Monday, 25 February 2013

British Courts in India: Perpetuating Power Or Challenging It?

Bombay High Court, 1902 (source: The National Archive, Catalogue Reference: Part of CO 1069/179)

Having spent the some time reading about the administration and legal system of British India, I came across the following statement by Gandhi:
"Do you think it would be possible for the English to carry on their Government without law courts? It is wrong to assume that courts are established for the benefit of the people. Those who want to perpetuate their power do so through the courts."
Pretentious as it might seem, I couldn't help asking myself if Gandhi was right. Did law ultimately serve the purpose of upholding or undermining the structures of Victorian England, especially when seen in a colonial perspective?

First, law can obviously both be a reflection of society as it is, or as we would like it to be when we make laws trying to accomplish social change (as when established legal systems reflecting the existing social order have been replaced in one fell swoop through Communist revolution in traditional societies, for example). But I would argue that even when "conservative", as in constructed to uphold the existing structures, law will always potentially threaten the very structures it is designed to protect.

Why? Because law is about expressing power in a logical and structural way, and that in turn makes it vulnerable to structured arguments based on logic. While power is hidden, unexpressed and implicit, it cannot really be addressed except through violence. But when it is explained and structured, it is stripped of its almost magical abilities. In that sense, law is to power what exposing a marked deck is to magic.

You might compare it to theology, which is really all about structuring faith in a logical fashion. While theology is more or less necessary in order to justify and uphold a complex belief system, it also makes that belief system vulnerable to attack. Look at Christianity, for example. The most successful attacks on the religious status quo are all founded on what are ultimately theological arguments – for example, Luther's and Calvin's Reformation are both "legal" revolutions in that they use the language and arguments of theology to challenge the tenets of that same theology. Thereby it made the justification for the existing beliefs the very foundation for the questioning of status quo. The same thing could be said for the challenge of science. It would be much harder to attack for science to call faith into question if it had not implicitly tried to justify itself by logic; i.e. through a carefully structured belief system that is rationalised through rational argument (and the truth is that modern scientific thought to a large extent is dependent on the rules for argument that was originally designed within a religious context, such as the tomistic logic).

In the same way, when power is called into question in such a way that it feels it must defend itself by rational argument (as it increasingly did in Britain over the centuries), it also becomes vulnerable to being questioned on the very same premises it uses to legitimise itself. Law forces power to explain itself and no matter if it does so by positivism (it is the law because I say so and I am the power) or by utilitarianism (it is the law because it is the best for the majority) or any other mechanism (it is the word of God, for example), the explicit justification makes it possible to question it. Thereby, it is possible no only to call into question not only the ultimate cause for justification, but also that this justification makes the application of power (law) reasonable in an individual case. By laying claim to rationality, power can be questioned by rationality, and not just in legal theory but in its practical application in courts.

Undoubtedly, British law and legal practices in the 19th century was an expression of power over an underprivileged majority by a fairly small and privileged group of white males, but in order to justify this order, British law and legal practices had long used the application of a set of principles that ultimately allowed its opponents to argue against those same inequalities.

This is also evident in the ambivalence in 19th century British justification for its colonial ventures. The idea of British superiority, which was what was often considered to ultimately give Britain the right to occupy foreign countries such as India, also gave Britain an obligation to act in a "superior" manner and gave her a certain responsibility towards "inferior" cultures, which she had to shoulder if she was going to be able to successfully maintain her right to govern these people. In short, if Britain acted in a cruel, arbitrary and "uncivilised" manner, then the basic tenants underlying British legal thought disqualified her from laying claim to her colonies, unless she was to accept the collapse of the mental cosmology that had been created over several centuries. Since that was clearly intolerable, these principles had to be upheld in the laws and the courts, which in turn made it possible to question inequality before the law and the power of the privileged group over the disfranchised such as women, the poor and the colonial groups.

Just, then, as the very carefully constructed theology of the Church in the Middle Ages, made it possible for Luther to call its tenets into question, the theories of rights and power that ultimately justified the British constitutional and legal order made it possible for the American colonialists to call it into question, and for the tea coolies of Assam to demand equality before the law. You might say that whenever the authorities applied the governmental power in an arbitrary on unjust way, they actually called the entire system into question and to do so too openly would necessarily have lead to its collapse. Therefore, in order to survive, it had no choice but to allow itself to be attacked on the grounds of being unfair and unjust.

By providing both a monopoly on violence and a justification for that monopoly, you could say that the law, and the faith in the law by the oppressed, did serve to uphold the basic unfairness underlying the colonial order, and that if the oppressed had refused to acknowledge this order, they might have hastened its demise. But then, the almost sacrosanct status of the law and courts in the British mind also opened it up for a revolution from within – the demands of the oppressed became not a foreign power trying to force its will on the British, but made them an inevitable consequence of the system itself, which may ultimately have been a greater threat to it. In that context, peaceful protests and British violence in response to it, was a much greater threat to the existing order than separatist violence since the British could very well justify violence in the face of violence, but it was much harder justify violence applied in direct opposition of the justification for the monopoly of violence for the state.

I would therefore argue that all justification for power, and its open and rational expression through laws and legal theories, necessarily makes it vulnerable to challenge, but the form of a successful challenge will vary depending on what that rationale is. In that sense, you could say that all belief systems are vulnerable their own kryptonite. The very different challenges faced by Russia in Central Asia, I think, serves to pinpoint this. Russia had a very different rationale underlying its social order, and thus, it was less vulnerable to protests based on fairness and the rights of the governed people, but was ultimately more vulnerable to open revolution, since the autocratic system could not be justified once it failed to apply its will successfully on the people. 

And thus, I would also argue that British law in India, while striving to uphold the social order actually, ultimately, undermined it. On the other hand, the fact that it contained the mechanisms for challenging it built into the system likely helped the fundamental social order in Britain to survive even the cataclysm of the social change of the 20th century, and survive well into the 21st.

The modern Western law, then, I would say, is a double-edged sword that can be used both as a weapon against inherent unfairness in the system and as a shield to defend those very structural inequalities against radical change. The awareness of this somewhat contradictory nature of Western legal thought is, I think, helpful when discussing the role of law in oppressing and/or liberating marginalised groups in the past. I would be curious to hear if anyone agrees with me, or if I'm coming across as completely spaced out (or just repeating an argument that has been made many times before).


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