After marriage, the law is the institution that figures most in Western literature: more than the church, bureaucracy, or school. In the West at least, law and literature have been natural rivals and allies. The relationship seems preordained. Lawyers are writers and readers, obsessed with parsing language. Court trials generate compelling narratives based on interpretations of character and action that compete for the allegiance of readers. And interpretation, shaped by a tradition of all that has come before, is at the center of both the law and literary criticism. Law and literature have other affinities, however, only revealed when the European empires transplanted both overseas to the colonies. There both law and literature were Western institutions imposed upon colonial subjects.
To say that the law and literature were instruments of colonization is not to deny that all conquered polities had rules and systems of adjudication that should be called law (or, in the case of India, were called law) and that all people outside Europe had traditions of verbal culture, written and oral, that should be called literature. But the law and literature of the colonizers were foreign institutions that carried an often overwhelming power and authority. A crucial part of decolonization was the appropriation by the colonized of the authority of these systems for themselves.
That the law is a foreign institution is obvious wherever indigenous understandings have tried to engage it. The law imposed by the colonizer, like the institution of literature, is based on writing: on the signature, fine print, the archive, the contract, the act of parliament, and the constitution. It does not know what to do with, say, oral testimony: claims to territory or to authority based on inherited memories. The law assumes private property and shies away from collective property. It protects individuals but does not know respect collectives. It cannot conceive of overlapping sovereignties.
Postcolonial writers have taken the law as a subject almost as frequently as Western writers do, but they always remind us that the law is a foreign and often unjust power. Where the colonized have been minoritized and continue to suffer exclusion, as with indigenous peoples in the Americas or Australia or with the descendants of Africans in the Americas, the law, like the state, belongs to another and must be resisted. But where the colonized have their own states, as in Africa or South Asia, the law has been appropriated. Part of what made the colonized want to appropriate law and literature for themselves is that each of those institutions has an essential link to an abstract ideal that, although inevitably unrealized, nevertheless remains indissociable from the institution. In the case of the law, this extramural virtue is justice; in the case of literature, it is the truth.
The law is not itself justice—literature everywhere constitutes a powerful record of how far the law is from justice—but the law must nevertheless heed when appeals are made to justice. The law of the colonizers has been a bulwark of slavery, colonization, apartheid, patriarchy, and racist oppression, but laws have also been overturned in the name of what the law should be. Justice is the goal invoked by all who would change the law in the name of rights (human, women’s, indigenous, civil). And so we see the phenomenon whereby many, perhaps most, of the heads of state in colonies that achieved independence or majority rule had previously served years in prison. A term in a colonial prison was almost a prerequisite for the highest office at the moment of independence.
Of course, there are rival definitions of justice. Does justice mean equality, and, if so, how is equality defined? Does justice mean recognition and dignity, and, if so, for whom and on what basis? Does justice mean reparation for damages and a restoration of equilibrium? It is no exaggeration to say that each of the articles in this special issue dedicated to law and literature in the postcolony is concerned with a distinct conception of justice.
Almas Khan’s article on the Zong case is about different understandings of reparations. The owners of the notorious slave ship asked for reparations for damages to property. Two hundred and more years later, the poet Marlene Nourbese Philip, a descendant of African slaves in the New World, asks about reparations for the crimes of slavery and murder committed by those same owners. She fiercely mistrusts the law that had ruled that slaves were property, yet must now return to that same law as an archive, seeking to recover the humanity that the law had denied.
Neil ten Kortenaar writes about rival understandings of justice as the means of overcoming the deadly cycles of retributive violence. Is a violent death best answered by compensation, or must the right to revenge be surrendered to the state and its law? What is at stake in ceding a monopoly on legitimate violence to the state? The original establishment of the colonizers’ law was violent, and a systemic violence in the form of the police and prisons was and is needed to maintain the law. How does one balance this institutional violence against the insecurity of physical violence that the law claims to have eliminated?
Taiwo Osinubi writes about competing understandings of emancipation: for some, decolonization meant ridding the country of the colonizer’s disruptive foreign ways and restoring an indigenous order, but for others independence meant emancipation from traditional systems of subordination, and the latter appealed to the colonizer’s law and the understanding of justice that it implied in order to further their demand for equal rights.
At decolonization, new states faced the world with new constitutions. Of course, those constitutions were frequently later shunted aside by coups and dictators, but the longing for a new beginning on new foundations remains strong, and many are the African states that have drafted new constitutions in the last two decades. No constitution is more celebrated than that of South Africa in 1994. Elizabeth Anker explores the ambivalences associated with a constitution, which is utopian and universal—it adheres to universal principles—but also particular: it founds this state. The constitution appears to be a moment outside time: the original foundation is also always ex post facto; the framers posit the law they want to see in the future as the already existing basis for their deliberations.
Postcolonial literature has engaged with the law either by resistance or appropriation. Marlene Nourbese Philip, writing about the continuity of oppression from then till now, denounces the law as the perverted agent of a state belonging to another. Achebe and Gordimer cannot reject the law so wholeheartedly, in spite of what they recognize as its compromised origins, for it supplies the foundations of the new states of which they are citizens.
Literature, like the law, is a powerful institution. Who gets published, who gets read, whose work is taught and circulated—these questions are a function of a system in which the former colonized have had to insert themselves. The power of that system is most obvious if one asks what language writers write in. But the power of literature manifests itself in other ways, including what stories can be told or what constitutes a novel, a poem, a book, or a marketable genre. It is no coincidence that Khan’s article here discusses Philip’s poetry that deliberately subverts genre just as it deconstructs law.
If the law has an asymptotic relation to justice, literature has a similar relation to something called truth. New genres and new literary modes justify themselves by exposing the false frames of their predecessors. Postcolonial literature charges imperialist (and patriarchal and metropolitan) discourses, and the law itself, with obscuring and perverting the truth. Postcolonial literature wants to tell the half that has never been told, to set the record straight, to set the experience of the oppressed against the lie of the powerful.
The claim to tell the truth, to bear witness to pain and injustice, to preserve identity and history, forever challenges the institution of literature. All the articles here about the relation of justice to the law are also about truth’s claims against literature. Philip breaks apart the English language to be faithful to the experience of the drowned. Achebe’s novels are thought experiments that seek to understand the conundrums of political philosophy on the eve of independence. Nadine Gordimer, Ivan Vladislavic, and Zakes Mda write novels about building houses that are allegories at once of drafting constitutions and of writing novels. This special issue of Postcolonial Literary Inquiry clearly suffers from its own ambivalence about the law. It is not, however, ambivalent about literature, whose many powers are here celebrated.
