Writing in the Postcolonial: Postcolonial Legal Scholarship

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

Writing in the Postcolonial: Postcolonial Legal Scholarship

Ian Duncanson

Visiting Research Fellow, Institute of Postcolonial Studies,

Melbourne, Australia


This is a refereed article published on: 30 April 2003

Citation: Duncanson, I, ‘Writing in the Postcolonial: Postcolonial Legal Scholarship, 2003 (1) Law, Social Justice & Global Development Journal


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. The task in this paper is to remain faithful to the revolution generated by postcolonial studies, to use it for constructive, egalitarian purposes. Given his history, the white man, his culture and his political institutions, and the policies generated within them, are all justifiably the object of suspicion from elsewhere. This paper explores the birth of the empire and the connectivities of this to the production of Englishness, examining the imperial conquest of Britain abroad in tandem with the development of English parliamentary sovereignty, and the championship of individual liberty at home. If postcolonialism studies the ordering practices of imperial subordinations, as much as feminism studies the subordinating protocols of hegemonic gendering, the answer is that since we are all implicated in the processes of privileging and disadvantaging associated with empire, all scholarship critical of those processes is legitimate. The paper thus draws on the old political history texts of Britain to demonstrate that inasmuch as the England had produced the Empire, the Empire similarly produced England – that far from being exotic embellishments on domestic developments, parliamentary debates on India and Canada showed that the empire was central to the production of Englishness.

Keywords: Empire, English culture, Postcolonialism, Parliamentary Sovereignty

1. Writing for: when, if ever ?
Speaking for – or perhaps worse since it may be more permanent – writing for, is an extremely hazardous undertaking.1 It runs the ethical risk of both constructing and denigrating difference. But does academic discourse – to which this paper is intended to be a contribution - and consequently the ethics it contains, any longer matter? It may be, as one writer has recently put it, ‘anachronistic.. to believe that universities have been able to maintain a role in the cultural interpretation of their societies’2. If by this is meant that universities can no longer claim the unique, distanced and authoritative role envisaged by, say, Cardinal Newman or Jacques Barzun3, and are no longer needed as ideological apparatuses supporting a homogeneous identity for empire or nation-state4, the contention may be correct. But one implication of this assertion of anachronism paradoxically reinforces Judith Grbich’s observation that ‘scholarship practices are now acknowledged as one of the cultural forms in which the politics of order are negotiated’.5 Universities are not (and never were) unique and solitary producers of knowledge. Social heterogeneity requires many sites of perception in order for it/them to be recognized. Postmodernism, feminism and the ills they claim to identify in writing and other forms of media, scholarship, and politics are increasingly imbricated in the endless negotiations over truth claims about who we are and what we should do about it. Whether we identify formally as scholars or not, when we consider these claims it must be, to modify Marx, of the other of whom we speak and to whom we listen, as well as of ourselves. The real world is our many selves.6

2. Feminism

In a challenge to some male scholarship, film theorist Zoe Sofia warned a decade ago that for many male scholars locked into the competitive hierarchies of traditional academic practice7, feminism was simply another discipline to ‘get on top of’, as she put it, on the route to the next chair or deanship8. The silenced woman becomes a means to another’s end in this process, and the ‘docile woman whose services have been co-opted to promote the dominant norms of masculinity’ functions equally to maintain the status quo despite the best intentions of the new ‘discipline’.9 To avoid such an outcome by policing its boundaries and excluding those without the appropriate (in this case, biological) credentials, feminist theory would simply repeat the stultifying ‘normalization’ identified in the disciplining processes of the 19 century and after by Foucault.th How is a site to be imagined, then, which is amenable neither to becoming a rung on a masculinist career ladder nor to lapsing into that biological essentialism from which Man/Woman, ‘ ‘human nature’, the original mother tongue of history’10 which Sofia wishes to reinscribe with a less oppressive content, derives its power?

The answer surely lies in the activity of reframing that Greenblatt and Gunn recommend in their discussion of interdisciplinarity.
‘The disciplinary gives way to the interdisciplinary only when changes in the interpretive frames actually manage to produce changes in what can be seen with their assistance and only when reconceptions of the question also change what can be represented as an answer’11.
A constructive and progressive feminism of the kind to which Sofia and other feminists belong reframes the question of sex and gender. It is therefore inseparable from a much broader inquiry that is sensitive to the varieties of gendered being and their performance, and to the historic role of the repression of this variety in providing the ‘original mother tongue of history’ with an alibi for the politics of dominance and subornment.12 As such, the principal criterion of who can speak is not that of identity but of the linked categories of performance and outcome; not of who participates in the dialog but the manner of their doing so. The reproduction of inequality and exploitation within such an inquiry would signal the failure of the enterprise. To put it plainly, since Kaja Silverman reminds us that the penis and the phallus are socially very different,13 any questions about qualifications to speak in gender discourse should be about the outcomes of the discourse rather than the characteristics of the participants.
A similar argument can and should be made about postcolonial studies. Given his history, the white man, his culture and his political institutions, and the policies generated within them, are all justifiably the object of suspicion from elsewhere. For example, in an article reviewing the implications of globalisation for the legal professions of former colonies, countries outside the EU and US metropoles, Wes Pue reports both suspicion and a warning from a Nigerian student, for whom globalisation means, ‘... the white man is coming again … what does he want this time? And where will that leave us?’14

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