Journal of Comparative Law Workshop Law and Orientalism
17-18 February 2011
Journal of Comparative Law Workshop
Law and Orientalism 17 and 18 February 2011 University of Notre Dame in London, 1 Suffolk Street, London SW1Y 4HG
Workshop Programme: 17 February Time 10:15-11:00 11:00-11:05
Description Registration and coffee Welcome
Speakers/Title
11:05-11:25 11:25-12:40
Keynote address Session 1
Teemu Ruskola Andrew Huxley Law as a weapon in Britain's War against Buddhism (1879-1905) Maitrii Aung-Thwin Other Rebels: Orientalism and the Law in Colonial and Postcolonial Burma
12:40-13:45 1:45-15.00
Lunch Session 2
15:00-15:30 15:30-16:45
Coffee Session 3
18:45
Dinner
Carol Tan
Venue Foyer Law Court Room, 2nd Floor
Senior Common Room, Ground Floor Carol Tan ‘Ingrained in the Chinese?’: The control of gambling in Weihaiwei Martin Lau Making Muslims Muslim: A Critical Examination of the Enactment of the Muslim Personal Law (Shariat Application) Act, 1937 in British India Senior Common Room, Ground Floor Eric Jones The Orientalist Can(n)on: Power and Customary Law in the East Indies Iik Arifin Mansurnoor Legacy and Change: Formulating and Implementing a Shari`a-Guided Legal System in Brunei Darussalam Thai Square Restaurant, 21-24 Cockspur Street, SW1Y 5BN (Trafalgar Square, other side of Canada House from Notre Dame)
Workshop Sponsors: Journal of Comparative Law, Notre Dame University in London and CEAL (Centre of East Asian Law, School of Law, SOAS) 2|P a g e
Journal of Comparative Law Workshop
Law and Orientalism 17 and 18 February 2011
18 February Time 10:00-11:15
Description Session 4
11:15-11:45 11:45-1:00
Coffee Session 5
1:00 -2:00 2:00-3:15
Lunch Session 6
3:15-3:30
Concluding remarks
Speakers/Title Amrita Mukherjee The constructions of caste in colonial Bengal and Bihar and the administration of law and order Yu Xiuling ‘State-regulated vice’ versus voluntary co-operation: Venereal disease control in colonial Hong Kong, 1857-1889
Venue Law Court Room, 2nd Floor
Senior Common Room, Ground Floor Max Wong ‘The Invention of Tradition’ or ‘The Politics of Intervention’: The Origins of the Hong Kong Marriage Reform Ordinance 1971 Michael Palmer Orientalism, Occidentalism, and Legal Development: Some Chinese Examples Senior Common Room, Ground Floor Bronwen Jones Intellectual Property Law in Egypt in the Post-Colonial Era: Is Postcolonial Analysis Relevant? Michael Palmer/Carol Tan
Workshop Sponsors: Journal of Comparative Law, Notre Dame University in London and CEAL (Centre of East Asian Law, School of Law, SOAS) 3|P a g e
Journal of Comparative Law Workshop
Law and Orientalism 17 and 18 February 2011
ABSTRACTS Law as a weapon in Britain's War against Buddhism (1879-1905) Andrew Huxley My paper examines the relationship between a pre-colonial legal tradition (that of Buddhism) and a colonising Empire (that of Britain) between 1879 and 1905. Frederick Madden has described the period leading up to Lord Curzon's appointment as Viceroy of India as the 'braggart years' of 'flamboyant jingo imperialism'. Britain's war aim was to annex Asia's 'empty spaces on the map' to the east and to the north of Government House, Calcutta. To the east lay Burma, Thailand, Laos and the southern back door to the 'limitless markets' of China. To the north lay Tibet, Mongolia, and the western approach to China via Dunhuang. All the countries named were Buddhist. Nepal (between British India and Tibet) contained an important Buddhist minority. The principle events of the War against Buddhism were: 1879 The proposed invasion of Upper Burma (postponed at the last moment because of events in Afghanistan) 1885 The actual invasion of Upper Burma 1895 British troops on the Mekong 1897 The Anglo-Siamese Treaty (and its Secret Annexe) 1903 The attempted coup in Nepal 1904 British troops in Lhasa British propaganda justified annexing Central and Southeast Asian by the 'failed state' argument. Thanks to Jeremy Bentham, went the argument, we British have become practitioners of scientific government. Consequently we are under a moral duty to bring good government and the Rule of Law to the dying states of Asia. Yet the British public were becoming favourable to Buddhism as a religion. The imperial propagandists had to explain why, though Buddhism was indeed a very good thing, Buddhist Law was a very bad thing. That is how Law was used as a weapon in Britain's war against Buddhism. I shall connect these foreign events with activity on the home front: it was during this period that Rhys Davids defined Buddhist Law out of existence. I shall conclude by considering whether Orientalism is the appropriate word for what happened.
Workshop Sponsors: Journal of Comparative Law, Notre Dame University in London and CEAL (Centre of East Asian Law, School of Law, SOAS) 4|P a g e
Journal of Comparative Law Workshop
Law and Orientalism 17 and 18 February 2011 Other Rebels: Orientalism and the Law in Colonial and Postcolonial Burma Maitrii Aung-Thwin The Saya San Rebellion (1930-1932) is regarded by many scholars to be one of Southeast Asia’s quintessential peasant revolts due to its colourful imagery, precolonial symbols, and religious motivations. The series of uprisings that spread throughout British Burma were allegedly inspired by the prophet-king Saya San, who promised villagers that he would restore the Burmese monarchy and revitalize Buddhist institutions that had been in decline since the annexation of the kingdom in 1885. Official sources represent the widespread use of protective tattooing, amulets, and references to Burmese kingship by Saya San’s men as part of a broader discourse that cast Burmese peasants as unable to articulate reform or political action in terms other than what was deemed ‘traditional’. Much of the evidentiary record pertaining to the historical narrative on Saya San and his followers was produced under the mandate of special counter-insurgency legislation and through the supervision of a Special Rebellion Tribunal, whose findings and judgments registered these images of the Burmese peasant into the historical archive. This study explores law’s role in the historical construction of peasant resistance in colonial Burma by examining how counter-insurgency legislation appropriated and affirmed ethnographic images of Burmese peasants that were later codified in official reports on the rebellion. It will consider law’s part in the epistemological construction of the Burmese rebel through its authoritative, interpretive, and prescriptive practices; qualities that would determine not only the shape of the official narrative on Saya San, but how other rebels would be constituted as well.
‘Ingrained in the Chinese’: the control of gambling in Weihaiwei Carol G.S. Tan After several years of raiding gambling dens, and trying and punishing offenders for gaming offences, in 1906, the British government in Weihaiwei passed the Gambling Ordinance. Thereafter the ordinance, subject to minor amendments, remained on the statute book until the territory was returned to Chinese administration in 1930. Although government annual reports, sanitised for Parliamentary and public consumption, mentioned continued action against gambling, referring to it as a ‘passion’ ‘ingrained in the Chinese’, the cause of misery and crime, difficult to stamp out yet needing regulation by law, closer examination of the official correspondence in Weihaiwei and the despatches between Weihaiwei and Whitehall show that in neither place was there a motive that was moral in tone, directed at trying to change the ways of the Chinese inhabitants. Instead, a number of forces are discernible, the strongest of which was the economic motive of improving the territory’s financial position. Behind the enactment of the Gambling Ordinance were two earlier and different failed attempts, one of which was the option of a revenue farm. However, the government of Weihaiwei was not alone in seeking to raise cash from gambling: village headmen and the local police shared the same view. This motive and opposition to the prohibition of gambling founded on other arguments provide the fuller context within which to view what, on its surface, is an extension to Weihaiwei of English laws based on Victorian values. Workshop Sponsors: Journal of Comparative Law, Notre Dame University in London and CEAL (Centre of East Asian Law, School of Law, SOAS) 5|P a g e
Journal of Comparative Law Workshop
Law and Orientalism 17 and 18 February 2011 Making Muslims Muslim: A Critical Examination of the Enactment of the Muslim Personal Law (Shariat Application) Act, 1937 in British India Martin Lau This paper aims to address the question of whether there was a relationship between restraint in imposing foreign law and a pre-colonial legal tradition acknowledged by the coloniser. The paper is set in the last decade of the Raj, the heady years of the mid-1930s marked by constitutional reform, a cautious granting of provincial selfgovernment and the emergence of a separate Muslim political movement in need of a distinct identity. It will be argued that the colonial legal system with i s ability to generate binding laws through a legislative process, applied by a colonial judiciary and enforced by a powerful colonial state became a key agent in the process of creating and asserting a distinct Muslim political identity. The Muslim Personal Law (Shariat Application) Act, 1937 marks the culmination of this process in that it unified Muslim legislators in the Central Legislative Assembly in an effort to use the colonial legislative machinery in order to remove custom from the body of Muslim family law applied by the courts. In the context of the debates surrounding the new law references to ‘custom’ were understood to be seepages of Hindu law that had ‘polluted’ the progressive, and indeed modern, character of Islamic family law. Aiming to unite Muslims around the creation of a pure Muslim family law proved, however, more difficult than expected, exposing deep unease and division within the colonial state, who would enforce the new law, and the Muslim communities directly affected by it. By far the most serious issue was the risk of the new law giving Muslim women a right to inherit land, a right hitherto denied under British Indian Muslim family law. Rich Muslim land-holders in the Punjab, for instance, supported the new law in public but were vehemently opposed to it in private, fearing that the recognition of female rights to inheritance would reduce their land holdings. In their private opposition they found a powerful ally in the colonial state, which was officially meant to adopt a neutral stance with respect to the reforms of the personal laws of religious communities. At its presentation in the course of the workshop, this paper will focus on a critical examination of the debates of Muslim legislators in the colonial legislative assembly. In its final form, historical context as well as an account of the impact and application of the new law will be added, given that it continues to apply in most parts of India, Pakistan and Bangladesh.
Workshop Sponsors: Journal of Comparative Law, Notre Dame University in London and CEAL (Centre of East Asian Law, School of Law, SOAS) 6|P a g e
Journal of Comparative Law Workshop
Law and Orientalism 17 and 18 February 2011 The Orientalist Can(n)on: Power and Customary Law in the East Indies Eric Jones Initiated by preeminent Dutch comparative law scholar, Cornelius van Vollenhoven, the Customary Law project (an important, half-century long, codification of insular Southeast Asian customary law undertaken in the colonial era, known as the Adatrecht-Bundels or Collections of Customary Law) was a massive attempt to record the intricacies of the hundreds of legal traditions and customary practices of the disparate peoples of the then Dutch East Indies. Its stated purpose was an attempt to shield and protect local peoples and customs from the cold and unresponsive Dutch legal code, itself, I will argue, an anti-Orientalist endeavor. Otherwise, those adat-scholars argued, foreign arbitrary Dutch law would trump “traditional” practice if that tradition could not be spelled out and quantified; seemingly a noble aim. However, an unstated/underneath the surface/unintended consequences, I will also assert was an ossifying reality or a freezing in time of a local law which was otherwise incredibly flexible, dynamic and prone to frequent change. More ominously, codification of customary law, a snapshot as it were, not only turned it static and stagnant but it also allowed the colonial state to exclude “natives” from the progressive rights and privileges granted “Europeans” such as the protections from labor exactions, access to financial institutions and services, modern land tenure arrangements, etc. Instead of all humanity imagined as being born with the same “inalienable” rights, natives could be openly exploited with no recourse in their newly constructed “customary” legal arsenal and would set the stage for Indonesia’s legal future.
Legacy and Change: Formulating and Implementing a Shari`a-Guided Legal System in Brunei Darussalam Iik Arifin Mansurnoor In the post-Pacific War, Brunei scholars and religious leaders consider diverse schemes in the administration of Islamic affairs and their legal stipulation -legacy of the British residential period- as biased and tendentious as they aimed to undermine religious law and in the long run push the religion aside from the public sphere. For them it is their primary duty to bring back Brunei's legal and judicial tradition consistent with its pledge to religious principles. Indeed, the 1959 Constitution stipulates, among other things, that Islam is the official religion of Brunei. Since the late 1960s, this stipulation has won serious re-consideration and examination by various religious experts in the country. Can then the promulgation of the Malay-Islamic-Monarchy (in Malay MIB) as the national philosophicalcum-ideological underpinning an outcome of that search for Islamic roots and realization of Brunei's Islamic vision? For them, Brunei's legal system and administration of justice must be turned fully Islamic as was the case in the pre-residential period. This does not mean, however, they argued in the mid-1990s, that the existing legal system should be totally abrogated; rather it should be restructured and fashioned in accordance with Islamic principles. How? An higher religious official, today's Hakim Syar’ie (Shar`i Judge), maintained that exerted and comprehensive reviews of all laws in the country are necessary to ensure that they are in accordance with Islamic teaching and principles or at less not incongruous with them.
Workshop Sponsors: Journal of Comparative Law, Notre Dame University in London and CEAL (Centre of East Asian Law, School of Law, SOAS) 7|P a g e
Journal of Comparative Law Workshop
Law and Orientalism 17 and 18 February 2011 The demand to maintain Islamic identity, including the shari`a, found more listening ears in the post-Pacific War. Despite the fact that the residency gave a special niche to Islam, the shari`a was only given a token presence with the codification and implementation of the Mohammedan law after 1911. In the 1950s, the major reform of Islamic institutions and law, concomitant with the overall first development plan launched in 1953, was initiated. The Mohammedan law was amended in 1955 to accommodate more truly Islamic contents, even though the Islamic court remained untouched. With independence achieved in 1984, the demand to fully implement the shari`a became more vocal. Can this be seen as another version, in an opposite direction, of what the British resident had done in 1906 with the Westernization of Brunei's legal system? Is such a revolution in the legal matters more politically motivated than any other inspiration, including ideology or philosophy? This paper seeks to elucidate the conducive environment and opportunity for Islamizing Brunei's legal system referring to the executive decrees, resurgent Islamic spirit and vigor and institutional reforms. At the same tone, the legal status quo which has proven to bring order and stability and create the atmosphere of living justice remains the major challenge to the proponents of the shari`a law and its judiciary. This is especially so since professionalism of the existing shari`a court has been considered second after that of the conventional one. In other words, many in Brunei continue to insist that before discarding the prevailing legal system, including judiciary, the proponents of the shari`a law must prove that it deserves priority, a kind of the da`wa bil-ħâl in the legal issue. This paper will show that this last point forms the most pressing issue which must be dealt by all those who love to see the shari`a and all its paraphernalia fully inspire the legal system in the country.
The constructions of caste in colonial Bengal and Bihar and the administration of law and order Amrita Mukherjee This paper will examine the legal and administrative practices which sought to systematise and categorise races and castes. Many ideas of identity and condition came from distinctly un-Asian locations. Caste reporting and construction by colonialists in India developed from the 1860s, making distinctions within the full spectrum of upper castes to lower castes and those classified as outside the caste system. The categories of peoples included in the Depressed or Scheduled Castes or Tribes and Criminal Tribes were furthered for purposes including the development of control through systems of law and order and to further colonial administrative practices. The Act for the Registration of Criminal Tribes and Eunuchs 1871 enabled authorities to categorise a tribe, gang or class as one addicted to the systematic commission of non-bailable offences and thus as a Criminal Tribe. Four tribes were so labelled. This category was constructed to prosecute tribes who were viewed as subsisting by organised theft and whose degree of culture and morality separated them from other tribes. Difference helped to classify characteristics as ‘right and wrong, normal and abnormal and distribute people on a spectrum of power, domination and oppression’. In relation to Bengal and Bihar, the seat of colonial powers in India, the paper will examine notions of respectable sections of the Indian Society and modes of life attached to Criminal Tribes and the administration of justice.
Workshop Sponsors: Journal of Comparative Law, Notre Dame University in London and CEAL (Centre of East Asian Law, School of Law, SOAS) 8|P a g e
Journal of Comparative Law Workshop
Law and Orientalism 17 and 18 February 2011 ‘State-regulated vice’ versus voluntary co-operation: Venereal disease control in colonial Hong Kong, 1857-1889 Yu Xiuling After a concise account of the development of laws on contagious diseases during the 19th century in both Hong Kong and Britain, tentative explanations will be offered on the following questions: -
Why the experience of the same kind of contagious diseases legislation in Britain and colonial Hong Kong differed so dramatically? What insights might be obtained on the differences in legal culture between Britain and Hong Kong?
The historical events involving contagious diseases laws may be worth revisiting through the lens of critical theories. The paper puts forward the view that legal Orientalism provides a way of capturing a richer legal history by challenging the fixed image of ‘rule of law’ in Western discourse on Occidental and Oriental legal cultures.
“The Invention of Tradition” or “The Politics of Intervention”: The Origins of the Hong Kong Marriage Reform Ordinance 1971 Max WL Wong The principal purpose of the Marriage Reform Ordinance (“MRO”) in 1971 was to establish a new and modern marriage system to Hong Kong and to abolish in the territory the discriminatory practices of Chinese customary marriage such as concubinage and unilateral rights of divorce by men. Before the new law was introduced, conservative forces in Hong Kong such as the senior Chinese members of the Executive Council had consistently rejected the demands for change in order to preserve what they considered as the essence of Chinese customary practices and family order. Without a strong local demand for the equality for men and women, and most importantly, the relentless political pressures from the Colonial Office (and later the Foreign and Commonwealth Office) to bring the marriage system in conformity with the human rights standard under international conventions, the MRO might not have become law in Hong Kong. The complicated nature of the politics of marriage law reform in Hong Kong in the late 1960s and early 1970s suggests that for the late twentieth century at least the concept of ‘legal orientalism’ has limited analytical value.
Workshop Sponsors: Journal of Comparative Law, Notre Dame University in London and CEAL (Centre of East Asian Law, School of Law, SOAS) 9|P a g e
Journal of Comparative Law Workshop
Law and Orientalism 17 and 18 February 2011 Orientalism, Occidentalism, and Legal Development: Some Chinese Examples. Michael Palmer This paper examines the relevance of the concept of ‘orientalism’ for understanding the western-language academic discourses on law and legal development in China, in particular the People’s Republic of China (1949 onwards). It suggests the ways in which the concept has analytical value in understanding perceptions of the unfolding situation in China, and also indicates the problems that can arise when it is applied too broadly. ‘Orientalism’ is to be understood as part of a wider problem in the sociology of knowledge. The paper further argues that, probably, a more helpful concept in the 'China case' is the parallel notion of ‘occidentalism’ and that ‘occidentalist’ infused policies of order and change have caused very serious difficulties in the development of the socialist legal system in the People’s Republic, especially in the manner in which legal professionals in China have been treated and continue to be treated today.
Intellectual Property Law in Egypt in the Post-Colonial Era: Is Postcolonial Analysis Relevant? Bronwen Jones This paper analyzes the extent to which a postcolonial approach may be a useful tool to analyze Egyptian law-making in the field of intellectual property. Egypt protected intellectual property in pre-colonial times, long before the now developed countries had any significant cultural presence in the world. The modern trend for intellectual property protection emerged more recently, in the 18th and 19th centuries during the industrial revolution in Europe at a time when Egypt was occupied by the Ottoman Empire. That occupation was temporarily ousted by the French at the end of the 18 th century, who were later routed by the British. The British occupied Egypt themselves from the end of the 19th century until the middle of the 20th century. Full independence for Egypt did not come until 1952, with the Egyptian revolution. Both occupation and independence are still within living memory. Significantly, Egypt joined the World Trade Organisation (WTO) in 1994 as a founder member, signing up to a rule-based system that was supposed to be fairer for developing countries than the previous system in which the more powerful states made the rules and, often behind closed doors, decided how or if they would be enforced. The Trade Related Aspects of Intellectual Property Agreement (TRIPS) was attached to the WTO agreement during the negotiating process against the wishes of developing countries, including Egypt, who nevertheless ratified the WTO treaty. As a result, Egypt has radically rewritten its intellectual property laws to meet the minimum international standards set by TRIPS. Additionally, Egypt has agreed to even higher standards of intellectual property protection by joining the Euro-Med Agreement, an association agreement between the EU and Egypt. Egypt’s Intellectual Property Law 82 0f 2002 contains some idiosyncrasies that are worthy of comment. It will be argued that the particular way in which Egypt has chosen to provide for the IP protection required by TRIPS in domestic law reflects both current and historical tensions in Egypt and is influenced by Egypt’s juridical and colonial history. It does not, however, necessarily follow that a postcolonial approach to analysis is entirely appropriate. It is important not only to interrogate the international norms dictating the level of intellectual protection but also to question the value of the postcolonial method. Workshop Sponsors: Journal of Comparative Law, Notre Dame University in London and CEAL (Centre of East Asian Law, School of Law, SOAS) 10 | P a g e
Journal of Comparative Law Workshop
Law and Orientalism 17 and 18 February 2011 Presenters: Amrita Mukherjee, Lecturer in Law, Leeds University,
[email protected] Andrew Huxley, Senior Lecturer in the Laws of Southeast Asia, SOAS,
[email protected] Bronwen Jones, Lecturer, Northumbria University Law School,
[email protected] Carol Tan, Senior Lecturer in Law, Chair of CEAL, SOAS,
[email protected] Eric Jones, Associate Professor, Department of History, Northern Illinois University,
[email protected] Iik Arifin Mansurnoor, Lecturer, Department of History, Universiti Brunei Darrussalam,
[email protected] Maitrii Aung-Thwin, Assistant Professor of South East Asian/Burmese History, Department of History, NUS,
[email protected] Martin Lau, Reader in Law, CEAL, SOAS,
[email protected] Max Wong, Research Associate, Centre for Law and Politics Studies, Peking University,
[email protected] Michael Palmer, Dean, Shantou University School of Law; General Editor of the Journal of Comparative Law; CEAL, SOAS;
[email protected] Teemu Ruskola, Professor of Law, Emory University Law School,
[email protected] Xiuling Yu, PhD candidate, SOAS,
[email protected]
Participants Mimi Ajibade, Research Student, School of Law, SOAS Leila Alikarami, Research student, School of Law, SOAS Geoffrey Bennett, Professor and Director, Notre Dame London Law Programme, University of Notre Dame Raj Brown, Emeritus Professor of International Business, Royal Holloway, University of London Ian Edge, Director, CIMEL (Centre of Islamic and Middle Eastern Studies) SOAS Laila Fathi, Research Student, School of Law, SOAS Alison Firth, Professor of Law, University of Surrey Nick Foster, Senior Lecturer, School of Law, SOAS Maria-Federica Moscati , Senior Teaching Fellow, SOAS Nelson Ni, LLM student, UCL Prabha Kotiswaran, Lecturer, School of Law, SOAS Vincent Rougeau, Professor, University of Notre Dame Laura Zhou, LLM student, SOAS Sanzhu Zhu, Senior Lecturer and Deputy Chair of CEAL, School of Law, SOAS
Workshop Sponsors: Journal of Comparative Law, Notre Dame University in London and CEAL (Centre of East Asian Law, School of Law, SOAS) 11 | P a g e