Session 138: Criminalizing Tradition, Legalizing Modernity? Law, Custom, and Modernity in Colonial and Postcolonial Asia

Organizer: Ronald K. Frank, Pace University

Chair: Magnus Fiskesjö, Museum of Far Eastern Antiquities, Stockholm

Discussants: Magnus Fiskesjö, Museum of Far Eastern Antiquities, Stockholm; Chris Lundry, Arizona State University

This panel explores the relationship between custom and law in a variety of Asian societies that were or are undergoing a process of modernization. "Modernization" in Asia normally included the imposition of a Western legal system on societies with long-standing indigenous legal traditions. In this context, "modernization" appears to have been partially defined as selective criminalization of existing custom. Yet the framers of modern legal systems normally felt compelled to at least acknowledge the validity of some aspects of customary law. In exploring the relationship between statute, custom, and modernity in different historical and geographical settings the panel seeks to collectively pose the following questions: To what extent is the way in which diverse traditional societies deal with the challenges of legal modernization comparable? How is judicial practice affected by the interplay of custom and statute? In what way are constructs of class, ethnicity, and gender altered by the introduction of legal standards from outside? DenOtter focuses on colonial India, arguing that indigenous practices were indeed incorporated into nineteenth-century legislative efforts. Frank proposes that the very concept of custom underwent a profound change in 1870s Japan. Ma uses bigamy cases adjudicated in 1920s Beijing as an illustration of the conflicts between legislative ideal and social reality. Khan analyzes the complex issues of Islamic ideology and modern legislation in Pakistan. Lundry argues that local practices of conflict solution have proven their validity in the aftermath of the violence in East Timor. Together, the presenters hope to shed some new light on questions of tradition and modernity from the point of view of legal history.

Civilizing through Legal Change: Law, Custom and Colonial Rule in India

Sandra DenOtter, Queen’s University

One of the central dilemmas of colonial lawmaking in South Asia was the relationship between new legal structures and existing customs and traditions. I trace in this paper the intersection between indigenous customary law and the utilitarian ambition to frame codes of law for India which dominated colonial legal administration from the early 1830s to the 1870s. Inspired in part by Benthamite and liberal ideas of simple, impartial, and expeditious law, its proponents described the codes as a radical experiment in civilizing India through legal change. Rather than describing this as the triumph of utilitarian theory developed in the metropole, I argue that even these ambitious plans to translate Indian customary law into legal codes incorporated vast areas of indigenous law and practice. Moreover, indigenous groups compelled the colonial state to frame codes of law in response to their demands. The ambition to create codes of law also highlights the interplay between metropolitan ideologies and those local constraints and pressures which circumscribed the autonomy of legislators to frame law according to a theoretical template. While based on archival sources and published primary sources, the paper will throughout refer to current historical research on law and judicial administration, connecting this work with broader themes in the historiography of the subcontinent.

Evil Practices of the Past: Rethinking and Reconfiguring "Custom" and "Statute" in Meiji Japan

Ronald K. Frank, Pace University

Customary law played a significant role in early Meiji judicial practice. The Ministry of Justice issued a series of directives over the course of the 1870s specifying the meaning and usage of "custom." At the same time, the very concept of "good custom" changed considerably. A case in point was the effective criminalization of such practices as long-term indentured service or debt slavery by declaring them "unethical." Although in the traditional legal system of Japan law and ethics had been closely intertwined, the definition of "good morals" in legal terms by a government dedicated to a modernization program would have far-reaching consequences.

Based primarily on edicts and opinions issued by the Ministry of Justice the paper seeks to trace the process of redefining private and public law in the years leading up to the Civil Code Controversy of the early 1890s. It argues that early legal policies of the Meiji government, oscillating between embracing and outlawing customary practices, effectively changed the meaning of "custom" as a legal concept. Furthermore, the gradual expansion of the sphere of public law and the accompanying redefinition of that term itself served as a precondition for the implementation of universally applicable statutes in later years.

Bigamy, Wedding Customs, and the Civil Code in Republican Beijing

Zhao Ma, Johns Hopkins University

Common matrimonial customs, like riding a sedan chair, hiring drummers and musicians, bowing to Heaven and Earth, and inviting relatives to a banquet remained popular in early Republican Beijing, yet officials and social elites often attacked them as backward and superstitious customs that needed reforming. The new civil code was partially designed to marginalize conventional rituals. However, judges were less than enthusiastic in enforcing the new civil code. They, on the one hand, could not afford to disregard the law designed to make China "modern" and "civilized"; on the other hand, judges were concerned with other social problems—geographical mobility, economic distress, and the practice of informal divorce and separation. To count on the existing wedding customs was the only feasible way to control the fluid pattern of marriage. Judges, therefore, managed to reinterpret matrimonial customs in a new legal vocabulary.

The Republican civil code is often acclaimed as an example of liberal legislation and therefore many of its provisions were incompatible with social reality. It posed a problem in the actual adjudication that judges had to enforce the law while making it less conflicting with the social reality. A closer look at the adjudication of bigamy cases illustrates how Republican judges managed to meet the multiple demands of legislative ideal, reform agenda, social reality, and the concern of actual management.

Islamization vs. Modernization of Laws: Pakistan’s Complex of Contradictions

Abdul Karim Khan, University of Hawaii, Manoa

Ever since its foundation in 1947 on Islamic ideology, Pakistan has been caught up in a complex of contradictions that still continues to confuse the course of state legislation. Pakistan seeks its future in the past of Islam’s glorious and golden age, and to move forward it goes backward out its existing socio-economic and political problems.

The secular vs. religious parties’ agendas rather than crystallizing the issues have confounded the problems that rather speak of the ethnic, class and gender divisions that bedevil state and society in Pakistan. Pakistanis are divided over questions such as "Is Islam a solution or a problem?" and/or "Has the solution become a problem?"

This paper seeks to understand the role of Islam in Pakistan’s quest for modernity in the realms of issues related to class, ethnicity and, especially, gender. It focuses on Pakistan’s declaration of Qadyanis or Ahmadis as non-Muslims in the 1970s; Pakistan’s promulgation of the Hadood (Islamic Punishment) Ordinance of the 1980s, Blasphemy, and Adultery Laws of 1990s; and Pakistan’s present struggle with problems of honor killings and ethno-religious suicide bombings, and other major human rights violations.

The paper also looks at popular demands for the Talibanization of society, especially, in Pakistan’s North-West Frontier Province where a coalition of pro-Taliban/Al-Qaida religious parties has come to power, and the some of the Sharia (Islamic) laws it has legislated so far either in conformity or contravention of Pashtunwali, or the Pashtun code of conduct.

The Restorative Process of Indigenous Justice in East Timor: Local Practice and Pragmatism as an End to the Cycle of Militia Violence

Chris Lundry, Arizona State University

As the United Nations began consolidating its rule following the 1999 referendum in East Timor and its aftermath, the question arose of how to deal with returning militia members who had fled to West Timor, but were gradually returning with other refugees. The UNTAET administration refused to acknowledge Lisan, a traditional dispute resolution mechanism, and instead argued for a Western style judiciary in order to try militia members and determine their culpability in the violence that followed the vote for independence. UN officials argued that the indigenous practice was too informal, inconsistent, and included practices that could be considered antithetical to international human rights norms, such as coerced labor. East Timorese argued that Lisan was an integral part of their culture, and argued that the lack of legal professionals coupled with the lack of judicial infrastructure would mean it could be decades before all of the cases were tried. Eventually the United Nations came to accept Lisan under its Commission for Reception, Truth, and Reconciliation, although those suspected of more serious crimes are referred to the Serious Crimes Unit. The process has proven remarkably successful, and there has been little violence directed toward former militia members returning to East Timor. The paper argues that law is culturally embedded, and that the West, rather than imposing its view on others, has much to learn from these practices. This echoes advocates of the restorative justice movement, who examine indigenous practices in an attempt to incorporate aspects into Western criminology.