Kheïra bent Mohamed fell victim to the “odious lubricity” of her sixteen-year-old husband Ahmed ben Mohamed, from whose “abuse [mauvais traitements]” she escaped by returning to her parents’ home. Citing Gueydon’s 1872 circular, the court condemned the qadi of Aumale for failing to protect Kheïra. It further issued a sweeping condemnation of “the qadis of Algeria, who in most cases neglect to protect the children whose marriages they celebrate.” The court’s decision upheld the superiority and civilization of French justice.64
Fathers’ potential abuse of the droit de djebr thus justified French oversight of local law, despite its “protected” status. In its decisions, the Court of Algiers urged that “in no case can a jurisdiction that has ideas of morality and justice order that a woman should be handed over to a man against her will; it would be the same thing as ordering a rape.” Even in an instance where a woman’s father sought to break the marriage promise in order to honor his daughter’s wishes, the decision condemned the droit de djebr as an “exorbitant right.”65 In calling for its abolition, judges claimed to restore “natural right.”66
In arguing these cases, jurists drew on new instruments of colonial legal administration, including the compendium of Droit musulman composed by Édouard Sautayra and Eugène Cherbonneau in 1873. As the authors explained, since the Warnier property reform had “definitively maintained personal status and inheritance, it would be useful, and in the interest of good administration and justice,” to make Islamic legal principles more accessible to French jurists. The authors followed the handbook or Mukhtasar of Maliki school jurisprudence drawn up by fifteenth-century jurist Sidi-Khalîl ibn Ishâq, but made no effort at a literal rendering of the text. They proudly announced instead that they had “gotten rid of all that was unnecessary or superfluous, and arranged the remaining text in the order of the Civil Code.” They aimed “to make research and comparison with other legislations much easier.”67
In the absence of an official code, their eclectic combination of Qur’anic text and commentary, jurisprudence and ethnographic description, operated as if it were a code, especially for jurists who had an extremely limited knowledge of Islamic law. This treatise gave, in the words of one historian, “a more or less definitive form to Muslim law in Algeria.”68 And it clearly shaped how French magistrates judged cases involving the droit de djebr.
Women’s marital consent Figured prominently in Sautayra and Cherbonneau’s account. The authors’ introduction recapitulated the jurisprudence of the 1860s, which limited the exercise of the “right.”69 In the text that followed, they sought to codify the conditions under which marriage contracts became valid, devoting over fifty pages to the intricacies of the droit de djebr alone. In the process, they offered an extended critique of paternal abuse, especially of fathers who confused personhood and property by supposedly “selling” their daughters.70 Citing the Imperial Court of Algiers’s prior decisions regarding invalid “marriage promises,” they reiterated that qadis would be subject to administrative punishment if they did not follow official procedures for drawing up marriage contracts. The authors noted an entry in the official newspaper, the Mobacher, from September 12, 1863, punishing a qadi with a 200 franc fine “for marrying a girl who was not yet nubile.”71
Subsequent decisions by the Appellate Court of Algiers followed Sautayra and Cherbonneau’s guidelines, while frequently conflating two kinds of cases: prepubescent girls who were supposedly forced to consummate marriages when they were still too young, and older women who were forced into marriages with men other than those of their own choosing. This conflation supplemented arguments about women’s legal violation with affective force. The Bulletin judiciaire d’Algérie thus described the droit de djebr as a “disgusting right [droit révoltant].”72 Court decisions, meanwhile, focused on emotionally charged depictions of women’s martyrdom in order to nullify marriages. Mixing sexual fascination with moral horror, they justified sovereign intervention into a supposedly protected “Muslim law.”
Sentimental description supplemented juridical argumentation. A telling illustration can be found in the appeal brought by Fathma bent El Arbi before the Court of Algiers in 1881 in an effort to avoid an undesirable Muslim law marriage that had been arranged by her estranged and unethical father, El Arbi ben el Haouari. The objectionable union was to a man, El Mouloud ben el Arbi, “who already had a wife and for whom Fathma showed [avait témoigné] an extreme antipathy.” Protesting against the arrangement, she brought the matter before the qadi of Duperré (Aïn Defla), who defended the father’s actions based on his interpretation of Sidi-Khalîl. She appealed to the Court of Algiers, which instead found that her father had effectively “abdicated” his paternal rights when he abandoned his daughter and wife. When her mother approved her marriage to a man who “would have pleased her and made her happy,” her father intervened, instead arranging her union with El Mouloud.
The Court of Algiers registered moral horror at her father, who “acting in his own interest,” had sought out “a sum of money in exchange for the violence done to his daughter, without caring in any way about the aversion that Fathma felt for the man into whose arms he threw her, thus violating [outrageant] her most intimate sentiments as a woman.”73 French jurists overturned the qadi’s decision in order to “intervene and emancipate [affranchir] Fathma from the marriage ties against which she protested.” Drawing on affectively charged imagery of sexual slavery, it represented the marriage as a shocking violation of her “intimate sentiments” and, by extension, its own. As Victor Mallarmé wrote in his commentary, the case exemplified French jurists’ struggle to “reconcile Muslim law with the most elementary principles of natural law.”74
The motives of Fathma’s father were no doubt questionable and her aversions palpable. What the decision also reveals is how the Court of Algiers appealed to emotions—of sexual disgust and violation—in explaining why it annulled the qadi’s marriage of Fathma to El Mouloud. This affective supplement underwrote French magistrates’ discretionary interpretations of Muslim law.
The legal argument adopted in a dispute between “Demoiselle Kheira” and her father in 1884 was similarly emotionally and morally charged. According to testimony cited in the case, Kheira strongly opposed a union that he arranged, apparently threatening to “end her days” if forced to consummate the unsavory marriage. She was supported both by her mother and by a qadi, who decided in her favor. Hoping for a different outcome, her father appealed the decision to the French court. Seizing the occasion to shore up a reformist legal principle, the French judge endorsed the qadi’s position. He conceded that because “indigènes” were allowed to maintain their law, a French court could not “refuse a père de famille the right to matrimonial constraint, given that this right, as exorbitant as it is, is one of the foundational principles of Muslim law.” At the same time, the decision adopted the Hanafi, rather than the Maliki rules regarding the right, according to which fathers had to obtain their children’s (both male and female) explicit consent to marriage once they had reached puberty.75 According to the court, “this eminently orthodox solution had the additional merit of coming close to French law, in which matrimonial constraint is considered, with good reason, to be a veritable assault on the human person.”76 The opinion followed arguments elaborated by the presiding judge in the case, Ernest Zeys, in his Essai d’un traité méthodique de droit musulman. Zeys’s reformist program sought a veritable upheaval in custom through the strict application of the principles of Islamic law. Through intervention on the part of the French, he claimed, “the woman will have more and more consciousness of her dignity, she will want to resemble the French spouse, the French mother, more and more, because goodness is as contagious as evil.” This civilizing project also had an explicitly political function. In transforming Muslim women and marriage, he proclaimed, “France will have legitimated its conquest of Algeria.”77
In cases that alleged sexual violence, French magistrates pursued a more overtly repressive tack by criminally charging husbands who consummated marriages with “underage” wives.78 The new prosecutorial strategy coincided with the elaboration of the notorious indigénat or native penal code that applied to subjects who were legally classified as indigène. This exceptional law was both logically and institutionally dependent on the distinctiveness of indigenous “Muslim” civil status.79 While “prepubescent marriage” was not targeted by the indigénat (husbands were rather tried for indecent assault under articles 331 and 332 of the regular penal code), the presumption of native criminality under-wrote the exceptional code. According to the jurist Émile Larcher, the policing of prepubescent marriage justified the indigénat’s article 15, which regulated meetings of twenty-five people or more and events in which arms would be fired, namely “marriages, births, and circumcisions.” Occulting the evidently political function of the regulation, Larcher suggested that the article allowed “the administration to continue its effort to stamp out the detestable practice of prepubes-cent marriage”80
This focus on “child marriage” consolidated and corporealized the legal meaning of “indigène” by highlighting a practice that, because supposedly shared by all Algerians, appeared to distinguish them from “Europeans.” The “exorbitant” patriarchal right protected by Muslim and customary personal status law underwrote the “exorbitant” operations of French extrajudicial justice. In his account of the indigénat, Larcher thus explained: “We see here a kind of seesaw effect [jeu de bascule]; for, on the one hand, personal status permits certain things to the indigène that are forbidden by our Penal Code; while we see, on the other hand, laws and decrees which strike the same indigène with correctional punishment for deeds that are permitted to Europeans.” In other words, the indigène’s supposedly extraordinary sexual rights—both the droit de djebr and polygamy—justified the French system of extraordinary punishment.81 Trials focused on “child marriage” thus contributed to a broader effort to consolidate the legal, cultural, and sexual differences between “Europeans” and indigènes.
As part of this effort to confirm the legal difference of the indigène, French jurists’ new attention to child marriage cases played an important role in the waning of the “Kabyle myth.” During the early decades of colonization, Algeria’s Berber population had been celebrated as more sedentary, more secularized, and less apt to practice polygamy, and hence more assimilable to French laws and mœurs than nomadic Arab tribes. In the course of these marriage trials, jurists began to argue that the fate of Kabyle women was perhaps even worse than that of the “Arab woman.”82
The 1873 compendium of Kabyle customary law by Adolphe Hanoteau, an army general who was stationed in Kabylie in the 1850s and ’60s, and Aristide Letourneux, a lawyer at the Court of Algiers, sought to correct aspects of the myth, especially with respect to Kabyle women. For French magistrates who oversaw customary law cases, the work functioned much like Sautayra and Cherbonneau’s Muslim law treatise. The authors dismissed earlier depictions of Kabyle women as “errors propagated by the brilliant paradoxes of eminent writers” and insisted instead on how customary law stripped women of legal personhood by subjecting them to forced marriage: “Bought and handed over, most often without the intervention of her will, the Kabyle woman is not a legal personality; she is a human thing [c’est une chose humaine].”83 For these colonial judicial ethnographers, forced marriage exemplified Kabyle women’s social and legal debasement. They continued: “The laws of humanity and decency are not even respected in the deal. Custom fixes no legal age for the consummation of marriage and fathers have the right to hand their prepubescent child over to the buyer’s caresses.”84 In the eyes of French jurists, these marriage contracts problematically confused property and personhood by treating women as goods to be bought and sold.85
The new consensus view of the Kabyle women’s legal plight had largely taken hold by the end of the century. In 1894, Emmanuel Besson, the author of a prize-winning doctoral thesis on civil law in Algeria, drew on British colonial jurist Henry Maine’s model of primitive law to make the point. Structured by status rather than the modern principles of contract, Kabyle customary law annihilated women’s individual wills, especially in forced marriage. In his view, “the Kabyle woman, deprived of personality, is purchased and delivered without the intervention of her will…. Fathers even have the right to give their prepubescent daughter over to her purchaser.”86 A frequently reedited reference work on Algeria by Maurice Wahl similarly highlighted the lamentable status of the “Berber woman,” given that “she has no fortune of her own, and is assaulted in her interests, her dignity, and even her security by the mœurs and laws of a brutal society.”87 This increasingly prevalent view of Kabyle women encouraged French jurists to interpret the customary laws or qanouns transcribed by Hanoteau and Letourneux literally.
Alongside the “Arab” woman, the tragic Kabyle woman thus became a staple of journalistic and juridical writing on child marriage. The semipopular Journal des tribunaux algériens regularly reported on trials of husbands charged with indecent assault against their prepubescent wives. Citing graphic forensic reports, medico-legal experts testified to the Algerians’ propensity for child marriage (and hence rape), while magistrates lamented juries’ leniency in cases of husbands who consummated marriages with their ten- and eleven-year-old wives. According to one author, “these acquittals would continue as long as these precipitous unions, allowed and tolerated by Kabyle custom, are not formally forbidden in the name of the most elementary humanity.”88 Appearing alongside articles depicting other morals offenses, including “pederasty,” this coverage represented Algerian men as criminal and perversely sexualized.89 The illustrated popular press likewise highlighted how Kabyle women were abused by mercenary family members. A 1902 article in the newly created La Revue nord-africaine illustrée described how they were treated like property, “given over in marriage, or more exactly sold, before even reaching the age of puberty. It is truly a sale that these parents conduct, with the sole aim and desire being to sell this living merchandise for the highest price.”90 These accounts of Algerian men’s endemic rapaciousness and sexual criminality underwrote renewed calls for reform, despite the “protected” character of personal status law.
Fantasies of Imperial Rescue
Stories of women’s suffering, both real and fictional, also found their way into the metropolitan press. In the fall of 1891, the major metropolitan daily Le Temps featured a model of the genre by novelist Élie Berthet. In this racy feuilleton, L’amour au desert, Julien Desrosiers, an explorer “born in the heart of France,” sets off on an adventure to the “most barbarous country of North Africa.”91 He fulfills his dream of becoming the first “European” to set foot in a remote region of the Sahara, inhabited only by nomadic tribes, including the particularly bellicose Oulad-Delim. Having acquired a thorough knowledge of the Qur’an, Julien hopes to pass as Muslim despite his fair features. He overcomes the tribesmen’s initial skepticism in part by convincing Eliazize, the young and beautiful daughter of a notable, of his religious devotion. Although she is only twelve years old, he is able to judge that she has already become a woman, “thanks to the thin blue cotton garment that left a portion of her bosom open to view.” A recurrent cliché in the story, this image of her hidden “treasures” enacted contemporary erotic fantasies of visual appropriation.92
In passing himself off as Abd-el-Malek, Julien seeks more than a stolen glance. After the two fall in love, he asks her father for her hand in marriage. Once they agree on a dowry price, Julien sets off in order to obtain the necessary riches (the equivalent of forty camels). A complicated set of events intervenes, and he returns to France. Soon tiring of his facile existence in the metropole, he finds himself inexorably drawn back to his desert love, only to learn that Eliazize’s father has now promised her instead to Abdallah, Julien’s “mortal enemy.” “Abdel-Malek” protests, arguing that according to Qur’anic law, they were already married. Once it is known that Julien was, in fact, Christian, the couple realize that their future together is in danger. Julian nonetheless hopes that “wisdom and justice” will prevail. But Eliazize knows better, explaining that the couple “cannot have any confidence in their justice.” She begs Julien “not to throw her into the arms of the accursed Abdallah,” and he solemnly promises to stay by her side. A fanatical crowd, made up of warriors and tribeswomen, urge Eliazize to leave her infidel beloved. Refusing, she shouts back at Abdallah that “Abd-el-Malek is my husband—whether or not he is Christian, I love him as much as I hate you.” When Abdallah curses Eliazize, Julian shoots his revolver at the man and “blows his brains out,” at which point the crowd attacks the star-crossed lovers. When it is all over, their “bloody cadavers” are laid out on the desert rocks. The novella ends with Eliazize’s father claiming, over their dead bodies, his “right” to the inheritance of “Abd-el-Malek.” In the story, Julian’s desires are celebrated as noble, while “Muslim law” appears a pretext for obscenity, violence, and greed.
Berthet’s horrible romance in the desert offers an extraordinary condensation of colonial cliché: a white man dies trying to save a brown woman, who desires a European man and is victimized for it. The story reprises that of the venal Algerian father arranging his daughter’s marriage, but with a telling twist. In this version, Julien occupies two apparently contradictory positions: he poses as a Muslim husband of a “child bride” and bears the promise of “French” justice to reform the droit de djebr. Eliazize’s desire for him makes the seemingly impossible—and hence fantasmatic—combination possible. What is more, her love sanctions Julien’s murderous violence against his illegitimate rival. In this erotic twist on Spivak’s famous formulation, the agency of the woman’s desire justifies Julien’s purportedly chivalrous action. The apparent failure of his mission does not interrupt the fantasy. It allows for a perpetual projection of eroticized rescue into the future.
Berthet’s novella exemplifies how, in the colonial legal imaginary, stories of the Algerian woman’s conjugal desires were intertwined with fantasies of French justice. These dreams of romantic rescue traversed legal fiction and fact. Just after Le Temps serialized Berthet’s story, a parallel tale of disrupted marital bliss unfolded in the pages of the same newspaper. In 1891, a judge separated Fatima bent Ali, a young Kabyle woman from Mekla, near Tizi-Ouzou, from her husband, Haud ou Brahim, and “returned” her to another man, Tahar ou Rhamoun. The young woman’s tragic fate—legally torn from her beloved and thrown into the arms of a voracious predator—erupted into a minor scandal.93
Ironically, in this case it was a French magistrate who issued this customary law ruling. He accepted Rahmoun’s claim that Fatima had been promised to him by her father. Like many in his position, he had a limited knowledge of the local community and thus applied the description of customary law in Hanoteau and Letourneux’s volume literally.94 As recounted across the Algerian and metropolitan press, the case placed the French magistrate in a compromising position: he had to choose between civilized French law and an indecent indigenous law. Fatima’s lawyer reportedly drew out this irony in the course of the trial: “Who would dare throw this woman back into the barbarity of slavery? No, not a French tribunal!” he pleaded.95 In making a French judge appear barbarous, Fatima’s case confused the cultural and sexual categories that undergirded the organization of Algerian civil law status. It rendered explicit the contradictions that Algeria’s at once plural and hierarchal legal order produced and contained.
Fatima and Haud were, however, exceptional litigants. Educated in and employed by French schools, they appeared to be models of Kabyle assimilation. Contemporary observers decried their subjection to obsolete Kabyle custom, and by a French magistrate, no less. One of the couple’s most vocal advocates was Pierre Foncin, a founder of the Alliance française, school inspector, and devoted proponent of the mission civilisatrice. He condemned the French tribunal’s “savage justice” in no uncertain terms: “What is the meaning of a judgment that takes a woman away from a husband who loves her to throw her into the arms of a legal abductor? Is it really the duty of French judges to recall indigènes to the strict observation of brutal and barbarous customs, when those indigènes have themselves abandoned them”?96 Joining Foncin in this denunciation was theater critic Francisque Sarcey, who depicted Fatima’s tragedy in suitably melodramatic tones: “Our entire being is revolted in horror by the mere idea that, on the order of a French judge, a young woman can be torn, by French magistrates, from the man who legally wed her out of love, to have her dragged into the bed of another man who paid for her with money down.” Were the decision to be upheld, proclaimed Sarcey, “there remains only one thing for Fatima to do: it is to arm herself with a revolver and, if she can, to blow out the brains of the man who uses such violence.”97 The resonances between Sarcey’s dramatic call to arms and the brutal ending of L’amour au désert are striking. In both cases, the legal violation of women’s marital desires sanctioned an exceptional, punitive violence against indigenous men.
Fortunately for Fatima, recourse to force proved unnecessary. Foncin and Sarcey’s incendiary pieces spurred an avalanche of press reports that embellished the story in order to better denounce the decision. No major journal, in the metropole or Algeria, neglected the sensational story.98 These accounts revealed the contradictions and compromises entailed by putting French magistrates in charge of local law. Journalists hotly debated what kind of reforms should be put in place, including proposals to ban child marriage. Because the story coincided with the work of major parliamentary commissions on Algerian reform, the stakes of these discussions were high. Some newspapers defended the judge’s decision as legal, because it was in keeping with native custom—which demonstrated, in their view, the indigène’s ineradicable difference and alien character.99 Meanwhile, those who denounced the decision often viewed it as a source of French shame. The Petit Parisien proclaimed in its editorial column: “How can we reconcile respect for Arab Law with the ideas of morality, with the principles of civilization, that it is France’s mission to make triumph?”100 Several journalists cited English legislation banning sati as a model for the French to follow.101 The case was remarkable not only for the attention it garnered, but for the dissonant opinions it revealed. The satirical Charivari Oranais published several articles mocking the uproar in the Parisian and Algerian press, as well as the apparent hypocrisy of having a “civilized” French judge enforce “barbarous” Muslim law.102
Aided in part by Charles Jeanmaire, the reformist head of the Académie d’Alger, the local education administration, the couple eventually won out. The Tribunal of Tizi-Ouzou overturned the juge de paix’s initial decision. Ruling on a technicality rather than moral principle, it claimed that Fatima’s union with the pretender was invalid because it had not followed to the letter the model of a Kabyle marriage ceremony outlined by Hanoteau and Letourneux.103 The decision, while it preserved the happy Kabyle couple’s marriage, did not establish an overarching rule, “inspired from the principles of universal morality.”104 Indeed, the proceduralism reinscribed rather than remedied a literalist approach to qanouns. The court’s ruling drew widespread criticism, as journalists again denounced how it was demeaning to French magistrates.105
This heated controversy resulted in calls to codify Muslim and customary law, most notably by the head of the Law Faculty of Algiers, Robert Estoublon. In an article published in the Revue algérienne et tunisenne de jurisprudence, he held that it was on “the terrain of natural law and morality that our efforts should constantly work to reconcile [rapprocher] these two legislations.” In his view, Muslim law “should not be made responsible for the injustices and the abuses of power for which it has frequently served as a cover.” Official proposals in favor of codification cited this article on “Muslim and Kabyle Marriage,” both when Senator Alexandre Isaac (Guadeloupe) launched a call for codification in 1895 and again when the endeavor was actually taken up in earnest in 1905 with respect to Muslim law.106
French feminist Hubertine Auclert joined in this generalized condemnation. Auclert learned of the case while living in Algeria with her husband, Antonin Levrier, who was a juge de paix in Frenda (Oran Province). Her account focused less on Fatima’s “perfect love” than on the fate of other “ordinary victims who might be eloquent and supplicating, but whose desperate voices move neither the public nor the [French] judges.”107 In denouncing the legal treatment of Fatima’s case, Auclert both deployed and reoriented colonialist clichés about “child marriage.” More specifically, she turned the logic of colonial rescue against itself by accusing “l’homme [the French man]” and his law with “tolerating this crime, because of his solidarity with those who take advantage of it.” Rather than drawing a distinction between French and Muslim law (and French and Muslim men) Auclert emphasized a patriarchal complicity between them.108
French colonial jurists meanwhile promoted Muslim and Kabyle marriage reform as the only way to reconcile French and “indigenous” law. Their attention to the question coincided with the flurry of parliamentary activity on Algeria that had drawn metropolitan attention to Fatima’s case in the first place. The Senate’s “Commission of XVIII” conducted an exploratory mission to Algeria in 1891. Presided over by former minister of education and then senator Jules Ferry, it brought ongoing conflicts over indigenous legal, political, and social reform onto the national stage.109 In his budgetary report before the Chamber in 1891, Deputy Auguste Burdeau also called attention to questions about Algerian law and justice with respect to both persons and property. Skeptical of thoroughgoing “assimilation,” Burdeau endorsed relative accommodation instead. He both defended the punitive indigénat and recommended measures to reduce local dissatisfaction with French justice in the wake of the 1886 and 1889 judicial reforms. While avowing ongoing challenges to the separation of religious and civil doctrine in Algeria, he endorsed the power of the secular state. Islam would, in his view, have to “adapt to our essential ideas of the religious neutrality of the State, the moral equality of the sexes, the incessant progress of human reason and civilization.”110 To this end, the prosecution of “non-nubile” marriage would be an effective state tactic “to impress minds [frapperaient les esprits] and proclaim the subordination of religious prescriptions to superior principles.” By criminalizing these marriages, the French state could assert its secular power and the moral (rather than political) equality between men and women.111 For Burdeau, in other words, the regulation of “child marriage” was a powerful mechanism of colonial government.
Sovereignty and Sexual Consent
Algerian magistrates endorsed this view of secular state power in their calls for marriage reform. Their concerns about “prepubescent marriage” spurred Governor-General Jules Cambon to issue a January 24, 1896, circular on the declaration of marriage and divorce of “indigènes musulmans.” The new directive reminded prefects that failures to register marriages or divorces was subject to prosecution under the indigénat.112 But in the eyes of many, the existing law remained inadequate. The following year, in the pages of the Revue algérienne, Louis-Auguste Eyssautier, a lawyer at the Court of Algiers and specialist of colonial Muslim law, issued yet another plea for reform. Like many jurists and journalists before him, he condemned how marriage and market logics were confused in Muslim and customary law: “The right of the father leads to worst abuses; marriage becomes a traffic, a sale; the dowry, of which the father could take a part, is a sale price.” Only “the personal consent of the spouses” could put a stop to the abuse. The sanctity of this principle separating personhood from property, in turn, justified the “right of France to abolish a law or custom which is contrary to public order and social interest.”113 Consensual marriage thus came to symbolize French legal supremacy and sovereignty.
In order to better police child marriage, Eyssautier recommended changes to the 1882 law on civil registry: imposing a minimum marriage age of fifteen for women and eighteen for men and obliging women to appear in person at the registry. He had high hopes for what it would achieve for the French state and for Algerian women. In his estimation, the reform would “prevent the gravest abuses, the most shameful assaults; it would assure the repression of those which continue to be committed; and it would return necessary dignity to native marriages and would place the native civil registry on the firmest ground.”114 Underwritten by moral horror, Eyssautier’s proposal aimed to enhance the reliability of the state registry of Algerian persons.
At the opening session of the Court of Algiers in 1898, child protection again served to justify proposed limits on Muslim and customary law. In his inaugural speech on the droit de djebr and “prepubescent marriage,” Assistant Prosecutor Alphonse Étienne cataloged recent trials and reformist ideas. Changes to the civil registry alongside the required presence of qadis at marriage ceremonies would, he claimed, guarantee that “Muslim marriage would no longer be a form of legal abduction [un rapt juridique], because it would unite free wills in a free union.” His concluding remarks underscored what was at stake in calling attention to “these abuses of parental authority, these lamentable unions of children, these odious assaults,” namely the imposition of limits on Muslim and customary law. In other words, “under the pretext of respecting the personal status of our subjects, let’s not legally authorize indecent assault and the rape of children.”115 Moral outrage enhanced these jurists’ arguments about the sexual excess of the personal status.
Charles Barbet, an assistant prosecutor in Sidi Bel Abbès and occasional travel writer, expressed similar sentiments in an article he penned for the Revue algérienne. His emotionally charged essay detailed the “deplorable consequences, the intolerable abuses which result from the exercise of this exorbitant right of matrimonial constraint, granted fathers by Qur’anic legislation and recognized as legitimate by our legislation, which is overly respectful of the traditions and barbarous customs of Muslim indigènes.”116 For Barbet the recognition of these marriages by “our legislation” was scandalous. In taking exception to indigenous exceptionality, he concluded that only those laws should be respected that “were not in formal contradiction to the intangible, imprescriptible, and sacred principles of justice, liberty, and morality, which more and more dominate our epoch.”117 Depicting legal difference in viscer-ally and affectively laden terms, Barbet understood the French Civil Code to be a timeless bearer of universal principles. His focus on “child marriage” cast indigenous personal status—and existing French colonial law—as morally objectionable and sexually perverse.
Despite these repeated calls for reform, legislative and administrative measures remained stalled. Practical as well as legal obstacles to implementing the civil registry persisted, given the endlessly complex, uneven, and expensive bureaucratic procedures involved.118 Jurists’ lurid accounts of marital consent trials nonetheless did establish an understanding of indigenous legal difference in visceral moral and physical terms. Like polygamy, marital coercion came to instantiate the embodied difference of personal status. French colonial jurists, politicians, and journalists continually invoked it in order to condemn Muslim and customary law as a source of scandal.119 In doing so, they also reproduced romanticized fantasies of legal rescue.
As reactions to the Fatima case demonstrated, settler advocates interested in Algerian autonomy dismissed the ambitious proposals of metropolitan reformers. They focused instead on the political preservation of the purity of French citizenship—and French law. In the process, the newly defined legal domain of Muslim personal status came to represent an abhorrent legal exception that confirmed French sovereignty and the exclusive dignity of the citizen.
The contours of this logic became visible when, beginning in the late 1880s, several deputies and senators issued proposals in favor of extending political rights to “Muslim” subjects, even while their personal status (including the “right” to polygamy and the droit de djebr) was maintained. In making a case for political (as opposed to civil legal) assimilation, metropolitan officials downplayed differences in marriage law. As Senator Isaac explained in his 1893 proposal: “It would not be impossible, after having set aside religious prescriptions maintained strictly within the domain of personal status, to set aside a local legislation, that would only represent, with respect to metropolitan legislation, differences of detail that are justified by a diversity of needs.” Because, as Isaac noted, most aspects of French law already applied to Algerian natives, he claimed it was “an error to say that Algerian Muslims are not submitted to French law.” Their legal status was, in fact, no less exceptional than that of the settlers themselves, who likewise benefited from special legal dispensations.120
By contrast, skeptical colonial jurists insisted that the sexual privileges of Muslim personal status rendered it incompatible with French civil law and citizenship. They evidently had a professional as well as political stake in preserving “Muslim” personal law, in (almost) all of its cultural, religious, and sexual difference. With the transition to civilian rule after 1870, jurists’ own legal status was enhanced by their expanded jurisdiction over Muslim and customary law matters and the specialization of legal expertise that accompanied the creation of a law faculty in Algiers in 1879.121 They affirmed, as did Emmanuel Besson in his prize-winning legal thesis, that “there should not be, on French soil, citizens with contradictory rights. We cannot accept the idea that a French man, just because he is of the Arab or Kabyle race, should be permitted to legally marry four women or sell his prepubescent daughter. That would truly degrade [avilir] the title of French citizen”122 This indexing of the honor of citizenship to the purported (sexual) purity of French civil law condemned Muslims to a state of legal and political exception.
Conflicts over the droit de djebr and mariage impubère further worked to elaborate this expertise and legal oversight. As one former lawyer at the Court of Algiers, Adrien Leclerc, explained at an international conference on colonial sociology in 1900, marital coercion required continual regulation precisely because Muslim “mœurs and customs” could not be altered: “there is nonetheless, one right which should be regulated. It is the droit de djebr, which sometimes has results that are absolutely contrary to the demands of humanity and civilization.”123 This ongoing regulation of Muslim men’s sexual privilege shored up French legal sovereignty by aligning it with universalist principle.
Over the course of Algerian colonization, the legal regulation of the droit de djebr served as a node of colonial governance: it symbolized the military’s “moral” conquest in the 1850s; it asserted French judicial authority over Muslim law in the 1860s; it underwrote efforts to transform property law and institute the civil registry in the 1870s and 1880s; and it offered a moral justification for the exceptional treatment of the indigène in political, criminal, and civil law. French jurists’ accounts of the seemingly timeless fantasy of the patriarchy and perversity of Muslim law were thus firmly anchored in concrete contexts of colonial policy. Integral to the legal imaginary of colonial Algeria, this regulatory imperative had specific political, social, and psychic effects. This chapter shows how the conflicts over the droit de djebr established “Muslim personal status” not as an exception to law, but as an exception within law.124 As sites of intense affective investment, marriage trials worked to expand the purview of French law, rather than establishing a zone beyond it. Not least, they made a fantasy of women’s marital desire into an index of legal civilization and personhood, while making girls and women into subjects of colonial state regulation.
By focusing attention on marital consent, this legal fantasy interpellated Algerian women as legal subjects and, implicitly, as subjects of desire, into the domain of French colonial law. Access to French courts indeed allowed women (and their families) to renegotiate the terms of undesirable unions. These trials over marital constraint hinged on—and were hitched to—the expression of women’s conjugal desire (or its refusal). These cases thus granted Algerian women a very specific legal personhood, at once constituting and circumscribing their agency. In tactically appealing to French tribunals, women were asked to speak about their marital desires. This appropriation of women’s legal strategies thus also underwrote colonial Algerian law, its animating fantasies and telling repressions.
1. Piette, De l’influence de la magistrature algérienne sur la civilisation des indigènes, 19–20.
2. Larcher, Traité élémentaire, 2:419. On the absence of age limits on marriage and the patriarchal principles of guardianship, especially in the Maliki school of jurisprudence that was predominant in colonial Algeria, see Charrad, States and Women’s Rights, 33–34. See also Sonbol, “Adults and Minors in Ottoman Shari‘a Courts.”
3. I will continue to refer to it as the droit de djebr because I am interested in it as a French colonial legal construction.
4. Stoler, Carnal Knowledge and Imperial Power, 44–45.
5. On “colonial legal cultures” and the role of seemingly legally “marginal” subjects and marginal territories in their elaboration see Benton, Law and Colonial Cultures. As Julia Clancy-Smith notes, analysis of gender is largely absent from Benton’s discussion. Clancy-Smith’s own work calls attention to the importance of gender in the jurisdictional politics of plural and colonial legal orders: see “The Intimate, the Familial, and the Local,” and Mediterraneans, 390. For a critique of historians’ celebration of agency see Johnson, “On Agency.”
6. Portalis, Discours, rapports et travaux, 168–69. The strictures were only moderately scaled back in 1897 and again in 1907, when the age of marital majority was established as twenty-one. On the relative stringency of these provisions see Glendon, Transformation of Family Law, 41–43.
7. For an annulment case from eighteenth-century Constantine see Grangaud, “Prouver par l’écriture.” On women’s use of Ottoman courts see Tucker, In the House of the Law.
8. For discussions of the 1891 and 1929 laws in British India see Pande, “‘Listen to the Child’”; Sinha, Colonial Masculinity, and Specters of Mother India; Burton, “From Child Bride to ‘Hindoo Lady.’”
9. See D. Scott, “Colonial Governmentality,” and, more recently, Pierce and Rao, Discipline and the Other Body; Stephens, Governing Islam. On twentieth-century developments see Sambron, Les femmes algériennes pendant la colonisation; MacMaster, Burning the Veil.
10. New categories of personhood thus became “a place of contest among diverse interest groups in colonial society.” See Merry, “Law and Colonialism,” 891.
11. On women’s use of colonial courts, especially in cases of divorce, see R. Roberts, “Representation, Structure, and Agency”; Lydon, “Obtaining Freedom.” On women and forum shopping see Sharafi, “Marital Patchwork of Colonial South Asia.”
12. Brower, Desert Named Peace.
13. Christelow, Muslim Law Courts.
14. Hugonnet, Souvenirs d’un chef de Bureau arabe, 22–26.
15. Rapport Cercle d’Orléansville / Div. d’Alger (January 1852), in ANOM 103 I 5 (71 MIOM 504).
16. Rapport Cercle d’Orléansville / Div. d’Alger (July 1856), in ANOM F 80 475. It mentions four different qadis who were issued this fine. The report explicitly invokes a rhetoric of “enlightenment.”
17. See “İdne’s Story” in Peirce, Morality Tales. This account, which focuses on the importance of social consensus in the deliberations of the Ottoman court of Aintab, is obviously distinct from how French officers administered colonial government. See also Sonbol, “Adults and Minors in Ottoman Shari‘a.”
18. Rapport Cercle d’Orléansville / Div. d’Alger (June 1852), in ANOM 103 I 5 (71 MIOM 504).
19. Rapport Cercle d’Orléansville / Div. d’Alger (August 1856), in ANOM 103 I 5 (71 MIOM 504).
20. On the Council of Jurisprudence see Christelow, Muslim Law Courts, 110–12.
21. Proceedings of the Conseil de jurisprudence musulmane (1855/56), in AN 19950167/12.
22. On the decision and Randon’s circular see Christelow, Muslim Law Courts, 126–27.
23. The French Cour de cassation only recognized “marital rape” as a crime in 1990.
24. Cercle de Blidah / Div. d’Alger, 3rd trimester, 1856, and Annual Report, 1856. And condemnations of qadis, in Rapport Cercle de Ténès / Div. d’Alger (January–February 1856), in F80 475.
25. Rapport Cercle d’Orléansville / Div. d’Alger (October 1859), in ANOM 103 I 5.
26. Rapport Cercle d’Orléansville / Div. d’Alger (June 1860), in ANOM 103 I 5.
27. Christelow, Muslim Law Courts, 178. Napoléon III’s “royaume arabe” policy was based on a promise to reform the organization. A new decree was passed in 1866.
28. The reform also appears to have had a significant effect on women’s claims to inheritance rights. Women contested the formation of religious family endowments (habous), which effectively barred them from claiming their shares. See, for example, Aicha bent Mohamed v. Allal ben El Sid Mohamed, Cour d’Alger (April 9, 1862), Estoublon, Jurisprudence algérienne, vol. 3 (1862), 23–24; Aïcha bent Messaoud v. Abderrahman el Bourguerrami, Cour d’Alger (July 30, 1862), ibid., vol. 3 (1862), 42–43. In other words, women’s inheritance rights played a large role in the “attack on Muslim family endowments.” Of course, women could be found on both sides of these legal battles, but the terms in which they were presented before the courts were as battles for women’s inheritance. See Powers, “Orientalism, Colonialism, and Legal History”; Lazreg, Eloquence of Silence, 46, 100.
29. On the importance of colonial debates about procedure see Benton, “Colonial Law and Cultural Difference.” On their significance for transforming shari‘a see Hallaq, Sharī‘a. For parallel developments in a noncolonial context see Messick, Calligraphic State.
30. Ahmed ben Abderrahman v. Mohamed ben Amir, Cour d’Alger (June 11, 1862), Jurisprudence algérienne, vol. 3 (1862), 34–35.
31. El Abassi ben Ahmed v. El Seïd ben Abderrahaman, Cour d’Alger (July 30, 1862), ibid., vol. 3 (1862), 46–47.
32. “Courrier du Palais,” L’Akhbar, December 13, 1863, 2–3.
33. Mani, “Contentious Traditions.” Also, Spivak, “Can the Subaltern Speak?”; Lazreg, Eloquence of Silence, 46.
34. Messaoud bent Ahmed v. El Taïeb, Cour d’Alger (June 2, 1863), Estoublon, Jurisprudence Algérienne, vol. 3 (1863), 18–19. Women’s families also made less than plausible claims regarding marriage promises. They were also turned down by the court. See Sliman v. Khadidja bent Mohamed (April 17, 1867), ibid., vol. 3 (1867), 13–14.
35. Alia bent Caddour v. Saïd ben el Milliani, Cour d’Alger (June 27, 1867), ibid., vol. 3 (1866), 35.
36. Ben Barka ben Kouïder v. Saïd ben el Miliani, Cour d’Alger (May 1, 1867), ibid., vol. 3 (1867), 16–17.
37. See, for example, Bernou ben Selimi v. Bourahla ben Mohammed, Ch. des appels entre musulmans (February 22, 1869), Bulletin judiciaire d’Algérie, 1869, 39–42 (hereafter BJA). In this case, the girl’s father brought the case before the French courts, rather than the Majlis.
38. Villot, “Études algériennes,” 406–7.
39. L.-M. Eyssautier, “Projet de loi sur le mariage indigène,” Revue algérienne et tunisienne de jurisprudence [hereafter RA], pt. 1, 1897, 94. Ageron, Les Algériens musulmans, 1:210.
40. E. Mercier, La propriété foncière musulmane en Algérie, 48. On the trans-imperial circulation of this French colonial legal theory see Pravilova, “Property of Empire.”
41. Piette, De l’influence de la magistrature algérienne sur la civilisation des indigènes, 15.
42. Ibid., 19.
43. Ibid., 33.
44. Conseil supérieur de gouvernement, Procès-verbaux (November 1877), 326. And the earlier discussion, Conseil supérieur de gouvernement, Procès-verbaux (January 1875), 236–44.
45. Conseil supérieur de gouvernement, Procès-verbaux (November 1878), 205–6.
46. Report and Discussion in Conseil supérieur de gouvernement, Procès-verbaux (December 1879), 395–435.
47. On family names as an attribute of sovereignty see Scott, Tehranian, and Mathias, “Production of Legal Identities Proper to States.” In France, Noiriel, “L’identification des citoyens.” For an instructive comparison see Messick, “Written Identities.”
48. “Projet de loi sur l’état civil des indigènes musulmans de l’Algérie,” JO, Doc. Parl., Chambre, March 18, 1880, annexe 2469, 165.
49. Jacques, “Rapport fait au nom de la commission chargée d’examiner le projet de loi sur l’état civil des indigènes musulmans de l’Algérie,” JO, Doc. Parl., Chambre, February 12, 1881, annexe 3326, 154–59. See also Ageron, Les Algériens musulmans, 1:176–83. And Ghabrial, “Le ‘fiqh françisé.’”
50. Bourde, À travers l’Algérie, 256.
51. Zeys, Essai d’un traité méthodique de droit musulman, 1:11. For an example of jurisprudence on the question see Min. pub. v. Baza (Zine ben Taïeb) et Merine (Abdelkader ben Zenouki), Tribunal de Sidi Bel Abbès (Ch. Corr.), RA, pt. 2, 1892, 197–201. The court concluded that there was no legal sanction for failing to register a marriage or divorce. See also Barrière, Le statut personnel des musul-mans, 302–9. On marriage as a private matter, independent of the state in Islamic law, see Charrad, States and Women’s Rights, 32–33.
52. Jacques, “Rapport fait au nom de la commission chargée d’examiner le projet de loi sur l’état civil des indigènes musulmans de l’Algérie,” JO, Doc. Parl., Chambre, annexe 3326, February 12, 1881, 157.
53. On married women’s names see “Commission centrale (Constantine). État civil. Indigènes musulmans. Procès-verbal,” November 12, 1885; and Gov. Gen. to Garde des Sceaux “Recensement des femmes mariées,” December 24, 1885, dossier État Civil, in AN 199950167/10.
54. See “28 Avril 1887, Loi ayant pour objet de modifier et de compléter la loi du 26 juillet 1873 sur l’établissement et la conservation de la propriété en Algérie,” in Estoublon and Lefébure, Code de l’Algérie, 1:727–42.
55. Ibid., 1:739.
56. “10 November 1887, Instruction du Gouverneur Général sur le mode de reconnaissance des biens indivis entre familles indigènes et sur le partage de ces biens, en exécution de la loi du 28 avril 1887,” ibid., 1:781. For a critique of this creative, and according to some, illegal definition of the “family” see Pouyanne, La propriété foncière en Algérie, 219–22.
57. See, for example, Maurice Collin, professor of administrative law at the law faculty of Algiers, in Pensa, L’Algérie, 148–51. E. Mercier, La propriété foncière musulmane en Algérie; Larcher, Traité élémentaire (1903), 2:330–39; Boyer-Banse, “La propriété indigène dans l’arrondissement d’Orléansville.” On the long-term effects of the destruction of native property institutions see Sari, La dépossession des fellahs; Lazreg, Emergence of Classes in Algeria.
58. See Burdeau, L’Algérie en 1891, 167. And, Franck-Chauveau, “Propriété foncière en Algérie,” JO, Doc. Parl., Sénat, March 29, 1893, annexe 121, 270–82. On these criticisms see Sessions, “Débattre de la licitation.”
59. “Loi relative à la propriété foncière en Algérie, 16 fevrier 1897,” in Estoublon and Lefébure, Code de l’Algérie, 2:61–62.
60. For parallel arguments about the difficult separation of “market” and “family” law in colonial India see Birla, Stages of Capital; Sturman, “Property and Attachments,” and Government of Social Life in Colonial India; Stephens, Governing Islam.
61. On liberal failure and new colonial alibis see Mantena, Alibis of Empire.
62. On these shifts see Gentil, “Administration de la justice musulmane”; Collot, Les institutions de l’Algérie, 181–90; Christelow, Muslim Law Courts. On the administrative challenges that accompanied these shifts see AN 20020495/8, 9, 10.
63. I am indebted to Julia Clancy-Smith’s help in thinking through this point.
64. Kheïra bent Mohamed v. Ahmed ben Mohamed, Cour d’appel d’Alger (January 29, 1878), BJA, 1878, 235–36. On women’s use of French courts in such cases see Charnay, La vie musulmane en Algérie, 22–32.
65. Ahmed ben Ali ben Yklef v. Abd-el-Kader ben Mohamed, Cour d’appel d’Alger (December 10, 1877), BJA, 1878, 28–29.
66. This was the position taken by Charles Marchal’s Bulletin judiciaire d’Algérie. See, for example, the note on Ahmed ben Ali ben Yklef v. Abd-el-Kader ben Mohamed, Cour d’appel d’Alger (December 10, 1877), BJA, 1878, 28–29.
67. Sautayra and Cherbonneau, Droit musulman, 1:ii–iii. For a critical discussion of the juridical uses of their text see Bontems, “Les tentatives de codification du droit musulman.” David Powers nonetheless suggests that their attitudes were more sympathetic to the tenets of Islamic law than some of their successors, such as Zeys, in Powers, “Orientalism, Colonialism, and Legal History.” On the effects of “textualization” on Muslim law see Hallaq, Sharī‘a; Messick, Calligraphic State; Emon, “Codification and Islamic Law”; Hussin, Politics of Islamic Law; Cohn, Colonialism and Its Forms of Knowledge; Stephens, Governing Islam.
68. Flory and Henry, L’Enseignement du droit musulman, 116.
69. Sautayra and Cherbonneau, Droit musulman, 1:vi–vii.
70. Ibid., 1:70–73.
71. Ibid., 1:129.
72. Hadja Kamla bent El-Hadj v. El-Menouar ben Ahmed, Cour d’appel d’Alger (April 26, 1880), BJA 1881, 77.
73. Fatima bent El Arbi v. Mouloud ben El Arbi, Cour d’appel d’Alger (June 27, 1881), BJA, 1882, 79.
74. Ibid., 76.
75. Esposito, Women in Muslim Family Law, 16–17.
76. Demoiselle Kheira v. Kheira père, Cour d’appel d’Alger (April 9, 1884), BJA, 1884, 131–33.
77. Zeys, Essai d’un traité méthodique de droit musulman, 1:11. On Zeys’s career see Renucci, “Le meilleur d’entre nous?”
78. Mohammed ou Saïd v. Min. pub., Cour d’appel d’Alger, Ch. Corr. (May 2, 1887), RA, pt. 2, 1888, 10–12, and El Aïb ben Aïssa v. Min. pub., Conseil permanent de révision d’Alger (February 12, 1891), RA, pt. 2, 1891, 197–201. See also JTA, July 26, 1896; May 9, 1897; January 29, 1902. These condemnations appeared to be more frequent before military tribunals. See, for example, the records of the military tribunal of the division of Constantine in 1891, Service Historique de la Défense 5J 499.
79. On the history of the indigénat see Merle, “Retour sur le régime de l’indigénat”; Mann, “What Was the Indigénat?”; Thénault, “Le ‘code de l’indigénat’”; Saada, “Law in the Time of Catastrophe.”
80. Larcher, Traité élémentaire (1903), 2:121. Subsequent texts made the same argument; see Aumont-Thiéville, De l’indigénat en Algérie, 165; Marneur, “L’indigénat en Algérie,” 50.
81. Larcher, Traité élémentaire (1903), 2:99.
82. For examples of the earlier vision of the Kabyle woman as having greater freedom see Baudicour, “Des indigènes de l’Algérie,” 168–69; Daumas, Moeurs et coutumes de l’Algérie. On these broad shifts see Ageron, Les Algériens musulmans, 2:885–86; Lorcin, Imperial Identities, 213.
83. Hanoteau and Letourneux, La Kabylie et les coutumes kabyles, 2:148. On the history of the works see Hannemann, “La mise en place du droit kabyle.”
84. Hanoteau and Letourneux, La Kabylie et les coutumes kabyles, 2:149.
85. I thank Janet Halley for helping me to think through this connection.
86. Besson, “Étude comparative sur la constitution de la famille,” 284. And, La législation civile de l’Algérie, 92–93. Maine’s work was translated into French in 1874; see Maine, L’ancien droit considéré dans ses rapports avec l’histoire de la société primitive. On Maine’s importance in shaping colonial family law see Kennedy, “Savigny’s Family/Patrimony Distinction”; Mantena, Alibis of Empire; Stephens, Governing Islam.
87. Wahl, L’Algérie, 195.
88. Journal des tribunaux algériens, May 7, 1899. On the high rates of acquittal see Vandier, Histoire de la Cour d’Alger, 40.
89. The Journal des tribunaux algériens frequently reported on trials of husbands for indecent assault. See, for example, case summaries on April 19, 1891; March 9, 1892; May 17, 1893; July 26, 1896; May 9, 1897; May 7, 1899; July 14, 1901; and January 29, 1902. The Revue algérienne also covered some of these trials: El Aïb ben Aïssa v. Min. pub., Con. Perm. d’Alger (February 12, 1891), RA, pt. 2, 1891, 197–201; Cour d’assises d’Alger (June 24, 1895), RA, pt. 2, 1895, 398. On forensic evidence and sexual crime see Kocher, De la criminalité chez les Arabes, 188–208; Gouriou, “Le sexe des indigènes”; Ghabrial, “Traumas and Truths of the Body.”
90. Louis Calmeilles, “La femme Kabyle,” La Revue nord-africaine illustrée 1, no. 10 (1902): 317–20. See also Maxime Massoni, “Fatima la répudiée,” La Revue nord-africaine illustreé 3, no. 12 (1904): 427–31.
91. Berthet, “L’amour au désert,” Le Temps (October 9, 1891, and after).
92. Alloula, Colonial Harem.
93. See Le Temps, January 27 and February 28, 1892.
94. Hanoteau and Letourneux, La Kabylie et les coutumes kabyles, 2:212–20. For a contemporary account of the predicament, written by a juge de paix from Kenchala, see Gentil, “Administration de la justice musulmane,” 346–47.
95. Francisque Sarcey, “Chronique,” Le XIXe siècle, February 12, 1892.
96. Pierre Foncin, “Fatima et la politique française en Algérie,” La revue bleue 49, no. 6 (February 6, 1892): 182–84; “Le cas de Fatima,” La revue bleue 49, no. 6 (March 5, 1892): 319; Clarisse Coignet, “L’Algérie et le gouvernement des indigènes,” La revue bleue 49, no. 25 (June 18, 1892): 807–12; Alfred Rambaud, “L’enseignement primaire chez les indigènes musulmans d’Algérie notamment dans la Grande-Kabylie,” Revue pédagogique 20, no. 2 (1892): 111–33.
97. Francisque Sarcey, “Chronique,” Le XIXe siècle, January 20, 1892. Critical responses to this “Parisian” intervention into Algerian matters included C. Allan, “La justice à la Française,” La Vigie algérienne, January 29, 1892; V. de Cottens, “Choses d’Alger et de partout: Tue-le!,” La Vigie algérienne, February 2, 1892.
98. For the metropolitan press see Jean Frollo, “Un mariage Algérien,” Le Petit Parisien, January 29, 1892; “Fatima la Kabyle,” L’Attaque, February 23, 1892; La Croix, February 25, 1892; Léon Millet, “Justice algérienne,” La Justice, February 25, 1892; “La belle Fatima,” La Lanterne, March 1, 1892; “Le mariage de Fatima,” La Presse, March 4, 1892.
99. See, for example, Jules Dietz, Journal des débats, January 26, 1892, 1; Aumerat, “La monitrice Fatima,” February 13, 1892; Aumerat, “Toujours la monitrice,” La Dépêche algérienne, February 21, 1893; Émile de Samie, “L’affaire Fatima,” L’Indépendant de Mascara, February 14, 1892.
100. Jean Frollo, “Un mariage Algérien,” Le Petit Parisien, January 29, 1892; “Un mariage algérien,” Moniteur de l’Algérie, February 6, 1892; Charles Marchal, “À propos de Fatima,” Le Petit colon, February 16, 1892; Marchal, “Le cas de Fatima,” Le Petit colon, February 17, 1892; Marchal, “Un conte de la Mère-L’Oie,” Le Petit colon, February 18, 1892; Marchal, “Le droit musulman sur les mariages,” Le Petit colon, February 20, 1892; Marchal, “Conte de Grand’Papa,” Le Petit colon, February 26, 1892; Marchal, “Dernier mot,” Le Petit colon, February 29, 1892.
101. Lissagaray, “Fatima, la Kabyle,” La Bataille, January 26, 1892, 1; Paul de Cassagnac, “Une femme vendue,” L’autorité, January 31, 1892; Senex, “À propos de Fatima la Kabyle,” La Dépêche algérienne, February 3, 1892.
102. Momus, “Le cas de Madame Fatima,” Le Charivari oranais, February 21, 1892; “Le cas de Fatma, jugé par Phalène,” Le Charivari oranais, February 28, 1892.
103. Ali Ibahouten v. Tahar ou Rhamoun, Tribunal de Tizi-Ouzou (February 26, 1892) in RA, pt. 2, 1892, 76–80.
104. Robert Estoublon, “Mariages musulmans et kabyles,” RA, pt. 1, 1892, 86.
105. E. Morinaud, “Editorial,” Le Républicain de Constantine, March 3, 1892; “Lettre d’un musulman,” Le Républicain de Constantine, March 4, 1892; E. Morinaud, “Au panier!,” Le Républicain de Constantine, March 7, 1892; A. Algiéri, “Justice musulmane,” Moniteur de l’Algérie, March 4, 1892; Aumerat, “À propos du droit musulman,” La Dépêche algérienne, March 5, 1892. See as well “Revue de la presse algérienne,” La Vigie algérienne, March 3, 1892. These discussions of the honor and dignity of French magistrates resonate with Mrinalini Sinha’s discussion of the Ilbert Bill in India; see Sinha, Colonial Masculinity.
106. Estoublon, RA, 1892, 90–91. The jurist and journalist Charles Marchal issued a similar proclamation in “Nécessité de codifier les lois musulmanes en Algérie,” Le Petit colon, February 22, 1892. Isaac cited Estoublon’s article verbatim in his senatorial report, Alexandre Isaac, “Justice française et musulmane; Police et sécurité,” JO, Doc. Parl., Sénat, February 28, 1895, annexe 36, 218–19. Estoublon’s article continues to be cited in recent accounts; see Bontems, “Les tentatives de codification du droit musulman,” 118.
107. Auclert, Les femmes arabes en Algérie, 46–47. On the ambivalences of Auclert’s text see Clancy-Smith, “La Femme Arabe”; Eichner, “La citoyenne in the World”; J. W. Scott, Only Paradoxes; Lehning, To Be a Citizen.
108. Auclert, Les femmes arabes en Algérie, 49.
109. Pensa, L’Algérie.
110. Burdeau, L’Algérie en 1891, 214.
111. Ibid., 222.
112. “Circulaire du Gouverneur Général relative aux déclarations de mariage et de divorce des indigènes musulmans et à l’application des peines de l’indigénat en cette matière, 24 janvier 1896,” in Estoublon and Lefébure, Code de l’Algérie, 2:15. And follow-up by the procureur général, February 1, 1896, 16.
113. Louis-Auguste Eyssautier, “Projet de loi sur le mariage indigène,” 100. Eyssautier also cited an 1895 circular issued by the prefect of Alger, dated October 8, 1895.
114. Ibid., 102.
115. Étienne, “Le droit de ‘djebr’ et le mariage des impubères.”
116. Barbet, “La femme musulmane en Algérie,” RA, pt. 1, 1903, 169. For some of Barbet’s Algerian “impressions,” in particular an account of a “Kabyle wedding” of a fifteen-year-old girl and a sixty-year-old man, see Barbet, Au pays des burnous, 245–53.
117. Barbet, “La femme musulmane en Algérie,” 177.
118. The confusions and abuses of the registry when it came to marriage were numerous and extensive; see Saïd ben Achour, “Des actes de l’état-civil reçus par les adjoints indigènes et de leurs irregularités,” Le Moniteur des justices de paix d’Algérie 1 (1886): 46–47; Kateb, Européens, “indigènes” et juifs, 114–15.
119. This logic resembles the “repugnancy principle” as it operated in British colonial regulation of customary law in Africa. On its productive function see Mamdani, Citizen and Subject, 63.
120. Proposition de loi par M. Isaac, JO, Doc. Parl., Sénat, annexe 134, April 4, 1893, 287. Isaac referred to both the “old colonies” and French India as examples.
121. Vatin, “Exotisme et rationalité”; “Science juridique et institution coloniale”; Blévis, “Juristes et légistes au service de l’état colonial” and “Une université française en terre coloniale”; Auzary-Schmaltz, “La magistrature coloniale.”
122. Besson, La législation civile de l’Algérie, 340.
123. Leclerc, “Des indigènes musulmans d’Algérie,” 114. And his “De la condition de la femme musulmane.”
124. On colonial law and the “state of exception” see Hussain, Jurisprudence of Emergency; Benton, Search for Sovereignty, chap. 6; Spieler, Empire and Underworld; Saada, “Law in the Time of Catastrophe.”