Session #3: Saturday, 10 January, 9.30 - 11.15 (CSLG)
Panel coordinator(s): Renisa Mawani, Assistant Professor, Sociology, The University of British Columbia (renisa@interchange.ubc.ca)
Chair/discussant: Aparna Balachandran, Centre for the Study of Culture and Society, Bangalore (aparna@cscs.res.in)
Panel description
Panelists, paper titles, and abstracts
This panel explores the themes of mobility and movement in South Asian legal history. Focused on the mid-nineteenth to the early twentieth centuries and on distinct transnational flows (both epistemic and literal), the panellists track the movement of ideas and of legal codes to trace the formation of individual and collective identities.
During the late nineteenth and early twentieth century, the Indian legal codes of the 1860s and 1870s travelled long distances, providing influential models for the governance of the most remote and diverse provinces of the British Empire. The Indian codes of evidence and criminal procedure were often applied, with only minor modifications, in the colonial courts of British possessions of varied customs, religions, legal traditions, and colonial background. These codes were also promulgated in some of the former German and Ottoman territories which came under British rule in the aftermath of World War I. The broad adoption of the Indian procedural codes outside of India, as well as the direct adoption of the English common law have led some legal historians to conclude that legal procedure in British courts throughout the Empire was largely uniform and that it closely followed the English common law upon which the Indian codes were based. Founded on this observation, some scholars have further distinguished between colonial procedure, which was Anglicized quickly and comprehensively, and substantive legal fields, in which colonial authorities often showed greater sensitivity toward customary law, real or invented, and continued to apply indigenous law even in British courts. This distinction has been associated with other aspects of colonial legal reform, such as the different treatment of private and public law.
In some cases, however, the traditional distinctions between procedure and substantive law seem to dissolve upon closer scrutiny. I argue that the clear boundaries drawn between the two are far more porous than existing scholarship may allow. In Iraq and in Palestine, for example, the Indian procedural codes were ultimately rejected in favour of other, more localized models which took greater notice of religious practices, customs and local circumstances and were heavily influenced by the Executive’s interests and considerations in those particular territories. Rather than a universal set of ideal, value-neutral rules, crafted with an exclusive view towards trial fairness, accurate fact finding and the promotion of a rule of law, the shaping of procedure often involved a host of other considerations. My objective in this talk is to explore some of these considerations. I will ask why the Indian codes, although found appropriate for export to many other territories, were considered unsuitable for Iraq and Palestine; why procedural legislation was undertaken in a piecemeal fashion rather than recodified in its entirety; and why particular provisions were amended. I will show how in some cases the (mis)understanding of Ottoman and Muslim law – and the lack of distinction between the two – resulted in the invention of procedural rules that were grounded in neither; how negotiations between British and Arab authorities shaped the content of some procedural provisions; the ways in which colonial perceptions of the local population and the perceived prevalence of false testimony affected the law of evidence by introducing strict corroboration requirements and perjury sanctions; and how legal procedure in the Middle East reflected an effort to centralize state authority and to shift the criminal law’s emphasis toward individual, rather than collective responsibility.
This paper will draw upon my current work on the relationships between history and custom in the Anglo-American world in the eighteenth and nineteenth centuries to examine how the English utilitarian thinkers imagined India in relationship to history and law. A conventional understanding of the difference between Edmund Burke, on the one hand, and the English utilitarians, on the other hand, invests the former with sensitivity to questions of historical difference and custom and the latter with a commitment to abstract rationality seemingly unconcerned with sweeping away Indians’ historical specificities. By looking at a range of texts (from James Mill’s History of India to Bentham’s writings on India), this paper will ask whether this difference might not be overstated. What might the historical sensibilities of utilitarianism look like? How might these historical sensibilities have shaped their understanding of law and, specifically, their proposals for legal reform in India? In answering these questions, the paper will attempt to complicate received understandings of utilitarianism as a legal, philosophical and historical project.
On 23 May 1914, the S. S. Komagata Maru, a Japanese steam ship carrying 376 passengers, mostly adult men from Punjab, was prohibited from landing in Vancouver, Canada. The ship, which sailed from Hong Kong to Shanghai, Moji to Yokohama, and across the Pacific to Vancouver, was denied entry under three newly passed orders in council which were explicitly aimed at restricting and eventually eliminating migration from India. The Komagata Maru’s transpacific journey, I suggest in this paper, provides critical insights into the movements of legal lexicons that were intended to disrupt national and imperial claims to sovereignty. This paper draws its theoretical inspiration from Dipesh Chakrabarty’s influential book, Habitations of Modernity. Here, I borrow and adapt Chakrabarty’s title and his productive critique of western modernity to rethink the historicity and temporality of contemporary debates about sovereignty. In recent years, discussions of sovereignty have proliferated, becoming key sites of inquiry into modern forms of power. Focused largely on national and global scales, this literature tells us little as to how subaltern claims to a sovereign consciousness both unsettled and reified national/ imperial borders in uneven and contradictory ways. By situating the Komagata Maru within these larger conversations, this paper attempts to trace the ways in which British Indian Subjects mobilized and deployed languages of British legality to puncture and problematize national and imperial sovereignties. The transpacific journey of Punjabi migrants - and the global networks of resistance that the Komagata Maru spawned - raise important empirical and conceptual questions about overlapping and multiple sovereignties that are often missing from contemporary debates.
With the creation of legally structured channels for the movement of people and ideas through the British Empire came attempts to travel the “wrong way” along imperial circuits of law. This talk examines the strategic ways early twentieth-century parties tried to lift their cases out of the obvious legal regime governing their case in order to reconfigure their marital situations. Forum shopping was the attempt to shift one's case into a jurisdiction promising a more desirable result. By mapping three instances of the phenomenon, I show how discrepancies in the family law of colonial Bombay, imperial England, the independent South Asian princely state of Baroda, and the sovereign royal state of Persia created a flow of hopeful litigants toward the jurisdiction of least resistance. Parties tried to forum shop in order to counteract spousal abandonment, to divorce a spouse without proving fault, and to enter into polygamous unions. Some of these strategies were lawyers' ideas executed by elite litigants. Others probably emerged out of the informal social knowledge of parties who did not seek legal advice. With the aim of shedding light on a phenomenon that has received little attention from scholars, the talk focuses on attempted jurisdictional travel by European and Parsi litigants, both elite and working-class.
In the contemporary global world of business regulation we speak of rule makers and rule takers; examine the roles of dominant national or supra national legislation; and look at the work of international bodies. The objectives of globally oriented law include harmonization, consistency, certainty, facilitation of investment and trade, and the promotion of competition and prosperity. The early European commercial codes and the Law Merchant are often referred to as progenitors of global rules. There is a closer example in India.
After 1857 the British intensified a project to create law for empire with profound effects on Indian, English, and global law. This included the so-called Anglo Indian codes and the Indian Contract Act. The making of these laws engaged Indian lawyers of both British and Indian background, administrators, and British jurists. There was knowledge of alternative rules, both European and American. For India, there was a desire to improve, not replicate the laws of England. Law-making showed an awareness of Indian conditions and a concern with fairness. This promulgation of law in a systematic form is a forerunner of codification of commercial laws in late nineteenth century England. It seems no coincidence that Mackenzie Chalmers, drafter of English commercial laws that persist in various forms throughout the world today, was a young sub-magistrate in the North West Provinces when the Indian Contract Act was being made.
Chalmers, was admitted as a UK lawyer before joining the ICS from 1869 to 1872 when he returned to the UK. Chalmers became a protégé of Lord Herschell and under his influence started codifying English commercial law. He drafted the Sale of Goods Act, the Bills of Exchange Act and the Marine Insurance Act.
The Third Law Commission for India was established in 1861 to draft substantive law. Its second report of July 1866 was on Contract law. It took until 1872 for the legislation to be made in a final form. It was wider than what we now think of as contract law and included contracts in general, the sale of moveable property, indemnity and guarantee, bailment, agency, and partnership. The legislation did not replicate what was then English law and was regarded by the Commissioners as an improvement on a number of technicalities of English law, for example the rule in Foakes v Beer, bonafide purchaser for value. The innovation of providing concrete examples for rules resulted in a working out of many sale of goods concepts. Of changes to the then English law Henry Maine said: “all or nearly all of them have commended themselves to the approval of enlightened lawyers, not a few are being gradually carried out in England without the aid of the legislature, through the direction given of late years to the current of judicial decision."
As Maine battled with the Council, particularly over the inclusion of rules relating to specific performance, Chalmers, we can assume, administered revenue and the criminal law, already codified. It is likely that Chalmers experience with codified law predisposed him towards the possibilities of systematizing English law and his knowledge of the making of the Indian Contract Act must have assisted his drafting of English law. Here is a story of how Indian rules became global rules.