Review of Sex, Law, and Sovereignty in French Algeria, 1830-1930

Historians of gender, sexuality, and empire have long been at the forefront of the scholarly effort to analyze how the Western obsession with the sexuality of both white and non-white women has shaped modern class, race, and gender hierarchies across the world. Historian Judith Surkis’s new monograph Sex, Law, and Sovereignty in French Algeria presents a tremendous new addition to this field, as she demonstrates that the Orientalist sexual fantasies at the heart of the French colonial project in Algeria were central to France’s effort to maintain sovereignty over the Muslim population of its most important colony. More specifically, Surkis argues that French fantasies about Algerian Muslims’ sexual behaviors and Islamic law—particularly as it pertained to issues of polygamy and child marriage—were not just fantastical French representations of the “Other.” Using case studies of what she describes as “multiple moments of legal uncertainty” in the first century of French colonial Algeria (1830–1930), Surkis analyzes how French sexual fantasies about Algerian Muslims shaped the practice and writing of colonial law in French Algeria (9). These fantasies, she argues, provided the affective basis for the construction of a complex legal framework in colonial Algeria that facilitated both the expropriation of Algerian property and the French regime’s marginalization of Algerian Muslims from French citizenship.

Surkis describes her book as an attempt to “reconstruct the ‘cultural life’ of Algerian colonial law” (8). One of the great achievements of this book is that it forces us, through its creative use of sources, to think differently about the Algerian colonial archive. Although historians of gender and empire have notably led the effort to “read against the grain” of the colonial archive, Surkis’s book is one of the first to apply these approaches to the analysis of the French empire, and specifically the Algerian colonial context. Her source base includes a fairly exhaustive survey of the existing French-language archives of colonial Algeria and legal treatises of the period, surveys of numerous journalistic and academic sources, and most intriguingly, salacious romance novels written by French lawyers working in Algeria during the nineteenth and early twentieth centuries. Yet Surkis also brings her training in feminist and critical theory to her study of “legal Orientalism” in nineteenth-century Algeria (13). She clearly draws inspiration from the significant body of scholarship on gender, sexuality, and empire, which, with a few notable exceptions, has not made its presence felt in the broader historiography of colonial Algeria, a field that has been dominated by more traditional social history in recent decades. More directly, she adapts Jacques Lacan’s description of “extimacy,” or the “fascination with and jealousy of the Other’s excessive sexual pleasure that reveals deep-seated but unrecognized desires within the self ” (16) to analyze what she describes as the “negated memory of Muslim law in French law” (18).

The first half of the book explores the interconnected issues of sovereignty, property expropriation, and the development of colonial legal structures in Algeria in the aftermath of the French conquest in 1830 that enabled the creation of distinct legal categories for “French” and “Muslim” personal status and land. Surkis argues that in the immediate aftermath of the conquest, the uncertainty about French sovereignty and control over Algerian territory led officials to invest in law as a means to symbolically organize the chaotic landscape and legitimate the French claim to Algeria. An 1834 ruling enacted the new system of dual tribunals, in which Muslim jurists and Jewish rabbis (until rabbinical tribunals were abolished in 1841), who became French government officials, oversaw matters relating to “religious law” and “civil status” for indigenous Algerians. Yet French law still had primacy over Muslim and Jewish law in Algeria, and Surkis uses specific cases to illustrate how gender—and specifically issues of family law—shaped the constantly evolving power dynamics between French authorities and Algerian Muslims during the early decades of colonization.

Despite upholding a basic level of authority for Muslim law, the French saw it as a symbol of Muslim inferiority. Surkis analyzes how polygamy became a “sexualized symbol of native legal difference” (55), defined as “decadent and primitive” (56) in contrast to the French Civil Code, which defined marriage as the engagement of two individuals. This seeming incompatibility between the “civilized” secular French law and the primitive, sexually deviant Muslim law was codified through the 1856 Senatus-Consulte, which declared that Muslim and Jewish “indigènes” of Algeria were subjects, rather than citizens, of France and could only become citizens through the full renunciation of their personal status (i.e., adherence to shari‘a or Mosaic law) and the adoption of the French civil code. The material consequences of this legal distinction can be seen in the implementation of the 1873 Warnier Law, which assimilated Algerian property law into French civil law but maintained Muslim “personal status and inheritance” as a separate legal category (most Algerian Jews had been assimilated as French citizens through the 1871 Crémieux decree). In other words, property was assigned to territory, but “personal status” was assigned to bodies; even if an Algerian Muslim left Algeria for France, their citizenship status would remain tied to their “personal status” or their adherence to Islamic law. As the Warnier Law was designed explicitly to facilitate the transfer of Algerian property into French hands, this distinction forced French officials to legally define who held the title to Algerian properties, which involved defining “Muslim families” within a structure that was legible to the French.

The second half of the book explores the issue of legal reform. Although some reformers sought to extend political rights to Algerian men in exchange for military service in the early twentieth century, French fantasies about the sexual rights of Muslim men and their incompatibility with French law and values continued to dominate discussions over citizenship, rights, and the reform of colonial law. While French discourses, from jurists in Algeria to metropolitan feminists, saw the “plight” of oppressed Muslim women as the target of reform, Algerian Muslim elites spoke up in defense of Muslim law and culture, in some cases directly addressing French Orientalist fantasies at the root of reformist projects. These are the subjects of the final two chapters of the book, and the space where Surkis drives home the point—largely through her analysis of civilizational discourses about Muslim sexuality and marriage customs in romance novels and popular fiction—that these fantasies functioned most effectively at the level of elite discourse. She argues that because it was French jurists themselves who wrote these “sentimental fictions,” they illustrate how colonial law itself drew on feelings and fantasy as much as reality.

One key question the book raises, however, concerns the issue of race, and more specifically, how the relationship between French Orientalist sexual fantasies and colonial law influenced the development of a racial conception of Algerian Muslims. Surkis carefully avoids directly using the term race, despite building a significant body of evidence and an analytical framework that specifically illustrates the evolution of French discourses on Algerian Muslims as a racial category, rather than just a religious minority. This is particularly evident in her analysis of the implications of both the 1865 Senatus-Consulte and the 1873 Warnier Law on the embodiment of Muslim “personal status,” which she discusses over multiple chapters. She analyzes, for instance, how French colonial officials frequently rejected the assimilation of Algerian Muslims into French society due to their adherence to “incompatible” sexual “privileges” such as polygamy, child marriage, and repudiation. Yet cases of religious conversion illustrate that the converts maintained their originary personal status, despite their change in religious status. Thus, an Algerian Muslim convert to Christianity became an “indigène Catholique” rather than a French citizen. Likewise, a French woman who converted to Islam did not automatically become an “indigène,” as this status belonged solely to those born in Algerian territory. Surkis describes this situation as an “ethnicized understanding of personal status,” and makes the case that this is tied directly to the secular nature of French law, in which conversion was a matter of personal belief, rather than legal status, and became bound directly to Muslim bodies rather than territory (186). Considering that historians have long been analyzing similar processes of European antisemitism against Jewish populations during this same period as the development of a specifically racial mythology about Jews, it is somewhat disconcerting to see this ongoing attachment to the narrative that the French systems of discrimination against Muslim Algerians—which are documented in great detail in this book—were only about religion, rather than race.

Nevertheless, Surkis’s analyses also offer up important new paths for further research, including the consideration of other spaces we might look for evidence of Algerians working within and against colonial law, and what opinions we might find about the reform of “backward” customary law among less elite Algerians. More broadly, this book’s introduction of gender and sexuality into colonial Algerian history brings a wave of new energy to the field. Yet scholars who work outside of the geographical boundaries of the Maghreb and the French empire, and particularly those working in the global history of gender and sexuality, will appreciate its combination of rigorous archival research and theoretical insights; it is a book that will certainly serve as a model to future scholars.