Postcolonial Law Research Paper

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Postcolonial theory is largely associated with South Asian scholarship, subaltern and literary studies, analyses of resistance, and a general rethinking of a dominant European historiography that places the ‘West’ at the center of the world. Postcolonial theory plays a particularly important function in its acknowledging and recovering the ongoing signiﬁcance of colonized peoples in shaping the epistemologies, philosophies, practices, and shifting identities of what is taken for granted as dominant Western subjects and subjectivities. Most importantly in the context of law, postcolonial theory, and the various colonial sites through which it is inscribed and substantiated, punctuates the degree of violence and the technologies of power involved in understanding concepts such as modernity and capitalism as well as contemporary state and trans-state nationalisms.

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That being said, postcolonial theory rarely considers the importance of law and imperial governance (however, see Baxi 2000, Spivak 1999). Likewise, legal scholarship has largely ignored the signiﬁcance of a postcolonial perspective (see Darian-Smith and Fitzpatrick 1999). Certainly sociolegal scholarship has gone some way to bring to the fore some of the implications of gender, ethnicity, race, class, age, religion, and so on, in the formulating of the rule of law and the maintenance of its legitimizing practices. However, the particularly uncomfortable position oﬀered by a postcolonial perspective, which places side by side the oppressed and the oppressor, and their enduring psychological and material interdependence, is generally treated as a radically diﬀerent line of inquiry from that which seeks to analyse economic and political inequalities promulgated through a particular legal system. What, after all, do cultural and literary studies that focus on the colonial situation have to do with an empirical study of law in places such as the United States? In an attempt to dismantle this prevailing attitude of mutual exclusivity between postcolonial and legal studies, discussed below are some of the insights postcolonial theory brings to bear on an understanding of contemporary legal processes in order to identify, analyse, and assess what is meant by the term ‘postcolonial law.’

1. Deﬁning A ‘Postcolonial’ Perspective

Throughout the late 1980s and 1990s, a considerable body of scholarship devoted to issues of postcoloniality emerged. And with this proliferation of research in Anglo European universities, there was, and is still, much debate over the meaning and scope of postcolonial terminology (see Schwarz and Ray 2000, Loomba 1998, Williams and Chrisman 1994). Despite these ongoing deliberations, it is helpful to turn to the most signiﬁcant implications of a postcolonial perspective which mark it as distinctly diﬀerent from, yet complementary to, other contemporary theoretical investigations. This process will help to ﬂesh out the contours of postcolonial studies and, at the same time, underscore its intellectual lineage.

Postcolonial studies emerged initially among Indian and British scholars in the wake of World War II and in an era of general demise of colonial regimes. Spurred on by radical Western thinkers such as Marx, Nietzche, Althusser, Fanon, Jameson, Foucault, and Derrida, Edward Said’s important publication Orientalism (1978), these scholars of historiography critiqued Eurocentric and Indocentric interpretations alike for their assumptions of superiority in European countries vis-a-vis the past and future of Indian people and a modernist concept of the Indian nation (Prakash 1990, 1992, O’Hanlon and Washbrook 1992, Chakrabarty 1992).

Building on Marxist, poststructuralist, and feminist theories, postcolonial scholars have played a major role in bringing to the fore the chronological and psychological relations between the former colonized and colonizers, whom, they argue, cannot be understood except in conjunction with each other (see Gandhi 1998). Postcolonial theorists do not claim that colonialism was experienced in the same way under diﬀerent regimes, just as they recognize that today colonialism operates in very diﬀerent ways from its earlier conﬁgurations. Nonetheless, while paying attention to the details of speciﬁc contexts, postcolonial scholars agree that, in order to understand all contemporary histories of peoples and places, irrespective of whether there historically existed in any given site an explicit colonial regime, it is crucially important to remain aware of the enduring presence of former colonial discourses that posit ‘civilized,’ ‘progressive,’ and ‘just’ Europeans against ‘barbaric,’ ‘static,’ and ‘unethical’ indigenous populations.

According to these scholars, colonial assumptions of Western superiority endure across time and across attempts to blur racial and ethical boundaries. While racism is not equivalent to colonial regimes, categories of racial diﬀerence were used by colonial governments to varying degrees as strategies of power and control over indigenous peoples (Stoler 1989, Dirks 1986). Today, despite claims of increasing acceptance of multiculturalism and cultural diversity, racial categories and diﬀerences continue to exist, though often in less overt manifestations. And, according to many postcolonial theorists, these boundaries of diﬀerence are insurmountable given the psychological intersubjectivity between former colonizers and colonized which constantly necessitates a desire for re-representations of diﬀerence (see Fitzpatrick 1999). Drawing on a variety of theoretical perspectives—including an Hegelian master slave dialectic, phenomenological essentialism, and psychoanalytical insights gleaned from Fanon and Lacan— postcolonial theorists such as Homi Bhabha, Gayatri Spivak and Benita Parry bring to the fore complex understandings of how oppressed peoples resist and seek empowerment (see Gates 1991).

In recognizing processes of mutual desire and negation between the ‘master’ and ‘slave,’ postcolonial scholars are forced to recognize the profound irony in attempting to present alternative historical narratives and identities other than those conventionally supplied by the West (Trivedi and Mukherjee 1996). The very moment of self-determination by peoples formerly colonized requires the adoption of European knowledge such as notions of progress and development, concepts of self and personhood, as well as forms of government, state-building, and, perhaps most importantly of all, law. Thus, according to a postcolonial perspective, all assertions of freedom and self-awareness require elements of mimicry and voyeurism. As Douglas Robinson has noted:

Postcolonial or subaltern scholars claim it is at once essential and impossible to forge a ‘new’ postcolonial identity: essential, because those colonial constructs were at once alien and negative, because they came from the outside and destroyed much of value in the indigenous cultures, and because an eﬀective postcolonial politics requires the development of more positive indigenous visions: but also impossible, because colonial discourse continues to inform even these postcolonial attempts to break free of it, and tends to condition even the imagination of a ‘new’ (postcolonial) identity along ‘old’ (colonial) lines. (Robinson 1997, pp. 19–20)

A prominent postcolonial theorist, Dipesh Chakrabarty, has responded to the ironies of alterity by calling for the ‘provincializing,’ or decentering, of Europe and European epistemological knowledge. Chakrabarty (and others) argue that non-Western knowledge has been historically ignored and precluded from historiographical accounts of humanist understanding and intellectual endeavor (Chakrabarty 1992, 2000a). In an eﬀort to critique ‘the ‘‘Europe’’ that modern imperialism and (third world) nationalism have, by their collaborative venture and violence, made universal,’ Chakrabarty urges scholars ‘to write into the history of modernity the ambivalences, contradictions, the use of force, and the tragedies and the ironies that attend it’ (Chakrabarty 1992, pp. 20–21).

2. Postcolonial Law

Nowhere in the histories of modernity has the ‘use of force, and the tragedies and the ironies that attend it’ been so obvious as they are in the context of law. Law, in a variety of ways, was the formal mechanism and institutional frame through which colonial governments oppressed and controlled indigenous peoples. Of course, there are many varieties of imposition and reception of law, a few even categorized as voluntary. In some cases, such as in Africa (Mamdani 1996), this involved coopting native chiefs and traditional procedures of arbitration and dispute resolution. In other cases, such as Australia, the British declared the continent terra nullius or vacant, and on the basis that native populations were thought to be less than human they were deemed to have no law at all. As a result, traditional methods of peacekeeping were overlooked or deliberately obliterated. Law, emblematic of European rationalism, universal objectivity, individual property rights, and sovereign state authority, provided the justiﬁcation and the discourse of capitalism, and its necessary corollary of social inequality, be it based on the grounds of gender, class, or ethnicity.

It is impossible to separate colonial from postcolonial law since each developed in collaboration and in conjunction against and through each other. The metropole has always been connected with its colonial peripheries, be these geographically distanced outposts beyond state boundaries, or socially and politically isolated enclaves (such as native reservations) within it. The process of decolonialization and the emergence of new states throughout the twentieth century clearly demonstrates the extent to which independent nations have had to adopt modern forms of state building, and the institutions, bureaucracies, constitutions, and legal ideologies of their former oppressors in order to participate in national and international legal communities. The rule of law, the handmaiden of Western capitalist enterprise, exempliﬁes the postcolonial dilemma that requires new states and non-Western states to mimic and adopt, at least to a certain extent, the legal structure of so-called democratic society.

3. Postcolonial Law And Globalization

Prevailing discussions about law and globalization epitomize the ironies presented by postcolonial law. For instance, The World Bank, the United Nations, the European Union, GATT, NAFTA, and other international legal arrangements all require that, in order for a country to participate in a global political economy, it must demonstrate commitment to, and adherence with, the foundational values of modern Western law. This does not mean that Western law, or more speciﬁcally Anglo American law, remains impervious to the challenges and collaborations of interacting with diﬀerent legal values and processes. In a postcolonial world, just as in the colonial situation, there are always ongoing modiﬁcations and appropriations between legal systems and the various cultural values that legal processes represent. One only has to think of human rights to appreciate the extent to which its apparently universal actual application has to be constantly modiﬁed according to prevailing social, political, and economic values existing within particular peoples and places. That being said, however, the dominance of Anglo American law is overpowering and not easily destabilized.

An assumption of Western superiority is evidenced by a majority of United States and European sociolegal scholars who continue to treat the rule of law as a discrete entity or thing, much like the nation-state (which law has historically served), and religion (which law has in eﬀect replaced), and not as a dynamic product of historically contested cultural (and colonial) interactions. Thus up to the end of the twentieth century, in arguments both for and against the enduring signiﬁcance of the nation-state in the increasing context of globalization, the meaning of law is taken as a given, and it is only its spheres of centralized legal activity and inﬂuence that are being brought into question. As a result, legal analysts tend to look only at the privileged domains of legal interaction amongst lawyers, judges, business people, and entrepreneurs, and not from the perspective of ordinary people (e.g., Dezalay and Garth 1996). An important point is that what happens in the oﬃces of international and state law ﬁrms, as well as bureaucratic and regulatory institutions, may have very little to do with the operation of law on the ground in the barrio, reservation, schoolyard, parking lot, hospital, jail, home-cleaning service, bank, and employment oﬃce. These realms of legal interaction, while not so overtly important in macroeconomic and political terms, are, nonetheless, where the majority of ordinary people interface with the law and understand its meanings. And it is in these realms of everyday legal interaction where challenges to static legal ideologies and deﬁnitions coagulate, solidify, and, in some cases (such as the riots against the World Trade Organization in Seattle in 2000), become articulated.

4. Challenges And Limits Of Postcolonial Law

To really accept the challenges and resistances presented by postcolonial law, be it from within or from without the boundaries of the nation-state, requires that legal scholars accept that there is no universal legal code and legal objectivity. This in turn would mean that the relative dominance of one set of legal values over another would be a constant topic of review and analysis. The naturalized centrality and superiority of an American European legal perspective would be dislodged and, borrowing Chakrabarty’s terminology discussed above, necessarily ‘provincialized.’ Given the relations between law, capitalism, and a global political economy, it is no surprise that Western legal scholarship has largely ignored, some would argue deliberately, the long-term implications of the presence of postcolonial law.

That being said, the ironies and limits of a postcolonial perspective applies to the context of law as it does elsewhere. Desires to elevate the singularity, independence, and signiﬁcance of peoples formerly colonized, and their particular legal ideologies and practices, must also recognize the extent to which postcoloniality is a product—culturally, politically and economically—of the colonial enterprise. There is no obvious solution to how to move beyond the inherent limitations whereby postcolonial knowledge is posited as part of the enduring problem of Western oppression and domination of others. Still one thing seems sure: in order to reveal the intersections between legal processes and new forms of colonialism and imperialism that are emerging within the technological and economic innovations of the twenty-ﬁrst century (such as the Internet), what is ﬁrst required is a basic rethinking of the currently prevailing Eurocentric, modernist, state-bound understanding of what constitutes law.

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