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FORUM: RESPONSE
A Note on the Study of Indian Legal History
Elizabeth Kolsky
| In his commentary, "The Historiography of Difference," Kunal Parker hits on two crucial and interrelated themes that form the framework for debates in modern South Asian history: colonialism and subaltern agency. In this short response to Parker's comment, I address both of these issues and also offer some insights about methodological obstacles in the writing of Indian legal history.1 |
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The first important point raised by Parker is the question of colonialism and its impact on modern South Asian states and societies. Beginning with the work of Bernard S. Cohn and continuing through two generations of historians, the study of India's colonial period has produced a tremendous body of scholarship, much of it emphasizing links between colonial knowledge, power, and the transformation of Indian society.2 As Parker notes, a major theme within this field of study is the role of ideas about "difference" in the formation of liberal imperial states. While Parker is correct in noting the breadth and depth of recent work on colonial difference, he is off the mark when he analyzes this scholarship as writing "the problem of colonialism as a problem of difference." (I should also add that the problem of difference and colonial universalism described by Partha Chatterjee should not be conflated, as Parker suggests, with Ranajit Guha's notion of a domain of autonomous subaltern agency—more on this in a bit.3) The purpose of critical scholarship on colonial South Asia is not simply to reduce colonialism to the matter of difference but rather to explain, explore, and historicize the underlying logic of modernity itself. |
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Historians of the colonial world have convincingly argued that many modern ideas and institutions of law, education, medicine, science, criminal justice, and so forth were tested first in the colonies and subsequently implemented in the metropoles.4 Liberal experimentation in the colonies was enabled by the absence of democracy and public accountability and defined by the preferential and unequal treatment given to citizens over subjects. In my article, I explored the mobilization of ideas about Indian difference in constructing a universal law, the Code of Criminal Procedure (1861), perforated by privilege and inequality. Although this Code was initially meant to provide one set of laws and law courts for all, various arguments about Indian difference—religious, racial, cultural, and civilizational—were marshaled over time to support the exemption of European British subjects from local criminal jurisdiction. As such, the rule of law in India must be understood from its inception as integrally linked to a principle of racial inequality and to a practice of legal exceptionalism. The larger purpose of my piece was not just to analyze colonial law qua colonial law but to highlight the salience of post-colonial legacies—the colonial codes remain on the books in the subcontinent today—and also to contribute to a global conversation about the historical linkages between today's liberal democracies and yesterday's colonial authoritarianisms. For if Partha Chatterjee's "rule of colonial difference" defined and distorted attempts to establish modern regimes of governance in the colonies, and if these attempts formed the experimental basis for metropolitan democracies, then it stands to reason that difference, exclusion, and exemption might still define how states and structures continue to behave. That is to say, it is worth considering the fact that the legal history and relevance of colonialism does not lie dormant in the archives. |
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In response to Parker's question, "What remains compelling about difference?" I cannot help but think about the treatment of the "unlawful combatants" detained at Guantanamo Bay.5 As Lisa Hajjar notes in her piece "Torture and the Future," George W. Bush's "mantra of 'spreading freedom'" is sharply at odds with the images of torture at Abu Ghraib prison and the Bush administration's blatant violation of the Geneva Conventions.6 The denial of all legal rights to the prisoners held at Guantanamo Bay is underscored by the logic that terrorists do not deserve legal protection. This is not a historically unprecendented concept. The idea that different groups of people can be legally differentiated and thereby granted greater and lesser legal privileges even by a liberal state founded on the rule of law closely resembles what we find in colonial India. As I demonstrated in my article, although some British administrators in India steadfastly defended the principle that "There can be no equality of protection where justice is not equally and on equal terms accessible to all," the prevailing wisdom held that "the doctrine of equal laws for all" had to be squared with the "actual state of things."7 Placing Europeans and Indians on an equal footing before the law was seen by most British officials as the subversion of justice rather than the fulfillment of it and therefore the principle of equality was deemed to be unsuited to India. I certainly do not mean to equate the colonized subjects of British India with the suspected terrorists and detainees at Guantanamo Bay. Rather, I want to emphasize the ways in which modern states founded on the principle of a rule of law have historically laid claim to special conditions to establish exceptions to their own rules. U.S. Speaker of the House Dennis Hastert made this point quite clearly to the press when, in response to a question about the status of prisoners at Guantanamo Bay, he claimed, "There are exceptions to the universal and we are dealing with the exception here."8 |
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In its emphasis on legislative debates, official correspondence, and governmental proceedings, my article reflects a "top-down" approach to legal history rather than a view from the ground. This leads us into the second historiographical issue highlighted by Parker, which is the question of how ordinary people experienced British colonialism and shaped the formation of the colonial state. Parker addresses this theme by examining the contrasting approaches of Ranajit Guha, the intellectual leader of the Subaltern Studies collective, and Lauren Benton, legal and world historian. |
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The study of Indian legal history through the examination of legislative debates, case law, and organs of public opinion provides us with a unique opportunity to simultaneously comprehend the workings of the colonial state alongside the rhythms of everyday life. However, due to the unavailability of sources, Indian legal histories framed from the bottom up are few and far between and difficult to produce. The colonial court system was defined by a hierarchy of legal tribunals ranging from the local panchayats (village councils) up to the Privy Council. Until 1875, there was no official centralized system of law reporting and after 1875 the only courts of records were the High Courts. (Prior to 1875, mostly higher level Sadr court decisions and some zillah, or district, court decisions were sporadically and privately published.) Presently, many of the High Court record rooms are either very difficult to access and/or very poorly maintained. Therefore, from the perspective of doing legal history, the issue of sources presents a serious methodological obstacle: how can we investigate the ways in which everyday Indians negotiated with, subverted, and reinforced colonial laws and law courts when the remaining historical record is so spotty and inconsistent? Members of the Subaltern Studies collective such as Ranajit Guha have proposed creative ways to "read against the grain" of colonial records. As the field of Indian legal history expands its scope of vision, we as scholars will have to be vigilant and imaginative in the ways we approach the critical issues of law, power, and agency. |
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Notes
1. See Elizabeth Kolsky, "Codification and the Rule of Colonial Difference: Criminal Procedure in British India," and Kunal M. Parker, "The Historiography of Difference, Law and History Review 23 (2005): 631–83 and 685–95.
2. See Bernard S. Cohn, Colonialism and Its Forms of Knowledge: The British in India (Princeton: Princeton University Press, 1996) and Nicholas B. Dirks, Castes of Mind: Colonialism and the Making of Modern India (Princeton: Princeton University Press, 2001).
3. Partha Chatterjee, Nationalist Thought and the Colonial World: A Derivative Discourse (Minneapolis: University of Minnesota Press, 1993) and Ranajit Guha, ed., Writings on South Asian History and Society, Subaltern Studies 3 (Delhi: Oxford University Press, 1994).
4. See Eric Stokes, The English Utilitarians and India (Oxford: Clarendon Press, 1959) and Uday Singh Mehta, Liberalism and Empire: A Study in Nineteenth-Century British Liberal Thought (Chicago: University of Chicago Press, 1999).
5. See the Brief Amici Curae of Legal Historians submitted in support of the petitioners in the U.S. Supreme Court case of Shafiq Rasul, et al., Petitioners v. George Bush, et al., Respondents, available online at: http://www.law.uc.edu/archives/butlerdata/liberty/gitmo/legalhistorians.pdf
6. Lisa Hajjar, "Torture and the Future," Interventions: A Middle East Report Online Feature (http://www.merip.org/mero/interventions/hajjar_interv.html).
7. Letter No. 44 (1834) from the Court of Directors to the Government of India in NAI, Home (Public).
8. Scott Michaelson and Scott Cutler Shershow, "The Guantanamo 'Black Hole': The Law of War 'and the Sovereign Exception,'" January 12, 2004 (http://usa.mediamonitors.net/layout/set/print/content/view/full/3849).
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