on law and orientalism

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carol g s tan

On Law and OrientalismCAROL G S TAN

School of Law and Centre of Southeast Asian Studies, SOAS, University of London

I

Though it was remarked more than ten years ago that Edward Said’s Orientalism had provided a deconstructive methodology to keep legal scholars busy, there has not been an explosion of legal scholarship examining the connections between orientalism and the legal sphere.1 Few would disagree that the laws of the non-western world were as much an invention of orientalism as other aspects of non-western culture. Yet, few legal scholars have demonstrated how orientalist representations of the laws of the non-western world were produced. One of the aims of the modest project culminating in this special issue was to encourage more empirical case studies shedding light on these processes.2 Aside from investigating how oriental law was produced through the western imagination or framed by the colonial endeavour, also encouraged were other inquiries into how persons other than Europeans were represented in law, how the processes of law were responsible for or contributed to such representations, and whether studies of neo-orientalism, re-orientalism, or self-orientalism in law might also prove enlightening.

In the gap where this scholarship ought to have been has instead lain broad assumptions about the legal sphere’s complicity in orientalism. It is assumed, for instance, that knowledge of oriental laws was necessary for colonial rule and that western scholars (whether members of academia or scholar-officials) studying the law of eastern civilisations were part of the colonial endeavour. Oriental laws, like important facets of social life an anthropologist might study, were thus observed, studied, mapped and interpreted with the instrumental purposes of colonial rule in mind. Colonialism, in its control over territory and jurisdiction, itself also provided the opportunity for such study. The resulting knowledge, according to Said and Foucault, was not collected from the position of neutrality but emerged from the particular ideologies of colonialism and from the unequal relationship between the observer and the observed. Through the western

1 Strawson, J (2001) ‘Orientalism and legal education in the Middle East: reading Frederick Goadby’s Introduction to the Study of Law’ (21) Legal Studies 663. A few of the key exceptions, which are more attentive to contemporary law, are discussed further along in this Introduction. 2 This project started with a panel at the EUROSEAS Conference 2007 held at the University of Naples, ‘L’Orientale’ and continued with a Journal of Comparative Law symposium in 2011 jointly convened by the SOAS Centre of East Asian Law (CEAL), the SOAS Centre of Southeast Asian Studies (CSEAS) and generously hosted by the London Law Centre, University of Notre Dame at the kind invitation of its Director, Professor Geoffrey Bennett. I am grateful to my colleague Michael Palmer for commissioning this special issue and to Teemu Ruskola for writing a Foreword to this collection. A final note of thanks is due to the authors whose papers grace the following pages. I could not have asked for more collegial contributors.

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gaze, oriental laws became essentialised, homogenised, exoticised, distanced, contrasted and made to look primitive and backward by the standards of European laws.

Certainly, whether there was a recognisable body of law was a question routinely asked when British colonial authority was first claimed over a territory. The presence of a system of law-like norms (which often presupposed a form of government) was insufficient. Through a self-referential definition of ‘law’ and the characterisation of the laws of others, oriental laws were often made redundant or marginalised through the established technique of confining their application as personal laws (governing marriage, divorce, adoption, succession, in the main) to the private sphere of life. Sometimes it was the presence of laws permitting torture that was used to deny the continued application of pre-existing laws, a test which at once tainted those laws as ‘barbaric’ or ‘primitive’. This form of exclusion provided the justification for the introduction of European-inspired laws, whether to protect Europeans through demands for extra-territorial jurisdiction or to introduce ‘civilised’ rule to the colonies. Another way of looking at what occurred is to think of it in terms of ‘localising’ the law found in the territory in contrast to the more universal, and therefore more ‘superior’, laws introduced by the British in many of their overseas territories.3

Most of the articles in this collection do not seek to overturn the assumptions regarding the connections between law and orientalism outlined earlier. Most, if not all, of the essays use at least some of these assumptions as starting points. For instance, Amrita Mukherjee’s essay on the thuggee is premised on the history of the thuggee being in fact a history of how the British demonstrated their power and authority, helped by the kind of ‘fixity’ which occurs in the colonial gaze of the other.4 For this, control over law and order, or at least the impression thereof, was critical. Nandini Chatterjee, in broad agreement with Said, writes about the maintenance of colonial power based on a sustained narrative of difference between the other and the European self.5 She shows how this narrative, eventually articulated through the law enforcement apparatus, was served by the colonial bureaucracy’s surveillance agencies. ‘Intelligence’ on Muslims, for example, was then ready for use by the prosecution in the murder case that she discusses. Likewise, the theme of orientalism used in naked service of colonial policies can be seen in a number of the essays. Matrii Aung-Thwin’s examination of the work of the special tribunals set up to try those involved in the uprisings in Burma in the 1930s suggests that a narrative of ‘traditional’ support for the monarchy was used to justify the law’s repression of awakening political consciousness.6 Mukherjee’s essay on thuggee legislation shows a similar justification for the use of emergency powers in tackling the moral panic over murders apparently committed by wandering bands of thugs. In short, orientalised images of the other served as pretexts for the suspension of civil rights and the substitution of expedited legal process.

3 John Strawson has noted how these practices owe their origins to the policies in India of Warren Hastings and William Jones which assigned ‘the occupied legal culture to a subject place within the colonial legal order’, this being ‘a critical feature of British colonial practice.’ See Strawson, ‘Frederick Goadby’s Introduction’ at 668. In this study of a legal textbook intended to help students make sense of Egyptian law with its untidy mix of French and Islamic legal heritage, Strawson shows how Egyptians and Palestinians studying law are ‘relocated’ to the colonial location from which they are to view their own laws (e.g. Islamic law) as now situated at the peripheries of the colonial legal system. 4 See the article by Amrita Mukherjee in this volume.5 See the article by Nandini Chatterjee in this volume.6 See the article by Maitrii Aung-Thwin in this volume.

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We see in Andrew Huxley’s essay on the role of the frontier experts in British territorial expansion from India the utterly contemptible fabrication of evidence to support colonial ambition while in Carol Tan’s article on gambling and the law, there is something close to contempt for an orientalist trope which was nonetheless used as part of the arguments to secure the financial aims of the British government in the north of China.7

The essays do, however, offer vital qualifications for a more nuanced, complex, and more complicated, picture of orientalism and the law. Before proceeding any further, it should be noted that no single treatment of ‘legal orientalism’ or ‘law and orientalism’ was prescribed. Where and at what to look are questions to which each author responded as they saw fit. For some, the focus of the subject is the narrow question of representations of the laws of the other. This can be seen most clearly in Andrew Huxley’s essay on the representations of Buddhist law and, unusually amongst the papers in this collection as well as elsewhere, Burmese legal history. For other authors, legal orientalism includes ways in which law, including and perhaps especially legal process, produced representations of the other and his culture. Law was not an innocent bystander or mere facilitator but, often, an active agent in the production and/or reiteration of orientalist ideas. For yet others, the subject of investigation is how the law invoked and assisted in encoding or embedding, and doing so unquestioningly, orientalist knowledge first gathered beyond the legal system, its apparatus and its agents. In the rest of this introduction, I attempt to draw out some of the main themes which emerge from this collection of essays.

II

At the sharp end of law and orientalism, is that described and discussed in Andrew Huxley’s ‘Anglo-Buddhist War’.8 His orientalists, the so-called ‘frontier experts’ who aided British territorial expansion in the north and northeast of India, ought to qualify for membership in Said’s ‘guild of Orientalists’. Here, legal orientalism took the form of outright lies and made-up evidence, the aim of which was the announcement of a new Burmese legal history, one that conveniently legitimised British expansion into Burma. These frontier experts, each with his claim to expertise of a particular frontier region and each also an official of the British government, forged inscriptions and made false claims, claims which the colonial establishment covered up for a quarter of a century. Huxley argues that, together with others, these experts denied Burmese law any indigeneity and instead ‘found’ that Burmese law (and Buddhism in Burma) had its origins in India. This conclusion fitted perfectly the broader myth that had been propagated that Burma had been colonised by India. Any coloniser of India was therefore justified in also colonising Burma. On the question of whether any of its laws should be preserved, any ‘Burmese Buddhist law’ that could be identified was a deviationist version of classical Buddhist law unworthy of preservation. Although there was some law which was deemed authentically Burmese, it offered nothing on positive law and government. Here then, was just the gap that only English law could fill. With English law came the redundancy of the she-ne, a class of Burmese lawyers, replaced by those trained in English law and the English language.

7 See the articles by Andrew Huxley and Carol Tan in this volume. 8 See the article by Andrew Huxley in this volume.


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Mendacity of the kind perpetrated by Huxley’s legal orientalists was probably less common than the orientalism-impaired vision that is shown in other essays. Thus we see in Maitrii Aung-Thwin’s essay on ‘Recovering Peasant Politics in Colonial Burma’ the inability, on the part of the colonial authorities to see, in Burmese peasants, their nascent engagement in modern, nationalistic politics. In a process which occurred through the trials of those arrested for their involvement in a series of uprisings in the 1930s, the Burmese peasant was cast as a ‘peasant rebel’, a role that had already acquired imaginative corporeality because of a rebellion ethnology that had been formulated by anthropologists. This ethnology provided a homogenised profile of the peasant rebel that had at its core, a demand for the restoration of the monarchy, loyalty to a peasant leader and other indigenous ‘traditional’ symbols such as tattoos, the wearing of amulets, initiation rituals and superstition. The less exotic, more ordinary, alternative of the practice of wearing tattoos and amulets as protection against calamity was not considered. These signs and symbols were instead read as part of the peasant’s irrational loyalty to a rural leader based on ‘tradition’. In its homogenising effect, all peasant groups were treated as one and the same, the tensions between groups of peasants with different loyalties being ignored. The result was that the uprisings of the 1930s could be portrayed as potent and dangerous, led by a strong, charismatic leader and with the aim of opposing British rule. The suspension of civil liberties and the invocation of counter-insurgency or emergency measures were thus justified. Aung-Thwin’s central argument is that the combined forces of law, law enforcement processes in particular, and anthropology created ‘a particular image of political action’ which stripped Burmese peasants of their developing interest in modern political struggles and which separated them sharply from Burmese in the urban areas. Compared to the frontier experts discussed by Huxley,9 what we have here is, at worst, a failure to interrogate existing orientalist knowledge of rural Burma in a zealousness to make more compelling a particular reading of resistance.

If in the case of the Burmese peasant, there was a deterministic concept of rural society, in Carol Tan’s article on the legislative history of a law prohibiting gambling in Weihaiwei (‘ “A Passion Ingrained” in the Chinese’), we see an orientalist trope playing a part but not a decisive part in law making.10 She explains how an oft-repeated trope regarding the Chinese pathological fondness for gambling found in many 19th century western accounts of Chinese social life permeated everyday official discourse but was not translated into a particular policy regarding gambling. When examined more closely, the history of Weihaiwei’s Gambling Ordinance shows that the orientalist trope was in fact used by local officials to support successive, contradictory policies – to tax gambling and to prohibit it. The ultimate aim had been to derive some revenue from gambling. Although the Chinese ‘ingrained’ habit of gambling was mentioned many times, it would seem that this representation was not so much embraced by the local officials in Weihaiwei as treated as a versatile discursive element. Indeed, the view of local officials came to rest on the understanding that the Chinese gambled no more than others and, if they appeared to have a greater fondness for gambling, it was because their lives were dull and lacking in culture. She suggests that the close proximity of local officials to the people of the territory, which overcame the myopia of the colonial gaze, was responsible for the emergence of

9 See the article by Andrew Huxley in this volume. 10 See the article by Carol Tan in this volume.

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this, more sympathetic, view of the Chinese in which gambling was not used to distance them from the self. However, it is noticeable that one essentialising trope was merely replaced by another – that of requiring gambling to alleviate cultural impoverishment. The study also shows that, in this instance at least, the Colonial Office, played little or no role in transmitting and repeating ‘knowledge’ of the Chinese from one part of empire to another because of other, more dominant concerns of the day, namely the continued mood for criminalising gambling in England.

III

We referred earlier to how symbols – such as tattoos and amulets – and ritual were key elements in an ethnology that were used in the criminalisation of the Burmese peasant. In the case of the thuggee in India, their criminalisation involved their portrayal as members of ‘a cult of professional stranglers’,11 operating in marauding gangs and mysteriously killing their victims without weapons. They were also said to be motivated by their worship of a particular Hindu deity and to partake in religious rituals. Here too, the attention to symbols, rituals, supernatural powers and related phenomena were part of the exoticisation of the other. Although this process occurred in a variety of contexts, the court trial is quite possibly the legal sphere’s most significant process through which orientalism may be constituted, enacted and re-enacted. The adversarial trial in particular, displays a natural inclination towards spectacle, and thus appears perfect for extreme othering.

It is this inclination towards drama and spectacle that has encouraged eye witness testimony of colourful rituals, practices and mysterious deeds, and above all, encouraged the extension of narratives saturated in the same. In a study of the recent war crimes trial of Charles Taylor, Gerhard Anders has discussed how the prosecution wove narratives of African religious and spiritual beliefs which showed traces of earlier, colonial era representations of Africa as a dark, lawless continent where atrocities occur.12 Furthermore, he argues, quite needlessly from the point of view of proving the prosecution’s case, that witnesses were called to give evidence of gruesome manifestations of what is impliedly African culture (cannibalism, human sacrifice, secret society initiation rites and the like). Anders is concerned that the othering of African culture at the hands of the prosecution, echoing earlier orientalist representations of Africa, is problematic for the universal claims of international criminal law. For our purposes, Anders’ piece shows how trials produce striking versions of what happened, helped by calling evidence of religious practices and ritual to render mysterious and irrational what might otherwise be more drab narratives. The testimony on cannibalism and ritual murder was used to cast Charles Taylor as the irrational, crazed, dictator, standing trial in the supposedly hyper-rational processes of the international criminal legal order.

This theme of the trial as a stage for orientalism is present in two of the essays in this collection. It is no accident that the casting of Burmese as peasant rebels occurred through a series of trials before specially set up tribunals. These tribunals had already

11 Roy, P (1998) [1996] ‘Discovering India, Imagining Thuggee’ in Roy, P (1998) Indian Traffic: Identities in Question in Colonial and Postcolonial India University of California Press quoted by Amrita Mukherjee in her article in this volume. 12 Anders, G (2011) ‘Testifying about “Uncivilized Events”: Problematic Representations of Africa in the Trial against Charles Taylor’ (24) Leiden Journal of International Law 937.


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woven a narrative in the course of the trial of Saya San, the man the authorities saw as the Burmese peasant leader to whom, in this narrative, all other peasant rebels owed spiritual allegiance. In trying other rebels, the tribunals retained the master narrative, fitting into it all other details to produce a single theory of why Burmese in the rural areas might have taken part in the ‘uprising’. Albeit impaired by orientalist knowledge, what we see in the work of Burma’s special rebellion tribunals involves the kind of cultural investigations that Nandini Chatterjee, in her article in this volume (‘Images of Islam’), identifies as frequently occurring court practice. Court trials and the prior police investigations, she writes, are processes in which the colonial legal system encountered the other and had to make sense of him. It is a process that understandably, if not justifiably, is keen to produce coherent, convincing, persuasive narratives. In the trial that is the subject of her essay, she suggests that ‘the procedures and practices of legal argumentation seemed to invite […] divergent depictions of individual agents and cultural wholes’. It is highly plausible that this is so. Arguably, legal systems, and court processes in particular, encourage the generation of the persuasive and divergent narratives she observes. Advocacy, being the art of persuasion, shapes the narratives that are constructed by each side in court. Legal argumentation, however, is constrained by the structure of the law, by the identification of legal issues and by the discursive process of making facts speak to the legal issues. In this process, some facts are pushed to the fore while others are swept into insignificance. Furthermore, arguments need to be made plainly but they also need to be made at their strongest and in their starkest forms. How else is life in all of its complexity to be put to a court, whether judge alone or judge and jury, unless boiled down and made specific. In this sense, trials tend, as Chartterjee observes, towards flattened narratives, pared down to the bare essentials for maximum cogency. Paradoxically, however, the contest between prosecution and defence also means that ‘divergent depictions’ emerge in which caricature and essentialising appear to be common.

We should also note that the emergence of multiple narratives means that more than one orientalist reading of the events may be on offer. Just as a single trope might be used in mutually exclusive proposals (as seen in Tan’s essay in this collection), so too can orientalist narratives be borrowed, cannibalised, or intermingled. Chatterjee’s essay reveals the multiple competing narratives, some of which were produced and used in self-representation. Thus Islam and Muslims were also represented by Muslims who spoke not only for themselves but who claimed to speak for the entire Muslim community. She observes that, like the orientalism identified by Said, such ‘auto-orientalism’ also subjects complexity (here she refers to the complexity of Islam and its adherents) to a flattening process, which enabled Muslims to make loud claims as the injured community. The irony, in the events with which her essay is concerned, is that the orientalised portrayal which was borrowed by these Muslims was precisely that which the defence barrister in the trial had wanted to counter. In shining a spotlight on this, Chatterjee reminds us that, in the obsession over European representations of non-Europeans, we should also take note of non-European representations of themselves and the presence of multiple representations amongst them. This last is important if we are not to commit again, the error of seeing the other as homogenised, rather than pluralistic and variegated.

In the trial that Chatterjee examines, the non-Europeans are not silent and their representations of themselves can be observed, compared and contrasted. In other situations, there are spaces marked by silence which require interrogation. One obvious example stems from the observation that trial processes are notorious for making

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invisible and inaudible the individuals whose interests are most immediately at stake. Procedural rules and the presence of lawyers and specialist pleaders interposed between the individuals and the judge or jury contribute to this. Litigants and defendants, except in courts at a very low level, are physically present in court but screened off by the architecture of the courtroom and the physical restraints over the defendants. Their legal representatives speak for them. Only rarely are they spoken to directly or do they have a chance to speak for themselves. As a result, these individuals have no opportunity to counter the homogenising, essentialising narratives that are produced when they are spoken for and about by both sides in court. Their thoughts, motives and idiosyncrasies never become a part of the official record of the trial. This is true of defendants discussed by Chatterjee, Aung-Thwin and of the many thuggee of Mukherjee’s essay.13

We ought to note also that, trials being contests, one victor emerges and it is the narrative of the victor which usually survives the trial, perhaps not without qualification but, nonetheless, it is his narrative that becomes part of the record and memory of the trial. Aung-Thwin’s article shows how, although there was evidence of fragmentation of allegiance and aims in the rural population, none of this is harvested for the narrative that drove and justified the criminalisation of the peasants. For this reason, Aung-Thwin suggests that though the legal record is a good starting point, scholars must be prepared, as he himself has done, to take a fresh look at the legal record in order that the fragments rejected for the master narrative may be ‘recovered’.14 As for the alternative narrative(s), its fate depends to a degree on whether the decision is appealed and will also depend, as Chatterjee’s work shows, on the aftermath of the trial.15

IV

We have already noted Nandini Chatterjee’s remark that courts have a tendency to involve themselves in ‘elaborate cultural investigations’, partly because colonial courts (and attorney generals) were conscious of having to justify their actions to their masters and to a public geographically and culturally removed from the colony. The opposite problem, that of superficial cultural investigations, is something observable from Mukherjee’s article on the thuggee where, referring briefly to the work of the historian of South Asia, Christopher Bayly, she makes the point that there was an imaginative gap filling which took place ‘in the absence of real intelligence or a fuller understanding of the society, of which those who were eventually criminalised as habitual criminals were a part’. It is, she argues, an instance of the Saidian idea of the flawed, arrogant, Orientalist knowledge of ‘a subject race’ produced by colonials claiming to know that race ‘better than they could possibly know themselves’.

The premise regarding ‘elaborate’ cultural investigations runs through a few of the articles in this collection, including Chatterjee’s own. We see in some of them the law’s encounter with the products of the ‘investigative modalities’ of colonialism identified by Bernard Cohn.16 We also see courts adding to, and sometimes crafting, ethnologies. In

13 See their respective articles in this volume. 14 See the article by Maitrii Aung-Thwin in this volume.15 See article by Nandini Chatterjee in this volume. 16 Cohn, BS (1996) Colonialism and its Forms of Knowledge: The British in India Princeton University Press.


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Burma, a ‘rebellion ethnology’ helped the court see an entire movement from fragments of Burmese responses to participation in political changes. To adapt Aung-Thwin’s phrase, in Chatterjee’s examination of the dramatic trial of two young men for the murder of a bookseller in Calcutta, we see the production of an Islamic crime ethnology. Islam provided, for the prosecution, a coherent and ‘timeless’ narrative for what might otherwise have been a senseless crime. Chatterjee explains how a moment of violence had to be given meaning in terms of religion; religious beliefs supplied the framework within which the murder of the bookseller and his employees could be given a rational, and therefore, compelling, motive.

One suspects, as seen in the trial of Charles Taylor mentioned above, that it was more often the case that orientalism was used to produce an irrational other. We see this, in Aung-Thwin’s article in this volume, in the treatment of the Burmese peasant’s political activities that were explained in terms of ‘traditional mentalities’ of loyalty to the monarchy, with the ‘gullible’, superstitious peasant who, in his passivity, was easily swayed by the suggestions of their strong leaders. We observe something similar in the treatment of the thuggee whose marginal lifestyles, superstition and ritual observances put them ‘outside the realms of political and economic rationality’ of the Empire and thus constituted a threat to law and order. In Chatterjee’s essay, in contrast, the crime is made to fit a religious context in order to portray the defendants as rational actors carrying out a premeditated killing. It is a reminder that rationality and irrationality do not bear a simple correspondence to the occidental/oriental categories but are entwined in a more complex dynamic. Even in the examples cited above of the use of orientalism to construct the other as irrational, sometimes the irrational other is then nested in a larger theory that allows him to be rationally understood. As Chatterjee points out, courts are ‘not purely occasions for cultural stereotyping’. If they were so, it would be a unidirectional phenomenon. We have, instead, to be mindful of the multiple orientalisms that emerge as a result of the contests fought in courts and in which process prosecutors and defendants choose their arguments and their cultural stereotyping in accordance with their professional judgment as litigators and at the particular moment in history punctuated by the trial.

A final point worth some consideration is that although cultural stereotyping and essentialising are usually associated with the problem of decontextualisation where a characteristic of the other is separated from its universe of cultural meaning, it appears that particularly when an event is fed through a court, the problem is not decontextualisation but over-contextualisation. The articles of Aung-Thwin and Chatterjee draw out the consequences of making the facts fit the context chosen for it. Moreover, both decontextualisation and over-contextualisation by a court require confidence that the other and his culture was knowable. As far as the common law courts were concerned, confidence was built into the system in which nothing was beyond knowing, even if only with the assistance of expert witnesses in court.

V

Despite the preponderance of historiographical articles in this special issue, to be attentive to orientalism in and through the law is not to be interested only in the past. The trial of Charles Taylor, as we have already seen, showed the prosecution leading evidence that echoed orientalist themes of Africa from the past. Not only does historical orientalism cast a long shadow, new acts of neo-orientalism can be found, and, now, found closer to

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the west. An example of this is the legal treatment of ethnic ‘others’, particularly women, when claiming asylum and refugee status before courts in the west as has been discussed by Susan Musarrat Akram.17 Unwittingly, Akram argues, the arguments put forward by well-meaning western activists and human rights lawyers in advancing the claimant’s interest involve a representation of Islam that is extreme and monolithic. The woman claiming asylum or refuge is then assigned the role of a victim of persecution because she has, according to this narrative, rejected Islam. This, Akram argues, effectively silences any claim by the woman to being a Muslim and at the same time, by framing the issue as one of opposition to Islam, denies her the possibility of arguing that her oppression was political and patriarchal.18

In Akram’s study, orientalism occurs in the encounter with the ‘other’ at the political borders of the west. Almost a decade later, Suhraiya Jivraj and Didi Herman drew attention to orientalism ‘at the imperial centre rather than at the colonial periphery’.19 In their work, a number of child welfare and cases from English courts involving ethnic minorities are examined for permeating discourses on the non-Christian. At the core of their article is the argument that, although these decisions are taken in a secular context, in fact, the discourse is a Christian one in which the non-Christian or non-Western culture is understood very much using as the reference point what it means to be a Christian. They argue that an orientalised, racialised and undeniably Christian understanding of Muslimness (or Jewishness) thus emerges. Like Akram, Jivraj and Herman aim to show that orientalism is still at work, producing ‘material outcomes for people’.20

Two of the essays in this collection have a special concern with the material effects of legal orientalism today. In her article on the thuggee, Mukherjee shows how those belonging to nomadic and semi-nomadic tribes, though already at the social margins before the East India Company period in India, saw their status harden through successive colonial laws into that of hereditary criminals who, under the same laws, suffered discrimination by being subject to the surveillance of special bureaus.21 It was a process that replaced greater fluidity in social status with an irreversible, assigned, identity – one in which vague prejudices calcified into systematic discrimination. Colonial laws on the thuggee were premised on the belief that membership – by birth or otherwise – of some groups or tribes predisposed a person to criminality. Law thus officially sanctioned the idea of criminality by birth or belonging. Mukherjee writes that control over the criminal tribes was in any case part of the ‘civilizing mission’ and a perfecting of the partial control achieved by previous, indigenous, rulers, through a centralised administration of the state. It was a demonstration of the power of the state in India and its commitment to restoring

17 Akram, SM (2000) ‘Orientalism Revisited in Asylum and Refugee Claims’ (12) International Journal of Refugee Law 7.18 See also Shahabuddin, M (2012) ‘ “Ethnicity” in International Law of Minority Protection: the post-Cold War Context in Perspective’ (25) Leiden Journal of International Law 885 which looks at the way in which international law on the protection of minorities has been premised on an ‘other’ often in turn premised on a concept of ‘ethnicity’ that barely cloaks ideas of the orientalised ‘other’ who is backward, inferior and so forth. The article draws attention to minority groups within Europe, in the post-Cold War setting, in which the ‘ethnic’ East is problematised.19 Jivraj, S and Herman, D (2009) ‘ “It is difficult for a white judge to understand”: Orientalism, Racialisation, and Christianity in English Child Welfare Cases’ (21) Child and Family Law Quarterly 283. 20 Id at 307.21 See the article by Amrita Mukherjee in this volume.


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order in the face of turbulence at a particular moment in the early 19th century. The threat posed to law and order, with shades of the justificatory arguments put forward by post-9/11 western legal orders, was used to legitimise the suspension of procedural safeguards and rules on punishment. In fact it was a naked act of scape-goating of those at the socio-economic margins to flex colonial muscles. These policies and laws became entrenched and were later widened to deal with nomadic and semi-nomadic groups after the thuggee problem had subsided. It is one of the main arguments made by Mukherjee that it is this history of their construction as ‘habitual criminals’ during colonial times that, despite partial law reform, continues to blight the lives of a large portion of India’s population; it is today part of the conversation about descent- or caste-based discrimination in the context of the fundamental right to equality under India’s constitution and under international human rights law.

Another essay in the collection which is concerned with legal orientalism today is the study by Bronwen Jones of Egypt’s intellectual property laws (‘Orientalism, Postcolonialism and Intellectual Property Protection in Egypt’).22 Breaking away from the nexus between orientalism and criminal law but like Mukherjee, pointing up continuities with the colonial period, Jones explains that modern intellectual property (IP) – in which the coloniser-colonised relationship survives re-inscribed onto the postcolonial relationship between developed and developing countries – has replaced territorial influence of the colonial era as one of the chief ways the developed world maintains its comparative advantage. Developed countries, a number of them former colonial powers, are, not surprisingly ‘focused on ever-increasing levels of protection for IP.’ It is convenient for them that much of the international IP regime has its roots in the late 19th century and was designed for the protection of the interests of the then colonial powers. Today, like colonialism, IP discourse is shot through with simplistic representations of the other that arise from the unequal relationship between developed and developing countries and that risk an ‘unbalanced’ examination of the issues. Though the mode has changed, orientalist attitudes, she argues, continue. Egypt, along with countries in Asia and mostly in a North-South split, have been accused of harbouring free-riding ‘pirates’, even when copying may not have been illegal under the relevant municipal law. The language of piracy divides, stigmatises and, by locating the problem elsewhere, lays blame with the other. By so doing it ignores the process of development and the interests of non-Western others. In a discussion of Egypt which is relevant to all developing economies, Jones raises the argument that ‘it may not be in their interest to protect IPRs to the same extent as more developed states’ considering that ‘a degree of technology transfer unmediated by expensive licences or fees’ is how many developed countries ‘have reached their current stage of development’. She states that, although we should heed Said’s caution against treating neither east nor west as homogeneous, nevertheless, in the case of IP regulation, ‘there is evidence that suggests that the differences are marked in certain ways’. There is also evidence that developed countries deliberately imposed western standards on the developing countries ‘not as equals, but as “other”, requiring special tactical management’. In Egypt’s case, despite having a long history of protecting IP rights, it has been accused of being the site of unrestrained piracy. Intellectual property agreements entered into during the Mubarak regime, which effectively engaged Egypt in neo-colonial relations with the west need to

22 See the article by Bronwen Jones in this volume.

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be revisited to see whose interests are served. This need is acute given that impact studies of the adoption of minimum international standards have rarely been done. Jones warns that the effect, on the continuation of traditional practices amongst farmers in Egypt, for example, in relation to seed sharing, is thought to be devastating for the agricultural sector.

VI

Try as one might to broaden the lens to include law-making, the writing of legal history, and the world systems in relation to intellectual property, it has been difficult to get away from a focus on the court trial as the richest seam for the operation of orientalism in the law. As the foregoing discussion shows, in this collection, and reflected in published works on the subject, it is the essays which are focussed on court trials that appear to be the most productive in terms of what they tell us about law and orientalism. The express or implied claims courts make about their ability to discover the truth, the authority of court pronouncements and their power to affect materially the lives of others, makes trials worth studying.23 Be that as it may, it would be wrong to identify trials as the main forum in which legal orientalism occurred. Trials, along with legislation, probably offer the most visible manifestations of orientalism yet the less visible – non-contentious court processes for example – should not be ignored. Likewise, government reports and internal official memoranda, are probably equally revealing.

VII

For some, a collection of essays on law and orientalism in a journal of Comparative Law suggests naivety. Comparative Law – a sub-discipline that bore, in the words of William Twining, ‘all the hallmarks of a young discipline straining to establish its credentials in terms of respectability, manageability, and utility or “relevance”’24 – had already been criticised for its narrow functionalist method, its harmonisation goals, its fixation with private law and its thin organising concepts. It had also been criticised for its Eurocentricity and its lack of interest in non-western law, an imbalance that the founders of this journal hoped to redress with their new journal.25 The marginalisation of non-western law was not simply a matter of giving non-western law less attention than it merited; it was produced through an imagined hierarchy of developmental stages in which the common law and civil law traditions were placed at the apogee with non-western laws assigned a location and space commensurate with their more ‘primitive’ state. With the publication of Edward Said’s Orientalism, this marginalisation acquired a more sinister and embarrassing explanation lodged within an all encompassing critique. Said’s work and that of postcolonial scholars posed a threat to Comparative Law larger than any other, particularly when it coincided

23 I need hardly refer to Merry, SE (1994) ‘Courts as Performances: Domestic Violence Hearings in a Hawai’i Family Court’ in Lazarus-Black, M and Hirsch, SF (eds) Contested States: Law, Hegemony and Resistance Routledge 35 for a study that looks particularly at the transmission of culture performed by courts. 24 Twining, W (2000) ‘Comparative Law and Global Theory: The Country and Western Tradition’ in Edge, I Comparative Law in Global Perspective: Essays in Celebration of the Fiftieth Anniversary of the Founding of the SOAS Law Department Transnational Publishers 21 at 29.25 Foster, NHD (2006) ‘The Journal of Comparative Law: A New Scholarly Resource’ (1) Journal of Comparative Law 1 at 10-11.


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with political correctness and a loss of confidence in area studies. Comparative Law, especially that part of it concerned with non-western law, now looked as if it had been part of the discursive strategy that created Said’s ‘saturating hegemonic system’ which was designed to dominate, justify that domination and persuade the colonising selves that their endeavour was noble. The representations of non-western law created the other while at the same time creating the superior self. The indictment of orientalism, implicating Comparative Law in imperialism and colonialism, could have proven fatal to it. Moreover, Orientalism ushered in a reversal in values. Amongst that which came to be decried alongside orientalism was ethnocentricity, racial and national pride, service to the state, and with important repercussions for Comparative Law, ‘text-based scholarship and knowledge of classical languages’26 – both identifiable with decades’ worth of study of non-western law from the late 19th century onwards. Of that which experienced the opposite fortune and which became part of the environment hostile to Comparative Law was anti-colonialism and internationalism.27 It is to be wondered how Comparative Law survived in this environment, with the consequent utter unfashionableness of the sub-discipline, not to mention the ignorance of some scholars regarding Comparative Law.28

For scholars such as Veronica Taylor, the question was whether Comparative Law could move ‘beyond orientalism’. For her, the European Comparative Law project was synonymous with legal orientalism.29 As comparative law had never gained much of a foothold in the Australian academy, it was in a better position to embrace the idea of ‘Asian Law’ and to fill the space that would have been occupied by Comparative Law with a New Comparative Law that was free of at least some of the baggage of its European precursor. Australia’s geographic, trade and increasing cultural proximity to Asia meant that ‘Asian Law’ formed the core of this New Comparative Law. However, the rise of ‘Asian Law’ in Australia has been marked by more than a tinge of neo-orientalism. It is the avoidance of neo-orientalism that lies beneath much of Taylor’s discussion. This hand-wringing, as observed by Teemu Ruskola, has in fact become de rigeur ‘in any piece of comparative law scholarship that wants to be viewed as part of the solution rather than part of the problem.’30 Ruskola’s own argument rejects the possibility of avoiding orientalism. For him, ‘Since all understanding is situated, bias is inevitable and prejudice the very condition of knowledge’, calling for an end to orientalism makes no sense.31 He makes instead a rallying call to persist with Comparative Law because thinking without making comparisons is impossible. He calls for a more self-aware, ‘ethical’, Comparative Law which is conscious particularly of the material impact of othering on that other. Ruskola’s own case study – of American engagement with Chinese Law – is one which he offers as an instance of

26 Macfie, AL (2000) Orientalism Pearson Education at 7-8.27 In so far as International Law was seen to be superior to Comparative Law, we eagerly await the forthcoming work of Teemu Ruskola ((2013) Legal Orientalism: China, the United States, and Modern Law Harvard University Press). See also his Foreword to this collection in which he refers to the parochialism of International Law. 28 I have heard it said, for example, that Comparative Law makes no sense because no one can be an expert in two or more legal systems, a comment that is poorly conceived for several reasons. I have also heard it said that ‘Chinese Law’ (in the western academy) does not make sense since no one would teach ‘English Law’ in China. Again, this is a remark born of utter ignorance because positions in English Law do exist outside England and indeed exist as close-by, as in Germany. 29 Taylor, V (1997) ‘Beyond Legal Orientalism’ in Taylor, V (ed) Asian Laws Through Australian Eyes LBC Info Services 4. 30 Ruskola, T (2002) ‘Legal Orientalism’ (101) Michigan Law Review 179 at 180. 31 Id at 187 and 222.

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Comparative Law lacking in ethics. It was an act of legal orientalism driven by a search for self-identity in order to outgrow status insecurities experienced in American law. Borrowing from Gadamer’s ‘hermeneutic circle’, Ruskola argues for an ethical comparative law that uses our preconceptions about the other as a starting point for repeated revision of those preconceptions (and preconceptions of our own law) as the study of the laws of others progresses. One might add that to this end, since the starting point of orientalism is likely to be binaries of identity and difference between self and other, deconstruction’s scepticism about oppositional binaries would be of assistance in making progress from that starting point of prejudice and bias.32 Legal reasoning, so often resting on similarity and difference, needs to be challenged by inversion and reversal. In Comparative Law and legal orientalism, the common binaries were between original and derived legal systems or laws; principal and subsidiary laws; civilized and primitive systems of law; central and peripheral laws; and normal and abnormal manifestations of forms of normative principles. Comparative law scholars should experiment with inverting and reversing the hierarchies of thought and ideas involved in the binaries. They should also be prepared to search for the apparent qualities of one side of the oppositional pairing in the other so as to reveal in the pairing a ‘nested opposition.’ In this way, a healthy dose of scepticism over hitherto unquestioned dichotomies should also contribute to a more ethical Comparative Law as we begin to notice that which ‘we had never noticed before’ both in the other and in ourselves. Ethics and scepticism, however, need the companionship of concrete examples from the past and present and this collection of articles, offering as it does insights into what occurred when Europeans encountered non-western others, their laws and norms, offers precisely that for the road towards a more ethical Comparative Law.

32 Legal scholars are indebted to Jack M. Balkin for his several works that explain deconstruction and its relevance to law. See especially (2005) ‘Deconstruction’s Legal Career (27) Cardozo Law Review 719, (1990) ‘Nested Oppositions’ (99) Yale Law Journal 1669 and (1987) ‘Deconstructive Practice and Legal Theory’ (96) Yale Law Review 743.

on law and orientalism

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