Historians of modern South Asia have grown accustomed to qualifying British imperialism’s exceptionalist claim to freeing property into the market and instantiating a rule of law in a host of ways. Starting from the pole of the former, questions have long been raised about both the idea that the pre-colonial subcontinent was devoid of ‘private property’ in land and the notion that the Company inaugurated a ‘modern’ system of agricultural relations, whether through nourishing a class of small-owning capitalist producers or even larger landlords contracting with would be yeoman capitalist farmers. From the pole of the latter, on the other hand, the colonial state has been recast, on various more specific bases, as the sponsor of no more than a despotic rule by law.
As trenchant as these qualifications have been, is it possible that they have also proved limiting in the purchase they have been able to give us on the legal history of colonial rule? To be sure, within ‘South Asian legal studies’ the cutting edge of its historical enterprise has typically been regarded from within as overflowing the boundaries of any narrow approach to legal history, in the sense of what a half century ago Alfred Kelley—in a very different context—famously derided as ‘law-office’ history of the kind undertaken by judges and lawyers looking to establish the long-standing or, at any rate, linear evolution of legal rules when regarded from inside of norm system’s own perspective. Yet a ‘law and history’ approach surely cannot fail to impose its own narrowed range of vision—whether by too easily reducing law to legal disputes capable of serving as a new archive of social history; too readily equating law with the quickening pulse of the legislative state, legal codification, or even the rise of juridical-cum-Foucaultian discipline; or for the purposes of putting law into more ostensibly sophisticated conversation with history, too reflexively assuming the unimpeachability of its theorization in terms of process, jurispractice, or jurisdictional politics.
In my talk I’d like to draw on the past of colonial South Asia in order to try to better interrogate the law’s own historicity, as both category and construct. To do so I’ll focus on two or three vignettes from my recently published book, which is entitled South Asia, the British Empire, and the Rise of Classical Legal Thought: Towards a Historical Ontology of the Law. Through a first, I will consider how the discourses of early colonial rule left the ostensibly all-important right to property largely extrinsic, so to speak, to legality. Focusing on the period between the Company’s acquisition of the power of diwani and before Cornwallis’ permanent settlement of the land revenue with Bengal’s zamindars in 1793, I’ll look at some of the key texts that were part of the culture of public contemplation through which the Company’s scandal-ridden beginnings were parsed. In doing so, I’ll argue that the underlying vision articulated in these texts was one that was indicative of a broader early modern way of aligning rights talk with notions of administration, adjudicatory rectification, and sovereignty based on an ontology of laws rather than an ontology of the law, considered as an infinitely generative system of rational ordering according to norms.
Here, secondly, I’ll also offer a rereading of the Company’s enterprise of settling the land revenue in its early Presidencies, focusing on what I’ll argue was its peculiar brand of absolute property talk that fixated on control over land’s rent more than supposedly unitary dominion over land as physical space. Lastly, as time permits I’ll jump forward to the late nineteenth-century era of Crown Raj to take a glimpse into the Indian Contract Act of 1872. By aligning the Contract Act with the underlying notion of will that more generally underpinned the rise of classical legal thought, here I’ll consider how suitable it is to understand the colonial state’s rule of law as a species of the rule of colonial difference, through having erected an order of neo-traditionalization built on status and Gesellschaft communitarianism as the antitheses of laissez faire individualism and Gemeinschaft paternalism.
Faisal Chaudhry is an Assistant Professor of Law and History at the University of Massachusetts Dartmouth/School of Law. Historically, his research centres on the interplay between law, empire, and political economy in modern (colonial) and early modern (Islamicate) South Asia. Contemporarily, his scholarship focuses on property rights theory and heterodox legal economism. His past teaching has included positions in history, area studies, and law at the University of Arizona, the University of Dayton, and the University of Pennsylvania. He holds degrees in law and history from Harvard University, Harvard Law School, and Columbia University.
