Magnified Features: The Underdevelopment of Law and Legitimation (Article) [2000] JSPL 15; (2000) 4 Journal of South Pacific Law

MAGNIFIED FEATURES: THE UNDERDEVELOPMENT
OF LAW AND LEGITIMATION
Peter Fitzpatrick*

The physiognomies of governments can be best detected in their colonies, for there their features are magnified, and rendered more conspicuous.¹

Introduction

There is a strong and standard view to be displaced first. Trust and law - law of the modern, occidental variety - are usually taken to be antithetical. Law supervenes in the decline of relations of trust, in a distancing from their more natural or ‘symbiotic’ character: ‘In the midst of strangers, law reaches its highest level’; ‘the progress of law consists in the destruction of every natural tie, in a continued process of separation and isolation’; or Michelet, ‘law, justice, is more reliable than all our forgetful loves, our tears so quickly dried.’² Law is calculative and explicit, set apart and determined, formed and formal. Relations of trust are intimately engaging, embroiled, responsive, informal and uncontained. They are typically placed at the ‘level’ of the local and small-scale where they are encompassed by a surpassing law.

My initial argument will be to the contrary, at least to the extent that involving and legitimating relations of trust will be shown to be constituent of law itself. Not that this simply derogates from law’s remoteness, from its position of determined ‘autonomy’. Rather, this very position will be seen to depend on law’s trust in and responsiveness to what is beyond position. Position cannot be sustained in an unvarying stasis. There cannot, that is, be position without responsiveness to what is always beyond position. In a seemingly paradoxical way, what is beyond position is also integral to position. Neither, however, can there be a responsiveness without a position from which to respond. Law can then be seen as an operative mode of being in-between position and responsiveness. It brings these differing registers of determined position and responsiveness into an adequate relation with each other. Or at least it should to be effective as law.

This initial argument to do with the necessity of law’s legitimating responsiveness is then set against the exigencies of the colonial situation. What is found there is a denial of the dynamic of relation between position and responsiveness in law - a kind of terminal legality which, in its deathly stasis, rejects the dynamic, fails in so doing, and thence confirms the intractability of the dynamic if there is to be law and persistent legitimation. This refinement of the argument is then ‘tested’ against a remarkable efflorescence of ‘development corporations’ formed by many large groups in Papua New Guinea in the period around the ‘granting’ of self-government in 1972. The formation of one such corporation will be taken as an extended instance. The surface of the story is one of law’s trusting, involving and legitimating responsiveness. But behind the scenes, the determined and determining law limited its response and failed to bring position and responsiveness into an adequate relation. I will conclude by indicating reasons for this failure in problems of legitimation afflicting the colonial and post-colonial situations.

 

Law’s responsiveness

To extract the intrinsic responsiveness of law, I will look at a typical and contrary perception of it in the epochal idea of the rule of law.³ With the usual perception of it, this idea would drape law in a secure solidity. And it must be readily conceded that there is point to this. Countless histories and juridical affirmations would have us believe that the rule of law is characterised by certainty, predictability, and order. As against the vagaries of an arbitrary and discretionary power, the rule of law clearly marked out an area of calculability in which the individual could now purposively progress. In order for this law, and ‘not men’, to rule, it had to be coherent, closed and complete. If it were not coherent but contradictory, something else could be called on to resolve the contradiction. If it were open rather than closed, then something else could enter in and rule along with law. If it were incomplete and not a whole corpus juris, and thence related to something else, then that something else could itself rule or share in ruling with law. For all of which, law had to be self-generating and self-regulating because if it were dependent upon something apart from itself for these things, then, again, those things would rule along with or instead of law.

We can, however, take each of these imperative qualities of the rule of law and evoke their opposite ‘in’ the rule of law itself. For law to rule, it has to be able to do anything, if not everything. It cannot, then, simply secure stability and predictability but also has to do the opposite: it has to ensure that law is ever responsive to change, otherwise law will eventually cease to rule the situation which has changed around it. So, how could the rule of law be complete if it must ever respond to the infinite variety of fact and circumstance impinging on it? How could it be closed when it must hold itself constantly responsive to all that is beyond what it may at any moment be? And how could law, in extending to what is continually other to itself, avoid pervasive contradiction? Law cannot be purely fixed and pre-existent if it is to change and adapt to society, as it is so often said that it must. Its determinations cannot be entirely specific, clear and conclusive if it has integrally or at the same time to exceed all determination, to assume a quality of responsive ‘everywhereness.’⁴ And every tale of law’s bringing order to disordered times and places in the triumph of modernity or capitalist social relations, and such, can be matched by others where it created uncertainty and inflicted massive disorder in the same cause. This appears to be an impasse.

Perhaps then the enquiry should be diverted. Rather than seeking law in that which simply conforms to either side or both sides of the opposition, as is usually done, perhaps we could seek a law which ‘is’ in-between the opposed dimensions, which ‘is’ the experienced combination of them, and which has its being because each dimension is inexorable yet unable to be experienced by itself. The condition of being in law would then be unresolved and calling for incessant decision and responsible judgement. We may, nonetheless, find prospects for resolution in these dimensions being not only opposed but somehow integral to each other. Clearly completeness of position and responsiveness to what is beyond position are antithetical things but there can be neither position without responsiveness nor responsiveness without a position from which to respond.

So, even though law has to assume an effective position it must also be incipiently ever beyond position. Law must attach to a social reality but it cannot be fully identified with or lost in that reality. Law is, to borrow Cain’s pointed phrase, ‘necessarily out of touch.’⁵ Law, that is, must take on a quasi-transcendence and stand apart from the social, yet if it becomes ‘out of touch’ with society it ceases to be effective. But this cannot, of course, be a question of the effectiveness of law as a pre-given entity, even if the issue is normally seen in those terms. Effectiveness and ineffectiveness are not simply sociological questions addressed to a pre-existent law set apart. Law appears only in the failure, the ineffectiveness of pre-existent determination, for if there were full and effective determination that condition would simply and utterly be, without the necessity of any prescription addressed to it. The very determining force of law, in its vaunted objectivity and autonomy, can only subsist in the prospect of law’s always being able to be otherwise than its existent, inevitably compromised being. And law can only endure as ‘the same’ by according itself responsively to the infinite possibility that relentlessly impinges on it.

In all, law’s responsiveness and its determinacy cannot be separated from each other either entirely or in calculated proportions. Each suffuses the other to their full extent. The responsive cannot be purely beyond and thence merely inaccessible. It must be positioned in possibility, oriented towards determination and becoming present. Nor can determination be at all set or complete. Its assertion is always entirely and infinitely responsive. It cannot be enduringly stilled in or at any point or in any severable part.

 

Terminal legality

All of which is meant to be portentous, and negatively so. In what now follows, the colonial situation will provide a testing and, ultimately, a terminal fracturing of law in its two integral dimensions. Modern imperialism itself had to be responsively accommodating in its expansionary encounters, yet the encountered were somehow to be brought into an enduringly set, imperial or civilised identity. It would be difficult to imagine a scene more adapted to ‘resolution’ through law, or at least ostensibly so. To the imperial eye, law was pre-eminent among the ‘gifts’ of an expansive civilisation, one which could extend in its abounding generosity to the entire globe.⁶ This was the same law which had assumed in modernity a civilising mission within the national territory, and for this purpose had become ‘a flexible, indefinitely extensible, and modifiable instrument.’⁷ The gift was not perceived, however, simply as one coming from its immediate national donor. It was the gift of a universal (European) civilisation and it was itself composed of universal principles.⁸

But if imperial law was a gift of civilisation, it was also, like its national equivalent, a ‘grim present’, as the more perceptive of the colonists recognized.⁹ Law, that is, had not only to extend into new found worlds but had also forcefully to bring them into a determined order. The supreme justification of imperial rule was that it brought order to chaos, reined in ‘archaic instincts’, and all this aptly enough through subjection to ‘laws.’¹⁰ Looked at another way, the violence of imperialism was legitimated in its being exercised through law since, as Fitzjames Stephen would have it, violence was ‘forced, disciplined and regulated in the form of law, [which] played the leading part in the creation of civilization.’¹¹ A stable order is to be miraculously wrought in a disordering violence. This ambivalence characteristic of occidental self-constitution is transposed in the colonial situation onto the necessarily obliging savage as the Occidental’s negated ‘other.’ The savage, as the mirror opposite of this self-constitution, has to be a violently disordered being, and thus ever needful of a settled subordination, and at the same time inertly over-ordered, ever awaiting the transforming dynamism of colonisation.

The parallel with law in its metropolitan setting now becomes strained. Certainly law was in that setting central to ‘the state’s social mission’ of ‘homogenizing and hegemonizing ... a society conceived as inherently fragmented, atomized and centerless.’¹² Law played a formative part in this by seeking to effect a primary, legitimating relation between the state and the individual citizen and, in so doing, to eliminate or dominate all ‘intermediate’ orders. In the colonies, however, the savage was the carrier of the irresolution in occidental identity and the constituent negation of its civilisation and, so, had to be maintained as intractably apart from that identity and that civilisation. Such an utterly antithetical being could not be brought within the replete realm of civilisation much less integrated into its emphatic instrument, the metropolitan state. The savage was, then, denied a participative legal personality.¹³ It was solely the colonist who was to provide civil and civilised order. There were no rights for the savages in this scheme, apart from ‘rights’ to have things done to them so as to bring them within the ambit of civilisation.¹⁴

The savage, then, had to become the same as the civilised colonists yet remain unalterably different to them. That unsettled ambivalence permeated the whole of colonial settlement. The colonist took on the ‘burden’ of pervasive powers in the cause of an inclusive civilisation, only to use them to exclude, dissipate and generally ‘hold down’ the savage as incorrigibly deviant. Comprehensive and draconian legal regimes sought to separate out and stultify not only the colonised but also the traditional or customary institutions and processes imputed to them. All of which was enshrouded in ethical imperatives of ‘conservation’, of ‘protecting’ the native, especially from too disruptive an exposure to the benison of civilisation. And any native who assumed a precipitate civility would be checked by a tentacular ‘native regulation’ or by something more brutally informal. Nothing more readily reveals the native as the projection of an irresolution in occidental identity itself than the hysterical and aggressive response of the colonist to the impertinent évolué who successfully takes on civilised abilities, denies deep or intractable difference, and thus exposes the fragility of imperial rule at its seemingly confident core.

What the response to the évolué reveals is that the imperial project was decidedly less about a bringing into the fold of civilisation and definitively more about a creation and containment as different. The torpid incapacity of the savage was not only one which prevented the assumption of civilised behaviour but also one which denied the ability to act transformatively at all. The savage, that is, could not become anything other than what it had to be in its contrary relation to the dynamism of European identity. Some effective action had to be allowed to the native, however, because of the poverty of colonial rule. Various systems of ‘indirect rule’, of ‘recognition’ of native modes necessarily proliferated. But the reach of the native’s effective action was always severely circumscribed. Not only was it characterised as static, repetitive and mimetic but, for good measure, it was held or attempted to be held within a supervisory system of administration. Custom, for example, was ‘recognised’ solely in subordination to the law of the colonist and denied such recognition where it was ‘repugnant to natural justice, equity, and good conscience’, or contrary to ‘the general principles of humanity’, to take two standard and indicative formulations. Balandier summarises the resulting situation in this way:

Colonization transformed every political problem into a technical problem to be dealt by the administration. It contained every expression of communal life and every action that seemed to limit or threaten its grip, irrespective of the forms of the native political society and the colonial regimes that organised their domination.¹⁵

To which should be added a reminder of the prime place given to law in the imperial project, law as an authoritarian assertion of assured position. Given the separation and containment of the natives and the denial to them of effective modes of engagement - ‘strictly contractual relations are not possible’¹⁶ there is no space, as it were, for the development of social relations of a more ‘organic’ kind, relations which would ease and mediate the demands made on an overweening law. The necessity of distance was made a dubious virtue. Like a lawgiver of antiquity, the colonist claimed to bring law from the outside, a civilised law of universal valency free from polluting involvement with the particularity of the local scene.¹⁷ A similar stance imbued the colonist’s claim to be able to stand objectively and transcendently apart from the squabbling diversity of the natives and from there, not just to resolve their differences, but to encompass and determine their very destiny. The progressive and evolutionary assumptions of imperial rule placed the colonist in a position that enveloped all lesser conditions of existence. From this exalted position, therefore, the colonist could know and speak for the natives better than they could themselves - and thence decide to act with an appropriate force. So, even when a customary legal system was allowed some operative effect, its aberrations and inadequacies could be put right by superior prescription. In short, relation could only ever be contemplated and effected within an already given and resolutely containing frame.

This deathly disregard of the other marks an extremity of legal determination. It could, in one way, be seen as the apotheosis of legality, its perfected achievement. Here is law, supposedly, in its full determinative force. It has no responsive regard for its subjects, or objects, who are, to borrow Maine’s and Bagehot’s definitive descriptions, ‘caught...in distinct spots’, ‘stationary societies’ for ever ‘stopped’ in their development.¹⁸ But the stasis and comprehensive containment visited on the savage comprise the very conditions of this law itself. Lacking a responsive dimension, lacking any vibrant connection to what is beyond its immediate determinations, the laws of imperialism inexorably fail. A premonitory instance of this terminal inadequacy can be discerned in a hiatus vexing the colonial governor of Bombay in the middle of the nineteenth century when he remarked on ‘the perilous experiment of continuing to legislate for millions of people, with few means of knowing, except by a rebellion, whether the laws suited them or not.’¹⁹ With an obvious appropriateness, it is the attempt to prolong colonial rule beyond its failure which most sharply reveals its terminal inadequacy - nothing in its life became it like the leaving of it. I will now ‘test’ the argument so far in a case study of engaged resistance to colonial law.

 

A case of resistance