Wednesday 24 March 2021
14.00 - 16.00
Justice Administration in Colonial Spaces
Johan Huizinga, 006
Chris Jenkins :
'An Object of Ambition': Fostering Judicial Development beyond the Borders of British India, 1869-1919
Christian G. De Vito
This paper examines how the British in India sought to use civil procedure to foster judicial development in the Princely States. These States, accounting for a third of the subcontinent's territory and a quarter of its population, were tied by treaty to the British, but had their own independent legal ... (Show more)
This paper examines how the British in India sought to use civil procedure to foster judicial development in the Princely States. These States, accounting for a third of the subcontinent's territory and a quarter of its population, were tied by treaty to the British, but had their own independent legal and judicial institutions until 1947. The range and unpredictability of laws and institutions meant that litigating – and therefore trading – across India's internal borders was fraught with uncertainty. Traders could easily flee to neighbouring States, and avoid debts. Any judgments sent after them would not be enforced by local courts. Still reeling from the shock of the Indian 'Mutiny' of 1857 (as it was known) the British were reluctant to interfere directly in the affairs of the States, and could not 'order' their courts to enforce British Indian judgments. Through civil procedure, they found a way to influence the States indirectly.
Over a century from 1869, the British Indian Government – in consultation with judges, merchants, and the princes themselves – developed a dynamic regime for the cross-border enforcement of judgments. Judgments could be sent between Princely and British India only where States had been added to a list of jurisdictions with 'trustworthy' courts. Courts were added (or removed) from the list depending on objective developmental factors; unsurprisingly, the measures of modernity were more British than Indian. Admission to the ‘civilized law club’ was promoted to the Princes as an ‘object of ambition’: maharajas were encouraged to modernise their legal systems, institute appellate systems, and were sent advisers, legal materials, draft codes, and even judges. Admission to the 'trusted' list often coincided with the separation of the judiciary and executive; the introduction of printed law reports; sometimes the setting up of an entirely separate ‘parallel’ judiciary for certain ‘international commercial’ cases; or, more commonly, the remodelling and regularising of existing institutions, along British lines.
The growth of India’s ‘Reciprocal System’ (as it became known) was based on a stringent test of judicial ‘efficiency and independence’, helped along by legal harmonisation with British India. The System’s expansion was hampered by the belief among some princes that it was the first step towards total annexation: a misapprehension that was never effectively answered. In any event, for the states that did join, it meant that integration into the legal systems of India or Pakistan after 1947 could be approached from a position of perfect equality. (Show less)
Maarten Manse :
The Justice and Injustice of the Colonial Tax Administration in the Dutch East Indies, ca. 1880-1920
On the surface, the Dutch colonial state in Indonesia (1815-1945) was one of an alleged legal order. But below the level of paper administration and colonial bureaucracy, the state depended on the discretionary power of local rulers and indigenous elites. This created an operational legal system in which codified law ... (Show more)
On the surface, the Dutch colonial state in Indonesia (1815-1945) was one of an alleged legal order. But below the level of paper administration and colonial bureaucracy, the state depended on the discretionary power of local rulers and indigenous elites. This created an operational legal system in which codified law and the practical operation of justice administration got dispersed. This was definitely visible in the colonial tax system. From the very start of colonial taxation the colonial state allocated the tax assessment as well as the collection of tax revenue to local chiefs and their administrative elites. All over Indonesia (or those islands that came under Dutch control in the 19th and 20th centuries), these were responsible for determining assessments, assessing liabilities and actually collecting revenue. As a result, the persons who determined how much one was to be taxed also got their hands on the money. The step to corruption was a small one. Thus logistical factors endowed tax collectors with considerable discretionary power in the colony.
Drawing from and comparing several case studies from my PhD research based on archival research in Indonesia and The Netherlands, my paper will attempt to explain how Dutch colonial officials attempted to develop, legitimize and rationalize a tax system which in theory attempted to tax each and every person to capacity, but in practice was characterized by negotiation, deal-brokering and local pragmatism. Hence the spread of the local tax burden was determined by the abilities of local rulers and people to resist to the state, and other forms of local resilience expressed din various nodes of resistance and noncompliance strategies.
Many colonial subjects for long fell outside the scope of the state and in order to be included had to be reached, quantified, accounted and inscribed into colonial registers. The majority of Indonesian colonized societies were included In the colonial justice and tax system by rewriting local systems of social organization and justice. Simultaneously, the colonial explanation of the tax regime often followed patterns of ethical colonialism, in which liberal values (of individual freedom and self-enrichment through expansions of the colonial territory and economy) conflicted with pastoral ones (of seeking greater welfare and prosperity for the indigenous population). Arguing that taxation would lead ‘the native’ to higher standards of welfare, greater industriousness and better forms of socio-economic organization was at the core of colonial self-legitimation. Taxation was just as much an issue of governmentality as it was of public revenue, and between these regularly conflicting interests local colonial officials had to find with answers to problems of governance and public welfare, in a paradoxical split between safeguarding alleged basic rights of colonial subjects while at the same time extracting their labour power and wealth.
I hope to showcase that the colonial tax system in the Dutch East Indies was a typical example of malfunctioning colonial justice administration to illustrate the many complex paradoxes and conflicts of colonial modernization projects. (Show less)
Natalie Reinhart :
Producing Testimony: Legible Bodies in Jamaica’s Lower- Magisterial Courts
How does the law produce a slave, a criminal, or a child? What role does a courtroom’s social specificity play in determining who is made legible, and conversely illegible, before the law? This paper looks at the history of lower-magisterial courts in Jamaica during the Apprenticeship period (1834-1838)—the period of ... (Show more)
How does the law produce a slave, a criminal, or a child? What role does a courtroom’s social specificity play in determining who is made legible, and conversely illegible, before the law? This paper looks at the history of lower-magisterial courts in Jamaica during the Apprenticeship period (1834-1838)—the period of transition when the formerly enslaved became free-laborers—and asks if it is possible to see resonances between the courts’ origins in colonial empire building, and how the cases of vulnerable communities are adjudicated today. Specifically, the paper looks to contemporary cases of uncontrollable girls tried in lower-magisterial courts in Jamaica as a site of negotiation for the kinds of citizenships the law may produce. Uncontrollable girls are underage young women who are sentenced under the “status offense”—akin to vagrancy laws—to live in state-care facilities; they have often committed no crime, with their uncontrollability referring to a litany of perceived deviances, often located in the body. To this extent, the paper will focus on legal archives containing different kinds of “testimony” by the enslaved, and acts of testimony for uncontrollable girls today.
The Apprenticeship period, aside from transitioning the enslaved into free-laborers, was arguably the historical moment when the modern state emerged in Jamaica. Police forces were established alongside courts, and a specific kind of magistrate—the stipendiary magistrate—became the front line for wrenching power from the individual slave-owner, making disciplinary and regulatory power the mechanism of the state rather than the individual. The plantation society had, to that point, little contact with something like a “state” at large. The stipendiary magistrate became a beacon of the state encounter, despite the fact that they often had little legal experience and were recently relocated to the colony to perform their new role in empire. The paper will attend to this historical formation of the lower-magisterial court and how stipendiary magistrates played a pivotal role in defining ontologies of enslavement, criminality, and childhood.
Looking to the present, this paper retraces the history of magisterial courts along the contours of testimony and its performance, rather than just their role in the creation of the modern colonial state. It looks to archival moments of testimony among the enslaved and magistrate’s recordings of disputes—where the right to testimony might be denied, instead voiced by scars on the body— and reads them alongside the testimonies of uncontrollable girls today as a formation of embodiment and its contestation. It interrogates how the specifics of the lower-magisterial court’s proceedings may produce a kind of social space where uncontrollability is more legible, and therefore girls are made illegible, to ultimately ask: what is the role of testimony in the post-colonial court? (Show less)
Wendy Warren :
The Carceral Colony: Prisons in Colonial North America
This paper is about prisons in colonial North America, about the centrality of imprisonment in the lives of all people in colonial America, and about how the insidious presence of prisons aided the growth of the colonial state from its very beginnings. To make that argument, it relies on new ... (Show more)
This paper is about prisons in colonial North America, about the centrality of imprisonment in the lives of all people in colonial America, and about how the insidious presence of prisons aided the growth of the colonial state from its very beginnings. To make that argument, it relies on new research to describe how common people, enslaved and free, native and European and African, experienced colonial prisons. Moreover, it will explain how many indigenous people openly and ardently critiqued and protested the presence of prisons, from the moment the institution arrived on American shores; they resented its temporal nature, its arbitrariness, and its cruelty. They preferred immediate punishment, and pushed back on the idea of prison as civilized justice. In describing these protests, the paper switches attention away from the bloody clashes of colonization, to focus instead on the day-to-day struggles of creating a colonial state and on the indigenous responses to that process. (Show less)