Corporealizing Codes

As we have seen, Algerian colonial jurists came to see Muslim men as stubbornly attached to their personal status because it accorded them patriarchal sexual privileges such as polygamy, repudiation, and forced marriage. The 1873 Warnier Law that territorialized French property law had set aside this new domain of “family law” as a distinct jurisdiction.⁶ Land transactions in selected areas were made subject to French civil law, while marriage, divorce, and inheritance “as matters of the freedom of conscience, of religion, of the intimate life of families” were to be regulated by Muslim and customary law.⁷

While the Warnier Law was unevenly applied across Algerian territory, the distinction that it drew between a territorialized property law and personal status soon became a fixture of legal reasoning and political argument about Muslim Algerians. It structured the laws reorganizing the judicial system in 1886 and 1889 and nascent debates about extending political rights to Algerians. In colonial legal discourse, personal status condensed and confused religious attachment and patriarchal sexual rights.

The supposed “institutions” of polygamy, child marriage, divorce, and repudiation thus became metonyms for Muslims’ conflation of religious and civil law. They exemplified an implicitly embodied connection between sex, religion, and legal status. Charles Roussel, who had been a magistrate in Algeria in the 1860s, would thus claim in 1875, “Because their religious status is confounded with their civil status, naturalization [naturalisation] touches their faith in modifying their civil status. Polygamy, divorce, and repudiation, which it eliminates, are fundamental institutions in Islam, the abandonment of which implies a certain heresy.”⁸ These clichés structured arguments about Algerians’ resistance to full legal assimilation. The prominent specialist of international private law André Weiss similarly viewed naturalization in terms of the loss of men’s sexual rights: “for him no more divorce by mutual consent or simple repudiation, no more polygamy.”⁹ Jurist Albert Hugues described code switching in analogous terms: “If, in becoming a citizen, the Muslim remains in control [maître] of his religion [culte], it is on condition that he free himself [se dégager] from those consequences which French law condemns, such as polygamy, repudiation, wife purchase, paternal constraint. It is, however, these rights that are cherished in the heart of every believer.”¹⁰ According to this at once racializing and secularizing logic, the Algerian man’s embodied investment in Muslim law made legal assimilation impossible. In studying mixed marriage, jurists imagined and explored this (im)possibility.

As much existing literature shows, concerns about interracial sex, concubinage, and mixed-race children were crucial nodes of colonial governmentality. Social policy and policing of these relationships elaborated complex hierarchies of race, class, and gender in both colonial and metropolitan contexts.¹¹ The juridical conflicts associated with mixed marriage demonstrate how colonial jurists increasingly represented Muslim law, while nominally based on a religious rather than racial difference, as intimately linked to bodies.¹²

The mixed-marriage question thus sheds light on the colonial history of secularism and the legal production of a secular European as well as Muslim body and sex. In these Algerian cases, administrators and jurists elaborated fantasies of Muslim law as bound to men’s sexual rights and women’s sexual degradation by polygamy, repudiation, and child marriage. They projected those fantasies onto the bodies of Muslim persons, while casting French civil law as integral and dignified, especially in its treatment of women. In the process, Muslim personal status and French civil status each assumed an embodied meaning, combining and confusing racial, religious, and sexual difference. This chapter illuminates an apparent paradox: how the legal rhetoric of secularism and religious freedom shaped a corporealized conception of Muslim personal law and sex.¹³

Conversion, Marriage, and the Secularization of Religious Law

As a religious jurisdiction internal to the French state’s system of secular law, Muslim personal status set aside marriage, divorce, and inheritance as matters to be adjudicated by state-appointed Muslim jurists.¹⁴ The religious basis of Muslim personal status was nonetheless ambiguous. It could not be acquired, and it could only be abandoned according to the procedures outlined in the 1865 sénatus-consulte. Persons were born into Muslim personal status by virtue of the fact that they had “indigenous” ancestors. While religious sensibility served as its purported ground, the status was, in fact, based on and limited by “blood ties” of filiation to former inhabitants of the Regency of Algiers. In this sense, it was a jus sanguinis with a religious name. Religious conversion alone (i.e., without recourse to official “naturalization”) did not alter Muslim legal status. Inversely, converts to Islam did not acquire Muslim personal status. Conversion thus remained a matter of private personal faith, not public law. As a secular state matter, legal status was thus distinguished from individual belief.¹⁵

Because neither individuals nor clerical authorities could alter personal status, converts to Christianity remained legally Muslim. (Some jurists would hence argue that a more accurate description in this case was “indigène catholique.”)¹⁶ Christian converts to Islam likewise kept their French or other European nation’s civil status. Muslim personal status was at once “ethno-political” and implicitly religious, in part because secular public law claimed independence from what it designated as religious matters.¹⁷ In other words, the de facto ethnicization of Muslim status was a partial effect of French civil law’s claim to secularity.¹⁸ The ambiguity of Muslim personal status—as at once religious and not—actually made it an effective node of Algerian colonial government.¹⁹ As I show in this chapter, legal accounts of Islamic faith as implacably bound to a gendered juridical organization of sex and kinship consolidated this ethnicized understanding of personal status. Because it lacked a national territorial referent, that status became anchored in Muslim bodies and affects instead.

In contrast to conversion, marriage had profound effects on personal status, especially for women. A French woman’s marriage to a foreigner altered her nationality. Article 12 of the Civil Code established that a foreign woman who married a French man became French, while article 19 determined that “a French woman who marries a foreigner follows the condition of her husband.”²⁰ Up until a 1927 reform, the Civil Code privileged the “legal unity” within the conjugal family.²¹ This model of marriage entailed both a specific legal construction of conjugality (as distinct from extended kinship) and a related subordination of married women to their husbands’ law.

By the end of the nineteenth century, new divorce laws, rising rates of immigration and emigration, concerns about demography, and the development of organized feminism put new pressures on the principle of conjugal legal unity. Jurists and feminists debated married women’s relationship to nationality at international private law conferences, feminist congresses, and in proposals for new civil codes and nationality laws. Some small reforms in 1889 helped widows and divorcées regain French nationality and protected women who did not gain nationality by marriage. Otherwise, the principle of marital unity based on patriarchal prerogative remained in place. In one of the many dissertations devoted to the topic at the end of the nineteenth century, Albert Cauwès highlighted how legal uniformity in marriage was wedded to sovereignty. As he explained, “Marital power is an essential factor in the principle of nationalities: the state must, in itself, assure unity everywhere.” In his view, “the power that it attributes to the husband to modify the original nationality of his wife by marriage” was a “translation” of the state’s power.²² The conjugal family both constituted and expressed this coincidence between sovereign and marital authority.

Colonial mixed marriages raised pointed questions about this patriarchal principle, testing the unity of law within both the family and the state. The problems could be seen, to use Cauwès’s language, as “translations” of one another. More specifically, such marriages made the lacunae and contradictions of colonial legal pluralism visible. Jurists, politicians, and administrators continually grappled with how to assign legal status to the husbands, wives, and children whose kinship relations were governed by conflicting codes: What was the nationality of a Spanish woman who married a man with Muslim status? What would happen to a woman with French civil status who converted in order to marry a man with Muslim status? Would she legally follow her husband’s status to become Muslim? And what legal status would be assigned to their children?

At the beginning of colonization, administrators and jurists improvised answers to these questions. By the end of the nineteenth century, they devised fixed rules with which to manage them. As often as not their “fixes” created new problems in turn. By juxtaposing conflicts over the course of the nineteenth century, we grasp the import and extent of this shift.

Early Questions

On November 22, 1833, the civil intendant of Algiers wrote to the minister of war with an urgent question. He wondered whether Mohammed ben Kertilon, a soldier in the Zouaves, should be allowed to marry an Italian Catholic woman, Marie Maurice. Based on conditions that she set, ben Kertilon agreed to convert and marry before a French civil official. In his confidential letter, the civil intendant Genty de Bussy expressed concern that the marriage could be perceived as proselytism: “Might one not see in this lone event a tendency toward the propagation of our religious doctrines? Might it not shock the susceptibility of the Maures?” Concerned about provoking a negative emotional reaction, he warned that “the most intense passions are in play.” Looking ahead, he thought that the issue would likely recur “in a wholly different manner” when Frenchmen and Europeans sought to marry Mauresques. To effectively govern these feelings, he urged, “we must prepare in advance.” In a marginal note, the minister agreed, suggesting that the question was “very serious and deserving of political consideration.”²³

Because ministerial officials sought to protect both religious freedom and local religious sensibilities, the specific legal solution to this sensitive affair remained unclear. The case was forwarded to legal adviser Charles Paravey, who, as we saw in chapter 1, had experience with the complex legal situation on the ground after drawing up an influential report on Algeria’s judicial organization in 1832. Now working at the Ministry of War, he explained why outlawing mixed marriages was unreasonable—and illegal. While the government “might, up to a certain point, be interested in not allowing this cause of irritation and disturbance to multiply,” Paravey thought that it was “absolutely impossible to refuse a Muslim the right to marry a Catholic in converting to her religion.” In banning the marriage, the government would be seen as “intolerant and arbitrary.”²⁴ The minister agreed, noting that “as long as both parties were in conformity with the law,” no further action could be taken.²⁵ The ministry instructed Genty that the marriage could proceed. But it also underscored the importance of limiting future conversions, as part of its broader strategy of religious government. The minister’s confidential letter to Genty outlined the policy, which in taking local sensibilities seriously also subordinated Christian religious interests to state concerns. “Foreign missionaries residing in Africa by agreement of French authorities, like the French priests who are supported by state funds,” had to understand that the government could not “tolerate any system of proselytism which would be contrary to the mutual understanding [bonne intelligence] that it is important to maintain between all the classes of the population.”²⁶

This affair predated the official commitment to colonization and subsequent juridical organization in 1834. It nonetheless indicates a prevailing circumscription regarding “mixed marriages” at the outset of colonization. Official discourse framed the question as politically sensitive on account of the presumptive religious “susceptibility” of Algerian Muslims. In that ben Kertilon’s conversion was considered a matter of private conscience separate from civil law, the marriage itself appeared to be unproblematic and hence beyond the purview of administrative interference.

Notwithstanding this commitment to religious freedom, ministerial authorities could have raised questions about the legal effect of the contract on Marie Maurice’s nationality. They did not. The answers to these questions were, however, far from settled, as a case that appeared before the Tribunal of First Instance of Algiers in 1836 soon showed. This trial featured prominent members of a local elite family. Drawing on international private law principles, the court decided that a French woman would be subject to the Muslim legal status of her husband, even if the marriage did not make her into a native Algerian. When the case was taken up on appeal, the court confirmed that while she could not become an indigène by marriage, she and her child would be subject to “Muslim law.”²⁷

The case involved Si Hamdan ben Abderaman Bourkaïeb, an Algerian notable who had worked with the French after the capitulation in 1830. Bourkaïeb was hastily appointed to the position of “agha of the Arabs” on July 8, 1830, but soon fell into disgrace with French authorities. Twice exiled to Paris, he married the daughter of a French consul, Josephine Zabel, even though he already had two wives. Ailing, he returned with Josephine to his residence in Algiers, after which he soon died, leaving behind a considerable fortune.²⁸ He and Josephine had one son, whose personal and financial trusteeship was the fundamental question at issue in the trial. Before his death, Bourkaïeb had, in a document drawn up before a qadi, named his nephew Mustapha, not Josephine, as administrator of his son Ismaël’s inheritance. Because a French official had performed their marriage in Paris, Josephine claimed that French law should govern their marital regime and its effects on the person and fortune of her son. The court considered whether Bourkaïeb’s acceptance of the French forum represented an abjuration of the “rights that he holds based on his birth and the capitulation of 1830.”²⁹ Would the French forum determine the law’s content as well?

The first court’s reasoning drew on international law or jus gentium—namely, that according to the principle of lex fori, “the form of a contract is determined by the place in which it occurs.” The Tribunal of First Instance thus found that Bourkaïeb could contract marriage before French authorities (as no qadis could be found Paris) while maintaining his own civil law status. As a Muslim, he contracted under “Moorish law,” which permitted marriages between Muslim men and Christian women. The court also decided that because “a woman follows the condition of her husband,” his widow would likewise be subject to this law. She remained Catholic, but the marriage and its effects would be regulated by her husband’s law. The initial decision explained that, “according to French law [i.e., article 19 of the Civil Code], because she became the wife of a Muslim, she must be governed by ‘Moorish law,’ at least relative to the effects of her marriage.” The court had little patience for Josephine’s attempt to reclaim French legal status. Indeed, it met her demand with outright disdain, noting her consent to the marriage in the first place. In its view, “she engaged in advance to submit” to that law, “in uniting her destiny to that of a man who she knew benefited from civil rights different from her own.”³⁰ Her status as widow and mother did not sway the decision. While the court granted Josephine custody over Ismaïl’s young person, it upheld Mustapha’s authority as administrator of his possessions.

Josephine appealed, but she made no further headway in securing French civil status for the marriage. The court did, however, use the occasion to clarify its effects: “One cannot conclude from this marriage that it had the effect of rendering the dame Zabel indigenous to the territory of Alger, as the first judge seems to have established in his first judgment, since the quality of indigène can only belong to a person who was born in this territory.” In other words, the court placed a legal limit on “local” status: one had to be born an indigène; one could never become one. The Superior Tribunal of Algiers nonetheless affirmed that “women follow the condition of their husbands.” Zabel’s marriage to Hamdan Bourkaïeb and its effects were “Muslim.”³¹

This early decision is remarkable from the perspective of subsequent jurisprudence. By the last third of the nineteenth century, jurists and politicians actively worked to protect the French legal status embodied by “European” women and occasionally by Algerian women who had been “naturalized.” They upheld the precedence of French civil law over a subordinate and exceptional Muslim law. Unsurprisingly, they castigated the Tribunal of Algiers’s early finding in the Bourkaïeb case.³² What had made legal and political sense at the outset of colonization was later dismissed as an idiosyncratic error in juridical thinking, a misplaced analogy. Later mixed-marriage cases instead appealed to “European” women’s status in order to affirm the hierarchical distinction between “French” and “Muslim” law. By contrast, Josephine Zabel’s case preserved the Civil Code patriarchal principle: a wife had to follow the law of her husband, even when he and his law were “Muslim.”

Categorical Confusion

The civil registry carries occasional traces of marriages between Algerian men and “French” and “European” women in the decades that followed. In 1849, the military interpreter Hassan ben Mohammed obtained permission to marry Julie Frédéric, who had been born in the department of Orne. Her parents, who now lived in Guelma, gave their consent. In Miliana in 1854, Ehmed ben Hadji, a merchant from the Mzab, married Elizabeth Rivoire, a sixteen-year-old minor who had been born in Lyon. Her father had died, but her mother gave her consent. In 1855, Jean-Baptiste Haoussin (Emhamed Ben Haoussin) married a twenty-two-year-old Swiss woman, Marie Borgéat, in Koléa. The name “Jean-Baptiste” indicated the husband’s prior conversion.³³

The civil registry gave no indication of the official concern provoked by Jean-Baptiste’s conversion by the bishop of Algiers, Louis-Antoine-Augustin Pavy. Born in Blidah, Emhamed Ben Haoussin lost his parents while he was still a minor. At age seventeen, he sought out the governor-general’s help in an inheritance dispute. His employer at the time, settler publicist Louis de Baudicour, requested that the government extend French legal protection to him by naming a family council (conseil de famille) to act in his interest, thus sidestepping a local qadi. The juge de paix in Blidah refused to honor the request. In his eyes, Haoussin remained an “indigène,” his conversion to Catholicism notwithstanding.³⁴

The question was particularly sensitive, given a context of political tumult following the Revolution of 1848 in France. The interim governor-general, Aimable Pélissier, consulted with the chief prosecutor of Algiers, Achille Marrast. The brother of the prominent journalist and republican politician Armand Marrast, Achille was known to have anticlerical tendencies. He had been implicated in controversies provoked by the campaign of the republican newspaper L’Atlas against Bishop Pavy’s charitable works focused on orphans.³⁵ Haoussin’s protector and employer, Baudicour, by contrast, endorsed Catholic charity as a tactic of colonization.³⁶

In pondering Haoussin’s fate, Marrast considered how religious conversion should impact his legal status: “Should a change in religion also have for an effect to submit the Muslim—now Christian—to the requirements of French law with respect to his civil status and the administration of his fortune and belongings? If he is a minor and an orphan, who should be his trustee?”³⁷ Marrast ultimately concurred with the juge de paix’s original decision that Haoussin remained an indigène. In doing so, he notably appealed to the principle of paternal authority, even though the minor’s father was dead. He wondered: “What would I say to the Muslim father who might come to me reclaiming the aid of my authority to make his minor son, his child, return to the house from which he was led away or which he deserted? Could I uphold that this child had had recourse to baptism and that from now on, he has ceased to be Muslim and even to belong to him?” For the prosecutor, a clerical assault on “paternal authority” [la puissance paternelle] was illegal and politically dangerous. In contemplating the case, Marrast identified with an imagined Muslim father, deprived of his natural rights by the devious and deviant actions of the Catholic Church.³⁸

According to Marrast, lending legal effects to the minor’s conversion would subject “the Arab family” to “all the ruses and moral violence of religious antagonism.” In his view, French law needed to protect the father’s religion and authority from a proselytism that targeted minors. Secularism underwrote this legal protection, because “French legislation attaches no civil effect to religious abjuration, especially on the part of a minor who becomes Catholic.” In other words, religious law addressed the “for intérieur” alone, which is to say the “soul” and “purely spiritual things.” Civil status, by contrast, was governed by secular law.³⁹

The justice minister, Eugène Rouher, and the governor-general ultimately circumvented these broader legal and political issues. Rouher suggested that a “tutor” could be named to protect the minor’s inheritance without effecting a change in his civil legal status, effectively separating his property from his personal status. While the conseil de famille would manage Jean-Baptiste’s belongings, its oversight would not “assimilate” the “foreign minor to French status.”⁴⁰ This improvisational solution skillfully sidestepped confusing questions of status, thus downplaying the case’s potential legal as well as political significance. Haoussin’s subsequent marriage to Marie Borgéat notably did not appear to give rise to further legal disputes.

Mixed-marriage cases did nonetheless assume heightened significance for jurists and legislators in later decades. These concerns emerged in tandem with the legal delineation of “Muslim personal status.” According to the civil registry, officially recorded mixed marriage increased moderately in the 1860s and 1870s. Based on the names and family histories included in the marriage acts, there were at least twenty-five in the 1860s, fifty-nine in the 1870s, and seventy-one in the 1880s, up from eight between 1839 and 1849 and fifteen in the 1850s.⁴¹ While these numbers remained low, jurists’ concern about the unions increased considerably, especially in the wake of the 1865 sénatus-consulte and 1873 Warnier Law. The presumptive rarity of such romances spurred both legal and novelistic imaginations, as jurists worked to distinguish French and European from “Muslim” law. The relative infrequency of the marriages contributed to their legal and symbolic significance. More specifically, the imagined fate of French and European women in these marriages came to embody what jurists saw as a grave conflict of law.

The Power of Small Numbers

One famous case of mixed marriage was that of Aurélie Tijānī, née Picard. As depicted in later biographies of the “princess of sands,” its singular circumstances were worthy of a novel. In 1870, Aurélie, the daughter of a gendarme who had served in Algeria, met Ahmed al-Tijānī, the powerful and wealthy head of the Tijaniya Islamic confraternity, which had long-standing political links to French colonial authorities.⁴² The couple met in Bordeaux, where Ahmed was in exile from political turbulence around his home in Aïn Mahdi. Aurélie accepted Ahmed’s marriage proposal and the prospect of an adventurous life in the Algerian South. She moved to the desert town, where she developed a measure of political influence in the Tijaniya and among French colonial authorities. With her husband, she worked to expand French influence in the Sahara. When Ahmed died in 1897, she married his brother. By the end of her life, she became a colonial heroine of sorts, garnering public recognition and praise, including being named a chevalier of the Legion of Honor.⁴³ At French Algeria’s centenary in 1930, Louis Bertrand, the lead spokesperson for the “Algerianist” literary school, praised her civilizing achievements: “She knows how to understand seminomadic Muslim souls, and while always distinguishing the profound differences separating her from these men, she does not give up on exercising her influence, an influence that is discreet, persevering, and ultimately triumphant, because it is accompanied by so much generosity.”⁴⁴ In addition to her colonial political work, Picard’s marriage to al-Tijānī left a legacy in the domain of colonial law, influencing the proceedings of Algerian marriage law in the last decades of the century.

While their union was retrospectively celebrated, Picard and al-Tijānī’s marriage plans initially provoked resistance on the part of French authorities. In order to be legal, the union had to be contracted under French civil, not Muslim, law. In their case, this was impossible, because al-Tijānī already had two other wives, making the union invalid according to the Civil Code. Aware of the law and apparently unwilling to displease French authorities, the qadi of Algiers refused to officiate. Tijānī and Picard’s appeal before the Court of Algiers ended in failure.⁴⁵ Their “marriage,” eventually overseen by an imam and blessed by Cardinal Lavigerie, went unrecognized by French authorities. The case did not, however, indicate a blanket rejection of “mixed marriage,” as Claude Liauzu has suggested.⁴⁶ Other “mixed” unions officiated at the mairie and recorded in the civil registry that same year did not produce similar legal wrangling, including those between Belkassem ben Sedira, a candy seller, and Marie Nava; between Kaddour ben Larby, a teacher at the école normale, and Marie Fernando; between Abdallah ben Messaoud el Maadi, an army medic, and Jeanne Lacavo; and between Ali ben Saïd, a lieutenant in the spahis, and Jeanne Nadal.⁴⁷ What Picard’s marriage did provide was a unique occasion to outline the hierarchal relation between civil and Muslim law at the moment of Algeria’s transfer to civilian rule.

Named governor-general in March 1871, Admiral Louis Henri de Gueydon implemented civilian rule by eliminating many of the administrative structures of the Second Empire’s “Arab Kingdom.”⁴⁸ Fusionist fantasies of Franco-Muslim marriage were another facet of the previous regime that settler advocates had long sought to dismantle. The author of the 1873 property reform, Auguste Warnier, had, for example, attacked Saint-Simonian convert Ismayl Urbain’s politics and policies with less than veiled assaults on his marriage to a Muslim woman.⁴⁹ Drawing on this political-legal critique of mixed marriage, Gueydon firmly opposed the prospect of Picard’s “Muslim” marriage.

In June 1871, Gueydon assembled a commission of legal, military, and religious advisers to study “diverse questions of legislation.” While promising that “no attack would be made on the religious law of Muslims,” he urged the elimination of “the differences that exist between French law and Muslim law in civil matters.”⁵⁰ The proposition elicited a skeptical response from Ahmed Boukandoura, a Muslim adviser [assesseur] at the Court of Algiers. According to Boukandoura, it “was not possible to establish a division between Muslim civil law and Muslim religious law, given that everything that concerns religious interests, but also social, civil, and commercial interests, as well as conventional and criminal matters, is found in the two books [i.e., the Qur’an and Sunna] that make up Muslim law and legislation.” For Boukandoura, in other words, the civil/religious distinction made no sense from the perspective of Islamic jurisprudence. Above the Muslim jurist’s strong objections, Gueydon insisted that “the Muslim Code seemed to him legally susceptible to modifications.”⁵¹ Unsurprisingly, real estate questions were paramount, as Gueydon sought to make “the obstacles that stand in the way of property transactions disappear.”⁵²

As discussions surrounding a proposed “Algerian Code” continued in July, the commission’s Algerian members voiced their collective opposition, proclaiming, “We do not want any innovation to be introduced into our legislation.” Against these objections, the governor-general contended that while the commission would pursue reforms, no changes would be made to “personal status, which no one has the intention of harming [porter atteinte].”⁵³ While Muslim jurists on the commission clearly disagreed with these claims, Gueydon persisted in his promise to defend the novel legal entity of “Muslim personal status.” He asserted that “personal status forms in Muslim law a homogeneous whole that cannot be touched without upsetting the economy of the law, unless there is a significant public interest.” Following this logic, he rejected several other members’ proposals to reform marriage age and divorce.⁵⁴ At the end of the July meeting, a unanimous vote approved his motion that “no innovations would be made in the personal status of Muslims, from the point of view of marriage, filiation, and divorce.”⁵⁵

In the wake of these meetings and the Picard-Tijānī case, Gueydon addressed a November 1871 circular on “mixed marriage” to Algeria’s new prefects, mayors, and qadis. Presenting Picard’s marriage as symptomatic of broader conflicts between European and Muslim law, his text denounced the “anomalies caused by undefined legal relations between two populations, European and indigène, each having, one and the other, their own personal status and real property status.” He targeted both the “impossibility of property transactions” and the purportedly “more serious inconveniences” in matters of personal status. This punctual intervention was a quick and convenient way to score political points. As he explained, “while waiting for the radical solutions that will soon be submitted to the National Assembly [i.e., what would become the 1873 Warnier Law], the existing state of legislation already poses, notably regarding mixed marriages, certain obstacles to what I will call the abuse of Muslim law.”⁵⁶

Gueydon’s circular drew on an opinion issued by the justice minister that proclaimed “the application of Muslim law cannot be allowed to compromise public order.” This “public order” principle preserving the integrity of the Civil Code stood as a necessary limit to Muslim law jurisdiction, especially in cases of marriage. The Picard-Tijānī union thus helped to clarify French public policy at the moment that “Muslim personal status” was legally distinguished from real property law. As Gueydon’s circular explained, “In no case can a mixed marriage be celebrated according to Muslim law, without the production of a marriage act certifying that a civil marriage has taken place before a French official.”⁵⁷ Because Picard was a French citizen, she could only be married according to French civil law.

In this case and those that followed in its wake, Picard’s French law status trumped that of her prospective husband, even though the reverse rule had applied in international private law. This gender inversion came to distinguish colonial law from international conflicts of law. In the 1836 Bourkaïeb case, the French statute did not prevail, even though that marriage had been performed before a French civil officer. The husband’s “Moorish law” remained predominant when French legal sovereignty was still uncertain at the outset of colonization. By the end of the century, jurists asserted the Civil Code’s ascendency over a subordinate and exceptional Muslim law. In an ironic reversal and denegation of the Code’s own patriarchal principles of marital unity, colonial jurists argued that “European” women needed to be protected from the patriarchal excesses of Muslim law.⁵⁸ The sexual integrity and dignity of the European woman thus came to embody the sovereignty and secularity of the Civil Code.

Properties, Persons, Personal Properties

As Gueydon had pledged, the law designed to eliminate conflicts between French and Muslim law—what would become the Warnier Law—was presented before the National Assembly in January 1872. While promising, as the later law did, not to infringe on “personal status or the rules of succession among indigènes,” this version also addressed mixed unions: “In the case of mixed marriage, French laws, both civil and penal [répressives], will regulate marriage, for the forms and conditions of its celebration and for its effects, as much for the spouses as for the children.”⁵⁹ As Minister of the Interior Casimir Périer explained to parliament, “It is impossible to admit that [Muslim laws] might regulate contracts where French, or other European colonists intervene as parties, especially when the effects of the contract as derived from Muslim law contradict [sont en opposition avec] the best established principles of our public law.” The same French public law principles were supposed to apply to both property and to marriage contracts. “One cannot understand,” continued Périer, that “on French soil, a French woman who marries a Muslim might be exposed to divorce, as can happen today, nor that a French woman might marry a Muslim engaged in a prior union, even with her fully voluntary consent.” The proposed law would also guarantee that a French woman’s children would not be excluded from “Muslim” inheritance. It was, in other words, designed to “make French law prevail over [prédominer] Muslim law.”⁶⁰

In his report to the Assembly, however, Warnier urged deputies to remove all these references to mixed marriage, whose existence he sought to render unthinkable for French women. In his view, “Marriages between French women and Muslims are extremely rare, and it is understandable; the Christian woman, who has preserved her sense of dignity, will never submit to a marriage, whether monogamous or polygamous, which reduces her to the status of a thing.” He further worried that any explicit discussion of marriage in the property reform bill would confuse issues, precisely because “among Muslims, too many consider women to be property.”⁶¹ According to this Orientalist trope, Muslim marriage supposedly differed from French marriage because it made women into property. On Warnier’s advice, the final version of the law contained no reference to mixed marriage and thereby affirmed the “dignity” and superiority of French law by distinguishing market contracts from marital ones.⁶²

As Warnier’s comments indicate, the presumptive rarity of Muslim-European marriages shored up arguments about the superiority of French civil law. Starting in 1878, yearly listings on Algeria in the Statistique générale de la France publicized these small numbers.⁶³ Listed in the single digits, unions between “Européens et musulmanes” and “Musulmans et Européennes” paled in significance beside the hundreds listed between French and foreigners, and the thousands contracted between French nationals or foreigners among themselves. These small numbers were supposed to prove European women’s dignity.

TABLE 1 /Official marriage statistics for Algeria, 1875–1887

Exactly how the census arrived at these numbers is unclear. As Kamel Kateb has demonstrated, even those demographers who played a crucial role in the development of the Algerian statistics bureau, such as Ricoux, raised questions about their reliability.⁶⁴ The so-called European état-civil does contain traces of French civil marriages contracted between Muslims and Europeans that were not necessarily recorded as such in the published statistics. Official counting was no doubt uneven and inconsistent, especially since civil marriage made religious affiliation irrelevant. The registries do sometimes indicate the partners’ legal status as, for example, “indigène et française.” In the registry of Mustapha from 1872, the marriage between Jeanne Nadal and a daily laborer named Ali ben Saïd has the word indigène scribbled in the margin. Subsequent mixed marriages in Mustapha contain no such denotation. In 1874, the unions between Louis Gaspard and Lahalli bent Ahmed (dite Marie Josephine), an orphan from Saint-Cyprien-des-Attafs (El Attaf); between Antoine Dubois, a locksmith, and Josephine Marie Aicha bent Mohammed, a nurse, in 1875; and between Kaddour ben Allouah, a driver, and Marie Josephine Raibaldi in 1876 have no marginal commentary. As their names suggest, the first two unions involved women who had most likely been converted at Cardinal Lavigerie’s orphanage in Saint-Cyprien and that of the Sisters of Saint Vincent in Mustapha.⁶⁵ According to the civil registry, the number of parentless girls who married Europeans rose sharply in the 1870s and 1880s in part as a result of the cholera epidemic and famine that struck in 1866–1868. Some of these women’s registrar entries mention their parents’ death as a result of the famine.⁶⁶ They technically maintained “Muslim” legal status, even when then married Europeans.⁶⁷ How the marriages were categorized on the census, if at all, is unclear.⁶⁸

Not all mixed marriages were between orphans, however. The registries of Algiers, Constantine, Bône (Annaba), and Philippeville (Skikda) list dozens of unions between seamstresses and shop employees, day laborers, café waiters, and servants. Less frequently, they feature army officers, interpreters, and property holders. Parents often attended these civil ceremonies. And, as was required by the Civil Code for men under thirty years of age and women under twenty-five, they gave their approval. When the marriages were between minors, parents authorized the unions; in their absence, they sent statements of assent. This was the case, for example, for the marriage between Sadok ben Hadj Mohamed Aloui ben Larbi and Marie Gaudier in Philippeville in 1881. The registrar listed Sadok as “indigène,” even though he was born in the Regency of Tunis and hence legally a foreigner. Other entries in the city’s registry note nationality such as Anglo-Maltese, Italian, or Spanish, but Sadok was instead categorized as a colonial subject. Was his marriage one of the three between “Musulman et Européenne” officially counted for 1881?⁶⁹

Other notations of spousal origin sometimes appear. In Oran in 1878, the register indicated that both Mohamed ben Munez (a translator who married a Spanish woman, Maria de Jesus Catherineau Garcia) and Aoued Ould Ahmed ben Abdallah (who married Maria Ascencion Martinez) were of “Arab origin.” Several years later, no such indication appears on the act of Mohamed ben Abderrahman, who also married a Spanish woman, Antonia Ramona Juana Artero.⁷⁰ Was this marriage classified on the census as one contracted between “Français et étrangère,” based on his and her nationality? Or was it between “Musulman et Européenne”? Was it enumerated at all?

Labeling in the marriage registry was occasional and far from uniform. It reflected an unstable relationship between religion, ethnicity, and nationality in the minds and actions of officials who worked to form “Muslim” and “European” into statistical and legal realities. The annual production of demographic tables, as well as the scientific studies and public policy that were based on them, called attention to these marriages, in part because of, rather than despite, their small numbers. In contrast to Aurélie Picard’s exotic and romantic marriage to Ahmed al-Tijānī, these unions occurred between modest characters. Despite this banality, statistical and legal accounts nonetheless presented them as exceptions to the endogamy of European settlement, marriage, and law.

Invalid Acts

Unaddressed by formal legislation, instances of conflicting marriage codes continued to come before French courts. Among them was the case of a twenty-six-year-old Corsican-born woman, Émilie Danési, who married an Algerian Muslim in 1878. It stands out because the litigant who brought the case to trial was not a disgruntled family member, but the state itself, acting in the name of the public order of French law.

At issue was the legitimacy of Danési’s “Muslim law” marriage to Ismaël ben Boursali following her sworn “abjuration” of Christianity and embrace of Islam before the Hanefi qadi of Algiers. Using her newly adopted name, Mimi bent Abdallah registered her marriage contract with Boursali on August 25, 1878. The public prosecutor, Jean Baptiste Fourcade, brought the case before the Muslim Chamber of the Appeals Court of Algiers in order to annul both acts. He declared that her conversion and marriage were “contrary to public order” and “illegal assaults on the personal status of citizens.”⁷¹ So grave was the offense that they had to be invalidated. The state stepped in to protect the French personal status that she embodied, overruling her stated wishes to the contrary.⁷²

As with the Picard marriage, the Muslim Chamber threw the case out on the basis of jurisdiction. Despite Danési’s religious conversion, her French nationality and citizenship required her to appear before a French civil court, rather than the forum that had been set aside to hear Muslim law cases and litigants. The case passed to the Tribunal of First Instance. It too denied its competency to judge Danési’s conversion, “which only had the effect of changing her religion and not her nationality.” The court decided that it had no jurisdiction over a purely “religious” act: “from no point of view can courts interfere with or recognize an act of this nature, which depends solely on the conscience of those who submit to it.”⁷³ As a question of individual conscience, her conversion was beyond the consideration of civil law.

The marriage act was, however, fully in the domain of secular French law and hence subject to public concern and policing. Danési’s marriage act was found to be “radically null and void” because “the personal status reserved for Muslim indigènes of Algeria can never apply to a person who does not have the quality of indigène.”⁷⁴ Extending beyond the inner life of conscience, marriage altered legal personality, especially for women. Matters of spirit were on one side, personal law on the other. The court’s decision affirmed a principle that soon became axiomatic: that French and “European” women could never assume Muslim law status, even by marriage. As the adamantly secular colonial jurist Émile Larcher explained in the case of foreign women, “A European woman, in marrying a Muslim indigène, becomes, not an indigène, but a French citizen: her personal status is governed by French law, not Muslim law.”⁷⁵ Up until 1927, the Civil Code subordinated married women to their husbands’ “foreign” law. In Algeria, by contrast, a woman’s civil law status took precedence over that of her Muslim husband, even as she acquired “his” French nationality in the marriage. She thus personified the French Civil Code’s superiority. This “protective” gesture was also disciplinary. In the Danési case, it set the terms according to which a Corsican migrant could marry a Muslim man.

The Appeals Court of Algiers occasionally went to extraordinarily lengths to secure the Civil Code’s precedence in marriage and filiation. The elaborate arguments and legal fictions used to do so could be seen, for example, in a 1903 case about the nationality of two orphaned minor children, Belkacem and Khadidja. They were the son and daughter of Mustapha ben Mohamed Mazouni and a Spanish woman, Teresa Aragonès, who had converted to Islam and married Mazouni “in conformity with Muslim practice [habitudes].”⁷⁶ As in the Danési case, their marriage was invalid under French civil law. This became an issue after their death, when a creditor disputed the right of Larbi Fekar to act as the children’s guardian. Fekar, who had married Khadidja in 1902, had an affective, financial, and ideological investment in the case.⁷⁷ After training at the école normale of Bouzaréah, he taught in Oran and founded a short-lived dual-language newspaper, El Misbah, which advocated for Algerian assimilation.⁷⁸

While the French creditor claimed that the children’s status was Muslim, the court determined that Belkacem and Khadidja were not, despite their mother’s conversion and “Muslim” marriage. Because Teresa Aragonès was of European origin, her legal status, and hence that of her children, had to be French. As the decision explained, “a foreign woman who marries a French man follows the condition of her husband; a European woman who marries an indigène algérien, who is therefore French, becomes a French woman.” In other words, “because she cannot acquire Muslim personal status, she thus assumes French personal status.” Aragonès’s religious conversion was irrelevant, because, as previous cases had made clear, “religious acts could not have civil effects.”⁷⁹ But how could the court recognize the “Muslim marriage” of Teresa and Mustapha, since it was not performed before French civil officials and was hence void?

It did so by granting the marriage a “putative” status. Using this legal fiction, which had its origins in canon law, the court treated their “Muslim marriage” as if it were valid, because they had acted in good faith. Its putative effect did not make Teresa “Muslim,” but it did retrospectively make her French for the purposes of determining her children’s nationality. (The 1901 death registry listed her own nationality as Spanish.)⁸⁰ While bracketing her religion, the court decided on her conjugal good faith. Going further, it determined that, because a French mother’s illegitimate children had French nationality and citizenship, the same should hold for Belkacem and Khadidja, “even if they practice Islam.”⁸¹ According to the court, illegitimate children should not be given better treatment (i.e., French status) than Belkacem and Khadidja, whose parents’ marriage had been in “good faith.”

In the Revue algérienne et tunisienne de jurisprudence, a Paris-based specialist in private international law, Armand Lainé, denounced the judges’ ruling for following their “intimate sentiments” about the superiority of French legal status. While granting Aragonès’s French nationality, Lainé disputed the judges’ claim that her children should be granted the retrospective civil status of their mother. In Lainé’s interpretation, because these children’s father was indeed known, the patriarchal assumptions of jus sanguinis prevailed, making them “Muslim.”⁸²

By making Belkacem and Khadidja French, the court overturned cherished assumptions and established principles that linked legitimacy, personal status, and patriarchy.⁸³ For the next several decades, jurists equivocated on this point, wary as they were of how the Fekar case undermined “the idea of the man’s predominance in the domestic group.”⁸⁴ As Lainé’s note hinted, the judges’ thinking may have been clouded by sentiment in claiming the children as French even though their father was a Muslim indigène and their mother a Spanish convert to Islam. These fine legal points were perhaps ancillary to the financial considerations motivating Larbi and Khadidja Fekar to bring their appeal, but they nonetheless resonated with the assimilationist program of Fekar’s journal. According to the decision, the “Muslim” children were legally French. This finding nonetheless upheld an embodied distinction between “European” and “Muslim” in the deceased person of Aragonès in order to confer that condition onto her children.

Teresa Aragonès’s “Frenchness” was an elaborate retroactive legal fiction. While attempting to fix her legal identity and that of her children, the decision demonstrates how unstable the categories of “Muslim” and “French” could be. As contemporary commentators noted, it was no small irony that a canon law carryover, enshrined in articles 201 and 202 of the Civil Code, could grant legitimacy to Muslim marriages. For Portalis, the secularized canonical principle of “putative marriage” tempered the potential excesses of “positive law” by aligning it with natural law. As he explained, this protection affirmed a “natural principle” that “the essence of marriage consists in the faith that spouses give one another.”⁸⁵ By granting legal effects to an invalid contract, putative marriage preserved conjugal morality in secular civil law.

The flexibility of putativity was particularly useful in Algeria, with its overlapping legal codes and mobile multinational population. It served to protect unsuspecting partners who might be unaware that those with French or “European” civil status could marry only before a French registrar. In some cases, it was even used to grant legal effects to a Muslim divorce. As the jurist Larcher wryly commented in his account of the case, “The doctors of the canon, in constructing the theory of putative marriage, would never have guessed that it would be used to facilitate divorce!”⁸⁶

By offering creative solutions to Algerian conflicts of law, putativity was also manipulated by canny litigants. For example, in 1874, the court granted putative status to a “Muslim” marriage between Youssef ben Haffiz and Meriem bent Moulaï, a Spanish woman convert. In the case, bent Moulaï sought to claim inheritance for herself and her son Boumedien after her husband’s death. Other members of the Haffiz family, including an uncle and a half brother, wanted to disqualify her—and her marriage—because of her “European” status. In order to guarantee her “Muslim” inheritance rights the court granted her marriage putative status.⁸⁷

That finding opened a new terrain of legal dispute between Boumedien Haffiz and his children. After marrying a fifteen-year-old Spanish woman, Jeanne Caroline Mascaro, Boumedien had three daughters (Marie Charlotte, Jeanne Caroline, and Henriette Mériem) in the town of Mustapha.⁸⁸ Several years later, the family moved to Morocco. Upon Mascaro’s death, the daughters, who had all married “Europeans,” wanted their mother’s inheritance to be settled by French law, which presumed the community of property. They claimed that because Haffiz was French, albeit an indigène, and because his marriage had been recorded in the “European” registry, the Civil Code’s inheritance rules should apply. Haffiz, by contrast, claimed the separation of marital property under Muslim law. Citing the 1874 decision regarding his mother’s putative marriage, he sought to claim Muslim legal status for himself.

The tribunal in Casablanca agreed with him. As a graduate of the École d’Alger in Pharmacy who had been interviewed by the 1892 Senatorial Commission, Haffiz no doubt had a firm sense of the procedures and legal arguments that would hold sway before newly appointed French judges in Morocco.⁸⁹ The Moroccan court found that “the European woman who marries a Muslim indigène should follow the condition of her husband.”⁹⁰ The family’s prior history of overlaying inheritance disputes with contests over personal status surely informed the case, as did the new Moroccan protectorate’s structure of Muslim tribunals, which were reserved exclusively for Moroccans.

Algerian colonial jurists disputed their Moroccan colleagues’ judgment. Jurist Émile Larcher penned a response to the case in what had now become the Revue algérienne, tunisienne, et marocaine de jurisprudence, which he edited. The new Moroccan tribunal seemed unaware of the policy established in the Picard/Tijānī case and Gueydon’s subsequent circular on “mixed marriage.” It broke as well with the jurisprudence in the Danési and Fekar cases. Reiterating the crucial distinction between Algerian “Muslim personal status” and nationality, Larcher aimed to set the colonial record straight. As he explained, in marrying Boumedien, Jeanne Mascaro became French, without ever becoming “Muslim.” To underscore this point, Larcher noted that Mascaro was also Christian. His explanation thus elided religion, ethnicity, and nationality despite his best effort to uphold legal distinctions between them: “As a Christian, she at no point became Muslim. Indeed, no more than she became an indigène.” The trial’s resolution was, he urged, “completely inaccurate.” In sum, it was “a complete mistake to apply Muslim law to a French women, who is of European origin, not a Muslim.”⁹¹ The assumption underlying this assertion was that Muslimness was incompatible with being Christian—and hence also with being French.

By correcting jurisprudence in cases such as this, the Revue algérienne served both a practical and ideological role. As editor, Larcher viewed juridical commentary as a crucial colonial legal supplement, which worked “to reconstruct an edifice whose plan was never drawn up or to erect a monument whose own architect has not yet traced its principal lines.”⁹² The architecture was, in this sense, an always unfinished fantasmatic projection. As jurists sought to fill in gaps in order to make it whole, new problems and questions arose, as the story of the Haffiz family’s “putative marriage” makes clear.

The question of how to manage mixed marriage and conflicts of law thus remained a persistent spur to these jurists’ legal imaginations. In numerous tracts and dissertations, they criticized the effects of mixed marriage on “French” or “European” women and considered how a husband’s “naturalization” might impact his Muslim wife. Their questions proliferated: Should a wife be assumed to consent to his decision, or should she be allowed to maintain her “Muslim status”? What should be privileged, the “unity of law” within the family or the wife’s individual will? Imagining the Muslim wife’s legal position in these situations allowed jurists to ponder the parameters of Algerians’ naturalization and implicitly the relationship between “French” and “Muslim” law.

Naturalization and Conjugal Conflicts of Law

In 1883, a former military translator and future “Young Algerian,” Ahmed ben Brihmat, took French citizenship in the midst of a dispute with his wife, Fifi bent Hamoud ben Turkia. By changing legal status, he wanted to move their trial from the Muslim judiciary to a French court. Brihmat feared that he would not get a fair hearing before his father-in-law, the Maliki qadi in Algiers. Would his new citizenship force his wife to give up the protections afforded her by Muslim law? Or would he remain bound by Muslim law for conjugal matters despite his altered status? For the minster of justice, who weighed in on the case, “the solution concerns the situation of Algerians to the greatest extent [au plus haut point].” The Cour de cassation concurred, deciding that Brihmat, as a citizen, should no longer appear before a Muslim judge.⁹³

The high court’s ruling did not explicitly address the subsequent effect of Brihmat’s naturalization on his wife. According to the commentary offered by Jules Jacquey, a member of the Law Faculty of Algiers, the question distilled “the conflicts between the French law applicable to indigènes who are French citizens and the Muslim law applicable to indigènes who are not French citizens.”⁹⁴ Of course, those indigènes who became French citizens were no longer legally indigène. Jacquey’s comment clearly indicates semantic slippages in the term. In his view, allowing Brihmat’s naturalization to have a retroactive effect on the couple’s marriage was a violation of the Civil Code. The court’s finding and Jacquey’s commentary demonstrate how the individualized model of naturalization adopted by the sénatus-consulte of 1865 had a confusing effect on the legal status of families. Governor-General Tirman sought to address the issue in a circular to Algerian prefects in 1884. Following instructions from the justice minister, he announced that “the personal status of native Muslim women should follow necessarily that of their husbands.”⁹⁵ According to this directive, wives were to be automatically naturalized along with their husbands, but courts did not always follow the instruction. Jurists, in turn, hypothesized about resulting conjugal conflicts of law and how to resolve them.

These discussions coincided with a legislative reform in the 1880s that gave renewed scrutiny to the links between marriage, filiation, and nationality. In the run-up to the adoption of a new nationality law in 1889, jurists and politicians debated whether a husband’s naturalization should be purely personal or have “collective” effects on his family. While eager to promote “the unity of law” within the family, representatives wondered whether the “collective” principle violated wives’ and adult children’s consent. In 1884, the Conseil d’État endorsed the “collective” solution. In his report before the Senate on behalf of the Conseil in 1886, Camille Sée thus advocated for “unity within the family.” In his view, “the woman who mixes her fate with that of her husband has to follow the nationality of her husband.”⁹⁶ In debates surrounding nationality law reform, this position, which evidently negated married women’s independent will, faced some resistance. In his report to the Chamber in 1887, Deputy Antonin Dubost (Isère) held that “it would be an exaggeration of the rights of marital power and paternal power to declare that the naturalization of a husband and father should automatically naturalize a wife and adult children.”⁹⁷ In the law’s final version in 1889, wives were granted autonomy, while minor children were naturalized alongside their fathers. Wives had the option to change their status at the same time as their husbands, but were not forced to do so.⁹⁸ As André Weiss explained in his commentary, “The natural submission of a wife to her husband does not go so far as to completely annihilate her will.”⁹⁹ Or, at least that was the assumption with respect to French women and foreign women who might become French.

By naturalizing thousands of “European” foreigners, this 1889 nationality law had a dramatic effect on the Algerian population. Increasing the size of the French national population and “disaggregating” communities of foreign settlers, it applied a new logic of jus soli to children born in Algeria to foreign parents.¹⁰⁰ Algerians with Muslim personal status, as French subjects rather than foreign nationals, were excluded from the law’s application. As a result, the effect of a Muslim husband’s “naturalization” on his wife and children continued to be debated in juridical treatises and occasionally settled in court. Would jurists assume or annihilate the Muslim woman’s will?

Louis Hamel, a bureaucrat in the governor-general’s office, devoted several long articles in the Revue algérienne to the question of how Algerians’ naturalization impacted their own legal status and that of their families.¹⁰¹ He imagined a host of scenarios in which conflicts might arise. What should happen when an already married man was naturalized, but his wife was not? What would happen to children who had already been born? Those who were not yet born? These hypotheses, taken up by subsequent jurists, were occasions to showcase the supposedly profound differences between French and Muslim law.

Basing his argument on an analogy with the 1889 law, Hamel claimed that Algerian naturalization should remain purely individual. Disputing the positions adopted by the minister of justice and the Conseil d’État, he held that “nothing in Muslim legislation nor in French legislation allows us to pretend that the naturalization obtained by a native husband should be imposed for good or for bad on the wife.” He notably questioned whether she should be forced to give up the advantages that Muslim law held for her when, “exceptionally, French law is less liberal toward the married woman than Muslim law.” He thus argued forcefully in favor of maintaining Muslim law for wives rather than rendering them “incapacitated like the married woman in French law.”¹⁰² The specialist in international private law André Weiss agreed. He disputed presumptions that the “femme indigène” lives “in the strictest dependence on her husband and can have no other will but his.”¹⁰³ In his view, wives and children would retain their Muslim law—and its clear advantages—when a husband became a full citizen.

Other jurists disagreed, however, claiming that the persistence of two different statutes within a marriage represented “a triumph of Muslim law” and hence “an abdication of our sovereignty.”¹⁰⁴ In his thesis on Algerian conflicts of law, Léon Dunoyer proclaimed that it was “inadmissible that preeminence does not belong to French law. Because the conciliation between the two laws is impossible, because the two spouses and their family must be ruled by one and the same law, the wife of the naturalized Muslim and the children born of that marriage before naturalization should be treated, from that day on, as truly French, entirely submitted to French legislation.”¹⁰⁵ In Dunoyer’s assimilationist program, Algerian conflicts of law were transitory, “an anomaly destined to disappear,” unlike international ones, which represented durable conflicts between sovereign states.¹⁰⁶ By endorsing the “unity of legislation” in the Algerian family, he promoted the unity of Algerian legislation tout court. Following this argument, Emmanuel Besson, a government tax official, also insisted on the “unity of legislation.” He dismissed the significance of Muslim women’s relatively advantageous marital property regime, insisting instead that “the Muslim woman does not have, in principle, free disposal of her person.”¹⁰⁷ Because Muslim personal status was an exception to French territorial law, he believed it “natural that, in this conflict, French law should have the last word.”¹⁰⁸

Other advocates of the “collective” solution explicitly linked French legal sovereignty to patriarchy. In his thesis, Albert Hugues firmly rejected Hamel and Weiss’s “individualist” model, refusing to allow a husband’s naturalization to become “a source of infinite conflicts and tensions, whose existence could only hurt the authority of the husband and father and the good order of the familial association.”¹⁰⁹ In his view, the “supreme divergences” between Muslim and French law “in particular in matters of family status” made the risk of conflict particularly great. It was “in the interest of French domination” to limit this cause of “serious and frequent difficulties.”¹¹⁰ Larcher adopted a similar position. In his Traité élémentaire de legislation algérienne, first published in 1903, and in subsequent critical commentaries, Larcher embraced the patriarchal principle, declaring that “a single law is necessary: that of the head of the family imposes itself, which is to say French law.”¹¹¹ There is evident irony in these pronouncements that criticized Muslim legal patriarchy, from the right to polygamy to forced marriage, in order to defend French legal patriarchy. These advocates had no qualms defending the erasure of the Muslim wife’s legal personhood, and indeed her distinct property rights, in order to uphold the patriarchal “unity” of French law.

These theoretical discussions had a broader political context: a series of proposals in the late 1880s and 1890s to extend citizenship rights to Algerians in exchange for their military conscription. Set forth by leftist deputies, these were among the first propositions to offer Muslims political rights, while maintaining their personal status. Motivated in some cases by antisemitism, authors drew parallels with the “collective naturalization” of Jews, who they claimed were part of the same “family.” In contrast to the Crémieux Decree, their proposals would maintain Algerians’ Muslim and customary “family law.” Deputies Henri Michelin (Seine) and Alfred Gaulier (Seine) explained in their project how “the rules of the Civil Code notably regarding marriage and the organization of the family cannot be imposed on Muslims.”¹¹² While approved by a commission in 1888, the plan was not pursued. Subsequent proposals for extending political rights to Algerians over the next decade made analogous arguments.¹¹³ When Michelin and Deputy Gustave Paul Cluseret (Var) resurrected the proposal in 1897, they explicitly dismissed the significance of divorce and polygamy as obstacles to Algerians’ citizenship.¹¹⁴

Their argument drew on the pamphlet by the assimilationist doctor Taïeb Ould Morsly, a member of the Municipal Council of Constantine, who endorsed Senator Isaac’s proposal to extend political rights to Algerians while maintaining their personal status. In his Contribution à la question indigène en Algérie, Morsly argued that what stood in the way of assimilation was systematic property seizure, heavy taxation, restricted Muslim law jurisdiction, and the indigénat, not “polygamy and divorce, seen for all ages, as the greatest abominations of the Muslim religion.” Morsly professed to personally admire “single households” (ménages uniques), but also explained the historical and practical reasons for which the Qur’an authorized polygamy. He also highlighted the glaring double standard of French sexual morality, which banned polygamy but authorized men’s extra-conjugal sex. In his view, legal polygamy was more ethical than its “hidden” French counterpart: “On careful reflection, because the flesh is weak, is it not better to have two legitimate wives than to have one legal ménage and two or three irregular ones? The only difference between the avowed polygamy of Muslims and the hidden polygamy of others is the legality of one and the illegality of the other.”¹¹⁵ For Michelin and Cluseret, this passage clarified why the conferral of political rights (and the duty of military conscription) should not require the abolition of the “personality of laws.”

Colonial jurists and politicians met these propositions with nearly uniform resistance, drawing on discussions of mixed marriage to make their case. The threatening prospect of political inclusion found expression in anxieties over the sexual degradation and defilement of citizenship by Muslim status. In direct reaction to the Michelin and Gaulier proposal, the jurist Besson proclaimed: “We cannot accept the idea that a Frenchman, based on the sole fact that he is Arab or Kabyle, could legally marry four wives or sell his prepubescent girl. To do so would really debase [avilir] the title of French citizen.”¹¹⁶ In his 1894 report on the Algerian budget, Deputy Pourquéry de Boisserin (Vaucluse) cited Besson to argue against Algerians’ political representation at either the parliamentary or local level. He, too, made family-law conflict the principal stumbling block, arguing that Algerians “want to maintain their personal status, especially with respect to the constitution of the family from the point of view of matrimony and inheritance.” While Michelin and Gaulier claimed that the rarity of polygamy and the 1884 French legalization of divorce had reduced the prospect of such conflicts, Pourquéry insisted on the sexual difference of Muslim personal status. In his view, the “exorbitant” right of repudiation meant that their “monogamy…has more than a point in common with polygamy.”¹¹⁷

Debates about Algerians’ accession to local representation likewise cast Algerian naturalization as a sexual rather than as a political problem. The Conseil supérieur resisted Ali Cherif’s proposal to allow selected “indigènes serviteurs,” who either worked in government or served in the military, to vote in local elections. J.-F. Bouvagnet urged that, to gain political representation, they had to “accept our responsibilities, which is to say that they come entirely toward us, in getting naturalized, and in bending themselves in this way to the exigencies entailed by the quality of Frenchness [les exigences entrainées par la qualité de Français].”¹¹⁸ In these and other statements, consent to the sexual discipline of citizenship became a precondition of political participation.¹¹⁹ Such discussions reified personal status as a distinct legal object and sexual stumbling block to political equality. Algerian men’s attachment to Muslim personal law was imagined as the expression of their stubborn bodies, not their political wills.

Conscription, not polygamy, was a significant reason why Algerian men (alongside European settlers) might resist naturalization, as a 1902 case heard by the Cour de cassation in 1904 made clear. In this dispute, the child of a mixed marriage, Sekfali Braham ben Tahar, appealed a 1902 decision that asserted his citizenship and eligibility for conscription.¹²⁰ While Sekfali’s parents were both Algerian, his legal status was mixed, because his father had been naturalized in 1869, while his mother had remained “Muslim.” Born in 1870, ben Tahar claimed that he was not a full citizen and hence ineligible for military service. In response to the case, the high court clarified the effects of naturalization on wives as well as sons. Following the “individualist” thesis, it found that “the effects of the admission solicited by the husband alone do not extend to the wife.” To protect patriarchal filiation (and Tahar’s military obligation), the court nonetheless held that the child would “follow the condition of the father.”¹²¹ This decision paradoxically made a man into a full citizen against his will, while claiming to protect the wife’s consent. In its wake, the governor-general addressed a circular to prefects affirming that “the Muslim wife does not benefit from naturalization,” although the option was extended to them.¹²² With the adoption of this individualized model, conflicts of law within families would inevitably persist.

Meanwhile, subsequent debates about conscription and political reform continued to reify and corporealize personal status. In response to ongoing population concerns and mounting international tensions, military policy makers proposed turning to Algerian recruitment in order to raise troop levels, especially once a 1905 law reduced citizens’ military service from three years to two. These discussions were haunted by the French military’s perceived decline in manpower and by questions of how conscription related to citizenship. The proposals, especially one by Minister of War Adolphe Messimy, provoked considerable resistance. Deputies from Algeria’s departments fiercely opposed the recruitment of “Muslim” Algerians, because they worried that it would reopen the question of naturalization and political rights.¹²³

“Young Algerian” members of the French educated elite and their metropolitan sympathizers grasped this as an opportune moment in which to pursue reform. One liberal journal, the Revue indigène, published legal opinions on the question of extending political rights to Algerians while preserving their “personal status.” While several prominent international jurists endorsed the measure, the specialist of colonial law Arthur Girault rejected it, citing the dangers of family law conflict and the disruption of conjugal unity, among other concerns. Referencing Larcher, whose assimilationist vision he shared, Girault explained: “The naturalized indigène is not an isolated being without relations to those surrounding him [ses semblables]. He doubtless has a family. What will become of his wife and his children? If his wife and children remain subjects as before, the unity of the family will be ruptured. If one decides that the wife and children should follow the head of the family’s condition, it will confer French nationality on persons who are in no way prepared for it and who it does not fit in any way.”¹²⁴ In order to avoid such conflict, Girault wanted to limit naturalization, by making it a response to individual demands, rather than a blanket extension. Rather than giving citizenship away, he thought that the French should “play hard-to-get” (faisant les difficiles). Imagining French citizenship as an object of desire, he proclaimed that “whoever wants to please must know how to use coquetterie.”¹²⁵ In this fantasy, the eroticized body of French citizenship would seduce Muslim men to give up their attachment to personal status. It was a potentially risky strategy, however. Both during and after the First World War, colonial and military officials worried that relations between North Africans and French women would become much less exceptional.¹²⁶ Those unions and their legal effects would hence remain a persistent object of official concern.

Despite their apparent statistical insignificance, cases of mixed marriage incited considerable colonial juridical inquiry as synedoches of the conflict between a secular Civil Code and Algerian Muslim law. Present from the outset of colonization, these questions became more pointed with the condensation of Muslim personal status as a legal shorthand for family, sex, and confessional sentiment. Cleaved from a universal and universalizable French law of property transaction, Muslim personal status (including Kabyle customary law) signified the particularized “quality” of the indigène and his patriarchal sexual rights. Matrimony was its ground (i.e., “marriage, divorce, and inheritance” defined its jurisdiction) and its limit, since indigenous status was not transferable by marriage. In court decisions, legislative reports, and legal treatises, French jurists and politicians construed Muslim religiosity, legality, and kinship as intertwined and intimately bound to the embodied Muslim person.

This story resonates with other accounts of deep social ambivalence about ethno-religious mixing in colonial societies. In focusing on juridical developments, we see how the secular status and sovereignty of French civil law gave form to a corporealized religio-legal personhood for Muslims and implicitly for French and European subjects as well. While forum-shopping litigants could and did manipulate these unstable categories, the elaboration of embodied differences between French civil and Muslim law nonetheless had persistently discriminatory political and social effects.

From the outset of colonization, mixed marriages remained legally protected by principles of religious freedom. Conversion, as a pure matter of private conscience, was beyond the domain of secular law. But the legal effects of mixed marriage were a subject of public concern. At a crucial moment of political and legal transition in the 1870s, the cases of Aurélie Picard and Émilie Danési reveal how this secular logic, dividing private conscience from public law, outlined the contours not only of Muslim persons, but that of “French” and “European” persons as well. Indeed, protecting the integrity of French personal status from the implicitly sexual incursions of Muslim law such as repudiation and polygamy became a crucial question of “public order” and hence of the sovereignty of French civil law. Inverting the conjugal logic of legal unity that governed international law, French women’s civil status took precedence over their husbands’ Muslim status. French woman became bearers of abstract claims about French law’s sovereign dignity, while Muslim men’s legal status was particularized. In a revealing twist on the paradoxes of postrevolutionary French citizenship, women embodied the universality of French personal status.¹²⁷

It is not the least irony of the Danési story that the court intervened in order to annul her consensual marriage. As we saw in chapter 4, jurists invoked “public order” to protect Muslim women’s consensual conjugality in cases of the father’s right to force their marriage (djebr). In trials of French and European women, by contrast, the state dismissed women’s consent (and conscience) in order to uphold the integrity of French law. This mixed-marriage jurisprudence corporealized both Muslim and French personal status, endowing them with embodied meaning and material effects.