The instrumentalization of Islamic jurisprudence to expropriate Algerian tribal lands during the French occupation. The example of the fatwa attached to General Charon's Circular of June 15, 1849.

Abstract

In the beginning of the Second French Republic, the problem of insufficient Beylik lands for the 1848 settlement project in Algeria became apparent. The search for land for settlement became a top priority for the occupation's administration, leading them to seek any loophole that could be exploited to secure it. In this context, the debate resurfaced regarding what was then called Dr. Worms' "Kharaj Theory", based on the principle of the waqf nature of Maghreb lands after the Islamic Feth. By applying this concept chronologically, this meant considering most of the real estate in Algeria as waqf.

This classification led to recognize a right of legal ownership over these lands for the state in power, thus authorizing the "Imam" or sovereign to dispose of them. This implied, according to "the right of occupation", to replace this "Imam" or sovereign and exercise the right to dispose of this legal ownership. This right ultimately allowed the transfer of lands through "exchange" with the actual owners from the Algerian tribes, and therefore the possibility of abandoning them without difficulty for the benefit of French and European settlers.

This study chose as an example of French instrumentalization of the Islamic jurisprudence, a key circular from General Charon, dated June 15, 1849, that included the exploitation of an authentic fatwa from Islamic jurisprudence, used to support and justify the expropriation, and to proceed with the famous 'cantonment' operations of Algerian tribes, without any hindrance or even the existence of an organized legal framework, given that the cantonment project had been abandoned in favour of the Senatus-Consulte law of April 22, 1863.

To achieve this objective, the study relied primarily on the historical method, as well as on content analysis. The former allowed for the study of the colonial legislative intervention before 1849, and to present the author of the publication, General Charon, who revived "the kharedj theory". The latter served to analyse and critique the content of the publication, including the fatwa, as well as their aims.

The colonial administration, aided by their scientific class, was remarkably capable of adapting to the Algerian Islamic environment, as demonstrated by the results. It sought to undermine the foundational concept of Algerian land ownership, to present itself as sovereign of Algerian Muslims despite religious differences and Charia barriers, and to find justifications, however provisional, for the expropriation of tribal property, even by exploiting disagreements among Muslim jurists in order to prevent tribal revolutions and uprisings. The accumulation of such practices, grounded in theoretical research, contributed to create the "Algerian Islamic law" which is designed to provide the administration with means of indirect control.

Key words: dispossession; Settlement; cantonment policy; General Charon.