Proleptic Approach to Postcolonial Legal Studies ? A brief Look at the Relationship Between Legal Theory and Intellectual History’



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Law, Social Justice & Global Development
(An Electronic Law Journal)





A Proleptic Approach to Postcolonial Legal Studies ? A Brief Look at the Relationship Between Legal Theory and Intellectual History’


Vidya S A Kumar

PhD Candidate,

Merton College, University of Oxford

vidya.kumar@merton.oxford.ac.uk

This is a refereed article published on: 20 January 2004



Citation: Kumar, V, ‘A Proleptic Approach to Postcolonial Legal Studies ? A Brief Look at the Relationship Between Legal Theory and Intellectual History’, 2003 (2) Law, Social Justice & Global Development Journal

Abstract

This paper tackles some troublesome issues and questions lurking behind the relatively innocuous moniker ‘postcolonial legal theory’, or if one prefers, ‘postcolonial legal studies’. Its general aim is to situate both the legal theorist and legal theory within context of earlier debates about (Western) postcolonial theory and the subject of ‘postcolonialism’. Specifically, it attempts to execute a shift that displaces the subject of “postcolonialism” and subjectivises the objects of both theory and the theorist.1 In order to carry out this shift, this paper develops in two movements. The first movement, after providing a short introduction to the history of postcolonial theory, identifies and delineates two proverbial postcolonial concerns - nomenclature and complicity - each of which raise questions about the role, purpose and possibilities of Occidental postcolonial theory. The second movement examines the implications these issues beget for the study and production of ‘postcolonial legal studies’. Following the second movement’s examination of the nature of postcolonial legal theory and its relationship to intellectual history, it is argued that postcolonial legal theory needs to adopt “proleptic approach” to its object of study.



Keywords: Colonialism, Complicity, Edward Said, Empire, Law, Legal, Legal History, Legal Theory, Postcolonialism, Occident, Postcolonial Legal Studies, Postcolonial Studies, Social Change


Author’s Note
This paper is a version of a paper delivered at the ‘Postcolonial Legal Studies Conference’ held in Manning Park, British Columbia, Canada on 5 June 2002. I would like to thank Wes Pue for encouraging me to develop my talk into this paper.

1. Introduction

This paper will only very briefly tackle some troublesome issues and questions lurking behind the relatively innocuous moniker ‘postcolonial legal theory’, or if one prefers, ‘postcolonial legal studies’1. Its general aim is to situate both the legal theorist and legal theory within context of earlier debates about (Western) postcolonial theory and the subject of ‘postcolonialism’ Specifically, it attempts to execute a shift that displaces the subject of ‘postcolonialism’ and subjectivises the objects of both theory and the theorist2. In order to carry out this shift, this paper develops in two movements. The first movement, after providing a short introduction to the history of postcolonial theory, identifies and delineates two proverbial postcolonial concerns - nomenclature and complicity - each of which raise questions about the role, purpose and possibilities of Occidental postcolonial theory. The second movement examines the implications these issues beget for the study and production of ‘postcolonial legal studies.’ Following the second movement’s examination of the nature of postcolonial legal theory and its relationship to intellectual history, it is argued that postcolonial legal theory needs to adopt ‘proleptic approach’ to its object of study.




2. First Movement



2.1. An Exceptionally Brief History of Postcolonial Theory
It is widely believed that, for better or worse, Edward Said’s Orientalism set in motion, in a way not previously done before in the Western academy, a debate in the about the relationship between colonialism and the production of Occidental knowledge, especially knowledge of ‘the Orient’3. That said, it would certainly be an exaggeration to claim that Said began postcolonial discourse in light of his numerous (relatively less-prominent) precursors, which include, among others, Franz Fanon, C.L.R. James, Chinua Achebe, Anta Diop, W E B Du Bois, Romila Thapar, Aime Cesaire, not to mention the spate of ‘Commonwealth literature’ authors writing in the 1960s and 1970s4. Avoiding the daunting task of identifying the exact temporal pinpoint of postcolonial theory’s ultimate beginning(s) in the Western academy (and assuming one such point can indeed be identified), this paper instead makes the less contentious observation that postcolonial theory and/or criticism as a accepted field or method arrived late in the Western academy5 and was consolidated there only in the 1980s and early 1990s6.
Postcolonial theory and literature during the 1980s and 1990s was said to be ground-breaking for Western scholarship in a number of ways, including inter alia: its bringing to the forefront the interconnection of issues of race, nation, empire, migration, ethnicity and culture; its investigation, comprehensively and methodically, of the links between modernism and imperialism; and its insistence upon, in the study of colonial discourse, an interdisciplinary approach to literature and knowledge such that history, politics and sociology, even art, ought to be read together as a part of a larger interwoven narrative on nation and power7. These and other contributions of postcolonial theory in the West, although important, have been to a certain extent destabilised by powerful critiques targeting the production, methodology and focus of Occidental postcolonial theory8. This paper will not survey the plethora of criticisms levied against the production of postcolonial theory, but rather will narrow in on two issues, namely those of nomenclature and complicity9, which feature prominently in critiques of postcolonial theory and which, as will be become clear shortly, are relevant to the production of postcolonial legal theory.
2.1.1 The Nomenclature Question: Post-colonialism, Neocolonialism or Colonialism?
Of the debates surrounding postcolonial studies, the’[m]ost contentious of all has been [that about] the term ‘post-colonial’ itself. . This ‘nomenclature question’ concerned how the postcolonial theorist ought to classify the state of modern social relations both inter- and intra-nationally vis-à-vis colonialism. Consequently, it had the effect of interrogating the political-historical significance of the term ‘postcolonialism’ As was raised in numerous critiques of postcolonial studies,10 it asked whether ‘postcolonialism’ (along with its attendant modes of the ‘postcolonial’, ‘postcoloniality’, ‘postcolony’) is or was meant to signify the end of a specific, temporally-demarcated era i.e. colonialism. One implication flowing from this question was its politicisation of both the postcolonial critic or theorist’s usage of hypens (or dashes)11 and her choice of prefixes. It queried, ‘does ‘post-dash-colonialism’ imply a bright-line distinction between colonial and post-colonial eras, one which belies the continuities of imperial power?’12 If so, was this distinction real or reified?13 It further queried whether the ‘better’ moniker of this new theoretical field was the seemingly seamless ‘postcolonialism’ (one word, no dash), which implied that the theorist perceived a contiguous and continuous process to colonialism was taking place14.
At the risk of over-simplification, the nomenclature debate can be reduced to a debate about acceptance and denial. The ‘post-dash’ debate thrust the vital question of periodisation to the fore, asking theorists to indicate whether they accept that colonialism is, in some sense at least15, over. Accepting that there may be different senses of the meaning of ‘post’,16 determining in what sense colonialism is over - temporally17, ideologically18 epistemologically19 - continues to be both a live and politicised question. What is clear from this debate however is that the prefix ‘post’ is fundamentally about a type of denial: ‘postcolonialism’ or ‘post-colonialism’ denies - at some level or in some important way - that colonialism persists20.
In contrast, role of the prefix ‘neo’ in neocolonialism, although also raising the similar questions about periodisation and temporal boundaries (eg when the old ends and new begins), is fundamentally about acceptance. The concept of ‘neocolonialism’ not only suggests that its focus is upon the new and qualitatively different variant(s) of colonialism, it ostensibly accepts prima facie that colonialism, in some admittedly novel form, continues21. Neocolonialism then escapes the polemic raised by the assumption of a clear ‘after’22. Finally, postcolonial theorists who decide that the nakedly un-prefixed ‘colonialism’ is really the right and proper term to describe their object of study assume a similar type of acceptance. By continuing to use ‘colonialism’ to describe contemporary social relations between groups or among nations, one had then accepted the continuance of colonialism as an unbroken, temporally intact episode or event.
2.1.2 The Complicity Question: Nation, Theorists, and Social Change
The second far-reaching aspect of the critique of postcolonial studies involved the question of the extent to which both postcolonial theorists and postcolonial theory collude with the reproduction of ‘relations of domination’23. Unquestionably, the most damning account of such complicity was made by Aijaz Ahmad in his much-cited work In Theory24. This paper will revisit only one aspect of his critique: the claim that postcolonial theorists (and postcolonial theory generally) reproduce both cultural and material inequities between the west and non-west25. This reproduction is done in several ways, three of which will be mentioned.
First, postcolonial theory by privileging the analytical unit of ‘nation’ in its analysis26, overlooked and marginalised other salient analytical units of social relations, specifically that of class but also that of gender. This privileging obfuscated tensions and fissures plaguing the notion of nation, which are often brought to light by the application of such other analytical units, and which challenge the completeness of ‘nation’s’ explanatory potential. One consequence of the inability of ‘nation’ to be an all-encompassing explanatory tool is that postcolonial objects of study, eg the ‘Orient’, will inevitably be misrepresented27, reinforcing the Occident’s existing cultural upper hand. Postcolonial theory then contributes to a flawed understanding of the non-West. Second, as Ahmad’s passage below asserts, postcolonial theorists benefit from the fetishisation of ‘nation’:
To the extent that both ‘Third World Literature’ and ‘Colonial Discourse Analysis’ privilege coloniality as the framing term of epochal experience, national identity is logically privileged as the main locus of meaning, analysis and (self-) representation, which is, in turn, particularly attractive to the growing number of ‘Third World intellectuals’ who are based in the metropolitan university. They can now materially represent the undifferentiated colonized Other - more recently and more fashionably, the post-colonial Other - without much examining of their own presence in that intuition, except perhaps in the characteristically postmodernist mode of ironic pleasure in observing the duplicities and multiplicities of one’s own persona. The East, reborn and greatly expanded now as a Third World, seems to have become, yet again, a career - even for the ‘Oriental’ this time and within the ‘Occident’ too28.
Others have echoed this idea that postcolonial intellectuals obscure not only their complicity but also their stake in it29. Finally the complicity argument questions postcolonial theorists’ role as potential agents for social change30 - and accordingly, postcolonial theory’s political valence - whether it is because their views have tended to be conservative or reactionary31, or because they often do not speak from positions in solidarity with activists/social movements32.
3. Second Movement
How and why are these preoccupations of postcolonial studies of the past relevant to postcolonial legal theorising?33 The second movement answers this question by investigating three corollary questions: first, what is the nature of ‘postcolonial legal theory’ and what approach does it offer to issues of nomenclature and complicity discussed above?; second does intellectual history matter to legal theory?; and finally, what approach to postcolonialism, if any, should legal theory take?
3.1. The Nature of Postcolonial Legal Theory
3.1.1. Postcolonial Legal Theory (PLT)
What is Postcolonial Legal Theory (hereinafter ‘PLT’)? Is it the same as or different from postcolonial theory, and if it is different, how and why is it different? Answers to these sorts of questions are far from clear, with the very transferability of the term ‘post-colonial’ across disciplines in question34. Nevertheless, (implicit and explicit) accounts of ‘postcolonial legal studies’ exist. One description of postcolonial legal theory put forward is that it is the exploration, by legal scholars35, of neglected questions about ‘law’s relation to the postcolonial’36. This approach to PLT not only aims to fill a particular lacuna in legal literature37 but also challenges certain manifestations of legal orthodoxy:
Engagements between law and postcolonialism have been infrequent if stunning. The lack of engagement is both astonishing and understandable. ‘Astonishing’ because postcolonialism is now the main mode in which the West’s relation to its ‘other’ is critically explored, and law has been to the forefront of this relation. Yet the lack is understandable because the engagement between law and postcolonialism would drastically disrupt legal academic renditions of the relation - disrupt not the persistent orthodoxy of law and development, but also the newly settled consensus around two…. concerns…. - legal globalization and international human rights discourse.38.
In addition to both explicating the law’s role in the West’s relation to its ‘other’ and disrupting legal renditions of (and consensus around) international human rights discourse and globalisation39, ‘postcolonial legal studies’ has been described as an undertaking which focuses upon law as a (sometimes the) ‘tool of colonialism’ operating on both international and domestic levels40. PLT may also involve descriptions law’s justificatory role vis-à-vis imperial (state) violence41. In contrast, other accounts of PLT focus less upon how law advances colonialism, and more upon how colonial politics ‘affect legal rights’ or how colonisation ‘can alter the [putatively independent] concept of law itself’42.
Admittedly, this paper’s attempt to identify the ‘essence’ of PLT is limited. The first of several limitations has to do with the dearth of PLT texts and material generally upon which this attempt relies (in contrast to the numerous postcolonial studies texts available). The paucity of writing in this area - specifically on the topic of what PLT is - prevents a comprehensive exposition of ‘postcolonial legal studies’ from emerging, here or elsewhere. The second limitation, one related to the first, has to do with the fact that as a theory both PLT’s manifesto and the identity of its chief inaugural authors are unclear. In the absence of either a seminal or canonic text, or a single or collective prime-mover, delineating an PLT with imprimatur becomes at best speculative. Finally, if we can refer to it as body of scholarship, PLT appears to be comprised of disparate heterogeneous subject matters43, advancing diverse programmes of interpretive action44.
Apropos this latter point, if postcolonial legal studies is characterised by such diversity and heterogeneity - with respect to its disciplinary ambit and prescriptive ambition(s) - need postcolonial legal studies engage with postcoloniality at all? Are there limits to the reach of PLT? Perhaps, scholarship which simply engages with ‘law’ (or the ‘juridical’) suffice45. Put another way, if postcolonialism - or even colonialism or neo-colonialism for that matter - aptly characterises the global backdrop against which law operates (or, if one prefers, is superimposed upon modern legal relations), will not any discussion of law necessarily invoke postcoloniality, coloniality, or neocoloniality? If this is so, simply summoning law in scholarship may constitute a postcolonial46 undertaking. All this leads to the question ‘what, if anything, does ‘postcoloniality’ add to law (or to legal theory)?’ Put another way, does the ‘postcolonial’ in PLT bind legal theory in any important or desirable way? At least one account of PLT argues that it ought to remain ‘unbounded’:
The spirit of the intellectual encounter between law and colonialism is of necessity interdisciplinary, diverse in perspective, and unbounded. Scholarship in the field does not - and should not - fit into overly-neat disciplinary or perspective-bound categories. Individuals drawn to postcolonial legal studies come to the enquiry with variety of motivations and an array of interests. Some seek primarily theoretical understanding, others encounter the postcolonial as a part of sustained historical research, and others still feel a compelling sense of urgency to develop practical strategies by which to confront the legacies of colonialism ‘on the ground’. Many pursue a more or less mixed method of enquiry and do so from multiple motivations47.
To say that PLT should have an expansive disciplinary scope is less contentious than to argue its perspective should be circumscribed. Mindful of the desire to allow the very inchoate PLT every opportunity to flourish within the legal academe (and elsewhere), there may be good reasons for setting (normative) parameters around the PLT scholarly project. For example, should PLT be a critical theory, one with transformative aspirations, one which evinces scepticism towards the justness of status quo social relations, and/or one which eschews reactionary neoliberal politics? More generally, should one have any normative expectations of, guidelines for, or approaches to theory (legal or otherwise) and its performance and production?
These questions will be investigated shortly in the section on legal theory and intellectual history. What need only be noted here is the following observation: to raise the question of what PLT is, is to request clarification of its goals, aims, assumptions and directions. Until such clarification is provided, assessments of the value of PLT will be both premature and groundless. PLT scholars need both to clearly advance their particular conceptions of PLT, and also to answer both whether PLT is or ought to be ‘normatively bounded,’ and whether ‘the postcolonial’ adds anything new, different or desirable to legal studies simpliciter. There should be some attempt made to discern whether PLT has a raison d’etre and, if so, to sketch its theoretical contours.
3.1.2. PLT’s Relationship to the Issues of Nomenclature and Complicity
Opposite to the question of PLT’s content is PLT’s postionality with respect to the issues of nomenclature and complicity. Does PLT offer a response or approach to salient albeit antecedent postcolonial studies issues? On the issue of nomenclature, PLT appears to be repeating some of the questions and concerns raised by the criticisms of postcolonial theory discussed earlier. Conceding that the term ‘postcolonialism’ lends itself to multiple definitions,48 PLT theorists, like their postcolonial critic counterparts, question the wisdom of employing the term ‘postcolonialism’ to describe contemporary social relations:
Although the conceptual movement from the colonial to the postcolonial has been widely accepted in academic circles, it has not proved equally persuasive to others. In particular those who are the most marginalized because of their race/ethnicity and economic position seem most recalcitrant in the face of claims that we now occupy a postcolonial world49.
Evidently, the prickly question challenging postcolonial studies - ‘for whom is colonialism a thing of the past?’50 - re-emerges uncomfortably in PLT discourse. Syntax - as much a political quagmire for PLT as for general postcolonial theory - compels the theorist to decide (with a ‘post’ or non-’post’) her positionality regarding the persistence, reinvention, and/or erasure of colonialism. Although some of the dangers associated with ‘post’-ing colonialism are reiterated, how PLT would respond to specific suggestions to navigate the concept ‘postcolonial’51 remains uncertain, leaving substantial scope for disagreement on ostensibly ‘first principle’52 matters. Notwithstanding the absence of a coherent approach to postcolonial first principles, it is clear that the nomenclature debate lives on in PLT. As the features of this debate appear unchanged, it may also outlive PLT.
With respect to complicity, very little discussion in PLT appears, raising the prospect that this issue will be eclipsed altogether53 or raised after PLT reaches some unknown point of epistemic maturation. Alternately, its tabula rasa on the matter may bode well if Postcolonial Legal Theorists attempt to take seriously the indisputable relationship between theory, theorising, and power. Although PLT questions concerning complicity would likely resemble those raised by criticisms of postcolonial theory mentioned earlier, whether PLT can proffer different answers has yet to be decided. Will Postcolonial Legal Theory avoid the pitfalls of privileging the concept of nation, eg disguising the dynamics and operation of ‘class’54 (or gender, sexuality, etc…)? Do postcolonial legal theorists have personal stake in the conceptualisation of PLT they advance, or a responsibility to investigate the possibility that they do?55 Finally, is PLT disconnected from contemporary anti-colonial struggles (ought it to be connected?), and does it offer, even attempt to offer, anything at all in support of such struggles (eg pledges of political solidarity, subversive (re)interpretative instruments, legal roadmaps to further de-colonialisational and anti-colonisational projects, and so on)? On this last point, if nothing is on offer, does PLT, like its predecessor of postcolonial studies, run the risk of ignoring ‘the emancipatory desires of our epoch’?56 In sum, the nomenclature and complicity debates compel PLT to distinguish itself from ‘mere’ postcolonial theory, or risk theoretical duplication and irrelevance.
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