Legalism from Below

In many cases, if we wish to understand the history, structure, and functioning of the legal system, we should focus much more attention on the actions of the members of the subject society than on those of the imperialists.^[582]

One corollary of the deep-rooted (Western) ideology of law's “civilizing mission”— in which subjection to imperial power brings with it the gift of justice and social order—is the myth that indigenous people are “lawless”, or else are “primitives” with “savage customs” as opposed to legal ideas and doctrines of their own.^[583] Early work on law and administration in modern colonial settings—in particular India and Southern Africa—tended to frame law first and foremost as the emissary of imperi­alism.

the areas least penetrated by Europe (including much of the Arabian peninsula) saw the least comprehensive attempts to adopt Western-style legal systems. Yet the initial—and often the most comprehensive attempts to recast local legal systems along Western lines were taken not by regimes under direct control of Europe but by ambitious, centralizing elites (in Iran, the Ottoman Empire, and Egypt) who often worked to stave off further Western penetration.^[586]

Native resistance to imperial hegemony was not limited to overt rebellion and pro­test, but could also take the form of powerful native elites looking to consolidate their own power by reframing their own laws and institutions.

Recent archival and ethnographic research by lawyers, anthropologists, and legal historians, working on (post)colonial courtroom records and the interactions of “everyday law” has reframed scholarly interest in indigenous agency, beyond the study of native elites. Beginning in the 1960s, Marc Galanter’s work on legal plu­ralism in (post)colonial India has focused explicitly on access to justice for “back­ward classes”; “oppressed,” “vulnerable,” and “disadvantaged” groups, including “untouchables”; and other questions relating to (remade) “indigenous” legal traditions, religions, and castes.^[587] Galanter describes a long and gradual process— from 1858, when the British crown supplanted the administration of the East India Company, onward—whereby dispute-settlement shifted “... from local tribunals (and local notables) to the government’s courts”:

The common law courts undertook to deal with the merits of a single transac­tion or offense, isolated from the related disputes among the parties and their supporters. The “fireside equities” and qualifying circumstances known to the in­digenous tribunal were excluded from the court’s consideration. In accordance with the precept of “equality before the law,” the status and ties of the parties, matters of moment to an indigenous tribunal, were deliberately ignored. And un­like the indigenous tribunals which sought compromise or face-saving solutions acceptable to all parties, the government’s courts dispensed clear- cut “all or none” decisions. Decrees were enforced by extra-local force and were not subject to the delays and protracted negotiations which abounded when decisions were en­forced by informal pressures. Thus “larger prizes” were available to successful litigants and these winnings might be grasped independently of the assent of local opinion.^[588]

The colonial courts of British India, in others words, were attractive to ordinary native litigants. Comparative research on litigation conducted in colonial courts in the Spanish Americas reveals a comparable situation: “In the sixteenth century, some suits were brought against Spaniards by Indians, but most of the litigation in the Indian General Court in New Spain involved Indian groups suing other Indian groups over access or rights to resources like land and water.”^[589] As Calavita states: “Women in Hawaii used colonial law to contest the violence that was part of traditional patriarchal relations; colonial law was also central to the politics of slave resistance in the British West Indies in the eighteenth century; and women in sixteenth century Istanbul went to the courthouse, an affront to customary gender practices, to challenge their subordination by local and colonial male authorities.”^[590] Galanter’s point, however, is that these local actors, and their legal representatives, effectively shaped and changed (post)colonial legal cultures through their repeated interactions with (post)colonial government agents and structures: “Traditional society is not passively regulated by the modern system; it uses the system for its own ends.

Within any given legal order, some litigants may “... have power to manage, to ex­ploit, to manipulate, avoid, or evade the existing order for their own ends; for others law is a manifestation of other people’s power that confronts them; and, of course, there are many gradations in between.”^[593] Research on (post)colonial courtroom records suggest that some local agents, working within specific historical contexts, played an active role in shaping colonial legal cultures through their repeated eve­ryday interactions with legal structures and officials. “Postcolonial critics remind us that the colonies were sites of legal experimentation in which European powers invented new forms of sovereignty and rights of contract and property, spatial orders and regulated intimacies, racialized communities and subjects for management and control.”^[594] Socio-legal categories, bureaucratic practices, and technologies invented and practiced in the colonies did not remain confined to the colonies.^[595] Legal exper­imentation in the colonies also shaped and changed the legal culture of the “home­land” (as we saw with the example of Viscount Haldane and the work of the British Judicial Committee of the Privy Council in section 3). Detailed archival research, moreover, reveals these colonial “sites of legal experimentation” as—sometimes ar­bitrary, illogical, and inchoate—jurisdictional arenas, rather than sites where colo­nial powers simply attempted to impose and extend their command:

In the eighteenth century, colonial women, natives, and slaves sued their social superiors before royal judges in increasing numbers.

Ordinary litigants, native and colonial, shaped and recast “hegemonic” imperial cultures as they sought to vindicate (new) “rights in law,” negotiating and maneuvering their way through colonial courtrooms.

As we have seen, the history of law's empire stretches back to the ancient and medieval eras, at the same time as it extends far beyond any (twentieth-century) narrative of imperial decline and the “rise of the nation state.” It incorporates the study of—ideological and practical—imperial “repertoires of rule,” while simul­taneously revealing how imperial and colonial governance was repeatedly shaped and reshaped by the thought-worlds and situated practices of both ruling and ruled. “In modernity, the paradigm location of the juridical has been the nation-state, a location necessarily matching the constituted and constituent dimensions of the juridical.”^[597] And yet:

Imperialism... is an ancient form of rule that, over the centuries, has operated through ideological, social, political, and legal means. It has developed a formi­dable arsenal of technologies of governance. Indeed, new mechanisms of gov­ernance, such as international institutions, often reproduce and serve the logic of Empire and the “civilizing mission,” whether through the Mandate System of the League of Nations, the United Nations itself, or the International Financial Institutions. Not only do new technologies of governance reproduce colonial rela­tions, but very old forms of management, suppression, and control persist.^[598]

Thinking through empire opens up multiple, new, “locations of the juridical”— challenging and reframing ideas about law, bureaucracy, and the practice of gov­ernment and rule that “we” might otherwise tend to take for granted.

Acknowledgments

With thanks to Akhila Yechury and Dimitri Kastritsis for bibliographical help and advice—and to Peter Fitzpatrick for the inspiration to think “beyond the box.”

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