In Sex, Law, and Sovereignty in French Algeria, Judith Surkis enters the debate about the construction of the Algerian legal system under French colonization and argues that fantastical depictions and orientalist views inspired jurists as they developed the legal code in French Algeria. Significantly, she argues that sexual fantasies about Arab women did far more than simply inspire orientalist arts; they were also responsible for the production and execution of law. By aiming to preserve the local gender order, the French produced two separate legal codes: law regarding property and personal status law, both of which were absorbed into the French Civil Code. Ultimately, this produced a legal order that recognized Algerian legal structures but subordinated them to French oversight. Moreover, Surkis argues that “conflicts between local law and the French Civil Code instituted a sexualized hierarchy of civil status that simultaneously disqualified Algerian men from citizenship and made Algerian women’s legal status a recurrent problem” (pp. 4-5). As a result, Algerian Muslim law became an integral part of French law in the nineteenth century.
In making her argument, Surkis analyzes “repeated redeployment” of clichés such as the importance of polygamy, child marriage, and the so-called predatory sexuality of Muslim men to make sense of their resilience, while simultaneously “interrogating the sexual, racial, and civilizational assumptions on which these preconceptions relied in the past, and arguably to this day” (p. 7). Surkis finds that French legal experts looked to maintain the Ottoman system of legal pluralism, but rather than it functioning in opposition to French law or being easily subsumed into it, Surkis argues that its “ground and authority remained perpetually troubled” (p. 7). Rather than looking at the sociological conception of law and legal history, she spends a great deal of time looking at both its cultural effects and milieu. To Surkis, personal status law became a critical expression of sovereignty, and the colonization of Algeria troubled the French fantasy of national legal homogeneity.
In her first three chapters, Surkis raises questions about the separation of personal status law and property law. In chapter 1, she argues that the French did not seek the assimilation of Algerian people. Instead, their aim was exclusively to absorb Algerian property. In chapter 2, she argues that early colonial governance did not frame polygamy as something essential to the Algerian people or Algerian society, but as a structure linked “to Algerians’ nomadic social organization and viewed as amenable to economic … reform as imagined by Saint-Simonian military men and administrators” (pp. 20-21). In chapter 3, Surkis argues that the French juxtaposed questions of property and family, government and religion, and other controversial issues even as the law produced distinctions between these categories.
In her next three chapters, Surkis examines a number of legal scandals and argues that they both questioned and strengthened the legitimacy of French law. In chapter 4, she examines public discussions about the “droit de djebr,” or the right of fathers to choose their daughters’ partners. Ultimately, questions about the droit de djebr led the French to label Algerian law as backwards and savage, thereby creating a rationale for French intrusion into Muslim law. In doing so, French legal constructions of “Muslim personal status” simultaneously “upheld and condemned” the droit de djebr. In chapter 5, Surkis examines accusations of sodomy in the French military, and argues that these accusations effectively placed French military law on trial. While French attitudes toward the droit de djebr gave weight to women’s testimony, young men in the French military were “mocked and marginalized” (p. 153). In the end, the attack on military law coincided with racialized and sexualized conceptions of the nation and its civil law. Military law, much like Islamic law, appeared both deviant and foreign to critics. In chapter 6, Surkis argues that “colonial legal construction of Muslim personal status elaborated a corporealized conception of Islam,” which colonial jurists and administrators gradually linked to the thought of racist demographers (p. 182).
In her final chapters, Surkis examines the fixation on sex among journalists, politicians, magistrates, authors, and other public figures. She finds that French fixation and, at times, revulsion toward Algerian Muslims’ sexual mores caused the French to restrict Muslim legal and political rights. In chapter 7, Surkis discusses the Young Algerians, who “critiqued the status of Muslim law in French law” and argued that Muslim law in Algeria was a French legal construction (p. 219). In chapter 8, Surkis analyzes colonial literature about Algeria, especially as it relates to the differences between law and morality between the French and Algerians. She argues that “sentimental and exoticized depictions,” which showed Muslim customs in a critical light, “spurred colonial legal reform” (p. 251). As French citizens were able to “see” what was occurring in Algeria, they were able to push the French legal establishment to contest Algerian customs and strengthen the role of French civil law.
Ultimately, Surkis’s book is a welcome addition to the literature on the construction of the colonial legal system in Algeria during the nineteenth and early twentieth centuries. By emphasizing the dual construction of property law, which was easily absorbed into the French Civil Code, and personal status law, which was fraught with controversy and evolved into a system of legal pluralism, Surkis redefines our knowledge about the mechanics of colonial governance. In doing so, she argues that, in consequence of gendered and sexualized depictions and fantasies, Algerian Muslim law was subsumed into the French Civil Code and became an integral part of French law. As a result, historians must take Muslim law seriously when examining nineteenth-century French legal history.
