Abstract
The study of law in relation to state and society has emerged as one of the most exciting areas of historical research on modern South Asia. A growing body of scholarship has begun to focus on the constitutive role of law in shaping power, personhood and property. The volume under review offers eloquent testimony to the analytical rigour and empirical richness of this new research. It has two key aims. First, it sets out to rethink longstanding conceptual binaries that have framed legal history in South Asia—modernity/tradition, rights/norms, abstract rules/customary practices, law/violence—and points to their mutual imbrication in legal discourse and practice. Second, it seeks to situate the workings of law in wider material and normative contexts, thereby highlighting its status as a ‘resource in signification’ (p. 2). These twin objectives are pursued through four broad thematic clusters.
The chapters by Janaki Nair and Rashmi Pant explore the porosity of the multiple legal regimes within Indian society. Nair considers how the Taralabalu Jagadguru Brihan Matha at Sirigere, a monastic institution or matha in the Chitradurga taluka of Karnataka, has emerged as a locus of dispute resolution for a wide swathe of the local population. Nair’s subtle analysis shows how the dispensation of justice by such a non-state actor does not represent an alternative to state law. Far from acting as a sovereign power, she argues, the matha is a ‘purveyor of state law’. At the same time, Nair contends that the matha’s Nyaya Peetha (Seat of Justice) ‘achieves what the state law/court cannot achieve, combining or merging conciliative and adjudicative functions’ (pp. 50–53). She points to the normative considerations that marked the quest for justice among litigants who sought recourse to such non-state forums. This aspect is further fleshed out in Rashmi Pant’s exploration of property disputes in the Garhwal civil court in the first half of the 20th century. Her chapter shows how normative assumptions and ethical expectations loom large in the narratives of peasant litigants. While not discounting the importance of strategic calculations, Pant suggests that ‘more than instrumentalism, “negotiation” would be a more appropriate word to describe litigant speech acts’ (p. 60). In their own ways, then, the chapters by Nair and Pant point to the limitations of ‘forum shopping’ as an analytical tool in understanding the heterogenous and polyvalent ‘life of law’ in South Asia.
A second set of chapters explores the interplay between law and violence in colonial India. Neeladri Bhattacharya’s excellent chapter focuses on the legal legitimisation of begar (forced labour) extracted from peasants and pastoralists in colonial Punjab. His account shows how the state sought to recast coerced labour as a form of ‘necessary violence’ in the interests of the wider ‘social good’ (pp. 96–102). The enunciation and enforcement of colonial law, Bhattacharya argues, was marked by internal anxieties and ambivalences. Nonetheless, the legal regime created by colonialism required that such tensions be resolved through the law itself. Moreover, far from being its constitutive other—as suggested by theories about the ‘state of exception’—violence was an intrinsic part of the normal functioning of colonial law and its modes of legitimation. Bhavani Raman’s fascinating chapter addresses the relationship between law and violence in relation to the treatment of political rebels under the English East India Company’s regime in early 19th-century Wayanad. The counter-insurgency operations in this region were conducted in a field of ‘hyper-legality’ in which the workings of law were subject to the imperatives of the security apparatus. The attendant fragmentation of the law signalled its deployment as a ‘mode of targeting’ designed to eliminate perceived military threats to the state. Wayanad under colonial occupation, Raman argues, ‘quickly became an area where law was splintered—neither in suspension nor firmly in place’ (pp. 122–23). In other words, an unqualified ‘state of exception’ is not necessarily the only outcome of the suspension of ordinary law.
A third set of chapters explores how legal textual genres and documentary practices were constitutive of colonial authority, the interpellation of legal subjects, and the production of juridical truth. Petitioning and its role in the construction of the English East India Company’s sovereignty is the focus of chapters by Aparna Balachandran and Philip Stern. Balachandran’s nuanced discussion of the petitioning culture in Madras under Company rule presents ‘a picture of raucous subjects negotiating with a listening state eager to legitimise its authority’ (p. 151). However, she argues, the state’s quest for legitimacy also entailed ‘the transformation of the legal culture and norms affecting indigenous forums of adjudication’ (p. 156). As a consequence, the co-existence of multiple forums for dispute resolution did not necessarily signify a greater choice for litigants as has been suggested in dominant accounts of legal pluralism. Stern’s insightful account of 17th-century Bombay similarly shows how petitioning emerged as a key instrument in the making of both the state and a circumscribed ‘public’ domain in the decades immediately following the English East India Company’s acquisition of the settlement. Importantly, petitions were ‘a double-edged sword, reinforcing the existence of a civil society but one that by its very nature worked in tandem with the legitimacy of colonial rule’ (p. 204).
Petitions also figure prominently in Nandita Sahai’s fine chapter on the culture of record-keeping and law-making in early modern Rajasthan. She charts the emergence from the mid-18th century onwards, of a ‘documentary raj’ in the princely state of Jodhpur. Here, the rise of a ‘contractual economy’ triggered a significant transformation in the evidentiary protocols used in dispute resolution. Saliently, there was a ‘shift from a reliance on oral testimonies and religious ordeals based on divine intervention that courts had often depended on earlier’ (p. 173). Sahai links this shift to an emergent ‘literate mentality’ and the attendant protocols of modern law. But, by her own admission, more work is needed to flesh out her suggestion that these processes were indicative of a nascent ‘public sphere’.
The rise of a modern regime of law and its documentary protocols also generated new practices for authenticating and verifying evidence. Shrimoyee Ghosh highlights the material dimensions of legal inscription and its role in the consolidation of the East India Company’s political sovereignty. Ghosh’s discussion of stamp paper shows how the material artefacts and technologies attendant on this legal regime were essential to the establishment of juridical certitude. But the quest for legal authenticity and truth was also haunted by the possibility of deception and forgery in the proliferating world of paper. The result was a persistent contest between the colonial state and the legal subjects whom it suspected of transgressing its evidentiary norms.
The final chapter in the volume focuses on the intersection of law and the economy as a discrete domain of colonial governance. Eleanor Newbigin explores ‘the interplay between economic theory, political devolution, income tax legislation, and personal law reform’ (p. 245) in inter-war India. Her detailed account shows how there emerged in this period, new approaches to the relationship between the colonial citizen-subject and the incipient structures of representative government. Notably, policy debates about progressive taxation came to reframe the question of women’s economic rights from the realm of the community to that of the domestic household as the basic unit of a nationalised political economy.
In reframing old debates, generating new perspectives and opening up avenues for further inquiry, this path-breaking volume represents a major contribution to South Asian historiography. But its findings and arguments will also resonate with scholars of legal culture in other non-western contexts.