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FORUM: COMMENT


The Historiography of Difference

Kunal M. Parker


Part I. Within the truly prodigious outpouring of self-consciously "postcolonial" scholarship on colonial India since 1980, it is little exaggeration to state that the ontology of colonialism has been figured as difference: its production, its management, its transgression, and its obtrusion. This is the case whether the scholar's disciplinary affiliation has been anthropology, history, literary studies, politics, or sociology and whether or not the scholar has been formally associated with the now-famous Subaltern Studies series. This is also the case whether the specific subject at hand has been caste or gender, nationalism or communalism, peasants or workers, state or non-state practices, elite or non-elite discourses, formal or informal knowledges, histories or memories.1 1
      To be sure, this focus on difference is hardly unique to the recent study of colonial India. It is a part of contemporary Western academic thought and practice generally and possesses a venerable lineage stretching back, depending on how one plots it, at least to the reaction against the Enlightenment (something that is of immediate relevance here). Nevertheless, it remains true that the contemporary study of colonial India—precisely because it so strongly inflects "postcolonial studies" generally—has contributed significantly to the intensification of our apprehension of difference. In recent years, scholars across the disciplines who would ordinarily have no connection to India have found themselves reading work on colonial India to absorb and use its insights. 2
      I identify the rendering of colonialism as difference within contemporary scholarship on colonial India to establish the larger historiographical context within which both the forum articles might be situated. For both Mithi Mukherjee's "Justice, War, and the Imperium" and Elizabeth Kolsky's "Codification and the Rule of Colonial Difference" fit squarely, it seems to me, within the scholarly tradition that writes the problem of colonialism as a problem of difference.2 I invite both authors to respond to this characterization and to what follows. 3
      At this intellectual juncture, I submit, one simply takes difference as a given. We already know that every historical object (a discourse, claim, etc.) is beset with difference—it either excludes something or is constituted by something it seeks to exclude. We also already have at our disposal techniques for making difference present. How should this sense of always already sensing the presence of difference—and always already knowing how to make it present—shape the way we talk about it? What remains compelling about difference? 4
      One point of entry into this loose—and ultimately inexhaustible—conglomeration of questions might lie in a recent critique of the Subaltern Studies founder Ranajit Guha's celebrated book Dominance without Hegemony. The critic, Lauren Benton, is the author of the recently published and widely acclaimed book Law and Colonial Cultures: Legal Regimes in World History, 1400–1900.3 5
      Benton is self-avowedly opposed to any claims of absolute difference or autonomy—her way of demonstrating her opposition is by showing the ubiquity of mutual constitution. She sees Guha as arguing for the absolute separateness of the subaltern in his famous "dominance without hegemony" formulation: "Guha holds fast to the autonomy of the subaltern; for him, the intricacies of colonial administration and indigenous bourgeois conciliation are reduced to historical epiphenomena, a pair of 'failed' agendas, precisely because the subaltern stands outside this relation, a not-very-attentive bystander to all the fuss."4 6
      Benton argues that Guha is simply wrong because any claim about the autonomy of subaltern "consciousness" or "culture" is always already prefigured, contained, and constituted. "The autonomy that [Guha] ascribes to a realm of culture standing outside the colonial relation is illusory in the sense that it is, itself, a discursive product of colonial politics. Indigenous litigants at times assert and define their legal standing in the course of maneuvering through colonial legal institutions in ways that reinforce their authority. And the autonomy of indigenous legal authorities is a claim sometimes extended by colonial authorities themselves."5 Instead, Benton offers us a model of legal pluralism, one in which colonizer and colonized engage in a centuries-long conversation about the patterning of legal orders that culminates in the emergence of a colonial state that supervises the boundaries between different legal/cultural systems. What we are given is difference figured as a process of mutual constitution. 7
      We have here two models of writing difference: that of Guha and that of Benton. One can readily demonstrate an equivalence between them—each attempts to produce difference vis-à-vis a certain background claim through recourse to notions of distance. Guha's project was directed against then-existing claims about the autonomy and self-sufficiency of a sphere of politics constituted by colonists and indigenous bourgeois elites; he sought to produce difference by invoking distance between subaltern consciousness and elite politics. In his own words, "Subaltern Studies made its debut by arguing that there was no such unified and singular domain of politics and the latter was, to the contrary, structurally split between an elite and a subaltern part, each of which was autonomous in its own way."6 Benton's project is directed in part against Guha's claims about the autonomy and self-sufficiency of subaltern consciousness. Where Guha produces difference by invoking distance, Benton produces difference within subaltern consciousness, as it were, by curtailing distance and invoking the proximity of mutual constitution. 8
      But if one can show the equivalences between Guha and Benton, one can also show Guha and Benton to be quite different from each other—this would be Benton's own preference. Unlike Guha, Benton self-consciously denies herself the privilege of constructing any object—for example, subaltern consciousness—that she endows with autonomy. She might represent this refusal as an act of intellectual integrity or simply as evidence of the advance of poststructuralist knowledge over its predecessors. 9
      The way that I have alternately joined and separated Guha and Benton in the preceding paragraphs is a readily available technique for producing difference. I will repeat this technique in what follows.

 10
Part II. Overlapping ideas about history and race and law run through the British colonial project in India. It would not be incorrect to state that history and race and law in the colonial project are nothing other than alternative names for—or strategies for dealing with—difference.7 11
      Read together, Mukherjee and Kolsky deal with the histories of two alternative approaches to the problem of difference in the British Empire, the anti-Enlightenment approach of Edmund Burke (Mukherjee) and the Enlightenment approach of Jeremy Bentham and his liberal utilitarian successors (Kolsky). While Burke's approach was expressed with passionate intensity in his late eighteenth-century writings on India, the liberal utilitarians' approach was picked up and instantiated in various nineteenth-century codification projects. 12
      In the elegant prose of the political philosopher Uday Mehta, the difference between Burke and the liberal utilitarians inheres in their varying attitude toward the difference that colonized Indians increasingly came to represent in the British imagination. According to Mehta, for liberal utilitarians, "other people's experience must be viewed as lacking coherence—as being a singular, halting moment in time. ..."8 Liberal utilitarians' confidence in reason, progress, and the march of universal history made it possible to view Indians' present difference as merely provisional—something that should, could, and would be rewritten. Codes were confidently imagined as way of accomplishing a sharp break with an irrationality figured as India's past and present. Bentham chillingly expressed this sense of the revisability of Indians' present affiliations in an essay on transferring English law to India: "The world has been a field of change: Egypt no longer worships the goddess Isis, and India may cast off its devotion to Bramah. ..."9 13
      For Burke, on the other hand, other people's present difference was not something to be erased in the forward march of universal history. According to Mehta, Burke "can and does view the unfamiliar from a perspective that does not a priori assume its provisionality. Instead, he thinks in terms of concepts through which the coherence of other people's lives can, in principle, become evident as a concrete and experienced reality and not as an abstract possibility that can stand out clearly only when projected onto the temporal canvas of the future. ... From an experiential standpoint [other people's difference] does not acquire its density on account of being hitched to a more meaningful and rational teleology."10 Burke freely equated the radicals of the French Revolution with rapacious Britons in India—he saw both as rending the fabric of other people's lives with reckless confidence. Not surprisingly, he was no partisan of codification that sought to effect a radical new beginning. 14
      Mukherjee and Kolsky offer us rich accounts of the fates of these varying impulses. Mukherjee's major contribution is in showing that Burke did not restrict himself to exhorting his fellow Britons to approach Indians' difference with respect, but went further insofar as he sought to concretize his impulses in a vision of the politico-legal structure of the empire. By examining Burke's speeches in the Hastings impeachment trial, Mukherjee draws our attention to what she calls Burke's vision of a "deterritorialized juridical-imperial sovereignty that would be exercised not in the pursuit of the exclusive interest of the colonizing nation but, rather, in ensuring that colonial administrators in India remained firmly grounded in 'native' society and prevented from exercising absolute and arbitrary power over it."11 15
      Mukherjee suggests that, ever sensitive to the variability of legal institutions among the different peoples of the empire, Burke preferred natural law or the law of nations over the common law as the structural law of the empire. Such a choice not only represented a historically unprecedented extension of natural law rights to non-Europeans but was also politically progressive in light of the abuses to which invocations of common law rights were being put by Britons in India. In Burke's vision, according to Mukherjee, the institutional locus of this authority was to be the House of Lords. Although the House of Lords ended up acquitting Hastings, Mukherjee argues that Burke's vision of a politico-legal structure for the empire lived on into the twentieth century. 16
      Kolsky seeks to examine the career "on the ground" of liberal utilitiarian ideas about codification. She locates herself squarely within a now familiar line of thinking associated with Partha Chatterjee, according to which all attempts to establish universalistic rational regimes of governance in the colonies—codification among them—foundered upon the "rule of colonial difference" (Chatterjee's phrase), which posited an unbridgeable (racial or civilizational) divide between the colonizers and the colonized.12 In other words, even as liberal utilitarians claimed to bring Indians into the fold of progress and history, their insistence on Indians' essential difference meant that Indians were consigned to live in a kind of eternal time lag or state of tutelage. 17
      Kolsky's contribution is to draw attention to the role of the community of non-official Britons (i.e., those not in the employ of the East India Company or the imperial administration) in the process of codification in India. She shows skillfully how concerns about the lawlessness of non-official Britons outside of the Presidency Towns of Bombay, Calcutta, and Madras played a major role in driving codification in India during the first half of the nineteenth century. From this point on, mapping a single set of laws onto British territory in India was seen as a way of bringing this unruly and recalcitrant population into check. 18
      At the same time, Kolsky shows how the universalist impulses implicit in the drive to codify laws were repeatedly subverted, especially after 1857, by the refusal of Britons resident in India to submit to being judged in criminal courts presided over by Indian judges. Even more pointedly than Mukherjee, Kolsky gives us something of the flavor of the grotesque petty violence that was always part of British rule in India—servants and workers being flogged for insignificant infractions, contractual and property rights overridden through intimidation, and so forth. Kolsky shows how attempts to check such violence were systematically undermined over the course of the nineteenth century through invocations of Europeans' racial privilege against certain kinds of judicial process. Eventually, as Kolsky shows in a brilliant twist, Britons in India actually began to represent this racial privilege in the language of "personal laws"—the very term used by the British to designate the separate legal regimes governing Hindus and Muslims in matters of marriage, inheritance, and adoption and long considered a mark of Indians' essential backwardness. 19
      Having set up the difference between the traditions associated with Burke, on the one hand, and Bentham and the liberal utilitarians, on the other hand, I will now attempt to collapse this difference. The object is to raise some questions for Mukherjee and Kolsky—and ultimately to revisit in the concluding section the question about difference as figured in Benton's critique of Guha. 20
      It is not hard to see why, given the obsession with difference that characterizes our intellectual moment, Burke should have emerged as the poster boy of British political thought. But we would do well to remind ourselves that Burke was neither an anti-colonial thinker nor an egalitarian one. 21
      Burke's passionate repudiation of British rapacity in India had a great deal to do with his aristocratic loathing for returning arriviste colonials whose wealth gave them carte blanche into the highest echelons of British society and politics. From a thinker wont to characterize the "grand families" of Britain as the "great oaks" of society, this distaste could be read as an apprehension of the loss of a certain kind of racial privilege—a blight affecting the aristocratic family tree:
Arrived in England, the destroyers of the nobility and gentry of a whole kingdom [India] will find the best company in this nation, at a board of elegance and hospitality. Here the manufacturer and the husbandman will bless the just and punctual hand, that in India has torn the cloth from the loom, or wrested the scanty portion of rice and salt from the peasants of Bengal. ... They marry into your families; they enter into your senate; they ease your estates by loans; they cherish and protect your relations which lie heavy on your patronage; and there is scarcely a house in the kingdom that does not feel some concern and interest that makes all your reform of our Eastern government appear officious and disgusting. ..."13
 Burke's respect for Indians' present difference has a great deal to do with a sense of kinship with India's native ruling classes, a sense of kinship that Burke more famously extended to the French ruling classes displaced by the French Revolution. Burke's brand of respect for difference is inseparable, then, from his embrace of hierarchy.		 22
      Mukherjee correctly suggests that Burke's vision of a politico-legal structure for the empire did not by any means seek to subvert the empire itself. What would the empire have looked like had it been formally organized to take account of India's native ruling classes? Something of the sort did in fact happen in a limited way in the British co-optation of Indian princes in the nineteenth and twentieth centuries. Is this one of the possibilities inherent in Burke's vision? 23
      There is no reason to believe, as Mukherjee might be read as suggesting, that natural law or the law of nations would be any "better for," or any less culturally biased against, Indians than the common law was. Thanks to the efforts of Lord Mansfield, it should be observed, the increasing commercial orientation of the common law over the course of the eighteenth century had inched toward respecting the rights of Indians who were parties to commercial transactions with Britons.14 Furthermore, if, as Kolsky's account informs us, even the most universalistic liberal projects could be subverted by arrogations of British racial privilege "on the ground," why would the same arrogations not equally subvert any Burkean project instantiated into law? Worse yet, why should those arrogations of racial privilege themselves not be figured as a tradition worthy of Burkean solicitude? Kolsky shows how, in representing racial privilege as a species of "personal law," Britons resident in India attempted to clothe themselves quite explicitly in Indian hierarchies and traditions. We have the advantage of an extant historical record when it comes to the failure of liberal utilitarian legal projects; we know very little about how a Burkean imperial legal project could have failed. 24
      If Burke seems altogether too respectful of many differences we are today glad to be rid of, it is possible that liberal utilitarians might be read as being perhaps more respectful of Indian difference than we have given them credit for. This is admittedly a tough argument to make. Yet it is important to emphasize—something that Kolsky does not sufficiently do—that British codification projects in India consciously and specifically sought to take account of Indian difference so that there would be a good "fit" between law and the sentiments of the native population. This is especially true of the long history of the Indian Penal Code. This was not in any simple sense a project spun out of abstract propositions: local administrators all over British India were solicited for, and expressed, their views on problems in their districts that required criminal legislation. The historian Radhika Singha has gone so far as to suggest, perhaps tendentiously, that British administrators in India operated with a notion of an Indian "public."15 How would Kolsky respond? 25
      To be sure, the specific aspects of Indian difference that the codifiers (and British jurists generally) often deemed especially worthy of solicitude—religious, caste, and patriarchal institutions—were highly problematic. They served to ossify Orientalist constructions of India and thereby to bolster British civilizing claims. And they wreaked havoc on those whose practices did not conform to the essentialized forms the British attributed to Indians (forms that westernizing Indian elites often made their own).16 26
      Kolsky would be undoubtedly correct to respond that proponents of codification such as Bentham had a naïve and arrogant notion of difference—physical differences such as climate and vegetation were deemed insurmountable whereas "cultural" differences were deemed something that could be surmounted in the course of time. Uday Mehta is right to attribute to liberal utilitarians a sense of the provisionality of other people's difference. But for Bentham, as for Burke, change could only take place in time—and often slowly. Imagining other people's difference as provisional did not mean that it could be swept away overnight. As Bentham himself put it:
The extraordinary extent, if one may so say, of the surface of [Hindus'] moral as well as religious sensibility, exposes them to a proportional variety of injuries: hence so many peculiar grounds of defense and provocation. ... A prejudice so strong, though altogether unjust and ferocious, would require great forbearance on the part of the [British] legislator: it would require art to soften and to combat it. But it would be better to yield to it altogether for a time, than uselessly to compromise his authority, and expose his laws to hatred.17
 Admittedly, Bentham is offering us a pragmatic method for dealing with difference, rather than a respectful stance toward difference. Can we say, in the larger context of British colonialism in India, that the results would differ dramatically from each other?

 27
Part III. The extension or curtailment of distance between objects can produce the same quantum of difference. It depends what we are arguing against. Where the background claim is about oneness, we can produce difference by drawing things apart and showing mutual exclusion or separateness (Guha's notion of an autonomous subaltern consciousness); where the background claim is about separateness, we can produce difference within the separated object by bringing things together and showing mutual constitution (Benton's critique of the notion of an autonomous subaltern consciousness on the ground that colonized and colonizer mutually constituted each other). 28
      In this comment, I have attempted to demonstrate that objects can be held apart just as easily as they can be brought together. I showed this briefly by collapsing and extending the distance between Guha and Benton (Part I) and then at greater length by extending and collapsing the distance between two distinct approaches to the question of colonial difference itself, namely the approach of Bentham and his liberal utilitarian successors and the approach of Burke (Part II). 29
      In drawing attention to the ready availability of these techniques for producing difference, I do not question their usefulness. The establishment of difference through the manipulation of distance is a motor of knowledge in many disciplines, law and history among others. It is how we create new questions and answers. Alternately setting up and collapsing the distance between Burke and Bentham, for example, helped me both situate and then question Mukherjee's and Kolsky's articles. 30
      The ready availability and utter familiarity of these techniques for the production of difference—the way we can and do switch between them at will—does suggest, however, that it is not necessarily useful to argue, as Benton does with respect to Guha, that the assertion of autonomy is "illusory." We should be wary of claiming intellectual integrity, or to have effected an advance, merely by producing either autonomy or connectedness. Assertions of autonomy and connectedness follow upon each other. As apprehensions and techniques, they are always available. Neither is more nor less illusory, more nor less an object of faith, more nor less real, than the other. 31
      Historians, like others in the human sciences, have long had disciplinary norms for how one goes about producing a sense of "object" (autonomy) and "surrounding" (connectedness), even if they have not always been as reflexive about their norms as one might desire. Yet what distinguishes the best historical research from workmanlike historical research is, ultimately, whether or not those norms are transcended. This is what, in the end, constitutes the continuing appeal of difference. 32
      I submit that what is truly compelling about difference—the difference of an "object" or of a "surrounding"—is the way in which it speaks to us over and above what we recognize to be the techniques of its production or representation. In this sense, what is compelling about difference is precisely what is compelling about violence or religion or art (to name just three heavily discussed themes in modern Western thinking). Already sensing their presence, or knowing the techniques for making them present, does not necessarily tarnish their power. Nobody recognized the importance of the aesthetic dimension of difference—the importance of aesthetics in the production of difference—better than Burke. The intertwining of difference and violence in colonial India has made it possible for its many students—from Burke down to Mukherjee and Kolsky—to continue to compel. 33


Kunal M. Parker is an associate professor of law at the Cleveland-Marshall College of Law, Cleveland State University <kunal.parker@law.csuohio.edu>. He would like to thank Laura Hengehold, Patricia McCoy, and Christopher Tomlins for reading a prior draft of this comment.


Notes

1. There are simply too many references to supply here. If beginners were to restrict themselves to historians alone, they might consult the work of various scholars explicitly associated with the Subaltern Studies project. These include—to name only the few best known in the Western academy—Shahid Amin, David Arnold, Dipesh Chakrabarty, Partha Chatterjee, Ranajit Guha, David Hardiman, Sudipta Kaviraj, Gyandendra Pandey, and Gyan Prakash. The reader could also consult the very widely received work (in certain cases the early work) of Arjun Appadurai, Homi Bhabha, Bernard Cohn, Nicholas Dirks, Gayatri Spivak, and Sara Suleri, some of whom have also been associated with Subaltern Studies.

2. The fact that Mukherjee's and Kolsky's articles fit so comfortably within this scholarly tradition reveals something, first and foremost, about the state of colonial Indian legal history (this is emphatically not intended as a criticism of either article). Unlike American legal history, which has been driven for many decades by the efforts of scholars who are legally trained and have appointments on law faculties, colonial Indian legal history remains the product of the efforts of historians. As such, it has been thematized in keeping with the broader thematizations of Indian history. Not surprisingly, in recent years, the result has been a legal history plotted along axes of difference—for example, race, religion, caste, gender, sexuality—that pays very little attention to the quiddity of law. To my knowledge, there are no systematic book-length scholarly studies of the history of core public and private legal ideas, let alone any attempt to link such ideas to the larger sweep of Indian history.

3. Ranajit Guha, Dominance without Hegemony: History and Power in Colonial India (Cambridge: Harvard University Press, 1997); Lauren Benton, Law and Colonial Cultures: Legal Regimes in World History, 1400–1900 (Cambridge: Cambridge University Press, 2002).

4. Benton, Law and Colonial Cultures, 257.

5. Ibid., 258.

6. Guha, Dominance without Hegemony, ix.

7. The most sophisticated attempts to work out the relationship between history and difference in this context are Dipesh Chakrabarty, Habitations of Modernity: Essays in the Wake of Subaltern Studies (Chicago: University of Chicago Press, 2002) and Provincializing Europe: Postcolonial Thought and Historical Difference (Princeton: Princeton University Press, 2000).

8. Uday Mehta, Liberalism and Empire: A Study in Nineteenth-Century British Liberal Thought (Chicago: University of Chicago Press, 199), 212–13.

9. Jeremy Bentham, "Essay on the Influence of Time and Place in Matters of Legislation," in The Works of Jeremy Bentham, ed. John Bowring (New York: Russell & Russell, 1962), 1:177.

10. Mehta, Liberalism and Empire, 214.

11. Mukherjee, "Justice, War, and the Imperium," Law and History Review 23 (2005): 591.

12. Partha Chatterjee, The Nation and Its Fragments: Colonial and Postcolonial Histories (Princeton: Princeton University Press, 1993).

13. Quoted in Mehta, Liberalism and Empire, 175, 172.

14. See David Lieberman, The Province of Legislation Determined: Legal Theory in Eighteenth-Century Britain (Cambridge: Cambridge University Press, 1989) for an account of Mansfield.

15. See "Epilogue: Criminal Law and the Colonial Public," in Radhika Singha, A Despotism of Law: Crime and Justice in Early Colonial India (New Delhi: Oxford University Press, 1998), 286–311.

16. This was particularly true of peninsular India, but—one can surmise—not unique to it. See, e.g., G. Arunima, "A Vindication of the Rights of Women: Families and Legal Change in Nineteenth-Century Malabar," in Changing Concepts of Rights and Justice in South Asia, ed. Michael R. Anderson and Sumit Guha (1998); Kunal M. Parker, "'A Corporation of Superior Prostitutes': Anglo-Indian Legal Conceptions of Temple Dancing Girls, 1800–1914," Modern Asian Studies 32 (1998): 55.

17. Bentham, "Essay on the Influence of Time," 174.

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