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Theorising the informant: the epistemic space of Bengal and the codification of Hindu law 1772-1800 Dodson, Michael S. 1998

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Theorising the Informant: The Epistemic Space of Bengal and the Codification of Hindu Law 1772-1800 by  Michael S. Dodson B . A . , S i m o n Fraser University, 1992  a thesis submitted i n partial fulfilment o f the requirements for the degree o f  Master of Arts in  The Faculty of Graduate Studies Department of Asian Studies  W e accept this thesis as c o n f o r m i n g to the required standard:  T h e University o f B r i t i s h C o l u m b i a August, 1998 © M i c h a e l S. D o d s o n , 1998  In presenting this thesis degree  at the  in partial fulfilment  of the  requirements  University of British Columbia, I agree that the  for an advanced  Library shall make it  freely available for reference and study. I further agree that permission for extensive copying of this thesis for scholarly purposes department  or  by  his  or  her  may be granted  representatives.  It  is  by the head of my  understood  that  copying  or  publication of this thesis for financial gain shall not be allowed without my written permission.  Department The University of British Columbia Vancouver, Canada  DE-6 (2/88)  Abstract  This thesis attempts to interpret the events surrounding the codification and implementation of Hindu law in late eighteenth century Bengal, under the government of the East India Company. The first chapter provides the necessary framework of historical facts for this interpretation; it consists primarily of a narrative of events such as the implementation of structural changes to the judicature, and the collection and translation of "laws" from the Hindu normative treatises, the dharmasastra, in Company sponsored legal digests. The second chapter provides the basic theoretical framework through which these events are interpreted, by first discussing the utilisation of discourse theory by Edward Said in Orientalism, and then by considering subsequent refinements to his approach. I argue for a conception of epistemic space as constituted by objects of knowledge, variously inscribed by divergent discourses. Further, each discourse is seen to be connected with non-discursive factors through the enunciation of individual members of various knowledge communities. Two separate and competing discourses are then described, the first wielded by orientalists and East India Company officials, in a justification of Company rule in India, and the second deployed by Hindu pandits in the compilation of dharmasastra nibandhas. Each discourse is seen to be derived in large part from pre-existing philosophical frameworks peculiar to the members of these two different knowledge communities. The legal, colonial discourse of the orientalists is informed largely by notions of "civil society" and "civil justice," while the "traditional" discourse of the pandits is influenced principally by the philosophical methodologies of mvmdmsa and nyaya, and the concept of dharma. Utilising the concept of "hybridity" as developed by Homi Bhabha, I argue that the pandits of late eighteenth century Bengal refused the demands of colonial discourse, and thereby colonialism itself, by not accepting the "civilise-ational" requirements it imposed upon the legal project.  in  Table of Contents  Abstract  ii  Table of Contents  iii  Acknowledgements  iv  Note on Orthography  v  Introduction  1  Chapter One  Context: Judicial Plans and Hindu Legal Digests  9  Chapter Two  Mapping the Epistemic Space  43  Chapter Three The Figure of the Informant  80  PostFace  113  Bibliography  117  IV  Acknowledgements  I want to acknowledge here the kind financial support of the Goel Family Charitable Foundation and the Faculty of Graduate Studies. Without the financial support generously provided by the Goel family, I would not have been financially able to complete this degree. Thanks in this regard are also due to the Department of Asian Studies and the Faculty of Arts, who provided me with both monetary prizes and a teaching assistantship in my second year. The ideas in this thesis have been helped along enormously by the contributions of my professors, all of whom are either affiliated with the Department of Asian Studies or the Department of Religious Studies. I would like to thank specifically Larry Preston, my thesis supervisor, for taking a chance on someone who had misspelled "devandgaft" on his application for graduate school. As well, Mandakranta Bose, Harjot Oberoi, Ken Bryant, Ashok Aklujkar, Joshua Mostow and Sharalyn Orbaugh deserve recognition and thanks for their individual criticisms, suggestions and unfailing encouragement. I feel very fortunate to have been able to learn from all of them. Thanks are also due to Tanya Boughtflower for her friendship and proof reading skills, and to Chris Bayly for his helpfulness and encouragement. Finally, I must thank my family for their support and their patience, especially my parents Jo-Anne and Robin. None of this would have been possible, however, without the seemingly inexhaustible support and understanding of my wife Tanja.  V  Note on Orthography  A l l words from Sanskrit or Hindi, including Persian loan words, appear in the text at their first occurrence in italics with proper diacritical marks, as well as inriagarT.Sanskrit words will also appear with appropriate nominative case endings in the nagarT. Thereafter, such words appear in the text in italics only, without diacritical marks. For example, in the first instance: dharmasdstra (SIWIW), and thereafter: dharmasastra. Further, the names of Sanskrit texts will appear in a similar fashion, although these names will not be capitalised. The Sanskrit names of individuals, however, will always appear capitalised, with appropriate diacritical marks, and not italicised. For example, Jagannatha Tarkapaficanana will always appear in the text in this way.  c  1  Introduction  I am now at the ancient university of Nadeya, where I hope to learn the rudiments of that venerable and interesting language which was once vernacular in all India. Sir William Jones, 8 Sept. 1785 letter to Patrick Russell th  1  The settler makes history and is conscious of making it. 2  Frantz Fanon, The Wretched of the Earth The late eighteenth century in Bengal is a period of transition and change. The role of the East India Company in Bengal developed from one dominated by mercantile interests and activities to being the effective government; politico-administrative structures were altered in the transition from rule by the navdb ( ' m ) to rule by the Company; "traditional" educational institutions and methods of knowledge transmission were institutionalised or abandoned; and the cultural meaningfulness of textual traditions/Was forever altered. This period has been described by Bernard Cohn as a "formative period" in British India, during which time the British constructed a system of rule through the appropriation of Indian forms of knowledge. The production of language grammars, legal codes, and the translation of religious texts under the auspices of the British East India Company is thought by Cohn to have served to establish the discourse of Orientalism, and thereby converted Indian forms of knowledge into European objects:  1  2  W. Jones to P. Russell, letter #416 in The Letters of Sir William Jones, in 2 Volumes, G. Cannon (ed.), (Oxford: Oxford University Press, 1970), Vol. II, p. 680. F. Fanon, The Wretched of the Earth, C. Farrington (trans.), (New York: Grove Press, 1963), p. 51.  2 -3  objects which proved instrumental in the rule and domination of India. Cohn is certainly warranted in identifying the late eighteenth century in Bengal as a period of "formation," though it might equally be characterised of as an era of "trans-formation" and "deformation," as the implements of rule were often fashioned from a modification of existing indigenous forms of knowledge and institutional practices. Conn's use of the terms "formation," "construction" and "appropriation," however, points to a conception of a unilateral epistemic process, one in which the British possess the means, the access and the power to wholly construct resultant knowledges and discourses. Betraying a Saidian bent, for Cohn knowledge is thought to derive from (and hence contribute to) a singular discourse, constructed monologically. Though publication of Edward Said's Orientalism* in 1978 has acted as a catalyst to two decades of academic debate over the formative processes of "Western" knowledge about the "Orient," and the uses to which that knowledge was/is put in the domination and subordination of societies-thus-known through Western imperialism and colonialism, Said's work has been criticised for his formulation of Orientalism as a singular, monolithic discourse, as well as for his ahistorical approach to the paradigmatic texts of Orientalism! The shortcomings of Said's approach in Orientalism have highlighted the 5  need for more subtle and responsive theoretical approaches to the study of Orientalist or  3  4 5  B.S. Cohn, "The Command of Language and the Language of Command" reprinted in Colonialism and its Forms ofKnowledge, (Princeton: Princeton University Press, 1996), pp. 20-21. See also "Law and the Colonial State in India" reprinted in the same volume. Further references to the latter article, however, will be from its original printing in History and Power in the Study ofLaw: New Directions in Legal Anthropology, J. Starr & J.F. Collier, (eds.), (Ithaca & London: Cornell University Press, 1989). E.W. Said, Orientalism, (New York: Vintage Books, 1979). See, for example, J. Clifford, "On Orientalism" reprinted in The Predicament of Culture, (Cambridge, Mass.: Harvard University Press, 1988); A. Ahmad, "Orientalism and After: Ambivalence and Metropolitan Location in the Work of Edward Said" reprinted in In Theory: Classes, Nations, Literatures, (Oxford: Oxford University Press, 1992); D. Porter, "Orientalism and its Problems" in The Politics of Theory, (F. Barker et al, eds.), (Colchester: University of Essex, 1983); and R. Young,  3 colonial discourses. As well, critiques of Orientalism have emphasised the need for contextualising histories of knowledge in a highly specific manner, in order that the relationships between knowledge, political institutions, historical contexts, and people with divergent degrees of personal and political power, may be further elucidated, and made more meaningful for historical explanation. This thesis attempts to formulate, therefore, a responsive conception of the epistemic space of Bengal during the late eighteenth century, and the process of epistemic formation within that space, by interrogating, in particular, the codification of Hindu law and its transformation from the branch of Sanskrit normative literature known as the dharmasastra  (SJWTWT),  which might be translated literally as the "science of virtuous  behaviour." This is an especially salient topic for consideration, for, as Said has observed, legal scholarship represents an important aspect of the nexus between knowledge of the Orient and political power over it. As we shall see, the servants of the 6  East India Company considered a thorough understanding of the indigenous forms of judicature in Bengal to be vital to their ability to collect taxation revenue, and hence, their ability to effectively govern the territory. I argue in the second chapter that Said's conception of epistemic space constituted by a singular discourse is inadequate, and instead advocate a more sophisticated and complex theoretical conception of the "discursive terrain" as constituted by numerous 7  competing and divergent discourses. In so doing, the sole power of the coloniser to produce representation, and hence knowledge and authority, is denied by opening up  6  "Disorienting Orientalism" in White Mythologies, Writing History and the West, (London: Routledge, 1990). See, for example, Said's discussion of Sir William Jones, in Orientalism, pp. 77-79.  4  positions of resistance in any given epistemic space. In addition, this devising of a multiply discursive terrain permits a theoretical conception of the historical subject as multiply inscribed by divergent discourses. As such, the historical actor who participates in the formation of discourse remains undetermined by any singular discursive description, also allowing for readings of resistance to the dictates of any particular colonial discourse. Moreover, I argue for a further development to Foucault's conception of discourse, namely that discursive formations be brought into an influential relationship with non-discursive factors such as economics, gender, and political institutions; that is, an influential relationship in which discourse and non-discursive factors are seen to act upon one another in formative and deformative processes. This conception would thereby render discourse theory a more powerful tool in historical analysis. The processes of epistemic formation—the construction of epistemic objects through discourse—are rarely documented in historical texts. The remainder of this thesis' second chapter, as well as the third chapter, examine the relationships of late eighteenth century British scholars/administrators (orientalists) to their indigenous 8  informants—Indian scholars, here primarily Hindu pandits (<ifer:/ tfer)—and their contributions to the resultant epistemic formations. This is an area of enquiry which has  7  8  Term used by L. Lowe, Critical Terrains: British and French Orientalisms, (Ithaca: Cornell University Press, 1991). See especially Chapter 1, "Discourse and Heterogeneity: Situating Orientalism." We must distinguish, at the outset, the terms "orientalist" and "Orientalist." I use the term "orientalist" not in the Saidian sense here, but in its late eighteenth, early nineteenth century sense of a "scholar interested in the Orient." This distinction becomes especially important in the 1830's, as the debate over the form and content of indigenous education in India raged between "orientalists" on the one side, who favoured Indian language education, and the "anglicists," such as Macaulay, who favoured English language education in India, for Said's notion of the Orientalist perhaps betterfitsthe later nineteenth century "anglicist." Further, to equate the term "orientalist" with Said's notion of the "Orientalist" is to characterise these eighteenth century scholars as purveyors of the Orientalism discourse, without first questioning whether, in fact, there was not heterogeneity among these scholars in their representations of the Orient. Further, such a move would gloss a whole series of important issues, accepting as a first principle Said's characterisation of "Oriental knowledge," as wielded by imperial powers, from its construction to the present day.  received relatively little attention in the study of colonial discourses, perhaps due to the paucity of primary source material available on these informants. Recent articles which are purported to be about Indian scholars during the late eighteenth century, inevitably end up summarising the texts which that scholar compiled or authored at the instance of the British, that scholar's career in British service, and/or that scholar's treachery and corruption in the eyes of the imperial employer. The primary sources with which this 9  thesis deals include the letters of Sir William Jones, collected and edited by Garland Cannon; the British indological scholarship of William Jones and Francis Wilford, including Wilford's series of essays on Puranic geography published in the official journal of the Asiatic Society; as well as the legal codes, both in Sanskrit and the English translation, compiled by Hindu pandits in the employ of the East India Company. I argue that when a theoretically rigorous approach is applied to these few primary sources, the result is an enhanced understanding of both the processes of the formation of knowledge about India, as well as the agency of Indian providers of knowledge in that construction. This approach is one in which the actors—both Indian and British, and each situated within varying personal political, economic and social contexts—involved in the construction of epistemic formations are conceived as participating in a dialogue which is co-constructed within a varying matrix of power relations. Rather than assuming at the outset a simplistic model of colonial domination and Indian resistance, this thesis attempts to approach the construction of knowledge about India in the emerging colonial space of late eighteenth century Bengal as the result of a "series of creative and critical  9  See, for example, R. Rocher: "The Career of Radhakanta Tarkavagisa, an Eighteenth-Century Pandit in British Employ" in Journal of the American Oriental Society, 109, pp. 627-633. A more theoretically astute attempt is R. Rocher, "Weaving Knowledge: Sir William Jones and Indian Pandits" in Objects of Enquiry, G. Cannon & K.R. Brine, (eds.), (New York: New York University Press, 1995).  6  debates taking place in an emerging public sphere," within what Mary Louise Pratt has 10  termed the "contact zone," an arena of the colonial encounter traversed by asymmetrical power relationships. The concept of the "contact zone" has proven to be useful for it foregrounds the "interactive, improvisational dimensions of colonial encounters" while reminding us that relationships between the coloniser and the colonised are marked by "copresence, interaction, interlocking understandings and practices, asymmetrical relations of power."  11  often  within radically  Indeed, by questioning the processes by which  knowledge is constructed in this context, ultimately, the existence of the discourse of Orientalism in this period, as formulated by Said, is brought into doubt. I suggest that while the East India Company physically conquered the geographical space of Bengal in the late eighteenth century, they did not conquer its epistemic space. C.A. Bayly has recently argued that the existence of two general models of "intellectual genealogy" employed by recent scholars on the topic of the construction of knowledge by orientalists about their surroundings in India, has resulted, generally speaking, in two types of scholarship. One of these tends to overestimate the influence of notable European metropolitan thinkers associated with deism and the Scottish Enlightenment, discounting the formative power of "day-to-day collisions" with India. Conversely, the other unduly underplays the influence of British intellectual vogue, as  i well as the intellectual foundations of the European study of history, focusing instead on  10  11  C.A. Bayly, "Orientalists, Informants and Critics in Banaras, 1790-1860" unpublished manuscript, originally presented at "Reciprocal Perceptions of Different Cultures in South Asia" in Bonn, December 15-19, 1996, and forthcoming in a volume edited by J. Malik at Oxford University Press, New Delhi, p. 2-  M.L. Pratt, Imperial Eyes. Travel Writing and Transculturation, (London: Routledge, 1992), p. 7, emphasis added. Also, M.L. Pratt, "Linguistic Utopias" in The Linguistics of Writing: Arguments Between Language and Writing, N. Fabb, D. Attridge, A. Durant and C. MacCabe (eds.), (Manchester: Manchester University Press, 1987).  7 broad stereotypes of caste and religion, as "imagined" by the British.  In order to take  into account Bayly's insights regarding the influence of intellectual trends, this thesis therefore also attempts to offer, in addition to an analysis of the codification of Hindu law based upon a theoretical conception of the dialogic production of discourse, a closer examination of the "intellectual baggage" of dialogic agents. This might include, for example, the British preoccupation with original, authoritative text as representative of "pure," originary knowledge, or the Hindu pandit's predilection for memorisation and the abstract logical reasoning of nydya (^rnr:). Finally, the issues considered herein speak to a number of current historiographical debates. The first and most obvious is the debate over the ability of the historian or theorist to retrieve any measure of subaltern subjectivity in dominant, colonial portrayals of the colonised. For instance, Gayatri Chakravorty Spivak has described the codification and translation of the Sanskrit dharmasastra into a Hindu "legal code," to be an exemplary instance of "epistemic violence."  13  That is, the  codification of "Hindu law" was part and parcel of the heterogeneous imperial project to constitute the colonial subject as the absolute Other to the colonising Self.  14  Spivak  argues that colonial discourse objectifies the colonised to such a degree that it is impossible to retrieve any measure of voice or agency on behalf of the colonised subject: the Other's historical subjectivity has been obliterated by colonial discourse. I argue that it is possible to read the actions of Hindu pandits in such a manner which contradicts the representations of dominant colonial discourse, thereby undermining Spivak's declaration  12  13  14  C A . Bayly, "Orientalists, Informants and Critics in Banaras, 1790-1860," pp. 1-2.  G.C. Spivak, "Can the Subaltern Speak," reprinted in Colonial Discourse and Post-Colonial Theory, P. Williams & L. Chrisman, (eds.), (New York: Columbia University Press, 1994), see pp. 76-79. Spivak, "Can the Subaltern Speak," p. 76.  8 that, in this instance, the elite, brahmana (WT^FT:) subaltern cannot speak. In addition, through a consideration of the agents—both Indian and British—-involved in the reordering of the epistemic space of Bengal under British imperialism, the arguments in this thesis speak directly to the charge of "revisionist history" that has been laid against Chris Bayly, David Washbrook, Frank Perlin and Burton Stein by Partha Chatterjee. In a recent book, Chatterjee describes the historical analyses of these few scholars as "revisionist" on account of their conception of the regime of the East India Company as a continuation in form of prior, indigenous regimes. The consequence of such an approach is the conception of Indians as active (collaborative) agents, rather than passive bystanders, in the colonial conquest of India.  15  Yet by employing the theoretical  framework here developed along with those primary sources either authored by, or authored about, the pandit informant, one is better able to read resistance, on the part of the informant, to the dictates of a colonial discourse of conquest. The first chapter of this thesis now proceeds to provide the basic groundwork for / these discussions, by providing some of the historical details surrounding the codification of Hindu law in the late eighteenth century, beginning with the drafting of the 1772 Plan for the Administration of Justice in Bengal.  15  P. Chatterjee, The Nation and its Fragments, (Delhi: Oxford University Press, 1997), pp. 27-34.  9  Chapter 1 Context: judicial plans and Hindu legal digests  / -  Preface  This first chapter is intended primarily to provide historical context for the analysis contained in the second and third chapters. In providing this historical context in the form of an historical narrative, however, one should bear in mind the observation of Frantz Fanon, quoted at the beginning of the introduction to this thesis, in which he draws attention not only to the conscious process of "making history," but to the political imperatives which impel such constructions. Any such historical narrative is, by its 1  nature as a series of statements purporting to relate historical "fact," constructed, and therefore, does not always admit a detailed examination of the processes which give rise to those events which are related. Instead, historical narratives tend to present themselves as authoritative, and additionally, the events are portrayed as "natural," or as is often the case in the historiography surrounding the life and work of Sir William Jones, as born  1  The full quote is: "The settler makes history and is conscious of making it. And because he constantly refers to the history of his mother country, he clearly indicates that he himself is the extension of that mother country. Thus the history which he writes is not the history of the country which he plunders but the history of his own nation in regard to all that she skims off, all that she violates and starves." F. Fanon, The Wretched of the Earth, C. Farrington, (trans.), (New York: Grove Press, 1963), p. 51. Young states that Fanon reacts in this passage to Sartre's conception of men as the self-conscious agents who create history, as developed in the Critique of Dialectical Reason. For if this conception is applied to a colonial context, one in which it is the coloniser who possesses the power to write history, then the "objects of history," the colonised, are "condemned to immobility and silence." See R. Young, White Mythologies, Writing History and the West, (London: Routledge, 1990), p. 120. Fanon's next paragraph reads: "The immobility to which the native is condemned can only be called in question if the native decides to put an end to the history of colonisation—the history of pillage—and to bring into existence the history of the nation—the history of decolonisation."  10 from the well-intentioned and singular genius of an individual. As Foucault has cautioned in his study of "the modern soul on trial," Discipline and Punish, such narratives risk presenting, for example, "a change in the collective sensibility, an increase in humanization or the development of the human sciences to emerge as a massive, external, inert and primary fact."  There are two inter-related processes which are  described in this chapter: the establishment by the East India Company and the British government of the physical machinery—the judicature—for the imposition of civil justice upon the native inhabitants of Bengal, and the codification of Hindu "laws" into two Hindu legal digests, the regular imposition of which were thought to constitute that civil "justice." Following Foucault's caution, the events in this narrative should not be read as "natural," or as "inert, primary facts," but rather as a familiarisation. These events will then be analysed in greater depth in the following two chapters, by relating them to the networks of power, discourse and knowledge which impelled them, and which they in turn also impelled.  2  3  Examples of this sort of historical analysis are too numerous to consider in any detail. Some obvious examples apart from standard imperial history, such as H.H. Dodwell's Cambridge History of India on "British India," include R.W. Lariviere's recent article "Justices and Panditas: Some Ironies in Contemporary Readings of the Hindu Legal Past," in The Journal ofAsian Studies, 48, no. 4, (November, 1989), pp. 757-769, in which he portrays the British codification of Hindu law as "wellintentioned" and "innocent," dismissing without due consideration the relationship of this legal codification to the phenomenon of imperialism. Additionally, despite his exhaustive research into the life, work, and writings of Sir William Jones, Garland Cannon continues to portray Jones in the most favourable of lights, painting him as a scholar and saint, devoted to Oriental scholarship for its own sake, and universally well-loved by the Indians with whom he dealt. See particularly G. Cannon, The Life and Mind of Oriental Jones, (Cambridge: Cambridge University Press, 1990). M . Foucault, Discipline and Punish, the Birth of the Prison, A. Sheridan, (trans.), (New York: Vintage Books, 1995 reprint), p. 23.  11  II - The historical context of the codification ofHindu law On August 15, 1772, President Warren Hastings and the Council at Fort William drafted 4  "The Plan for the Administration of Justice," which, as part of the administrative restructuring of the East India Company, provided for the establishment of courts of law, both civil and criminal, in each district, or sarkar (*K+I<) of Bengal, as well as a supreme civil court, the sadar divdni addlat (^x <I=IM1 srcracf) at Calcutta. This was an important 5  matter for the East India Company administration, for the British considered that their capacity to extract taxation revenue from Bengal was dependent upon the speedy and regular execution of civil justice. The implementation of the Judicial Plan also marks an important juncture in the relationship of the British to Bengal, for it represents an early procedural, administrative change constructed upon an emerging understanding of the nature of Indian society. The extent to which the implementation of the Judicial Plan represented a shift in the practical apparatus for the administration of justice in Bengal,  4  5  Briefly, the East India Company's senior level of administration in Bengal, as well as in the presidencies of Fort St. George (Madras) and Bombay, consisted of, prior to the Regulating Act of 1773, a president (or governor) and a council of ten to sixteen members. A simple majority of votes was required to make decisions. Additionally, the directors of the Company allowed for a Select Committee of three to six members at Fort William (Calcutta) from 1756 onwards, whose duty it was to deal with sensitive political and military matters. This system was susceptible to corruption, however, and Warren Hastings lobbied the directors for administrative change. This change came in the form of the Regulating Act of 1773, which concentrated political and military power in the hands of the Governor General and Council (consisting of four members) of the supreme government of British India (including Bengal and the. presidencies of Fort St. George and Bombay). Warren Hastings, then, was President of Fort William from 1772 to 1773, and afterwards, was Governor General of British territories in India. As Misra has noted, the Regulating Act of 1773 constitutes a significant landmark in the transformation of the Company's commercial Council system into a political government, for it laid the foundation of a central administration and instituted a system of parliamentary control. See B.B.Misra, The Central Administration of the East India Company, 1773-1834, (Manchester: Manchester University Press, 1959), pp. 17-20. Misra, The Central Administration of the East India Company, pp. 230-232. The Plan for the Administration of Justice can be found extracted from the 15 August, 1772 proceedings of the Committee of Circuit, in "The Seventh Reportfromthe Committee of Secrecy appointed to enquire into the State of the East India Company," dated 6* May, 1773, Great Britain, House of Commons, Reports from Committees of the House of Commons, 1715-1801. Volume IV, pp. 348-351. th  12 however, can be gleaned from this extract from the proceedings of the Committee of the Circuit, dated 28 July, 1772: th  In effect all authority and command will rest with the Board of Revenue; all appeals for justice from the provincial courts must, in regular course, be made to the Council of Revenue, and then from there to the President and Council in Calcutta. The common people, unused to such a multiplied process of judicature, impatient of delays, and taught to look up to the first department of government for the redress of their wrongs, will be continually violating the precision of our rules, and running to the Presidency on every occasion of complaint... 6  The jurisdiction of the civil court, the  divdritadaiat (<fHMl SKTW),  was distinguished  officially from that of the criminal court, the faufddrT addlat (ibl^KiO  3KTW),  to deal with  matters "concerning property, whether real or personal, all cases of inheritance, marriage and caste; all claims of debt, disputed accounts, contracts, partnerships and demands of rent." This somewhat innovative arrangement was justified as the administrative 7  expression of the stated British ideal that "nothing is more conducive to the prosperity of any country, than a free and easy access to justice and redress." Yet the Company had 8  drafted and implemented the Judicial Plan of 1772 under its authority and responsibility as divan  (jffaR)  of Bengal, an office which was associated with responsibility for 9  financial matters, such as the collection of tax revenue on behalf of the Mughal Emperor,  6  "Extract from the Committee of the Circuit, 28 July, 1772," in Great Britain, House of Commons,  7  "The Plan for the Administration of Justice" in the 15 August, 1772 proceedings of the Committee of Circuit, in "The Seventh Report from the Committee of Secrecy appointed to enquire into the State of the East India Company," dated 6 May, 1773, Great Britain, House of Commons, ReportsfromCommittees  th  Reports from Committees of the House of Commons, 1715-1801. Volume IV, p. 311. th  th  of the House of Commons, 1715-1801. Volume IV, p. 348.  8  th  th  9  ;  "The Plan for the Administration of Justice" in the 15 August, 1772 proceedings of the Committee of Circuit, in "The Seventh Reportfromthe Committee of Secrecy appointed to enquire into the State of the East India Company," dated 6 May, 1773, Great Britain, House of Commons, Reports from Committees of the House of Commons, 1715-1801. Volume IV, p. 349. My emphasis added, capitalised in original. The slip in the intended meaning of "justice" here points to a hybridity inherent in colonial discourse: a topic about which substantially more will be said in the coming chapters. Note that "Bengal" here refers to not only the regions of Western and Eastern Bengal, but also parts of modern Bihar and Orissa.  13 and the administration of civil justice, though not with the task of organising the apparatus and principles of civil, yet alone, criminal justice. A brief summary, then, of the events leading up to the granting of the divam(<\<*\'i\) to the East India Company in 1765, as well as an explanation of its relevance within in the Mughal governmental structure, will be of some use here to help place this process in a historical perspective, i) The East India Company i n Bengal, 1600-1765 In the century and a half before the granting of the divani in 1765, the East India Company had pursued its monopoly over British trade with the East Indies under a charter granted by Queen Elizabeth December 31, 1600, establishing trading contacts within Bengal, as well as at Surat, Masulipatnam, Madras and Bombay. The 10  Company's trade in India, and in Bengal in particular, grew rapidly following the issuance in 1690 of a farman (><HM), a grant of privileges, by Emperor Aurangzeb, allowing the Company advantageous conditions of trade, including exemption from Mughal customs levies, in exchange for the payment of Rs. 3,000 annually.  11  Trade with  Bengal had, by the 1690's, come to play a crucial role in the profitability of the East India Company, as it was Britain's dominant source of cheap, high quality cotton textiles (muslin) for an expanding European market, as well as being a major source for raw silk and saltpetre.  19  The construction of Fort William, together with the Company's purchase  W. Foster, "The East India Company, 1600-1740" in The Cambridge History ofIndia, H.H. Dodwell (ed.), (Delhi: S. Chand & Company, 2 Indian reprint 1963), p. 77. The group of merchants were incorporated under the title: "The Governor and Company of Merchants of London Trading into the East Indies." " P.J. Marshall, East India Fortunes, The British in Bengal in the Eighteenth Century, (Oxford: Clarendon Press, 1976), p. 7. P.J. Marshall, "The Seventeenth and Eighteenth Centuries" in The Raj, C.A. Bayly (ed.), (London: National Portrait Gallery Publications, 1990), pp. 18-19; also, K.N. Chaudhuri, The Trading World of Asia and the East India Company, 1660-1760, (Cambridge: Cambridge University Press, 1978), p. 52. Elsewhere Marshall states that in a "normal" year early in the eighteenth century, up to 60% of British imports from all of Asia originated from Bengal. See Marshall, East India Fortunes, p. 29. 1U  nd  12  14  of the zamindari'(vPfferct)  rights of three villages—one of which, Kalikata, would lend  its name to the British settlement of Calcutta on the banks of the Hughly river—fulfilled the Company's desire to obtain a fortified settlement in Bengal, thereby completing a "triangle" of such settlements—including Bombay and Fort St. George (Madras)—and resulting in the Company's enhanced ability to expand its trade and territorial acquisitions through the eighteenth century.  14  The centralised political power of the Mughal Emperor at Delhi declined in the early eighteenth century, following the death of Aurangzeb in 1707, and subsequently, there was a rise in regional polities, including the Marathas in Western India, and government of the navab in Bengal. By 1716/1717, the divan of Bengal, Murshid Kuli Khan, had also obtained the office of subaddr ( ( J ^ K / ^ < K ) , which is also sometimes referred to as the nizam-i suba,  (IHSHI-H  tr m) and thus became the first navab of Bengal.  15  The nature of the designation of zamindar is complicated, not least by the fact that the obligations of a zamindar changed over centuries, and was one the British spent a fair bit of time attempting to determine, before defining it legally in 1793, under the Permanent Settlement. Rizvi states thatfromthe rule of Akbar, the term was used to designate one who possessed superior rights to those possessed by a peasant. The zamindar depended financially, to varying extents, on obtaining a share of taxation revenue which was paid by local agricultural labourers, merchants, and passing travellers to the Mughal Emperor. The zamindar acted, then, as a tax collector, and the geographical size and population of the zamindari varied greatly. The zamindar possessed some degree of rights regarding property ownership, though Marshall believes that only a small portion of the land over which they possessed zamindari rights was actually "owned" outright. The zamindar often maintained a military force, and was perceived to be an effective maintainer of law and order. Zamindari rights were generally hereditary, though they could also be purchased. See S.A.A. Rizvi, The Wonder that was India, Part II, (Calcutta: Rupa & Company, 1996 reprint), pp. 208-210; also, P.J. Marshall, Bengal: The British Bridgehead, Eastern India 17401828 (The New Cambridge History ofIndia, II, 2), (Cambridge: Cambridge University Press, 1987), pp. 53-61. For the Permanent Settlement, see note 77 below. Chaudhuri, The Trading World ofAsia, p. 53. Chaudhuri has remarked that during this era, the Company's settlements can be divided into two basic categories: those which were unfortified chief factories, situated in an existent centre of trade, and those which were fortified, such as Bombay, Madras, and Calcutta, and which acted as a centre for administration. See Chaudhuri, The Trading World ofAsia, p. 51 Marshall, East India Fortunes, p. 6. The administrative arrangement in a suba consisted of the Mughal emperor being represented by what was essentially a pair of governors, who were appointed by him, and ruled the suba on his behalf. This governorship consisted of a divan, who was responsible for financial matters such as taxation, as well as the administration of civil justice; the subadar, who is also sometimes known as the nizam-i suba, was in command of the military, the maintenance of law and order (nizamaf),  r  •"  •  •  15  During the next decade, Bengal, which had been incorporated into the Mughal empire as a siiba ( ^ 5 ) , or province, had essentially become a self-contained state, whose internal and external affairs were managed by the navab, even though he was still paying tribute to the Mughal Emperor in Delhi.  16  During this period, conflict between the government of the navab and the East India Company increased over the increasing volume of trade coming under the control of the Company, the desire of the navab to assert his independence from Delhi, the perceived disrespect of the British towards some Islamic conventions, and the Company's abuse of the dastak ( ^ T F ) system.  17  Consequently, several times between 1727 and  1749, the British were forced to make additional payments to the navab directly, in order to prevent the disruption of their trade.  The first half of the eighteenth century is also  associated with the growth in size and political power of the zamindars in Bengal, so that  16 17  18  and the administration of criminal justice. See also Marshall, Bengal: The British Bridgehead, p. 49, and Rizvi, The Wonder that was India, Part II, pp. 191-192. Marshall, East India Fortunes, p. 6. See Bayly, The Raj, p. 106. The issuance of a 1717 farman by Aurangzeb's successor, Emperor Furrukhsiyar to the Company, confirming the Company's conditions of trade, and granting them permission to increase their holdings of land rented around Calcutta would have, no doubt, caused considerable irritation to the navab. See also Chaudhuri, The Trading World ofAsia, pp. 119-120, 128. The dastak system involved the production of a certificate (dastak) in order to prove that goods being shipped out of Bengal were in fact those of the East India Company, and would consequently escape customs levies, as per the farman. Abuses included the shipping of goods belonging to private English merchants duty free under the farman, who could then be charged duty by the East India Company. See Chaudhuri, p. 124. Additionally, Marshall provides in Bengal: the British Bridgehead a telling example of the navab's increasing practical control over the administration of Bengal: the appointment offaujdars, responsible for the defence and internal security of individual sarkars, subdivisions of a suba (Mughal province) was normally carried out directly by the emperor in Delhi. Alivardi Khan, however, who ruled Bengal from 1740 to 1756, was able to appoint the vast majority offaujdars himself, without interference from Delhi. See p. 50. Marshall argues, however, that it was never the intention of Alivardi Kahn to create an independent state, for he retained an allegiance to the concept of the Mughal empire. Regardless, the reality was that Bengal functioned under the practical, political control of the navab and his concerns, rather than from the interests of Delhi. See p. 52. Marshall, Bengal: the British Bridgehead, pp. 49-52; Marshall, East India Fortunes, p. 7-8.  16 by the mid-eighteenth century, approximately sixty percent of gross taxation revenue was generated by fifteen large zamindars}  9  Following the succession of Siraj-ud-daula to the office of navab of Bengal in 1756, the navab''s troops moved against those who were perceived to constitute a threat to his political power, including the East India Company. In June o f 1756, Calcutta, which had grown to such an extent that the entire population of the city was estimated to be over 100,000 by 175 0, was easily sacked and the senior leadership of the British 20  outpost fled.  21  When news of the capture of Calcutta reached Madras, a military force  was sent under the leadership of Robert Clive, and upon arrival in Calcutta in early January, 1757, he re-took the city from the navab''s forces. A treaty was soon negotiated and signed, which restored, among other things, the Company's trading privileges in 22  Bengal.  The British, however, unhappy with the instability caused by the new navab,  and perhaps also due to the substantial financial gains to be made by his ouster, entered 23  19 2 0  21  Marshall, Bengal: the British Bridgehead, p. 55. Marshall, "The Seventeenth and Eighteenth Centuries," pp. 18-19. 120,000 according to another estimate quoted by Marshall in Bengal: the British Bridgehead, p. 159. Of the numerous accounts of this conflict, see, for example, Marshall, Bengal: the British Bridgehead, pp. 77-78; also Dodwell, "Clive in Bengal, 1756-60" in The Cambridge History ofIndia, Dodwell (ed.), pp. 141-156. An excellent source for the study of this era in the history of Bengal is B.K. Gupta,  Sirajuddaullah and the East India Company, 1756-1757, Background to the Foundation of British Po 22 23  in India, (Leiden: E.J. Brill, 1966). Dodwell, "Clive in Bengal," pp. 144-145. Dodwell cites as the rationale behind the move the Select Committee's appeal to the British duty to do away a despotic ruler such as Siraj-ud-daula: "The nabob is so universally hated by all sorts and degrees of men ... a revolution so generally wished for, that it is probable that the step will be attempted (and successfully too) whether we give our assistance or not. ... we think it would be a great error in politics to remain idle ... by engaging as allies ... we may benefit our employers and the community very considerably, do a general good, and effectually traverse the designs of the French..." Bengal Select Committee, 1 May, 1757, quoted in Dodwell, "Clive in Bengal," p. 148. Dodwell does not address the issue of payments made to the Select Committee, which Marshall cites as being 12 lakhs, in East Indian Fortunes, p. 164. It would seem that the motivation for the sudden, explicit involvement in Bengal politics was a combination of factors, including personal financial gain and the security/profitability of British trade. Original treaty demandsfromthe Select Committee included the reinstitution of all farman rights, the recognition of British sovereignty in Calcutta, a grant of territories for the maintenance of a military force, and so on. See Dodwell, p. 148. Marshall is more inclined to believe that personal  17  0  into negotiations with the enemies of Siraj-ud-daula—including the Jagat Seths, an influential and powerful community of Hindu bankers, and a number of the large zamindars—with whom a deal was soon struck for the use of the Company's armies against the navab, and the installation of his disloyal general Mir Jafar. The army of Siraj-ud-daula was readily defeated at the famous Battle of Plassey on 23 June, 1757, and Mir Jafar was installed as navab at Murshidabad, the capital of Bengal.  24  Marshall describes the British objectives at Plassey as "conservative," desiring simply a return to the status quo, prior to the accession of Siraj-ud-daula. Yet the 25  British had seriously undermined the authority of the navab, and as a result, were forced to intervene in Bengal government affairs whenever their commercial interests required it.  This interference was conspicuous in Bihar, as the Company abandoned any  semblance of neutrality and non-interference, instead openly manipulating and taking sides within factional conflict under the navab? Then in both 1759 and 1760, the 1  Company was forced to battle armies invading Bihar, including that of the Mughal emperor Shah Alam, who had come to reclaim Bengal for the empire, as well as rebellions from local zamindars, invading Marathas, and a challenge from the Dutch East India Company. Each time, however, the British were victorious, and thereby clearly demonstrated their suzerainty.  financial gain through "presents" had less to do with the overthrow of Siraj-ud-daula, than concerns over  the feasibility of trade under such a navab. See East India Fortunes, p. 166.  See Dodwell, "Clive in Bengal;" Marshall, East Indian Fortunes, pp. 164-165; Marshall, Bengal: the  British Bridgehead, pp. 77. Marshall, Bengal: the British Bridgehead, p. 78-79. Marshall, East India Fortunes, p. 8. Marshall, Bengal: the British Bridgehead, pp. 81-82.  Marshall, Bengal: the British Bridgehead, pp. 82-83; Dodwell, "Clive in Bengal," pp. 151-153; Gupta,  Sirajuddaullah and the East India Company, p. 135.  f  18 Following Mir Jafar's refusal to permanently assign several key districts to the Company in 1760, which it had demanded to cover their increasing financial obligations in the protection and de-facto administration of Bengal, the navab was deposed, and replaced by Mir Kasim, who, quite expectedly, permanently ceded the districts of Burdwan, Midnapur, and Chittagong.  Thereafter Mir Kasim consolidated his forces in  the northern regions of Bengal, apparently resigned to allowing the British outright control of the delta region. It was not long, however, before a conflict between the new navab and the East India Company broke out over the always contentious issues of customs revenues and trading privileges. After a protracted series of battles, including the October, 1764 victory at Buxar, Mir Kasim was deposed, and for a short time, the former navab Mir Jafar was re-appointed by the Company. Any pretence to actual 30  authority which the navab might have claimed, however, was now lost, and as such, Clive has been reported to have said in 1765 that "we must indeed become the Nabobs ourselves."  31  As Marshall states:  .. .by 1765 an independent government of Bengal had virtually no existence. The Nawabs and their ministers were appointed by the Company. The Company had disbanded much of the Nawab's army, while accepting for itself exclusive responsibility for the defence of the provinces and exercising the right to appropriate the lion's share of the resources of Bengal for its own use. For all practical purposes, power had been transferred to the British. 32  It took less than a year from the Battle at Buxar before the Mughal Emperor formally transferred the power of civil administration, represented by the divani, to the East India  Marshall, Bengal: the British Bridgehead, pp. 84-85. 30 31  32  Dodwell, "Bengal, 1760-72," in The Cambridge History ofIndia, Dodwell (ed.), pp. 174-175. Quoted in T.G.P. Spear, Master ofBengal: Clive and his India, (London: Thames & Hudson, 1975), p. 146.  Marshall, Bengal: the British Bridgehead, p. 89.  19 Company, as agreed in the Treaty of Allahabad, dated August 12, 1765.  33  Yet adherence  to the "traditional" Mughal differentiation between the role of the nizam-i suba and that of the divan could only be superficial in this context, for the grant of the divani to the East India Company was a formal recognition that there could no longer exist in Bengal a navab with a legitimate claim to authority. The Company effectively dominated Bengal militarily, in addition to their complete control over financial matters. Although the nizam-i suba maintained formal control over his areas of responsibility, it was the Company who controlled his access to funds, in the absence of a strong central Mughal government at Delhi, thereby curtailing any effective independence.  34  The East India  Company, therefore, possessed sufficient political and military power to impose its vision of the structure of Bengal's administration upon those areas of jurisdiction which traditionally fell to both the divan and the nizam. As Warren Hastings wrote to Josias Dupre, 8 October, 1772: th  The establishment of the courts of justice in Calcutta was almost an act of injustice, the criminal judicature being a branch of the Nizamut. But it was so connected with the revenue, and the Mahometan courts are so abominably venal, that it was necessary; it met with no opposition, and it is now a point determined.. . 3 5  Hence, the 1772 Plan for the Administration of Justice in Bengal reformulated the structure for the administration of both civil and criminal justice, the latter being the responsibility of the nizam, in addition to, as we shall see in the coming pages, altering the content of the "law" administered in the civil court.  33  34 35  See Dodwell, "Bengal, 1760-72," pp. 176-177.  See Marshall, Bengal: the British Bridgehead, pp. 90-92. Hastings to Dupre, 8 October, 1772, in G.R. Gleig, Memoirs of the Life of the Right Honourable Warren  Hastings, in 3 Volumes (London: Richard Bentley, 1841), Vol. I, p. 263.  20 ii) The judicial plan of 1772 Under the arrangements prescribed in the 1772 Judicial Plan, the law which was to be administered to all Indians within the faujdari adalat (the criminal court) by "traditional" authorities, and under the nominal supervision of the Company, was that law thought to be already operative under the navab of Bengal: a form of Islamic criminal law.  36  The Judicial Plan outlined the arrangements for the dispensation of civil justice,  however, according to an individual's religious affiliation. Therefore, "Hindu [personal] law" was to be administered to the Hindu population, and "Muslim [personal] law" to the Muslims: That in all suits regarding inheritance, marriage, caste, and other religious usages or institutions, the laws of the Koran with respect to the Mahometans, and those of the Shaster with respect to Gentoos, shall be invariably adhered to. In addition, the Plan prescribed that the collector or judge of the civil court be assisted by indigenous experts in the administration of these "legal" traditions. Hindu pandits and Muslim maulavis (H)<H«TI) were to consult the legal texts of their respective traditions in order to discover the relevant prescriptions for any particular instance, and then advise the collector or judge accordingly: On all such occasions, the moulavies or brahmins shall respectively attend to expound the law, and they shall sign the report, and assist in passing the decree. 38  J. Fisch, Cheap Lives and Dear Limbs: the British Transformation of the Bengal Criminal Law, 17691817, (Wiesbaden: Franz Steiner Verlag, 1983), pp. 32-33. "The Plan for the Administration of Justice" in the 15 August, 1772 proceedings of the Committee of Circuit, in "The Seventh Report from the Committee of Secrecy appointed to enquire into the State of the East India Company," dated 6* May, 1773, Great Britain, House of Commons, Reports from Committees th  of the House of Commons, 1715-1801. Volume IV, p. 350.  "The Plan for the Administration of Justice" in the 15 August, 1772 proceedings of the Committee of Circuit, in "The Seventh Report from the Committee of Secrecy appointed to enquire into the State of the East India Company," dated 6 May, 1773, Great Britain, House of Commons, Reports from Committees th  th  of the House of Commons, 1715-1801. Volume IV, p. 350.  21 This official acknowledgement of British dependence upon native experts is important as it reveals both the general British unfamiliarity with the languages in which the civil "laws" of India were written, particularly Sanskrit, as well as the "proper" or acceptable application of those laws within the judicature. As well, it reveals a British realisation that the specialised knowledges of indigenous experts in the realm of civil law were required for the day-to-day administration of its territories, and further, that British access to these knowledges could only be secured in 1772 through the active assistance, or perhaps collaboration, of those same experts. Hastings and his government thought this arrangement for the administration of justice in Bengal to be both the most practicable and just, not to mention politically expedient, rather than the alternative of imposing English civil law upon a population unfamiliar with it. This latter was an alternative which was being actively considered by a parliamentary committee investigating the affairs of the East India Company, so as to decide the most appropriate means of governance to restore prosperity to the Company's territories in India following the famine of 1770.  Hastings described the Judicial Plan  of 1772 as what he conceived to be a reinstatement of the "ancient constitution" of Bengal, as well as a return to the official distinction between the civil and criminal courts under the Mughals: In this establishment no essential change was made in the ancient constitution of the province. It was only brought back to its original principles, and the line prescribed for the jurisdiction of each Court, which the looseness of the Mugal government of some years passed had suffered to encroach upon each other. 40  39  B. Cohn, "Law and the Colonial State in India," in History and Power in the Study of Law: New Directions in Legal Anthropology, J. Starr & J.F. Collier, (eds.), (Ithaca & London: Cornell University  Press, 1989), pp. 140-141; also, R. Rocher, Orientalism, Poetry and the Millenium: the Checkered Life  40  ofNathaniel Brassey Halhed (Delhi: Motilal Banarsidass, 1983), p. 48. Hastings to Lord Mansfield, 21 March, 1774, in Gleig, Memoirs of Warren Hastings, Vol. I, p. 401. s1  /  22  The sentiment regarding this "reinstatement" is expressed even more explicitly in the compilers' "Preface" to the first Hindu legal code drafted under the Judicial Plan, A Code of Gentoo Laws: And whereas, this kingdom was the long residence of Hindoos, and was governed by many powerful Roys and Rajahs, the Gentoo Religion became catholick and universal here; but when it was afterwards ravaged, in several parts, by the Armies of Mahomedanism, a change of religion took place, and a contrariety of customs arose, and all affairs were transacted, according to the principles of faith in the conquering party, upon which perpetual oppositions were engendered, and continual differences in the decrees of justice; so that in every place the immediate magistrate decided all causes according to his own religion; and the laws of Mahomed were the standard of judgment for the Hindoos. Hence terror and confusion found a way to all the people, and justice was not impartially administered.. . 41  The impetus for Parliament to consider imposing British law in Bengal was the belief that the nature of the Indian polity was despotic, and by inference, that the state of Bengal was without law; that is, "the Mughal-Indian political system was [conceived to be] absolute and arbitrary power, unchecked by any institution, social or political, and resting in the person of the emperor."  42  The directors of the East India Company  naturally felt this arrangement to be unsatisfactory as it impeded the regular and full collection of tax revenue. Yet Warren Hastings was quick to advocate a conception of India as a "theocratic state," one in which detailed codes of conduct that had the same practical applicability as "law" had been authored in the ancient period. Further, he considered that these legal traditions were embodied in extensive texts and commentaries,  41  A Code of Gentoo Laws, or, Ordinations of the Pundits, N.B. Halhed (trans.), (London: 1776), p. 4.  42  Cohn, "Law and the Colonial State in India," p. 139. The influential account of the Indian polity as despotic is Alexander Dow's The History of Hindustan, in 3 Volumes, (London: 1772), especially Volume 3, Dissertation on Despotism; also, see Montesquieu, Oeuvres Completes, in 3 Volumes, (Paris: 1950 reprint). Guha quotes Montesquieu's famous and influential formula: "II y a trois especes de gouvernements: le Republicain, le Monarchique, et le Despotique" in R. Guha, A Rule of Property for  Bengal: an Essay on the Idea of Permanent Settlement, (Paris: Mouton & Co., 1963), p. 26.  23 written in Sanskrit for the Hindus, and Persian for the Muslims.  It was Hastings' belief  that such a restoration, in the realm of civil law at least, was the most just and expedient course to undertake. In a letter to Lord Chief Justice Mansfield intended to enlist his political support, he argues for this conception of Indian society, and thereby, for his vision of legal administration in Bengal: I believe that [the topic of the nature of the administration of justice in Bengal] to be of that importance, as it regards the rights of a nation in the most essential point of civil liberty, the preservation of its own laws... Among the various plans which have been lately formed for the improvement of the British interests in the provinces of Bengal, the necessity of establishing a new form of judicature, and giving laws to a people who are supposed to be governed by no other principle of justice than the arbitrary wills, or uninstructed judgments, of their temporary rulers, has been frequently suggested; and this opinion I fear has obtained the greater strength from some publications of considerable merit in which it is too positively asserted that written laws are totally unknown to the Hindoos ... nothing can be more foreign from the truth. They have been in possession of laws, which have continued unchanged, from the remotest antiquity. The professors of these laws, who are spread over the whole empire of Hindostan, speak the same language, which is unknown to the rest of the people, and receive public endowments and benefactions from every state and people... The consequence of these professors has suffered little diminution from the introduction of the Mahomedan government, which has generally left their privileges untouched, and suffered the people to remain in quiet possession of the institutes which time and religion has rendered familiar to their understandings and sacred to their affections. I presume, my Lord, if this assertion can be proved, you will not deem it necessary that I should urge any argument in defence of their right to possess those benefits under a British and Christian administration which the bigotry of the Mahomedan government has never denied them. It would be a grievance to deprive the people of the protection of their own laws, but it would be a wanton tyranny to require their obedience to others of which they are wholly ignorant, and of which they have no possible means of acquiring a knowledge. 44  Cohn, "Law and the Colonial State in India," p. 140. Hastings to Lord Mansfield, 21 March, 1774, in Gleig, The Memoirs of Warren Hastings, Vol. 1, pp. 399-400. st  24 This arrangement would eventually find sanction with the British government, which confirmed the general principle of judicial administration in the Act of Settlement of 1781.  45  iii) The first Hindu legal code, the vivadamavasetu According to the provisions of the 1772 Judicial Plan, some means had to be found in order to allow the Company's servants access to these ancient "personal laws," and then to authoritatively establish their content, so that they might be administered judiciously within the divani adalat by the European collector of the district, as well as in the supreme civil court, the sadar divani adalat, established in Calcutta.  46  The result was  the preparation of written legal codes, compiled by Indian "legal" specialists, and then translated into English, which purported to contain the authoritative personal laws of Bengal. The first Hindu legal code to be drafted explicitly for translation into Persian 47  and English, by the request of the sadar divani adalat, was the vivdddrnavasetu (PHKiuf^d:), "a causeway through the sea of litigations."  48  The principal motives behind  the request seem to be the need for the Company's collectors and judges, none of whom understood Sanskrit, to be able to actually apply the law, rather than simply rely on their  45  46 47 48  The Act of Settlement, 1781, Section 17 states: "All matters arising out of inheritance and succession to land and goods and all matters of contract and dealing between party and party shall be determined, in the case of Mahomedans, by the laws and usages of Mahomedans and in the case of Gentoos by the laws and usages of the Gentoos." Quoted in W. Jones, The Letters ofSir William Jones, G. Cannon (ed.), in 2 volumes, (Oxford: Oxford University Press, 1970), note 2, p. 794. Importantly, the Act of Settlement also curtailed the power of the Supreme Court of Judicature, the court controlled by Parliament, in relation to the sadar divani adalat, the supreme civil court, established by the Company. See note 64 , below. Cohn, "Law and the Colonial State in India," p. 141. This section shall deal specifically from this point on with Hindu legal codes, based on the dharmasastra. R. Rocher, Orientalism, Poetry and the Millennium, pp. 49, 51. The supreme civil court, the sadar divani adalat was authorised to hear appealsfromthe district courts, the divani adalat, in all cases exceeding 500 rupees. The President (Warren Hastings, at this time) and two members of the Council  Indian assistants (the Indian "professors of law") to do it for them. The translation process of their assistant's legal opinions, known as a vyavastha (fn&mf), from Sanskrit to English, via Persian and/or Bengali, had proven cumbersome and time consuming, as well as exposing the judge or collector to the risk that his Indian assistant had been bribed to render the law in a particular manner so as to affect the judgement. Eleven pandits 49  were eventually hired through the Raja Rajavallabha, the divan of Khalsa, for the task of compiling the digest, which began in May of 1773. Their names were Ram Gopaul Neeayalunkar (Ramagopala Nyayalankara), Beereeshur Punchanun (Vfresvara Panchanana), Kishen Juin Neeayalunkar (Krsnajivana Nyayalankara), Baneeshur Beedyalunkar (Banesvara Vidyalankar), Kerpa Ram Terk Siedhaut (Krparama Tarkasiddhanta), Kishen Chund Sareb Bhoom (Krsnacandra Sarvabhauma), Goree Kunt Terk Siedhaut (GaurTkanta Tarkasiddhanta), Kishen Keisub Terkalungkar (Krsnakesava Tarkalankara), Seeta Ram Bhet (Sftarama Bhatta), Kalee Sunker Beedyabagees (Kalisankara VidyavagTsa) and Sham Sunder Neeay Siedhaut (Syamasundara Nyayasiddhanta).  50  Several of these pandits were associated with the court of  Krsnacandra at Nadia, a vibrant centre of Sanskrit learning in the eighteenth century.  51  The Sanskrit vivadarnavasetu was completed in February, 1775, at which time a Persian version was begun, made via an oral rendering of the original translated into Bengali by the pandit GaurTkanta. Following its completion, Nathaniel Brassey Halhed, a Company  were to preside as judges in this court. See Misra, The Central Administration of the East India  49  Company, p. 231. R. Rocher, Orientalism, Poetry and the Millennium, p. 48.  50  A Code of Gentoo Laws, p. 6. Transliteration from the Bengali pronunciation courtesy of R. Rocher,  51  R. Rocher, Orientalism, Poetry and the Millennium, p. 49. See also the chapter on Nadia in S. Sinha, Pandits in a Changing Environment (Calcutta: Surat Book House, 1993).  Orientalism, Poetry and the Millennium, p. 49.  26 servant fluent in Persian, translated the Persian version into English, which was then published in 1776 as A Code of Gentoo Laws, or, Ordinations of the Pundits?  2  The Sanskrit vivadamavasetu is a nibandha (f?m:), a traditional textual form consisting of a collection of excerpts from authoritative dharmasastra texts, such as manusmrti  (*H«^(d:)  and the mitaksard (fwr^xr), together with an explanatory  commentary. The topics expounded in the vivadamavasetu included civil topics such as the division of inheritable property, rules of evidence, wages, rules governing the purchase and sale of commodities, in addition to the criminal topics of assault and theft, and assorted miscellany such as the rules and punishments surrounding adultery and the concerns of women. As well, the authors included a preface on the nature of the "Creation," and the duties of a king, an unusual feature for a dharmasastra nibandha, though perhaps attributable to the novel circumstances of its compilation.  Rocher has  argued that while the Persian version was intended primarily for use in the courts, as Persian was the administrative language of the East India Company at that time, Hastings intended the English language Code more for dissemination in England, as a weapon in the ongoing debate over the nature of Indian society. Hastings makes this clear in his 54  letter to the Lord Chief Justice Mansfield: This code they [the pandits] have written in their own language, the Shanscrit. A translation of it is begun under the inspection of one of their 52  See R. Rocher, "Of Sources, Compendia, and Recasts: Competent Witnesses in the vivadamavasetu" in  Indology and Law: Studies in Honour ofProfessor J. Duncan M. Derrett, G.D. Sontheimer & P.K. 53  54  Aithal, (eds.), (Wiesbaden: Franz Steiner Verlag, 1982). R. Rocher has argued that J.D.M. Derrett's opinion that in the vivadamavasetu "the order of appearance of the chapters, and the relative weight given to each does not correspond with anything known to the usual sastric works, and it is evident that the committee was working to a list of topics supplied by Hastings" is undoubtedly based on his examination of the English translation, A Code of Gentoo Laws, which is not an accurate rendering of the original Sanskrit text. See J.D.M. Derrett, Religion, Law and the State in India (London: Faber and Faber, 1968), pp. 241 and R. Rocher, Orientalism, Poetry and the  Millennium, n. 20, p. 65. R. Rocher, Orientalism, Poetry and the Millennium, pp. 52-54.  27 body into the Persian language, and from that into English. The first two chapters I have now the honour to present to your Lordship with this, as a proof that the inhabitants of this land are not in the savage state in which they have been unfairly represented, and as a specimen of the principles which constitute the right of property. 55  Indeed, in the "Translator's Preface" to the Code, Halhed argues for the antiquity of Indian civilisation and the existence of an ancient legal constitution, well aware of the political importance of his work for Hastings' administrative plans: .. .the following compilation was set on foot; which must be considered as the only work of the kind, wherein the genuine principles of the Gentoo jurisprudence are made public, with the sanction of their most respectable pundits (or lawyers) and which offers a complete confutation of the belief too common in Europe, that the Hindoos have no written laws whatever, but such as relate to the ceremonious peculiarities of their superstition. 56  Yet despite the political importance of the Code for those who shared Hastings' vision for the judicial administration of Bengal, the Code proved most influential in Europe as a rare source of information about Indian civilisation. In addition to the translated extracts from the dharmasastra contained in the Code, Halhed's "Preface" included numerous plates with examples of devanagarT (^r*Kt)and Bengali scripts, extracts in Sanskrit and in translation from numerous works, including the sarasvatTsiitra (dWiil w ) and the bhagavad gita (wrs iftcrr). The importance of these extracts in Sanskrit cannot be overestimated, for European scholars possessed very few examples of this sort of raw material. Rocher argues that although the study of Sanskrit would make great progress in the near future, the Code remained a "main staple" of European scholarship for several  Hastings to Lord Mansfield, 21 March, 1774, in Gleig, Memoirs of Warren Hastings, Vol. I, pp. 399404. st  N.B. Halhed, "Translator's Preface" to A Code of Gentoo Laws, reprinted in The British Discovery of Hinduism in the Eighteenth Century, P.J. Marshall (ed.), (Cambridge: Cambridge University Press, 1970), p. 142.  28 decades.  In fact, the publication of the Code proved so successful that pirated editions  were published in the years following, as well as translations into French and German. In addition, as Rocher notes, Halhed provoked considerable controversy in Europe with the arguments in favour of the extreme antiquity of Hindu civilisation which were contained in his "Preface."  58  The heretical implications of statements such as "we have everywhere  produced instances of a similitude between the Mosaical and the Hindoo Dispensation..." and "the doctrines of Hindostan might have been early transplanted into Egypt, and thus have become familiar to Moses" are obvious.  The reaction to these arguments was,  59  predictably, outspoken. Representative is an open letter to Halhed written in 1778-by an Anglican clergyman by the name of Costard, who argued that Hindu chronology was "fictitious and absurd," as no scripture could pre-date the handing down of the Law to Moses on Sinai, "the forming of an alphabet [being] beyond human invention."  60  In contradistinction to its scholarly and antiquarian success, the Code proved difficult to apply practically in the courtroom. Derrett has argued that the English language Code was of little use in the courts: .. .the order lacks logic as well as completeness, and the general appearance, though neatly digested for a Sanskrit legal work, is repellent to a lawyer trained in the common law. 61  57  R. Rocher, Orientalism, Poetry and the Millennium, p. 60.  58  R. Rocher, Orientalism, Poetry and the Millennium, pp. 54, 57. Halhed outlines the Hindu conception of the four yugas, and describes the Hindu sastras as never mentioning the great flood. The implication is that either the sastras were written before the time of Noah, or that the great flood never occurred in India. This latter alternative, however, is indirectly discounted by Halhed. See "Translator's Preface," pp. 158-159. Halhed, "Translator's Preface," pp. 181, 162; see also R. Rocher, Orientalism, Poetry and the  59  Millennium, pp. 57-59.  '  60  G. Costard, A Letter to Nathanial Brassey Halhed(Oxford, 1778), pp. 15-16, quoted in Marshall, The  61  Derrett, Religion, Law and the State in India, p. 241. Derrett, however, admits that the Code was relied upon in several instances, up to 1791. Further, he states that the pandits continued to use the variety of dharmasastra texts at their disposal, and the vivadamavasetu was simply one more to add to the library.  British Discovery of Hinduism, pp. 34-35.  29 In addition, the Persian rendering of the Sanskrit text was found to be inexact. Perhaps the greatest directly legal importance of the Code was that it afforded the collectors and judges a good idea of the content of the "law" contained in the dharmasastra literature, though it would remain some years yet until British judges were provided with a second Hindu legal digest, one which purported to fulfil the expectations which had hitherto been held for the Code. iv) The reorganisation of the judicature in Bengal During the years surrounding the compilation of the Code, several important changes took place in the administrative structure of the judicature. These changes reflected both the struggle between the British parliament and the East India Company for administrative power in Bengal, as well as the debate between competing groups within the Company itself, each upholding as the prime administrative imperative either financial profit, or the upholding of a sense of "justice" vis-a^vis legal administration to the indigenous inhabitants of Bengal. The first change to the Judicial Plan of 1772, enacted on 23 November, 1773, was intended to bring the administration of civil justice rd  into the service of the collection of taxation revenue. Changes included the recall of the sarkar-based collectors, and the establishment of six Provincial Revenue Councils for Calcutta, Murshidabad, Burdwan, Dinajpur, Dacca, and Patna. To each Provincial Revenue Council was attached a civil court, in replacement of the courts under the control of the collector. These provincial courts were then to come under the control of a , superintendent, who was chosen in monthly rotation from the members of the Provincial Revenue Council. The court and the superintendent were soon effectively dominated by the Chief and Provincial Revenue Council, however, under rules established 12 January, th  1774. These rules allowed the Chief and Council to select cases to be decided directly by  30' themselves, and curtailed, among other things, the ability of the superintendent to compel ft")  a zamindar or a farmer to give evidence before him. The increased control and power of the Chief and Provincial Revenue Councils led to several instances in which there were, reportedly, abuses of this authority. Misra has described their conduct as "high-handed and irregular." Under the Judicial Plan of 63  1772, the decisions of the provincial courts would have been brought under the inspection of the sadar divani adalat at Calcutta, but that court had ceased to function as of November, 1775, due to disputes over jurisdiction following the establishment of the Supreme Court of Judicature at Calcutta by Parliament, under the Regulating Act of 1773.  64  The courts under the control of the Chiefs and Provincial Revenue Councils,  therefore, operated with relative autonomy and little accountability.  65  Governor-General Warren Hastings was concerned to separate the administration of civil justice from the collection of revenue, as well as to make the courts under the control of the Provincial Revenue Councils more accountable following these , irregularities. This was somewhat effectively accomplished with the second major Judicial Plan, the Judicial Plan of 1780. This plan, for the first time, clearly distinguished Misra, The Central Administration of the East India Company, p. 233. Misra, The Central Administration of the East India Company, p. 233. The Supreme Court of Judicature was authorised by Parliament to rule on casesagainst British subjects residing in Bengal, as well as Indians employed in the Service of the Company. See Misra, The Judicial  Administration of the East India Company in Bengal, 1765-1782, (Delhi: Motilal Banarsidass, 1961) pp. 184-199; also Derrett, Religion, Law and the State in India, pp. 233-234. C. Sinha describes the jurisdictional disputes between the Supreme Court of Judicature and the sadar divani adalat, and by proxy, the British parliament and the East India Company, in Indian Civil Judiciary in Making, (New Delhi: Munshiram Manoharlal, 1971). For example, the Supreme Court of Judicature in 1778, during the case of Nadrah Begum which related to the partition of property near Patna, called the Indian legal assistants of the Patna Council adalat to answer for their opinions given in that case. The Company obviously objected to the attempted prosecution of their employees for acts undertaken in the jurisdiction of the Company's court. The Supreme Court of Judicature also attempted to bring the zamindars under its jurisdiction, a move which the Company felt infringed upon its ability to effectively collect revenue. See Sinha, pp. 159-161.  Misra, The Central Administration of the East India Company, pp. 234, 19-20.  31  between matters related to revenue and those cases which were purely "civil," so that the jurisdiction of the provincial divani adalats extended to all cases of property, including inheritance of zamindari, which had before fell to the special jurisdiction of the Governor-General.  66  The Provincial Revenue Council continued to deal with matters  directly related to the collection of taxation revenue. In addition, the superintendent of each provincial divani adalat was to be appointed independently of the Provincial Revenue Councils.  67  Significantly, this Judicial Plan also reinstated the supreme civil  court, the sadar divani adalat, at Calcutta, thereby effectively re-establishing the administrative arrangement for the dispensation of civil justice first proposed under the Judicial Act of 1772.  However, those areas which had formerly given rise to  jurisdictional disputes between the sadar divani adalat, which was now the Company's chief court of appeal in Bengal, and the Supreme Court of Judicature, which remained an instrument of the British parliament, were eliminated by clearly defining the jurisdiction of the latter. The Act of Settlement, 1781, curtailed any jurisdiction of the Supreme Court of Judicature in matters of revenue, as well as placing zamindars strictly under the surveillance of the sadar divani adalat. Further, the Act placed all inhabitants of Calcutta formally within the jurisdiction of the Supreme Court of Judicature, a move which reflected the British belief that Calcutta represented British territory. Notably, the Act  66  67 68  The six provincial courts were soon found to be too few, and so according to the Judicial Plan of April 6, 1781, eighteen provincial (civil) courts were established and re-named "mufassil divani adalat." In addition to those already established at Calcutta, Murshidabad, Burdwan, Dacca, and Patna, courts were opened in Azmeriganj (in Sylhet), Bakarganj, Bhagalpur, Chitra (in Ramgarh), Darbhanga, Islamabad (Chittagong), Lauriya (in Champaran), Midnapur, Murli (in Jessore), Nattore, Raghunathpur (in Birbhum), Rangpur, and Tajpur (in place of the court already established at Dinajpur). See Misra, The  Central Administration of the East India Company, pp. 237-238. Misra, The Central Administration of the East India Company, p. 236. Derrett, Religion, Law and the State in India, pp. 236-237.  32 also gave parliamentary recognition to the judicial system implemented by the East India Company in Bengal.  69  The task of reconstituting the workings of the court system in Bengal following the Judicial Plan of 1780 fell to the first Chief Justice of the Supreme Court of Judicature at Calcutta, Sir Elijah Impey, who had also accepted the position of superintendent of the sadar divani adalat in Calcutta as of the 26 of October, 1780. th  70  In conjunction with  Warren Hastings, Impey drafted the first judicial code, which was eventually adopted by the Governor-General and Council on the 5 of July, 1781. This judicial code formally th  empowered the mufassil divani adalat  ($b*KH  <1<NM1  S^RT)  to deal with all civil suits  relating to property, including inheritance of zamindari, in addition to removing any prior administrative restrictions that the superintendent of a provincial mufassil divani adalat might have encountered in the calling of witnesses. This court was still forbidden to hear any case relating to the collection of public taxation revenues, however, which continued to fall in the jurisdiction of the Provincial Revenue Councils.  71  In addition, the judicial  code called for the regulation and complication of all administrative procedures, so that "all judicial business was to be transacted in writing and under the seal and signature of proper authorities" and "elaborate rules and forms were prescribed for the lodging Of 79  complaints..."  The judicial code of 1781, therefore, was intended by Hastings and  Impey to not only formalise the separation of justice and revenue collection, but also to  6 9  7 0  Sinha, Indian Civil Judiciary in Making, pp. 160-162. Misra, The Central Administration of the East India Company, p. 238; also, see Bayly, The Raj, p. 112.  Sir Elijah Impey was impeached in 1788 for administrative irregularities, not surprising as he was an employee of both the British government and the East India Company, though he was later acquitted. 71  7 2  Misra, The Central Administration of the East India Company, pp. 238-239. Misra, The Central Administration of the East India Company, p. 239.  33 reduce the impact of individual discretion upon legal judgements, by rendering the court's procedures uniform. Under the administration of Governor-General Cornwallis, however, the revenue and judicial functions of the government were reunited, with a view to maximising the collection of taxation revenue by the Company. This was accomplished principally under the Judicial Plan of 1787 in which the district collector was again empowered with the office of judge and magistrate.  73  No salary was associated with the responsibilities of  judicial administration, however, and so the collector only attended to these responsibilities when the duties of revenue collection allowed, and even then in an often irregular manner.  74  Cornwallis was accordingly disturbed to discover in about 1793 that  "no less than sixty thousand causes remain undecided, the greater part of which have been depending for years," for he felt that "this delay is ruinous to the suitors, defeats the end of justice, and strikes at the root of the prosperity of the country."  The Judicial  75  Plan of 1793, the last of the Judicial Plans which we will consider here, was intended by Cornwallis to remedy this backlog of cases, to end "unjustifiable acts of oppression" committed by the Company's Indian agents, and to secure the stability of British political power in India. This was accomplished by the Judicial Code adopted 1 May, 1793, st  which once again separated the administration of justice and the collection of taxation revenue by divesting the collector of his judicial duties, restricting him exclusively to the management and administration of revenue, and by creating positions exclusively for  73  Misra, The Central Administration of the East India Company, pp. 242, 296. Cornwallis took over as Governor-General at the beginning of 1787, following the 20 month tenure of Macpherson, who has been described as an "egregious adventurer." Warren Hastings resigned the post in February of 1785. See P. Moon, The British Conquest and Dominion ofIndia (London: Duckworth, 1989), p. 231 for quote. See also Bayly, The Raj, p. 127 "Charles, 1 Marquess Cornwallis." st  74  Misra, 77ie Central Administration of the East India Company, p. 245. '  34 judges in provincial courts. In addition, the judges of the divani adalats were given jurisdiction to settle all civil suits whatsoever, restrictions on appeals were lifted, and extra Courts of Appeal were established at Calcutta, Patna, Murshidabad, and Dacca.  76  Cornwallis felt that this arrangement was conducive to stabilising British political power in Bengal by courting the political support of the zamindars. By securing the regular and predictable administration of justice in Bengal by rendering its judicature more similar to that existent in England rather than that operative under the Mughals, Cornwallis believed that he had guaranteed the security of property transferred in perpetuity to zamindars under the Permanent Settlement, and hence the security of zamindar loyalty to British rule.  77  Just as the lower, provincial civil courts were dependent, according to the Judicial Plan of 1773, upon the provision of legal opinions (vyavastha) based on the dharmasastra by Hindu pandits, and upon their assistance in passing judgement, the Supreme Court of Judicature also found that it required the services of pandits, or Hindu no  law officers, from 1777 onwards.  In addition, the division of the six provincial civil  courts into eighteen mufassil divani adalats in 1781, and the resulting increased volume Cornwallis, minute of 11 February, 1793, paragraph II, quoted in Misra, The Central Administration of  the East India Company, pp. 245-246.  The divani adalats were now divided into zillah courts (district courts), and city courts, the latter of which were established at Patna, Murshidabad, and Dacca. The provincial courts of appeal were established to alleviate the backlog of appeals in the sadar divani adalat, whicKiiad little time to hear the  cases. See Misra, The Central Administration of the East India Company, pp. 246-247. Misra, The Central Administration of the East India Company, pp. 246-247, 296. Cornwallis states in the preamble to Regulation 2 of 1793, quoted in Misra, that the zamindars could "never consider the privileges which [had] been conferred upon them as secure, whilst the revenue officers are vested with these judicial powers." The Permanent Settlement, formally enacted in 1793, fixed in perpetuity the level of revenue which was to be paid by the zamindar to the East India Company. As long as the zamindar paid that amount, the land under their control was secure from the Company, as it was considered the property of the zamindar. However, if a zamindar failed to pay the required amount, the land was seized and sold to someone else. See Marshall, Bengal: The British Bridgehead, p. 122. Also, an excellent source for information about the Permanent Settlement is R. Guha, A Rule of Property for  Bengal.  35  in jurisprudence, created a demand for the services of pandits trained in the dharmasastra which would soon surpass the supply. This shortage of specialists trained in the dharmasastra was to be a principal factor in the establishment of the Sanskrit College at 70  Banaras in 1791, under the British Resident at Banaras, Jonathan Duncan, v) Sir William Jones, "his" pandits, and the second H i n d u legal digest Sir William Jones arrived in Calcutta in September of 1783 to take up his appointment as a judge in the Supreme Court of Judicature. Jones might be better remembered as the father of comparative linguistics, for his 1786 discourse "On the Hindus," which purported to established linkages between Greek, Latin, and Sanskrit, or perhaps for his influential translation of the Sanskrit play Sacontala, or the Fatal Ring, and its introduction to European audiences. Yet he was also instrumental in the East India Company's second attempt to formulate and codify the ancient "laws" of the Hindus, as Derrett, Religion, Law and the State in India, p. 237. V. Dalmia, "Sanskrit Scholars and Pandits of the Old School: The Benares Sanskrit College and the Constitution of Authority in the Late Nineteenth Century," in Journal ofIndian Philosophy, 24: 321-337, 1996. The Banaras Sanskrit College was not, however, the first educational establishment founded under the auspices of the East India Company. In 1780 Warren Hastings was presented with a petition from "a considerable number of Mussalmen of credit and learning" requesting that Hastings endow a madrasa ( ™ ) in order that a noted maulavi, Mujid al-din, might be able to teach there. The school was opened in October of that year, and in 1785, an inspector found there ninety five students studying philosophy, logic, law, grammar, and sciences, under Mujid al-din and three other teachers. See P.J. Marshall, "Warren Hastings as Scholar and Patron" in Statesmen, Scholars and Merchants, Essays in Eighteenth Century History presented to Dame Lucy Sutherland, (Oxford: Clarendon Press, 1973), esp. pp. 247248. While both the Calcutta Madrasa and Banaras Sanskrit College operated under the financial endowment and nominal supervision of the East India Company, their mandate in the eighteenth century, at least, was to impart "traditional" knowledge to Indian students, by way of Indian teachers, who more or less followed "traditional" methods. The College at Fort William, however, which was established in 1800 in Calcutta by Governor General Wellesley, was intended primarily as a centre of Oriental studies, where young Company servants were to come to learn Indian languages, as well as Indian customs, etc. Though administrative conflict with the Company's Board of Directors would eventually limit the role of the College, it did promote the employment of Indian scholars along side Company orientalists, who together published numerous language grammars, translations, etc. H.T. Colebrooke was the first professor of Sanskrit at the College, teaching from 1801 to 1806. See S.K. Das, Sahibs andMunshis, An Account of the College at Fort William, (New Delhi: Orion Publications, 1978); the chapter on the College at Fort William in Sinha, Pandits in a Changing Environment; and D. Kopf, British Orientalism and the Bengal Renaissance, the Dynamics of Indian Modernisation, 1773-1835, (Berkeley: University of California Press, 1969).  36 contained in the dharmasastra.  Jones was well known as a scholar of subjects  "oriental," even before his arrival in India. He was proficient in Persian and Arabic, in addition to Greek and Latin, and had published several works, including A Grammar of  the Persian Language in 1771 and Poems, Consisting of Translations from the Asiatick i Q 1  Languages in 1772.  Prior to his arrival in Bengal, Jones had conceived of the project of  compiling a complete digest of Hindu and Muslim laws for use in the Bengal civil courts: ... [it] had occurred to me before I left England... If we had a complete Digest of Hindu and Mohammedan laws, after the model of Justinian's inestimable Pandects, compiled by the most learned of the native lawyers, with an accurate verbal translation of it into English; and i f copies of the work were reposited in the proper offices of the Sedr Divani 'Adalat, and of the Supreme Court, that they might occasionally be consulted as a standard of justice, we should rarely be at a loss for principles at least and rules of law applicable to the cases before us... 82  Jones also spoke of his desire to compile Hindu and Muslim legal digests to his orientalist contemporaries during his second anniversary discourse to the Asiatick Society on the 24 of February, 1785: th  .. .and i f some standard law-tracts were accurately transcribed from the Sanscrit and Arabick, we might hope in time to see so complete a Digest  See Bayly, The Raj, p. 214. "On the Hindus" is the "Third Anniversary Discourse," presented by William Jones, the President, to The Asiatick Society, 2 February, 1786. See Asiatick Researches, Vol. 1, (5 Edition), (London: 1806 reprint), pp. 415-431. Jones' translation of Sacontala, or the Fatal Ring nd  th  1  2  (i.e. Kalidasa's Abhijnanasakuntalam) can be found in W. Jones, The Works ofSir William Jones, Vol. 10, (London: 1807). K.R. Brine, "Introduction," in Objects of Enquiry, G. Cannon & K.R. Brine (eds.), (New York: New York University Press, 1995), pp. 5-6. Jones had also published Histoire de Nader Chah in 1770 and Poeseos Asiaticae Commentariorum in 1774, in addition to being a tutor of Arabic at Oxford for a period. Jones maintained his interest in Oriental studies, as well as his participation in them, even following his matriculation at the bar in 1774, following which he made his living as a barrister on the Welsh and Oxford court circuits. See Brine "Introduction" pp. 6-7. All of these publications can be found reprinted in Jones, Works. Jones to the First Marquis of Cornwallis, 19 March, 1788, letter # 485 in Jones, Letters, p. 795. Lord Teignmouth, John Shore, in his biography of Jones, reproduces a list of research topics which Jones had composed during his voyage to India. It is entitled: "Objects of Enquiry during my residence in Asia." The first item listed is "The Laws of the Hindus and Mahommedans." Interestingly, the "Best Mode of governing Bengal" is sixth, while "To print and publish the Gospel of St. Luke in Arabic" is unnumbered. The list is dated 12 July, 1783. See Teignmouth, Memoirs of the Life, Writings and Correspondence of Sir William Jones, (London: 1804), p. 228. th  th  37  1  of Indian Laws, that all disputes among the natives might be decided without uncertainty... 83  The motivation behind Jones' project, as it had so far been conceived, seems to have included a variety of factors, including a commitment to Warren Hastings' policy of ruling British acquisitions in India according to "native law" as the most just method of legal administration: Nothing indeed could be more obviously just, than to determine private contests according to those laws, which the parties themselves had ever considered as the rules of their conduct and engagements in civil life. 84  Yet Jones also expressed a sense of mistrust directed towards the native assistants employed in British courts to promulgate the "law." Speaking of benefits of a compilation of Indian Laws, Jones wrote: .. .if we give judgement only from the opinions of the native lawyers and scholars, we can never be sure, that we have not been deceived by them.  85  Jones did not, however, formally submit his ideas for government approval until the 19  th  of March, 1788, in'the form of a letter to the first Marquis of Cornwallis, the new Governor-General. Comparing his project with that of Justinian of the Roman Empire,  83  W. Jones, "The Second Anniversary Discourse," in Asiatick Researches, Vol. 1, (5 Edition), (London, 1806), p. 412. Jones had founded the Asiatick Society on the 15 of January, 1784 ("Asiatick" soon became "Asiatic") under the patronage of Governor-General Warren Hastings, for "the purpose of enquiring into the history, civil and natural, the antiquities, arts, sciences, and literature of Asia." Letter of 22 January, 1784 to Warren Hastings, reprinted in Asiatick Researches, Vol. 1, p. v. See also O.P. th  th  nd  Kejariwal, The Asiatic Society ofBengal and the Discovery ofIndia's Past, 1784-1838, (Delhi: Oxford 84 85  University Press, 1988). Jones to the First Marquis of Cornwallis, 19* March, 1788, letter # 485 in Jones, Letters, p. 794. Jones to the First Marquis of Cornwallis, 19 March, 1788, letter # 485 in Jones, Letters, p. 795. This sense of mistrust seems to have also impelled Jones to learn Sanskrit, a task which he began to undertake in 1785, after having formerly sworn it off. See, for example, letter #396, dated the 5 of February, 1785, to William Pitt the Younger, in which Jones says that he is "almost tempted to learn [Sanskrit], that [he] may be a check on the pundits of the court." See p. 664, Jones, Letters. A month later, Jones had apparently made the decision, as he wrote to Charles Wilkins on the 1 of March, 1785, that he would learn Sanskrit in order to read Manusmrti, if he could procure the help of a "good pundit." See letter #397, in Jones, Letters, p. 665. In fact, Jones would begin to learn Sanskrit that summer in Nadia, a renowned centre of Sanskrit learning in Bengal, with the vaidya scholar Ramalocana. See Jones' series of letters from Nadia and nearby Krishnagar, dated 8 September to 30 September, 1785, in Jones, th  th  st  th  th  38 Jones argued that a legal digest could be completed with a high degree of exactness in a short period of time, with, of course, a limited expenditure. Yet Jones had also to address the issue of the existence of a previous Hindu legal digest, A Code of Gentoo Laws, and to distinguish his legal project from it: ... [the vivadarnavasetu] is, as far as it goes, a very excellent work; but, though it appear extremely diffuse on subjects rather curious than useful, and though the chapter on inheritance be copious and exact, yet the other important branch of jurisprudence, the law of contracts, is very succinctly and superficially discussed, and bears an inconsiderable proportion to the rest of the work. But, whatever be the merit of the original, the translation of it has no authority ... indeed, we cannot call it a translation:.. Jones' argument was therefore twofold: that the original Sanskrit legal digest was insufficient for the purposes of a full and just administration of Hindu Law to the Hindu population, and that the English translation, the Code, was defective and therefore useless to the English-speaking judges of Bengal. The Governor-General responded favourably to Jones' letter on the same day, appointing him to oversee the compilation and translation of the Indian legal digest. Jones was also granted carte blanche with regards to the number of pandits, maulavis, and writers which he could employ, all at the expense of the government.  88  Jones had  Letters, pp. 680-687. See also R. Rocher, "Weaving Knowledge: Sir William Jones and Indian Pandits,"  in Objects ofEnquiry, p. 56.  Jones to the First Marquis of Cornwallis, 19 March, 1788, letter # 485 in Jones, Letters, p. 797. In her recent Ph.D. dissertation, Nandini Bhattacharyya-Panda argues that the actual motives behind the drive for a second Hindu legal digest were less noble. She states that the Code accommodated and thereby reflected an anX\-zamindar bias, as the zamindars were seen to be a threat to Company supremacy in the first years following the divani. The second legal digest, however, was required because of a shift in official attitudes towards zamindars. They were no longer a threat, but were the supporting "bulwarks" of the regime. Whether this shift in administrative requirements was a significant factor in the original motivation for a new Hindu legal digest, or whether it was more of a factor in determining the content of the "laws" extracted from the voluminous dharmasastra, seems less than clear. These issues will be discussed further in coming chapters. See N. Bhattacharyya-Panda, "The English East India Company and the Hindu Laws of Property in Bengal, 1765-1801: Appropriation and Invention of Tradition," (Unpublished Ph.D. Thesis, Oxford University, 1992). Governor-General, the First Marquis of Cornwallis, to W. Jones, 19 March, 1788, in Jones, Letters, note 3, pp. 801-802. th  th  39 decided to employ two pandits, one each as experts in the laws of Bengal and Bihar, and two maulavis, one conversant in the doctrines of the sunnis, and one for the shi 'as. The th  _  s  two pandits were named in a 13 April, 1788 letter from Jones as Radhakanta Sarman (Tarkavagisa) and Sarvoru Candra Tripathi (Tivari)j Radhakanta's teacher, the highly 89  respected Jagannatha Tarkapancanana was later convinced to oversee the compilation of the Hindu digest.  90  Radhakanta, of whom Rosane Rocher has written a short biography, had formerly been associated with the sabha (jr*rr), or court, of the Maharaja Navakrsna, who had close ties with the British.  91  Radhakanta had also previously been employed by Warren  Hastings, not in the compilation of the Code, but in the 1783 composition of the  puranarthaprakdsa (M<i«ii«!y+iiii:), a digest of the puranas  (M<I IH), U  as well in the capacity of  i  a regular attendant to John Shore.  92  Interestingly, Radhakanta had accepted a gift of land  from Governor-General Hastings, as compensation for his work, and in the tradition of royal patronage, though he steadfastly refused a formal appointment to the Supreme Jones to the First Marquis of Cornwallis, 13 April, 1788, letter #487 in Jones, Letters, p. 802. See also R. Rocher, "The Career of Radhakanta Tarkavagisa, an Eighteenth Century Pandit in the British  Employ," in Journal of the American Oriental Society, 109.4, 1989, p. 630. 90  Cornwallis to the East India Company Court of Directors, 3 November, 1788, in Jones, Letters, note 1, p. 803. The plan was officially approved by the government on the 28 of April, 1790. The biography is R. Rocher, "The Career of Radhakanta Tarkavagisa, and Eighteenth Century Pandit in the British Employ," previously cited. Rocher states that Raja Navakrsna was "one of the richest and most influential residents of Calcutta ... an agent of the English East India Company." See "Weaving Knowledge: Sir William Jones and Indian Pandits," note 15, p. 73. Banerji describes Raja Navakrsna as having maintained a sabha (court) of pandits, as being the "political banyan of the English East India Company," and as "the founder of the Sovabazar Raj family of Calcutta, whose home was the favourite resort of men of learning." See B. Banerji, Dawn ofNew India, (Calcutta: M.C. Sarkar & Sons, 1927), p. 87. It is through the Raja that the services of many pandits were procured by the Company. Likewise, it was through the intermediary Raja Rajavallabha that the eleven pandits who compiled the vivadamavasetu were hired in 1773. See page 25 above. John Shore came to India in 1768, serving in the Secret Political Department. In 1798 he became Baron Teignmouth, and eventually published, under that name, Memoirs of the Life, Writings and Correspondence of Sir William Jones, previously cited. See Jones, Letters, note 2, p. 652. Shore succeeded Jones in the presidency of the Asiatic Society, and also held the post of Governor-General between 1793 and 1798. rd  th  91  92  40 Court of Judicature when it was offered in 1785.  93  It seems to have been financial  necessity which finally impelled Radhakanta to enter the employ of the East India Company, having previously approached William Jones sometime in 1787 to ask for his help in alleviating his grave financial situation.  94  Jagannatha Tarkapancahana was a well-known pandit in Bengal, and like his student, Radhakanta, was attached to the sabha of Maharaja Navakrsna. Cornwallis described Jagannatha as a: man ... much advanced in years, his opinion, learning and abilities are held in the highest veneration, and respect by all rank of people and the work will derive infinite credit and authority both, from the annexation of his name as a compiler and form his assistance. 95  Jagannatha was already quite old in 1788, and as such was appointed to oversee the compilation of the digest as chief pandit, and was also listed as the author of the resultant Sanskrit work vivadabhahgdrnava  (PHK'HJJ-I'JM:),  "the ocean of resolutions of disputes."  It was Radhakanta, however, who performed most of the work, aided by numerous assistants.  97  In addition, the Bihari pandit, Sarvoru, worked on his own and contributed  his part on the "laws" of Bihar, the vivadasararnava (r«HK*u<m:), "the ocean of all disputes," in 1789.  98  R. Rocher, "The Career of Radhakanta Tarkavagisa," pp. 627-628. Jones speculated that Radhakanta had refused the court appointment for religious reasons. See Jones' 16 August, 1787 letter to Shore, letter #465, in Jones, Letters, pp. 762-763, in which he discusses Radhakanta at length. Jones to J. Shore, 16 August, 1787, letter #465, in Jones, Letters, pp. 762-763. Cornwallis, minute of 22" August, 1788, quoted in Jones, Letters, note 1, page 803. A fair outline of Jagannatha's life is given in Banerji, Dawn ofNew India, pp. 71-91. The Sanskrit text of vivadabhangarnava can be found as an unpublished manuscript numbered 222-224, Ms. Wilson, in the Bodleian Library, Oxford. R. Rocher, "Weaving Knowledge: Sir William Jones and Indian Pandits," p. 62. Rocher lists five other Bengali pandits who assisted in the work: Guruprasada, Ramamohana, Ramanidhi, Ghanasyama, and Gangadhara. All were disciples of Jagannatha, though Ramanidhi was his son, and Ghanasyama his grandson. R. Rocher, "Weaving Knowledge: Sir William Jones and Indian Pandits," p. 62. th  th  96  41 In September of 1788 Jones wrote to Arthur Lee that he had been reading the Sanskrit version of the original law digest, the vivadarnavasetu, and that he had enlisted GaurTkanta, the same pandit who had previously supervised its translation into Persian, to correct i t . " He had also been reading and translating manusmrti.  xm  As such, Rocher  notes that Jones would annoy his colleagues on the bench of the Supreme Court of Judicature by challenging the veracity of the Code of Gentoo Laws, "on which judges were accustomed to rely," and whom wished to continue to defer to the pandits attendant to the court, until the new Hindu legal digest was ready in translation.  101  It was some time, however, before the Sanskrit compilation was ready for translation, as it was not completed until 1792. Even then, Jones continued to employ Sarvoru and Radhakanta in the collation and explanation of their works, which had grown to such an extent that it measured "six large volumes in folio."  Jones died on April  27 , 1794, however, before the translation of the legal digest had been completed. Henry th  Thomas Colebrooke took over the project after Jones' death, and completed the English translation in January of 1797. It was then published at Calcutta in 1798 under the title A  Digest of Hindu Law on Contracts and Successions, with a Commentary.  103  1  0  The  Jones to Arthur Lee, 28 September, 1788, letter #502, in Jones, Letters, p. 821. See also Rocher, "Weaving Knowledge: Sir William Jones and Indian Pandits," pp. 62-63. See above, p. 24. See letters #464,4 -30 August, 1787, Jones to second Earl Spencer, and #510, 27 February, 1789, Jones to Charles Wilkins, in Jones, Letters, pp. 747, 828 respectively. Jones' translation of manusmrti, th  th  th  th  entitled Institutes of Hindu Law; or, the Ordinances ofMenu, According to the Gloss of Callu 'ca. Comprising the Indian System ofDuties, Religious and Civil is reprinted in Jones, Works, Vols. 7 & 8.  1 2  Originally published at Calcutta, 1794. R. Rocher, "Weaving Knowledge: Sir William Jones and Indian Pandits," p. 63. See R. Rocher, "Weaving Knowledge: Sir William Jones and Indian Pandits," pp. 68-69. In his letter to Edward Hay, dated 6 November, 1792, Jones states: "The whole digest is completed by the pandits very much to my satisfaction; and they are all discharged except Servoru and Radhacant, whose assistance I still find necessary in collating the explaining six large volumes in folio." See letter #577, Jones, Letters, p. 912. Also, see letters #586, to John Shore, dated early October, 1783, and #592, to Henry Dundas, dated 1 March, 1794, pp. 918-919, 928, respectively. See Jones, Letters, note 2, p. 928. Further references to the Digest will be from its 1801 London reprinting for J. Debrett. th  st  3  42 publication of the Digest represented a landmark in the British rule of Bengal, for British judges then had a reasonable translation of the Hindu personal laws which they were empowered to impose upon the Hindu population within the newly re-structured judicature of Cornwallis,  104  and that further, they were now less dependent upon their  Indian legal assistants. The absolute authority of the "law" no longer rested with the pandit, the Indian scholar trained in the interpretation of the dharmasastra, but in the Book, to be read and applied by the British judge, As Rocher observes, the pandits were made secondary to the book which they had produced. It would be many more years, however, before the office of pandit assistant to the court would be abolished altogether in 1864, and the knowledge of the pandit made obsolete within the British system of justice.  105  The administration of civil justice as formulated under Cornwallis, remained largely unaltered for approximately twenty years. For further information on the period after 1813, see Misra, The Central  Administration of the East India Company, pp. 270-294.  R. Rocher, "Weaving Knowledge: Sir William Jones and Indian Pandits," pp. 70-71.  43  Chapter 2 Mapping the epistemic space  / - Introduction This second full chapter sets out to begin the examination of the creation of a civil judiciary in late eighteenth century Bengal, and the transformation of the dharmasastra into Hindu "law," by recourse to the explication of a concept which I have labelled "epistemic space." Although an epistemic space may be identified and defined by the discourses which inscribe that space, and further, by the group of "statements" which are thought by a reasonable speaker to constitute knowledge in a particular context of time and geographical space, it is the often-hidden relationships between discourse, knowledge, non-discursive factors and power that are of primary concern. The purpose of this chapter is, therefore, to examine several influential models for the conception of these relationships within a colonised space, and their application to late eighteenth century Bengal. While there are numerous ways in which epistemic space might be conceived and theorised, all such ways which will be considered here are related to the axiom that knowledge and power are intimately related; that they, in Foucault's words, "directly imply one another." Hence the .importance—for historians of imperialism and 1  colonialism—of the study of the forms, processes, and possessions of knowledge.  1  M . Foucault, Disciple and Punish, the Birth of the Prison, A. Sheridan, (trans.), (New York: Vintage Books, 1995), p. 27.  44  Beginning with the model posited by Edward Said in Orientalism, and then proceeding to examine subsequent refinements and criticisms to his approach, I argue for a theoretical conception of the epistemic space as containing objects of knowledge, each of which are constituted through numerous divergent discourses, and grounded in specific non-discursive conditions through the enunciation of the author. In addition, the second major section of this chapter charts the origins and representations of the legal discourse deployed by orientalists, British government officials, and East India Company servants. This discourse, which inscribes the epistemic objects related to the administration of Hindu "law," is utilised by government officials to justify the British rule of Bengal both to a European audience, and to themselves. Building upon these foundations, the third and final chapter attempts to analyse resistance on the part of the native informant, the  pandit, to this dominant discourse, as it is enunciated in the colonised space during the course of the compilation of the second digest of Hindu "law."  II - Epistemic mapping techniques: Foucault, Said, and beyond i) Orientalism, part 1: the insights of Edward Said Within the first few pages of Orientalism, Edward Said has distinguished three interdependent "things" denoted by the term "Orientalism," namely the academic discipline, a "style of thought" based upon the distinction between Orient and Occident, and the discourse of Orientalism, which Said characterises as a sort of "corporate institution for dealing with the Orient" which has prevailed in the West since the late eighteenth century.  2 3  Said states that this "corporate institution" is just a "discourse" as  E.W. Said, Orientalism, (New York: Vintage Books, 1979). Said, Orientalism, pp. 2-3. The connection between the discourse of Orientalism and the academic discipline is a predominant focus in Said's text, as the discipline is a principal mechanism for the  45  described by Michel Foucault, and that as such, it manages and produces the "Orient" politically, ideologically, and imaginatively. Orientalism thereby dominates the Orient, producing authority over it, and limiting thought and action regarding it, so that no one can act, think or write about the Orient without taking account of the limitations imposed upon thought and action by Orientalism. On one hand, the discourse of Orientalism is 4  homogenising, representing the Orient as a single entity, exotic, unchanging, degenerate, and essentially religious. On the other hand, it is particular, composed of a mass of nearly infinite detail, breaking down the Orient into easily manageable parts, and reconstituting it for European interests. Orientalism constructs the Orient as the Other of 5  the Occident, and in this way, the Orientalist, the philologist, the scientist, and the colonial administrator have produced a powerful representation of the "Orient." By knowing the Orient, the West has empowered itself to appropriate the Orient, speaking for it and ruling over it. Despite the manifold criticisms of Edward Said's Orientalism since its publication in 1978, the epistemic problems which his pioneering work raise have remained relevant for any historian of a colonised space. Drawing upon the work of Michel Foucault on discursive structure and operation in both The Archaeology of Knowledge and Discipline and Punish, as well as the writings of Antonio Gramsci, Said has brought to the study of  production and dissemination of the discourse. The relationship between the "style of thought," which is later characterised as "latent Orientalism" and the discourse, or "manifest Orientalism," is more problematic, as it is a borrowing from Freudian psychoanalysis which is used by Said to demonstrate that Orientalism is both changing and unchanging, as a part of his attempt to reconcile his anti-humanist methodology, derivedfromFoucault, with his commitment to the humanism of Erich Auerbach, which includes a conception of the agency of the individual. The distinction that Orientalism may have operated at two conflictual levels, the "manifest," or conscious, and the "latent," or unconscious, is later utilised by Homi Bhabha quite effectively in his work. Also, see R.J.C. Young, Colonial Desire,  4  Hybridity in Theory, Culture and Race, (London: Routledge, 1995), p. 161. Said, Orientalism, p. 3.  46 imperialism and colonialism a pervading awareness of the "deep articulation of knowledge with power." As Bart Moore-Gilbert has recently observed, Said's 6  formulation of the inter-relationship between Western representation and knowledge, on the one hand, and Western material and political power, on the other, is generally thought by critics such as Spivak and Bhabha to have effectively established the field of postcolonial studies. Moore-Gilbert, however, also takes pains to point out that the analysis of colonial systems of representation predate Said's seminal work with authors such as Fanon, Cesaire, Abdel Malik, and many others. It was Orientalism, however, which through its originary use of French "high theory" in that analysis, inaugurated a series of methodological approaches, and thereby set the terms for debate within the field •  •  7  of postcolonial studies. At the original publication of Orientalism in 1978, perhaps the most controversial of Said's claims—as viewed from within the field of "oriental studies" at least—was that the category of "pure knowledge," or "apolitical knowledge," was a fallacy, and that as such, scholars working contemporaneously (with Said) within the field of "oriental studies" or "area studies" were participating in an unbroken lineage of (Western) individuals constructing knowledge about the Orient dating back to an era of imperialism. Further, this lineage was and is involved in constructing knowledge about the Orient as a will to power over it; that is, Orientalist scholarship was and is manifestly political,  5  See L. Lowe, who also makes these points in Critical Terrains: French and British Orientalisms,  6  R.Young, White Mythologies, Writing History and the West, (London: Routledge, 1990), p. 11. See also Young, Colonial Desire, p. 159. B. Moore-Gilbert, Postcolonial Theory: Contexts, Practices, Politics, (London: Verso, 1997), pp. 15-16,  (Ithaca: Cornell University Press, 1991), pp. 3-4, notes 3,4.  7  34-35.  47 enabling Western domination of the Orient. Yet even in Said's Orientalism, there is 8  considerable tension in his formulation of the power/knowledge equation. As MooreGilbert has observed, Said seems to suggest in some instances that Western representations of the Orient enabled and perhaps even determined Western imperialism over the Orient. In other instances, however, he suggests just the opposite, that the academic discipline of Orientalism, and hence the regularised, institutionalised machinery for the production of Orientalist representation, was born out of, in particular, Napoleon's conquest of Egypt. Nevertheless, the value of Orientalism is that it 9  challenged the economic emphasis of Marxist cultural criticism, by characterising knowledge as the primary instrument of power, and by positing discourse to be the medium which constitutes that power, and through which it is exercised. ii) Michel Foucault and The Archaeology  of  10  Knowledge  Said's primary methodological tool, that knowledge is constructed according to a discursive field which "creates a representation of the object of knowledge, its constitution and its limits," is drawn primarily from Foucault's The Archaeology of 11  Knowledge. The central concept of Foucault's formulation of discourse in this pioneering work on discursive formation is the "statement," or "serious speech act," in the terminology of Dreyfus and Rabinow.  8  9 10 11 12  Although the exact nature of the statement is  See especially Said's last chapter, "Orientalism Now," in Orientalism, pp. 210-328. Reaction to Said's book within the academic establishment of area studies was often harsh and dismissive. See, for example, B. Lewis, "The Question of Orientalism" in The New York Review, June 24, 1982, pp. 49-55; also, D. Kopf, "Hermeneutics verses History" in Journal ofAsian Studies, XXXIX, 3, (May, 1980), pp. 495-506.  Moore-Gilbert, Postcolonial Theory, p. 41. Moore-Gilbert, Postcolonial Theory, p. 36. Young, White Mythologies, p. 126. H.L. Dreyfus & P. Rabinow, Michel Foucault: Beyond Structuralism and Hermeneutics, 2 Edition, nd  (Chicago: University of Chicago Press, 1983), p. 48; M . Foucault, The Archaeology ofKnowledge, (A.M. Sheridan Smith, trans.), (London: Tavistock Publications, 1972. Reprinted by Routledge, 1997).  48  fraught with difficulty—as Foucault's exchanges with John Searle demonstrate —it is clear that Foucault is not interested in affixing any sort of an absolute truth value or "deep meaning" to the statement, but simply desires to identify those statements which are considered, within the historical context in which they are uttered, to be true and authoritative without reference to any enunciative context, and thereby to constitute knowledge: Statements are ... things that are transmitted and preserved, that have value, and which one tries to appropriate; that are repeated, reproduced, and transformed; to which pre-established networks are adapted, and to which a status is given in the institution; 14  A "discursive formation" refers to the regularities which these statements exhibit in their relationship to one another, for no statement can stand in isolation from others: Whenever one candescribe, between a number of statements, such a system of dispersion, whenever, between objects, types of statement, concepts or thematic choices, one can define a regularity (an order, correlations, positions, and functionings, transformations), we will say, for the sake of convenience, that we are dealing with a discursive formation}  5  The "system of dispersion" which Foucault refers to in this quotation, and which Lowe interprets Foucault to posit as the "active principle" of discourse, refers to the apparent heterogeneity of statements, underneath which, one must attempt to discern a regularity.  16  Foucault's method, which he has termed "archaeology," is therefore a tool by which the  13  See Dreyfus & Rabinow, Michel Foucault: Beyond Structuralism and Hermeneutics, pp. 45-49, see especially p. 46, note 1. John Searle is a proponent of speech act theory, and the referent of their intellectual exchanges was the considered differences, or non-difference, between the "statement" and the "speech act."  14 15 16  Foucault, The Archaeology ofKnowledge, p 120. Foucault, The Archaeology ofKnowledge, p. 38.  See Lowe, Critical Terrains, note 5, p. 6. On page 37 of The Archaeology of Knowledge, Foucault asks upon what the unity of large groups of statements could be based. By examining these formations, however, he saw only heterogeneity: "what appeared to me were rather series full of gaps, intertwined with one another, interplays of differences, distances, substitutions, transformations..." Therefore, he resolves to describe these "dispersions" themselves, to see whether between these elements, a regularity can be discovered.  49 "archaeologist" analyses—without recourse to the truth or meaning claims of the statements—the discursive formation, or the network of statements, "as a system of elements ordered by rules of transformation."  17  Within any given epistemic space,  therefore, those statements which constitute a discursive formation also determine the content of the category of "knowledge" within that space. And further, it is the conception of "truth" as a device derived from, and produced within discursive practices, rather than as an absolute entity, which acts internally, within a discourse, to regulate it in 1R  form and content. Discursive formations must undergo transformation over time, for the group of statements which are thought to constitute knowledge in any given context vary over time. For example, statements which constitute knowledge about the natural world—that is, statements which are thought to be both true and justified by a reasonable speaker— vary over time, as the natural sciences refine and revise hypotheses which relate the "best available knowledge" of the natural world. Foucault has stated that a discursive formation does indeed undergo gradual transformation, but only according to its own internal rules. Lowe explains the transformation by referring to Foucault's concept of discourse as an "irregular" series of regularities, so that "neither the conditions of discursive formation nor the objects of knowledge are identical, or continuous through time."  19  Although Dreyfus and Rabinow do not believe that Foucault ever fully works  this concept out, his "system" of discursive transformation is essentially similar to "Wittgenstein family resemblance," so that, as family characteristics persist and 17 18 19  Dreyfus & Rabinow, Michel Foucault: Beyond Structuralism and Hermeneutics, pp. 53, 49. See Young, White Mythologies, p. 70.  Lowe, Critical Terrains, p. 6. I would add "geographical and/or cultural space" to the end of Lowe's sentence here. See below.  50 disappear over the generations, elements within discursive formations build upon the 20  foundation of earlier elements in an irregular fashion. Yet it would seem commonsensical to the historian that non-discursive practices, such as economic conditions, or political institutions, influence the development or change of discursive formations. Foucault defines non-discursive practices in The Archaeology of Knowledge as: an institutional field, a set of events, practices, and political decisions, a sequence of economic processes that also involve demographic fluctuations, techniques of public assistance, manpower needs, different levels of unemployment, etc. 21  Foucault states that archaeology is intended to individualise and describe discursive formations, which are presented in simultaneity, to relate them to one another, and relate them to "the non-discursive practices that surround them and serve as a general element for them."  22  Yet Foucault maintains that it is discursive formations which produce the  objects about which they speak, the objects of knowledge, and although Dreyfus and Rabinow state that Foucault is "aware that non-discursive practices play a role in forming 'objects,'" that role is downplayed in favour of the role of purely discursive relations.  23  Similarly, the role of non-discursive practices in the transformation of discursive formations is de-emphasised. It is within this framework that Foucault makes his important and ultimately compelling point that discourse limits those statements which  21 22  Dreyfus & Rabinow, Michel Foucault: Beyond Structuralism and Hermeneutics, p. 74. Foucault, The Archaeology ofKnowledge, p. 157. Foucault, 77ie Archaeology ofKnowledge, p. 157. My emphasis, intended to draw attention to the ambiguity of the term "relate." Dreyfus and Rabinow, as we shall see, interpret Foucault as saying that non-discursive factors "sustain" discursive formations, though he still maintains the essential autonomy  of discourse. See Dreyfus and Rabinow, Michel Foucault: Beyond Structuralism and Hermeneutics, p. 77.  23  Dreyfus & Rabinow, Michel Foucault: Beyond Structuralism and Hermeneutics, p. 62.  51  may possibly be made, by "using" non-discursive practices and giving them "unity."  24  Dreyfus and Rabinow, however, criticise Foucault's privileging of the role of discourse in (  the formation (and limitation) of objects of knowledge, and in the transformation of discursive formations, and emphasise that discourse is both dependent upon and influences the non-discursive practices which it "serves." It is this conception of the inter-relationship of discursive formations and non-discursive practices, their mutual dependence and influence, which renders discourse theory particularly intriguing for the analysis of history. iii) Orientalism, part 2: building upon Said's methodological framework  Said's Orientalism relies primarily on Foucault's methodology, although he also makes use of various other theories of cultural analysis, including, as noted previously, the humanism of Erich Auerbach.  As a result of this fusion of methodological approaches,  critics have often pointed to the "epistemological short-circuits" present in Orientalism?  1  Yet there are three fundamental problems with Said's rendering of the epistemic space from Foucauldian discourse theory, which subsequent theorists such as Lisa Lowe and Benita Parry have attempted to remedy, or perhaps to circumvent, in an effort to make Said's insights more historically and critically astute. Each of these three fundamental conceptual problems with the discourse of Orientalism can be related directly to Said's inadequate accounting of the actual, historical conditions of colonialism, as they existed 24 25  26 27  Dreyfus & Rabinow, Michel Foucault: Beyond Structuralism and Hermeneutics, p. 64. Dreyfus & Rabinow, Michel Foucault: Beyond Structuralism and Hermeneutics, p. 67. Dreyfus and Rabinow's example on p. 68 of the role of non-discursive practices such as apprenticeships in the transmission of knowledge, and the limitation of possible statements, is particularly persuasive. See Said's discussion of Auerbach in Orientalism, pp. 258-259. Commonly discussed contradictions include the chicken/egg dilemma referred to earlier, in the form of the quandary over whether Orientalist knowledge enabled colonialism, or colonialism enabled Orientalist knowledge, and the possibility of Said being able to circumvent and question a discourse which  in the colonised space, and which the discourse purports to represent, in addition to the »  relationships of those conditions to the production of that discourse.  Orientalism is  essentially a rendering of a Western epistemic space, and further it is one which 29  describes a determining discourse with no necessary connection to the object which it purports to represent, "the Orient."  As Said has stated, it is the texts of Orientalism  which create not only knowledge, but also the reality which they purport to describe.  28  2 9  30  31  purportedly holds everyone in its grip vis-a-vis representations of the Orient. See Moore-Gilbert, Postcolonial Theory, pp. 40-43 for a convenient summary of these criticisms. C A . Bayly has perceptively pointed out that a positive outcome of the progressive merging and overlap of the fields of literary studies and history is the contextualisation of discourses, and purely literary analysis. See "The Indian Empire and the British Imagination" in The Times Literary Supplement, July 12, 1996, p.29. Moore-Gilbert observes that Said obscures the sites of enunciation of the discourse of Orientalism, thereby obscuring cultural, geographical, and historical differences in the histories and cultures of Western imperialism. Said therefore homogenises the coloniser in his analysis, which, perhaps ironically, is something he accuses the coloniser of doing to subject peoples, through Orientalism. See Moore-Gilbert, Postcolonial Theory, p. 45. Homi Bhabha makes a similar point in "Difference, Discrimination and the Discourse of Colonialism" in The Politics of Theory, F. Barker et.al., (eds.), (Colchester: University of Essex, 1983), p. 200. This essay also appears, in a revised form, under the title: "The Other Question: Stereotype, discrimination and the discourse of colonialism" reprinted in The Location of Culture, (London: Routledge, 1994). See below for a discussion of Said's use of a conception of colonial representative power as repressive and unidirectional. See Young, Colonial Desire, p. 160. See also A. Ahmad's "Orientalism and After: Ambivalence and Metropolitan Location in the Work of Edward Said" reprinted in In Theory: Classes, Nations, Literatures, (Oxford: Oxford University Press, 1992). Ahmad states that discourse theory is nothing more than a Nietzschean anti-realist theory of representation, and that as such, it questions "the very facticity of facts" and asserts that "representation is always-already a misrepresentation." Ahmad's criticism is that the Orientalism discourse, formulated by Said as the authorising/empowering discourse of the West, through which Western knowledge of the Orient is constituted, necessarily results in the conclusion that all Western knowledge of the Orient is "bad knowledge." There is no access to any sort of a "truth" through discourse theory, for all knowledge of the Orient is in fact misrepresentation, and the Orientalism discourse is the only existent in the epistemic universe. Ahmad sums this up nicely with the formulation found on page 195: nothing, nothing at all, exists outside epistemic Power, logocentric Thought, Orientalist Discourse—no classes, no gender, not even history; no site of resistance, no accumulated projects of human liberation, since all is Repetition with Difference, all is corruption— specifically Western corruption—and Orientalism always remains the same, only more so with the linear accumulations of time.  31  Said, Orientalism, pp. 94-95. Young perceptively points out that a natural conclusion to the thesis that the discourse of Orientalism can say nothing about the actuality of the Orient, and that further, the discourse is inescapable for those writing about the Orient, is that "any obligation to address the reality of the historical.conditions of colonialism can be safely discarded." See Young, Colonial Desire, p. 160.  53 First, Said formulates Orientalism as a monolithic discourse; that is, a discourse that is the only epistemic construct regarding the object of knowledge "the Orient." Second, Orientialism is characterised as a singular discourse, one that is constructed solely by the dominant group)—the West—and then imposed upon the subordinate, colonised society in a unidirectional manner. The discourse of Orientalism is, then, both homogeneous and monological. Said's reliance on Foucauldian methodology, both his formulation of discourse, and the conception of repressive power—power resulting in "the non-reversible subordination of one group of people by another" —as developed in Discipline and Punish, results in the devising of a discourse against which there can be little, i f not no, effective resistance. This formulation of the exclusive power of the coloniser to mediate and create representation successfully is challenged by Homi Bhabha, who notes that such a notion simplifies both historical actuality and theoretical possibilities: There is always, in Said, the suggestion that colonial power and discourse is possessed entirely by the coloniser which is a historical and theoretical simplification. The terms in which Said's Orientalism is unified—the ) intentionality and unidirectionality of colonial power—also unify the subject of colonial enunciation. 33  Lisa Lowe has also pointed out in Critical Terrains that theories which create monoliths of singular, managing discourse greatly underestimate operative positions of resistance. Further, she states that:  Foucault, Disciple and Punish, pp. 222-223. Somewhat paradoxically, Foucault, earlier in the same book, characterises "power" somewhat less repressively, as a "micro-physics," which is conceived "not as a property, but as a strategy." This power is "exercised rather than possessed," and should be deciphered in "a network of relations, constantly in tension, in activity." Resistance to this power "does not, then, obey the law of all or nothing," for there are "innumerable points of confrontation, focuses of instability, each of which has its own risks of conflict, of struggles, and of an at least temporary inversion of the power relations." See pp. 26-27.  54 this type of dominant discourse theory minimises the significance of counter-representations and counter-cultures, and continues to subsume the resistance of emergent or minority positions to apparently dominant formations. 34  Despite Said's insistence that Orientalism is influenced by the works of both Foucault and Gramsci, the possibilities of resistance are drawn predominantly from Foucault, 35  who, as Moore-Gilbert observes, is "a profoundly pessimistic thinker in this respect."  36  The implications of "writing out" histories of resistance to colonial ideologies and cultural constructs, and transmitting only accounts of "spontaneous," violent resistance to colonial rule, have been noted by the Subaltern group of historians, as well as Benita Parry in a recent discussion of Gayatri Spivak's work.  In addition, Lata Mani has  questioned Spivak's declaration that the "subaltern cannot speak," that is, that the subjectivity of the colonised is irretrievable from textual instances of colonial discourse, by posing the declaration instead as the first of a series of questions. Aptly, these questions include "How can they [subalterns] be heard to be speaking or not speaking in a  Bhabha, "Difference, Discrimination and the Discourse of Colonialism," p. 200. Bhabha's work on the ambivalence of colonial discourse in its reception and deployment will be considered in greater detail in Chapter 3.  Lowe, Critical Terrains, p. 25. Said, Orientalism, pp. 3, 7. Moore-Gilbert, Postcolonial Theory, p. 49. This is not to say that Said does not draw upon Gramsci's work at all, for Orientalism utilises Gramsci's conceptions of "civil society" and "hegemony." Taking as its focus the "spontaneous" consent given by the mass of society to the "solicitation" of a dominant, minority sector of society, rather than the enforced consent imposed by coercive state apparatuses, Orientalism draws attention to the more subtle medium of cultural processes for the mediation of power in colonial contexts, rather than simply the military, physical force employed in quashing dissent. See A. Gramsci, Selections from the Prison Notebooks, Q. Hoare & G.N. Smith, (eds., trans.), (New York: International Publishers, 1971, reprinted 1997). See especially pp. 12-13 for "civil society" and "hegemony," and p. 59 for alternative focuses to military force in analyses. Further, Said utilises Gramsci's notion of the organic intellectual in order to build a theoretical position for himself by which to criticise the discourse of Orientalism. See below for Gramsci's conception of resistance to dominant cultural forms. See R. Guha & G.C. Spivak, (eds.), Selected Subaltern Studies, (Oxford: Oxford University Press, 1988), and B. Parry, "Problems in Current Theories of Colonial Discourse" reprinted in The PostColonial Studies Reader, B. Ashcrott, G. Griffiths, & H. Tiffin (eds.), (London: Routledge, 1995), pp. 36-44.  (  55  given set of materials?"  38  This question poses a challenge, therefore, to the generation of  post-Saidian scholars, to build upon the methodological framework developed in Orientalism, by retaining some of the most useful insights of discourse theory into epistemological formation, such as the limiting power of discourse to regulate the production of statements in any one particular context, yet also rendering it more v  responsive to the actual, historical conditions in which discourse is produced. In this respect, Lisa Lowe has argued for a heterogeneous discursive terrain, composed of multiple discourses, originating from various spaces or authors.  39  Lowe  denies the homogeneity of Orientalist discourse, by dividing it, in the first instance, into British and French Orientalisms. In this way, by denying the existence of a single, monolithic discourse, which solely produces the objects of knowledge or means of representation—the Orient as Other—she also denies the exclusive power of the coloniser to produce knowledge and authority.  40  That is, although British and French  Orientalisms are both discourses produced by the coloniser, the breaking up of the discursive field in this manner also allows for the possibility of subordinate, resistant discourses produced by the colonised, as well as of competing colonial discourses.  41  In  late eighteenth century Bengal, especially, one can read the presence of competing colonial discourses, representing the nature of Indian society in conflictual manners. For  38  39  L. Mani, "Cultural Theory, Colonial Texts: Reading Eyewitness Accounts of Widow Burning" in Cultural Studies, L. Grossberg, C. Nelson, and P. Treichler (eds.), (London: Routledge, 1992), p. 403, emphasis added. See Lowe, Critical Terrains, pp. 3-5. Lowe's use of the term "discursive terrain" is highly illustrative of her main arguments. Thought of in spatial terms, one can more easily visualise/conceptualise an object of knowledge crossed and constituted by heterogeneous discourses of colonialism, gender, race, class, etc. I have built upon her usage with the term "epistemic space."  40  Lowe, Critical Terrains, p. 4.  41  The breaking up of the Orientalist discursive field, which began with Lowe's distinction between different national Orientalist discourses, has been taken a step further with Reina Lewis' Gendering Orientalism, which purports to show that Orientalist discourse differed in its representations of the Orient  56 example, during the British debate over whether to administer English civil law to the native inhabitants of Bengal, or a form of "indigenous law," competing factions within the East India Company and the British government sought to characterise Indian "society" as either lawless, or alternatively, in possession of ancient "laws" in need of restoration. Further, there must have existed indigenous, scholarly discourse(s) which characterised Hindu society, especially, in a distinct manner, from the understanding of the pandits of the role of the dharmasastra in daily life. It is here that Lowe's use of Gramsci's theory of cultural hegemony, as a process by which an elite negotiates consent to rule through various social, cultural and ideological practices, lends explanatory power to discourse theory, for it highlights the underestimation of "monolithic" discourse theory of contradictory and resistant discourses subsumed underneath the dominant, or elite discourse.  42  The third fundamental problem with Said's rendering of the discourse of Orientalism is that it is characterised as a discourse which is essentially self-referential— an enclosed system. This is due to Said's reliance on Foucauldian concepts of discursive formation that ignore the role of non-discursive factors such as gender, class, economic policy, and political institutions in the formation of discourse. As discussed above, Lisa Lowe has argued for a heterogeneous discursive terrain, composed of multiple i  discourses, originating from various spaces or authors. Yet she also addresses this shortcoming in Foucauldian discourse theory by bringing discursive formations into a ' causal, interactive relationship with non-discursive practices through the supposition that these multiple discourses are each contextually surrounded and influenced by according to the gender of the purveyor. See R. Lewis, Gendering Orientalism: Race, Femininity and Representation, (London: Routledge, 1996).  57 heterogeneous conditions of gender, class, race, social positionality, economics, etc.  43  Lowe accomplishes this by asserting that Gramsci's notion of hegemony—"the entire process of negotiation, dissent, and compromise whereby a particular group or ideological formation gains the consent of the larger body to lead" —provides a 44  theoretical framework which ties the processes through which dominant discursive formations maintain dominance for a time to various dominant and subaltern groups, all of which are defined by the historian in relation to factors of economics, social positionality, political standing, gender and race.  45  Yet Said also breaks from Foucault's devising of discursive formations by asserting that the individual author possesses some measure of power in the determination of the discursive formation, thereby making the connection between the individual author and the production of discourse in Orientalism. Said states: .. .unlike Michel Foucault... I do believe in the determining imprint of individual writers upon the otherwise anonymous collective body of texts constituting a discursive formation like Orientalism ... Foucault believes that in general the individual text or author counts for very little; empirically, in the case of Orientalism (and perhaps nowhere else) I find this not to be so 4 6  It is this connection between the author, upon whom non-discursive factors such as economic conditions, gender, and political institutions act, and the discourse, which is constituted by and, in turn, influences individual textual formations, which may also be thought to provide the causal link through which non-discursive factors and discursive formations interact upon one another. That is, non-discursive practices may be conceived  Lowe, Critical Terrains, Lowe, Critical Terrains, Lowe, Critical Terrains, Lowe, Critical Terrains, Said, Orientalism, p. 23.  see pp. 16-19. pp. 3-5. p. 16. pp. 10-21.  58 to influence the transformation and production of discourse, by working through the individual author.  47  Further, the author may be placed in such a causal connection with non-discursive factors by virtue of membership in what C A . Bayly has called a "knowledge community."  48  Although Lowe would identify the site of the enunciation of a discourse  by virtue of its relationship to dominant or subaltern groups, defined according to factors of economics, social positionality, etc., as dictated by her adherence to Gramsci's methodology, the definition of a knowledge community such as "Bengali pandits" or "orientalists," is in effect, a similar exercise, for these groups are identified not only according to the knowledge which they purport to possess, but also their social standing, occupation, and even race.  49  The advantage, however, of conceiving of an author as a  member of a knowledge community, rather than solely as a member of a economic/political group, is that it also takes account of the influence of intellectual  Said himself might provide a useful example in this case. If we consider Orientalism to be a discourse, and consider everybody, academics especially, in the mid-1970's to be in the throes of it, then Said is able to transcend that discourse, thereby transforming it in a fundamental fashion. Further, Said, as an individual author of a highly influential work, is able to transcend and influence the discourse, at least partly, because of his own background as an ex-colonial subject, and a member of a displaced Palestinian community. It is through the author that the discursive formation itself is acted upon by non-discursive factors such as economic conditions, political institutions, etc. C A . Bayly, Empire and Information, (Cambridge: Cambridge University Press, 1996), p. 9. Although a knowledge community is defined somewhat retrospectively by the historian, it is evident that in specific contexts, different groups of people will define or describe not only different epistemic objects, according to their areas of interest or experience, but will also characterise similar "things" in differing ways. For example, the epistemic objects encountered and described by a Bengali sea-going merchant trader in the eighteenth century are different from those encountered by an inland farmer. Further, to use a broadly drawn example, an apple is characterised differently by the professional discourses of an apple farmer and an archer. Yet even though the historical actors within one particular knowledge community possess knowledge of varying degrees and varying kinds, I take as foundational the assertion that history can only be known through discursive structures, and so take as the object of historical enquiry the textual productions of somewhat heterogeneous groups, which still nevertheless constitute a discursive formation. The knowledge communities with which we will be primarily concerned in this thesis are the community of pandits conversant in the dictates of mlmamsa (*flHi'yi) and nyaya logical reasoning and its application to the precepts of the dharmasastra in the compilation of dharmasastra nibandhas, and the group of scholar/administrators (orientalists) employed by either the East India Company or the British government. See also the discussion of Robert Young's work in B.  59 trends, such as the Scottish Enlightenment, or the influence of intellectual methodologies such as nyaya philosophical reasoning, in the formation of epistemic objects. Members of knowledge communities may be conceived, therefore, to be working within shared discursive formations with respect to the characterisation of epistemic objects. The two approaches may, then, be seen as complementary rather than in conflict. Said's conception of the individual author, however, is in direct conflict with his utilisation of Foucault's anti-humanist methodology, which conceives of the author not as an independent, sovereign individual, who is the "owner" and "origin" of the textual production, but as an expression, or "function" of the discursive system.  50  Foucault, as  noted above, is interested in the analysis of the regularities exhibited by the network of statements, and the way in which these regularities are transformed through the internal  rules of discursive formations.  51  Indeed, this contradiction in Said's work is symptomatic  of the recurrent stress between his anti-humanist methodology and his continued commitment to humanism, and so raises the salient question of whether the concept of discourse can be consistently brought into an influential connection with the author and, indeed, even non-discursive factors.  50  51  Schwarz, "Conquerors of Truth: Reflections on Postcolonial Theory," in The Expansion of England: Race, Ethnicity and Cultural History, B. Schwarz (ed.), (London: Routledge, 1996), esp. pp. 24-25. M . Foucault, "What is an Author?" reprinted in Modern Criticism and Theory, D. Lodge (ed.), (London: Longman, 1988), pp. 197-210. In the conclusion to The Archaeology of Knowledge, Foucault writes "I know how irritating it can be to treat discourses in terms not of the gentle, silent, intimate consciousness that is expressed in them, but of an obscure set of anonymous rules. How unpleasant it is to reveal the limitations and necessities of a practice where one is used to seeing, in all its pure transparency, the expression of genius and freedom." The humanist would object that "Is not discourse, in its most profound determination, a 'trace'? And is its murmur not the place of insubstantial immortalities?" But Foucault answers "They have probably found it difficult enough to recognise that their history, their economics, their social practices, the language (langue) that they speak, the mythology of their ancestors, even the stories that they were told in their childhood, are governed by rules that are not all given to their consciousness ... they prefer to deny that discourse is a complex, differentiated'practice, governed by analysable rules and transformations, rather than be deprived of that tender, consoling certainty of being able to change, if not the world, if not life, at least their 'meaning'..." See pp. 210-211.  60 Aijaz Ahmad, whose scathing criticism of Said has brought him some measure of notoriety, focuses on just this methodological tension in Orientalism.  52  Yet Ahmad's  criticism is rendered less effective by his continued commitment to an exclusively Marxist analysis, and therefore his devaluation of the methodological possibilities of combining several theoretical perspectives. Benita Parry, in her review of In Theory, points out that while many critiques of Orientalism, including Ahmad's, have consistently played up these methodological "contradictions," relatively few have highlighted the "productive tension" of employing several modes of analysis—an approach which has proven particularly fruitful for theorists such as Homi Bhabha.  53  In order to circumvent this methodological conflict, and bring the influence of non-discursive factors to bear upon discursive formations through the enunciation of the author, Said's concept of the author as able to transgress the dominant discourse of Orientalism must be discarded. Such a move is impossible for Said, for in his rendering of the epistemic space as dominated by a singular discourse he is required to posit the existence of the human as "agent" and "instigator" in order to secure his own ability to stand outside the discourse and criticise it.  54  Yet when the epistemic space is opened up  to allow for multiple discourses, Said's theoretical strategy is no longer required, for individual authors may be seen to criticise an object of knowledge as constituted by a particular discourse by virtue of their place in a knowledge community which inscribes  52  53  Ahmad, "Orientalism and After." For example, "Said borrows his language from so many different kinds of conceptual frameworks and intellectual disciplines that one is simply bewildered," p. 182. James Clifford also focuses on this methodological tension in his more tempered critique of Orientalism, in "On Orientalism," reprinted in The Predicament of Culture, (Cambridge, Mass.: Harvard University Press, 1988).  B. Parry, "Review of Aijaz Ahmad's In Theory: Classes, Nations, Literatures," in History Workshop  Journal, 36, (1993), pp. 232-243.  61 that object through a different, or divergent discourse. This is not to concede, alternatively, that the author should necessarily be viewed as a "function" of the discursive system, but perhaps more acceptably, as a relatively "autonomous dialogic agent" who, nevertheless, operates within the dictates of a discursive system by virtue of membership in a particular knowledge community, and the desire of those members to be understood within that community. As an autonomous dialogic agent, a member of a knowledge community imposes upon the epistemic objects within a dialogue his/her meanings and interpretations according to the dictates of the discourse in which he/she stands.  ///— The legal discourse of legitimation, and its characteristics i) Introduction This last section of the second chapter describes the characteristics of the dominant, colonial discourse deployed by orientalists, British government officials, and East India Company servants—a discourse which circumscribed the codification and implementation of Hindu law in late eighteenth century Bengal. This discourse was utilised in a justificatory capacity for the rule of Bengal, and India, by the East India Company, through a specific characterisation of epistemic objects, including the nature of the Mughal polity, Indian (Hindu) society, the native legal expert ("lawyer"), and the ancient "civil law" contained in the dharmasastra. This discourse addressed primarily three "topics:" (1) the organisation of the judiciary, that is, the administrative machinery for the dispensation of justice through the  54  See Young, White Mythologies, pp. 134-135. Young notes that Said secures his position through the "awkward meshing" of Foucault's discursive system and Gramsci's organic intellectual, which stresses Said's "strategic location" vis-a-vis the material he writes about.  62 regular imposition of law in Bengal, (2) the "type" of law to be administered in that judiciary, and (3) the authoritative content of that law. The first two of these topics, the organisation of the judiciary and the type of law to be administered, were matters of considerable debate between several groups of Europeans resident in India and Europe in the late eighteenth century. In fact, there existed two "sub-species" of the colonial legal discourse, which competed with one another in a purely Western arena over the representations of Hindu society. Only one of these, however, gained favour with orientalists in India: the representation of Hindu society as possessing ancient civil laws. Additionally, representations of the nature of the Indian polity and Indian society were largely constructed from European preconceptions of the nature of "civil society" and "law." This section also attempts to describe the discursive foundations for the construction of these representations by the knowledge community of orientalists. Homi Bhabha has noted that discourses must be enunciated, and that away from the safety of the West, epistemic objects fashioned in colonial discourse, in particular, are liable to contestation from colonised groups.  55  When one examines the justificatory  utilisation of the colonial legal discourse by orientalists such as William Jones, in publications and writings intended for a European audience, the power of representation cannot but rest entirely with the coloniser. In European debates over whether to impose English civil law in India, the only "resistant" discourses are those also deployed by the coloniser and which represent the nature of Indian society in a different manner. The third topic, however, addressed by the dominant, colonial discourse—the content of the  55  See, in particular, H.K. Bhabha, "The other question: Stereotype, discrimination and the discourse of colonialism," "Of mimicry and man: The ambivalence of colonial discourse," "Sly civility," and "Signs takes for wonders: Questions of ambivalence and authority under a tree outside Delhi, May 1817," all  reprinted in The Location of Culture.  "civil law" to be administered in Bengal—can be read as a locus for competing discourses between the coloniser, particularly the orientalist, and the colonised, the "native informant." This is due to the simple fact that orientalists and Company administrators were reliant upon native informants for access to the textual, cultural materials which were purported to contain the operative law of the Bengali and Bihari Hindus, the dharmasastra. As a locus for competing discourses, enunciated by coloniser N  and colonised, the creation of "Hindu Law" for administration in the judicature during the last thirty years of the eighteenth century is a site for the reading of resistance and a degree of subjectivity on the part of the native legal assistant, the pandit, against the demands of a dominant, colonial discourse. The third and final chapter, then, attempts to reconstruct a discourse of resistance to the dictates of the dominant, legal discourse, and then to plot these two discourses, employed by the orientalist and the pandit, respectively, in a process of inter-cultural dialogue over the representation of the epistemic objects "law" and "dharmasastra." A process, which, in time, gave birth to "Hindu Law." ii) The European concepts of justice, civil society, law, and liberty The principal discourse deployed by the British in the last.decades of the eighteenth century regarding the judicature in Bengal was framed by considerations of doing "justice" within that context. That is, the colonial, legal discourse, though it might be thought to correspond with the general characteristics of the Orientalist discourse, as identified by Said in Orientalism, was born out of, and took its impelling frameworks from Western notions of "justice," "civil society," "law," and "civil liberty." Indeed, the implementation of the Judicial Plan of 1772, which outlined the organisation of the civil judicature under the East India Company, was intended to promote the proliferation of "justice" through the "proper" operation of the judicature.  64 In eighteenth century British intellectual circles, the concept of "justice" elicited a general sense of the equality of respect and rights of individuals in society, and the fair settlement of disputes.  56  The concept of "justice" also conformed to a more specific  meaning, however, related by the Latin tag "suum cuique tribuere," which means "to allocate to each their own."  57  In this more precise usage, distributive justice is concerned  to allocate to each individual member of society his/her individual entitlement. This individual entitlement is determined in conformity with the law, which was understood in eighteenth century Europe to be "that aggregate or totality of rules which are or may be enforced upon the subject by the courts of the State."  58  The performance of an action in  accordance with the law is legal, and those actions which contradict the law, are illegal. Further, an action or a decision passed by a judge is considered "just" i f it is deemed to be in accordance with the laws of that juridical system; that is, distributive justice conforms to legality.  59  Further, and by extrapolation, a "civil society" is distinguished  from the "state of nature" by the presence of these civil laws which guaranteed individual justice. Thomas Hobbes, the influential seventeenth century author of Leviathan, distinguishes two states of humankind, the first being the "state of nature," or the natural state of humankind, distinguished by warfare, and the "state of civil society," in which  G.S. Kavka, Hobbesian Moral and Political Theory, (Princeton: Princeton University Press, 1986), esp. pp. 375-378. A Dictionary ojPhilosophy, (London: Pan Books, 1979). Aristotle distinguished distributive justice from corrective justice. The former is concerned with the just allocation of material goods, while the latter is concerned with punishment for offences which have been committed in the past. See Aristotle's Nicomachean Ethics, (London: Oxford University Press, 1954). J.D.M. Derrett, Religion, Law and the State in India, (London: Faber & Faber, 1968), p. 35. R. Lingat, The Classical Law of India, J.D.M. Derrett, (trans.), (Berkeley: University of California Press, 1973), p. 257.  65  warfare is ended by the covenant of the social contract. Hobbes' famous quote from Leviathan describes the state of nature to be: .. .where every man is Enemy to every man; the same is consequent to the time, wherein men live without other security, than their own strength ... there is no place for Industry; because the fruit thereof is uncertain: and consequently no Culture of the Earth ... no Knowledge of the face of the Earth; no account of Time; no Arts; no Letters; no Society; and which is worst of all, continuall feare, and danger of violent death; and the life of man, solitary, poore, nasty, brutish, and short. 60  Civil society is distinguished from the state of nature by the absence of these qualities, obtained through the creation of the state, the "common-wealth." The presence of civil laws and a judiciary to administer them are considered by Hobbes to be an integral, defining aspect of the "common-wealth:" For by Art is created that great LEVIATHAN called a COMMON-WEALTH, or STATE, (in latine CIVITAS) which is but an Artificiall Man ... and in which, the Soveraignty is an Artificiall Soul, as giving life and motion to the whole body; The Magistrates, and other Officers of Judicature and Execution, artificiall Joynts .. . 61  By virtue of the social contract, and the creation of the state, Hobbes also describes the right of individuals within a civil society to "propriety," or distributive justice, under the civil laws of that society. He defines justice as "the constant will of giving to every man his own."  62  And further, that justice is wholly dependent upon the presence and  implementation of civil laws within the state: .. .even Cicero, (a passionate defender of Liberty,) in a publique pleading, attributeth all Propriety to the Law Civil, Let the Civill Law, saith he, be  once abandoned, or but negligently guarded, (not to say oppressed,) and there is nothing, that any man can be sure to receive from his Ancestor, or leave to his Children. And again, Take away the Civill Law, and no man knows what is his own, and what another mans. Seeing therefore the introduction of Propriety is an effect of Common-wealth ... it is the act 60 61 62  T. Hobbes, Leviathan, R. Tuck, (ed.), (Cambridge: Cambridge University Press, 1996), Chap. 13, p. 89. Hobbes, Leviathan, Introduction, p. 9, emphasis in original Hobbes, Leviathan, Chap. 15, p. 101, emphasis in original.  J  66  onely of the Soveraign; and consisteth in the Lawes... And this they well knew of old, who called that Nouog (that is to say, Distribution) which we 63  call Law; and defined Justice, by distributing to every man his own. A civil society, therefore, was thought to be determined by the presence of civil laws which guaranteed to any member of that society the equitable, or just, distribution of property as they might reasonably be entitled to. Further, the judiciary, or the court system, is conceived to be the mechanism for the administration of that justice. The presence of civil laws in society, and their regular implementation by the judiciary, provides to the subject of the state "civil liberty," or "freedom." That is, the rule of law provides civil rights to the subject, and distinguishes him/her from the "slave" without such rights; the slave who lives under the arbitrary will of the despot. In his first "Charge to the Grand Jury" on December 4, 1783, William Jones echoes these sentiments clearly: The use of law, as a science, is to prevent mere discretionary power under the colour of equity; and it is the duty of a judge to pronounce his decisions, not simply according to his own opinion of justice and right, but according to prescribed rules. It must be hoped, that his own reason generally approved those rules; but it is the judgement of the law, not his own, which he delivers. Were judges to decide by their bare opinions of right and wrong, opinions always unknown, often capricious, sometimes improperly biased, to what an arbitrary tribunal would men be subject! In how dreadful a state of slavery they would live! Let us be satisfied, gentlemen, with law, which all, who please, may understand, and not call for equity in its popular sense, which differs in different men, and must at best be dark and uncertain. 64  Jones clearly draws the implicit comparison here between the workings of the English judiciary and that of the former government of the navab—a judiciary "arbitrary" in  Hobbes, Leviathan, Chap. 24, p. 171, emphasis in original. W. Jones, "Charge to the Grand Jury, at Calcutta, December 4, 1783," in W. Jones, 77je Works of Sir William Jones, in 13 Volumes, (London: 1807), Vol. 7, pp. 4-5.  )  6  7  nature and resulting in the "slavery" of its subjects, rather than the freedom afforded an individual resident in civil society—even under colonial rule, iii) Justice and the European rendering of the Mughal polity In the late eighteenth century, British administrators and politicians would have been well-versed in the learned British political philosophies which built upon the Greeco- . Roman tradition of distributive justice, and indeed, the 1772 Plan for the Administration of Justice contains numerous references to "justice" in the reorganisation of the judicature, such as: .. .to prevent confusion, and a perversion of justice... ... in order to facilitate the course of justice in trivial causes... .. .as nothing is more conductive to the prosperity of any country, than a free and easy access to.justice and redress.. . 6 5  These three extracts neatly summarise the dominant British conception regarding their reorganisation of the Mughal judicature in 1772, for it was intended to prevent injustice, which was seen to be an effect of the irregular workings of the former judicature under the Mughals, to promote justice under the improved workings of the new system, and as a result, to bring about the prosperity of British territories in India. The Seventh Report from the Committee of Secrecy appointed to enquire into the th  state of the East India Company, dated May 6 , 1773, contains ample material gathered and presented to Parliament on the arrangements for the organisation of the judicature in Bengal, as imposed the year previous by the East India Company. Particularly, the Committee was concerned to determine that the Company had based its civil judiciary 65  "The Plan for the Administration of Justice," in the 15 August, 1772 proceedings of the Committee of Circuit, in "The Seventh Report from the Committee of Secrecy appointed to enquire into the State of the th  68 upon the Mughal model, to ensure that the indigenous population of Bengal were familiar with the workings of it ("to prevent confusion, and a perversion of justice"). The Company, however, was also expected to have improved upon the Mughal judiciary, by restoring it to proper working order ("in order to facilitate the course of justice"), for the operation of the judiciary was perceived to have deteriorated, thereby impeding distributive justice, under the "despotic" regime of the navab: The administration of justice, both in the capital, and in the several districts, was distributed into different branches of judicature ... these judicatures were not guided by any regular system of law; that the Khoran was the only code, and its commentaries the only authorities, allowed in that country; that they were afforded no rule of decision, the customs and usage of the country, if applicable to the case, were the proper guide; but that the rules derived from these sources were in general very loose and uncertain; and that the necessary consequence of so imperfect a system of law, rendered the exercise of criminal and civil judicature in Bengal, in a great measure discretionary. 66  This sentiment is echoed by Warren Hastings, in his 1774 description of the Judicial Plan of 1772: In this establishment no essential change was made in the ancient constitution of the province. It was only brought back to its original principles, and the line prescribed for the jurisdiction of each Court, which the looseness of the Mugal government of some years passed had suffered to encroach upon each other. 67  i  East India Company," dated 6 May, 1773, Great Britain, House of Commons, ReportsfromCommittees th  of the House ofCommons,1715-1801. Volume IV, pp. 348-349.  "The Seventh Reportfromthe Committee of Secrecy appointed to enquire into the State of the East India Company," dated 6 May, 1773, Great Britain, House of Commons, Reports from Committees of the th  House of Commons, 1715-1801. Volume IV, p. 324.  Hastings to Lord Mansfield, 21 March, 1774, in G.R. Gleig, Memoirs of the Life of the Right Honourable Warren Hastings, in 3 Volumes, (London: Richard Bentley, 1841), Vol. I, p. 401. st  69  This deterioration of the judicature included the irregular workings of procedure, the corruption of judges, and further, the denial of equal access for all Indians to the judiciary zo  due to its central location. The Committee obviously felt that the workings of the judiciary had deteriorated, but further, that under the government of the  navab,  by its very nature as despotic, the  organisation of the judiciary alone was insufficient to guarantee the subjects of that regime access to justice through the regular implementation of the civil laws of the land: The administration of justice, during the vigour of the ancient constitution, was liable to great abuse and oppression that the judges generally lay under that of corruption; and that the interposition of government, from motives of favour or displeasure, was another frequent cause of the perversion of justice... 6  The subjects of the Mogul empire in that province derived little protection or security from any of these courts; and that in general, though forms of judicature  were established  government  rendered  and preserved,  them the instruments  the despotic principles of power  of  rather than of justice,  not only unavailing to protect the people, but often the means of the most grievous oppression, under the cloak of the judicial character. 70  By rendering the government of the  navab  as despotic, the government of the East India  Company in Bengal is justified through its promotion of distributive justice for the inhabitants of Bengal by the "proper," and regularised administration of the laws of India.  Under the Mughal judiciary, the judge was entitled to a share of the judgement awarded. Further, the British believed that the "lower class of people" were afforded hardship by their inability to travel to the seat of the judicature, which was usually only at the village of the zamindar in the often large zamindari district. See "The Seventh Report from the Committee of Secrecy appointed to enquire into the State of the East India Company," dated 6 May, 1773, Great Britain, House of Commons, Reports from th  Committees of the House of Commons, 1715-1801. Volume IV, p. 324.  "The Seventh Report from the Committee of Secrecy appointed to enquire into the State of the East India Company," dated 6* May, 1773, Great Britain, House of Commons, Reports from Committees of the  House of Commons, 1715-1801. Volume IV, p. 324.  "The Seventh Report from the Committee of Secrecy appointed to enquire into the State of the East India Company," dated 6 May, 1773, Great Britain, House of Commons, Reports from Committees of the House of Commons, 1715-1801. Volume IV, p. 325, emphasis added. Further, "the general principles of all despotic governments, that every degree of power shall be simple and undivided, seems necessarily to have introduced itself into the courts of justice..." See p. 346 of the same report. th  70 Further, the terms of reference in the philosophical framework provided by political philosophers such as Thomas Hobbes, elicits the additional justification of British intervention by allowing for the conception of the Indian subjects of the former Mughal government as either incapable of demanding civil justice from their government, or incapable of cognising such a demand by virtue of their ignorance of advanced, "civil-ised" Western forms of government.  71  Civil justice must therefore be  given to Bengal by the East India Company. This is clearly expressed by Sir William Jones in a 1 October, 1786 letter to Arthur Lee: st  I shall never cease thinking, that rational liberty makes men virtuous; and virtue, happy: wishing therefore ardently for universal happiness, I wish for university liberty. But your observation on the Hindus is too just: they are incapable of civil liberty; few of them have an idea of it; and those, who have, do not wish it. They must (I deplore the evil, but know the necessity of it) they must be ruled by an absolute power; and I feel my pain alleviated by knowing the natives themselves as well as from observation, that they are happier under us than they were or could have 79  been under the Sultans of Dehli or petty Rajas. Justice, and particularly distributive justice, is seen to be done therefore, in the eyes of the British parliament, at least, through the deployment of a colonial, legal discourse which sets up a series of dialectical epistemic objects. These object-pairs, which might be thought to correspond to the Hegelian Self-Other dialectic, define the Mughal polity and Indian society by comparison to "the West" within a particular, Western philosophical framework. These object-pairs include: the despotic political power which circumvents the operation of the judicature/the civil-ised political power which re-instates the proper 71  Tejaswini Niranjana has argued that William Jones conceived of the Hindus as "submissive" due to their long existence under a despotic regime, and further, that their laws "do not permit the question of liberty  to be raised." See T. Niranjana, Siting Translation: History, Post-Structuralism, and the Colonial  72  Context, (Berkeley: University of California Press, 1992), p. 14. W. Jones to A. Lee, letter # 443 in The Letters of Sir William Jones, in 2 Volumes, G. Cannon (ed.), (Oxford: Oxford University Press, 1970), Vol. II, pp. 712-713.  71 workings of the judicature; the despotic government which causes the operation of the judicature to devolve/the Western government which seeks to re-establish the principles of justice in the land through the proper working of the judicature; the society which allows civil justice to be undermined, or perhaps the society which cannot conceive of civil justice/the society which provides a guiding hand, which provides that civil justice in a project of "improvement." Yet in the more than twenty years between the Judicial Plan of 1772, and the Judicial Plan of 1793, the organisation of the civil judicature underwent numerous revisions, seemingly flip-flopping back and forth between configurations which favoured the expedient collection of taxation revenue, and those which were thought'to eliminate case backlogs and corruption, and thereby promote the ideals of justice. As noted in Chapter One, the empowerment of the revenue boards in 1773 and 1774 was intended primarily to bring the administration of civil justice into the service of revenue collection, as was the uniting of revenue and judicial functions under the office of the collector as judge and magistrate in the Judicial Plan of 1787.  73  Following the undesirable  consequences of these administrative arrangements, however, which included the irregular conduct of some members of the revenue councils, in the case of the former, and large backlogs of cases waiting to be heard, in the latter instance, impelled once again Governor General Cornwallis' call for the return to an administrative arrangement for the collection of taxation revenue and the administration of civil law which promoted "justice."  73 74  74  Governor General Cornwallis had drafted and implemented the Judicial Plan  See pages 28-33 above. Cornwallis especially would have been cognisant during the trial of Warren Hastings of the comparisons being made between the "despotic" government of the East India Company, and the despotisms of the  former navabs. See, for example, K. Teltscher, India Inscribed, European and British Writing on India  72 of 1793, which resulted in the separation of the offices of magistrate and district revenue collector, in an effort to end the "unjustifiable acts of oppression" which resulted from the Plan of 1787. These acts of oppression included the delay of bringing cases to trial: a .state of affairs which he noted "defeats the ends of justice, and strikes at the root of prosperity of the country."  75  iv) The debate over the type of law to be administered in Bengal The second matter in the judicial administration of Bengal which British government officials and East India Company employees clashed over, was the form of civil law to be administered in the newly "revitalised" judicature: English civil law, or indigenous, Indian law? Once again the conception of justice framed the terms of the debate, though the epistemic objects—particularly the "nature" of Indian society—which constituted the two intimately related, but divergent discourses on either side were characterised differently. As early as 1768 the Company's court of directors recommended to the Select Committee to introduce into Bengal a hybrid of sorts, law English in form, but essentially Indian in content: endeavour to introduce laws of inheritance, and as near as possible to the spirit of the laws of this country ... and to introduce the right of bequeathing by will; referring to their judgment how far this could be done, consistent with the claims of the Rajahs and landholders, and the established customs of the country.  1600-1800, (Delhi: Oxford University Press, 1995), pp. 163-172. Further, Thomas Metcalf has explained that Cornwallis's reforms were impelled by his adherence to a Whig political philosophy which stressed the importance of the separation of the principal organs of government—executive, legislative, judicial—so that they might act as a "check" upon one another. This division of governmental power was perceived to promote the workings of justice by ensuring a minimum of  governmental corruption. See T.R. Metcalf, Ideologies of the Raj, New Cambridge History of India, 111.4, (Cambridge: Cambridge University Press, 1994), pp. 17-18. Cornwallis, Minute of 11 February, 1793, paragraph II, quoted in Misra, The Central Administration of the East India Company, 1773-1834, (Manchester: Manchester University Press, 1959), pp. 245-256. "The Seventh Report from the Committee of Secrecy appointed to enquire into the State of the East India Company," dated 6 May, 1773, Great Britain, House of Commons, Reports from Committees of the th  th  House of Commons, 1715-1801. Volume IV, p. 326.  73  Warren Hastings was reluctant, however, to impose either English civil law, or a hybridised form of law, preferring to administer to the Hindu and Muslim populations of Bengal "their own" laws, as contained in their ancient "law books." Indeed, although Hastings subscribed to the notion that the operation of the judicature under the navab was conductive to injustice, due to the despotic nature of the Mughal polity, he denied that Indian, and in particular Hindu society, was without "law." This was a perception which had taken hold in England as the perhaps inevitable result of the discourse rendering the Mughal polity despotic, or lawless. That is, the characterisation of the former government of Bengal as despotic, or lawless, by inference renders the society under the control of that government lawless as well. This was a representation of Indian society which was actively influential in the European debate over whether to impose English civil law in Bengal. It was, however, a discourse which would not, in the end, sway the British parliament, nor find favour with the Company's orientalists. As noted in the first Chapter, against the portrayal of the Indian state as despotic, Hastings argued for a conception of India as a (Hindu) theocratic state, which possessed ancient codes of conduct, which were, in effect, the (formerly) operative law of the land: .. .the necessity of... giving laws to a people who are supposed to be governed by no other principle of justice than the arbitrary wills, or uninstructed judgments, of their temporary rulers, has been frequently suggested; and this opinion I fear has obtained the greater strength from some publications of considerable merit in which it is too positively asserted that written laws are totally unknown to the Hindoos ... nothing can be more foreign from the truth. They have been in possession of laws, which have 'continued unchanged, from the remotest antiquity. 77  William Jones, of course, also subscribed to this view, and as such, described the necessity for administering native "law" in Bengal:  74 It is a maxim i n the science o f legislation and government, that laws are o f no avail with manners, or, to explain the sentence more fully, that the best intended legislative provisions would have no beneficial effect even at first, and none at all i n a short course o f time, unless they were congenial to the disposition and habits, to the religious prejudices, and approved immemorial usages, o f the people, for whom they were enacted; 78  Justice could not be seen to be served i f the British government i n Bengal administered the c i v i l laws o f England to the inhabitants o f Bengal, for the Hindu Bengalis, i n particular, were in possession o f ancient civil laws themselves, contained in the  dharmasastra. This British focus on textual materials for the provision o f the "true" laws of India, is part and parcel o f what has been called the British preoccupation with the representative texts o f "Hinduism."  It was the "great texts o f Hinduism" which were  thought to express the true nature o f Hinduism, not the then-current degraded religious and/or cultural practices witnessed by British eyes. The British preoccupation with the moral, unadulterated, uncorrupted vision o f Hinduism expressed in texts such as the  bhagavad gita, and the perception of the then-present degraded state o f Indian society, I has been identified by Said as a signifier o f the discourse o f Orientalism, and by Johannes Fabian as the "denial o f coevalness." Hastings to Lord Mansfield, 21 March, 1774, in Gleig, The Memoirs of Warren Hastings, Vol. 1, pp. 399-400. W. Jones, "Preface," to Institutes of Hindu Law: or, the Ordinances of Menu, according to the Gloss of st  Culluca, comprising the Indian System of Duties, Religious and Civil, reprinted in Jones, Works, Vol. 7,  p. 75. Said describes the Orientalists' fixation on text, stating that "the Orient studied was a textual universe by and large; the impact of the Orient was made through books and manuscripts, not, as in the impress of Greece on the Renaissance, through mimetic artefacts like sculpture and pottery." See Said, Orientalism, p. 52. See also H. Oberoi, The Construction of Religious Boundaries, (Chicago: University of Chicago Press, 1994), especially pp. 4-12. ' J. Fabian, Time and the Other, How Anthropology Makes its Object, (New York: Columbia University Press, 1983). In his interesting study of the use of devices of time in ethnographic text, Fabian has argued that ethnography, or at least "classical" ethnography, denies "coevalness" to the studied "culture." He states: Beneath their bewildering variety, the distancing devices that we can identify [in ethnography] produce a global result. I will call it denial of coevalness. By that I mean a  75  C A . Bayly, however, has characterised the British preoccupation with the "ancient" texts of the Hindus as a predictable result of the eighteenth century conception of knowledge not as something "discovered by progress into the future," but rather as something to be rediscovered, as "almost everything was once known by the Ancients" by virtue of the fact that "Humanity's common store of knowledge was implanted by Providence at the beginning of time, before the Flood fragmented its pristine unity."  81  As  Thomas Trautman also argues, "the belief in ancient wisdom, that changeless truths were revealed in the past and are recoverable only through the study of the past is religious in character."  In his recent book Aryans and British India, Trautman has argued that  William Jones, especially, was operating in India with the understanding that all nations of antiquity, including the Hindu nation, descended in the same line from Noah.  83  Indeed, Jones' essay "On the gods of Greece, Italy and India" was a confirmation that 84  all peoples of the Earth had originated in a single place, as the book of Genesis outlined, and that therefore, India and Europe shared a common past.  85  The Indians, however,  persistent and systematic tendency to place the referent(s) of anthropology in a Time other than the present of the producer of anthropological discourse. These anthropological devices, employed in the production of ethnographic text, serve to produce an . epistemic object with is Other, in time, space, and culture. It is easy to see how this ethnographic practice coincides with, and is theoretically applicable to, colonial discourse. By placing the colonial subject in a time of the distant past, through the focus on ancient textual materials as representative of a Hindu "classical" civilisation, the colonising mission to restore the degraded subcontinent takes on new power. See p. 31 for quote (emphasis in original). Also, see the following chapter for a more in-depth discussion of the similarities in the way ethnographic discourse and colonial discourse present themselves to a European/Western audience. C A . Bayly, "Orientalists, Informants and Critics in Banaras, 1790-1860," unpublished manuscript, originally presented at "Reciprocal Perceptions of Different Cultures in South Asia" in Bonn, December 15-19, 1996, and forthcoming in a volume edited by J. Malik at Oxford University Press, New Delhi, pp. 12-13. T. R. Trautman, Aryans and British India, (Berkeley: University of California Press, 1997), p 61. A  1  2  3  Trautman, Aryans and British India, pp. 59-61.  4  W. Jones, "On the Gods of Greece, Italy and India," in Asiatic Society of Bengal, Asiatick Researches, Vol 1, 5 Edition, (London: 1806 reprint), pp. 221-275. P.J. Marshall, The British Discovery ofHinduism, (Cambridge: Cambridge University Press, 1970), p. 37. Marshall states that Jones' essay purported to demonstrate that Indian and European mythology was th  5  76 "deviated ... from the rational adoration of the only true God," as did all nonEuropeans.  86  And so, though the study of the ancient texts of Hinduism were thought to  provide invaluable contributions to European understandings of ancient civil and natural histories, through the presence of the "ancient wisdom" contained in these texts, contemporary Hindu society had digressed from this ancient ideal through idolatry and other degraded practices.  87  The concept of "providential knowledge," therefore, resulted  in the European preconception that full and complete knowledge of the pure, pristine and unadulterated Hindu society, and hence the law of the Hindus operative before the despotisms of the Mughals, was contained only in the ancient texts of the dharmasastra. The resultant colonial discourse, however, constructed at least partially out of this intellectual genealogy, distanced and objectified the colonised Other, by placing contemporary Indian society in an antecedent position in a developmental hierarchy, determined by a European, biblical framework. In the process, this justified colonial rule by way of the colonial project to restore degraded Asiatic societies and bring them into the modern era. This is a "discourse of improvement" suggests Tejaswini Niranjana, indicating that the "coming of the British led to the proper implementation of the Indians' own laws and the end of 'despotic' violence and 'terror.'"  88  Yet it is important to recall that matters of financial and governmental expediency were primary motivators for the establishment of a civil judiciary which administered native law, once it had been established that such a law did in fact exist. Jones states plainly in his preface to the translation of manusmrti:  86  87  basically the same, not because the myths had spread from one country to another, but because of this common origin, from which their similar languages and philosophies also originated. Jones, "On the Gods of Greece, Italy and India," pp. 221-222.  Trautman, Aryans and British India, pp. 59-61.  77 Whatever opinion in short may be formed of Menu and his laws, in a country happily enlightened by sound philosophy and the only true revelation, it must be remembered, that those laws are actually revered, as the word of the Most High, by nations of great importance to the political and commercial interests of Europe, and particularly by many million of Hindu subjects, whose well directed industry would add largely to the wealth of Britain, and who ask no more in return than protection for their persons and places of abode, justice in their temporal concerns, indulgence to the prejudices of their own religion, and the benefit of those laws, which they have been taught to believe sacred, and which they alone can possibly comprehend. 89  Hastings' argument, therefore, that to impose a foreign body of civil law upon the Hindu population of India, a population unfamiliar with it, would be a "grievance" and a "tyranny," which even the Mughal government had not perpetrated, was motivated not simply from considerations of justice, but from fears of civil unrest, and hence, unprofitability. In fact, distributive justice promoted profitability. v) The untrustworthy pandit One of the primary motivations for the codification and translation of Hindu "civil laws" in the form of a legal digest, for application in the judiciary by English judges, was the perceived unreliability of the Indian court "legal assistants" in the authoritative and consistent rendering of that law. William Jones proposed just this reason to Governor General Cornwallis as the principal motivation for the Company to finance the second legal digest: ... and if we give judgement only from the opinions of the native lawyers  and scholars, we can never be sure that we have not been deceived by them. It would be absurd and unjust to pass an indiscriminate censure on a considerable body of men; but my experience justifies me in declaring, that I could not, merely on the written opinion of native lawyers, in any  cause in which they could have the remotest interest in misleading the  Niranjana, Siting Translation, p. 19. Jones, "Preface" to Institutes of Hindu Law: or, the Ordinances of Menu, pp. 89-90.  78 court; nor, how vigilant forever we might be, would it be very difficult for  them to mislead us.. .  90  ">  Indeed it was William Jones' desire to closely monitor the decisions of the pandits who served the Bengal Supreme Court of Judicature which impelled him to learn Sanskrit. For example, on the 28 of September, 1785, Jones, who was on his annual autumn th  retreat to Krishnagar, north of Calcutta, wrote to Charles Chapman: I am proceeding slowly, but surely, in this retired place, in the study of Sanscrit; for I can no longer bear to be at the mercy of our pundits, who deal out Hindu law as they please, and make it at reasonable rates, when they cannot find it ready made. 91  The unreliability of the native legal assistant, his susceptibility to corruption and untruthfulness, and further, his reluctance to allow equal access to the laws of India "locked up" in Sanskrit,  renders him in this representation as an unfit guardian and  implementor of the civil laws of India. The responsibility must therefore fall to William Jones, the re-implementor of Hindu law, and the civil judicature of the East India Company. The relationships of orientalists to their pandit informants were, however, fraught with ambiguity and contradiction, for while they were suspicious of their assistants' reliability and moral character, British administrators, scholars and judges were still almost entirely dependent upon pandits for the provision of Indian cultural materials for study/scrutiny, for the teaching of Indian languages, and for explanations of cultural  91  92  Jones to first Marquis of Cornwallis, letter #485 in Jones, Letters, pp. 794-800. Extract from p. 794-795. Emphasis added. Jones to C. Chapman, letter #418 in Jones, Letters, pp. 683-684. Charles Chapman was in fact Colonel Chapman, (1753-1809), Commander-in-Chief of Bengal from 1765 to 1774, as well as Governor General Warren Hastings' private secretary. See footnote 9, p. 628 of Letters. It is ironic that William Jones is often nearly deified by Sanskritists, for it was his suspicion of Indians that resulted in his learning of Sanskrit, not his love for the language. Jones states in a February 24 , 1787 letter to John Henry Cox that the brahmans "make a mystery ... of their ancient literature." See Jones, Letters, (Letter #454), p. 732. th  79  relevance.  93  It was, afterall, interaction between Hindu pandits and orientalists which  resulted in the compilation and translation of the several Sanskrit dharmasastra nibandha. It is this interaction which the third chapter addresses, in an effort to undermine the representational authority of the dominant colonial, legal discourse.  This suspicion on the part of orientalists and Company servants is also a motivating factor in the institutionalisation of India's cultural-textual heritage—or as Niranjana, asserts, the fixation and containment of its people. This institutionalisation included the establishment of Banaras Sanskrit College in 1791 for the purpose of centralising and standardising the Sanskrit-medium education of prospective interlocutors, as well as the establishment of the College at Fort William in Calcutta in 1800, in order to extend language instruction to employees of the East India Company. Just as in the compilation of a legal digest, translated into English for use by Company servants, such an institutionalisation takes the control of information vital to Company interests in Bengal out of the control of the colonised, and places it into the grasping hands of the East India Company. See Niranjana, Siting Translation, Chapter 1; also V. Dalmia, "Sanskrit Scholars and Pandits of the Old School: The Benares Sanskrit College and the Constitution of Authority in the Late Nineteenth Century" in Journal of Indian Philosophy, 24, (1996), pp. 321-337.  80  Chapter 3 The figure of the informant  I—Introduction The first major section of the previous chapter culminates with a description of a theoretical conception of the epistemic space as constituted by objects of knowledge, variously constituted by divergent discourses. These discourses, in turn, are seen to be connected with non-discursive factors through the enunciation of.the author, as a member of a knowledge community. The second major portion of that chapter contains a description of the primary features of a dominant, colonial legal discourse, the ways in which that discourse represented epistemic objects, as well as the Western philosophical framework upon which that discourse was constructed. Through an examination of the writings of Sir William Jones, as well as East India Company and British Parliament administrative documents, all of which were intended primarily for a European audience, I have attempted to show that this discourse provided justification for the administration of Bengal by the East India Company. That is, even though this legal discourse was challenged, for a time, by a competing colonial discourse-—one which rendered Hindu society lawless—the representational power of orientalists and Company administrators with regard to "things Oriental" was essentially unmitigated in Europe. The subject of colonisation was still objectified, rendered Other.  81 The purpose of this last chapter is, primarily, to unsettle that representational power, and thereby the objectification of the colonised, by a closer examination of the relationships of orientalists to their indigenous informants, the pandits; This is not to say that "subjectivity" can be read into colonial textual materials which purport to describe indigenous scholars, nor even into those few pieces of legal scholarship produced by pandits themselves in the period of time under consideration. What I propose, rather, is that these materials read in combination with one another, and within a specific theoretical framework, can provide the historian with evidence of agency and voice on the part of the indigenous elite. And further, that this agency and voice can be read as resistant to the demands of colonial discourse, rather than as necessarily collaborative. Knowledge is constructed through a process of interaction and dialogue. Indeed, eighteenth century orientalists were largely dependent upon Indian scholars for providing access to Indian textual, cultural materials, for instruction in the languages of those texts, and for explanations of the cultural relevance of any particular text. Many of the objects of knowledge constructed by orientalists, and constitutive of colonial discourse were, therefore, in fact constructed not unilaterally, but through a complex process of negotiation, conversation, and (mis)appropriation. The approach which I follow in the coming pages, consequently, is that the historical analysis of a process or event, such as the codification of Hindu law, is best considered as a consistent but two-fold deployment of both a discursive analysis, with its emphasis on the internal regulation of possible enunciation and the power/knowledge equation, along with the historical analysis of individuals as members of knowledge communities, who are likewise considered  82 historical actors and dialogic agents in the instigation and deployment of particular discourses.  II— The dictates of dominant discourse, and methods for reading resistance i) Can the subaltern speak? Legal codification as epistemic violence The Report from the Committee on Petitions relative to the Administration of Justice in India, dated May 8 , 1781 was commissioned as the result of jurisdictional disputes th  between the East India Company's supreme civil court, the sadar divani adalat, and the Supreme Court of Judicature. As noted in Chapter One, the Act of Settlement, 1781, settled these jurisdictional disputes by disallowing the extension of English law to the indigenous population of Bengal by the Supreme Court, thereby upholding the principles of judicial administration first outlined by Warren Hastings in the Judicial Plan of 1772. During the course of this committee's hearings in London, evidence was provided by Mr. Joseph Price regarding the juridicial preferences of the Indians, whom were, quite obviously, the ones most affected by the jurisdictional dispute. Price provides his evidence during a line of questioning which takes as its context the execution of the Raja Nandakumar for forgery: Being asked ... whether he conceived that the prejudices and customs of the natives would not have been shocked with the execution? He said, they certainly would; for they detest the very idea of the introduction of the English law ... He informed your committee ... that they dislike the interposition of the Supreme Court of Judicature amongst themselves, because it interferes with all their customs, manners, and prejudices... 1  1  "Report from the Committee on Petitions relative to the Administration of Justice in India," dated 8'  May, 1781, Great Britain, House of Commons, Reports from Committees of the House of Commons,!! 15-1801. Volume V, p. 45.  83 Mr. Price here speaks for the colonised inhabitants of India, and represents their interests to the British Parliament. Through the use of the third person, the colonised inhabitant is utterly objectified, rendered voiceless, without agency to express intentions or views other than those which conform to the colonial project: the giving back of India's ancient laws to its Hindu population. Said provides a similar example in the first pages of Orientalism, in which he notes that Flaubert's encounter with an Egyptian courtesan produced an account of the Oriental woman, in which "she never spoke of herself, she never represented her emotions, presence or history." Instead, "he spoke for and represented her." Gayatri Chakravorty Spivak, in her controversial essay "Can the Subaltern Speak?" has also identified the British codification of what has come to be known as "Hindu law" as an exemplary instance of what she calls "epistemic violence." That is, the constitution of the colonial subject as the Other of the European Self, and the resulting obliteration of that Other's (historical) "Subject-ivity," Spivak argues, was 4  accomplished by a radical reorganisation of the place/purpose of dharmasastra texts and the customary laws of India within the newly colonised space—the codification of "Hindu law." It was through this process that colonial subjects were, at least in part, produced. She states: Legal theorists and practitioners were not in any given case certain if this [normative] structure described the body of law or four ways of settling a dispute. The legitimation of the polymorphous structure of legal performance, 'internally' noncoherent and open at both ends, through a  2  3  4  E.W. Said, Orientalism, (New York: Vintage Books, 1979), p. 6. Emphasis in original.  G.C. Spivak, "Can the Subaltern Speak?" reprinted in Colonial Discourse and Post-Colonial Theory, P. Williams & L. Chrisman, (eds.), (New York: Columbia University Press, 1994), see especially pp. 7679. Spivak, "Can the Subaltern Speak?" p. 76.  84 binary vision, is the narrative of codification I offer as an example of epistemic violence. 5  Spivak's purpose here is to argue that the subjectivity of India's colonised population was erased through the appropriation and redeployment of Indian texts by the East India Company administration, in a dominant discourse of colonisation, improvement, restoration and Otherness. Further, she states that a dominant, hegemonic version of the history of India was established through colonial administrative machinery—a version of history "in which the Brahmans were shown to have the same intentions as (thus providing legitimation for) the codifying British."  6  Yet Spivak also locates "epistemic violence" in British Indological scholarship more generally. She continues: One effect of establishing a version of the British [educational] system was the development of an uneasy separation between disciplinary formation in Sanskrit studies and the native, now alternative, tradition of Sanskrit'high culture.' Within the former, the cultural explanations generated by authoritative scholars matched the epistemic violence of the legal project. 7  Spivak cites the founding of the Asiatic Society in Calcutta in 1784, under the leadership of William Jones and the patronage of Governor General Warren Hastings, as the first British step towards the establishment of their own version of an educational system in India, and the first step in the translation and codification of the Indian past.  5 6 7 8  8  Spivak, "Can the Subaltern Speak?" p. 77. Spivak, "Can the Subaltern Speak?" p. 77. Spivak, "Can the Subaltern Speak?" p. 77. The Asiatic Society published scholarly articles by the society's members, which purported to rediscover India's past. The vast majority of articles appearing in the society's official journal "Asiatic Researches" were produced as "descriptive explanation" of various Sanskrit or Persian texts, the ancient sciences of India, ruins of archaeological interest, and so on. Some examples from the first volume of Asiatick Researches include: "A Dissertation on the Orthography of Asiatick Words in Roman Letters " by W. Jones, pp. 1-56; "Astronomical Observations in Fort William, and between Madras and Calcutta" by Col. T.D. Pearse, pp. 57-121; "Some Account of the Sculptures and Ruins at Mavalipuram" by W. Chambers, pp. 145-170; "An Account of a Journey to Tibet" by J. MacPherson, pp. 207-220; "On the  85 Benita Parry has criticised Spivak's approach, stating that, apart from the vagaries of her prose and the relative neglect made of historical context within her arguments, she: .. .gives no speaking part to the colonised, effectively writing out the evidence of native agency recorded in India's 200 year struggle against British conquest and the Raj ... [and] ... severely restricts (eliminates?) the space in which the colonised can be written back into history, even when 'interventionist possibilities' are exploited through the deconstructive strategies devised by the post-colonial intellectual. 9  As noted in the second chapter, many scholars have taken Spivak's declaration of subaltern silence to be, rather than the last word, a starting point for their own investigation of ways in which the agency and voice of the colonised can be retrieved. I take as my own starting point, Spivak's statement that the brahmans, the members of the scholarly elite, are not seen in colonial representation to have anything but the same intentions as the "codifying British," thereby producing legitimation for the legal project in the late eighteenth century. I take this to mean that pandits are portrayed in the dominant discourse solely as active, willing collaborators. Indeed the presence of a collaborative, mediating elite is often considered essential for the success of the project of colonialism, even foundational. The question which I am interested in answering is, 10  then, whether one can interpret the codification of Hindu law in the late eighteenth century as a "co-labour-ation"—the working together, or in competition, of scholars in an arena of critical debate, in which the colonised Other is seen to resist the validating demands of the colonising Self, rather than as necessarily a collaboration—the wilful assistance in the process of colonial domination.  Gods of Greece, Italy and India" by W. Jones, pp. 221-275. See Asiatic Society of Bengal, Asiatick Researches, Vol. 1, 5 Edition, (London: 1806 reprint). B. Parry, "Problems in Current Theories of Colonial Discourse," reprinted in 777e Post-Colonial Studies Reader, (eds.) B. Ashcroft, G. Griffiths, H. Tiffin. London: Routledge, 1995, pp. 36-44. See pp. 37,40. th  9  86 ii) Dialogue in the contact zone  Mary Louise Pratt has coined the term "contact zone" to refer to the geographical space of colonial encounters, in an attempt to invoke "the spatial and temporal copresence of subjects previously separated by geographic and historical disjunctures, and whose trajectories now intersect."  11  This concept is intended to "foreground the interactive,  improvisational dimensions of colonial encounters" in the constructions of knowledge of now-shared epistemic objects, and to emphasise that coloniser and colonised are not separate, but possess inter-relationships marked by "copresence, interaction, interlocking understandings and practices, often within radically asymmetrical relations of power."  12  Pratt's concept of the "contact zone" is useful because it shifts the focus of epistemological enquiry to the site of the construction of knowledge about the colonised: the geographical space of colonisation. Challenging the Saidian formulation of the monological construction of discourse, and its unilateral imposition upon the subordinate society, the contact zone provides a theoretical space for the dialogue of agents who deploy separate, competing discourses, in the formation, trans-formation, or de-formation of new knowledges. Eugene Irschick, in his recent book Dialogue and History, has argued that knowledge of South Indian society in the nineteenth century was constructed interactively, through a complex process of dialogue between colonial administrators and indigenous inhabitants:  10  See for example, R. Robinson, "Non-European Foundations of European Imperialism: sketch for a theory of collaboration," in Studies in the Theory ofImperialism, R. Owen & B. Sutcliffe, (eds.), (London: Longman Group Ltd, 1972), pp. 117-142.  11  M.L. Pratt, Imperial Eyes, Travel Writing and Transculturation, (London: Routledge, 1992), pp. 6-7.  12  Pratt, Imperial Eyes, p. 7. Emphasis added.  87  The research presented here ...suggests ... that changed significations are the heteroglot and dialogic production of all members of any historical situation, though not always in equal measure; this is so whether they have a Weberian monopoly on violence or not. 13  The construction of new, shared epistemic objects ("changed significations") through a process of dialogue further challenges Said's formulation that the discourse of Orientalism is constructed solely by the coloniser and then willed upon the weaker Orient by the politically and militarily mightier West. Indeed, in Said's formulation of the discourse of Orientalism, there is no position from which the colonised could speak for themselves, or represent themselves, for as we have seen, the discourse of Orientalism assumes a regularly between representation and object, resulting in a binary opposition of representational power (coloniser) and powerlessness (colonised).  14  Homi Bhabha, in contrast, has contested the idea that the power of representation rests entirely, or perhaps even mostly, with the coloniser, by demonstrating the limits of colonialist discursive power. Bhabha undermines the dominant structure of representation primarily by foregrounding the instabilities of enunciation. Discourses 15  must be enunciated, and away from the safety of the West, epistemic objects fashioned in colonial discourse, in particular, are liable to contestation from colonised groups.  16  That  is, the "natives" interrogate colonial text, and colonial discourse, according to their own  13  E.F. Irschick, Dialogue and History: Constructing South India, 1795-1895, (Berkeley: University of California Press, 1994), p. 8.  14  R. Young, White Mythologies, Writing History and the West, (London: Routledge, 1990), p. 142.  15  B. Parry, "Signs of Our Times: Discussion of Homi Bhabha's The Location of Culture," in Third Text, 28/29 (Autumn/Winter), 1994, pp. 5-24. See p. 5. See, in particular, the sustained development of these ideas in H.K. Bhabha, "The other question: Stereotype, discrimination and the discourse of colonialism," "Of mimicry and man: The ambivalence of colonial discourse," "Sly civility," and "Signs takes for wonders: Questions of ambivalence and authority under a tree outside Delhi, May 1817," all reprinted in The Location of Culture, (London: Routledge, 1994).  16  88 system of cultural meaning, resulting in a "textual insurrection" against the intended 17  meaning of the colonial text. In his essay "Signs Taken for Wonders" Bhabha argues that the appearance of the English book in India should not be read by theorisers as a site of absolute colonial authority, but as a site of the production of colonial hybridity through the enunciation of colonial discourse.  18  Bhabha's reading of the hybridity of colonial authority to represent  reality through the colonial text/colonial discourse "unsettles the demand that figures at the centre of the originary myth of colonialist power:" the demand that colonial discourse be non-dialogic, and its enunciation unitary.  19  This "hybridisation" of the  colonial text, and in turn, the overthrow of colonial representational authority, is accomplished, in Bhabha's example, by the subversive interpretation, or misinterpretation of the Bible—the paradigmatic Western, imperialist text—by those people gathered under the tree, outside Delhi, by virtue of their standing within a different, nonWestern cultural/discursive site. By questioning the origin of the text—it originates with God, and not with the Europeans—these people undermine European authority to interpret the message bf the Bible for them, as well as the civilising mission which colonialism purports to hold as its raison d'etre. Colonial discourse is never as authoritative and unified as it purports, as there is always a slip in meaning through reception and then repetition—what Bhabha refers to as "repetition and difference." As Robert Young explains of "Sly civility": .. .in the instructions of the East India Company, as the directions from London are transported for implementation in India, there is a slippage between their Western and colonial significance in the space between their 17 18 19  Parry, "Problems in Current Theories of Colonial Discourse," pp. 40-43. Bhabha, "Signs taken for wonders" pp. 113-114. Bhabha, "Signs taken for wonders," p. 115.  89  initial enunciation and their destined address: once more there is a loss of control in which an ambivalence reinscribes both coloniser and colonised in a different relation of power with the result that authority cannot be maintained. 20  It is this ambivalence, then, of colonial discourse which allows for its hybridisation, and thereby provides a site for resistance to its supposed authority. The colonised subject, then, expresses agency through such "strategies of subversion that turn the gaze of the 21  discriminated back upon the eye of power."  And further, the "sly civility" of the  colonised, and the pandit in particular, is interpreted to be the mechanism by which the colonisers' "narrative demand" is refused; that is, through-the refusal to satisfy "the narcissistic, colonialist demand that it should be addressed directly, that the Other should authorise the self, recognise its priority, fulfil its outlines, replete, indeed repeat, its 99  references and still its fractured gaze"  the agency and resistance of the colonised is  expressed. As Moore-Gilbert observes, however, Bhabha's treatment of this sort of indigenous resistance to colonial discourse/colonial authority appears to place the site of resistance in the unconscious, for the hybridisation of the imperial text is due to misunderstandings or category mistakes, rather than conscious challenges to the 9^  colonisers' favoured representation.  The question which remains, then, is whether this  hybridisation represents, or can represent, a site for the active resistance of colonial authority. Further, Young points out that Bhabha's conception of hybridisation suggests the "articulation of two hitherto undifferentiated knowledges," which, Young believes, Young, White Mythologies, p. 150. 20 21 22  Bhabha, "Signs taken for wonders," p. 112. Bhabha, "Sly civility," p. 98. This section on the difficult work of Homi Bhabha has benefited from Bart Moore-Gilbert's excellent reading/explanation of Bhabha's work, in Postcolonial Theory: Contexts,  90  implies a "pure origination of both Western and native cultures."  24  The placement of the  agency of the colonised in the subversion of an already existent colonial discourse, through the hybridisation of the received meaning of that discourse, requires that the natives' location within a different, strictly non-colonial cultural, discursive place be maintained. Indeed, Pratt's contact zone works in a similar manner, requiring that the participants in dialogue be previously separated by "geographic and historical 25  disjunctures," and whose "trajectories now intersect" as if for the very first time.  Yet  the difficulty arises because, with the possible exception of the perhaps-mythical first encounter, the discourse deployed by the coloniser, and which is then hybridised in its reception, is already constructed at least partially through dialogue with the colonised. That is, the representation of some of the objects of knowledge which constitute the discourse of colonialism in question are built in conjunction with Indian informants. Therefore, the absolute representational power of the coloniser must be both invoked and simultaneously overturned in order for the hybridisation of colonial discourse to occur, or alternatively, one must acknowledge that indigenous informants have no part in the construction of the objects of knowledge of colonial discourse, that colonial discourse is formed entirely unilaterally. I have attempted in the previous chapter to invoke through the concept of "knowledge communities" the separate discursive spaces from which historical actors participate in dialogue, and that, as such, members of those knowledge communities are "autonomous dialogic agents." In particular, the last chapter highlighted the Practices, Politics, (London: Verso, 1997), see Chapter 4, especially pp. 119-121, 130-135, as well as Robert Young's chapter on Bhabha, "The Ambivalence of Bhabha," in White Mythologies, pp. 141-156. 23 24  Moore-Gilbert, Postcolonial Theory, p. 133. Young, White Mythologies, p. 150.  91 predominantly Western framework of understanding which orientalists such as William Jones brought to an examination of Indian textual sources. Yet Young's criticism points to the (somewhat) artificial quality of this separation, for unless members of divergent, geographically disparate knowledge communities are meeting in a first encounter, then through previous sessions of dialogue, certain common knowledges, common points of reference, will have already been constructed. And indeed, many of the representations of the colonial, legal discourse described in the previous chapter, such as the nature and structure of the Mughal judiciary, were undoubtedly constructed in consultation with Indian informants. Yet the crucial point to be made is that these representations were expressed through a specifically Western philosophical framework, and that in the deployment of this discourse, those representations were entirely authoritative to a Western recipient. Further, the entire discursive structure deployed by the orientalist, including the epistemic objects and the philosophical concepts which informed them, was distinct enough from the discourse deployed by the pandit, in conversation over the content of the civil law/dharmasastra, that the reception of that discourse by the pandit would be hybridised. Perhaps, then, the only way to circumvent Young's criticism, and salvage Bhabha's insights, is to examine in historical detail the coming together of the members of two "knowledge communities," and their dialogue over the construction of certain objects of knowledge, in order to establish whether Bhabha's conception remains understandable and workable. The last section of this final chapter attempts to undertake just such an examination, by building upon theory and the historical context so far explicated in a reading of the legal text produced by the Hindu pandits Jagannatha Tarkapanchanana and  25  Pratt, Imperial Eyes, p. 7.  •  ; 92  Radhakanta Sarman (TarkavagTsa) under the direction of Sir William Jones, as well as in a further reading of Jones' own writings on subject. This is the textual locus for competing discourses of the coloniser and colonised, and hence a potential site for the reading of resistance to the ideologies of colonial rule. However, before beginning that final section, it will be useful to first briefly examine some of the similarities between ethnographic text and colonial discourse, for the arguments that can be made regarding the agency of informants, and then analyse the narrative of the orientalist Francis Wilford, regarding the "deceptions" of his own pandit assistant. A n analysis of Wilford's text is highly illustrative of the process of legal codification in the late eighteenth century, for his relationship to his pandit is analogous in many respects to that between Sir William Jones and the pandits which undertook the compilation of the second Hindu legal digest. iii) Lessons from ethnography There are obvious parallels between the "classical" ethnographic text produced through the process of observer-participant ethnography, and colonial discourse, produced as a result of the coloniser/colonised relationship. Although the orientalist takes as his primary focus text, and the ethnographer takes people, observed ways of life, they both produce a written work which purports to represent, or construct, the Other. In considering the process by which knowledge was generated in the particular colonial context of late eighteenth century Bengal, some of the recent discussions regarding fundamental challenges to the practice of ethnography, notably the production of absolute ethnographic authority in text, are useful in illuminating some of the theoretical problems which we encounter here.  93 Early orientalists' textual productions were very successful in displacing the voices of Indian intermediaries in their re-presentation of Indian cultural materials, for having obscured the role of indigenous interpretation and selectivity, early orientalist scholarship, much like "classical" ethnography, presents itself as a monological and authoritative discourse. The production of authoritative, monological ethnographic texts by the anthropologist most often excludes acknowledgement of the role which informants play in constructing knowledge about the subject culture. Moreover, the "actuality of Oft  discursive situations" is isolated from the final written text.  The considerable control  which indigenous informants possess to determine the type and structure of knowledge gained in the field has highlighted the importance of somehow representing in text the actual discursive situation encountered during the practice of ethnography. Recent experimental attempts in ethnography to represent the agency of the informant in determining the type and accuracy of information provided to the ethnographer have included the quotation of long passages of verbatim conversation within the text. Yet this exercise serves to further highlight the fact that the words of the informant are "politically 97  and metaphorically complex."  Agency, then, on the part of the ethnograph-ised, or the  colonised for that matter, to determine and shape related information is erased through the presentation of an ethnographic text, or colonial discourse, which claims for itself a transparency of representation, an immediacy of experience.  26  27 28  J. Clifford, The Predicament of Culture, (Cambridge, Mass.: Harvard University Press, 1988), p. 40. See especially Chapters 1 and 2, "On Ethnographic Authority" and "Power and Dialogue in Ethnography: Marcel Griaule's Initiation," for the role of the indigenous informant in producing ethnographic text, and related issues.  Clifford, The Predicament of Culture, pp. 49-51. J. Clifford, "Introduction: Partial Truths" in Writing Culture: The Poetics and Politics of Ethnography, J. Clifford & G.E. Marcus, (eds.), (Berkeley: University of California Press, 1986), p. 2.  94 Although ethnography has recourse to alternative strategies for the production of a more dialogically and authoritatively representative text, the colonial discourse theorist suffers from an absence of a wealth of primary sources on eighteenth century pandits, and their relationships to British orientalists. In fact, there is no late eighteenth century text authored by a pandit which describes this relationship in detail, or which presents the voice of the pandit describing the coloniser. The challenge is, therefore, to restore a theoretical conception of the dialogical production of discourse through a variety of possible textual strategies, thereby re-inscribing the elite, subaltern subject with some degree of voice and agency. iv) The case of Francis Wilford, the nameless pandit, and the Puranic forgery One of the few sustained colonial descriptions of a member of the indigenous scholarly elite, and of the process by which knowledge was transmitted to an orientalist by that indigenous scholar is contained in Francis Wilford's extraordinary account of his relationship with his Indian teacher and assistant, published as part of an introduction to an essay in Volume Eight of the Asiatic Researches. Francis Wilford was an officer in the army of the East India Company, and devoted his spare time to the study of Sanskrit, and more precisely, to those sections of the puranas—historical/mythological texts— which he thought to describe the geographical knowledge of ancient India. In 1794 Wilford retired from the army and settled in Banaras, where he continued to pursue his Sanskrit studies through affiliation with the Sanskrit College there. As the result of his studies, he published several exceedingly long essays between 1793 and 1805 in Asiatic Researches Volumes Three, Eight, Nine and Ten, in which he attempted to establish that ancient Indians possessed considerable knowledge of other civilisations.  95 In order to undertake a project of this magnitude, Wilford had employed a pandit to scour the extensive material contained in thepuranas. C.A. Bayly notes that Wilford was particularly keen to sit together with a group of pandits, and recite with them stories from the puranas and Western mythology, scripture and history, and attempt to find points of similarity either in content, or in places names.  Yet it was not until just before  the publication of his article " A n Essay on the Sacred Isles in the West," in which Wilford attempted to prove that references to the place name sveta-dvrpa,(%z£ft:) or "white island," were in fact references to England, that Wilford discovered he had been misled. In his haste to establish such historical linkages, Wilford had overlooked the fact that in the original manuscript copies of the relevant passages, wherever the crucial words appeared, so did a slight discoloration, as if the original word had been erased and then another word re-written oyer top the erasure. In fact, it turned out that the pandit had, during the course of his employment with Wilford, forged, re-written or created entirely approximately twelve thousand verses! Rather than withdraw his essay from publication, however, Wilford added an introduction explaining the situation, noting as well that he did not believe that the forgeries were serious enough to warrant the withdrawal of his principal theses.  30  Wilford explains in his introduction:  I ... directed my pandit to make extracts from all the Puranas and other books relative to my inquires, .. .1 had full confidence in him. His manners were blunt and rough, and his arguing with me on several religious points with coolness and steadiness, a thing very uncommon among natives ... raised him in my esteem. I considered him as my  C.A. Bayly, "Orientalists, Informants and Critics in Banaras, 1790-1860" unpublished manuscript, originally presented at "Reciprocal Perceptions of Different Cultures in South Asia" in Bonn, December 15-19, 1996, and forthcoming in a volume edited by J. Malik at Oxford University Press, New Delhi, pp. 17-18. The information in this paragraph is obtained largelyfromT. Trautmann, Aryans and British India, (Berkeley: University of California Press, 1997), especially pp. 89-93, and C.A. Bayly, "Orientalists, Informants and Critics in Banaras, 1790-1860," especially pp. 9-20.  )  96  guru... I have since learned, that, as the money for his establishment passed through his hands, his avaricious disposition led him to embezzle the whole, and to attempt to perform the task alone, which was impracticable. In order to avoid the trouble of consulting books, he conceived the idea of framing legends from what he recollected from the Puranas, and from what he picked up in conversation with me. ... he studied to introduce as much truth as he could, to obviate the danger of immediate detection. ... And here I shall close the recital of what relates personally to a man ... He came to me in distress, but with a fair reputation; he is now in affluence, but with a character infamous for ingratitude, and fraud, and deceit. His voluminous extracts are still of great use to me, because they always contain much truth.. . 3 1  The story of Wilford's experience with a member of India's indigenous scholarly elite is admittedly a broadly drawn example of the agency of the indigenous informant over the practical control of cultural information relayed to the orientalist. Through the determination of the content and veridicality of provided information, or refusing to provide that information, the idea that pandits were indeed historical actors actively involved in the production of knowledge about Indian cultural forms is reinforced. Wilford's narrative is, however, also a clear colonial acknowledgement of the dialogic process by which knowledge about India's textual, cultural heritage was generated; an example which might equally be applied to the analogous process by which knowledge of the dharmasastra was generated, and transformed into "Hindu law." In addition to the agency of the informant to determine the content of information in dialogue, Wilford's description of his pandit, which is by no means flattering, represents an opportunity to read the actions of the pandit as though he were firmly established within an alternate discourse, by virtue of his membership in a highly specialised knowledge community, which inscribes the epistemic object "purana" in a  31  F. Wilford, "An Essay on the Sacred Isles in the West, with Other Essays Connected with that Work" in Asiatic Society of Bengal, Asiatic Researches, Vol.8, Reprinted London, 1808, pp. 245-376. Extract quoted from pp. 249-253.  97 different, and ultimately subversive, manner. In an epistemic space traversed by numerous discourses, Theresa deLauretis has noted that the historical subject is multiply inscribed by divergent discourses. As she writes of a filmic representation of women: The female subject is en-gendered, constructed arid defined in gender across multiple representations of class, race, language, and social relations. 32  That is, the historical actor who participates in the formation of discourse is "undetermined" by any single discourse, from the fact that numerous divergent discourses are thought to describe any one historical subject. Wilford's description of his pandit, then, which is situated firmly within a colonialist discourse, serves as an indicator not only of the general colonialist sentiments regarding their informants, but also of the alternative discourses which might also inscribe this particular historical figure. Yet in the absence of direct textual evidence of those alternative discourses, and in particular those authored by the pandits themselves, a theoretical conception of the pandit as an "autonomous dialogic agent" must play a role in reinscribing the voices of eighteenth century pandits. For the dialogue in which pandits participated with orientalists was coconstructed, and as individual participants, they possessed individual expectations, intentions, and goals, rather than necessarily sharing those of the orientalist. Meaning in dialogue/discourse is not manifest, but is negotiated by various actors with varying degrees of personal and political power, inhabiting a highly specific context within the colonial space. As "autonomous dialogic agents," pandits imposed their meanings and interpretations upon the British by virtue of their position within a discourse that characterised certain epistemic objects distinctly.  32  T. deLauretis, Technologies of Gender: - Essays on Theory, Film and Fiction, (Bloomington and Indianapolis: Indiana University Press, 1987), p. 139.  98 Wilford's pandit misinterprets, either purposely or unwittingly, Wilford's instructions, for even though Wilford asks the pandit to "make extracts from all the Puranas and other books relative to [his] inquiries," the pandit realises the sort of information—the historical linking of Britain and India—Wilford is after, and provides it "from what he recollected from the Puranas, and from what he pick up in conversation with [Wilford]." The key points which Wilford does not realise, however, is that the puranas represent a living oral and textual tradition, which even today is continually being recalled and rewritten. The sdstra  (SII^H)  was thought to contain all knowledge,  and so a certain degree flexibility in rendering its actual contents would have been open to the pandit. Wilford, however, is interested only in antiquity of text, for antiquity equates with authenticity, according to the precepts of colonial discourse. Further, as Chris Bayly has noted, historical authenticity would not have been high on the list of priorities of a caste puranic, as the "adjustment" of the genealogical and cosmological puranas was commonplace in the practice of ascribing to up and coming groups a more exalted pedigree.  34  The colonial discursive category of "purana," then, simply does not  coincide with the pandifs conception, resulting in a subversive (mis)understanding of Wilford's instructions. Rather than simply being a tool, or conduit for generating orientalist knowledge about India, Wilford's pandit undermines—perhaps unwittingly, or perhaps brilliantly— Wilford's overtly political project: the historical linking of Britain and India. And when the inassimilable nature of the pandifs goals in dialogue, no matter what they may be, become transparent to the orientalist, then the pandit ceases to become for the orientalist  33  Bayly, "Orientalists, Informants and Critics in Banaras, 1790-1860," p. 19.  99 a provider of knowledge—an informant—and instead become an object of orientalist knowledge, and a signifier of the state of India's cultural degradation. As Bhabha explains, by refusing the colonising self s demand for validation, the colonised other becomes the object of the self s paranoia: the self can now never be sure whether the Other is subserviently obedient, or actively resistant behind the mask of sly civility.  35  Hence the direct entrance of the informant into the orientalist text, as in the case of Wilford's Indian assistant, who is described variously as "avaricious" and as possessing a "character infamous for ingratitude, and fraud, and deceit." When this realisation manifests itself to colonial administration on a larger, more general scale—read as "suspicion" or "distrust"—then the need to institutionalise and thereby control the means of access to this sort of knowledge also becomes manifest. v) Sir William Jones, "his" pandits, and readings of resistance in the nibandha vivadabhahgatnava Once William Jones had become sufficiently capable in Sanskrit, and conversant with manusmrti, the paradigmatic legal text, his characterisations of his relationship with the pandits, and the pandits themselves, change considerably from those earlier marked by uncertainty and suspicion. In the summer of 1787, just two years into his Sanskrit studies, Jones wrote to the second Earl Spencer: I now read both Sanscrit and Arabick with so much ease, that the native lawyers can never impose upon the courts, in which I sit. I converse fluently in Arabick with the Maulavi's, in Sanscrit with the Pandit's, and in Persian with the nobles of the country; thus possessing an advantage, which neither Pythagoras nor Solon possessed, though they must ardently have wished it. 36  Bayly, "Orientalists, Informants and Critics in Banaras, 1790-1860," p. 19. See also, V. Das, Structure  and Cognition, Aspects of Hindu Caste and Ritual, (Delhi: Oxford University Press, 1977), pp. 14-15. Bhabha, "Sly civility," pp. 99-100; Young, White Mythologies, p. 151. Jones to second Earl Spencer, 22 July, 1787, letter #463 in Jones, Letters, p. 742. nd  100 And in a further letter the following summer, he tells the second Earl Spencer that he has now gained the respect and trust of the pandits, and that in fact, they consider him to be one of them: I read and write Sanscrit with ease, and speak it fluently to the Brahmans, who consider me to be as a Pandit... Jones' linguistic ability and his knowledge of the dharmasastra provides him with an "advantage," over other Westerners, so that, as Kate Teltscher has quipped, he has "outpandited the pandits"—they can no longer deceive him, and must now accept him as one of their own.  38  The acceptance of Jones by the pandits becomes a recurring theme in  subsequent portrayals of Jones, including foremost among them, (the former John Shore) Lord Teignmouth's Memoirs of the Life, Writings and Correspondence of Sir William Jones? Teignmouth recounts the sorrow of the pandits at Jones' death, a motif that is 9  repeated over and over again in subsequent accounts of Jones' life: .. .the pandits who were in the habit of attending him, when I saw them at a public durbar, a few days after that melancholy event [Jones' death], could neither restrain their tears for his loss, nor find terms to express their admiration at the wonderful progress which he had made, in the sciences which they professed. 40  Yet as Teltscher notes, such portrayals of the pandits' supposed affection and respect for Jones tend to justify the colonial legal codification project, and further, colonial rule itself.  41  The pandits, the former guardians of the "law," are seen to support its  codification and re-imposition in India by the East India Company—they want this  37 3 8  Jones to second Earl Spencer,^* September, 1788, letter #494 in Jones, Letters, p. 813. K. Teltscher, India Inscribed, European and British Writing on India, 1600-1800, (Delhi: Oxford  University Press, 1995), p. 200. 3 9  Teignmouth, Memoirs of the Life, Writings and Correspondence of Sir William Jones, (London: 1804).  4 0  Teignmouth, Memoirs ofSir William Jones, p. 400. The sorrow of the pandits is retold, most recently, in S.N. Mukherjee, Sir William Jones: a Study in Eighteenth Century British Attitudes to India,  (Cambridge: Cambridge University Press, 1968), p. 139, and G. Cannon, The Life and Mind of Oriental  Jones, (Cambridge: Cambridge University Press, 1990), p. 357.  101 government, and it is proven by their admiration and affection for William Jones. Indeed, Teignmouth states: .. .it may be remarked, as an occurrence of no ordinary nature, that the professors of the Brahminical faith, should so far renounce their reserve and distrust, as to submit to the direction of a native of Europe, for compiling a digest of their own laws. 42  Just several years before the undertaking of the compilation of the legal digests, Jones was obsessed with the pandits' unreliability and untruthfulness, and their propensity to 1  "invent" the law when it suited them. His possession of linguistic knowledge, however, transforms the pandits into "respected fellow scholars" who share the intentions and 43  goals of the colonial regime. In short, they are rendered as collaborators in colonialism. In Bhabhelian terminology, the colonising self is seen to be validated by the identification and respect of the colonised Other. I argue in the following paragraphs, however, that the "weeping pandit" motif is insufficient to render an identification of intentionality, for the members of two disparate knowledge communities, William Jones the orientalist, and Jagganatha Tarkapancanana, the pandit, are speaking past one another in the deployment of radically different discourses on the subjects of "law" and "dharmasastra." Once the decision was taken to impose "Hindu civil laws" in Bengal, and then later confirmed by the Act of Settlement in 1781, the problem for British administrators was to fix the content of the law, to whom exactly it applied, and under what conditions. That is, the British were interested to find the authoritative civil law of Bengal. We have already seen that the result of the first attempt to formulate Hindu civil law into a digest, the vivadarnavasetu, was considered by William Jones to have been less than satisfactory  41 42 43  Teltscher, India Inscribed, p. 200. Teignmouth, Memoirs of Sir William Jones, p. 314. Teltscher, India Inscribed, p. 198.  102 in its content, and that the English translation, A Code of Gentoo Laws, was neither precise nor reliable. The second attempt, which is the subject for scrutiny in this last section, was undertaken by Jones in 1788, following approval from Governor General Cornwallis.  44  Jones at first employed two pandits to undertake the compilation, Radhakanta Sarman (Tarkavagisa) and Sarvoru Candra Tripathi (TivarT), the former a Bengali pandit, the latter Bihari, but then was able to convince the highly respected Jagannatha Tarkapancanana to oversee the project. Kate Teltscher argues that Jagannatha's highly respected status in Bengal was a welcome commodity to the British, who wanted to ensure general approval for the digest within the Hindu community. But there is also 45  significant evidence that it was financial hardship which compelled both Jagannatha and Radhakanta, especially, to finally enter the employ of the East India Company. Radhakanta had earlier refused an appointment to the Supreme Court of Judicature, supposedly on religious grounds, but then in 1787 petitioned Jones for help in alleviating his grave financial situation.  46  Jagannatha, as well, petitioned Governor General John  Shore to help him with his financial difficulties by granting a pension following the compilation of vivadabhangarnava: .. .your petitioner most submissively begs leave to represent that formerly [i.e. while employed with the Company] your petitioner was capable of subsisting himself, family and pupils, etc. and has now no such ability as to find food for himself and a numerous family.. , 4 7  44  Governor-General, the first Marquis of Cornwallis, to W. Jones, 19 March, 1788, in Jones, Letters of Sir William Jones, in 2 Volumes, G. Cannon (ed.), (Oxford University Press, 1970), Vol. II, note 3, pp. 801802. th  45  Teltscher, India Inscribed, p. 199.  4 6  See pp. 39-40 above for a full account and references. Public Consultation, 11 January, 1793, No. 11, quoted in B. Banerji, Dawn ofNew India, (Calcutta: M.C. Sarkar & Sons, 1927), p. 89.  4 7  th  103 It is not unlikely, then, that similar financial imperatives may have driven Jagannatha into Company service in 1788. Both Jagannatha and Radhakanta had formerly been employed in the sabha of Maharaja Navakrsna, engaged in the production of scholarly works under royal patronage. Under this "traditional" arrangement, Radhakanta had authored vastutattva («i«ddv=Hj  and Jagannatha several works, including a drama entitled rdmacarita  (<i*HRd*j).  48  Jagannatha's particular skill, however, was that he was thoroughly familiar  with the precepts of the dharmasastra which held authority in both Bengal and Bihar (commonly, but mistakingly referred to as the "schools" of dayabhaga <\nv\*\:, or gauda *fte:,  and mitaksara, or mithila faRni, respectively). He was, therefore, to explain what 49  were thought to be conflicting interpretations of the "law" by bringing them together in the digest.  50  Yet the principal point here is that the categories of "law" and  "dharmasastra''' are not collapsible, nor are they interchangeable. Ludo Rocher has argued that this was in fact the mistake of the British, who attempted to force a Western interpretation, i.e. "law," onto an already existent Indian concept.  51  What then, was the  nature of this already existent, wholly Indian concept? "Dharmasastra" roughly translated, is "the science of virtuous behaviour." In fact, the word "dharmasastra" is used often to simply refer to a large and varied body of normative literature which includes siitras (sm) or aphoristic texts; sastras, or treatises in  48  R. Rocher, "The Career of Radhakanta Tarkavagisa, an Eighteenth Century Pandit in British Employ,"  Journal of the American Oriental Society, 109.4, 1989, p. 627; Banerji, Dawn ofNew India, p. 87. 4 9  50  See B. Cohn, "Law and the Colonial State in India," in History and Power in the Study ofLaw: New Directions in Legal Anthropology, J. Starr & J.F. Collier, (eds.), (Ithaca & London: Cornell University Press, 1989), pp. 148-151.  Mukherjee, Sir William Jones: a Study in Eighteenth Century British Attitudes to India, pp. 137-138, 140.  104 verse; explanatory commentaries (bhasya « n w ) ; and digests, or compendiums  (nibandha). P.V. Kane has identified three general temporal periods for the production of these works: the sutras and manusmrti were produced between 600 BCE and the beginning of the Common Era; most treatises in verse, such as ydjnavalkyasmrti (^<W+-M*JMRI:) were written between the beginning of the Common Era and 800 CE; and then between 800 C E and 1800 C E , commentaries and digests were the principal textual productions of pandits learned in the dharmasastra. The concept of dharma, which the dharmasastra expounds, is perhaps the single most untranslatable word in Sanskrit. Lingat has suggested that its sense is best conferred by its root dhr (sj), "to sustain," "to uphold." Dharma, then, is what is firm and durable, and what sustains and maintains the universe.  Jaimini, author of  mimamsdsmrti (*fl*utii*wld:), defines dharma in this way:  codanalaksano 'rtho dharmah "dharma is an act conducive to the highest good, or welfare, and is indicated by command or injunction." 54  The dharmasastra expounds, then, those actions which are accordance with dharma, and in violation of it. Acts in accordance with dharma, permit one to realise his/her destiny, to sustain his/her life in this world, and to reap benefits in the next birth. In distinction,  51  52  L. Rocher, "Schools of Hindu Law" in India Maior, J. Ensink and P. Gaeffke, (eds.), (Leiden: E.J. Brill, 1972). See p. 175 especially. P.V. Kane, History of Dharmasastra, Vol. 1, (Poona: Bhandarkar Oriental Research Institute, 1930), p. 246. Note that Kane places the end of the period of bhasya and nibandha production to be about 1800. Indeed the writing of "traditional" works of dharmasastra scholarship, themselves acts in accordance with the dharma (tnf:) of scholars and Hindu patrons, was subverted by the displacement of that scholarpatron relationship, by the Company's need for applicable legal digests. More will be said about this in the coming pages. R. Lingat, The Classical Law ofIndia, J.D.M. Derrett, (trans.), (Berkeley: University of California Press, 1973), p. 3.  105 acts in violation of dharma, adharma (m$:), bring about a "fall," (pataka, I<H>:), or negative sanction in this life, the next, or perhaps both.  55  Manu states that:  snf T7^ ^ft ![t% £ R f < ^ Pd <Pt>Hd: II d^HI^T  £ d ^ l TT  Snff ^T> WtcT II ^  II  dharma eva hato hand dharmo raksati raksitah tasmaddharmo na hantavyo ma no dharmo hato vadhlt "dharma destroyed, destroys, dharma protected, protects." "therefore, dharma must not be destroyed, lest dharma destroyed would kill."  56  Individual dharma, sva-dharmafawf:),is l s ° peculiar to each varna (w)> or class of a  society, and to each stage of life, asrama (STPSTT:). Acting in accordance with dharma, however, is entirely voluntary, and by no means is the intervention of the state required for the distribution of reward or punishment. The accumulation of karma (^r) according to acts performed in accordance with, or in contravention of dharma, will entirely determine and distribute reward or punishment in rebirth. It is not clear that the prescriptions contained in the dharmasastra were ever actually the "applied law" of India. Derrett has identified one instance in fifteenth century South India in which the dharmasastra was consulted in order to resolve a "caste dispute."  57  It seems more likely, however, that a form of customary law, informed by the  general principles of the dharmasastra, as interpreted and made "relevant" by pandits,  Quoted in G.T. Deshpande, "Purva Mimamsa: the Indian Science of Law," in Indological Papers, Volume 1, (Nagpur: Vidarbha Samshodhan Mandal, 1971), p. 151. Jaimini wrote his work in the Vedic period.  Lingat, The Classical Law ofIndia, p. 4. manusmrti, with the manubhasya of Medhatithi, G. Jha, (ed.), (Delhi: Parimal Publications, 1992), 8.15, my translation. J.D.M. Derrett, "Two Inscriptions Concerning the Status of Kammalas and the Application of Dharmasastra," reprinted in Derrett, Essays in Classical and Modern Hindu Law, in 4 Volumes, (Leiden: E.J. Brill, 1976), Vol. 1, pp. 86-110.  106 was in force within Hindu communities prior to the British era.  Nevertheless, the  production of commentaries and digests in the pre-British era was not an exercise in collecting and collating "law" for regulatory imposition upon the Hindu population of India. Ludo Rocher argues that: The Dayabhaga was studies in tols - as it is today -, not by students who „ had to be taught the local law of inheritance to prepare them for practice in the courts, but by traditional disciples who studied dharma as one of the branches of Hindu learning. 59  Further, Lingat states that it was the interpretation of the dharmasastra texts which was the primary task of the dharmasastra commentators and nibandha-wt'\\.&cs. Interpretation meant primarily the reconciliation of the propositions contained therein, in an effort to teach members of society the means of acquiring merit, and thus liberation from rebirth (moksa, jfr^r:).  60  There are four sources of dharma according to Jaimini, in order of decreasing authority: sruti (^%:)>  m  e  revealed teaching of the veda (t^:); smrti (wtfo:), the  "remembered" teachings contained in sutras and sastras; sadacara ( « N K : ) , custom, or the behaviour of virtuous men; and atmatusti (arr^wfe:), right intention, self satisfaction.  61  The task of the commentator or nibandha-wnter is therefore to expound the topic of dharma according to the methodological tools available, which are known throughout the literature as "the bases of knowledge of dharma" {dharma-jnana-sthandni, a^FTWRTft')  59  This is the opinion of Ludo Rocher. See his "Schools of Hindu Law." Nevertheless, it must be largely speculation in the absence of significant evidence. L. Rocher, "Schools of Hindu Law," p. 174. Perhaps the most compelling evidence in support of this position is the fact that Vijnanesvara, the composer of the Mitaksara, a commentary upon the Yajnavalkyasmrti, was not a lawyer but a hermit! See also p. 172, which includes an interesting footnote on the predominant British view of Vijnanesvara as a "far-seeing jurist and statesman" who also "belonged to the order of ascetics."  60  Lingat, The Classical Law of India, pp. 143-145.  61  See Deshpande, "Purva Mimamsa," pp. 156-157.  107 as identified in yajnavalkyasmrti.  62  These include purva mimamsa (q<f jfrwf), or simply  mimamsa, "investigation" and nyaya, the system of formal logic. Throughout the  j  dharmasastric "tradition," in fact, these two methods of argumentation have been considered invaluable for a "proper" interpretation of the dharmasastra.^  Mimamsa is a formalised method of scriptural interpretation—an "investigation" into scriptural authority as a system of injunctions, rather than mere statements.  64  That is,  mimamsa is an assessment of the nature of the obligatory force of any particular injunction on the subject of dharma. Dharmasastra  and dharmasutra texts are  considered divine revelation by their commentators—and hence an internally consistent body of injunctions, and so the task of the commentator is, therefore, to interpret and reconcile the seemingly contradictory injunctions contained within smrti.  65  Derrett  amply demonstrates the task of the commentator in this way: Each smrti in the book must harmonise with the rest, incongruities must be eliminated, coherence with the propositions of the smrtis attributed to other authors must, if possible, be achieved, the text must be supplemented and corrected where necessary to provide a viable sense, and meaning Kane, History of Dharmasastra, Vol. V, 2 Edition, (Poona: Bhandarkar Oriental Research Institute, 1977), p. 1152. Umesha Mishra has written in his introduction to Jha's edition of vivadacintamani: "The correct interpretation of dharmasastra treatises ... is possible only with the help of purva mimamsa. Our studies in this field clearly indicate that a dharmasastrin should necessarily be well versed in purva mimamsa and nyaya vaisesika. In fact, without a thorough knowledge of these two systems of thought no one has any right to speak on matters connected with Hindu Law. The principles of purva mimamsa are the only infallible guide for explaining the problems ..." U. Mishra, "Introduction," in vivadacintamani, G. Jha, (ed., trans.), (Baroda: Oriental Institute, 1942), p. vii.  62  nd  63  ^ N. Smart, Doctrine and Argument in Indian Philosophy, (Leiden: E.J. Brill, 1992), pp. 9-11. Derrett notes that once the original text, the smrti, is considered to be 'divine revelation,' and therefore a consistent whole, there can be no "going back to the literal meaning of any particular smrti." See J.D.M. Derrett, "The Role of the Jurist in Ancient Indian Law," in Essays in Classical and Modern Hindu Law, Vol. I, pp. 140-149. This statement, while highlighting the distension of meaning from words in the commentarial process, relies on the assumption that there was, at some point in history, one actual, literal meaning of the various words and verses comprising the sutras and sastras. This seems to me to be less than clear. I would argue that the dharmasastra is truly a living tradition, in that it takes on the meaning given to it by an active group of commentators and scholars of any certain era and/or geographical location. Therefore, it is fundamentally mistaken to ask what the "true" meaning of any particular verse from, for instance, the mapusmrti is. As I have tried to show, that meaning takes on a different sort of power with imposition through British colonialism. 65  108 must be obtained from the words (even the particles) so as to make the text meaningful for the present era. The result of this is that some texts are emasculated, while others are expanded and developed with the aid of reason, or analogy (as at Bharuci's commentary on Manu IX. 151). There are totally unintelligible smrtis (as Manu IX.21), and with them the poor commentator must do the best he can. 66  In addition, as Derrett suggests in this passage, the commentator is faced with the task of assessing which injunctions contained within the  smrti  are to be followed, and which, i f  any, are to be considered out-of-date, or incongruous with "customary law," in an attempt to provide the  sastra  with some degree of relevancy to, and therefore influence over, the  lives of people of that era.  67  The fixing of Bengal's "laws" in perpetuity in the form of a  "legal digest" was, then, in direct conflict with the understandings which informed the process of  nibandha-diUXhoxshvp,  and the purpose of a  nibandha  itself—it is only ever a  temporary document. It must be beyond the scope of this thesis to explain in any detail the intricacies of mimamsa  and nyaya (Kane devotes more than 200 pages to  principal points to be made are that in the compilation of a  mimamsa  nibandha,  alone), but the sastric authorities  are quoted, and then followed by previous interpretations, by commentary authors such as  Derrett, "The Role of the Jurist in Ancient Indian Law," p. 144. In other words, the commentator produces meaning. Derrett describes the kali-varjya t + f c H ^ ' O doctrine, adopted by dharmasastra commentators—"jurists" in Derrett's terminology—in the 8 or 9 Century C.E., apparently out of fear over the strict implementation of sastric injunctions. This doctrine holds that certain practices enjoined in the sastras were to be considered obsolete in the degenerate kaliyuga (+RWIH). This was undoubtedly based upon the sastric injunction that despite the fact that an injunction is prescribed in the sastras, it should not be enforced if contrary to public opinion, or what has come to be known as "customary law." In other words, the practice was considered consistent with dharma, but not one that led to the attainment of heaven (svarga, wf:)- Cm this point see Derrett, "The Role of the Jurist in Ancient Indian Law," p. 142, and Lingat, The Classical Law ofIndia, Part 2, Chapter 2. This injunction can be found within manusmrti (4.176), Medhatithi's commentary (4.3, 4.176,4.209) and the mitaksara on yajnavalkyasmrti: th  th  He should renounce profit and pleasure if they should conflict with religion (dharma), and even religion (dharma) when it results in future unhappiness or arouses people's indignation (i.e. is contrary to customary law).  109 Medhatithi, Kullukabhatta, or Vijnanesvara. These interpretations are usually presented in such an order that earlier interpretations are dismissed for others, presented later in the 68  text.  Further, the dictates of nyaya logical reasoning call for every possible  interpretation of the basic verse to be given, resulting in what Derrett has called "a puzzle of exceeding complexity" which would only frustrate an English judge who was interested to simply discover which rule to apply in court.  69  The nibandha-writer, then, is  endowed with significant agency through the selection of those verses, and commentary extracts which he chooses to include in the digest for exegesis from an extremely wide range of possibilities. Moreover, the interpretation of the sastric injunctions can be made to conform to almost any preconceived ideas that the commentator might have. As Derrett notes, the application of the "same techniques of mimamsa does not yield the same results in different expert hands."  70  British administration had hoped that Jagannatha would help to explain the different "schools" of law: conflicting interpretations of the dharmasastra literature based primarily on the debate over the method to divide the patrimonial estate (i.e. primogeniture or equal division of that estate). Rather than explain the differences in interpretation, However, Jagannatha quoted the relevant sastric verses and then their previous interpretations by other commentators, only to dismiss them, or use them to bolster his own views on the subject. For example:  From The Laws ofManu, W. Doniger & B.K. Smith (trans.), (London: Penguin Books, 1991), 4.176. J.D.M. Derrett, Religion, Law and the State in India, (London: Faber & Faber, 1968), p. 247. Derrett, Religion, Law and the State in India, p. 247. Bengal, and Nadia especially, was a renowned centre for studies in nyaya. See K. Potter, (ed.), Encyclopaedia ofIndian Philosophy, Vol. 5, (Delhi: Motilal Banarsidass, 1970), p. 4.  Derrett, Religion, Law and the State in India, pp. 87-88.  110  On Succession of Sons IV. Menu: After the death of the father and the mother, the brothers, being assembled, may divide among themselves in equal shares, the paternal and maternal estate; but they have no power over it while their parents live, unless the father choose to distribute it. [Commentary:] .. .Equal partition is here mentioned, supposing an elder brother who is deficient in virtue...  IX. Menu: The eldest brother may take entire possession of the patrimony; and the others may live under him, as they lived under their father, unless they choose to be separated. [Commentary:] Having premised that 'brothers may divide the paternal estate after the death of the father and the mother," he proceeds to declare, that 'the eldest brother may take entire possession of the patrimony;" that is, the eldest endued with all the most eminent virtues, shall have power, like a father, over the inheritable patrimony. The Retnacara. Consequently, the title of the eldest son alone to possess the whole estate after the father's decease, is propounded. Since the preceding text (IV) had shown the succession of several sons, the other must live under him, receiving food and vesture. This must be supplied in the text. Hence his younger brothers should incur no expense whatsoever without his consent. 71  Jagannatha continues in this manner for many more pages on the same topic, his point being to satisfactorily reconcile the seemingly contradictory injunctions contained in the sastra over the processes of dividing the paternal estate. Nandini Bhattacharyya-Panda, however, has suggested that many of Jagannatha's interpretations in the Digest conform to East India Company preferences for stability in land ownership and transfer, by restricting the land ownership rights of widows.  72  Derrett, as well, has noted the similarities of European notions of land ownership in some of the sources quoted in the Digest. To what extent, then, is the agency of the eighteenth century pandit really retrievable from this sort of text? Is not the pandit simply seen to be parroting the administrative requirements for the colonising machine,  71  72  J. Tarkapancanana, A Digest of Hindu Law on Contracts and Successions: with a Commentary, in 3 Volumes, (London: J. Debrett, 1801 reprint), Vol. II, pp. 521,528. N. Bhattacharyya-Panda, "The English East India Company and the Hindu Laws of Property in Bengal, 1765-1801: Appropriation and Invention of Tradition," (Unpublished Ph.D. Thesis, Oxford University, 1992).  Ill  and providing it with justification by virtue of the "traditional," indigenous form of the text? From the character of vivadabhangarnava, it is clear that Jagannatha, Radhakanta and the other pandits who compiled the nibandha were working within a specific, indigenous scholarly discourse by virtue of their membership within a panditic/dharmasastric knowledge community. Asked to produce a "law digest," they instead produce a nibandha according to the dictates of mimamsa and nyaya, which rather than clearing up the numerous contradictory and therefore confusing prescriptions on any one particular issue within the body of dharmasastra, drew on as many contradictory sources as possible, resulting in a "law digest" which was little more than a survey of contradictory "legal" prescriptions. The epistemic object "dharmasastra" interrogated by the pandits within their own discourse simply did not conform, and could not be made to conform to the epistemic object "civil law" inscribed by colonial discourse. The dharmasastra provided the pandits simply with an opportunity to interpret and debate the nature of dharma, and further, if particular interpretations of the injunctions of the sastra, which also favoured the patron's revenue management policy, can be made to conform to dharma, then that as well is consistent with their discourse. The pandits of the late eighteenth century, therefore cannot be said to be working within the same "civil-ise-ing" imperative that drove the colonial project. By speaking their own discourse, framed by the concept of dharma and the philosophical methodologies of mimamsa and nyaya, the pandits cannot be seen to share in the deployment of a civilising colonial discourse of improvement, nor in its foundational concepts and imperatives. The pandits, in fact, momentarily confound that project, for  73  Derrett, Religion, Law and the State in India, p. 248.  112 the compilation of yet another, simpler, legal digest in the early nineteenth century was required by the Company—one which, this time, eliminated the argumentation of mimamsa and nyaya, and was therefore truly a "legal digest."  s  74  Derrett notes that another, much simpler legal digest was compiled under British auspices in the early nineteenth century because European judges found Jagannatha hard to follow. See Religion, Law and the  State in India, p. 250.  113  PostFace  Upon reaching the end of a long work such as this, which has consumed so much time and thought and energy, one might be forgiven for no longer remembering exactly the questions which first impelled such an undertaking. Having spent months reading and rereading all of my sources, writing and revising, the topic has come so close that I find I can no longer see it with the same eyes. These last few pages, then, will not take the form of conclusions, but rather, are filled with what I believe is potentially significant about the approach which I have taken, and the interpretations which I have attempted to impose upon the material at hand. I have approached my topic, first of all, with the belief that the crossing of disciplinary boundaries is conducive to the production of new understandings, and new methodologies, and so have utilised elements of history, philosophy, indology and postcolonial studies in my text. The result, however, is that there is sometimes tension, or disruption in that text, and at other times, issues are not given the full consideration possible. These tensions, however, rather than being considered shortcomings, might also be viewed as pathways, pointing the way for further development and thought. The concept of the knowledge community, borrowed originally from a usage outside discourse theory, has proven useful for me as a locus around which to build a methodology for an historical investigation into the transformation of the forms of knowledge within a consolidating colonial space. In the second chapter of this thesis I was concerned to maintain some of the valuable insights of both Michel Foucault and  114 Edward Said in the use of discourse theory, such as the regulating power of discursive formations, the relationship of power and knowledge, and the highlighting of cultural mediums through which power can be exercised. Yet as originating as Said's approach is to the study of the discourse of colonialism, it lacks a responsiveness to varied historical specificity. Development to Said's methodology over the last twenty years has mainly taken the form of splitting the discursive terrain, to allow for subordinate discourses, as well as bringing non-discursive factors into a causal relationship with discourse. I have argued that the concept of knowledge communities assists in this development in several ways. Primarily, the author, as a member of a knowledge community, and as an instigator and deployer of discourse, provides the causal link through which nondiscursive factors, such as economic conditions, influence discourse. But further, by characterising an author as a member of a knowledge community, one is able to more easily take into account, not only the social, economic and political conditions acting upon discourse, but also the influence of intellectual trends and methodologies-—what might be called discursive foundations. I have attempted to illustrate this conception by analysing the colonial, legal discourse according to its determining concepts of "justice," "civil society," and so forth, and their relationship to a specifically Western philosophical framework, as well as the indigenous scholarly discourse of the pandits, according to its determining methodologies of nyaya and mimamsa, and the concept of "dharma." By bringing discourse into contact with the agents of discourse, in a two-fold analysis of discourse and dialogic agents, I have argued against the criticisms of Aijaz Ahmad— which are directed at Said's use of a discourse theory which is self-referential—that discourse theory as a whole is necessarily inappropriate for historical inquiry.  (  115 Yet by utilising the conception of the dialogic agent, situated within a knowledge community, who deploys a specific, identifiable discourse, I have also been able to take advantage of the insights of Homi Bhabha, whose work on the enunciation of discourse in the colonised space provides a reading of "resistance" to the validating demands of a dominant, colonising discourse. When one reads accounts of the late eighteenth century "discoveries" of India's cultural heritage by the orientalists of the Asiatic Society, one is left with the distinct impression that indigenous scholars did not participate in this process, and further, that it was a wholly apolitical endeavour. By focusing on the legal scholarship of Sir William Jones, and its intimate connection to the instrumentalities of colonial rule, I have argued that cultural knowledge in this context is political, and further, that Indian scholars were involved in dialogue over the content of that knowledge. This, of course, raises the spectre of indigenous collaboration in colonialism, an issue which Partha Charter) ee has taken very seriously i n his recent book The Nation and its Fragments) Yet when one utilises the conception o f dialogic agents working within distinctive discursive spaces, by virtue of their membership in a knowledge community, and applies it to the context of the late eighteenth century legal codification project, indigenous scholars and orientalists are both seen to be speaking different languages, both literally and figuratively. That is, due to the discourse employed by the pandit in the production of a nibandha at the behest of the coloniser, the pandit cannot be seen as an active agent in colonialism, but rather momentarily derails the project through a refusal to validate the civilising imperatives of colonial discourse. Simultaneously,  1  P. Chatterjee, The Nation and its Fragments, (Delhi: Oxford University Press, 1997), see pp. 27-32.  116  however, this conception also infers the sense that, indeed, the colonial state was constructed upon knowledge provided by the colonised in the late eighteenth century. The final problematic which my text has addressed, though not in an explicit manner, is that Bhabha's notion of resistance through the hybridisation of colonial discourse by the colonised places the location of resistance in the subconscious, by virtue of the fact that the pandit makes a category mistake. Asked to produce a legal digest, the pandit writes a nibandha, for that is the only type of "digest" that he knows. As MooreGilbert asks, if resistance is based in the unconscious, then really, what sort of "resistance" is it? 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