A Figure in the Law and the Archive: Samera Esmeir & the Making of Juridical Humanity

A Figure in Law and the Archive: Samera Esmeir and the Makingof <em xmlns:m="http://www.w3.org/1998/Math/MathML" xmlns:mml="http://www.w3.org/1998/Math/MathML"xmlns:xlink="http://www.w3.org/1999/xlink">Juridical Humanity

Genevieve Renard Painter

Qui Parle: Critical Humanities and Social Sciences, Volume 22, Number1, Fall/Winter 2013, pp. 235-247 (Article)

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A Figure in Law and the ArchiveSamera Esmeir and the Making of Juridical Humanity

genevieve renard painter

A review of Samera Esmeir, Juridical Humanity: A Colonial History (Palo Alto: Stanford University Press, 2012). Cited in the text as JH.

Juridical Humanity is a book about Egypt, the British occupa-tion, persons, and law that makes a path- breaking contribution to critical theory, history, legal anthropology, and colonial studies. Samera Esmeir’s fi rst book illustrates the rich rewards of the inter-disciplinary, humanistic study of law. Esmeir’s theory provides an important new defi nition of the “human,” while the book’s meth-ods perform a new approach to “archival research” and law.

By asking “What is the relationship between modern law and the human, and what was the colonial career of this relationship?” (JH, 1), Esmeir challenges anticolonial theory’s claim that coloni-zation’s greatest harm is its dehumanization of colonial subjects, and its remedy their rehumanization through the conferring of le-gal rights (JH, 8). To the contrary, Esmeir shows that the colonial state “attempted to juridically humanize the colonized, and in so doing . . . revealed how humanity came to be thought of as some-thing that could be confi scated or allocated” (JH, 8). Colonization “chained the human to the juridical and worked to foreclose oth-er scenarios for the human” (JH, 9). Although colonial law pro-claimed itself as the vanquisher of despotic government, it legalized

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and institutionalized certain forms and territorial distributions of violence. By distinguishing between permissible and impermissible suffering and pain, the law claimed the power to decide on the presence or the absence of the human.

Introducing Juridical Humanity

Esmeir focuses on Egypt under British occupation, from 1882 to 1936. By the mid- nineteenth century, the Ottoman Empire held a tenuous grasp on Egypt. The reign of Isma’il Pasha and his son Tawfi q inaugurated a period of increasing Anglo- French inter-vention. A rebellion aimed at ending foreign infl uence and over-throwing the khedival state began in 1881, led by Ahmad ‘Urabi. In retaliation, the British military conquered and occupied Egypt. Backed by the occupying British army, Khedive Tawfi q was re-stored to power as head of a puppet regime (JH, 36). With coloni-zation came a rupture of the legal system. Legal reforms replaced the Ottoman- khedival order grounded in Islamic law with modern positive law, established secular national courts, and codifi ed penal and civil law according to the French model (JH, 21). The occupiers quickly declared the humanity of all subjects, even the most vulner-able, the most criminalized, and the most rebellious. Reforms tar-geted conditions associated with khedival rules: reformers banned the use of the whip against peasants, fi xed the taxes that peasants were required to pay, monitored the work of rural administrators, and regulated forced labor (JH, 89). Other reforms ameliorated prison conditions and sentencing, criminalized animal cruelty, and changed agricultural policy and criminal law to enjoin peasants into fi ghting a devastating cotton worm invasion (JH, 185). Co-lonial administrators sold the large tracts of land that previously belonged to the khedive, transferring formerly state- run land to private landowners. The state intervened in these estates in only two areas: agricultural state policy on irrigation and cotton, and rural criminal activity (JH, 219). Instances of rebellion to colonial rule inspired controversial legal innovation by the colonial authori-ties, including special tribunals, martial law, and criminal proba-tion without trial (JH, 258– 79).

Painter: Law and the Archive 237

The human appears in modern positive law in three ways: the human, as opposed to the divine or the universal, is argued to be the source of modern law; the human is the teleological end of law (a manifestation of the idea that humanity is an end in itself); and the human is incorporated into law through the institution of legal personality (JH, 73). Esmeir’s book explains how the juridical hu-man emerges from modern positive law’s engagement with suffer-ing, temporality, and violence.

Juridical humanity puts pain and suffering to use. The British colonization of Egypt brought a wave of reforms to prevent cru-elty to peasants, prisoners, and animals. The task of law was to defi ne productive, proportionate suffering in order that it could be legalized. Suffering seen to be beyond the limits of law signaled the dehumanization of its victims and agents alike. Suffering was located on the side of the inhuman. To become human was to be freed from useless suffering.

Juridical humanity came with a particular temporality and re-quired a break with a cyclical past and a submission to the evolu-tionary movement of history, understood as a progression toward modernity (JH, 84). Colonial law not only asserted that time began at occupation but also claimed to change the understanding of time itself. The inscription of progress as a temporal move toward civi-lization created the terror of being trapped in the past with all its backward, undeveloped fi gures— the animal, the un- emancipated woman, and the slave. Where once the animal had been the hu-man’s ontological other, now the animal became a reminder of un- actualized humanity.

The narrative of progress and the instrumentalization of suf-fering illuminate British offi cials’ astonishing solicitude for peas-ants, prisoners, and animals. Consider a colonial administrator’s concern that forced labor rendered “the condition of the peasant one of almost unparalleled poverty and wretchedness” (JH, 155, citing a Mr. F. S. Clarke). Before and after Britain’s reforms regu-lating forced labor, the same person’s labor was exploited on the Nile bridges. If a colonial decree had made him human, what had he been the day before? For Arendt, this rightless creature was the mere human, his bare life a result of a want of citizenship, his mere


humanity the cause of his lot as disposable, bestial, and primitive (JH, 93). Esmeir inverts this account. The human is not the fi gure outside of law but rather the fi gure left inside of law after the inhu-man has been expelled: “the human is the excess that remains in the law, and is therefore produced by it, after the expulsion of ex-ploitative practices that the law has declared inhuman— that is to say, that the human is that which the law has not named, or has yet to name, inhuman” (JH, 91). By drawing a line between illegitimate and legitimate violence, colonial law brought the colonized into the category of the human.

The book begins, like a legal decision, with the positive law. It rediscovers the struggles of jurists to bridge the two legal worlds of the Ottoman- khedival order based on the Sharia and the new Western positive law. Egyptian jurists wrote treatises in attempts to make sense of the legal reforms. Esmeir plumbs the depth of the colonial project’s forcible elimination of other legal traditions, which infl icted, in addition to all the other forms of violence, a deep rupture of Egypt’s account of time. Positive law sought to erase the trace of the khedival past, positioning itself as the start of legal time. Whereas time had once been seen as a concept that knit together past, present, and future, under colonial law it was in-strumentalized. The past had to validate the present, and the pres-ent had to augur a modern, civilized future. To interpret this legal event, jurists attempted to reconfi gure Egypt’s relationship to its past, now sundered from modern colonial time.

British colonial law attended to the pain of peasants, prisoners, and animals: “Humans and animals made a joint appearance be-cause they metamorphosed into bodies suffering useless pain while awaiting their redemption by a political project that would put pain to use” (JH, 134). Colonial law regulated forms of punish-ment, classifying offenses and allotting proportional punishments. Reforms about animal cruelty protected animals by calculating productive and reproductive labor— pain was acceptable provided it did not harm an animal’s use- value. Criminal sanctions aimed to teach peasants to become human by abstaining from inhumane treatment of nonhumans (JH, 130). Learning to be human required learning to distinguish between humane and inhumane cruelty


(JH, 112). Humanity was thus not a status but an experience that would come into being by properly measuring, administering, and using pain toward an end (JH, 142).

Just as colonial law operated at the boundary between the hu-man and inhuman, it also stood at the interface between the hu-man and nature. When insects attacked cotton fi elds, threatening the cultivation of cotton for world markets, Britain waged a legal and scientifi c war with seemingly contradictory policies. On the one hand, colonial law announced peasants’ emancipation from suffering, through the prohibition of whipping and the regula-tion of forced labor. On the other hand, the battle against the cot-ton worms could only be won with peasant labor. The “juridical human” conceptually unwinds this contradiction. The peasants’ failures in fi ghting cotton worms became symptoms of their pre-modern state, in which man, fl ora, and fauna all had to submit to nature’s will. The path toward modernity— and thus toward humanity— would be achieved by teaching peasants how to master nature (JH, 183). Peasants were not to be forced to pick worms off plants but instead were to freely engage in this activity (JH, 153). Using their lauded rights to contract in a free market, peasants would both fi ght nature’s scourge and achieve full actualization as juridical humans.

Colonial liberal legality, consonant with liberal legalism as a whole, disavowed irrational violence, but it did not jettison force. The ban on whipping applied to state offi cials but not private land-owners. Peasants were freed from the state’s violence, only to ap-pear in the private sphere, open to all the tenderness and violence of the market. Force operated always instrumentally, in private contracts (the labor contracts into which peasants “freely” entered) and in criminal law (the state’s lawful dispensing of violence).

Colonialism held out its bloodless, abstract, and principled rule of law against the terrorizing, arbitrary, and fact- driven rule of the khedive. Esmeir counters the theory that zones of colonial violence were states of legal exception in which the rule of law had failed to expel violence. Colonial rule of law legalized and regulated sov-ereignty’s enduring violence by organizing violence spatially. The privatization of large estates released peasants from the khedival


legal order only to rebind them in legalities constituted and ex-ecuted by private owners. The transfer of the khedives’ extensive property holdings into private hands left peasants with little formal relationship to the state. Khedival- era violence continued under the sign of private, rather than state, law. The colonial state was a map of plural legal systems, not by dint of failure but by design.

Estates were one of the multiple legalities constituting colonial sovereign power (JH, 231). The state entered the estate to locate no-torious criminals, investigate cases of murder, and police agricul-tural policy (JH, 219). The state chose to see unproductive violence, and it left the violence of labor exploitation unseen and unregu-lated. Both the assertion and disavowal of jurisdiction are mani-festations of liberal sovereignty. The rule of law, neither suspended nor ejected from the estate, lived at the interface between the state and the estate (JH, 227). The legally plural space of colonialism was populated by a pluralized juridical human— one designed both to suffer and to be relieved from suffering.

Paralleling her argument about the co- constitution of the state and the estate, Esmeir argues that colonial law required both the factual and the exceptional in order to prove that colonization offered everyone the comforting embrace of the rule of law (JH, 243). Political rebels had to be cast out into the exceptional space of the military trial in order for ordinary Egyptians to be human-ized through their encounter with state law. British colonial offi -cials insisted that the trial of ‘Urabi, leader of the rebellion against Khedive Tawfi q, be conducted under the rule of law’s scrupulous gaze. But when confronting threats from rebels, bandits, people who killed soldiers, and other political revolutionaries, Britain dis-pensed justice in military tribunals, special commissions, and mar-tial law, sites that exceeded ordinary juridical order.

This duality between the ordinary and the exceptional rested on a further duality, between the factual and the ideal. Political trials were mired in factuality; ordinary justice proceeded under the lodestar of ideals of rule of law. The human, as an idealized subject, lived on the side of ordinary justice; the rebel, with all his contingent political demands, lived on the side of the exception (JH, 244). The purging of the political criminal by the operation of the


distinction between fact and ideal was an anguishing struggle for offi cials. For example, in response to the problem of banditry, colo-nial offi cials drew up lists of potential bandits, tried these individu-als in summary fashion, and exiled them. The procedure strayed so widely from the rule of law that it attracted strong criticism from British offi cials and parliamentarians (JH, 280). The gap between the messy, fact- driven violence of political repression and the ide-als of humanity fueled the futile campaign to purify the rule of law as an abstract ideal. Outrage, shame, and regret coursed through the British administration because the rule of law was heralded as a pure ideal. The human included within the state opposed itself to the rebel exiled from the state, thus cementing further the bond between the state’s law and the human (JH, 284).

The Archive and the Law

As Foucault observed, the archive is “fi rst the law of what can be said, the system that governs the appearance of statements as unique events.”1 The archive does not emerge fully formed but is rather created by political, cultural, and socioeconomic pressures. Even before it endures scholarly analysis, the archive interprets, rather than mirrors, the past. The colonial context of Egypt of-fers proof of this contingent genesis. The British colonial archive teems with cataloged and indexed documents, letters, dates, peo-ple, numbers, and diagrams. The Egyptian national archive is, in contrast, a catalog of omissions, erasures, and silences, and the ar-chive of the legal consciousness of the Egyptian peasant or jurist is barer still. Esmeir’s work invites questions about the nature of the archive, its relation to legal history, and the performative effects of scholarly activity.

The evidence amassed for this work speaks to the benefi ts of a multi- sited, multi- disciplinary, and multi- linguistic approach to the archive. The book’s archival breadth is impressive, covering both English- and Arabic- language sources from the period of British oc-cupation. This required meticulous and nimble work. To develop her arguments about British colonial policy, Esmeir studied parlia-mentary records, notes from cabinet meetings, and correspondence


between government offi cials alongside evidence gleaned from memoirs of colonial offi cials and personal correspondence. To ad-dress questions implicating nongovernmental actors, Esmeir stud-ied the minutes of international congresses on cotton, the archives of manufacturers’ associations, and the memoirs of expatriates liv-ing in Egypt. Confronting the question of Egyptian jurists’ reaction to the encounter with British colonial law, Esmeir combed through used bookstores for nineteenth- century legal textbooks, as these texts are not held in Egypt’s libraries. As the archival record about life on the estates is thin, Esmeir scanned fi lms, novels, social his-tory, and a small collection of criminal cases about private estates. This book could not have been written without hundreds of hours of sustained, patient collaboration between scholar and librarian.

An archive represents a nested series of decisions and accidents about what to record, what to keep, and what to discard. The his-torian is just the most recent agent in a procession of decision mak-ers. If the archive is the product of the embodied work of the ar-chivist and historian, this raises questions about what subjects and silences archives produce, what ways they are refracted through the identities of the archivist, and what debt they owe to disciplinary boundaries.2 In constructing the book’s archival foundation, Esmeir selected texts for their force and their potential for critique. Many choices were not hers, ranging from offi cial policies about what archives she could enter to the vagaries of the used book market.

Decisions, happenstance, and personal identity undergird the empirical foundation of the book. Dwelling on the facticity of the book’s archive opens a door for other scholars and other archives. Juridical Humanity offers a provocative theoretical framework that could be explored using other research methods and sources. Scholars of colonialism have reached across disciplinary boundar-ies to construct the archive. For example, there is only fl eeting doc-umentary evidence of the undeclared affections coursing through-out colonial relations. But, Ann Stoler argues, these relationships can be confi rmed in literature, a site that captures “sensibilities, sentiments, and states of distress that remain outside our history writing.”3 How could other disciplinary approaches add to Es-meir’s theoretical contribution? The silence about legality on the


estates and peasant mentalities might also be studied through an archive of a sample of Egyptian poems, fi ction, children’s stories, songs, oral tradition, and representations in art. A content analysis of newspapers or interviews with the grandchildren of people who lived on the estates might also be illuminating. Social historians of agrarian societies have mined all of these sources for insights on peasant life.4

State archives and legal texts were the products of colonial law, but so too was the lacuna in the archive about the Egyptian experi-ence of colonization (JH, 224). Up to this point, it seems true that the “archive is a discursive formation in the totalizing sense that it refl ects the categories and operations of the state itself.”5 But Esmeir’s book shows that while archives were of and for the state, the state does not solely occupy the fi eld of archival possibility. Though they may be hard to fi nd or they may require reading into the silences, the historical record is peopled by other texts, traces, and practices.

Nicholas Dirks claims that the colonial archive was “the reposi-tory of the sources for an imperial history whose public was in the metropole rather than the colony” (“aa,” 63), implying that the archive must be read to succeed in communicating the past to the present. But read by whom? The book suggests what could happen when an unintended audience reads the colonial archive alongside and against other texts. An attention to the researcher as, herself, a shaper of the archive decenters the colonial state’s power in creat-ing the archive.

The archival turn gripped scholars across fi elds, enriching politi-cal and epistemological debates about the place of truth in history. New ways of reading the archive bolstered an interpretive or nar-rative approach to history which asserted that a “real” past was beyond retrieval.6 The movement to pluralize the sources of history even made inroads in jurisprudence, as suggested by the admission of oral history as evidence in indigenous rights claims against set-tler governments.7 Legal historians contributed through a body of scholarship situating the common law in its historical context. This was an iconoclastic move for scholars of the common law, a legal tradition that lives in a time outside of historical time. But though


all this historicizing may have lanced law’s timelessness, it did not arrive at its logical conclusion: the release of law’s epistemological hold on truth.8

Law’s relation to the archive helps to explain this timidity, de-spite the fact that legal scholars, in a break from their usual pro-lixity, have been largely mute on the law’s archive.9 Law generates documents, selects among them, decides on their relevance, and, in doing so, constitutes itself (“la,” 341). The law is found in its fi les and documents and in their use in legal reasoning. Its authority is grounded in and emerges from its archive (“la,” 351). The law is not in, alongside, or drawn from the archive— it is the archive. If the law is the archive, it follows that, like the archive, the law has a contingent and iterative origin and that it represents, rather than mirrors, its history.

Can the common law cope with the archival turn? Read as a project about law as archive, Esmeir’s book demonstrates why the common law both rests on an account of history- as- truth and in-vents it. Colonization seems to violate the common law’s episte-mology. It requires the erasure of precolonial legality and a dec-laration of authority, all without documentary proof— precisely because such evidence does not yet exist. The British common law performs a continual reference to what it says came before, in or-der “to maintain the relevance of its own history to the present and future” (“la,” 354). This is why colonization must rupture time and start again. The common law cannot come to the time of past, present, or future, but must create these temporal divisions. By folding time and history into the law, Esmeir’s account of colo-nial Egypt shows the co- constitution of law and the archive.

The problem can be made to run in the other direction as well, as Cornelia Vismann has demonstrated. The history of law is writ-ten through decisions about transmitting, storing, canceling, ma-nipulating, and destroying fi les. Law functions through the organi-zation of data about rules and events into fi les that in turn control the formalization of the law, so that “A new way of binding or of writing things down, a change in the way data are collected, affects the legal framework.”10 Instead of seeing the fi le as the law’s inert repository, the law may be an effect of the fi le. Inverting cause and


effect raises questions about what Esmeir and other legal histori-ans are doing when they attempt to “read between the lines” of the legal archive. Is this “doing history,” or “doing law”? Is Esmeir’s juridical human a fi gure that populates a legal landscape, or a his-torical one?

The book unfolds through a multi- perspectival exposition of the birth and career of the juridical human. The constant refrain of its thesis couples with a metronomic writing style, in which a pairing of affi rmations and negations, questions and counterargu-ments, provides the beat of sentences, paragraphs, and chapters. It is a tightly embracing book. But it also includes a lot of wide- open space in its tracing of paths not taken and in its insistence on the incompleteness of colonial sovereign power. For example, Esmeir’s detailed rendering of Britain’s response to political violence expos-es the many hesitations in the colonial architecture. Her portrayal of the interactions among British offi cials in Egypt, Egyptian of-fi cials, and diplomats in London and the range of legal and policy documents they interpreted erodes the reifi ed fi gure of “The Law” and shows how colonial decisions came from real people interact-ing with texts and one another. Neither power nor its others are hegemonic in this account.

The book’s method similarly refuses completeness. Esmeir ana-lyzes some seminal Egyptian jurists, but not all of them; she gives a close reading of a few criminal cases, not an account of their totality. In this she might keep company with the anthropologist, content with an excess of sources, rather than with the historian, seeking to exhaust a fi nitude of sources.11 For the anthropologist, selection begins when data are generated by observing and writing fi eld notes. Esmeir’s construction of the archive could be interpret-ed as an anthropological move. Her interpretation of the archive, too, evokes a mode of inquiry of reading beyond the fi eld notes for the backdrop of meanings, contexts, and realities.

In her narrative of the juridical human, Esmeir bears witness to the loss of “a different relation to the human and another ex-perience of nature, history, and violence” (JH, 5). But this loss is only partial. The juridical human could never fully erase its prehu-man history or the ethics, ontologies, mythologies, and ways of life


that predated colonialism. For example, in examining one Egyp-tian jurist’s defense of Sharia and his articulation of a legal theory grounded in both colonial and precolonial law, Esmeir shows how he keeps alive the remnants of an account of time not bound to modernity’s temporality (JH, 64).

In its recovery of alternatives, the book will resonate beyond the scholarly fi eld of Egyptian history. It may fi nd particular fellow-ship with scholarship on settler colonialism and its investigation of Western accounts of sovereignty as assertions of normative, not merely territorial, domination. The power of law’s web of meaning rests in its closing off of imagination about legitimate alternatives. Indigenous challenges, for instance, dispute Western sovereignty’s “story as a story.”12 For counternarratives to Western sovereignty to work, there must be room— in texts, spaces, and practices— to think beyond sovereignty.

Esmeir gestures to these alternatives, reminding us that they lasted even in the face of practices and philosophies of governance that declared themselves to be comprehensively world- making (JH, 286). Faced with the book’s explanation of the chains binding the human to the power and violence of modern state law, a critical reader might reasonably conclude that we cannot write our way to freedom in the language of rights. Esmeir denies us the comfort of a normative claim about the merits of rights or their alternatives. Yet pointing at alternatives incites a normative reading, particular-ly during a historical moment in which neoliberal capitalist power operates by stipulating that there are no alternatives. Juridical Hu-manity’s retrieval of the continued existence of alternatives during colonial Egypt suggests, to today’s reader, that other worlds and other ways of life are not just possible, but already here.

Notes

1. Michel Foucault, The Archaeology of Knowledge and the Discourse of Language (New York: Pantheon, 1972), 128– 29.

2. Antoinette Burton, “Introduction: Archive Fever, Archive Stories,” in Archive Stories: Facts, Fictions and the Writing of History, ed. Antoi-nette Burton, (Durham: Duke University Press, 2005), 9.


3. Ann Laura Stoler, Carnal Knowledge and Imperial Power: Race and the Intimate in Colonial Rule (Berkeley: University of California Press, 2002), 12.

4. James C. Scott and Nina Bhatt, eds., Agrarian Studies: Synthetic Work at the Cutting Edge (New Haven: Yale University Press, 2001).

5. Nicholas Dirks, “Annals of the Archive: Ethnographic Notes on the Sources of History,” in From the Margins: Historical Anthropolo-gy and Its Futures, ed. Brian Keith Axel (Durham: Duke University Press, 2002), 58– 59. Hereafter cited as “aa.”

6. Geoff Eley, “Is All the World a Text? From Social History to the History of Society Two Decades Later,” in The Historic Turn in the Human Sciences, ed. Terrence McDonald (Ann Arbor: University of Michigan Press, 1996), 215.

7. See, for instance, R. v. Van der Peet, [1996] 2 scr 507; Delgamuukw v. British Columbia, [1997] 3 scr 1010; John Borrows, “Listening for Change: The Courts and Oral Tradition,” Osgoode Hall Law Journal 39 (2001): 1.

8. Kunal Madhukar Parker, Common Law, History, and Democracy in America, 1790– 1900: Legal Thought before Modernism (Cam-bridge: Cambridge University Press, 2011).

9. Renisa Mawani, “Law’s Archive,” Annual Review of Law and Social Science 8, no. 1 (December 2012): 340. Hereafter cited as “la.”

10. Cornelia Vismann, Files: Law and Media Technology, trans. Geof-frey Winthrop- Young (Palo Alto: Stanford University Press, 2008), xiii.

11. Kunal Parker, “Thinking inside the Box: A Historian among the An-thropologists,” Law and Society Review 38, no. 4 (December 2004): 852.

12. Gordon Christie, “Indigeneity and Sovereignty in Canada’s Far North,” South Atlantic Quarterly 110, no. 2 (Spring 2011): 340.

A Figure in the Law and the Archive: Samera Esmeir & the Making of Juridical Humanity

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