Writing in the Postcolonial: Postcolonial Legal Scholarship

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6. Scepticism and Conventionalism.

Preceding that empire, as we have observed, we find another. At its horizon is a political struggle over the freeborn Englishman, over, specifically whether independent manhood or propriety in the form of substantial property grounded membership of the polity53. How far the radicalism of the first answer survived into the period in which the second triumphed is a matter of dispute, Ashcraft, for example, contending:

‘Against the grain of some recent scholarship, that the style of argument, terminology and basic presuppositions of the Levelers’ political theory made a distinctive and lasting impression upon the consciousness of those living in seventeenth century England’54.
In the consciousness of eighteenth century observers, Phillipson argues – perhaps against another ‘grain’, of the Enlightenment as the Age of Reason – the danger represented to 18 century writers by this earlier radicalism lay precisely in its exaltation of reason, albeit theological reason, that sought to derive necessary social arrangements from first principles.th Humean scepticism rejected the possibility of foundation and certainty in human knowledge in a way that in some of its implications55 foreshadows postmodern thought and, similarly, recognized that relativism is unworkable as a mode of order and existence: as complete relativists, we could not function, individually or collectively, so if reason allows no escape, what does – this is Hume’s problematic. ‘From a body of like colour and consistency with bread, we expect like nourishment’ and perhaps to ensure our survival the (epistemological insecure) expectation is a necessary one. ‘But (philosophically) this surely is a step or progress of the mind that needs to be explained’56.
‘We save ourselves from this total scepticism only by means of that singular and seemingly trivial property of the fancy by which we enter with difficulty into remote views of things and are not able to accompany them with so sensible an impression as we do those which are easy and natural ... Most fortunately it happens that since reason is incapable of dispelling these clouds (of uncertainty and doubt), nature herself suffices to that purpose and cures me of this philosophical melancholy ... I dine, I play a game of backgammon and am merry with my friends ... ’57
Hume’s scepticism is not, of course, an elegant epistemological minuet without political implications, which returns us to Grbich’s point about the situation of scholarship as an important terrain of social struggle. He does not make the mistake of which sceptics are sometimes accused, of absolutising uncertainty and thus undermining his own position, but merely observes that nobody has provided him with a convincing argument that, for example, the constant serial conjunction of events conceals an occult connection that will always obtain58. As a matter of observation, he sees that we assume a knowledge of personal identity where even the metaphor of the theatre connotes more solidity and continuity than is justified by what constitutes the mind: the ‘perceptions (that) successively make their appearance, pass, re-pass and glide away in an infinite variety of postures and situations’59. In this un-self present, almost un-being, the permanence of matter that we do not see60, the reliability of such regularities as the sunrise, gravity61 or the effect of a moving upon a stationery billiard ball62 are formed, like history, by a continually reconstructing self in conversation, using negotiated conventions with other selves in the context of dense webs of experience.
Humean humans are creatures for whom reason and passion are crafted by conversation to inform belief:
‘The more we converse with mankind and the greater the social intercourse we maintain, the more shall we be familiarized to these general preferences without which our conversation and discourse could scarcely be rendered intelligible to each other’63.
And, apart from ‘general opinion.. in all questions with regard to morals or criticism, there is really no other standard by which any controversy can be decided’.64 Thus, belief, or opinion, and not force, form the basis of government, he argues; or, if we want further, empirical evidence, how should we explain the government of the many, who possess force, by the few, who do not – even the ‘Soldan of Egypt or the Emperor of Rome’?65
‘… the only rule of government which is intelligible or carries with it any authority is the established practice of the age and the maxims of administration at the time prevalent and universally assented to’66.
‘Their sentiment or their understanding’67 was what glued, or catastrophically unglued, the social order of humankind. Phillipson notes the conservative conclusions to which this leads Hume: authority cannot be grounded other than in its acceptance; without it, property, justice, civilization itself are jeopardized68. Elsewhere, he expresses a preference for absolute monarchy on the prudential ground that whilst one may ‘entertain a magnificent idea of the British spirit and love of liberty since we could maintain our free government during so many centuries’, the enormous growth in central government power and hence Royal patronage since the Glorious Revolution had made the ascendancy of crown over parliament eventually inevitable: better to concede peacefully, perhaps even early, than risk physical conflict69.

7. Politeness and Conversation

But Hume’s conviction that the presence of foundations has never been successfully established as more than conventions negotiated and moderated by conversation, and the corollary, that political authority must be based on belief does not lead to the inevitable need for an authoritarian basis for government. Conversation and the establishment of what is the ‘general opinion’, the source of moral and critical standards, are neither unidirectional nor monological. Quite the contrary, the source of Hume’s apprehension in relation to the constitution seems to have been his fear of ‘faction’, of the, to him, anarchical dangers in the opposition politics implied by parliamentary government. If his scepticism does not lead to the anti-postmodern criticism that ‘anything goes’, neither can it lead inevitably to the authoritarian assertion, ‘this must be’.

The social milieu in which Hume was writing, as it appears in Brewer’s work, suggests that the vigorous pursuit of an ideal of ‘politeness’ was seen ‘in opposition to political divisiveness and religious bigotry’, the anarchic threats Hume feared the English might succumb to, and as ‘proposing a more harmonious ideal.’ ‘The proponents of politeness set out to create an ecumenical, urbane community of those who shared a vision of the world’70. Politeness, Brewer is suggesting, absorbed drama – the theatre, the opera, even history and the novel – into the performance of its audience in attending, understanding and conversing about it, and these latter performances in turn became the theatre in which one acted one’s part in front of one’s fellows. ‘To many enlightened minds, the past was a nightmare of barbarism …bigotry (and) fanaticism ... that sword of the saints which had divided brother from brother, must cease; rudeness had to yield to refinement’. ‘This accent’, then, writes Roy Porter:
‘on refinement was no footling obsession with petty punctilio; it was a desperate remedy meant to heal the chronic social conflict and personal traumas stemming from (earlier) civil and domestic tyranny and topsy-turvy social values’71.
As both authors suggest, Addison’s and Steele’s Spectator and Tatler magazines, the coffee house and the public park, along with the other venues and spectacles mentioned, formed a strategy, in which openness to the wider public72 and participation – even as a spectator-performer - in an ideal was vital, to found that authority on which order and property and law might be based in club and coffee house:
‘no matter that many establishments were notorious for their drunkenness and lax morals, Addison and Steele shaped an exemplary institution, fabricating an ideal of polite conduct and good taste developed in a convivial environment’73.
Brewer does find evidence of the more didactic strategy of creating a heritage to be distributed and made common, something I associated with the empire of conquest – and which began to be adopted in India under Warren Hastings in the 1770s74 – in a work by Thomas Sheridan in 175675. But the approach to education, particularly of the young, as a regulatory practice comes later in time.
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