LAWS OF THE POSTCOLONIAL by Eve Darian-Smith and Peter Fitzpatrick (Editors). Ann Arbor: The University of Michigan Press, 1999. 309 pp.
Reviewed by Lisa A. Kloppenberg, University of Oregon School of Law.
Eve Darian-Smith and Peter Fitzpatrick organize an intriguing and diverse collection of essays on the centrality of law to postcolonial theory. They gather a dozen innovative scholars from political science, law and anthropology, based in the U. S., England and Australia, to explore the intersections of law and postcolonialism. The writers demonstrate that postcolonial perspectives, underdeveloped in legal discourse, can challenge the way we view globalization, international development and human rights dialogue. The themes of increasing globalization and the imposition of Western legal ideals explored in this book are mainstream media topics, as groups around the world protest WTO meetings and as politicians debate whether U.S. trade policy toward China should be conditioned on human rights guarantees. Even for those who do not write and teach about international law or development, this book contains insights from postcolonial theory relevant in assessing international legal systems and ideas about rights.
LAWS OF THE POSTCOLONIAL is the latest in the rich Law, Meaning and Violence series edited by Martha Minow, Elaine Scarry and Austin Sarat. Much of the material in this volume is drawn from previously published essays and summarizes well the underlying work of Denis Diderot, Frantz Fanon, Michel Foucault, Edward Said and others. The book is wide ranging in several senses. The authors draw on examples from various countries during different eras to illustrate their arguments. Their styles and methods differ, including philosophical, historical, critical and feminist perspectives. This collection should interest many scholars, including those who pursue democratic theory, rights-based conceptions of justice, and the relationship between law and politics. The book is aimed at scholars rather than students, but I plan to smuggle its insights into courses. For example, Paul Passavant uncovers the race and class bias implicit in John Stuart Mill's free speech ideal, now enshrined in U. S. constitutional law. Mill contrasts Western speech concepts -- ideal for civilized discussion -- with the "barbaric," "backward" and "speechless" non-West. Passavant's critique resonates as we consider U.S. debates over hate speech codes and multicultural curricula or the repression of the press in Iran and the silencing of student protestors or minority religions in Asia.
Antony Anghie's essay on Francisco de Vitoria, a 16th-century Spanish jurist, is particularly illuminating and accessible. Tracing Spanish legal dealings with Indians, Anghie questions sovereignty notions and the assumptions of international law. He argues that the "vocabulary of international law, far from being neutral or abstract, is mired in [a] history of subordinating and extinguishing alien cultures." He seeks to expose international law1s relationship to
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colonialism. John Strawson delineates how colonial scholars to be less like Western laws recast Islamic legal texts. Strawson wants to "rethink our images of Islamic law [and] to discover rich lineages for a universal jurisprudence." He contrasts the independence enjoyed by some Moslem women well before Western women received such privileges with colonial criticism of Islamic society. An 18th-century Western scholar termed frequent bathing and bans on alcohol favorable to despotism. Bathing has a debilitating effect of the mind and liquor enables free communication that can awaken "mankind from a torpid indifference to their natural rights." Strawson summarizes: "A dirty, drunken European is the prototype of a free person."
Colin Perrin deconstructs the U. N. Declaration on the Rights of Indigenous People. For him, the encounter between the indigenous peoples and the nation exposes an existing split within the nation as it reveals a nation irremediably crossed with cultural difference. Diane Otto focuses on a division within the U.N., as the Group of 77 third world states attempted to
change international economics policy and law. She uses practices in India under British rule to illustrate deeply exclusionary practices. She provides extensive information as she argues that the transformative possibilities present after the Cold War are in danger of being subverted to Western expansionism with its global free market emphasis.
Annelise Riles examines claims to land made by U. S. citizens shipwrecked in Fiji. She uses diplomatic correspondence between British colonial rulers and the U.S. to explore the contingent perspective (local, national and international) in disputes and postcolonial literature. She perceptively draws on feminist theory, looking closely at situatedness, to "question the power of perspectivism as a tool for imagining a new and truly postcolonial law or politics." Roshan de Silva surveys the 1972 Constitution of Sri Lanka's inconsistencies in excluding and including Tamils. He links this to the hierarchical ontological scheme of Sinhalese Buddhism. Peter Fitzpatrick discusses the "impossible union" of savagery and civilization in law, providing interesting examples of savage resistance. Rolando Gaete delineates the tension between viewing human rights through a transcultural or a culturally relativistic lens. Alan Norrie exposes the tension in positing Western law as formal, rational and general against an informal, popular and particular justice of the third world law.
Eve Darian-Smith, in an accessible contribution, explores English reaction to construction of the Channel Tunnel linking England and other parts of Europe. She adeptly situates English fears, linking anxieties about increased rabies exposure from the "Chunnel" to popular and governmental fears of invading, altering transnational forces. One conservative politician declared, "The blessing of insularity has long protected us against rabid dogs and dictators alike." English media covered the story incessantly when the British turned Hong Kong over to Chinese authorities; some Britons bemoaned the collapse of the empire. Now the tables are turned. Darian-Smith demonstrates that, "reacting against and though [a] postcolonial legacy," the English primarily fear colonization by the European Union. They worry about the changes in their currency, culture, and legal system. This essay reminds me of historic fears that Asian immigrants would bring infectious disease to the U. S., while not assimilating like other Caucasian, Christian immigrants. It reverberates for current disputes over
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Mexican immigration to the U. S. The English built an complex electronic system to keep out rabies. Fearing change from selected foreigners, Arizonans passed an "English only" law and the U.S. spends great sums of money to police the Southwestern border.
Mary Robinson says that European Union law has brought into the English legal system "a written constitution through the European back door." Darian-Smith, an anthropologist, could have productively built on this cite by exploring some important English legal developments during the 1990s. For example, under pressure from rulings in European courts, English law has
changed. The English seriously considered adopting an explicit Bill of Rights, which they had long rejected as unnecessary and limiting. Nevertheless, Darian-Smith persuasively draws on the role of railway building for English and colonial modernization in assessing resistance (particularly in Kent) to the Chunnel and a high-speed rail link to London. Although these new developments herald the breakdown of the nation-state, she concludes that they simultaneously affirm borders and inspire new regional identities. For example, Kent politicians opened a Brussels office, pursued economic opportunities as Dover Ferry jobs lapsed, and recast Kent from the sleepy "Garden of England" to the "Gateway to Europe." Kent's politicians also
reached out beyond the English legal and political processes by pressing for control of the tunnel. They formed the Euroregion, a new institution to link local governments annexed to the tunnel.
Jeannine Purdy offers one of the most important essays in the volume, critiquing postcolonial literature for too often obscuring ancient oppressions. "Issues of class and violence . . . receive only cursory acknowledgment, if any," she laments. Although postcolonial rhetoric is persuasive to many academics, the most marginalized (racially, ethnically and economically) do not necessarily agree. To treat colonialism as past is to ignore real present harms: militarization, corporate dominance and loss of cultural and spiritual identities. Her example of the treatment of Aboriginal Australians is striking, covering increasingly high rates of imprisonment, loss of reservation-like lands, and other inequities. Purdy links the increased suffering of the poor in Trinidad and Tobago to International Monetary Fund conditions. She worries that the garb of postcolonialism disguises the ways in which law is still violent and colonial.
The editors could have included other such critiques, highlighting the weaknesses in postcolonialism and exploring situations where the rule of law, universal rights regimes, or other perspectives might still be valuable. Nonetheless, LAWS OF THE POSTCOLONIAL is a provocative and important collection, well worth sampling even for those who believe postcolonial
theory holds little relevance for their scholarship.