2015年4月30日星期四

Law as Ideology

South Asian history really helps one understand the underlying factors shaping facets of life other social scientists take for granted. Our history class studied law in colonial South Asia for the first two weeks of the new spring semester. Prof. Ahuja provided the following insightful commentary. These avenues of historiography are incredibly ambitious and challenging. I have yet to fathom if one day I can accomplish work to this extent. The late C.A. Bayly's first two books supposedly took 12 years. I must be patient on the way.

There are four different attempts for assessing law in colonial India (South Asia). First, the British created a new law that was unrelated to previous practice. The British authority's sometimes halfhearted, sometimes full-hearted attempt to "solve" the issue of sati is one example.

The second approach shows a clash of legal cultures in which a dominant structure imposed by the British reinvents older structures. Bernard Cohn's Colonialism and its forms of Knowledge shows & critiques Orientalist William Jones' efforts to remove "accretions of bad practice," find the proper Indian practice, and compose a Roman counterpart of "Hindu law." 

The third approach is the subaltern one which argues that colonial dominance did not "stick" onto Indian society. As a consequence, colonial law was not accepted by the locals and had no legitimacy. 

The fourth approach, mostly consisted of historians from Cambridge, attempts to look at Indian society as the basis of colonial power but also with Indian actors who have agency. Radhika Singha's A Despotism of Law falls under this category. Lauren Benton also shows how Indian subjects use the law to further their own interests in Colonial Law and  Cultural  DifferenceLawmaking should be understood as a “cultural enterprise,” and the state is just one of the actors in a social field. Law is a form of ideology; dissecting it shows the interplay between ruling powers and dissent. For example, penal law was linked to ideology and the consolidation of British authority. The British actors had an interest in centralizing the faujdari courts, which did not have clearly designated jurisdictions before. Zamindars shared power with other Kshatriya clans in governing an area and had overlapping regions of authority. This was the case in most early modern societies: ruling power worked with contractors that raised revenue and run jails. When colonial power enters, it sees venality everywhere and critiques it. The colonial power's need for militarization motivates the process of bureaucratization and centralization, but also the moral urge to weed out "venality."

According to Prof. Ahuja, whenever there is a lot of "corruption" or nonviolent but notorious and "immoral" legal misconduct, it usually is hiding a) historical change; b) class formation; c) clash of interest and ethical norms. There is a change in legal thought when the British tried to stop the practice of Blood Money, in a murderer is punished through compensating the victim's family. The British saw murder as a public offense rather than just a problem between two interest parties. The standard for "valid evidence" also changes under British rule. But the previous practices are not totally eradicated. It is like animal-hide paper, which is written over again and again. The text written previously is still visible, albeit hard to distinguish. As a result, India's law is a complex structure shaped by diverse regional actors and imperial cultures. In conclusion: "Law presents itself as generalized ethical ideas that seem universal and timeless. But one should look at varying social forces and dig for [law's] historical roots."


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