Writing in the Postcolonial: Postcolonial Legal Scholarship



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3. Postcolonialism

Guha makes the point about one particularly significant set of contributions to postcolonial studies, that it confronted ‘the gods of Britain’s neocolonial scholarship so polemically (with an) irreverence approaching sheer impudence for those in authority’ in India with ‘an important historical truth, that is, the failure of the Indian bourgeoisie to speak for the nation’15. What place can the white outsider have in this kind of confrontation? Can white people from rich countries enter the world of postcolonial scholarship without, moreover, incurring the suspicion that, like the anthropologists of the imperial past, they are seeking to legitimise their masters and promote themselves by ‘writing, on the backs of blacks’, ‘texts (which) often appear to be authored by bodyless beings who are able to observe the field without leaving a footprint’?16


If postcolonialism studies the ordering practices of imperial subordinations, much as feminism studies the subordinating protocols of hegemonic gendering, the answer seems to me to be that since we are all implicated in the processes of privileging and disadvantaging associated with empire, all scholarship critical of those processes is legitimate. To examine the class, gender and ethnic relations in terms of the imperial project does not reduce the ‘native’, or women anywhere, or the working class at the metropole, each to the other The contagious effect of the radicalism of feminist challenges to the status quo is matched, a passage from Ania Loomba implies, by that of the colonial intellectuals’ fight against colonialism which provoked:
‘The revolution within ‘Western’ intellectual traditions in thinking about the same issues – language and how it articulates experience, how ideologies work, how human subjectivities are formed and what we might mean by culture’17.
The task is to remain faithful to that revolution, to use it for constructive, egalitarian purposes.
4. Empire and the Production of Englishness
A number of studies have demonstrated that, far from the marginality of empire that one might infer from the old British political history texts – GN Clarke’s Oxford series, for example – in which colonial wars and House of Commons debates about India or Canada feature as exotic embellishments upon the more significant domestic developments, the empire was central to the production of Englishness18. The present paper concerns the importance of empire as a context for the English common law and notices the importance of the intriguingly paradoxical idea of the Englishman as a cultural matrix within which the law was conceived. Conventionally, the British Empire is considered to have existed in two phases. Vincent Harlow, writing in 195219, places the transition from the first to the second empire in the three decades from 1763, and this convention is revisited in part in the second volume of Simon Schama’s recent multi-media history of Britain. Of the first empire, which Schama describes in a chapter headed, ‘The Wrong Empire’ he writes:
‘(t)he connection between the championship of liberty at home and the creation of a maritime, commercial empire overseas, was at the heart of the new, the first truly British patriotism … As the heirs to Drake and Raleigh (Viscount) Cobham and his (18 century) protégés believed that this empire would be something new in the world precisely because it would not suffer Rome’s fatal addiction to territorial conquest, a vice that had led to despotism ...’th
This view is one that may have been more plausible to some English people than to others and, perhaps also to those Scots whose interest in the spoils of empire is documented by Linda Colley20. The architectural ‘heritage’ of massive English castles in Wales may suggest a different story about the English occupation of that country, as might the experiments of territorial expropriation in Ireland which culminated in Australia under the pretence that native religion, custom and landholding were too incomprehensibly barbarous to be worthy of recognition or respect. One might recall, too, Jonathan Clarke’s remark about the ‘silent presence, just over the mental horizons of most economic historians, of the Royal Navy’, the precondition of British commercial pre-eminence and of the existence of American and later ‘settler’ societies21. Howard Zinn remarks that it was George Canning rather than the Monroe Doctrine who ‘called in the new world into being in order to redress the balance of the old’ without much thought, one way or another, about the new United States22. This exercise of naval power links the two empires and makes a simple division problematic. Nevertheless, there existed a widespread conception of politics and law among individual British men and women of the 18 century throughout the UK and America, voters and non-voters, as custom, albeit contested and subject to negotiation and compromise as to specific substanceth.
The first empire can be dated from the early chartered trading companies and the settlements of ‘free-born Englishmen’ in the late Tudor and Stuart periods, whose ancient rights the Americans at first during their rebellion saw themselves as defending23. Even in the closing moments of the first empire, Harlow writes:
‘18 century British ministers had reached (in 1778) the point where they had been prepared, however reluctantly, to accept the proposition of an American legislature having equal and coordinate jurisdiction with that of Westminster, and an elected Governor general or President’th.

Negotiating this proposition was the brief given to the Carlisle Commission, sent to the 13 colonies in 1778, and it contrasts starkly with the British approach to Ireland only a few years later, but into the period of Harlow’s second empire, where the 1800 Act of Union abolished the Dublin legislature and merged the two countries under the hegemony of England. The empire of commerce and freedom seemed by 1800 to have been transformed into an empire of conquest.


A concept of two empires, which can be discerned in a comparison of the writings of, say Edmund Burke and TB Macaulay, provides a useful context in which to study the intersecting fields of culture and law in the metropolis, and the figure of the Englishman is important here. In his24 changing modality, he operates as a Lacanian Big Other whose law it becomes the subjective desire of the human subjects who produce the empire to fulfil. Englishness, the nation-essence as it changes over time, can be seen from this perspective as the substitute for that lost plenitude, or one-ness with the world of the (m)other that Lacanians refer to as the objet petit a. As Easthope puts it:
‘Society is always incomplete; with modernity that incompleteness comes to express itself as a radically insistent drama of lack… (which) is universal and constitutive for the speaking subject who must strive to refind his or her being within meaning; any identity which would repair lack is borrowed from the Other (as the symbolic order the other is always encountered in a historically specific form)… National identity.. is desired with special intensity; and that desire overlooks the fact that it is more manifestly an effect of construction’25.
The place of the state in the apparent (but never for Lacanians fulfilled) satisfaction of this desire provides us with a paradox that explains a good deal about imperialism. The state is always a specific state, composed of a particular nation or nations, but as Lloyd and Thomas argue, in the enlightenment culture ‘represents what it claims to be the fundamentally common identity of all humans; and … the state is conceived ideally as the disinterested and ethical representative of this common identity’26.

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