Postcolonial Law Research Articles

When Broken Worlds Churn: The Anti‐Caste Fabulations of Du Saraswathi

AbstractHow can literary fabulation prompt a reflection on caste, colonial, and capitalist lifeworlds? Engaging with two short stories by the Dalit feminist thinker Du Saraswathi, this article considers the role of fabulation in sparking anti‐caste praxis, decolonial thought, and a reflection on ecological interdependence. Bacchisu (“Tip”) and Honnahelu (“Shit and Gold”) are penned in the context of the sanitation workers’ movement in Karnataka, India and the ongoing struggles of waste workers to assert the dignity of their labour and their ancestral relations. Both stories capture the intimate worlds of solid waste and sewage workers, overwhelmingly from Dalit (ex‐untouchable) communities, as they navigate capitalist debris and the brokenness of caste society. They archive relations between caste overseers and contractual workers, the police and local bureaucracy, and peri‐urban ecologies. Saraswathi's writings explore such political concerns in ways that exceed the circumscribed realism of caste society—mingling Dalit culinary practices, embodied desires, rhythms of collective protest, rapturous encounters with spiritual beings, colonial legacies, and reproductive futures. In a context where Dalit testimonies are doubly silenced by the evidentiary procedures of postcolonial law and retributive violence, how can fabulation bear witness to an anti‐caste reality that integrates spiritual, ecological, and political struggles?

The Making of Colonial and Postcolonial Law by South Asian Muslims

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Malaysia’s language shift and post-colonial common law - Language Choice in Postcolonial Law: Lessons from Malaysia’s Bilingual Legal System By Richard POWELL Singapore: Springer, 2021. 324 pp. Paperback $10.00

Malaysia’s language shift and post-colonial common law - Language Choice in Postcolonial Law: Lessons from Malaysia’s Bilingual Legal System By Richard POWELL Singapore: Springer, 2021. 324 pp. Paperback $10.00 - Volume 8 Issue 3

Fragments Towards an Impossible (Domestic) Genre of the Human in Kenyan Crime Fiction

Extrajudicial executions and other forms of police violence in Kenya have always been an issue of significant concern in local and international media and human rights organisations. Reflective of this, scholarly interest in crime fiction in Kenya has grown significantly in recent years. However, the gendered implications of criminality – from sex work to errant motherhood to alternative modes of investigation – are still largely overlooked in postcolonial literary fiction and criticism. As part of a larger study on how women writers and characters shape crime fiction in Kenya, this paper critically engages with stories that the criminalised woman knows, tells, forgets, incarnates, discards or hides about the city. It does so by examining the history of urban sex workers in Kenya, the representation of ‘urban women’ in postcolonial Kenyan novels and contemporary mainstream media, and the various (post) colonial laws that criminalise sex work. Through Justina, an elusive character in Yvonne Adhiambo Owuor’s Dust, I consider how (post)colonial legislative frameworks and social life attempt to manage “impossible domesticity” (Saidiya Hartman) inside and against the geo-history of gendered and classed criminality in urban Kenyan spaces. My purpose is to interrogate hegemonic constructions of the citizen – and by extension, of the human – in Kenyan law and public morality 
 Keywords: crime fiction, feminism, sex work, human, homo narrans

The Litigious Widow in South Asia: A Study in Paradoxes

While widowhood in India is synonymous to destitution – economically and symbolically – the right of widows as primary heirs with equal property rights as men owes its advent to both colonial and postcolonial lawmaking. Feminist discourses have since found these laws lacking both in gender neutral conceptualisations, as well as fruitful implementation. Within the present market-driven economy where land is a primary productive resource, the idea of a widow as a legal actor to claim property is an anathema, especially in a rural, agrarian setting. Rarely, she becomes the individual who must address the law, given her identity is subsumed under the rubric of family and work, and imbued with the circumstance of ‘have-nots’ facing difficulty in ‘coming out ahead in litigation’ against their superiors. Even as ‘a field of one’s own’ promises sustainable livelihood, status and increased bargaining power for women, can the widow successfully activate the legal system and gain land as property? I will engage with this paradox from the viewpoint of the Bengali Hindu widow; taking into account parallel developments in the fate of widows in other South Asian countries, where widowhood acquires similar social meanings due to shared gendered norms. The aim is to compare, contrast and analyse the specificity that post-colonial law making in India, especially Bengal, has brought about in the widows’ position in the society.

Gypsies, Coloniality and the Affirmation of Human Rights in Brazil

In Brazil, different ethnic and social minorities (Quilombolas, Indigenous peoples, people with disabilities, the elderly) have expressly got recognition in the Federal Constitution of 1988 and other normative instruments as subjects of human rights. This scientific article deals with one such minority: the Gypsies. This article adopts the following problem of research: what is the relationship between colonial policies that aimed at the management of the Gypsy and the construction of the political-legal status of these peoples in Brazil? This research has made use of the following methodological resources: the participant observation of the authors in view of the legislative process of Bill 248/2015; the documentary research on the records of colonial and post-colonial laws that had directed to the management of Gypsies in Brazil; as well as the literature review, which intertwines the studies on the Gypsy question with decolonial theory.

Post-Colonial Citizenship Law (Comparative Study of Asian Countries)

Post-Colonial Citizenship Law (Comparative Study of Asian Countries)

Diversity and the Post-Colonial Law Library

AbstractCurrent debates about decolonisation and diversification raise practical issues for librarians. The Bodleian Law Library is engaging with these challenges, in co-operation with the Oxford Law Faculty, the wider Bodleian Library and the collegiate university. This article by Margaret Watson describes how the Library is taking a fresh look at its collections and their organisation, with a view to acquiring, revealing and collocating material that might otherwise by overlooked.

A Survey on Statutory Reform for the Right to Impart Public Sector Information in Malaysia

The aim of the research is to propose a statutory reform for the right to impart public sector information (PSI) in Malaysia. Malaysia neither have a specific law nor constitutional provisions for the right to information. As former British colony, Malaysia inherits secrecy, sedition, printing and publication laws that impede the exercise of the right. The research conducts a survey involving respondents representing government agency, independent statutory body, civil society and academia. The survey is aimed at finding statutory measures deemed appropriate for statutory reform of the right to impart PSI in Malaysia. Prior to the survey, the research analysed various statutory measures enabling, protecting and promoting the right to impart PSI from selected Commonwealth countries. These statutory analyses become the basis for the development of the survey instrument of the research. The survey instrument covers 11 statutory measures for reform in six critical areas of law i.e. constitutional, secrecy, sedition, publication, whistleblower and evidence laws. The findings of the survey indicate that all 11 statutory measures are deemed appropriate for statutory reform of the right to impart PSI in Malaysia. The findings further indicate that statutory reform is necessary for three colonial era laws i.e. secrecy, sedition and evidence laws. Statutory reform is also found to be necessary for three other post-colonial laws i.e. constitution, publication and whistleblower laws. The findings of the survey have been used as an input in the proposed statutory reform for the right to impart PSI in Malaysia.

Striking Down Victorian-Era Cross-Dressing Law in Public Ban

This review considers how another outdated postcolonial law has been struck down in a former British colony amidst campaigns, global change and action by an appellate court. This follows from the historic 2018 Supreme Court ruling from Trinidad and Tobago in the Jason Jones judgement, in which it was decided that existing laws prohibiting consensual adult intercourse and sexual acts between consenting same-sex adults were unconstitutional. This review adds to that decision to highlight further social and sociolegal change in the region which has direct implications for future challenges to postcolonial laws which are ‘sitting on the books’. My review looks at recent case law which has overturned Guyana’s Victorian-era cross-dressing prohibition, as it relates to 153(1)(xlvii) of the Summary Jurisdiction (Offences) Act of Guyana.

Crisis of the forest community in postcolonial Indian forest policies and laws

ABSTRACTThe paper highlights a crisis of the forest community in contemporary India and its incompatibility for the realization of democratic forest governance, even after the passage of the Forest Rights Act 2006. A discourse analysis of the forestry sector brings forth the permeation of the broader politics in shaping the forest community in the policy and law documents. The article argues that a mere recognition of rights of the forest community does not subvert the colonial legacy of the state–forest community relationship. In fact, the state sees the forest community as static i.e. apolitical and non-changing to maintain its control over the forests, which is evident through a content analysis of the forest policies and laws in India. This results in a myopic view of the forest community and fails to factor in the changing and contested nature of it, further reducing recognition as a one-time effort and not a process.

The Many Faces of the Crown and the Implications for the Future of the New Zealand Constitution

ABSTRACTThe Crown has many faces both in English law and in the colonial and postcolonial law of New Zealand. This short paper identifies some of these distinct manifestations of the Crown and asks whether New Zealand can or should replicate these different conceptions in the event that it were to become a republic. Capturing the existing nuances, including those which have helped make the settlement of reparations claims with Māori possible, would be no small task and would require the invention of a new language of statehood. The paper begins by briefly setting out three core usages of the Crown in English law, discusses how these ideas were modified or attracted distinct nuances in the colonial encounter with Māori, and looks to identify central questions which would arise if a republic were in contemplation.

“That Curious Privilege of Immunity”

This article offers a close reading of Nasser Hussain’s 1989 essay on Salman Rushdie’s 1983 novel Shame in order to propose some thoughts on the basic problematic guiding Hussain’s inquiries into post-colonial law.

Unbalanced bilingualism, diglossia and class division in postcolonial law

AbstractA number of postcolonial jurisdictions function bilingually as a result of policies to open up law to indigenous languages. Planned bilingualism is typical of Asian polities that inherited English-based common law, with Bangladesh, Hong Kong, India, Malaysia, Myanmar and Pakistan all use languages other than English in legal documents and courtroom proceedings. There are also bilingual practices in the hybrid law of Sri Lanka and the Philippines and the civil law of former Portuguese colonies such as Timor Leste and Macao. Bilingualisation typically begins with innovation in the legal lexicon and proceeds to the translation or bilingual drafting of legal texts in order to facilitate use of a second language in litigation and jurisprudence. It may be an interim process ushering in comprehensive vernacularisation, but more often it results in the long-term cohabitation of two or more languages within the legal domain. This study is interested in the implications of such cohabitation for legal practitioners. Focusing primarily on Malaysia while making comparisons with other Asian jurisdictions, it considers the largely political motivations behind language-in-law policies, reviews the process and reception of planning and explores how language choice in legal education may affect career paths. Despite the empowering agendas behind much of the language planning that has gone on, in most cases a balanced bilingual profession remains an elusive goal.

How, Where and for Whom? Interrogating Law's Forms, Locations and Purposes: Inaugural Lecture, Kinggs College London, 28 April 2016

This inaugural lecture, delivered at The Dickson Poon School of Law, King’s College London, on 28 April 2016, followed a day after the official launch symposium of the Transnational Law Institute. While the launch brought to London a selection of legal scholars, anthropologists, political scientists and historians to underscore the multi- and inter-disciplinarity of transnational legal theory through examples of post-colonial historiography, labour law and climate change governance, sex work, trade and corporate responsibility, the lecture focused on what Thomas Nail has called the ‘figure of the migrant’. In reflecting on the precariousness of migrant workers’ lives in a city such as London, notions of ‘home’, ‘belonging’ and ‘membership’ point to the fleeting nature of the human condition. As the European refugee crisis is increasingly seen as a challenge for problem management and emergency administration, it becomes part of global ‘problem solving’, albeit driven by ambiguous motivations and on the basis of selective knowledge. The ‘datafication’, the numerical counting of economic, political, social and even cultural ‘facts’, which finds expression in a seemingly irreversible turn to computable “indicators” creates the illusion of there being a ‘way out’, a ‘right answer’, a ‘promising approach’. Meanwhile, desperate people board hand their and their dependants’ lives to traffickers in order to board unreliable vessels in the hope to arrive in a better, safer place. A place that might never be ‘home’, but one in which lives that were set adrift in the seas of global monetary expansion, ‘structural adjustment’, privatization and foreign direct investment, might be rearranged, re-assembled, for the time being. What can “law” do in this context beyond operationalizing state practice under the labels of ‘refugee’, ‘asylum’ or ‘immigration’ law? Can law serve as a critical lens to transform helplessness into political agency, exploitation into autonomy, despair into collective action?

Choreographic Occultation and Petrification of Meaning: Post-colonial Law and Alternative Subject

Post-colonial law and legal institutions are inscribed in the history of colonial power, its legal epistemology and the ways in which these constructed colonial and consequently post-colonial legal subjects. Employing the concept of choreographic occultation, 1 1 Choreography here refers to a designed management of people or events to effect consent, control and domination. Occultation refers to a designed concealment of intents. However, choreographic occultation as a concept constitutes a deeper meaning as we shall see further in the text. the article examines the ways in which law—as it has evolved over a long span of time—contributes, as an occultating constitutive, crucially in the construction of inverted truth, meaning and subject through an examination of various domains of legal practices such as capital punishment, rule of law, trial and alternative subject formation in post-colonial India. Although the article deals with specific examples from Indian jurisprudence, the general concerns with the colonial/post-colonial legacy of juridical/legal practice and critique of the Western/liberal notion of law as choreographed give it a general focus as well.

The Spirit of the Laws in Mozambique by Juan Obarrio (review)

Juan Obarrio, The Spirit of the Laws in Mozambique. Chicago: University of Chicago Press, 2014. 280 pp.This is an important book not only for Mozambique or Africa, but for any anthropologist concerned with law, politics, sovereignty, and statehood. Engaging the vast canvas of legality, trajectories of state formation, and broader dimensions of sociality in Mozambique, Juan Obarrio oscillates between painting with broad strokes and deploying a more pointillist style. Nevertheless, the book ends comprising a surface that is ethnographically colorful, rich in analytical interpretative possibilities, and reflective of broader contemporary theoretical trends in its literary aesthetic. Simply, Obarrio's book will make a lasting contribution to the of post-colonial law and statehood. There are at least two main reasons why this is so.First, a book entitled The Spirit of the Laws in Mozambique-without any subtitle-necessarily evokes being something of an engagement with the ideas of Montesquieu's classic work, The Spirit of the Laws (L'esprit des lois) (Secondat 1989). Although Montesquieu is only briefly treated in the book, Obarrio nonetheless writes:The of the laws is an image-concept that has constituted the kernel of state sovereignty since early modern times, from its inception in Europe to its dislocated implementation in colonies (and postcolonies) such as Mozambique...Through formulaic rhetoric, theatrical performance, and fetishism, the spirit of the laws reveals the magicality of the mythological genealogies of the state itself. (12)Being a milestone in the development of not only Enlightenment political thought but also shaping legal and political understandings for centuries, Montesquieu's work still attracts considerable scholarly attention revolving around questions of the nature of the state, the division of power, and the essence of sovereignty. It is, therefore, unsurprising that Montesquieu's seminal tome also informs Obarrio's analysis of the complex workings of law and governance in the post-colonial context of Mozambique. However, Obarrio's turn to Montesquieu and the Enlightenment origins of legal thought also mirrors a broader trend in anthropology (and, indeed, the social sciences) in the last few decades, namely the rediscovery of law. For one, this has meant that old classics within the discipline- such as Bronislaw Malinowski's Crime and Custom in Savage Society (1976 [1926]), Henry Sumner Maine's Ancient Law (1963 [1861]), or Max Gluckman's Politics, Law and Ritual in Tribal Society (1967 [1965])-have been revisited in a discipline that seems increasingly to recognize legal orders and practices, and questions of sovereignty, statehood, and justice, as central. One may only mention here the works of Aihwa Ong (2006) or Thomas Blom Hansen and Finn Stepputat (2005) on sovereignty, the contributions made by John and Jean Comaroff (2006) or Benda-Beckmann et al. (2009a, 2009b) to understanding the dynamics of law and the vagaries of justice in settings of dynamic change (e.g., Goldstein 2012) or in increasingly plural legal orders (Sieder and McNeish 2013). Obarrio's work is definitely keeping with such anthropological reorientation and, indeed, running through the entire book is a desire to engage law at all relevant levels: from the swanky offices and air-conditioned workshop locales of Western NGOs operating in Maputo to transform the government and the legal sector (mainly examined in Part I), to the everyday life of justice and law as they are performed, negotiated, and negated in community courts in and around the city of Nampula, Northern Mozambique (mostly presented in Part II). Throughout, law is seen as integral to all aspects of politics and sociality. Such a legal-centric perspective of historical transformations and contemporary perturbations in Mozambique is, as Obarrio demonstrates, highly useful.Second, Obarrio's book is a successful attempt to not only do research from below but also to heed the by-now-classic call to study up (Nader 1974 [1969]); the text moves deftly between such hierarchical levels on analytic, theoretical, and empirical grounds. …

Middle Eastern Law

This article maps Middle Eastern law in some of the thousand plateaus where it operates/operated: Mesopotamian law, Roman provincial law, Islamic law, and post-colonial law, with layers within each, such as Elephantine law in Egypt and Jewish and Christian law in Islam's classical age, as well as new worlds of law, such as Byzantine and Ethiopian law, in which scholarship about interaction with other layers of Middle Eastern law is either inexistent or just starting. The focus is directed as much as possible to the extant documentation in the legal record that most affects people's lives: court decisions. For the modern period, we survey, from the point of view of the legal practitioner, lawyer, or judge, the various bodies of case law and codes in the everyday practice of the Middle East lawyer. A legal family analogous to the common or civil law traditions, Middle Eastern law has emerged as a coherent and active discipline that is increasingly a subject of inquiry for historians, social scientists, and others outside of the legal profession. This article presents the field for more sustained attention from lawyers, judges, and law professors.

Denied love: Same-sex desire, agency and social oppression among African men who engage in same-sex relations

abstract Globally, love is socially constructed as a heterosexual experience (that assumes a heteronormative gender regime). Those who engage in same-sex relations are often denied the right to experience being loved by, and loving, their same-sex partners. In many parts of Africa, this denial is even etched in the national laws, with countries such as Uganda and Nigeria currently seeking to replace the already stringent colonial penal codes with even harsher post-colonial laws geared to erase same-sex desire, and same-sex desiring individuals. In South Africa, while the laws may be affirming of love between people of the same sex, the lived experiences of many same-sex loving individuals are generally negative. These experiences are deliberately and systematically maintained through heteronormativity to deny same-sex love by constructing it as an aberration, an attempt to force those who engage in these relations to internalise and accept this construction. Using the concepts of internalised homophobia and agency, I explore constructions of love by eight African male teachers who engage in same-sex relations. I draw from a life history study which sought to investigate how South African male teachers from rural and township contexts, who engage in same-sex relations, construct their sexual and professional identities. From the data, I show the internal conflicts, as a result of culture and religion, that these men have. I argue that the men both accommodate social norms while simultaneously challenging them. I therefore present same-sex love as complicated, involving the conforming to, and challenging of, social norms.

Post-Colonial Public Law: Are Current Legal Establishments Democratically Illegitimate?

Abstract The extant literature covering indigenous peoples resident on the African continent targets colonial law as an obstacle to the recognition of indigenous rights. Whereas colonial law is argued by a wide body of literature to be archaic and in need of review, this article takes a different route and argues the perspective that colonial law is democratically illegitimate for ordering the population it presides over – specifically in Africa. It is seen, in five case studies, that post-colonial public law structures have not considered the legitimacy of colonial law and have rather modified a variety of constitutional statutes as country contexts dictated. However, the modified statutes are based on an alien theoretical legality, something laden with connotations that hark to older and backward times. It is ultimately argued that the legal structures which underpin ex-colonies in Africa need considerable revision so as to base statutes on African theoretical legality, rather than imperialistic European ones, so as to maximise the law’s democratic legitimacy for both indigenous and non-indigenous Africans.