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Law and Nationalism

India in the Shadows of Empire: A Legal and Political History 1774-1950 by Mithi Mukherjee (New Delhi: Oxford University Press), 2010; pp xxxviii + 278, Rs 695.

Law and Nationalism

Tirthankar Roy

ntil about 20 years ago, most historians would have read the European empires of the 19th century as machines to transfer wealth from the colonies to the colonist regions. That idea is not completely dead, but it has been decentred by a series of writings that see empires as legislating states. The issues in debate have shifted from classstructure and the process of market exchange to institutions and ideologies of governance. Within that broad movement, a set of new works has looked especially closely at colonial law, and explored its relationship with ideological formations of the 19th century.

Mithi Mukherjee’s book belongs within this set. Whereas other scholars have explored the link between law and the running of the empire, Mukherjee goes much further than others in linking law with the end of the empire. The singular contribution of the book is the proposal that the anti-colonial movement coordinated by the Indian National Congress was founded on an imperial discourse of justice. This work, therefore, offers a linked history of the colonial and the postcolonial, which is a significant contribution to the literature, and a new one.

From Colonial to Imperial

The book argues that the process of legislation in colonial India was shaped by two discourses. These are called the “colonial” and the “imperial”. These discourses represented two distinct ideals, justice as e quity and justice as liberty. Colonial justice as equity came from the necessity to govern Indian society, which was seen by the rulers to be too divided and, therefore, in need of an impartial deliverer of justice. The main adherents of the philosophy were the administrators of India. It was shaped, however, not only by the practical experience of administration, but also by readings of Indian history and society. Imperial justice as liberty, on the other hand,

Economic & Political Weekly

October 1, 2011

book review

India in the Shadows of Empire: A Legal and Political History 1774-1950 by Mithi Mukherjee

(New Delhi: Oxford University Press), 2010; pp xxxviii + 278, Rs 695.

came from a notion of natural law and was seen as a necessary check on the arbitrary exercise of power, including imperial power itself. The early nationalist critique of the empire built upon these implications of justice as liberty for all.

The distinction is exposed to a possible criticism. Although in origin and sentiment the two ideals were distinct, in theory, they could become intertwined. If we can argue that the hierarchical nature of Indian society entailed denial of liberty of one group of Indians by another, equity and liberty should not be different things. Two layers of freedom and unfreedom – the indigenous and the imperial – would then become interdependent, and neither can be defined clearly without reference to the other. If we set aside that dispute, how does the book establish its main thesis?

Chapter 1 articulates the notions of c olonial and imperial justice with reference to the impeachment of Warren Hastings, and the speeches of Edmund Burke made during the trial. The colonial is identified as a discourse of governance set in the context of conquest and national i nterest, whereas the imperial, represented by Burke, rose above the national interest and became a discourse of universal justice. The bureaucracy in India implemented the former ideal; and the Crown, hemmed in by the Parliament and the judicature institutionalised the latter ideal. The trial of Hastings is reread as a conflict between these two ideals. Until 1857, Chapter 2 a rgues rather more controversially, the conflict took the form of a running battle between the East India Company and the Supreme Court.

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Chapter 3 discusses fully the shaping of justice as equity during the early Crown rule, when, according to the author, the notion of India as warring communities came to be established as a canon. “The

British reified caste” (p 100), thereby justifying the presence of impartial foreigners ruling over warring castes and communities. Chapter 3 reveals a difficulty with the approach adopted in this work – it is strong on textual analysis and weak on social and economic history. In common with the historiographies of caste in colonial India popular in North America, the author makes the mistake of discussing caste and community as a political principle. In fact, the Europeans had been grappling with caste and community, which they experienced as business institutions established among merchants, bankers, and artisans, for two centuries before 1857. The impression of Indian s ociety as a collection of endogamous guild-like formations originated in Indo-European business, and not in imperial politics. The point bears emphasis, because the chapter is steadfastly indifferent to the economic origins of law, thus missing out an entire “discursive” space where property rights and contractual law came to be debated.

From Imperial to National

Chapters 4 and 5 lead the transition from the imperial to the national, first outlining the role of the lawyer in political representation, and then discussing how political representation partially broke away from these juridical roots. Indian nationalism originated in an “epistemologico-juridical paradigm”. Not by accident, then, the leadership of the movement had to come from a small group of lawyers. Freedom was a commitment inhering in the imperial discourse of justice as liberty. The Congress leadership made that implicit contract explicit. Chapters 6 and 7 go further. Having identified the Congress with the imperial teleology, the last chapters see in Gandhi a “break-out of the discursive trap” (p xxvii). An older “discourse of renunciative freedom” received contemporary relevance and political voice through Gandhi, and became “the unlikely


historical agent to rescue India from its political labyrinth” (p xxviii).

This is an ambitious book, as the e ndorsement by Uday S Mehta on the j acket rightly notes. What Mukherjee achieves is a long narrative of ideologies of governance that spans the earlycolonial, the late-colonial, and the postcolonial. It is not an account driven by an evolutionary logic. Rather it is a linked history of contestation and parallel movements, in which accidents like the mutiny or the odd figure of Gandhi could cause unprecedented shifts in the nature of the contestation between discourses.

If we divide the book into two distinct aims – explaining the origin of colonial law, and explaining the end of the empire, partly wrought by lawyers – the second





---aim is met more convincingly than the first. The problem with the first part lies with the method. This is a book on law, but it does not deal with court cases, case laws, judgments, disputes and disputants, in a serious way. Those people that used laws and demanded them are missing in the story, as if they did not matter to the making of laws. Politicians on both sides, and their nebulous world views on India, take centre stage. The book moves firmly on the plane of legislative discourses; discourses that were borrowed by and shaped by the presumptions of the colonists, rather than by conditions in India. It suggests, but does not prove, that the beliefs about the real world that framed the colonial-imperial discourses were fictional (“discursive reconfiguration” is the phrase used, p xxv).



In short, the book is the product of a parti cular scholarly tradition that we may call the cultural history of colonialism. Popular in North American south Asia d epartments, it is a brahmanic enterprise confined to exegesis, one that considers the murky world of economic and social history too polluting to merit respect. The book shares the strength of that tradition of scholarship, namely, sophisticated analysis of signification of texts; and it shares its weakness, a disregard for how the material and the social, indeed real people, reshaped imperial institutions like law. But, I reiterate, the criticism applies to only one of the two aims of the book.

Tirthankar Roy ( teaches at the London School of Economics.





October 1, 2011 vol xlvi no 40

Economic & Political Weekly

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