Thursday, January 6, 2011

Kolsky and Giunchi on Law in Colonial India

The current issue of the Journal of Asian Studies contains two articles on law in colonial India. The titles and abstracts follow:

Elizabeth Kolsky, “The Rule of Colonial Indifference: Rape on Trial in Early Colonial India, 1805-1807.”

This article explores the history of intraracial (Indian-on-Indian) rape in early colonial India. Though at times uneven and unpredictable in their rulings, British judges created a set of evidentiary requirements and a body of legal decisions that were as harsh on rape victims as the precolonial Islamic system was presumed to be. Despite the colonial promise of a more modern and humane criminal law, the gradual displacement of Islamic law did little to widen rape victims' path to legal remedy. English common law presumptions about the frequency of false charges and a suspicion of women's claims combined with a colonial insistence on the peculiarity of Indian culture to make it difficult for victims of rape to prevail in court. The colonial legal treatment of the "unsensational" crime of rape was rather unsensational. It largely reflected contemporary trends in England, which raises the important question of what was distinctively colonial about it.

Elisa Giunchi, “The Reinvention of Shari’a under the British Raj: In Search of Authenticity and Certainty.”

Influenced by Orientalist assumptions and Utilitarian ideals, and needing to enforce a system of adjudication that responded to their interests, the East India Company's officers selected among varied religious texts a set of norms and tried to apply them consistently. The decision to rely on texts rather than practice, the choice of certain precepts at the expense of others, and their rigid application ran counter to the traditional administration of justice, which had been fluid, contextual, and plural. They also distorted the meaning of Hanafi fiḳh, turning what had been an instrument of legitimation, a moral reference, and a source of social standing into a system of organized dispute settlement. The emphasis on religious textual sources and the attempt to use them as a basis for codification coincided with the idea, which gained ground in the nineteenth century among Muslim reformist movements, that political weakness could be countered by returning to a pristine scripturalist Islam, focused on its legal aspects and seen as a systematic doctrine devoid of ambiguities. These ideas can be also found in the Islamist thought that subsequently spread among urban reformist movements and in legal reforms adopted in Pakistan. A review of case studies, however, suggests that the flexibility and contextuality that characterized the enforcement of Islamic law in precolonial Islam is still to be found in legal practice.

For more on law in colonial India see the forum on personal law in colonial India in the current issue of the Law and History Review, and recent posts here, and here.