Ithaca, NY, Cornell University Press, 2019, ISBN: 9781501739507; 354pp.; Price: £23.00
University of London Institute in Paris
Date accessed: 22 October, 2021
In recent decades historians, postcolonial theorists and feminist scholars have demonstrated how, in a variety of geographical settings, gendered stereotypes supported the conquest and domination of overseas territories by European colonial regimes. Judith Surkis’s ‘colonial legal genealogy’ of Algeria under French rule significantly develops these now well-established observations by tracing the historically contingent emergence of a legal regime in which ‘sexual fantasies and persistent desires’ underpinned the regulation of both land and legal personhood (p.14). Her objective, she explains, is to ‘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’ (p.8). By recognizing the affective dimension of the production, application and negotiation of colonial law, Surkis provides new perspectives on the workings of colonial power in Algeria, and makes an exceptional contribution to historical understanding of the colonial legal regime.
Amongst the emotions expressed by French jurists, journalists and writers working in Algeria, or observing Algeria from the metropole, Surkis highlights the significance of the ambivalent interplay between desire and disgust. French commentators were at once fascinated and repelled by practices such as polygamy and the droit de djebr, or the Algerian father’s “right to force” the marriage of his children. Employing Lacanian theory, Surkis explains this paradoxical positioning as ‘extimate’, displaying ‘a fascination with and jealousy of an Other’s excessive sexual pleasure that reveals deep-seated but unrecognizable desires within the self’ (p.16). This theory provides a potent analytical framework for the examination of a legal regime which differentiated between French and Muslim civil status, yet recognized and regulated the latter within French law. The ‘at once intimate and foreign’ (p.120) position of Muslim personal status in French law meant that, as Surkis demonstrates, ‘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’ (p.7).
Revising conventional periodization, which often presents the 1870 transition from military to civilian authority in Algeria as a turning point in colonial administration, Surkis opts for a longue durée approach which brings to light the resilience of the fantasies which underpinned the legal regime whilst remaining alert to the ways in which these fantasies operated in different ways amidst shifting relations between soldiers, civil servants, metropolitan and settler representatives, and Algerian Muslims and Jews. In the years following the invasion of the regency in 1830, French jurists and military officials fantasized about saving Algerian women from Muslim men, and thereby eliminating what they perceived as Muslim men’s sexual privileges, but disagreed as to how to achieve this. ‘This primal scene of imperial rescue’, argues Surkis, ‘enacted originary conflicts of Algerian colonial government that would continue for more than a century’ (p.33). The application of the French Civil Code across the conquered territory, some jurists advanced, would quash Muslim men’s sexual privilege, and save Muslim women from oppression. But would Muslim men—so jealously patriarchal—accept such an attack on their presumptive privileges without resorting to rebellion, others worried; and might the very nature of their patriarchy - so seemingly at odds with the civilized ideals of French manhood - not be incompatible with French civil status?
This dilemma played out in different ways across the following century, shaping a legal regime which first, in 1834, recognized a distinct Muslim jurisdiction within French law, and then, following the Warnier Law of 1873, distinguished between Muslim property—the regulation of which came under the French Civil Code—and Muslim persons, who did not. ‘French real estate law’, Surkis underlines, ‘was inscribed onto Algerian land, while Muslim personal status was attached to Algerian bodies and families’ (p.100). This observation calls into question classic accounts of French policy in Algeria as broadly assimilationist, and nuances historiography which presents assimilation as a dominant policy trend across the empire until the early 20th century. (1)
The Warnier Law of 1873, Surkis demonstrates, not only facilitated the expropriation of land, but established the legal construction of “the Muslim family” as ‘a repository of affectively invested moral and cultural values’ (p.91). Although the law formally recognized and preserved these moral and cultural values as constitutive of Muslim personal status, French jurists, journalists and writers repeatedly condemned them as barbaric, seeking and finding ways to assert French legal sovereignty over the new terrain of “the Muslim family”. Intervention in this terrain, Surkis explains, often took the form of ‘bureaucratic regulation’ which maintained a formal division between the French Civil Code and Muslim personal status whilst ensuring French officials assumed more direct control over Muslim bodies; jurists continued their quest to save Muslim women from Muslim men whilst assuring these men their “traditional” authority was being respected (p.122).
Reinforcing her meticulous analysis of legal texts and juridical discussions with equally close attention to journalistic discourse, Surkis shows how intervention in matters related to Muslim personal status relied on appeals to feelings of horror, fear and sympathy in the French public. As the mass press expanded in the metropole and the settler colony from the 1880s, the figures of the suffering Muslim woman and the barbaric Muslim man gained wide purchase in the colonial imaginary, diffused in serialized fiction and scandalous news stories. Public outcry over “child marriage” in the last decades of the 19th century, Surkis shows, contributed to campaigns for marriage reform and the codification of Muslim and customary law. The fracture between metropolitan and settler publics, however, stalled reform projects: in favour of colonial autonomy and hostile to Muslim assimilation, settler journalists defended the purity of French law. Despite their opposing positions, advocates and detractors of reform nevertheless established ‘an understanding of indigenous legal difference in visceral moral and physical terms’ (p.149).
In tracing the development of this corporealized conception of Muslim difference, Surkis not only provides insight into how religious identification became racialized in French Algeria, but underlines the sexed underpinnings of republican citizenship. In this way, Sex, Law, and Sovereignty builds very directly on the observations made in Surkis’s previous work, Sexing the Citizen, regarding the disciplining of male desire under the Third Republic. (2) The sexual excess perceived as inherent to Muslim masculinity was widely considered incompatible with a dominant republican understanding of citizenship based on regulated male sexual desire. As Algerian journalists and intellectuals raised the prospect of Muslim political emancipation—particularly following the introduction of obligatory military service for Algerians in 1912—opponents of political reform repeatedly pointed to Muslim men’s sexual excess as an insurmountable obstacle. The extremely limited electoral reform enacted by the government in 1919 put an end neither to Algerian demands for political participation, nor to anxious evaluation of its risks by French jurists and journalists; as Surkis notes, ‘the specter of the “polygamous citizen” haunted these discussions’ (p.237).
These fears, Surkis forcefully argues, were not the antithesis but rather a component part of the sentimentalism which characterized the legal and cultural discourse of the interwar era—an era marked, in Gary Wilder’s view, by the emergence of ‘colonial humanism’ as expressed in policies ‘shaped by a dual imperative to transform and to preserve indigenous societies simultaneously’. (3) Surkis’s insistence on the dynamic interplay of sympathy and disgust from the earliest years of French presence in Algeria, indeed, suggests a longer timeframe and wider geography than recognized by Wilder in the emergence of this field of colonial thought. Her description of a colonial legal structure which maintained the particular within the universal, moreover, exemplifies Wilder’s description of ‘France as an imperial nation-state organized around a constitutive contradiction between political universality and particularity.’ (4)
Although this contradiction could, and did, serve the interests of French colonizers, it also created tensions which individual Algerians attempted to exploit to their advantage, and which évolué intellectuals of the interwar era highlighted in an effort to expose French prejudice. This emphasis on the instability of the legal regime as it emerged through historical contingency is central to Surkis’s argument and consistent throughout the work. As she explains, ‘rather than assuming the strategic self-evidence of French Algeria’s legal pluralism, I illustrate how its ground and authority remained perpetually troubled’ (p.7). To do so, she provides fascinating examples drawn from trial records demonstrating how Arab, Kabyle and Jewish men and women navigated the legal apparatus of the colony, appealing to either their particular personal status or the sovereignty of the French Civil Code, depending on their aspirations to marriage, divorce or inheritance. While evidence of this nature can often be partial and fragmentary in the archive, Surkis’s extensive research and skillful mediation between legal, journalistic and literary texts weaves these examples into a rich and compelling argument, revealing the deep historical significance of these isolated acts of agency in circumstances of constraint. In their often considered engagement with the legal regime, these litigants appear as precursors to more systematic critique by the évolués—or French-educated Muslim elite—of the interwar era.
These intellectuals, as Surkis notes, have often been overlooked in a teleological nationalist historiography which focuses on the emergence of the mass political movements of the 1920s and 1930s. In carefully analysing the ways in which ‘Algerian intellectuals […] seized on the representation of Algerian women as an urgent political, epistemological, and emotional question’, Surkis reveals the extent of their critical engagement with the institutions of French colonial authority, and the discourses these institutions generated (p.280). Reading the newspaper articles and literature penned by these writers, Surkis underlines their expressions of ‘sentimental suffering and hope for an alternative affective future’ (p.272). While, amidst the centenary of French rule in Algeria, the French public celebrated the hackneyed literary works of jurists-cum-novelists like Ferdinand Duchêne, who regurgitated Orientalist depictions of oppressed Muslim women and abusive Muslim men, Algerian intellectuals looked to the future, exposing the fact that the real obstacle to assimilation was not the unchanging native character, but the prejudice of the French colonisers.
Surkis’s insistence on the perpetually troubled foundations of the colonial legal regime also leads her to draw attention to recurring conflicts amongst colonisers, particularly related to the ‘competing models of legality and masculinity, professional honor and dignity’ (p.178) espoused by French military and civil authorities. This competition, she demonstrates, did not end with the transition from military to civilian rule in 1870, but continued to shape dominant understandings of republican manhood which foregrounded sexual self-discipline as the basis of citizenship. Surkis illustrates this point with the extended analysis of a fascinating case from the early 1890s, in which the conflict between military and civilian justice—a conflict which would be more widely publicised just years later by the Dreyfus Affair—was already much in evidence. In the case discussed by Surkis, in which a French military doctor accused a fellow officer of sexual contact with Algerian subalterns, military authorities judged the doctor’s exposure of the scandal as more shameful than the sexual behaviour itself; for civilian critics, however, military efforts to hush up the controversy ‘exemplified the sexual danger of special mœurs and special laws’ (p.179), further fuelling efforts to police male sexual desire as a national and racial imperative.
Although Surkis’s analysis ends with the centenary celebrations of 1930, the desires and fantasies she exposes persist in postcolonial French society. In recent months, in the context of debates surrounding the “law against separatism”—legislation designed to facilitate the state’s fight against radical Islamism—French politicians and journalists have questioned whether hijab-wearing Muslim mothers should be allowed to accompany children on school trips. The bill approved by the Senate in April 2021 included measures preventing parents on school trips from wearing ‘conspicuous’ religious attire, and an amendment designed to prevent the wearing of ‘burkinis’ in public pools. This latest iteration of the controversy surrounding the Muslim “veil”, in which anxieties about the oppression and instrumentalization of women by Muslim men have been much in evidence, draws on the long-standing desires and fantasies so ably exposed by Surkis in her genealogy of the colonial legal regime. In this way Surkis clearly achieves her objective of explaining how “the Muslim question” became a sexual question—and why it remains one, still today’ (p.6).
- Raymond Betts, Assimilation and Association in French Colonial Theory (New York and London: Columbia University Press, 1961) Back to (1)
- Judith Surkis, Sexing the Citizen: Morality and Masculinity in France, 1870-1920 (Ithaca and London: Cornell University Press, 2006) Back to (2)
- Gary Wilder, The French Imperial Nation-State: Negritude and Colonial Humanism between the Two World Wars (Chicago: Uni of Chicago Press, 2005), pp.4-5 Back to (3)
- Gary Wilder, The French Imperial Nation-State: Negritude and Colonial Humanism between the Two World Wars (Chicago: Uni of Chicago Press, 2005), p.5 Back to (4)