On the Coloniality of Modern Law

Abstract

The article investigates modern law in its colonial career as it consisted in two paradoxical itineraries. Colonial rule developed under the auspices of governing through modern positive law as it claimed independence from religion and the administration. But the colonies also surfaced as zones of lawlessness, administrative measures, arbitrariness and excessive exceptions. Rather than posit the second itinerary as exceptional to the general first one, notwithstanding how constitutive the exception may be of the rule, this article examines a number of legalities that exemplified these two itineraries in colonial Egypt and theorizes them as co-existing modalities of juridical power that shared similar objectives and fields of intervention. In particular, under historical investigation are legalities that managed agricultural labor through penal/administrative measures. It is argued that these legalities co-existed with positive and liberal legal institutions. Agricultural legalities were “pervasive legalities,” enhancing modern positive law’s production of a gapless legal order that aspired to capture limitless terrains of social life. This legal history reveals that the hallmark of modern colonial law did not consist in substituting a regime of separation of powers and codification for that of pre-colonial fusion or administrative legalities. Rather, the historical achievement of modern law consisted in its “elastic positivism,” that is to say, in wedding positive law to pervasive legalities as both served to dominate the social: the first from the independent terrain of codified law and the second from the material domains of social life. This hallmark of gaplessness and pervasiveness is what made modern law fit for colonial rule.