Legal Anomaly

CSSH has a longstanding tradition of juxtaposing essays for comparative effect. Our readers enjoy this ritual, but we often wonder what our authors think of it. Under the Rubric gives CSSH authors a chance to respond directly to each other’s work, drawing additional insight and inspiration from their arguments.

LEGAL ANOMALY

FAHAD AHMAD BISHARA, “‘No country but the ocean”: Reading International Law from the Deck of an Indian Ocean Dhow, ca. 1900

GUO-QUAN SENG, “The Gender Politics of Confucian Family Law: Contracts, Credit, and Creole Chinese Bilateral Kinship in Dutch Colonial Java (1850s–1900)

Fishing boats in the harbor at Sur, Oman. Photo by Fahad Ahmad Bishara.

In “No country but the ocean”: Reading International Law from the Deck of an Indian Ocean Dhow, ca. 1900,” Fahad Ahmad Bishara considers the legal imaginaries of Indian Ocean mariners sailing out of the port of Sur, on the Arabian Peninsula. Maritime legal culture entailed a domestication and vernacularization of international law, not least in the ways it was materially manifested in flags and, for these captains, efficacious French documents (titres). These objects-at-sea extended legal regimes of the land, but also refracted and transformed them to captains’ own idiosyncratic purposes. Flags and documents were used to foment exchanges far beyond what they actually secured or promised; for example, titres were freely transferred from one ship, and sailor, to another. Bishara recounts a microhistory of a 1905 court case of Muscat-based dhows suspected of slave-trading, arbitrated at the Hague. The essay reveals the affordances and limits presented to seafarers sailing under a French flag and bearing French papers, though on a mostly British sea. At the same time, it highlights the processes by which dhow captains from Sur appropriated these imperial technologies and grounded them in their own world, framing their encounter with the British navy as the latest in a long string of imperial entanglements at sea, and anchoring the French titres in a regional regime of safe-conduct passes.

Portrait of a late nineteenth-century Peranakan Chinese matriarch. Photo by Guo-Quan Seng, taken in a Chinese clan house in a coastal city on central Java.

Attending to a different form of legal anomaly, Guo-Quan Seng’s essay, “The Gender Politics of Confucian Family Law: Contracts, Credit, and Creole Chinese Bilateral Kinship in Dutch Colonial Java (1850s–1900)” documents the extraordinary economic power enjoyed by creole Chinese women in nineteenth-century Java. These women possessed inheritance rights and directed their household economies, often retaining substantial wealth independent from husbands’ debts or other family liabilities. Beginning in the 1860s, though, Dutch officials began to administer Chinese family law in the colonial courts, and they did so relying on abstract ideals of Confucianist ethics grounded in Sinological studies and formalist textual interpretations. Confucianist legal doctrines of the male as natural head of the household began to inform Dutch legal norms. As a result, by the 1880s women’s autonomous wealth was made vulnerable to husbands’ debt and obligations. Seng shows that Dutch Confucianism, installed in the name of Chinese “tradition,” deprived creole Chinese women of legal rights that they had long enjoyed in actual tradition and practice.

CSSH: Your essays each examine the processes through which law becomes interpreted and enacted in two different geographic contexts in the late nineteenth and early twentieth centuries. In Java, Dutch colonials applied their understanding of Chinese family law to regulate the property rights of creole Chinese women. In the Indian Ocean sea captains drew on French law in their interactions with British officials. In each case, this local re-interpretation of existing legal traditions led to very different outcomes. What analytical patterns do you see emerging from the two essays? What insights or perspectives on your own research do you gain by reading your essays side by side, or “Under the Rubric”?

BISHARA: I was absolutely taken by Guo-Quan’s textured account of kinship, credit, and colonial law in 19th-century Java. He moves between the registers of anthropology and history with admirable facility, and forces us to take seriously the role played by colonial legal anthropologists—and by history itself—in shaping the social structures that we often mistake to be constant.

There are immediate parallels between my article and Guo-Quan’s that come to mind. First, both are set in the Indian Ocean (in my case the Arabian Sea, and in his, the South China Sea). This would be a very superficial parallel were it not for the fact that both articles examine processes set in motion by the encounters between European empires and the diasporic and mobile groups that have come to define “Monsoon Asia.” In both these episodes, imperial officials struggle to make sense of the economic and legal practices associated with the world of Asian trade (or, following the writings of Rajat Kanta Ray, the world of “the bazaar”) while their imperial constituents play on the gaps, confusions, and alternative possibilities so as to make imperial or inter-imperial law (which, in my article, is beginning to take the shape of “international law”) work for them. At their core, they are both discussions of the plasticity of imperial law in the Indian Ocean world, and the processes by which an assemblage of texts, relationships, practices, and instruments are all collapsed into a singular notion of “law”—a process that John Law called “punctualization.” I’m also struck by the parallels here between “Chinese law” and “Islamic law,” which Iza Hussin’s work tells us is a modern construct that flattens the landscape of the shari‘a into notions of “law.”

As I read Guo-Quan’s discussion of kinship and credit against my own writings both past and present, I found myself wondering two things: First, how might we frame the changing relationship between “kinship,” “law,” and exchange against a longer backdrop? That is, if we are to assume that the Dutch were only the latest in a long string of encounters between the Peranakan Chinese and the local/regional/global polities in which they were entangled, does this story look any different? Might we then be able to ground the history of imperial law in the Peranakan Chinese vernacular rather than suggest that imperial law has the ability to remake social structures?

SENG: I was struck by how both Fahad and I were each trying to recover the vernacular and creole histories of mobile peoples from different ends of the Indian Ocean, but in the same high imperial period (1870s–1914). As European empires emerged from their port-cities to build rationalized territorial and trans-oceanic states, imperial officials encountered these “anomalous” socio-economic practices (slave-trading Arabs, fraudulent Chinese) of the Asian long-distance traders who were there before them. A common analytical strategy that Fahad and I share is to bracket these ostensibly criminal anomalies but to use fragments from case files to reconstruct the communal and life histories of these historiographically marginalized communities.

I found Fahad’s use of the emerging scholarship on paperwork, and its emphasis on materiality over content, both provocative and productive to think alongside my work. As an extension of his previous work on long-distance debt relations, he traces the materiality of regionally circulating ownership deeds and flags to write a connected transregional history of the Arab dhow trading community. In comparison, mine is a more diachronic history of creole Chinese families affinally connected in one place (West Java/Java). Fahad shows me how a more synchronic approach to legal documents as bureaucratic instruments of circulation could have yielded a different history of Chinese merchant families networked in more places across and possibly beyond Java.

Although with different nuances and emphases, both Fahad and I place our scholarly stakes on a new and emerging global history of legal pluralism for the Indian Ocean. Fahad and I share a genealogical affinity with an Indian Ocean (or East Indies) analytical trope revived by Lauren Benton (2002) that treats older colonial claims of plurality with critical scepticism (Alexandrowicz, Furnivall). Echoing one of Eng-Seng Ho’s (2017) inter-Asian concepts, Fahad skillfully disaggregates his sources (titles, petitions) to reaggregate a deep plurality that penetrates beyond the nineteenth century colonial interphase, and points to emergent continuities with earlier Islamic, genealogical and political networks in the region. On my part, I remain broadly committed to a critical Weberian strategy of locating the cultural and gender politics of plural law-making from within contemporary meaning-making processes.

BISHARA: Guo-Quan is correct that we both share a commitment to working out the contours of the history of legal pluralism that Lauren Benton staked out so long ago, while drawing on the insights of Engseng Ho and other Indian Ocean anthro-historians like Michael Gilsenan, whose work on translation resonates so deeply with Guo-Quan’s own insights. It’s funny, too, that although I asked about what a longer history would look like, he responded by pointing out our common interest in the microhistorical tradition of drawing on “fragments from case files to reconstruct the communal and life histories of these historiographically marginalized communities.” It is striking that we both make use of some aspect of the microhistorical method, but not only to write the histories of these marginalized groups, as Carlo Ginzburg would have it—we employ it to think about the processes that went into lawmaking as well. And of course, microhistory and legal history are sister fields; microhistorians have a long tradition of using legal materials, and legal historians’ use of the singular case is a long-established practice in the field (albeit each for completely different purposes). I wonder, then, how thinking about these two fields together and their mutual commitment to “the anomaly” frames our common agenda, and ultimately feeds into Guo-Quan’s commitment “to a critical Weberian strategy of locating the cultural and gender politics of plural law-making from within contemporary meaning-making processes”?

SENG: Fahad says it eloquently when he points out the shared methodology, yet divergent concerns of the legal and microhistory fields. I will just add that legal historians today are also more likely to take on social scientific questions even if they tend not to challenge the grand narratives of modernization as microhistorians are prone to. Mitra Sharafi’s analysis of the profession-, gender- and community-formation dynamics of Parsi’s and law in British India immediately comes to mind for the fine balance she strikes between the narrative voice, biographies, and minority histories and her broader social-scientific concerns. Thinking about these two fields together thus opens up potential avenues for new interventions through purposive multi-scalar analyses.

Fahad asks, what might a history of Dutch imperial law grounded in the Peranakan Chinese vernacular look like? My CSSH article has highlighted how the Peranakan vernacular expressed itself through bilateral kinship alliances that constantly ran up against an Orientalized form of Dutch-Chinese legal patrimonialism. In some sense, the very notion of the “Peranakan”—descendants of mixed race children in the Malay/Javanese world—is itself an indigenous way of vernacularizing foreign settler cultures. Grounded in their social histories of family and gender formations, and family-based wealth reproduction, my forthcoming book will be an extended reflection on how the creolized Chinese negotiated Dutch imperial legal boundaries for race (natives/Foreign Orientals) and religion (Islam-adat/Chinese-adat).

REFERENCES

Alexandrowicz, Charles Henry. 1967. An introduction to the history of the law of nations in the East Indies: (16th, 17th and 18th centuries). Oxford: Clarendon Press.

Benton, Lauren. 2002. Law and Colonial Cultures:Legal Regimes in World History, 1400-1900. Cambridge: Cambridge University Press.

Furnivall, J.S. 1967. Netherlands India: A Study of Plural Economy. Cambridge: Cambridge University Press.

Gilsenan, Michael. 2011. Translating Colonial Fortunes: Dilemmas of Inheritance in Muslim and English Laws across a Nineteenth-Century Diaspora. Comparative Studies of South Asia, Africa and the Middle East 31, 2: 355-371.

Ginzburg, Carlo. 2013. The Cheese and the Worms: The Cosmos of a Sixteenth-Century Miller, trans. John and Anne C. Tedeschi. Baltimore: Johns Hopkins University Press.

Ho, Engseng. 2006. The Graves of Tarim: Genealogy and Mobility Across the Indian Ocean. Berkeley: University of California Press.

Hussin, Iza. 2016. The Politics of Islamic Law: Local Elites, Colonial Authority, and the Making of the Muslim State. Chicago: University of Chicago Press.

Ray, Rajat Kanta. 1995. Asian Capital in the Age of European Domination: The Rise of the Bazaar, 1800-1914. Modern Asian Studies 29, 3: 449-554.

Sharafi, Mitra. 2016. Law and identity in colonial South Asia: Parsi legal culture, 1772-1947. Cambridge: Cambridge University Press.

Weber, Max. 2013 [1922]. Economy and Society: An Outline of Interpretive Sociology. Guenther Roth and Claus Wittich, eds. Berkeley: University of California Press.