Law, Orientalism and Postcolonialism

The Jurisdiction of the Lotus-Eaters

Piyel Haldar

• Publisher: Routledge-Cavendish
• Year: 2007
• ISBN:
  9781135897550
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Focusing on the 'problem' of pleasure Law, Orientalism and Postcolonialism uncovers the organizing principles by which the legal subject was colonized. That occidental law was complicit in colonial expansion is obvious. What remains to be addressed, however, is the manner in which law and legal discourse sought to colonize individual subjects as subjects of law. It was through the permission of pleasure that modern Western subjects were refined and domesticated. Legally sanctioned outlets for private and social enjoyment instilled and continue to instil within the individual tight self-control over behaviour. There are, however, states of behaviour considered to be repugnant to, and in excess of, modern codes of civility. Drawing on a broad range of literature, (including classical jurisprudence, eighteenth century Orientalist scholarship, early travel literature, and nineteenth century debates surrounding the rule of law), yet concentrating on the experience of British India, the argument here is that such excesses were deemed to be an Oriental phenomenon. Through the encounter with the Orient and with the fantasy of its excess, Piyel Haldar concludes, the relationship between the subject and the law was transformed, and must therefore be re-assessed.

CHAPTER 1
Introduction: the Colonization of the Legal Subject

Freudian and post-Freudian theories have structured themselves largely around the notion that the law has a double life. On the surface of existence lies the most obvious and posited forms of legality; consciousness, morality, civic obligation, rights, rationes and statute. Below this surface lies the underlay that really does the uncredited work of holding together social existence. A whole circuitry of buried codes—the unconscious, the transgressive, the obscene, surplus enjoyment—wriggles away, invisible to the eyes of cognitive or behavioural scientists. Consider the work of Slavoj Zizek as one of the latest in a long line of theorists to adhere to this double-life, or schizoid theory of legality. For Zizek, it is acts of transgression, of illicit enjoyment, that exert pressure on individuals to comply with the spirit of community. We, as members of a tribe, identify not with the public law, but with specific forms of transgression which seems to suspend the law. But such forms, however they look and however they are felt, always lie below some surface, they ‘remain undercover of the night, unacknowledged, unutterable’.¹

Depending on one’s standpoint, everything is considered either in terms of depth or height.

Is it not the case that the transgressive lies on the same surface of a horizontal plateaux? And, could it not be that this superficial plateaux is geographically and historically constituted? That is to say, that East and West share a surface according to which it is the East that suffers all the characteristics of surplus enjoyment and transgressive jouissance as a result of Orientalism and colonialism. The argument that runs throughout this book is that the status of the East has been fabricated, fantasized, and sometimes envied as being the other side to law. The relationship between East and West has been structurally maintained so that the East performs a transgressive function necessary to the constitution of Occidental legality and subjectivity. Indeed, a suspicion that arises is that the East proto-typically took on all the characteristics of the unconscious and that it is only with the discovery of psychoanalysis that the East’s ‘legalistic’ function begins to diminish.

But why is it necessary to have this Eastern side to law? The question becomes easier to explore once we examine the relationship between law and subjectivity. Such a relationship focuses on the manner in which law inhabits the subject (or, colonizes the subject) as a site of civilized and civic pleasure as distinct from the supposed Oriental forms of surplus enjoyment. Colonialism offers us a history—a history of a legally instituted subjectivity. The place of the subjects pleasures have to be delineated more carefully and slowly. This chapter will set the Occidental background, examine the way in which social existence and subjectivity are colonized, and spell out the relevance of pleasure. It will be left to subsequent chapters to explore the East as the structurally fabricated other side of law.

Occidental Legality

Colonialism offers us an observable process by which law organizes, rationalizes and assimilates that which is, or those who are, initially outside its imperial jurisdiction. It exposes the manner in which the law weaves these historically hitherto unconnected peculiarities into its own theoretically all-encompassing textual order. It exposes a process of subjection and uncovers an interlacing range of mechanisms employed in justifying its universality and grip. What occurs in the specific context of colonialism, in other words, is indicative of the very structure of Occidental juridical thought.

That is not to say that this study is directed solely at legal/political theorists and thereby bypassing or ignoring the industry of post-colonial scholars within other disciplines. In spite of the title of this book, I would not regard this as a work of post-colonial scholarship. The colonizing grip of legality has yet to be relinquished and does not allow us to lay claim to a post-colonial condition. Nevertheless, the arguments proposed here are intended for an audience and a claim is made for post-colonial studies to take more seriously the manner in which Occidental law takes over social existence and the juridical position of subjectivity; they need to take into account the range of juridical and institutional mechanisms that are involved in this process of colonizing the social sphere and the individual subject. In this sense, it will be argued that the post-colonial condition is more than political and economic post-exploitation. While the geographical location of the structure of domination might change and has to be reconnoitered, the colonization of the subject by law describes a universal predicament, a way of being shared by all; colonialism, in short, describes a global form of existence colonized by, and subject to, the universalizing propensity of law. One need mention only briefly that orthodox studies into the history and theory of colonialism, and in particular those studies that attempt to account for the place of law in cultural imperialism, remain silent about the question of the subject. According to such studies, colonialism is taken to be a geographically specific and historically located phenomenon. Colonialism thus emerges quite narrowly as cultural imperialism in which institutions from one culture are replaced with those of another (sometimes at the risk of violating constitutional notions of Western state theory).² Building blocks are exported and are used to prepare the institutional substructure of the modern world. And yet, even if there is a more radical tendency among colonial historians to emphasize the violent shaping of new social spheres by powerful/corrupt/benign regimes, the posts of subjectivity remain unaccounted for and lie dormant.

There again, even if such studies do investigate the task of law, the colonial relationship with questions of legality tends to be based upon legal positivism. Law, in other words, assumes a limited character either as an occupation or as an object issuing a set of rules applicable to, yet estranged from, the domain of subjectivity. The place of law remains under-theorized even in more recent scholarship devoted to the question of post-colonial subjectivity. There are, of course, numerous studies that place the colonial subject as having been constituted through discursive strategies and technologies of power.³ Current scholarship, extant across a number of disciplines, is concerned with the processes through which the subject of whatever race is colonized and held riveted to structures of governmentality. According to such studies law is often afforded some degree of analysis and assumed to be a key factor in a wide range of subjectifying colonial discourses.⁴ To be sure, there can be no denying that law was an important instrument of colonial regulation. Researchers have studied the various surveillance techniques that placed, or placated the colonial body. The legal protection afforded to widows by criminalizing self-immolation, or the passing of the 1835 English Education Act in India provide two examples in which recent critics have unmasked seemingly liberal policies of colonial rule.⁵ However, juridical concerns within colonial studies are usually specifically located and, as a result, law, while recognized as being a key factor, is inclined to be treated as nothing more than a secondary symptom of civility, morality or governmentality. The tendency has been to regard discourse as a wider complex served by a number of occupational disciplines of which law is but one. In any case, whatever the place or part law has within these discourses, the subject still emerges as an effect of an essentially positivist set of rules and institutions.

Instead, law must be understood as being rather more foundational to discourse. This primary place of law and its colonizing effects are more discernable if we examine a particular theoretical cul-de-sac that emerges from the number of studies concerned with recuperating and restoring the subject as a site of agency and resistance. Typically such studies examine property relations, first nation rights, aboriginal interests and the legal recognition of different and dignified ‘subjectivities’. The question, or paradox, that initiates these studies and always, inevitably, remains unresolved is ‘how can agency, autonomy, independence, sovereignty or self-rule be granted by an institution that is inextricably linked with a Colonial regime from which a proposed body seeks independence’? A minimum amount of reliance by one party upon another is required, and, as with all gifts, there are expectations of gratitude, timidity and other conditions of subservience from the donee. The dignity of man starts to look questionable. But there is a trickier Gordian knot than this requisite reliance upon the generosity and comity of law. Even if the recognition of ‘full sovereign rights’ were possible, the question remains as to how such rights might be granted to an exploited group without taking into account what determines their drives and desires in the first place, or, to put it only slightly differently, without taking into account their own radical self-alienation? The subject who objects to a form of government asserts his right to object by giving reasons within a juridically shaped social structure rather like the prayers of a groaning suppliant. Such reasons give form to his desires to remove the incumbent authority, and such a burning sense of injustice is pre-shaped. Both reason and desire operate within the tight limits of legal discourse. Pierre Legendre argues that the right to object is a subjective power of self-inscription into forms of inquiry and rational argumentation.⁶ The argument could be expanded. Even in its less formal manifestations (violent uprising; fasting; salt marches) objection is seen, felt, rationalized and justified as a right. Such a right, such ius, does no more than fuel the subject. The subject alienates herself as soon as she stakes her claim as an autonomous subject. What emerges is a sense of ‘self’ measured against the law, and what remains is a radical failure to rise above this legal existence. Complaint is predicated upon an inextricable compliancy to law. So that a side effect of any success in bringing down a form of political rule is that Law remains intact, emerges triumphant, and even, perhaps, replenished.

That the ‘subaltern’ is always already a conditioned subject is widely recognized.⁷ However, a failure to account fully for the manner in which political agency is legally established remains. Taking our cue from a range of authors such as F.W. Maitland, Marcel Mauss and Pierre Legendre, the subject lives both according to and through the law. If accepted, the argument has profound repercussions in the field of post-colonial theory. For, it is law rather than race or nationality that lies at the origins of all social institutions concerned with the subject. The status of personhood, as Mauss described it, is defined by the rule of law, by rights and duties as well as by genealogy, family, role and rank.⁸ Or, as Maitland argued in a lecture on the possible sharing of interests between jurisprudentialists and moral philosophers, the law commandeers personhood as a fictional ‘right-and-duty bearing unit’. The person, in other words, has to be thought of as a subject endowed with institutional meaning and not as an anthropological agent. In this respect an individual is as much a unit subjected to the law as the state, the church, a university, or a corporation. All are species of the same genus and are to be treated equally as persona ficta. It follows that with respect to individuals, the specific variants of territory, nationality or ethnicity (or indeed, gender, or biological vitality) are left out, or at least disguised, in the colonization of (an ideally obedient) subjectivity. All subjects must be stripped down or ‘de-epidermalized’ (to alter a term from Franz Fanon) in order to be brought in line. They must be treated only as legal subjects.

The spread of modern Occidental legal systems and their institutions over larger areas, and the administration of laws to greater numbers of people propound the gradual demise of local laws and crystallize the disregard for individual differences. The principle that the law should be applied neutrally and without consideration of local variants was basic even to Roman colonization and is a point of Roman law (the ius gentium) that still survives as a characteristic of Western legal systems.⁹ Vital as it is in the current climate of political paranoia, an account of bias is, therefore, a concern for analysts of the decision-making process and of specific laws. Indeed, the racism inherent within the legal process must be attributed to its structural blindness and impartiality that leaves open a means of engendering an emotional bias at the level of decisions. Such abstraction in which all subjects are anticipated by and attributed to the law necessarily supports the dream of law to acquire a universal, trans-national appeal.

Having said all of this, it is still unclear as to how the question of the subject (as opposed to the jurisprudential fiction of legal personhood) might be assigned to the study of law. Legal studies has traditionally suffocated such questions or recognized them only as belonging to other disciplines, other subjects. After all, the rational legal order is cool, impersonal and uninterested in matters of being. Subjectivity necessitates an aggravating set of concerns that are treated by lawyers as properly falling to the inquiry of those scholars interested in the affective scheme of being rather than in the province of reasonable behaviour. Historically, and most obviously, the ‘fight for mansoul’—to use the title of an early church poem by the lawyer Prudentius—is staged as a specifically un-secular Christian production. The control of the drives and desires of the subject is a matter of distinguishing Christian virtues from pagan vices. Within temporal modernity one is tempted to suggest that the poor subject is left emotionally and spiritually flustered in looking for its proper place, seeking refuge among philosophers, psychologists and psychoanalysts (or, perversely, the subject might well dispatch himself back to the church gesturing fanatically).¹⁰

Indeed, it might be objected, that what I mean by subject is in fact nothing other than legal personhood and that this category is simply a fiction relevant to Courts and a select band of juristically minded thinkers; that it simply aids the courts to think of ‘right-and-duty bearing units’ in order to equiparate individual people and corporations as rationalized neutral units; that it simply ignores, or treats as irrelevant philosophical considerations such as ‘essence’, ‘substance’, or indeed ‘difference’. It might be objected that such metaphysical considerations are to be considered far more important in defining the character of man well before the law grants him his rights and imposes obligations. The philosophic character of man, according to such an objection, must surely be the pre-condition of bearing rights and obligations. This introductory essay, however, endeavours to show how, through colonization, the law reaches, informs and constitutes all lived experience so that any philosophical formulation as to the essence of subjectivity must surely have to take into account the idea of the persona ficta as the condition of existence. And so too must any account of the colonial or post-colonial subject.

We need not necessarily move away from the focus of traditional legal theory or methodology in order to account for the colonization of subjectivity. There have been a number of calls to ‘re-think’ and broaden the understanding of law. According to these, such a ‘re-thinking’ of law demands a move away from the analysis of traditional legal institutions.¹¹ More recently, more urgently and certainly more critically, Douzinas and Gearey have argued that any account of the ‘ways in which subjectivity is created as a site of freedom and subjection’ requires a move from a restricted jurisprudence in which law interrogates its discipline in order to fix itself as the province of reason. In its place, the authors argue for a (return to) general jurisprudence that uncovers the philosophical, psycho-analytical and literary dimensions of law that always threaten to explode the institutional legal order. The proposition made here is that by examining the very principle of reason that is used to close o...

Table of contents

• Contents
• Acknowledgements
• Preface
• CHAPTER 1 Introduction: the Colonization of the Legal Subject
• CHAPTER 2 Plato and Orientalism
• CHAPTER 3 The Sultan’s Enjoyment
• CHAPTER 4 Envy and Subjectivity in Orientalism
• CHAPTER 5 Ex Oriente Lex: Orientalism and the Colonization of Sublime Enjoyment
• CHAPTER 6 Anglican Pleasures in the Orient: Staging the Rule of Law
• CHAPTER 7 Conclusion: Dust is Miscarried
• Notes
• Index