Tuesday, August 24, 2010

Sharafi on Ethnicity and Gender in Indian Colonial Courts

Mitra J. Sharafi, University of Wisconsin Law School, has posted a full Ph.D. dissertation and an article, both on Indian legal history, on SSRN. The article is The Semi-Autonomous Judge in Colonial India: Chivalric Imperialism Meets Anglo-Islamic Dower and Divorce Law. It appeared in the Indian Economic and Social History Review, Vol. 46, No. 1, pp. 57-81, 2009. Here's the abstract:
Through a survey of nineteen leading cases on Islamic dower and divorce between 1855 and 1924, this article explores the ways judges acted as semi-autonomous agents by undermining the colonial legislation and personal law treatises they were expected to apply. Contrary to the view that colonial judges consistently reinforced the patriarchal authority of husbands in direct and immediate ways, it suggests that some colonial judges were working in the service of their own chivalric imperialist agenda: the defense of Muslim wives. The article focuses on two particular moves. First, colonial judges encouraged the use of inflated dower, a device intended to make the husband's power of triple tal-q too expensive to use. Colonial legislators invalidated inflated dower in various parts of India, but judges confirmed the validity of inflated dower sums whenever possible. Second, judges expanded the use of delegated divorce, a device that helped Muslim wives counter their husbands' right to polygamy and unilateral divorce. In doing so, judges undermined the restricted approach to delegation taken by colonial treatises on Anglo-Islamic law.
Professor Sharafi's dissertation for a Ph.D. in History, Princeton University, is Bella's Case: Parsi Identity and the Law in Colonial Rangoon, Bombay and London, 1887-1925. Here's the abstract:
This dissertation explores the ways in which the ethnic identity of South Asia's Parsis was forged through litigation in the British colonial courts. The Parsis were Zoroastrians who fled to India after the seventh-century conquest of Persia by Arab Muslims. Under British rule, they became an elite of intermediary traders and professionals. Around 1900, a series of lawsuits erupted on the admission of ethnic outsiders into the Parsi community through intermarriage, conversion, and adoption. This dissertation is a study of the most extensive of these cases, the Privy Council appeal of Saklat v Bella (1914-25). The case erupted when an Indian orphan named Bella was adopted by Parsis in Rangoon, initiated into the Zoroastrian religion, and taken into the Rangoon fire temple, a space arguably desecrated by the presence of ethnic outsiders. Through an examination of case papers and judges' notebooks from the Judicial Committee of the Privy Council (London) and the Bombay High Court (Mumbai), the dissertation explores competing visions of Parsi identity that were promoted by reformist and orthodox Parsis as litigants, witnesses, lawyers, judges, and journalists. Bella's case highlights two sorts of displacement. First, a patrilineal definition of Parsi identity was overtaken in this period by a more exclusive, eugenics-based racial model. As anxieties over communal extinction peaked with the advent of the census, orthodox Parsis clung to the notion of Persian racial purity, excluding Indian, Burmese, and European outsiders with renewed tenacity. Second, the colonial legal system's reconfiguration of Parsi religious institutions as trusts unravelled the authority of Zoroastrian priests as arbiters of religious doctrine. On a larger scale, Saklat v Bella illustrates how a "centripetal jurisprudence" contributed to the creation of a unitary "legal India" and an empire of common law. It is also a story about legal pluralism and the rise of a non-European legal profession in the colonial context. Parsis rose to prominence as lawyers and judges in this period, and used their legal influence to carve out a space for Zoroastrian legal identity.

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