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).

Thoughts?

In the Valley of the Shadow of Death: Life in the Time of Cholera

Depiction of cholera from Le Petit Journal, 1 Dec, 1912 (image from Wikipedia)

In circling dances so lightly swinging  

You follow wildly amusement's thread,
With myrtle blooming and music ringing ...  

But solemn I on the threshold tread:  

— The dance is checked

And the clang is wailing,  

The wreath is wrecked  

And the bride is paling:

The end of splendor and joy and might
Is only sorrow and tears and blight.

I am the mighty, who has the power,  

Till yet a mightier shall appear. 

In deepest pit, on the highest tower,  

My chilling spirit is ever near:  

Those plagues of night  

And of desolation,  

Whose breath of blight  

May annul a nation,  

They slay the victims, which I select,  

Whom shield and armor can not protect.

Johan Olof Wallin, 1834 (translation by A.W. Almqvist)

These lines were written during the first cholera epidemic ever in Sweden in 1834, by J.O. Wallin, minister, orator, poet and Archbishop, and the sentiment is echoed in thousands of accounts from across the world. Cholera struck quickly and fatally, and entire communities succumbed as if an avenging angel had walked from door to door.

Most likely originating in India, the first known pandemic began in the Bengal region of India in 1817and spread across Southeast Asia, China, Japan, the Middle East, and southern Russia. In 1827, the first epidemic occurred in Europe and America and lasted until 1835. After that, cholera, nicknamed "Jack Morbius" in English, was a recurring and deadly guest for most of the 19th century.

Initially, no one knew how it was caused or transmitted, and the advice given was therefore inadequate and erroneous. The New York Health Board advocated temperance in food and drink, while among the British troops in India, rumour had it that the men who went on drinking heavily had the best chance of recovery. Usually, ventilation was advocated since it was assumed that the disease was airborne. In Flora Anne Steel's The Complete Indian Housekeeper and Cook, first published in 1888, it is claimed that cholera is often "enveloped in damp clouds" why living on mountain ridges is not recommended. She also suggests cutting down "rank vegetation" as "it harbours dirt, and emits injurious gases".

In fact, Dr John Snow had established a connection between cholera and contaminated drinking water already in 1854, and suggested that contamination from human sewage had been the cause of the London epidemic in 1854. In 1883, five years before Flora Steel's book was published, Robert Koch identified the bacteria responsible, vibrio cholerae, through a microscope.

Vibrio cholerae can survive for extended periods in cold, clean water but rarely survives in foodstuff. Humans are usually the only living hosts for the cholera bacteria, and it is primarily spread through the contamination of drinking water by human fecies. The critical dose - ie the amount of bacteria required in order for the victim to be ill -  is fairly high, which means that any epidemic will have a fairly large amount of symptom-free carriers, which helps spreading the disease.

Undernourished people are more likely to catch the disease, as are people with low amount of acid in their stomach, since the bacteria is vulnerable to acidic conditions. Flora Steel claims that the acid treatment is the most successful, and she gives several recipes for different acidic cures - the most basic being the one she claims is used by tea coolies which consisting of a tablespoon each of vinegar and Worcester sauce.

The incubation time can vary from a few hours to five days, but in most cases it is 2-3 days. The symptoms start with acute bowel pains and profuse watery diarrhea (up to about 20 litres a day and sometimes described as "rice water"). Vomiting occurs occasionally, but is not common. Due to the dehydration caused by the diarrhea, circulation collapse frequently follows and untreated epidemics have a death rate of about 50%. The primary treatment is rehydration; i.e. replacing the lost fluid and salts. With the proper rehydration treatment, casualties may be brought as low as 1%.

Though such a frequent and efficient killer, cholera is rather under-represented as a killer in fiction (compare it with the frequent application of "the cough of death"in books and films, for example). I suppose the main reason is the complete lack of romanticism and dignity in voiding your body of 20 litres of diarrhea in a few hours. For realism though, it can hardly be beat as it was the cause of a staggering number of deaths over the 19th century, and it can be used as a handy little mors ex machina for anyone writing fiction set in the Victorian period. Also, the vast host of victims across the world deserves some sort of tribute I think, even if their deaths lacked cinematic appeal.

As consciousness of the importance of proper water hygiene grew over the 19th century, the cholera outbreaks grew less and less frequent, but mortality in the recorded cases remained high. Even today, cholera outbreaks cause a number of deaths around the world, most often in poor regions with severe water shortage. It also tends to appear following natural catastrophies, such as the earthquake in Haiti in 2010. A donation to an aid organisation for the purpose of supplying refugee camps and disaster areas with clean water is therefore strongly encouraged!


Special thanks to the Swedish Institute for Communicable Disease Control for great and precise information!

Review: The Last Mughal

Full title: The Last Mughal: Eclipse of a Dynasty, Delhi 1857 (non-fiction) 
Writer: William Dalrymple
First published: 2006
Available: From a well stocked bookstore, or in paperback from Amazon

Quote: "As the sun set, the churches, mosques and temples filled again: the ringing of the bells of the evening arti, the final call to prayer from the minarets, and the basso profundo of the organ chords concluding Padre Jennings' evensong in St James's, all fusing together with the rumble of British carriages heading out towards the Civil Lines through the bottleck of the Kashmiri Gate –where the bricking up of the second of the two arches was a cause of frequent complaints in the Delhi Gazette."

The Last Mughal is a very ambitious book. It seemingly has a rather narrow focus – Delhi during the Mutiny of 1857 – but the scope is still immense. William Dalrymple went where few had gone before him in taking on not only the sources from one side of the conflict, but both, and in doing so, he utilized  Indian archival material in Urdu that has not been available to Western readers until this book was published.

With a florid and evocative prose, Dalrymple starts out by painting a picture of Delhi in the 1850s - the poets and artists; the princes and the colonial bureaucrats. The major events leading up to the fateful day of 11 May, 1857, are all described, as are the major players - Theo Metcalfe, Queen Zinat Mahal, the zealous Reverend Jennings and, of course, Bahadur Shah Zafar II, the last Mughal Emperor himself.

The chain of events that lead to the massacre of Englishmen and the subsequent British attempt at extermination of Delhi, is described as complicated and going far back, being built into the very structures of the British presence in India. In one sense, the events seem perfectly unnecessary - surely, they could have been avoided with a little more tact and less polarisation - and at the same time, they seem as unavoidable as the impact of a running steam train.

Dalrymple doesn't spare the reader, neither in depicting the atrocities committed by both sides, nor by handing out simple answers, such as who was right or how this might easily have been avoided. It is remarkable to be able depict the wholesale slaughter of hundreds of humans in cold blood without dehumanising the perpetrators; something that might make the events easier to understand but would also serve to detach the readers. These horrors are committed by people, not monsters, and as such it is a chilling read, indeed.

One is struck – or at least I am – by how unfamiliar with the Hindu-Muslim culture of the Mughals most of us are, and how much Islam has been invariably linked with intolerance in Western propaganda, as if fanaticism is equal with true Islam, rather than an interpretation made by certain individuals. In that sense this book is invaluable in understanding the radicalisation of Islam and the part the Western world has played in it. In fact, anyone seeking to understand the roots of fundamentalist sects in Pakistan and Afghanistan today is well-served by reading this book, as is anyone with an interest in Indian history.

Highly recommended.

I gave it 5/5 of Goodreads.