Contexts of Criminology (original) (raw)
Related papers
This paper dispels the myth of liberal Enlightenment in relation to penal law reforms in colonial India by advancing two sets of argument. First, the liberal project of codification on the basis of universalist notion of utilitarianism never broke with cultural hierarchy inbuilt in the very act of colonisation. In this paper, I specifically look into the emerging phenomenon of evolutionary science in the nineteenth century – social Darwinism – to explain the dominant norma-tive, as opposed to realist, justification of such racial hierarchy in colonial discourses since the nineteenth century. Second, using Dipesh Chakrabarty's theoretical framework, I provincialise the penal law reform project in colonial India through the examination of literature in the field, and substantiate how the notion of utilitarian universality remained vague and unpromising in face of instrumental needs on ground – both in the colony and in the metropolis. Taken together, these propositions dispel the myth of the liberal project of penal law reforms in colonial India based on this universalist position and underscore the fallacies of the transition narrative of modernity itself.
Law, Jurisprudence, and Social Thought: Colonialism, Post-Colonialism, and Legal Theory
PoLAR: Political <html_ent glyph="@lt;" ascii="<"/>html_ent glyph="@amp;" ascii="<html_ent glyph="@amp;" ascii="&"/>"/<html_ent glyph="@gt;" ascii=">"/> Legal Anthropology Review, 1994
Law has played a critical role in the expansion of European colonial control over Africa, Asia, and the Pacific in the last three centuries, leaving a complex legacy in the post-colonial world. Recent scholarship in the anthropology of colonialism considers the ways in which colonizers came to interpret subjugated peoples as "others" in relation to themselves and the ways in which the colonized constructed oppositional and resistant identities. What can we learn about the nature of law from colonial and post-colonial practices? What were the uses of law both in defining the subjugated as lawless and in legitimating colonial rule? How did law in the colonial context rationalize the violence of capitalist expansion? In what ways did colonized groups create their own law in forms of popular justice or reject the law altogether? Case studies will focus on British and American colonialism in Africa, India, and the Pacific.
History and Anthropology, 2023
The British enacted the Criminal Tribes Act in 1871 to control Indian society after the rebellion against colonial rule in 1857. By means of the Act, the British depicted entire communities and groups as hereditary criminalswithout any substantive legal or incriminating evidenceusing the concept of race, used in anthropology and anthropometry, and of caste. They termed the groups 'tribes' instead of 'castes' to evoke qualities of wildness and savagery in a way that the term 'caste' could not. The British also used the Act to term the tribes 'criminal'. In ascribing criminality, they misinterpreted texts, folklore and proverbs, and they relied on the biased advice of upper caste elite native informants. This systematic sociopolitical and legal subjugation stigmatized, ostracized and impoverished many so-called lowercaste and tribal communities. Even 75 years after Independence and denotification of the 'criminal' status, these communities remain outcastes. This paper traces the making of the category of 'criminal tribe' in colonial timesby charting the discourses, practices, processes and legal landmarks that led to the enactment, subsequent amendments and, finally, repeal of the Criminal Tribes Act, 1871and its afterlife in postcolonial India. The paper argues that although the category of 'criminal caste' did exist before colonial times, the British colonialists applied the category of 'tribe' to the criminal castes for rhetorical and administrative purposes, and that the socio-legal construction of criminal tribes happened through a concatenation of contradictory notions that made the label of 'criminal tribe' a patchwork of mutually untenable discourses.
On the Coloniality of Modern Law
The article investigates modern law in its colonial career as it consisted in two paradoxical itineraries. Colonial rule developed under the auspices of governing through modern positive law as it claimed independence from religion and the administration. But the colonies also surfaced as zones of lawlessness, administrative measures, arbitrariness and excessive exceptions. Rather than posit the second itinerary as exceptional to the general first one, notwithstanding how constitutive the exception may be of the rule, this article examines a number of legalities that exemplified these two itineraries in colonial Egypt and theorizes them as co-existing modalities of juridical power that shared similar objectives and fields of intervention. In particular, under historical investigation are legalities that managed agricultural labor through penal/administrative measures. It is argued that these legalities co-existed with positive and liberal legal institutions. Agricultural legalities were “pervasive legalities,” enhancing modern positive law’s production of a gapless legal order that aspired to capture limitless terrains of social life. This legal history reveals that the hallmark of modern colonial law did not consist in substituting a regime of separation of powers and codification for that of pre-colonial fusion or administrative legalities. Rather, the historical achievement of modern law consisted in its “elastic positivism,” that is to say, in wedding positive law to pervasive legalities as both served to dominate the social: the first from the independent terrain of codified law and the second from the material domains of social life. This hallmark of gaplessness and pervasiveness is what made modern law fit for colonial rule.
HPNLU Law Journal, 2022
The tension between access and in-access and the incidence of inclusion and exclusion are rooted in the very structure of social order produced by law. The latter embodies and stands firmly on the conceptual categories evolved in history, culture, and the organizing principles of society. The dominant categories of moral and legal values prevalent in modern India were received from the West during European suzerainty. The reception of law and legal institutions from the Common Law System (CLS) was entrenched in the organised cultural practices and narratives established by the colonial master. The reception fostered a legal system much alien to the plural legal systems prevalent till the time. This paper explores the characteristics of legal pluralism in the pre-colonial India and what impacts the reception of CLS had over them. An attempt has also been made to investigate the question of access to justice in context of legal centralism emerged and evolved in the colonial and the post-colonial India.
Penal Strategies and Political Resistance in Colonial and Independent India
Challenging the Rule(s) of Law: Colonialism, Criminology and Human Rights in India
This paper will explore the discursive practices surrounding specific laws, trials, and the ideology of punishment in colonial and independent India. The purpose is to show how through this matrix of law, court and punishment, the penal system, delineated the exceptional and the extraordinary , and legal and penal practices commensurate with it. In the process of this examination it will attempt to formulate and examine the problematic that (a) penal strategies devised to deal with political resistance are embedded in notions of necessity, which implies suspension of ordinary laws/procedures, (b) the identification of extraordinariness is necessarily determined by reasons of state and given form through legal, juridical and penal measures (c) the extraordinary does not lie at the borders or the limit between politics and law, but the two inextricably inform each other in complex interlocking relationships (d) the process of interlocking involves a reaffirmation of state sovereignty through laws, judicial procedures, and penal structures (e) alongside the process of reaffirmation of the domain of state sovereignty through legal, juridical and penal measures, a corresponding process of de-legitimation of political resistance, struggles, and assertions of popular sovereignty, takes place, through a process of de-politicisation and criminalisation, the use of binary oppositions viz., nationalist-anti-national, violent-peaceful, and the deployment of constitutional/extra-constitutional, legal/extra-legal methods of repression including extrajudicial killings, custodial violence and rape.