‘Communities-in-law’: social identities and imperial rule
A conference held at the University of Reading, UK, 21 September 2011
Organisers: Dr Charlotte Smith, Dr Nandini Chatterjee
This conference examined the role of colonial governance, and legal governance in particular, in shaping communities of affect within the British Empire. It brought together scholars from a broad range of disciplines, united by their common interest in the role of law in the historical processes of identity-formation, and by their use of ‘legal’ sources, broadly defined, in their research.
09:00 – 09:30: Coffee and Welcome
09:30 – 11:00: Session One – Governing Empire
Bonny Ibhawoh (McMaster University): “Repugnant to Equity and Good Conscience”: Law, Custom and the Construction of Colonial Difference in British Africa
John Strawson (University of East London): Making Imperial Law: the Case of the Palestine Mandate
Richard Huzzey (University of Plymouth): Parliamentary Sovereignty and the Moral Geography of Imperial Slavery
11:00 – 11:30: Morning Coffee
11:30 – 13:00: Session Two – Encounters in the Colonial and Imperial Courts
Stacey Hynd (University of Exeter): R v Benjamin Knowles: Race, Respectability and Murder in the Gold Coast, 1928-30
Diana Paton (Newcastle University): Law, Healing and the Formation of Religious Communities in Early Twentieth Century Jamaica
Charlotte Smith (University of Reading): Defining the Church of England in the Colonies: Bishop of Natal v Gladstone (1866)
13:00 – 14:00: Lunch
14:00 – 16:00: Session Three – Religion, Pluralism and Empire
Nandini Chatterjee (University of Plymouth): Pursuing Muhammad Reza Khan: Law and Religious Toleration in two Empires
Soumen Mukherjee (Centre for Modern Oriental Studies, Berlin): The Legal Definition of a Shiite Sub-sect: Ideas of Community and Social Reformism among the Nizari Khojas in Colonial Bombay
Justin Jones (University of Exeter): Competing Jurisdictions: Multiple Shari‘as and Claims to Authority in Colonial India
Riyad Koya (University of California at Berkeley): Community and Citizenship in Colonial Fiji: The Application of the Shari`a for Fiji’s Muslim Minority
16:00 – 16:30: Afternoon Tea
16:30 – 17:30: Session Four – Obligations and Identity
Stephanie Jones (University of Southampton): Legal geographies of the Malay Archipelago and the ethics of obligation in the work of Joseph Conrad
Leigh Denault (Churchill College, Cambridge): Belonging and Urban Governance in late Colonial North India: The ‘Private Sector’ and the ‘Private Sphere’
17:30 – 18:00: Round Table – the Future of the “Subjects of Law” Network
As noted by Nandini Chatterjee
This conference proposed to examine the role of colonial governance, and legal governance in particular, in shaping communities of affect. It brought together mainly legal scholars and historians, and one outstanding literary critic, with specialist interests ranging from the Caribbean to Southeast Asia – a vast range of territorial specialization that also encompassed the oceanic worlds of the Atlantic and the Indian Ocean. During the course of the day, there were outstanding presentations on the intertwining of the self and the law under conditions created by the British empire in Jamaica, Britain, Nigeria, Ghana, East Africa, Palestine, India, the Malay archipelago and Fiji. While the rich and unique texture of each of the stories told was one of the principal attractions of this conversation, some key points emerged during the presentations as well as the brief roundtable at the end of the day, which may provide creative connections between our work, and justify formal union through one or more collaborative publications in the near future. These points are summarized below; participants as well as others are warmly invited to comment and add to the conversation.
Defining the subject
A critical point, raised by Stephanie Jones (with reference to Raymond Williams’ 1976 critique) was about the ‘warm’ conceptual fuzziness of the term ‘community’ which, as Williams noted, is never associated with a negative sense. With its implication of benevolence and even sacredness, ‘community’ may obscure the exclusions and coercion involved in the construction and maintenance of its boundaries. How indeed do we conceptualise that which we are studying? Do we begin with a nominalist approach – that is a community which people call it thus – or an analytical one, attempting to finesse existing sociological models to fit very different entities? There are several difficulties with the first approach.
Firstly, it appeared from Justin Jones’s presentation on the debates between Maulana Madani and Muhammad Ali Jinnah that these two very different Muslim community leaders of twentieth-century India were in relative agreement that a) Muslims could be discussed in communitarian terms, and b) that this community needed full jurisdiction over its own legal affairs. However, they disagreed radically over the implications of such a community identity. While Jinnah worked within a colonial legal system, using colonial courts and categories of personal laws as a way of constructing Muslim legal autonomy, Madani seemed to be looking towards forms of jurisdiction drawn from within the Islamic tradition rather than from the colonial setting: for instance, networks of ‘Islamic’ courts, or a class of religiously-educated adjudicants. When one recalls that the political substantiation of community that these two men sought was completely different – Madani offering little support to the Muslim League’s aim of a territorial nation-state, it is obvious that community implied radically different visions of collectivity for these two men.
Secondly, there arises the question of whether the project of a community may also be taken to be a community. Even if such a project was a historically successful one, how do we escape teleology in our definition? Many of the communities that emerged from the presentations were indeed projects or proposals rather than socially substantial entities for significant periods of time. Whether we speak of Indian Muslims in Fiji (Riyad Koya) or white settlers in colonial Ghana (Stacey Hynd) – it appeared that the desire for and consciousness of religious or racial community was one that emerged at historically specific moments of time, often in relation to a legal event and in support of a legal demand. Of course the narrative of community formed the basis of such claims, but it might be important to ask why such narratives become popular at particular moments of time, and what other narrative sources they drawn upon – eg. legal narratives but also Scriptural traditions.
Thirdly, there arises the inevitable question of discipline – which in community narratives is presented as authoritative and consensual, but which has to rely, at least sometimes, upon the state or its judicial arm to substantiate this reality. As Charlotte Smith showed in her paper on the insubordinate Bishop Colenso of Natal, the Church defendants of Anglican orthodoxy felt it justified not only to resort to financial blackmail but also extreme legal niceties which had the potential for undermining the sanctity and authority of the Anglican episcopate worldwide. Was this still a community?
Finally, there is the problem of the community that does not give itself that name. It appeared from Diana Paton’s beautiful retelling of the Jamaican spiritual healers’ or obeah practitioners’ encounter with colonial law – which prohibited such activities- that a sense of community may have emerged precisely from this coercive experience. Perhaps such a community even transcended the boundaries of church-membership and flowed into a more pervasive and subversive sense of Jamaican subaltern religiosity.
While problem of the unarticulated community (such as Paton described) may be addressed by taking the second approach, that is, the sociological and objective one – there is the obvious criticism that this is an analytical method which ignores the points of view of the protagonists themselves, imposing artificial unities and limits where there were none such in the view of the historical actors themselves.
Governance and identification
While acknowledging the difficulties with the definition of the subject-matter and recognising the potential richness of these analytical difficulties, the most productive part of our discussion consisted of exploring the very concrete ways in which modern legal governance has been implicated in the shaping of collective identities that claim authenticity, autonomy, and (frequently) very ancient pedigrees for themselves. From the papers presented, both the role of the law and what was encompassed within the rubric of ‘law’ appeared to be very diverse, and Diana Paton, among others, alerted us to the importance of recognising the contextual specificities.
The following is one possible way of categorizing that range of historical instances:
The law as a tool of community cohesion/disciplining
Stacey Hynd’s paper explored a public and political furore created among the settler community in present-day Ghana following a white man’s conviction for murder in an Ashanti court, and the subsequent appeal to the Judicial Committee of the Privy Council. Apparently, this judicial decision occasioned an acute crystallization of racial identity because it violated a strongly held, and deeply racial sense of entitlement to judicial appeal – which the Ashanti court, with its normally black African clientele did not permit. The discussions and negotiations that followed revealed such rights claims were not necessarily based on a secure identity – being ‘white’ was among things a deeply gendered and class-inflected norm, and there were anxieties expressed about the potential non-compliance of members, especially female members of this racial community, with its disciplinary regime.
At the same time, the complicated legal arguments over one judgment from a court that otherwise proceeded to try and convict Africans without the luxury of appeal, appeared to compare very well with the over-use of law by the Church of England office-bearers (Charlotte Smith) and begs the question: what do forms of legal action show us about motivations and ideologies?
Ironically, Bonny Ibhawoh’s paper on formalization of racial difference through the separation of legal jurisdictions in Nigeria and the Gold Coast, warned against reading monolithic ideologies, such as the ‘rule of colonial difference’ into colonial law. Ibhawoh’s paper focussed on the ‘repugnancy’ doctrine, according to which elements of ‘native’ i.e. African customary law, which were deemed ‘repugnant’ to justice, equity and good conscience, were to be disallowed in the colonial courts. As such, this universalist doctrine may have served to undermine colonial difference. However, as Ibhawoh showed, the treatment of customary law varied – while it was indeed disallowed on the basis of repugnancy in a Nigerian case in 1902, it was recognised by the Judicial Committee of the Privy Council in 1962 – demonstrating, according to Ibhawoh, a certain fluidity in the British legal approach to the question of racial difference.
Fluidity is indeed what was highlighted in connection with the Khoja Ismailis of India (Soumen Mukherjee) – who repeatedly encountered the colonial legal system in high profile legal disputes over the identity and rights of this Shia sub-sect and its individual members. Questioning earlier works which posited a closure, Mukherjee traced a continuing process, whereby legal, scholarly (Orientalist) and communitarian narratives continued to interact and produce evolving definitions of who the Khoja Ismailis were.
Even though the story of the demand of Fijian Muslims for the application of Islamic law as a religious right (Riyad Koya) may be read as an opposing story of increasing sectarian rigidity, the international discussions over what Islamic law consisted of for Fijians in particular revealed a self-aware community in the making.
The moral community and law
From Fijian Muslims, to Indian Muslims, to British Parliamentarians and novelists – law appeared in several instances as both a failure and a valued object. Justin Jones’ paper on the differences between the ‘Muslim’ identities delineated by the Islamic scholar and the secular Muslim political leader highlighted how different historical actors contrasted the morally vacuous or insufficient world of modern law and politics with the idealized notion of just law, inseparable from religion and morality. In the case of Indian Muslims, sharia thus served as a referent for an aspiration for a good world, and a moral way of being in that world.
A similar sense of frustration pervaded Conrad’s historically accurate narrative of the trial of a captain who jumped ship, abandoning his charges. Lord Jim, Stephanie Jones, told us, is an evocative denunciation of modern law and its incapacity to comprehend the ethics that existed among such seamen. It is to that world of ethics in action that Conrad indicated when depicting the Indian Ocean as a possible moral world. And yet, said Jones, that idealized moral world had its own exclusions – being especially obtuse to the injustice suffered by the ‘shadowy lascars’ who did not appear to figure as moral agents in Conrad’s imagination.
Enslaved Africans, on the other hand, were central to the British abolitionist denunciation of the law-as-it-was and in their demand of law-as-it-should-be, albeit once again as moral referents rather than as moral agents. Richard Huzzey pointed out that the abolitionist definition of slavery as collective national sin, and their embrace of a national liability for atonement had very concrete implications – for enslaved Africans, slave-owner-planters, and the British public as a whole, instead of individual criminals, planters were treated as property-owners to be compensated by the British public, repentant for the sin of slavery in abstraction.
If moral codes can been shown to have such substantive legal effects – it is not equally obvious which exactly are the moral codes that explain judicial practice in the early modern world, said Nandini Chatterjee. Especially confounding are those legal decisions in early modern Islamic empires which cannot be easily explained with reference to well-known treatises of jurisprudence or fiqh – especially those that later acquired canonical status under colonial rule. Pointing to a number of reported decisions of state appointed courts in Mughal India, Chatterjee showed that such courts (of Qazis and other officials) routinely admitted non-Muslims and their disputes, and moreover, that they appeared to frequently ignore the rules of legal distinction between Muslims and non-Muslims (eg. those of evidence). In attempting to explain why this may have been so, Chatterjee speculated whether this was because Mughal political theory of transcendent kingship and universal subjecthood had acquired ethical value in its own right.
Empire and law
As John Strawson pointed out, the answer to this question has to be necessarily speculative, since Muslim judges are not unique in omitting explanations from their decision. In the case of Mandate Palestine however, it is possible, as Strawson demonstrated, to trace the personal orientations of the judges through other readily available sources – such as their legal works, but also their somewhat unguarded writing in publications meant for entertainment, such as Palestine Parodies. Connecting such sources with the judicial decisions allows one to understand why and how the inevitable discretion available in hybrid imperial legal systems, came to be utilized in specific contexts – such as land rights in Palestine.
But is there such as thing identifiable as imperial law? Diana Paton’s description of the aggressive legal hunting of a certain category of Jamaican spiritualists and faith-healers – the obeah practitioners – was contrasted by her to the far more tolerant attitude taken by the British government of India towards indigenous healing practices, such as Ayurveda. Indeed, in the Jamaican case, neither cultural difference nor gender distinction per se appeared to explain the motivation behind this culturally blunt legal approach. What appeared clearer is the distance between Jamaican cultural practice and colonial law’s morality – and that, ironically, the law may have created the subversive community it feared, united by common suffering and proscribed spirituality.