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Vernacularizing Justice: Age of Consent and a Legal History of the British Empire

Published online by Cambridge University Press:  06 March 2020

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Abstract

This is a commentary on five papers included in a forum on the age of consent on the British Empire

Type
Forum: Regulating Age of Consent in the British Empire
Information
Law and History Review , Volume 38 , Issue 1 , February 2020 , pp. 267 - 279
Copyright
Copyright © the American Society for Legal History, Inc. 2020

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Footnotes

Her book Sex, Law and the Politics of Age: Child Marriage in India is to be published by Cambridge University Press later this year. She thanks all participants in the workshop that generated the set of papers gathered here, and especially the organizers, Kanika Sharma and Laura Lammasniemi, for the invitation to comment on the papers. She also thanks Antoinette Burton for the conversations on these papers, and on other matters over the years.

References

1. The understanding of sexuality as a “dense transfer point of power” comes from Michel Foucault; for reflections on the usefulness of this insight to the study of imperial and colonial history, see Stoler, Ann Laura, Race and the Education of Desire: Foucault's History of Sexuality and the Colonial Order of Things (Durham, NC: Duke University Press, 1995)CrossRefGoogle Scholar.

2. Ballantyne, Tony and Burton, Antoinette, Bodies in Contact: Rethinking Colonial Encounters in World History (Durham, NC: Duke University Press, 2005)CrossRefGoogle Scholar.

3. Bernard Cohn; the insight is variously elaborated on by many scholars who might loosely be associated with the “new imperial history,” broadly defined, such as Catherine Hall, Antoinette Burton, and Ann Laura Stoler.

4. Levine, Philippa, “Sovereignty and Sexuality: Transnational Perspectives on Colonial Age of Consent Legislation,” in Beyond Sovereignty: Britain, Empire and Transnationalism, c. 1860–1950, ed. Grant, Kevin, Levine, Philippa, and Trentmann, Frank (Basingstoke: Palgrave Macmillan, 2007), 17Google Scholar.

5. See Chatterjee, Partha, The Nation and its Fragments (Princeton, NJ: Princeton Unviersity Press, 1993)Google Scholar. For an excellent discussion of colonial codification and the “rule of colonial difference,” see Kolsky, Elizabeth, “Codification and the Rule of Colonial Difference: Criminal Procedure in British India,” Law and History Review 23 (2005): 631–83CrossRefGoogle Scholar.

6. For another discussion on the age of consent with regard to the politics of colonial masculinity and race, see Sinha, Mrinalini, Colonial Masculinity: The ‘Manly Englishman’ and the ‘Effeminate Bengali’ in the Late Nineteenth Century (Manchester: Manchester University Press, 1995)Google Scholar; and Bannerji, Himani, “Age of Consent and Hegemonic Social Reform,” in Gender and Imperialism, ed. Midgeley, Clare (Manchester: Manchester University Press, 1998), 21–44Google Scholar.

7. Pateman, Carole, The Sexual Contract (Cambridge: Polity, 1988)Google Scholar.

8. Levine, “Sovereignty and Sexuality.”

9. For an earlier reading, see Sarkar, Tanika, “A Prehistory of Rights: The Age of Consent Debates in Colonial Bengal,” Feminist Studies 26 (2000): 601–22CrossRefGoogle Scholar.

10. Sarkar presents her argument as a departure from postcolonial feminist scholarship that suggests that “colonial socio-cultural interventions were massive, destructive, and driven by imperial racism and hegemonic western discourses.” For an alternative account of the entwinement of the reach of the colonial state and the power of the Hindu majority, as well as the problems with debating consent as a question about “colonial” versus “Hindu” power, see Pande, Ishita, Sex, Law and the Politics of Age: Child Marriage in India, 1891–1937 (Cambridge: Cambridge University Press, forthcoming 2020)Google Scholar.

11. Levine, “Sovereignty and Sexuality.”

12. Rejecting the “family” as constituting, a priori, a discrete object of analysis, Chatterjee points to the “weight of the present” that keeps us from recognizing that the “family” as a historical and analytical concept has a history, one that is “implicitly borrowed from colonial Western law in the late eighteenth and nineteenth centuries.” Chatterjee, Indrani, Unfamiliar Relations: Family and History in South Asia (New Brunswick, NJ: Rutgers University Press, 2004), 17Google Scholar.

13. Gorham, Deborah, “The ‘Maiden Tribute of Modern Babylon’ Re-Examined: Child Prostitution and the Idea of Childhood in Late-Victorian England,” Victorian Studies 21:3 (1978): 353–79Google Scholar.

14. Robertson, Stephen, “Age of Consent and the Making of Modern Childhood in New York City, 1886–1921,” Journal of Social History 35:4 (2002): 781–98CrossRefGoogle Scholar.

15. Tambe, Ashwini, “The State as Surrogate Parent: Legislating Non-Marital Sex in Colonial India,” Journal of the History of Childhood and Youth 2:3 (2009): 393–427Google Scholar. See also Sheik's article in this issue.

16. For an analysis of cases involving underage victims and/or perpetrators of sexual violence, see Pande, Sex, Law and the Politics of Age.

17. Mehta, Uday Singh, Liberalism and Empire: A Study in Nineteenth-Century British Liberal Thought (Chicago: University of Chicago Press, 1999), 31–32CrossRefGoogle Scholar.

18. For an exemplary use of such sources, see Sharafi, Mitra, Law and Identity in Colonial South Asia: Parsi Legal Culture, 1772–1947 (Cambridge: Cambridge University Press, 2014)CrossRefGoogle Scholar.

19. Darr, Orna Alyagon, Plausible Crime Stories: The Legal History of Sexual Offences in Mandate Palestine (Cambridge: Cambridge University Press, 2019)Google Scholar.

20. Kolsky, Elizabeth, “The Body Evidencing the Crime: Rape on Trial in Colonial India,” Gender and History 22:1 (2010): 109–30CrossRefGoogle Scholar; Kolsky, Elizabeth, “The Rule of Colnial Indifference: Rape on Trial in Early Colonial India,” Journal of Asian Studies 69:4 (2010): 1093–117CrossRefGoogle Scholar.

21. For a discussion on foregrounding age as a category of legal analysis, see Schmidt, James D., “Ends of Innocence: Age as a Mode of Inquiry in Sociolegal Studies,” Law and Social Inquiry 32:4 (2007): 1029–57CrossRefGoogle Scholar. For a discussion of evidence of age, see Binyamin Blum, “Bones of Contention: Skeletal Maturity and Criminal Responsibility in the British Empire” (unpublished manuscript presented at the Law and Society Association [LSA], 2017), and Pande, Ishita, “Power, Knowledge, and the Epistemic Contract on Age: The Case of Colonial India,” American Historical Review, forthcoming 2020Google Scholar.

22. Viswanathan, Gauri, Outside the Fold: Conversion, Modernity, and Belief (Princeton, NJ: Princeton University Press, 1998), 107Google Scholar.

23. Recognizing the western juridical roots of “consent” constitutes but a first step in “provincialing” consent, which would also entail: conceding the inadequacy as well as the indispensability of the concept to the imagination of gender rights; making room for non-secular temporalities of the human (i.e. one not measured by chronological age); and recognizing something uncannily reminiscent of “consent” in terms that cannot be translated as such, and that are best understood as something irreducible to and in excess of it. I am drawing, of course, on Chakrabarty, Dipesh, Provincializing Europe: Postcolonial Thought and Historical Difference (Princeton, NJ: Princeton University Press, 2000)Google Scholar.

24. Chand, Tek, The Child Marriage Restraint Act, 2nd ed. (Delhi: East Punjab Printing House, 1951), 13–14Google Scholar. This text provides an annotated commentary on the Child Marriage Restraint Act of 1929, the first law that sought to regulate child marriages amongst all religious communities in the subcontinent, and cases tried under it in its early years of operation.

25. For but one account of the processes of translation, codification, and adjudication by which the colonial state recreated flexible Islamic legal traditions into a textual body of law, see Kugle, Scott, “Framed, Blamed and Renamed: The Recasting of Islamic Jurisprudence in Colonial South Asia,” Modern Asian Studies 35:2 (2001): 257–313CrossRefGoogle Scholar. On the transnational moves of Islamic law, see Hussin, Iza, The Politics of Islamic Law: Local Elites, Colonial Authority, and the Making of the Muslim State (Chicago: The University of Chicago Press, 2016)CrossRefGoogle Scholar.

26 To simplify a complex legal history: In colonial India, since the late eighteenth century, a bifurcated system of civil law had been put in place whereby natives of India were to be governed by British legal principles in most matters except those deemed to be “religious” matters such as marriage. In these religious matters they were to be governed by what was referred to as their “personal” law, thus denominated as they attached to the person regardless of domicile. Sturman, Rachel, The Government of Social Life in Colonial India: Liberalism, Religious Law, and Women's Rights (Cambridge: Cambridge University Press, 2012), 7CrossRefGoogle Scholar.

27. For other instances of such liberal intervention, and for more on Ameer Ali, see Chatterjee, Nandini, “Law, Culture and History: Amir Ali's Interpretation of Islamic Law,” in Legal Histories of the British Empire: Laws, Engagements and Legacies, ed. Dorsett, Shaunnagh and McLaren, John (London: Routledge, 2014)Google Scholar.

28. For Ameer Ali's attempt to establish this judgment as a precedent, and a detailed discussion of the option of puberty see Ali, Ameer, Outlines of Muhammadan Law (Calcutta: Thacker, Spink and Co., 1929)Google Scholar. For an extended analysis of such cases, see Ishita Pande, Sex, Law and The Politics of Age.

29. The figure of the “human”—so crucial to the social sciences and to our understanding of rights—is grounded in the history of liberal law, as Samera Esmeir powerfully showcases for colonial Egypt; Esmeir, Samera, Juridical Humanity: A Colonial History (Stanford, CA: Stanford University Press, 2012)Google Scholar.