SOAS Research Online

Abstract

This chapter studies the juridical fiction of “native law” in the German colonial jurisdiction in relation to the perception of Islam in East Africa. The argument is that the German concept of “native law” was a haphazard and reactive development in the vicissitudes of colonial politics, which increasingly produced exclusionary effects toward Islam. It emerged from a constitutional conflict in Berlin, solved by the introduction of Consular Law for Europeans and “native law” fore everyone else. This not only invoked an older perception about the immiscibility of European and Ottoman law, but the blunt jurisdictional duality and increasingly racialised notion of the “native” was ill-equipped for the fine-tuned social hierarchies and cosmopolitan plurality of the East African coast. Certain groups of migrants were subsequently exempted from being “native”, but only if they were “non-Mohammedan”. Yet even though Islam was seen as incompatible with German law and relegated to “native law”, it was increasingly excluded from its codification. Early Orientalist efforts to create relevant Islamic codices for the East African coast were soon dismissed in favour of a nativist conceptualisation and ethnographic determination of “native customs”. Against these, Muslim practices appeared as a foreign if not deteriorating element, doubly excluded as incompatible with both “civilization” and those being “civilized.”