Judith Surkis, Sex, Law, and Sovereignty in French Algeria, 1830-1930 (Cornell University Press, 2019).

Jadaliyya (J): What made you write this book?

Judith Surkis (JS): My work is explicitly framed as a history of the present, namely an effort to understand how and why Islamophobia in France—and beyond—is bound up with fantasies about not only religion and race, but also gender and sex. There is a longer colonial history to today’s recycled orientalist tropes of patriarchal Muslim men and victimized Muslim women. The headscarf debate, which resulted in France’s 2004 law banning religious symbols from public schools, the 2010 “burqa ban” on face coverings, and President Emmanuel Macron’s recent initiative to penalize “virginity tests” in order to combat Islamic “separatism” point to how these colonial fantasies are regularly reanimated in an effort to secure French political and legal power– with dubious effects on actual women. My book, rather than taking colonial history as a causal explanation, presents it as a problem: why, I asked, is the “Muslim question” so often posed as one about gender and sex? I aimed to interrogate something that now seems obvious and self-evident. In turning to the history of French Algeria, I wanted to account for the contingent emergence of all-too familiar sexualized figures and understand their persistence—over the settler colonial project’s longue durée, and after it. Taking the legal and broader cultural fascination with the “Muslim family” as a point of departure, I endeavored to understand how they became integral to the theory and practice of French colonization and government.

J: What particular topics, issues, and literatures does the book address?

JS: In the early stages of my research, I happened upon a dusty collection of digests of Algerian colonial legislation and jurisprudence in the basement of the Langdell law library at Harvard. The good news for scholars is that many of them have since been digitized! At that time, however, I could not rely on word searches to pre-select a corpus and cases to study. I spent months turning each page of every volume of archived jurisprudence. This survey allowed me to perceive connections between questions that had remained separate in existing literature on Algeria, namely the legal treatment of Muslim land and the discriminatory legal classification of Muslim persons. What became visible through my reading and subsequent archival research was the close historical link between them. Colonial expropriation, which was at the heart of the settler colonial project, increasingly relied on the application of secular French civil law to real property, while “preserving” (in order to better govern) a “Muslim personal status” that regulated, in the words of one legislator, “religion and the intimate life of families.” In the process, “Muslim law” was theoretically detached from land and grounded, instead, in Muslim persons—and their bodies.

In tracing this genealogy, I detail how understanding Muslim law as part of the history of French law teaches us about the nexus between secularism and gender inequality. As in other imperial contexts, the rule of difference in colonial Algeria focused attention on native patriarchal excesses and their effects on women. Claims about Algerian men’s exorbitant sexual rights particularized and stigmatized Muslim religion and law. They also obscured the patriarchal structure of the French Civil Code, which, unlike Muslim law, did not recognize married women’s property. Eroticized figures of “Muslim” sexual domination structured jurists’ claims about the French Code’s superior, secular, and “civilized” character. The colonial management of “Muslim property,” as well as jurisprudence in cases of polygamy, “forced,” and “mixed marriage” endeavored to secure this hierarchized legal distinction and its violent material and political effects.  As I show, Algerian litigants and “young Algerian” critics of colonial legal domination made this observation at the time, underscoring that “Muslim law” was, in fact, “French law”—both because it was officially recognized as such and because it shaped ideas of French citizenship and sovereignty. Understanding legal secularism, not as a coherent ideology, but as a mode of governmentality, was central to my analysis. In dialogue with scholars—historians, anthropologists, and legal theorists—who have worked on secularism and “family law exceptionalism” in parallel and connected contexts in North Africa and the Middle East, but also South Asia and the United States, I came to understand the elaboration of “family law” was a global process, with variegated and uneven effects.

Even as I sought to map this shift over time, there were aspects of my archive that returned repeatedly—in legal treatises, case law, political speeches and novels—namely, a fixation on the idea that Muslim men had access to excessive pleasure that French men, for all their political and economic power, were legally denied. How can we understand the persistence of these presumptions? My historically and theoretically robust account of the legal fantasy that both coveted and condemned Muslim men’s imagined sexual privileges answers this question. This insistent and repetitive discourse exemplified what Jacques Lacan referred to as “extimacy”—the projection of an unrecognized desire within the self onto a proximate and racialized other that produces a structure of jealousy, resentment, and hatred. These projections, as Frantz Fanon famously held, motivated the “blanket indictment against the ‘sadistic and vampirish’ Algerian attitude toward women.” I trace how these ideas were woven into colonial legal practices. Understanding them as fantasmatic in a psychoanalytic sense elucidates their tenuousness, while also explaining their tenacious and violent effects in securing an otherwise unstable French colonial sovereignty.

J: How does this book connect to and/or depart from your previous work?

JS: My first book, Sexing the Citizen: Morality and Masculinity in France, 1870-1920, contained several forays into colonial history by indicating how politicized claims about Muslim law and colonial Algerian subjects’ sexuality worked to confirm the masculine ideal of French citizenship and republican secularism. Sex, Law, and Sovereignty elaborates on the argument there. By focusing on squarely on the colonial context and law, I draw out how French models of sovereignty and citizenship rested on the secular legal organization of gender, marriage, and sex.

J: Who do you hope will read this book, and what sort of impact would you like it to have?

JS:  The subject of colonial law, which, at first glance, can seem dense, dry, and highly technical. I aim to bring it alive by drawing out emotionally, as well as legally complex stories—of women who tried to convert to Catholicism to escape unhappy family situations, of others who pled passionately to obtain property titles, and of others who sought to have their marriages annulled. I also explore how colonial administrators and jurists, including some who were also novelists—had affective as well as material investments in colonial law. In adopting this broad cultural approach, I address not just legal historians, but also readers interested in the histories of gender and religion, secularism and sexuality, and the family and the economy—in France and North Africa, and beyond.

I am also interested in the cautionary lessons of this history, particularly with respect to how, by the end of the period I study, some French women’s rights activists reprised imperialist arguments elaborated by colonial jurists in order to justify Algerian men’s exclusion from French citizenship. In detailing how gender, religious, and racial inequalities were mutually constituted in the context of colonial law, I open onto a different, decolonial perspective for feminist theory and practice.

J: What other projects are you working on now?

JS: My current work shifts to the 1970s and 1980s and from the framework of the imperial nation-state to the domain of international relations and law. It excavates how the colonial contests over Muslim law studied in Sex, Law, and Sovereignty were reproduced and reconfigured in later public debates over migration, diplomacy, private law, and postcolonial development. My new upcoming book, The Intimate Life of International Law: Children, Development, and Decolonization, studies the politicization of family law after Algerian independence in 1962. More specifically, I explore international divorce and custody disputes between France and Algeria as sites of emotionally charged political and diplomatic, as well as familial, conflict. In these cases, French courts granted custody to French mothers, while Algerian courts and fathers likewise claimed custody, asserting the sovereignty of Algerian family law over French-born Algerian children. Drawing on untapped public and private archives, I detail how feminist and émigré activism converged with sensationalized media coverage and high-level diplomatic negotiations in deciding the fate of thousands of Franco-Algerian children. Highlighting the ambivalence of emigration for newly independent Algerians alongside rising xenophobia and racism in France, the book historicizes the politicization of culture, religion, and law on both sides of the Mediterranean.

J: Can you say something about your choice of artist Hayv Kahraman’s painting, The Triangle for your cover art?

JS: I feel really honored that Hayv Kahraman allowed me to use her work. While my book draws on the colonial archive, I felt it important not to reproduce its eroticized imaginary on the cover. I had seen Kahraman’s paintings in the Journal of Middle East Women’s Studies in 2015. I later learned that the series from which this work is drawn was entitled “Extimacy”—a concept which, as I noted above, I use to analyze the inside/outside place of “Muslim law” in French law. In addition to being incredibly beautiful, Kahraman’s work critically recasts the binary logics, gendered violence, subjective and material dispossession of colonialism and imperialist war in powerful ways that I found resonated with my own project. I was drawn to this painting in particular for many reasons. Not least, is how it casts the relationship between the three female figures and their ground, given my interest in thinking about the historical relationship between family law and colonial land. For me, it summons a collective project of carving out, redrawing, and perhaps reclaiming, their own place and space as both an idea and a practice.


Excerpt from the book (from the Introduction)

In this book, I argue that sexual fantasies did not just inspire artwork; they also prompted the writing and practice of law. Long after the conquest, Algeria’s legal colonization remained beholden to the image of a hidden “interior life and cloistered women.” French promises to preserve local gender order worked in tandem with a concerted campaign to strip Algerians of their land, which was also made subject to new legal classification. Over the course of a century, the law applied to desirable real estate, categorized as real property (le statut réel), was increasingly assimilated to a purportedly universal French civil law, while the “personal status” (le statut personnel) associated with family law and masculine privilege became a repository of Muslim legal difference.

Once Algeria was formally declared a French possession in 1834, colonial officials instituted a plural legal order that recognized local law, while subordinating it to French oversight. Colonial officials regularly expressed ambivalence toward this system of Muslim, Berber customary, and, for most Algerian Jews until 1870, Mosaic law. Assuming a Janus-faced approach, officials at once upheld and criticized local law, especially its treatment of women. In their accounts, legal sexual privileges, including polygamy, repudiation, and child marriage, epitomized Algerian men’s difference from French men. Apparent 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. This French fixation on men’s sexual “privileges” in Muslim marriage became a staple of colonial legal and political argument, especially after an 1865 sénatus-consulte (a law adopted by the Senate under the Second Empire) mandated that Muslim men, while granted French nationality, had to renounce their law in order to become full-fledged citizens. This rhetoric and policy created a rule of difference in the name of maintaining male citizens’ sexual equality before the law.

French jurists made Muslim law status an obstacle to Algerians’ political assimilation, but not to the appropriation of their land. In 1873, major property reform (the “Warnier Law”) territorialized French civil law in large swaths of the colony’s richest agricultural region, the Tell. In these areas, the state nullified Muslim law with respect to property title and sale in order to “Frenchify” it.  At the same time, the legislation claimed to “in no way alter the personal status or rules of inheritance of natives.” Algerian land thus became fully French, while the Algerians living on it remained Muslim persons (albeit with French nationality). They were, that is, governed by a Muslim law that was nonetheless recognized by the French colonial state. This law supposedly stood in the way of Muslim men’s adoption of French civil law for their family matters—but not for questions of real estate.

Material and political interest do not alone explain how such sexualized conceptions of Muslim legal difference endured. I argue that they were also imbued with powerful affective investments. My account goes beyond showing how erotic imagery legitimated the colonization of a dissolute and “feminized” Orient in order to expose deeply gendered logics at the heart of legal personhood and property. The sexual politics that I detail were an integral part of the shifting dynamics of French rule in the elaboration of land legislation, the administrative regulation of the Algerian population, and the fostering of “European” settlement. They determined who would be subject to what kind of law by giving form and feeling to definitions of Frenchness as well as its idealized gender and familial norms. Algerians would eventually lay claim to their personal status as, in the words of Ferhat Abbas, their “real country,” or pays réel. My focus is not, however, on this tactical, if ironic, appropriation of a French colonial category. I show instead how a colonial conception of Algerian Muslim law became part of French law in the first place.

Emotionally powerful ideas about Muslim sex and Muslim families were central to French efforts to secure sovereignty over the territory and population of France’s prized settler colony. Progressively detached from land, the French colonial construction of Muslim law was bound to the bodies of Algerian persons and their families. More than just a symbol of Muslim difference, family law became an instrument of colonial rule. As in other imperial contexts, this rule of difference focused attention on the patriarchal excesses of native law and its effects on women. It also served to obscure the patriarchal structure of French civil law. This colonial legal genealogy elucidates how “the Muslim question” became a sexual question—and why it remains one, still today.

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. 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.” 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.

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.

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. 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.