Jonathan Ocko and David Gilmartin take two steps forward and one step back in “State, Sovereignty, and the People: A Comparison of the ‘Rule of Law’ in China and India.” The first positive step is the authors' insistence on broadening the study of the “rule of law” to include the analysis of cases outside the “history of Western Europe and Euro-America.” As the authors point out, the “rule of law” has picked up a set of associations from its study within an Anglo-American legal tradition that are not always applicable to or illuminating in other historical contexts. The article expands the comparative framework over a broad period and in two large and complex political formations, nineteenth- and twentieth-century China and India. The second important step forward, less explicitly stated in the article, lies in the authors' joining with other scholars in connecting several strands of scholarly literature, in particular the analysis of “legal imagination” with the study of imperial sovereignty.
I would like to draw attention to an aspect of the authors' approach that limits the potential impact of these moves. Noting the distinction drawn between the “rule of law” and the “rule of man” within legal ideologies, the authors also absorb this separation into their own analytic framework, setting up “state” and “society” as separate realms, and relegating the study of legal institutions to the realm of an “instrumentalist” approach to law. They begin by quoting Paul Kahn's statement that the rule of law should be regarded as “a product of the imagination before it is a product of legislation or judicial acts” (emphasis added). They also cite E. P. Thompson in explaining the rule of law as symbolizing a tension between the imagination of justice and its “instrumental usage.” The authors go on to formulate statements about the relation between “state” and “society” predicated on this separation. They write, for example, of “the impact of the law on the structuring of society” in India, and the “power of the ‘rule of law’ in shaping Indian identity,” pointing the arrow from law to society in such formulations. Finding a less stark distinction between the “rule of law” and the “rule of man” in China, they search for an explanation, coming up with “a deeply rooted set of ideas” and “a distinctively Chinese cultural milieu” under Qing rule that influenced all subsequent formulations of the relation of law and society in China. Both case studies depend upon a framework in which ideology acts on society, and culture informs ideology. Legal practice and the study of institutions are useful only as they illuminate these formative relations.
I am not at all confident that the approach is consistent with Kahn's and Thompson's recommendations. By placing the emphasis on the prior existence of the rule of law in legal imagination as a force standing outside of, and operating as an influence on, lawmaking and legal institutions, the authors seem to opt for a narrow reading of both Kahn and Thompson. Reacting to critics who saw his work as placing too much emphasis on the power of elite legal discourses, Kahn has clarified that his goal is not to separate law from culture and politics but to shine the light of cultural studies on legal elites. He states categorically, “There is no point at which politics is visibly unleashed from law.”Footnote 1 Because all political sides tend “to frame their actions in terms of law's rule,” our object of analysis in studying the rule of law, Kahn writes, should be “the character of experience under belief in the rule of law.”Footnote 2 This statement seems far from the stark separation between the rule of law as a concept and the rule of law as a product of politics. It is also rather close to a reading of Thompson that would highlight his emphasis on the degree to which commoners' belief in the rule of law emanated not from its independent qualities as an ideology but from the logic created by plebeians' own encounters with and knowledge of occasional just outcomes. In many respects, Thompson's perspective is similar to his earlier insistence that we understand “class” not as an objective category but as a category produced through “lived experience.” For Thompson, the “rule of law” was not so much a “concept” as a name for a constellation of relations. Legal politics constituted sovereignty, rather than the other way around.
Ocko and Gilmartin are surely onto something in promoting the comparative study of the different discourses about law as a force outside society. The problem lies in the analysis of the formation of those discourses. Because Ocko and Gilmartin are, after all, basing their descriptions on the work of historians whose object of analysis is the social constitution of law as a field of power and discourse, their emphasis on the “rule of law” as a concept leads them to leave out the more contingent and dynamic aspects of the accounts they draw on. For example, Ocko and Gilmartin write that “the juxtaposition of the rule of law and the rule of men” was a centerpiece of “British rule in India from the start.” But British legal policy was a work in progress, and scholars have shown that an emphasis by Hastings and others on the “principle of government by law” emerged in the late eighteenth century very much as a response to the instabilities and complexities of the plural legal order without fully eclipsing such arrangements or removing the rationales for these structures.Footnote 3 Similarly, the embrace of what Robert Travers calls the “hard view of sovereignty,” which encompassed a clear notion of British legal hegemony, was not immediate but took hold as imperial officials proposed a novel variant of ancient constitutionalism in distinguishing the interests of the imperial state from those of the East India Company.Footnote 4 This strategy arose also in connection with a discourse about the perceived failure of a “softer” sovereignty in the American colonies, and the growing acceptance of the idea of an empire of multiple peoples and even “diversities of Englishness.”Footnote 5 The trend made for what Jennifer Pitts has called Burke's “peculiar universalism,” which combined “a commitment to universal values … with a particularly sensitive appreciation for a variety of cultural forms.”Footnote 6 Taken together, these studies provide a portrait of the rule of law as divided into intellectual currents arising in connection with rival political factions; changing over time, often in direct response to legal conflicts in India; and involving novel constructions of universalism.
The result is a rather different picture from the one drawn by Ocko and Gilmartin, who interpret the literature on status distinctions in India as revealing a British project to associate universalism with British rule and to separate it from the substantive particularities of the Indian “people.” The same scholarly literature can be read as highlighting the ways legal conflicts shaped the interpenetration of discourses about universalism and practices of social categorization. Consider Sir Henry Maine, cited by Ocko and Gilmartin for his representation of customary law “as a cultural realm entirely separate from the procedural realm that defined the state as a rational, rule-bound entity.” Another, subtly different reading of Maine places greater emphasis on his preoccupation with the inevitable erosion of the separation between these realms dictated by legal politics in India. It was this concern that led Maine to argue for “the protection of native society as a prerequisite of the colonial order.”Footnote 7 Maine favored an approach that would not just award certain legal prerogatives to “native” authorities but also enshrine these differences within the “rule of law” by recognizing political fragmentation as an inherent part of imperial sovereignty. His thinking about “divided sovereignty” responded directly to a particular set of persistent political conflicts over the legal authority of Indian princely states.Footnote 8 This extended moment in the construction of the “rule of law” in India appears in a different light, it seems, if we embrace a perspective that emphasizes the shaping of legal ideology in connection with diffuse political and legal conflicts. The approach shifts attention away from the primacy of the rule of law as a “concept” to the contingency of the rule of law as a “construct.” It reveals the ways in which legal politics created the impetus for placing law above politics while also constraining this move and requiring the reconciliation rather than the separation of universalism and particularism.
One begins to wonder, then, what we gain from approaching the “rule of law” as a powerful concept whose “impact” we then trace over the fields of culture and politics. Reversing the elements of analysis proposed by Ocko and Gilmartin seems more promising. That is, the legal and political practices (and, yes, institutions) constituting imperial sovereignty might be seen as shaping discourses about the rule of law, generating a varied set of available narratives about the special virtues and qualities of law in different periods. An advantage of this approach is that it allows us to consider the histories of legal politics and institutional change as more than narratives of “instrumentalism.” As Thompson advocated, we start with the analysis of conflict and trace the production of discourse in the context of political meanings. We avoid any attempt to reify a “cultural milieu” as a formative influence on the legal strategies and perceptions of either imperial agents or subjects. Cultural practice and legal practice merge.
We also find in this approach a link to the broader goal of understanding the place of imperial sovereignty in the global legal order. This objective is mentioned by Ocko and Gilmartin but not fully developed. By beginning rather than ending with the social construction of imperial sovereignty, we start to tell a story for early modern and modern global ordering as a product of a world of empires. The characteristic shared by India and China in the story told here is that both are empires. Both the case studies developed by Ocko and Gilmartin involve the construction of schemata to fit practices of imperial sovereignty within an emerging definition of the international legal community as one founded on nation-state sovereignty as a universal norm.Footnote 9 The impulse simply to define empires as peculiar variants of nation-states foundered precisely because legal politics within empires rendered them as polities of unevenly distributed and perpetually divided rule. Multiple sites of conflict—over jurisdiction, local legal autonomy, and the reach of imperial state edicts—created an array of oddly configured and imprecisely defined legal zones. Ann Stoler has called these spaces “zones of ambiguity,” and I have used the term “anomalous legal zones.”Footnote 10 While not unique to empires, such configurations are more salient in imperial legal histories because of the greater emphasis within imperial rule on the political fragmentation associated with two processes: the constitution of semi-autonomous political communities and the delegation of legal authority. Without discarding Ocko and Gilmartin's insights about the different narratives about the peculiar qualities of law in India and China, we would enhance the story they tell considerably if we could render these complexities of imperial sovereignty as constitutive of the “rule of law.”
Let me give an example of work that I think relies on many of these insights to produce a more nuanced but still original understanding of the “rule of law” in a setting outside the Anglo-American legal tradition. Jane Burbank has shown that Russian peasants, long assumed to be mere receivers of imposed Russian imperial law, engaged actively with local legal institutions and influenced their articulation with Russian imperial law.Footnote 11 Burbank probes the relation between peasants' legal culture and strategies and contemporary elites' portrayals of the nature of Russian imperial “rule of law” and the place within it of “rights.” She makes the interesting argument that rights existed only as prerogatives assigned by the Russian imperial state rather than as properties attached to individuals. This is an argument that could be juxtaposed with Ocko and Gilmartin's comparative analyses of India and China as a third variant of a pattern in which a particular kind of “rights” talk is associated with a distinctive “rule of law” discourse. But Burbank's analysis also goes further. She shows that peasants' strategies and elites' discourse were mutually constitutive, sometimes in uneven and surprising ways. Peasants “sought the assistance of the law from within the regime of estates” and, in the process, they reinforced an “imperial mode of thinking” that associated estate-based distributions of rights with political order.Footnote 12 Because Burbank has peasant legal strategies and perceptions, as well as their institutional context, so clearly in view, she can avoid the common pitfall of characterizing Russian imperial “rule of law” as shaped by the conservative cultural outlook of peasants or the “failure” of a liberal project of extending to them a vision of universal individual rights. Rather than an abstract notion of rights or the “rule of law” as concept, Burbank's object of analysis is “the imperial framework as it existed and the various social imaginaries it nurtured.”Footnote 13 In other words, she shows the relation between legal imagination and sovereignty precisely by studying institutional change at the intersection of discourse and practice.
Perhaps Ocko and Gilmartin will respond that I am advocating only a difference in emphasis rather than a fundamentally different approach. To be convinced, I would want to be reassured that the separation within rule of law discourses of law as a system of rules and law as a medium of power is not being reproduced in the dualisms within their analytic framework. Relegating institutional histories to the realm of an antiquated “instrumentalist” approach will not advance the comparative study of the rule of law. Legal imagination and imperial sovereignty are mutually constitutive on many levels, including and perhaps especially in the production of legal institutions and patterns of legal conflict. It is certainly possible to study comparatively the “rule of law” as a concept, but in doing so we still need to keep our focus on the embeddedness of constructions of the “rule of law” in legal politics and institutional change.
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Jonathan Ocko and David Gilmartin take two steps forward and one step back in “State, Sovereignty, and the People: A Comparison of the ‘Rule of Law’ in China and India.” The first positive step is the authors' insistence on broadening the study of the “rule of law” to include the analysis of cases outside the “history of Western Europe and Euro-America.” As the authors point out, the “rule of law” has picked up a set of associations from its study within an Anglo-American legal tradition that are not always applicable to or illuminating in other historical contexts. The article expands the comparative framework over a broad period and in two large and complex political formations, nineteenth- and twentieth-century China and India. The second important step forward, less explicitly stated in the article, lies in the authors' joining with other scholars in connecting several strands of scholarly literature, in particular the analysis of “legal imagination” with the study of imperial sovereignty.
I would like to draw attention to an aspect of the authors' approach that limits the potential impact of these moves. Noting the distinction drawn between the “rule of law” and the “rule of man” within legal ideologies, the authors also absorb this separation into their own analytic framework, setting up “state” and “society” as separate realms, and relegating the study of legal institutions to the realm of an “instrumentalist” approach to law. They begin by quoting Paul Kahn's statement that the rule of law should be regarded as “a product of the imagination before it is a product of legislation or judicial acts” (emphasis added). They also cite E. P. Thompson in explaining the rule of law as symbolizing a tension between the imagination of justice and its “instrumental usage.” The authors go on to formulate statements about the relation between “state” and “society” predicated on this separation. They write, for example, of “the impact of the law on the structuring of society” in India, and the “power of the ‘rule of law’ in shaping Indian identity,” pointing the arrow from law to society in such formulations. Finding a less stark distinction between the “rule of law” and the “rule of man” in China, they search for an explanation, coming up with “a deeply rooted set of ideas” and “a distinctively Chinese cultural milieu” under Qing rule that influenced all subsequent formulations of the relation of law and society in China. Both case studies depend upon a framework in which ideology acts on society, and culture informs ideology. Legal practice and the study of institutions are useful only as they illuminate these formative relations.
I am not at all confident that the approach is consistent with Kahn's and Thompson's recommendations. By placing the emphasis on the prior existence of the rule of law in legal imagination as a force standing outside of, and operating as an influence on, lawmaking and legal institutions, the authors seem to opt for a narrow reading of both Kahn and Thompson. Reacting to critics who saw his work as placing too much emphasis on the power of elite legal discourses, Kahn has clarified that his goal is not to separate law from culture and politics but to shine the light of cultural studies on legal elites. He states categorically, “There is no point at which politics is visibly unleashed from law.”Footnote 1 Because all political sides tend “to frame their actions in terms of law's rule,” our object of analysis in studying the rule of law, Kahn writes, should be “the character of experience under belief in the rule of law.”Footnote 2 This statement seems far from the stark separation between the rule of law as a concept and the rule of law as a product of politics. It is also rather close to a reading of Thompson that would highlight his emphasis on the degree to which commoners' belief in the rule of law emanated not from its independent qualities as an ideology but from the logic created by plebeians' own encounters with and knowledge of occasional just outcomes. In many respects, Thompson's perspective is similar to his earlier insistence that we understand “class” not as an objective category but as a category produced through “lived experience.” For Thompson, the “rule of law” was not so much a “concept” as a name for a constellation of relations. Legal politics constituted sovereignty, rather than the other way around.
Ocko and Gilmartin are surely onto something in promoting the comparative study of the different discourses about law as a force outside society. The problem lies in the analysis of the formation of those discourses. Because Ocko and Gilmartin are, after all, basing their descriptions on the work of historians whose object of analysis is the social constitution of law as a field of power and discourse, their emphasis on the “rule of law” as a concept leads them to leave out the more contingent and dynamic aspects of the accounts they draw on. For example, Ocko and Gilmartin write that “the juxtaposition of the rule of law and the rule of men” was a centerpiece of “British rule in India from the start.” But British legal policy was a work in progress, and scholars have shown that an emphasis by Hastings and others on the “principle of government by law” emerged in the late eighteenth century very much as a response to the instabilities and complexities of the plural legal order without fully eclipsing such arrangements or removing the rationales for these structures.Footnote 3 Similarly, the embrace of what Robert Travers calls the “hard view of sovereignty,” which encompassed a clear notion of British legal hegemony, was not immediate but took hold as imperial officials proposed a novel variant of ancient constitutionalism in distinguishing the interests of the imperial state from those of the East India Company.Footnote 4 This strategy arose also in connection with a discourse about the perceived failure of a “softer” sovereignty in the American colonies, and the growing acceptance of the idea of an empire of multiple peoples and even “diversities of Englishness.”Footnote 5 The trend made for what Jennifer Pitts has called Burke's “peculiar universalism,” which combined “a commitment to universal values … with a particularly sensitive appreciation for a variety of cultural forms.”Footnote 6 Taken together, these studies provide a portrait of the rule of law as divided into intellectual currents arising in connection with rival political factions; changing over time, often in direct response to legal conflicts in India; and involving novel constructions of universalism.
The result is a rather different picture from the one drawn by Ocko and Gilmartin, who interpret the literature on status distinctions in India as revealing a British project to associate universalism with British rule and to separate it from the substantive particularities of the Indian “people.” The same scholarly literature can be read as highlighting the ways legal conflicts shaped the interpenetration of discourses about universalism and practices of social categorization. Consider Sir Henry Maine, cited by Ocko and Gilmartin for his representation of customary law “as a cultural realm entirely separate from the procedural realm that defined the state as a rational, rule-bound entity.” Another, subtly different reading of Maine places greater emphasis on his preoccupation with the inevitable erosion of the separation between these realms dictated by legal politics in India. It was this concern that led Maine to argue for “the protection of native society as a prerequisite of the colonial order.”Footnote 7 Maine favored an approach that would not just award certain legal prerogatives to “native” authorities but also enshrine these differences within the “rule of law” by recognizing political fragmentation as an inherent part of imperial sovereignty. His thinking about “divided sovereignty” responded directly to a particular set of persistent political conflicts over the legal authority of Indian princely states.Footnote 8 This extended moment in the construction of the “rule of law” in India appears in a different light, it seems, if we embrace a perspective that emphasizes the shaping of legal ideology in connection with diffuse political and legal conflicts. The approach shifts attention away from the primacy of the rule of law as a “concept” to the contingency of the rule of law as a “construct.” It reveals the ways in which legal politics created the impetus for placing law above politics while also constraining this move and requiring the reconciliation rather than the separation of universalism and particularism.
One begins to wonder, then, what we gain from approaching the “rule of law” as a powerful concept whose “impact” we then trace over the fields of culture and politics. Reversing the elements of analysis proposed by Ocko and Gilmartin seems more promising. That is, the legal and political practices (and, yes, institutions) constituting imperial sovereignty might be seen as shaping discourses about the rule of law, generating a varied set of available narratives about the special virtues and qualities of law in different periods. An advantage of this approach is that it allows us to consider the histories of legal politics and institutional change as more than narratives of “instrumentalism.” As Thompson advocated, we start with the analysis of conflict and trace the production of discourse in the context of political meanings. We avoid any attempt to reify a “cultural milieu” as a formative influence on the legal strategies and perceptions of either imperial agents or subjects. Cultural practice and legal practice merge.
We also find in this approach a link to the broader goal of understanding the place of imperial sovereignty in the global legal order. This objective is mentioned by Ocko and Gilmartin but not fully developed. By beginning rather than ending with the social construction of imperial sovereignty, we start to tell a story for early modern and modern global ordering as a product of a world of empires. The characteristic shared by India and China in the story told here is that both are empires. Both the case studies developed by Ocko and Gilmartin involve the construction of schemata to fit practices of imperial sovereignty within an emerging definition of the international legal community as one founded on nation-state sovereignty as a universal norm.Footnote 9 The impulse simply to define empires as peculiar variants of nation-states foundered precisely because legal politics within empires rendered them as polities of unevenly distributed and perpetually divided rule. Multiple sites of conflict—over jurisdiction, local legal autonomy, and the reach of imperial state edicts—created an array of oddly configured and imprecisely defined legal zones. Ann Stoler has called these spaces “zones of ambiguity,” and I have used the term “anomalous legal zones.”Footnote 10 While not unique to empires, such configurations are more salient in imperial legal histories because of the greater emphasis within imperial rule on the political fragmentation associated with two processes: the constitution of semi-autonomous political communities and the delegation of legal authority. Without discarding Ocko and Gilmartin's insights about the different narratives about the peculiar qualities of law in India and China, we would enhance the story they tell considerably if we could render these complexities of imperial sovereignty as constitutive of the “rule of law.”
Let me give an example of work that I think relies on many of these insights to produce a more nuanced but still original understanding of the “rule of law” in a setting outside the Anglo-American legal tradition. Jane Burbank has shown that Russian peasants, long assumed to be mere receivers of imposed Russian imperial law, engaged actively with local legal institutions and influenced their articulation with Russian imperial law.Footnote 11 Burbank probes the relation between peasants' legal culture and strategies and contemporary elites' portrayals of the nature of Russian imperial “rule of law” and the place within it of “rights.” She makes the interesting argument that rights existed only as prerogatives assigned by the Russian imperial state rather than as properties attached to individuals. This is an argument that could be juxtaposed with Ocko and Gilmartin's comparative analyses of India and China as a third variant of a pattern in which a particular kind of “rights” talk is associated with a distinctive “rule of law” discourse. But Burbank's analysis also goes further. She shows that peasants' strategies and elites' discourse were mutually constitutive, sometimes in uneven and surprising ways. Peasants “sought the assistance of the law from within the regime of estates” and, in the process, they reinforced an “imperial mode of thinking” that associated estate-based distributions of rights with political order.Footnote 12 Because Burbank has peasant legal strategies and perceptions, as well as their institutional context, so clearly in view, she can avoid the common pitfall of characterizing Russian imperial “rule of law” as shaped by the conservative cultural outlook of peasants or the “failure” of a liberal project of extending to them a vision of universal individual rights. Rather than an abstract notion of rights or the “rule of law” as concept, Burbank's object of analysis is “the imperial framework as it existed and the various social imaginaries it nurtured.”Footnote 13 In other words, she shows the relation between legal imagination and sovereignty precisely by studying institutional change at the intersection of discourse and practice.
Perhaps Ocko and Gilmartin will respond that I am advocating only a difference in emphasis rather than a fundamentally different approach. To be convinced, I would want to be reassured that the separation within rule of law discourses of law as a system of rules and law as a medium of power is not being reproduced in the dualisms within their analytic framework. Relegating institutional histories to the realm of an antiquated “instrumentalist” approach will not advance the comparative study of the rule of law. Legal imagination and imperial sovereignty are mutually constitutive on many levels, including and perhaps especially in the production of legal institutions and patterns of legal conflict. It is certainly possible to study comparatively the “rule of law” as a concept, but in doing so we still need to keep our focus on the embeddedness of constructions of the “rule of law” in legal politics and institutional change.