Sex, Law, and Sovereignty

This book offers a unique perspective on the history of French Algeria by foregrounding how ideas about sex and the family were integral to the development of colonial legal theory and practice. Exploring both continuity and rupture over a longue durée, it revises conventional periodization and reframes longstanding historical questions about the dynamic interplay between colonizers and colonized, the military and civilian settlers, metropolitan and local politics, forms of knowledge and colonial power, as well as the apparent antinomy between French universalism and colonial difference.¹³ French legal assertions about Muslim sexual privilege and perversion recurred across regime changes and political reconfigurations, at once justifying domination and continually troubling the coherence of colonial legal order. This is not to say that these were timeless fantasies. They operated in specific ways at specific moments over the course of a century. My analysis of the repeated redeployment of such clichés helps in understanding their resilience, while also interrogating the sexual, racial, and civilizational assumptions on which these preconceptions relied in the past, and arguably to this day.

Gender and sex directly shaped diverse aspects of colonial policy, from land law and personal status to exceptional penal law. Civil law provided a ground and framework for more overtly repressive legal forms, including the notorious punitive administrative law, the “indigénat.” For some critics, the arbitrary exercise of colonial power should not, in fact, be understood as legal force. The discretionary policing and punishment of Algerians’ activities and movements nonetheless relied on legal categories: in particular, the classification of the vast majority of Algerians as “indigènes.”¹⁴ Fantasies of sexual difference, I argue, sustained these categories’ discriminatory and violent operation.

As legal historians have amply demonstrated, plural legal systems were a typical strategy of imperial governments. In the Algerian case as elsewhere, architects of the new juridical order claimed to be “preserving” the Ottoman state’s prior plural juridical organization, at least in the domain of private law. In doing so, they sought to guarantee an effective and efficient legal order in the newly conquered territory. In my account, this legal pluralism was not opposed to state-centered law, but nor was it the intentional tool of a presumptively coherent and unified colonial state. Rather than assuming the strategic self-evidence of French Algeria’s legal pluralism, I illustrate how its ground and authority remained perpetually troubled. In other words, while it appeared to solve some problems posed by colonial government, it also created new ones. A consideration of how gender both structured and complicated an ideally segmented legal order sheds new light on the immanent contradictions of such a legal system. As I show, the adjudication of questions about men’s and women’s legal status with respect to the family, sex, and property put French sovereignty repeatedly on trial.¹⁵

Within the framework of Algeria’s 1834 judicial organization, local Muslim law became French state law, effectively transforming both in the process. This local law was itself plural, comprising judges (qadis) from the Maliki school of Sunni Islamic jurisprudence that was followed by the majority of the population, Hanafi school qadis of the Ottoman Turkish governors and notables, decentralized tribal and customary jurisdictions overseen by local elites and religious leaders, and rabbinic courts for Algerian Jews. The French privileged qadis as the clearest analogues to French magistrates, building local judicial organization around these state-appointed Figures to administer Muslim law tribunals (mahakmas). After this multiform juridical organization was theoretically centralized and subordinated to French sovereignty, colonial jurists and administrators continued to negotiate the extent and limits of their own authority over local law, while Muslim jurists sought to carve out a space of relative autonomy in this highly asymmetrical structure. My account of these developments is indebted to previous scholarship on the institutional and social aspects of this history.¹⁶

While I trace the development of legal institutions and doctrines as well as the social dynamics of legal agency, my argument focuses on a capacious and cultural (rather than a narrowly formal or sociological) conception of law and legal history. I show, in other words, how texts and trials refracted and ramified concerns that extended beyond the confines of technical legal argumentation on the one hand, and the interests of jurists and litigants in the colonial legal field on the other.¹⁷ I do so with a distinct aim: to illuminate how contests over the legal status of Algerian men and women were implicated in wider conflicts over French efforts to assert colonial sovereignty. As a result, my source base both includes and casts beyond official legal texts and state archives to comprise an array of journalistic, academic, and novelistic writing. Reading from a variety of theoretical perspectives, I reconstruct the “cultural life” of Algerian colonial law, which is to say the material, political, and affective resources and resonances on which its elaboration and its powerful effects depended.¹⁸

Conflicts over models of colonization and legal authority emerged with the conquest in 1830 and continued to trouble the territory’s judicial organization for the next century. Across these struggles, sex was, in Michel Foucault’s apt phrase, “a dense transfer point for relations of power.”¹⁹ Foucault’s own investigation of the micropolitics of sexual regulation moved away from law in an effort to decenter state power. In directing his critique against the repressive function of law, he ironically took the discourse of sovereignty—its presumptive coherence, centralization, and uniformity of expression—at its own word.²⁰ By contrast, my emphasis on private law makes sovereignty’s contingency manifest by highlighting legal indecision over the organization and regulation of sexual and familial order.²¹ I study multiple moments of legal uncertainty: policy debates over Muslim conversion and mixed marriage; doctrine and jurisprudence that tested the French legality of Muslim polygamy and forced marriage; frustrated efforts to fix the meaning of the “Muslim family” in the creation of property titles. Because Algerians could and did exploit loopholes and inconsistencies in the law, legal efforts to shore up French sovereignty by recourse to claims about sex were never fully secure.²² At the same time, French law, while contested, had powerful, indeed ruinous, effects on Algerians, women, men, and children alike.

By adopting a view of sovereignty as unstable rather than internally coherent, this book reads colonial law as part of the history of French law, rather than as a parenthetical exception to or anomaly within it. More specifically, I show how the colonization of Algeria troubled the French fantasy of national legal homogeneity emblematized in and by the 1804 Civil Code—and the distinctions, between men and women, property and persons, contract and status, on which it was based. In glaring contrast to the Code’s stated ideal and mythology of national homogeneity, Algerian legal pluralism activated conflicts of law that were associated with the ancien régime’s patchwork of status and privileges.

Postrevolutionary projects of codification were supposed to abolish this domestic legal pluralism by creating a universal framework of civil law. As Jean-Marie Portalis explained in his introduction to the first articles of the Civil Code: “Up until now the diversity of customs created, in the same state, a hundred different statuses. The law, everywhere opposed to itself, divided citizens rather than uniting them.”²³ In rectifying this confusion, the Code claimed to encompass “the universality of things and persons.” Its architects adopted the triumvirate Roman framework of Persons, Things, and Actions (modes of acquiring property) as a systematizing plan.²⁴ “Personal status” no longer managed internal legal diversity as it had in the ancien régime. It applied internationally instead, following French persons beyond the territorial borders of the nation. These principles were laid out in the Code’s preliminary articles, which presumed a distinction between personal and territorial legal status. According to this framework, laws governing real property, as well as laws of police and security, were territorial. “Personal law” was an exception to territoriality that inhered in and followed persons when they traveled or lived abroad. The international legal specialist André Weiss later explained the distinction between territoriality and personality as a division within sovereignty itself: “The law has two different sovereignties: a territorial sovereignty and a personal sovereignty, one governing the ground, the other governing persons.”²⁵ Algerian colonization posed the relationship between these two sovereignties as a recurrent domestic—at once familial and political—problem.²⁶

The secularism of the Civil Code, which is to say, its separation between spiritual and temporal law, was integral to these efforts to nationally unify personal status law. Following principles established by postrevolutionary legal reform, the Code granted the state an exclusive power to oversee marriage law, thus distinguishing the civil contract of matrimony from its Catholic sacramental role. That power practically and symbolically expressed the rights of the sovereign, which were for Portalis “inalienable and imprescriptible.” Declaring marriage to be a “temporal object” over which the church should have no influence, he explained that “the Church can and must oversee the sanctity of the sacrament, but civil power alone must oversee the validity of the contract.”²⁷ In 1807, the Grand Sanhedrin, a meeting of French rabbinic authorities convoked by Napoléon, adopted the same strictures for French Jews by committing themselves to following civil marriage law. In many histories of French secularism, this institutionalization of a purely civil marriage contract appears as an inclusive achievement of civil legal equality. It was, in the words of Jean Baubérot, a “first threshold” in the long march toward the attainment of a fundamentally liberal French “laïcité.”²⁸ The history of Muslim (as well as Mosaic) personal status in Algeria exposes the limits of this progressive narrative by making manifest the double-edged operation of this universalizing civil law. The Code’s emphasis on state authority over marriage contracts was, in other words, not simply about establishing civil equality. The Algerian case makes clear how it also expressed sovereign power.

As recent critics have pointed out, state assertions of secularity, including in the regulation of marriage, designate the legitimate forms, expressions, and limits of religion, in public and private space and law. Political secularism, in this view, does not have a fixed ideological orientation or necessarily progressive telos. It is a variable modality of government, which polices both majority and minority religions, albeit in different ways and toward different ends.²⁹ From this perspective, the French state’s management of the Catholic Church’s role in colonization and its administration of Muslim law (alongside Jewish and customary law) in Algeria were not exceptional contradictions to the progressive history of secular French law.³⁰ Rather, the history of French Algeria illuminates how French secularism underpins sovereignty and delimits religion, both in the past and still today.

By establishing state control over marriage, the Civil Code did not only regulate religion; it also managed gender and sex. In focusing on the patriarchal excesses of Muslim law, colonial jurists effectively obscured the male privileges enshrined in the Code’s framework of private law. To promote national unity and public order, it sought to eliminate domestic legal conflicts, exemplified by those between ancien régime Roman and customary law, especially within families and between husbands and wives. The firm placement of legal authority in the hands of husbands and fathers of families contributed to this aim not only by commanding the “obedience” a wife owed to her husband, but also by giving him control over their joint assets. The Code’s regime of communal marital property privileged the conjugal family over the lineage family and made all management of property subject to the husband’s authorization. This emphasis on the protection of family property had a direct impact on the marital organization of sex. The differential criminal treatment of adultery confined women’s sexuality to marriage, while men’s extramarital sex was surrounded by legal protections, exemplified by the Code’s ban on paternity searches by illegitimate offspring. This same principle of marital unity also applied to international law, as women who married foreigners lost their French nationality, while foreign women who married a French man became French. The normative patriarchal family thus served practically and symbolically to unify and embody national law. The purportedly universalist Civil Code made French women’s personal status distinct and distinctly subordinated to that of men.³¹

Herein lies one of the deep and persistent ironies of colonial jurists’ repeated contention that the Civil Code was more advantageous to women than Muslim law. As numerous scholars have shown, Islamic law, including in Ottoman North Africa, granted women an independent legal identity and agency when it came to disposing of their property. Although the exercise of those provisions was conditioned by context, Muslim law broadly maintained married women’s legal personality and property rights in ways that French civil law did not.³² French women, not unlike Algerian Muslims, had an inferior civil as well as political status in French law. This embodied gender and sexual order was designed to protect French men’s sexual, economic, and political rights. In an effort to naturalize and valorize French civil law, colonial legal experts and politicians fixated on men’s sexual privileges in Muslim and customary law, while disavowing their own advantages under the Civil Code. Their doctrines and policy were both animated and unsettled by this contradiction.

Fantasies of Legal Power

French colonial policies were clearly motivated by economic, professional, and political investments. Jurists’ recurrent association of Muslim law with polygamy, forced marriage, and repudiation shaped those policies in crucial ways: from legal definitions of personhood and property to tactics of civil and land registry, from exceptional regimes of punishment to the refusal of political rights. In the process, an ostensibly private Muslim family law became integral to strategies of colonial government and, eventually, a site of potential resistance to the colonial state’s incursions. In order to understand these repeated deployments, we must analyze the affective dimensions of materially and politically interested claims. The fact that colonial jurists and politicians used sex to establish Algerians’ legal difference does not fully explain those arguments’ efficacy. Attending to the legal power of fantasy as well as the fantasy of legal power elucidates why the rhetoric of sexual difference took psychic as well as political hold.

Anticolonial psychiatrist Frantz Fanon famously analyzed the complex of sexual aggression and desire that motivated the “blanket indictment against the ‘sadistic and vampirish’ Algerian attitude toward women.” For Fanon, the material violence and rapaciousness of the conquest also took a psychic form that came to focus on the Algerian family and women as a site of struggle between French and Algerian men. French efforts to save women could never be clearly distinguished from a desire to possess them. Sexual aggression and solicitude, covetousness and concern, lust and legality, were, in other words, two sides of the same colonial coin. Fanon notes, as symptomatic of this ambivalent attitude, a “revealing reflection” by a lawyer who denounced Algerians for “concealing so many strange beauties” and a “cache of such prizes.”³³ I document the long legal history of this colonial sexual projection and disavowal.

Equivocal emotions did not only inspire artists, novelists, and travel writers; they also influenced colonial administrators and jurists. By studying what Teemu Ruskola has termed “legal Orientalism,” we see how this imaginary took concrete political and social form.³⁴ The operation of colonial law always relies on a compensatory fantasy, which is to say a denial of the inevitable gaps and uncertainties of knowledge entailed by rule over a distant and often defiant population. In Algeria, as elsewhere, colonial jurists and magistrates, many of whom arrived fresh from law school in the metropole, drew on increasingly developed forms and institutions of knowledge production in order to overcome considerable ignorance. In the process, they created a corpus of Muslim law that was refracted through a decidedly French lens. To fill their own epistemological gaps they relied on ministerial, parliamentary, and local reports on Algeria’s judicial organization, repeated translations of canonical texts of Islamic jurisprudence or fiqh, compendia of customary law, new colonial legal journals, geographical surveys, the creation of a Law Faculty in Algiers in 1879, and, eventually, in 1905, a monumental project to “codify” Algerian Muslim law along lines similar to the Civil Code.³⁵ Despite persistent challenges, jurists, administrators, and politicians regularly enacted a colonial legal fantasy: they issued judgments and policies as if they knew “Muslim law.”³⁶

It is helpful to recall here that, as Edward Said noted in his classic text, the discursive construction of Orientalism was as much based on “desires, repressions, investments, and projections” as it was on knowledge of empirical reality.³⁷ Critics of Said have pointed to the risk of reproducing a totalizing and Manichean opposition between the Orient and the West.³⁸ In exploring the fantasmatic aspect of legal Orientalism, I do not seek to reify and homogenize French and Muslim law, or to suggest that Muslim law was simply a projection of French jurists’ heated legal imaginations. Indeed, my account of the instability of French sovereignty—its long history of legal pluralism, the confusions of colonial jurisprudence, and the incomplete project of systematizing Algerian Muslim law—indicates precisely the opposite. Understanding these projects as fantasies in a psychoanalytic sense elucidates their tenuousness, while also explaining their tenacious and violent effects. As critic Jacqueline Rose has suggested, “The modern state enacts its authority as ghostly, fantasmatic authority. But it would be wrong to deduce from this—like those who misread Freud’s attention to fantasy as essentially trivializing—that the state is any less real for that.”³⁹ By demonstrating the recursive efforts to secure French colonial sovereignty through appeals to the no less certain ground of sexual difference, we better comprehend both the uncertainty and force of its discriminatory law.

Feminist scholars and historians have found the analytic framework of fantasy to be productive precisely because it accounts for how structures of power, even when precarious, produce real effects.⁴⁰ To be sure, economic interests in Algerian land prompted French jurists’ creation of a legal order that sequestered personal status from property law. Debates over the legal status of Muslim women shaped how colonial jurists constructed new jurisdictions and claimed their own legal authority. But to grasp how these arguments took hold in the juridical realm and beyond it, we must also grapple with these officials’ libidinal and affective investments in law. Such sentiments are not simply ideological veils for real material interests, nor are they mere metaphors of rule. They are, rather, as Ann Stoler has suggested, at the “heart” of colonial governmentality.⁴¹ The policies and practices of Algerian colonial officials were guided not only by raison d’état, but also by powerful desires. Juridical discussions of sexual relations and rights were, from this perspective, not just covers for other interests. They mattered because they mobilized and managed visceral and violent emotions connected to sex.

Affects are palpable across the colonial archive that I survey: in voluminous treatises written by jurists as well as in their tortured case law, in anxious reports written by land surveyors, and in speeches by parliamentarians, no less than in sensational copy written by journalists and sentimental prose written by novelists, including some who were also jurists. This diverse body of sources illustrates a deeply ambivalent relationship between the authors and their purported subjects, one that displays a simultaneous fascination with and repulsion toward the sexual privileges associated with Muslim law. These defensive reactions can be understood in psychoanalytic terms as denial, disavowal, and foreclosure, which is to say the repression, rejection, and refusal of their own thoughts, feelings, and desires.⁴² They reveal, in other words, unrecognized desires and fantasies that were regularly displaced or projected onto Algerian men and women.⁴³

Over and over again across a century of colonization, French jurists and journalists, politicians and publicists ritually rehearsed Algerian men’s purported privileges in their denunciation of the “intimate” sexual excesses of Muslim law, including polygamy, prepubescent marriage, and repudiation. Remarks by Marcel Savoyant, a jurist who graduated from the Law Faculty in Algiers and became political editor of the Courrier de Tlemcen, exemplify the dynamic of projective identification and disavowal on which these arguments relied. Assuming the position of the Algerian who benefited from the presumptive privileges of Muslim law, he thus explained why he would prefer these sexual advantages to full French citizenship, which required their renunciation: “The naturalized Muslim would no longer enjoy [ne jouirait plus] his personal status, which he prefers to the problematic advantages of voting rights [la carte d’électeur].” For Savoyant, these sexual rights were incompatible with Algerians’ accession to French men’s political rights. In his view, the difference—and indeed, inequality—between Algerians and French men would violate “public order” and hence grant them “incontestable advantages over us; they would enjoy all the prerogatives implied by the quality of the citizen … while benefiting from their ‘personal status’: polygamy, forced marriage, concubinage, repudiation, paternity searches.”⁴⁴ Savoyant both imagined Algerian men’s sexual license and refused it as irreconcilable with the sexual limits of citizenship.

Savoyant’s fantasmatic relation to Muslim subjects, like that of jurists and journalists before and after him, can be described in the paradoxical parlance of Jacques Lacan as “extimate.” It displays, that is, a fascination with and jealousy of an Other’s excessive sexual pleasure that reveals deep-seated but unrecognizable desires within the self. As an “alien kernel” that points to the subject’s own incompletion and undoing, desire for this transgressive pleasure or jouissance cannot be expressed in the language of the law (the Symbolic). That unacknowledged desire represents an intimate foreignness that is actually created, by the structure of social and psychic rules, as an internal excess.⁴⁵ Its avowal would rupture, to use the terminology of the Civil Code, both “public order” and the subject of the law. Fixation on the other’s pleasure, instead, expresses and exteriorizes those desires and thus preserves a fantasmatic sense of (masculine) wholeness or totality by establishing the other’s sexual difference from the self, while simultaneously indulging in their imagined fulfillment.⁴⁶ This conception of “extimacy” offers insight into the repetitive litany of charges against men’s sexual advantages in Muslim law. As Savoyant’s editorial suggests, these privileges embodied a reservoir of potential sexual powers and pleasures supposedly denied to French men, who, as citizens, were bound by the Civil Code. Muslim personal status in Algeria represented an inside/outside of the presumptive sovereign totality of French civil law, at once securing its purportedly superior coherence and risking to undo it at the same time.

This “extimate” projective (dis)identification was never stable. At moments, jurists and politicians let the apparently oppositional structure slip, revealing their identification with rather than repudiation of Muslim men’s pleasure. Indeed, French law itself left ample room for French men’s extramarital sex (and, one might add, marital rape), despite the Civil Code’s professed commitment to monogamous marriage. In one parliamentary debate in 1913, the Catholic monarchist deputy and lawyer Christian de Villebois-Mareuil jokingly pointed out that polygamy remained something of an unwritten—and hence unrecognized—French law. In a rejoinder to deputies’ protestations against Algerians’ polygamy, he proclaimed: “We apply it in France without a decree.” The quip registered a moment of recognition. According to the transcript, the chamber responded with laughter (On rit).⁴⁷ Such moments illuminate the revealing negation at work in the frequency of French men’s projection and denunciation of Muslim men’s sexual pleasures.

I argue that a totalizing and gendered fantasy of the Civil Code prompted such extimate projections. It was, after all, the Code’s legal imaginary that helped to shape Lacan’s own profoundly patriarchal conception of the Symbolic as a universal structure of “the law of kinship.”⁴⁸ To this day, the Civil Code operates, in the words of the celebrated late twentieth-century civil jurist Jean Carbonnier, as “an unforgettable symbolic system.” In his article devoted to the Code as a “realm of memory,” Carbonnier tellingly juxtaposed it to the Qur’an, as a parallel system of universal and imperial law: “Never since the appearance of the Qur’an had a book of laws shown such an ability to spread abroad—a feat all the more remarkable when one considers that the Code lacked the spur of religious faith that had driven the spread of Qur’anic law.”⁴⁹ According to Carbonnier, the secular French Code has remained “a symbol of unity,” so much so that he wondered “whether civil laws outside the Civil Code do not run the risk of remaining outside memory as well.”⁵⁰ My history of French Algeria counteracts that work of historical forgetting in order to reveal the negated memory of Muslim law in French law.

A Century of Legal Colonization

The official centenary of French Algeria (1830–1930) that frames this book’s chronology was a retrospective fiction that presented Algeria’s colonization as a monumental historical achievement of French domination and Algerian subjection. For Algerians, the event had a starkly opposite meaning: it symbolized French imperial hubris and tragic loss. Taking the artifice of this colonial century as my point of departure, I show how France’s fantasmatic sovereignty over the colony, in contrast to the mythic historical projections of the official celebration, was contested.⁵¹

Law was as important to Algeria’s colonization as military might, not least because France’s claim to the former possessions of the Ottoman regency remained uncertain after an initial victory in 1830. The leader of the regency, Hussein Dey, capitulated on July 5 to French forces under the leadership of General Bourmont. The territory’s fate nonetheless remained far from settled. Initiated by the politically embattled reactionary French monarch, Charles X, this military “conquest” was not motivated by a coherent colonial plan. When the Revolution of 1830 broke out in Paris three weeks after the Ottoman regency’s capitulation, France also underwent a regime change, making the status of French sovereignty in the ex-regency doubly insecure. This political and legal confusion did not diminish the violence and rapaciousness of the French army’s actions and exactions in the first years of the occupation under Louis Philippe’s July Monarchy (1830–1848). It did, however, pose challenges to establishing a stable system of rule, in light of Algerians’ forceful resistance as well as ambivalence toward colonization on the part of skeptical metropolitan politicians.⁵²

Proponents of colonization soon realized that securing French sovereignty depended on law. They thus returned to the arrangement of the Treaty of Capitulation and the legal protections—of religion, property, and “women”—that it offered.⁵³ These terms were regularly violated and renegotiated (property was violently seized and religious edifices desecrated, for example). The treaty nonetheless provided a framework for creating the colony’s juridical structure. Beginning in 1834, the French colonial state assumed authority over local tribunals. It directly employed qadis (judges) and muftis (jurists), regulating them and increasingly circumscribing their jurisdiction in successive reforms. In doing so, it wrought fundamental transformations in the structure of their authority and in the nature of legal procedure, as well as in the scope of Muslim law.⁵⁴

As I show in chapter 1, questions about religious and sexual difference, especially with respect to Algerian women’s status, instantiated the legal challenges posed by colonization. During the first four years of French occupation, metropolitan politicians engaged in contentious debates over the viability of the colony and the prospect of establishing a colonial rule of law. At the same time in Algiers, several women sought French legal protection by converting from Islam to Christianity. Their efforts caused widespread public consternation, prompting official efforts to clarify their legal status. By refusing their requests, French colonial officials renewed a commitment to “respecting Algerian women” and hence the purported authority (but not the autonomy) of a presumptively patriarchal Muslim law.

These cases demonstrate how assumptions about gender and the family were central to the government by plural civil law established at the outset of colonization. This history of legal pluralism unsettles conventional accounts of French colonial assimilationism.⁵⁵ As I show, the French colonial state consistently sought the assimilation not of Algerian people, but of Algerian land. Following the Revolution of 1848 and under the Second Republic (1848–1851), Algeria became “an integral part of French territory”—a legal extension of France. The creation of the three new departments of Alger, Oran, and Constantine granted a growing population of settlers of French origin (roughly 42,000 out of a combined “European” population of close to 110,000) access to parliamentary representation.⁵⁶ Algerian natives were not included. In the Second Empire (1852–1870), Napoléon III pursued a policy (the so-called Arab Kingdom) that both maintained and regulated Algerians’ legal difference. The 1865 sénatus-consulte played a decisive role in this organization. It recognized Algerians as French nationals, while mandating that they renounce their local law as a condition of citizenship.

French legislation adopted a different approach to Algerian people’s land, transforming and truncating Muslim legal jurisdiction over it in order to speed the transfer of property into French hands. The state took charge of distributing expropriated land to settlers. Subsequent policies of official colonization came to rely on legal land classifications, determining those territories that would be open to state seizure and private purchase and those where Algerians’ property rights and law remained intact. Algerian territory was thus divided into distinct categories: the “public domain” or beylik lands, which supposedly belonged to the former Ottoman regent and were claimed by the French state; religious trusts (habous), to which the state also eventually laid claim; collectively owned tribal lands (arch), which could not be purchased but whose size was limited by successive reforms; and finally, private property (melk), which was made available for purchase by European settlers.⁵⁷ The state and military oversaw this oftentimes chaotic process of legal appropriation, thus controlling settler access to land. By the middle of the century, advocates of civilian settlement launched new projects of colonization. Contesting the state monopoly, which they associated with the authoritarian Second Empire, they clamored to extend their rights to acquire property privately. As a result, many became fierce critics of Napoléon III’s “Arab Kingdom” policy, which relied on military-run Arab Bureaus to administer much of Algeria’s territory and population. In their view, the emperor’s land policy, and an 1863 sénatus-consulte in particular, extended too much protection to tribal lands that were held in common under Muslim law. These campaigns against the empire called for the extension of French civil law to Algerian land.

Chapter 2 analyzes how debates over the persistence of polygamy in the colony were directly linked to these efforts to appropriate and settle Algerian land. As I show, early approaches to colonial government did not uniformly represent polygamy as integral to a timeless Muslim law. They instead linked polygamy to Algerians’ nomadic social organization and viewed it as amenable to economic (i.e., property) reform as imagined by Saint-Simonian military men and administrators. This began to change in the 1860s, when, during debates over the nationality and citizenship of Algerian Jews and Muslims, polygamy came to symbolize the alien status of their religious law. While roughly thirty-five thousand Algerian Jews were granted full citizenship by the Crémieux Decree in 1870, an estimated population of three million Muslims continued to be governed by their local law. New concepts and categories of Muslim legal, religious, and sexual difference emerged at this moment and in connection with property reform that consolidated the legal construction of the “Muslim family.”

In 1870, the defeat of the Second Empire in the Franco-Prussian War brought an end to military rule in Algeria, opening the way for civilian government and greater settler influence under the Third Republic (1870–1940). Settler ascendency was further assured by the repression of the 1871 Moqrani Rebellion, a massive uprising in the areas of greater and lesser Kabylia (Kabylie). Measures of collective punishment exacted in its aftermath devastated these populations, sequestering and confiscating 446,000 hectares (1,102,090 acres) of land and charging 36 million francs in indemnities from rebel tribes.⁵⁸ The passage of the 1873 Warnier Law, which opened up Muslim land to purchase by settlers, further secured the material as well as political basis of settler domination. The law’s provisions encouraged a massive transfer of arable Algerian land into settler hands, some 563,762 hectares (1,393,086 acres) between 1878 and 1898.⁵⁹ Designed to dismantle Algerians’ collective and family real estate holdings by applying the Civil Code to land, the Warnier legislation at the same time promised to leave the Algerian people’s “Muslim law” intact.

While the history of expropriation in the colony is familiar to historians, chapter 3 offers new insight into how “Muslim family law”—as the purportedly intimate core of Muslim personal status law—was legally and ideologically distinguished from property law. Focusing on the devastating effects of the 1873 law, I show how French colonial interpretations of Muslim law unavoidably elided and confused questions of property and family, government and religion, even as the law’s structure appeared to distinguish between them. In the disingenuous rhetoric of these reformers, the law claimed to preserve “the intimate life” of Muslim families and religion, even as it carved up “family property.”⁶⁰ As I show, the designation of some domains of life (i.e., property) as extra-intimate legally disrupted Algerians’ ties to land while concentrating the regulation of intimacy on a new object: the “Muslim family.”

The end of the Second Empire and advent of the Third Republic appeared to secure the stability of civilian settler rule through the passage of new legislation governing both Algerian land and people. As part of the effort to secure the territory against revolt in the wake of the Moqrani Rebellion, an 1874 judicial reform granted French justices (juges de paix) extended jurisdiction in areas governed by Berber customary law. In 1881, the so-called law of the indigénat accorded punitive disciplinary power similar to that possessed by the military to civilian administrators of “mixed communes” (communes mixtes), in order to subjugate and terrorize the vast majority of Algerians who lived in these areas recently transferred from military to civilian control. These exceptional measures—a list of forty-one “special” infractions not included in common penal law—were supposedly only provisional, but the law was regularly renewed.

These new punitive powers abetted the application of land reform law that, while confused and chaotic, continued to dispossess Algerians of their property. Indeed, failure to comply with the 1873 law was one of the infractions punished by the indigénat. In 1882, the institution of a native civil registry (état civil) imposed patronymic family names on Algerians in order to assure the transparency of property titles and other legal documents. New laws on Algeria’s judicial organization in 1886 and 1889 further restricted the competency of qadis, enhancing the power of French magistrates to shape and interpret Muslim law. This massive expansion of legal policy and practice produced a voluminous record of doctrine and jurisprudence that was increasingly cataloged in new compendia and colonial legal reviews.

The purported preservation of local personal status and jurisdiction alongside the creation of new domains of competency for French magistrates multiplied sites of legal conflict that tested the extent and limits of French sovereignty. In chapter 4, I focus on the development of one highly charged site of contestation in order to show how gender and sex were at the core of these debates: the legality of the wilayat al-ijbar, or what the French called the “droit de djebr,” the father’s “right to force” a minor’s marriage in Islamic and Berber customary law. The question of “child marriage” was deployed in a variety of contexts in order to underwrite and explain why the French needed to intervene in and regulate Muslim law and Berber custom despite vows to preserve them. A defense of Algerian women’s marital consent thus became a linchpin in arguments for French legal sovereignty, both with respect to the desirability of French civil law and the exceptional legal treatment of “indigènes.” Trials brought before French courts and officials eventually helped to spur state projects to codify Muslim law and reform customary law.

Alongside conflicts between French and local civil law, tensions between military and civilian law and authority persisted in Algeria even after the transfer to civilian rule in 1870. Given that war (so-called pacification) continued in the southernmost reaches of the territory, a considerable military presence was maintained in garrisons in the civilian-administered north. The overlap between military and civilian legal regimes gave rise to their own jurisdictional conflicts, including debates over the legitimacy of exceptional military justice. In chapter 5 I show how sex, gender, and civilizational difference inflected these contests. An 1891 case involving a military doctor’s charges of sexual misconduct against a fellow officer in the native cavalry unit (called “spahis”) showcases how the fantasmatic integrity of colonial legality, masculinity, and racial dignity remained precarious, vulnerable to charges of perversion and corruption, even as French domination appeared to be reaching its height.

Fears of sexual and racial corruption also informed the biopolitics of colonial settlement. Legal measures contributed to efforts to foster and secure the European (and largely Catholic) population, including an 1889 law that granted French nationality to the children of migrants from Spain, Italy, and Malta. The law was designed to increase the overall size of the French settler population and to counteract separatist sentiment among foreign nationals. In 1898, Governor-General Édouard Lafferière estimated that of a total French population of 384,000, there were 109,000 who had been recently naturalized, including 53,000 Jews.⁶¹ The prominent presence of these “néo” French gave rise to new anxieties about a “foreign peril,” a powerful wave of antisemitic agitation, and a concerted effort to integrate them, especially through marriage. In response, demographers actively promoted unions among Catholic “Europeans” as a privileged modality of racial and national “fusion.” At the same time, jurists and administrators denounced unions between Europeans and Muslim Algerians as threatening to the integrity of French laws and French bodies. The law thus granted official recognition to a new idea of Algeria’s uniquely vigorous and virile “Latin” settler identity, one that was increasingly defiant of metropolitan authority and Muslim Algerians. The granting of budgetary independence to Algeria in 1901 and the creation of the délégations financières gave institutional and political expression to, while also curbing, Algerian settlers’ claims to autonomy.

Chapter 6 explores the demographic and legal treatment of so-called mixed marriages, especially between Muslim Algerians and European women, as integral to the history of these concerns over Algeria’s population and settlement. It traces how ideas of personal law were corporealized as the expression of bodies and desires, both Muslim and European. Although rare according to official statistics of the civil registry, these marriages provoked extensive juridical discussion about the sexual conflicts between Muslim and French law. In pondering these cases, jurists elaborated an embodied and civilizational account of personal law. Their agonizing over the legal effects of marriage for citizenship and nationality defined the exigencies of “public order,” the presumptive “dignity” of the Civil Code, and the secularity that it was supposed to enshrine.

This corporealized conception of Muslim law provided an impetus for denying Algerian subjects their full rights as citizens. The legal existence of polygamy alongside the question of marital constraint fueled jurists’ and politicians’ imagination of Muslim men’s sexual prerogatives, inciting extimate expressions of jealous condemnation. These emotionally charged accusations opposed new arguments for civic and political inclusion made by French-educated elites and their metropolitan advocates. Algerian military conscription, adopted in 1912 despite considerable resistance on the part of both settlers and Algerians, raised the stakes of this debate. Proposals to extend citizenship to a select elite of men who nonetheless maintained their Muslim personal status proliferated during the First World War. So-called Young Algerians insisted that cynical claims about Muslim law obscured how Algerians were, in fact, legally French. But even after the sacrifices of some 173,000 Algerians under the French flag, colonial jurists and politicians refused to recognize this apparent legal contradiction.⁶² The intolerable prospect of the polygamous citizen again blocked political rights. In limiting a 1919 law that was supposed to facilitate Algerians men’s access to full citizenship, Governor-General Charles Jonnart explained that “it is hard to admit that there might be polygamous citizens given that French law forbids polygamy.”⁶³

Chapter 7 returns to “child marriage” and polygamy in order to analyze why they remained such powerful features of political and legal argument. The chapter focuses on two reform debates: a project to codify Muslim law (the so-called Code Morand) and the proposed revisions to Algerians’ political status during and after the First World War. I analyze the political and psychic denials at work in assertions about the sexual superiority of French civil and political law. I further show how Young Algerians identified and answered these extimate fantasies about Muslim law by denouncing, in the words of the prominent lawyer Taleb Abdesselem, “the malicious insinuations of immorality and barbarism that are so generously attributed to it.”⁶⁴ My account restores a fuller sense of how intellectuals like Abdesselem did not fetishize French law but were, rather, its most incisive critics.

Although the 1919 Jonnart Law did not grant citizenship to men with Muslim status, it extended new political rights to selected noncitizens in local Algerian elections. This expansion of the political field raised new questions about the extent of Algerians’ political representation, as well as the meaning of their legal status and its prospective modernization, especially in the field of Berber customary law. This reformist project culminated in the adoption of two laws intended to ameliorate Kabyle women’s legal status with respect to marriage age as well as divorce and inheritance rights. Elaborated through a process of compromise and conciliation between French colonial jurists, politicians, and Kabyle representatives in the délégations financières, the laws seemed to present a colonial consensus that coincided with the official centenary celebrations of 1930 and its rhetoric of the civilizing mission. Meanwhile, even modest efforts to secure Algerian men’s political rights, such as those reclaimed by the Fédération des élus musulmans in 1927 and outlined in legislation drafted by the former governor-general and liberal senator Maurice Viollette, did not have the same success. Given the rejection of these initiatives, the events of the centenary appeared to be an elaborate spectacle of political and psychic refusal.

In order to understand these dynamics of denial, chapter 8 explores the connection between discussions of political representation and efforts at customary-law reform by following the career of Ferdinand Duchêne, a colonial magistrate whose prize-winning novels sentimentalized the sufferings of Algerian women, especially from Kabylia, where he had long served. The chapter charts the success of Duchêne’s novels in the interwar period, his role on commissions drawn up to reform Berber customary law, and the critical ire that his fiction drew on the part of Algerian intellectuals. In their journalism, the Young Algerians countered these political emotions by offering up their own sentimentalized vision of Algerian women. Together, these competing visions illustrate an intimate and supplementary relationship between law and fiction on the eve of the 1930 centenary.

In the epilogue I analyze the centenary itself as a compensatory fantasy that revealed by denying the affective underpinnings of French claims to sovereignty in Algeria. If government officials and politicians clung to a rhetoric of exclusion, French feminists and Algerian intellectuals challenged that fantasy in an effort to reconceive the legal and sexual ground of political inclusion. Although unsuccessful at the time, their arguments remain touchstones of an alternative conception of French law that does not draw on fears of Muslim sex in order to secure its sovereignty.