Thursday, October 3, 2019

Swimming with the Law

Thanks to Mitra for the introduction, but also for the invitation to write on here! I’ve been reading LHB for a long time, and I’ve enjoyed these guest blog posts. I’m not sure I’ll live up to the standards that others have set, but it’s too late now – you’ll have to suffer through it all anyway.

Although I have written a lot in legal history, I wouldn’t primarily identify as a legal historian. I am, above all, a historian of the Indian Ocean – a broad, maritime space that stretches from East Africa to Southeast Asia. For me, working on the Indian Ocean intertwines challenges and opportunities, particularly in conceptualizing a project and in writing it. How does one write oceanically? I’ll leave that question on the table, since this isn’t an oceanic history blog, but it is worth asking: what does it mean to do legal history in an oceanic context?

We have plenty of good examples to draw from. Atlantic legal history, for example, has emerged as a dynamic sub-field that has lent itself particularly well to thinking about questions of law and empire (there are plenty of great examples, but the work of Lauren Benton, Mary Sarah Bilder, and Tamar Herzog immediately come to mind). There is a little less work on the legal history of Mediterranean, though historians like Julia Clancy-Smith, Will Hanley, Jessica Marglin, and Joshua White have clearly demonstrated how thinking through the Mediterranean can also open up broader questions surrounding legal crossings, jurisdictional wrangling, and imperial administration. By contrast, the legal history of the Indian Ocean is still coming into being. It’s only in the last five years or so that historians have published work that thinks about the Indian Ocean world as a legal arena. There have been a few watershed publications: special issues of Law and History Review and Itinerario, for example, have highlighted the innovative work that a new generation of Indian Ocean legal historians have been doing.

At times, it feels like Indian Ocean legal historians ask the same sorts of questions that their colleagues in other fields have – the sort of colonial legal history that has become the bread and butter of the field writ large. We thus have work being done on the legal history of British India, Dutch Southeast Asia, and (to a much lesser extent) the French colonies. These have covered the usual range of topics: jurisdictional jockeying, legal pluralism, legal posturing, and broad questions surrounding law and sovereignty. A key difference, though, has been that historians of these worlds have had to contend with the presence of deeply entrenched pre-colonial legal systems – usually some variation of “Islamic law” – and their encounters with colonial law.

For the historian, locating colonial law is often straightforward enough: colonial archives abound in the United Kingdom, the Netherlands, and France, to say nothing of those around the Indian Ocean itself, and finding archival material on legal institutions is not often very difficult. Nor is it difficult finding material on Islamic law: archives and libraries around the Indian Ocean are replete with the various genres of Muslim legal writing. There are dense treatises on jurisprudence alongside shorter manuals that alternate between prose and poetry. There are multi-volume commentaries on law, and equally-extensive compendia of legal responses (fatwas). And usually, archives will turn up collections of contracts, deeds, petitions, wills, and more. All of these have long formed the “stuff” of Islamic legal studies for over a century now; so far, no surprises.

The difficulty, though, is in making this world of pre-colonial lawmaking come to life – and, for the Indian Ocean historian, to see the broader canvas against which its history played out. Doing this kind of work requires historians to read across archives and research sites, and above all, to be willing to transgress the boundaries of area studies, even if it means sometimes risking dilettantism. It necessitates that we think about circulation as an historical phenomenon: how ideas travel and in what form – in texts, through people, in scraps of circulating paper – and how they might transform in the process. It means that we have to widen our apertures to bring in a range of different actors from a range of different backgrounds, often writing in a combination of different languages – and it means engaging with materials that all of these actors have left their imprint on.

Put differently, writing the legal history of the Indian Ocean often means that we have to rid ourselves of any singular, grounded notion of what “law” is, and take in a polyphonic world of multiple legalities, of circulations, of connections, and (invariably) of translations. Colonial legal institutions form a critical part of this fabric, and it would be dishonest to write about an Islamic law that is somehow sealed off from the colonial world in which it lived and breathed, but colonialism can only be one part of the story. The real story is instead of transregional connections across broad spaces – of what we call “South-South” connections, and the parallel legal arenas that they conjure up. For the historian, these aren’t just idiosyncrasies of a particular field: the circulations, connections, and entanglements that Indian Ocean historians (and Atlanticists, and Mediterraneanists, and so on) grapple with are arguably central to the project of global legal history writ large.

So much for the idea. What does this look like in practice, though? I’ll try to say more about that in my next post!

-Fahad Bishara