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LGD 2000 (1) - Douglas Harris

Laws of the Postcolonial
Compiled by: Eve Darian-Smith and Peter Fitzpatrick

Reviewed by:
Douglas C Harris


1. Introduction

Anthropologist Eve Darian-Smith and socio-legal scholar Peter Fitzpatrick have brought together a strong and demanding collection of essays that sift the connections of law and postcolonial theory. The approaches and contexts are diverse and, to borrow from Annelise Riles's contribution, the twelve authors approach their subject on a variety of scales from the local to the multinational and the global. It is the engagement with law and postcolonial theory, and a commitment to interrogate the repercussions of a colonial legacy that binds the collection together.

2. The Choice and Organisation of the Essays

These essays have all appeared before: in a 'Law and Colonialism' issue of Law and Critique or a 'Law and Postcolonialism' issue of Social & Legal Studies. But for the light hand of a copy-editor's pencil and an occasional update, they appear unaltered. One essay has been omitted. Suggesting a shifting or blurring of colonial and its ensuing post, in this collection the essays all appear under the postcolonial banner. They have been reintroduced and reorganized to fit four headings: 'Postcolonialism in Theory,' 'The Persistence of the Colonial,' 'The Postcolonial Without,' and 'The Postcolonial Within'.

I have reviewed selectively, commenting on two essays in each of the first three sections. There are other essays to discover in this provocative collection, however, including Paul Passavant's account of the colonial assumptions, through J.S. Mill, that underlie the protection of free speech in twentieth century America. Darian-Smith's own contribution, described in the introduction as an 'omnium-gatherum' (14), rolls along, gathering speed as it moves from rabies to railways and transnationalism. It concludes the collection, but it is far from her final thoughts on these questions, which fuel her recent book.

Fitzpatrick and Darian-Smith reintroduce the newly juxtaposed essays, illustrating their approach with an extended critique of Rhoda E. Howard's defence of international human rights against cultural absolutism. Intended as an example, and useful as such, the dismantling of Howard highlights the recurring appearance of international law in the collected essays. But this book is much less about international law than it is about a theoretical engagement with law, broadly construed, and the repercussions of Europe's colonial encounter with much of the rest of the world. It would be too bad if this book were consigned to that field because it has much to offer anyone working explicitly or implicitly in a colonial or neo-colonial context.

With some important exceptions, the particular colonial or postcolonial context is a secondary concern, and my historian's predilection chafes when the contingency of context is lost to sustain a theoretical proposition. More about this as I work through the essays, but to chide the author's for their lack of historical sensibility is to miss the point of the collection—a rigorous insertion of law into postcolonial theory.

3. Postcolonialism

Postcolonialism is an illusive word, employed in an almost unmanageable number of approaches. To the extent, however, that one can identify a theoretical foundation, it is Edward Said's Orientalism and, to a lesser extent, Imperialism and Culture that inform this book. In Darian-Smith's words, Said's texts:

'examine the West's historical construction of the Orient as the oppositional referent - the Other - to itself, both as essentialized self-reflection and constructed mimesis. Through processes of imperial knowledge production, western discourses of Orientalism emerged which essentially produced a constructed Orient'.

Against this construction, the West (principally Europe) created its identity and, more than this, sustained a position of power and superiority. Noting that this constitution of self in opposition to a constructed other is now commonplace in the postcolonial literature, Fitzpatrick and Darian-Smith extend the analysis:

'What is less remarked, and what initiates the defining moment of postcolonialism, is that the exclusion of these 'others' is intrinsically antithetical to the West's arrogation of the universal to itself since this arrogation would require the inclusion within the West of those very others excluded in its constitution. The postcolonial, that is, the person subjected to this process, is thus torn between exclusion as something radically different to the West and the demand to join and become the same as it' (pp.1-2).

4. Identity in Crisis

It is not only the postcolonial, however, that is torn. The editors circle back on the West to explore the 'fracturing' and 'unresolved' nature of an identity, constituted in opposition, which both includes and excludes, demands conformity and difference. As does the explorer in Franz Kafka's 'In the Penal Settlement', who having included the indigenous prisoner in his rights bearing community and saving him from execution then fends him off as he tries to board the boat to escape the colony, the West both 'contrarily excludes and includes in the primal assertion of its own identity' (p.2).

5. The Rights of Indigenous Peoples

Placed first in the collection, and described by the editors as 'a theoretical impetus for much of the collection', Perrin's 'Approaching Anxiety: The Insistence of the Postcolonial in the Declaration on the Rights of Indigenous Peoples' considers these questions directly. Perrin begins with 'an insistence of the past in the present'. That 'past' is a colonial past, the encounter of 'modern' and 'indigenous' nations, and the present is the continuing irresolution of this encounter. This irresolution, argues Perrin, is reflected in a Declaration and accompanying documents that struggle to define indigenous peoples as distinct, based on connections to blood and soil, and yet incorporate them into the world community as bearers of human rights. Perrin traces the construction of 'indigenous', which contrarily excludes and includes, to an ambiguity in the origin of the modern nation, and to a failure of Said's to address 'the indeterminacy of an Orientalist origin' (p.23). Does an Orient precede an Occidental construction of the same, and does community precede a nation which constructs or imagines the community? Irresolvable questions, contained such as they can be, argues Perrin, by a process, reflected in the Declaration, of both excluding and including indigenous peoples.

Perrin's chapter is a smart piece of theoretical writing. It is also difficult reading, and the Declaration on the Rights of Indigenous Peoples has a somewhat ephemeral presence. It is the legal artifact, the text which Perrin deconstructs, but as with an object disturbed from an archaeologist's dig, it seems more curiosity than artifact. Valuable as a piece of art, the object loses meaning for the archaeologist for whom context is essential. This is not to trivialize Perrin's adroit deconstruction of the Declaration, but it is to caution the reader that this essay is much more about Said's Orientalism and only tangentially about the Declaration.

6. The Construction of the 'Civilized' Identity

Fitzpatrick's erudite contribution pays dividends from careful reading. He begins with a seemingly inexplicable absence: that of the peasant in the institutions of the Hungarian state, particularly its courts, despite their ability, through resistance, to effect change. 'Why', asks Fitzpatrick, 'should the perception of such potent resistance prove so elusive?' The answer, he argues, is that:

'modernity itself depends on its asserted incommensurability with certain recalcitrant 'others', others that it cannot therefore adequately recognize, others that are a constant and felt threat to its coherent and exclusive self-creation' (pp.39-40).

The peasant, savage or barbarian, depending on the context, must be constructed and maintained by the 'civilized' for the later to sustain its identity. In Fitzpatrick's words:

'Civilization in modernity is always threatened civilization. It has incessantly, and progressively, to be fought for and secured against an always-resurgent contrary of its own making' (p.48).

7. Colonial Resistance

Where, then, is the space for peasant, savage or barbarian resistance? Does it come from somewhere outside their constructed identity, or does the construction subsume their resistance? Fitzpatrick locates its possibility in the space in between, and he offers two examples: colonial Papua New Guinea and Sri Lanka. These are instances, he suggests, where the colonized used the institutions of the colonial regime (the courts in Sri Lanka) or adopted the colonizer's discourse (of liberal legalism in Papua New Guinea) to ameliorate and resist the colonial oppression, and eventually to transform it. Presented fleetingly in the concluding paragraphs of the essay, these examples suggest the possibility of resistance that 'is not ultimately contained by power', in this case colonial power. But again, reflecting an historian's predilection for the nuance of context, I wish for more detail and a discussion about why these instances of colonial resistance have been singled out.

8. The Incommensurability of Difference within the UN

Dianne Otto's contribution, 'Subalterity and International Law: The Problems of Global Community and the Incommensurability of Difference', explores the possibility of resistance at the United Nations. Through an analysis of the Group of 77 ('G77'), the coalition of underdeveloped states at the UN (most of whom were former European colonies), Otto asks:

'whether it is possible to imagine a process whereby nondominant, nonelite, subaltern individuals and groupings could participate as subjects of international law'? (p.146).

The possibility of full participation is reduced, she argues, not only by the enormous imbalance of military and economic power between the West and the G77, but by the structure of an international order that privileges states:

'understood as autonomous, self-interested sovereign units in a relationship of formal equality with each other' (p.151).

So constructed, and of European origin, the nation-state was foisted upon decolonising peoples as they entered the international community, creating new elites within borders that resembled little except a colonial past.

Borrowing the critique developed by subaltern studies scholars, who sought to interpret popular political protest as more than just intermittent clamour in the colonial emancipation of India, Otto challenges the strategy of this newly emergent elite who lead the G77. They have led, she argues, without interrogating the dominance of states in the international order. Difference, both within and between states, must not be conceded to a Western norm of nation-state or the emerging international order will simply reconfirm existing hierarchies. Nonetheless, Otto concludes that the:

'liberal European constructs of democracy, equality, and self-determination, while reinforcing Enlightenment rationalism, simultaneously open the way to recognizing disruptive knowledges at the edges of modernity, not outside the European frame but also not fully within it' (p.174).

Echoing Fitzpatrick, Otto finds space for meaningful resistance in the area between incommensurable difference and the demand for conformity.

9. Vitoria, Spain and the Americas

Antony Anghie, 'Francisco de Vitoria and the Colonial Origins of International Law', traces the origins of international law to Vitoria's preoccupation with Spanish activity in the Americas. 'International law', he argues, 'was created out of the unique issues generated by the encounter between cultures' (p.90).

In particular, the doctrine of sovereignty, of what entities are sovereign and of what sovereignty confers, emerges from Vitoria's attempt to resolve cultural difference in this colonial encounter.

An important early figure in the development of international law, and viewed widely as sympathetic to indigenous peoples, Anghie argues that Vitoria's legal framework ultimately 'legitimizes endless Spanish incursions into Indian society' because any Indian attempt to resist justifies Spanish retaliation (p.95). War, the right to wage it and by victory to acquire title over territory and people, resides only with the Spanish who are Europe's Christian emissaries in the Americas. Indians, as pagans, exist in Vitoria's legal framework as subjects against whom war may be waged and without a right to wage a just war themselves. European practices, specifically Christianity, become the universally applicable norm.

10. The Legacy of the Colonizer

Jeannine Purdy, in her trenchant essay 'Postcolonialism: The Emperor's New Clothes?' grapples with the conundrum of postcolonial theory in states where the colonizer has not left, where there has been no 'Independence Day', and where the settler society is numerically, economically and socially dominant. She argues, following Frantz Fanon, that the violence of law depends on 'which side of the colonial divide one stood', and, importantly, one stands. She writes of a nominally postcolonial relationship that is not so post, at least not in the lived experience of Aboriginals in Western Australia and Trinidadians in their island nation. In Western Australia, for example, she describes the incarceration of Aboriginals that accompanied 'a second wave of dispossession' in the second half of the twentieth century as the settler society sought to exploit mining and agricultural possibilities. Her point is that law's violence is not ubiquitous but targeted, and not metaphorical but lived experience for Aborigine Australia. The same could be said of the indigenous experience in other British settler colonies, including Canada, where the incarceration of Natives vastly exceeds their proportion of the population.

Purdy follows this analysis with a critique of scholars and judges, particularly Henry Reynolds whose influential work chronicles the illegal (by the standards of English law) settler occupation of Aboriginal land. Purdy argues that Reynolds presents colonial violence as something 'distinct from the inherited legal system' and therefore effectively 'exonerates' British law, setting it apart from the violence that accompanied settlement (p.219). English law both allowed for the settlement of Aboriginal lands and constrained that settlement. In British North America, for example, the Royal Proclamation of 1763 described the terms on which land could be settled: only after Crown purchase from the Native inhabitants. Returning to the Australian context, Reynolds's point is not to exculpate English law, but to suggest that contained within it was the possibility of just treatment, even while allowing settlement. An instrument of colonialism, and therefore complicit in its violence, the law did provide rhetorical space, inconsistently occupied by the Colonial Office, to limit the excesses of settler brutality. That this brutality continues, however, strains the possibility that justice for indigenous peoples can be found in the common law or in the legal regime of any settler society.

11. The Construction of Scale in International Law

In 'The View from the International Plane: Perspective and Scale in the Architecture of Colonial International Law', Annelise Riles interrogates the construction of scale in international law by both its practitioners and its critics. Just as the nation is an imagined community grafted to a sense of territory:

'(t)he global is both a way of looking that eclipses all others, and a space or place' (p.133).

The gaze of the international lawyer transports a dispute from the local to the global.

Riles turns her analysis around a late nineteenth century land dispute in colonial Fiji. The British governor had confiscated American-owned land on grounds that its alienation had not conformed to 'ancient custom', interpreted to protect Fijian culture. American lawyers sought to transport the subsequent dispute to the international plane; British lawyers sought to keep it local; and the result was extended inter-governmental correspondence. This is the space of international law. But again, I find myself drawn to the local context, if only to understand its elevation to the global. What 'ancient custom' had been violated? Who were 'the bastard offspring of Native women' whose claims were removed from the international plane when it became apparent that they lacked American citizenship? How was law being used by local elites to affect local relations? These are not the questions that concern Riles here, but they begin to accumulate.

12. Conclusion

I have discussed only half the essays in this collection and revealed considerably less of what they have to offer. My comments suggest that at times I wish to be lowered more deeply into the context and not to be pulled back quite so abruptly into the theoretical literature. But it is that literature and not the social context which holds the collection together. Even for a legal historian, such as I, with a tenuous grasp of the theoretical richness presented here, this is a valuable collection. It will continually reward the careful reader.

This is a Book Review published on 20 December 2000.

Citation: D Harris, 'Laws of the Postcolonial',compiled by E Darian-Smith and P Fitzpatrick, Book Review,2000 (1)Law, Social Justice and Global Development (LGD)
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