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DOI: 10.1177/096466399600500407

1996 5: 405Social & Legal StudiesJeannine Purdy

Postcolonialism: the Emperor's New Clothes ?

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405-

POSTCOLONIALISM:THE EMPEROR’S NEW

CLOTHES ?

JEANNINE PURDY

ORE THAN 30 years ago, Jean-Paul Sartre wrote in his preface toFrantz Fanon’s The Wretched of the Earth, ’In the colonies the truth1 stood naked, but the citizens of the mother country preferred it with

clothes on: the native had to love them, something in the way mothers areloved’ (Sartre, 1961/1990: 7). The naked truth of colonialism was exposed inFanon’s powerful evocation of ’a world cut in two’; a world divided betweenthe colonizers and the wretched of the earth - the colonized. And accordingto Fanon, in such a world, ’The dividing line, the frontiers are shown by bar-racks and police stations’ (Fanon, 1961/1990: 29).

Police stations, as sites of legal violence, were regarded as crucial to themaintenance of the divided world of a colonial regime. Fanon’s project,however, cannot be simply assimilated with more recent critiques of law, suchas Austin Sarat and Thomas Kearns’s ’A Journey through Forgetting: Towarda Jurisprudence of Violence’ (1991). Unlike the ’ubiquity of law’s violence’posited by Sarat and Kearns (p. 211), Fanon was concerned to show that thefunction of, and the attitudes towards law and its violence, varied accordingto which side of the colonial divide one stood on.’ If one stood on the side ofthe colonizers,

the educational system, whether lay or clerical, the structure of moral reflexespassed down from father to son, the exemplary honesty of workers who aregiven a medal after fifty years of good and loyal service, and the affection whichsprings from harmonious relations and good behaviour - all these aesthetic



406

expressions of respect for the established order serve to create around theexploited person an atmosphere of submission and of inhibition which lightensthe task of policing considerably. (Fanon, 1961/1990: 29; emphasis added)

More than 30 years ago Fanon showed us that the violent law that was knownto the colonized was not the same law that was known to others.But what if, even after the work of Fanon and others like him, the coloniz-

ers wanted no less than they did in the past to be loved? Whatever the varia-tions between the theorists of ’postcoloniality’, because postcolonialismfacilitates a view of the world as fundamentally altered, it enables the colon-izers once more to demand the love of ’the native’ as they proclaim theirprogress beyond the colonial (McClintock, 1994). While it is undoubtedlytrue that postcolonial’ studies is a ’far from unified field’ (Williams and Chris-man, 1994: 5), it is my contention that within the play of colonial discourseanalysis, psychoanalysis, deconstruction, feminism and ’other forms ofMarxism’ which constitute the postcolonial terrain (p. 5)2 what may have beenintended to do no more than give recognition to the changing circumstancesof colonialism (alluded to later) has perhaps proved far more ’dangerous’ thanintended (Edmond, 1995; Robinson, 1993). Like the word itself, postcolonialanalyses often in effect go far beyond being supplementary to analyses ofcolonialism, such as Fanon’s, and issues of class and violence have been dimin-ished.3 3

AFTER COLONIALISM?

Francis Snyder and Douglas Hay indicate something of the academic pro-clivity to divide and categorize on the basis of what they describe as the ’mainfault lines’ of time and space. They note the entrenched divisions found in aca-demic reasoning ’between past and present, on the one hand, and betweenFirst World and Third World, on the other’ (1987: 4). Peter Fitzpatrick (1992)elaborates upon something of the constitutive nature of such posited div-isions, with reference to notions of ’us’ and ’them’, and how these are integralto our legal systems and sense of ’civilization’. Edward Said also trenchantlycomments upon the divisions colonizers made between themselves and theirrivals. He notes, ’The pattern is, alas, always the same: critics of colonialism... attack abuses in places and by powers that do not greatly touch them’(1993: 250). When European nations dominated, ’European intellectuals wereprone to attack the abuses of rival empires, while either mitigating or excus-ing the practices of their own.... Doctrines of cultural exceptionalism arealtogether too abundant’ (p. 291).We find the tendency in our reasoning to create divisions between ’us’ and

’them’, the civilized and the savage, now and then. Snyder and Hay indicatehow such reasoning can limit our understanding. Fitzpatrick and Said soundmore dire warnings: Fitzpatrick indicates its connection with racism; Saidwith imperialism. It is my contention that the categories which divide the



407

world into colonial and postcolonial reinforce such constitutive - and self-exculpatory - reasoning.4 Although the conceptual movement from the col-onial to the postcolonial has been widely adopted within academic circles, ithas not proved equally persuasive to others. In particular those who are mostmarginalized because of their race/ethnicity and economic position seem mostrecalcitrant in the face of claims that we now occupy a postcolonial world. Forexample, Abdullah Omowale, one of the Muslimeen involved in the

attempted coup in Trinidad and Tobago of 1990, writes of the actions of thethen prime minister of the Republic,

... he opened the pages of the IMF [International Monetary Fund] DoomsdayBook putting the entire country into social, political, economic and moralreverse gear.Twenty-eight years of national independence was swept aside as the cast-off

garment of colonialism was rebuttoned tightly around us. (1992a; see also 1992c)

With particular reference to Northern Ireland, Liam O’Dowd states that thefailure to acknowledge and confront the resilience of colonialism in the latetwentieth century ’promotes facile assertions of global interdependence andmutual interests in what is misleadingly termed a post-colonial and post-nationalist world’ (1990: 31). The Caribbean author W Richard Jacobsdescribes another aspect of this resilient colonialism, the ’neo-colony’:

Independent by name, flying its own flag, promulgating laws from its ownParliament, but dependant in all material and metaphysical ways on the um-bilical cord which ties it to the metropolitan centre. The neo-colonial status,while it might in the short-run satisfy the ruling class, is a most debilitating,humiliating and ultimately dehumanizing experience, for it facilitates ’thesucking of the economic blood of the neo-colony and the reciprocal fatteningof the metropole in full view of all - the wretched of the earth as well as themetropolitan imperialist interests. (1982: 277)

Roger Moody, writing of indigenous peoples, comments that to treatcolonialism as a thing of the past is to ’ignore militarization, the de-develop-ment of the Third World, the spread of corporate capitalism, the continuingseizure of indigenous peoples’ lands and the adulteration of their spiritualityand culture’ (1993: xxix). Indeed the Aboriginal activist Sam Watson (1994)specifically utilizes the language of colonialism to describe the contemporaryposition of Australian Aboriginal peoples. Others, who do not use that lan-guage, write in terms of stasis with the past. For example, Eve Fesl (1989: 31),a Koori academic and activist, describes the position of Aboriginal people ofher parents’ generation as slavery. Robert Bropho (1992), an elder of theNyungah peoples of southwest Australia, writes of the history of WesternAustralia (WA) since white occupation as a series of ’waves of destruction’.At a time when Bropho envisages the ethnocide of his people, assertions of‘postcolonialism’ appear neither accurate nor appropriate.The debates over the colonialist content or otherwise of the contemporary

world not only raise issues of definition (cf. Williams and Chrisman, 1994:



408

1-3). In particular, the issue should not be overlooked of who it is who hasauthority to define colonialism and, therefore, who it should be who decidesif and when colonialism’s unambiguous reference to violence and economicexploitation is no longer adequate to comprehend what is occurring. In thedivided world described by Fanon there would be reason to be sceptical ofthe perceptions of colonialism held by both the colonizers as well as the colon-ized middle classes who had ’totally assimilated colonialist thought in its mostcorrupt form’ (quoted in Robinson, 1993: 82). Reason for scepticism increasesif an assessment is made of the terms upon which colonialism has been his-

torically recognized and condemned. For like the critics of the past, post-colonial critics of colonialism also often ’attack abuses in places and by powersthat do not greatly touch them’ (Said, 1993: 250).

Thus, while it may be true that the existence of colonialism within the FirstWorld is now admitted, we make this admission as citizens of a postcolonialworld. This is evident in Australia, where, in spite of the overtly colonialnature of relations with its indigenous peoples, Mervyn Hartwig (1978: 121)wrote that before 1978 only one writer had identified these relations in suchterms.5 More recently there has been a much more widespread acceptance ofthe colonial nature of historical relations between white and Aboriginalpeoples in Australia (e.g., Rowse, 1990; O’Malley, 1993) It is, however, mostoften in Aboriginal interpretations of contemporary relations that colonialismand stasis with the past are apparent (e.g. Watson, 1994; Fesl, 1989; Bropho,1992). For non-Aboriginal Australians, it would seem that even if the horrorsof colonialism can no longer be confined to occurring somewhere else (prefer-ably the Third World), it is at least possible now to confine its occurrence toa distant and barbarous time - the past.

Again, while it may be true that the horror of historical European colonial-ism in the Third World is now widely accepted, this acceptance has often beenmade by those who would not regard their own privilege and that of theirnations as being implicated in contemporary colonialism. The absence of anyresolute recognition of the contemporary realities of violence and class hasenabled us to ignore a great deal, including what Aime C6saire (1955/1972:59) describes as the rule of the ’modern barbarian. The American hour. Vio-lence, excess, waste, mercantilism, bluff, gregariousness, stupidity, vulgarity,disorder’. Said notes,

Yet in general the United States after World War Two considered itself respons-ible for many parts of the Third World which the British and French had evac-uated - Vietnam, of course, is the main instance - and, because of an exceptionalhistory based on the legitimacy of an anti-colonial revolution, largely exemptfrom the charge that in its own way it began to resemble Britain and France.(1993: 291)

Noam Chomsky (1987), Kathy McAfee (1991) and others have clearly docu-mented the mechanics of contemporary US rule, and authors such as KevinWatkins (1992) have traced its permutations through more recent GATT(General Agreement on Tariffs and Trade) innovations. And while the form



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of colonial exploitation has changed in many instances,6 the parallels withearlier, formally colonial times remain evident. For example, the net results ofthe colonial economic order of the seventeenth through nineteenth centuriesdescribed in Eric Williams’ Capitalism and Slavery (1944/1961)7 and of theearly twentieth century described in A.G. Russell’s Colour, Race and Empire(1944) are starkly mirrored in the economic ramifications of the new worldorder, exemplified through relations between the US and the Caribbean (e.g.Barry, Wood and Preusch, 1984; Chomsky, 1987; McAfee, 1991).

COLONIALISM AND ECONOMICS

According to many colonized peoples’ analyses of colonialism, althoughracism is never merely incidental, it is economic exploitation which is foun-dational. Fanon (1952/1968: 13) attributes the ’inferiority complex’ of thecolonized primarily to economic processes and subsequently to ’the internal-ization - or, better, the epidermalization - of this inferiority’; C.L.R. James(1938/1963: 283) states that the ’race question is subsidiary to the class ques-tion in politics, and to think of imperialism in terms of race is disastrous’;C6saire (1955/1972: 10, 11) finds the decisive actors in the colonialist projectto have been the

... adventurer, pirate, wholesale grocer and shipowner, gold digger, merchant,appetite and force, and behind them a form of civilization which at a point in itshistory finds itself for internal reasons obliged to extend to a world scale thecompetition of its antagonistic economies.8

That is not to ignore that the forms of economic exploitation may havechanged since the era of the authors previously cited. Eboe Hutchful (1986),concurring with Wallerstein and others, describes the contemporary era asbeing characterized by the internationalization of capital in the form of trans-national or multinational corporations. In this context, international econ-omic relations no longer involve predominantly the export of commoditiesand capital by national producers and financiers, but the internationalizationof capitalist production, in which the Bretton-Woods institutions play acrucial role. Watkins (1992) also highlights the increasingly significant role ofthe control over intellectual property and technology in maintaining FirstWorld privilege. Although the forms may have changed, the end remains thesame - ’the sucking of the economic blood of the neo-colony and the recip-rocal fattening of the metropole in full view of all - the wretched of the earthas well as the metropolitan imperialist interests’ (Jacobs, 1982: 277).

COLONIALISM AND LAW’S VIOLENCE

It is not only the economic exploitation and marginalization which haveremained fundamentally unaltered by the formal political changes of the



410

contemporary era. Hutchful also adopts Marx’s analysis of the conditions ofexploitation in the ’periphery’; that is, as being unrestrained by ’naturalreason’ and hence, flagrantly violent (1986: 156, 157). For many colonizedpeoples, the economic exploitation which characterized colonialism wasassociated with an equally definitive violence (e.g. C6saire, 1955/1972; Fanon,1961/1990; Davis, 1989). The similarities between the brutal military incur-sions described in Russell’s (1944) and more recent studies, therefore, presentanother aspect of the continuity between the colonial and so-called post-colonial worlds (Barry, Wood and Preusch, 1984; Chomsky, 1987; McAfee,1991).As Fanon notes, however, it was not only military force, the barracks,

through which the violent divide between the colonizers and the colonizedwas maintained. The police stations, their functions and the attitudes towardsthem, were equally integral to this divided world. The issue of postcolonial-ism is therefore of particular relevance to the role of law in the contemporaryworld. If Fitzpatrick’s (1992) thesis of the constitutive nature of our legalsystems in defining our civility is accepted, the issue of postcolonialism forlaw is of even more significance.The growing acknowledgement of the violence and exploitation perpe-

trated in what is now known as the ’colonial era’ can be reconciled to notionsof our own civility through the postulation of a world and a law which havebecome fundamentally different to that which they were in the past. And it isin the postcolonial that absolution can be found. In the remainder of thisarticle, I refer to three broadly grouped interpretations of law which haveevolved in tandem with the ’postcolonial’ world. These interpretationssuggest that the significance of law as a penal mechanism has declined as othermethods of discipline have increased; that law increasingly has an adminis-trative/discursive character; that ’colonial’ violence and oppression weresomehow aberrant or external to law.

I raise these interpretations in the context of the specific practice of (col-onial)9 law in relation to the colonized peoples of the West Indies and Aus-tralia. In particular, my focus is on the practice of law in relation toTrinidadians, predominantly the descendants of the African slaves and Indianindentured labourers transported to Trinidad as part of the colonial labourregime; and the minority indigenous peoples of the colonized state of WesternAustralia. In the context of what is currently being done to these peoples, itis my contention that the interpretations of law to which I referred earlier con-stitute part of the creed of ’a multitude of moral teachers, counsellors and &dquo;be-wilderers&dquo; [who] separate the exploited from those in power’ and who ’hidethe domination’ in capitalist societies (Fanon, 1961/1990: 29).My claim that such interpretations are ’bewildering’ has a specific reference.

How law is experienced/viewed by some cannot and should not be general-ized into a definitive statement of the nature of law for all. In particular, suchinterpretations of law will ’bewilder’ in proportion to the distance betweenthe relative privilege of the proponents of such approaches and the disadvan-tage of those it is often assumed are being spoken for. Because the distinction



411

between the colonizer and the colonized has become muted through post-colonial theory, a preoccupation with what in practice is the law as it is knownto the colonizers is unrecognized. As a consequence, the continuing role oflaw’s violence in the economic exploitation of colonized peoples goesunheeded.

THE DEATH OF THE PRISON?

Michel Foucault’s Discipline and Punish: The Birth of the Prison (1979) is akey text in modern analyses of law. But somewhat akin to Foucault’s Victori-ans who spoke incessantly about a secret sexuality (Foucault, 1987), Fou-cault’s ’birth of the prison’ to some degree also acts as its tombstone. Althoughprimarily concerned to trace the development of the prison, Foucault’s con-clusion is that two processes which had ’no doubt ... already begun to a largedegree’ were ’capable of exercising considerable restraint on [prison] use andof transforming its internal functioning’ (1979: 306). The first was ’that whichreduces the utility ... of a delinquency accommodated as a specific illegality,locked up and supervised’ (p. 306). The second process was ’the growth of allthe disciplinary networks, [and] the multiplication of their exchanges with thepenal apparatus’. With the proliferation of ’all these mechanisms of normal-ization, which are becoming ever more rigorous in their application, the speci-ficity of the prison and its role as link are losing something of their purpose’(p. 306).

Interpretations subsequent to Foucault’s analysis include those whichexpressly refer to the decline of the prison as an agency of social control (e.g.Trotman, 1986: 72) and those which simply omit the role of prisons altogether(e.g. Lash, 1994: 131,132).1° It is no doubt open to debate whether suchinterpretations either correctly reflect Foucault’s analysis or alternatively canbe attributed to his influence. It seems to me, however, that when an authorchooses to construct his analysis in terms of the ’birth of the prison’ (naissancein the original), it cannot be claimed that its death was unenvisaged. This criti-cism of Foucault is not simply pedantic. Refer, for example, to Foucault’sunequivocal assessment of the contemporary significance of the prison:

If there is an overall political issue around the prison ... it is not even whetherwe should have a prison or something other than a prison. At present, theproblem lies rather in the steep rise in the use of these mechanisms of normali-sation [medicine, psychology, education, public assistance, ’social work’] andthe wide-ranging powers which, through the proliferation of new disciplines,they bring with them. (1979: 306)

I am neither concerned to argue whether an interpretation such as Trotman’sis what Foucault intended nor am I concerned to claim that it is the only poss-ible reading. I would claim, however, that such an interpretation is one whichis open on Foucault’s text and his account of the normalizing rather thanrepressive essence of the prison. As I hope to indicate below, however, the



412

decline of the prison is difficult to sustain if one has regard to statistical datadocumenting the incidence of imprisonment in relation to colonized peoples.

TRINIDAD AND TOBAGO: CONTEMPORARY IMPRISONMENT

In Trinidad and Tobago, prison numbers have varied significantly through-out this century. As can be seen in Figure 1, if any overall trend can be dis-cerned, it is one which contradicts the thesis that the use and incidence ofimprisonment is in decline.

Moreover, historical data indicate that in 1990 the rate of imprisonment percapita was higher than at any previously documented time. That not onlyrefers to per capita rates for this century but includes rates from the latter halfof the nineteenth century (Hagley, 1993: 148, 151; Trotman, 1986: 280); an era

FIGURE 1Trinidad and Tobago Daily Average Prison Population 1935-1991 1

Sources: Hagley, 1993; T&T CSO, 1993.



413

characterized by the use of criminal law to enforce indentured/‘servant’labour regimes and severe cultural repression within a plantation society(Trotman, 1986; Brereton, 1979; Singh, 1988).

It is of note that in 1990 there had been a coup attempt in Trinidad and

Tobago which was followed by extensive rioting, looting and arson. While theattempted coup and subsequent events no doubt contributed to the highnumber of imprisonments in that year, the dramatically increasing rate ofimprisonment preceded the coup attempt and coincided with the interventionof the IMF in Trinidad and Tobago. Therefore, while total committals doubledbetween 1989 and 1990, they had already tripled from some 5000 to 15,000between 1988 and 1989 (Trinidad and Tobago Central Statistical Office [T&TCSO], 1992: 53). Interestingly, perceptions of cause and effect in the relation-ship between the coup/looting and imprisonment may need to be reversed -conforming to Douglas Hay’s (1992) suggestion that escalations in law’s vio-lence precede the wider dissemination of violence throughout society.

It is also clear from the account of Omowale, one of the coup leaders, andthe accounts of others who were not involved, that the Muslimeen who ledthe coup attempt had in fact sought to halt the rioting, looting and arson(Omowale, 1992b; Trinidad Express Newspaper, 1990; Searle, 1991).Omowale specifically related the popular uprising to the dissatisfaction of thepoor of Trinidad, who suffered most acutely from the ’conditionalities’imposed by the IMF (1992a). In this he is not alone; Dennis Pantin, a Trinida-dian economist, predicted in 1989 that ’riots and deaths’ would be the conse-quences of IMF intervention in Trinidad and Tobago (1989: 19).

Therefore, it is difficult to isolate the coup, rioting and imprisonment ratesfrom the impact of IMF policies in the Republic. Again, it is Hay’s (1992)association of legal violence with economic conditions, and Hutchful’s(1986) association of violence in the ’periphery’ with the economic con-ditions and policies of the metropolitan centres which seem far more perti-nent to the recent history of Trinidad and Tobago than any analysis which ispremised on the declining significance of imprisonment in contemporarysocieties.

WESTERNAUSTRALIA: CONTEMPORARYABORIGINAL IMPRISONMENT

Data in relation to the imprisonment of Aboriginal peoples in Western Aus-tralia also fail to comply with the ’Foucauldian’ prediction of the declininguse of the prison in modern societies (see Figure 2). It is true that the propor-tion of Aboriginal imprisonments did decline after peaking at 50 percent ofthe prison population early this century (Western Australia GovernmentStatistician (WAGS), 1912, 1922, 1931). However, a sustained decline inAboriginal prison numbers lasted only until the late 1940s (WAGS, 1942,1953, 1963), and was principally associated with the implementation of anapartheid system which largely segregated Aboriginal people from thebroader society and subjected them to the internal disciplinary regimes of the



414

FIGURE 2Western Australia Aboriginal Imprisonment Rates as a Proportion of Total

Imprisonments, 1930-1967

Source: WAGS, 1931, 1942, 1944, 1953, 1963, 1964, 1969.

reserves, settlements, missions and pastoral stations, to which they were con-fined by law (e.g. Haebich, 1992; Hawke and Gallagher, 1989; Marshall, 1988).Since the 1950s Aboriginal imprisonment rates have steadily increased andcurrently Aboriginal prisoners constitute approximately 30 percent of theprison population (WAGS, 1969; WA Department of Corrective Services,1992).Although the period since the 1950s is associated with official policies

related to the assimilation of Aboriginal peoples, that period also coincidedwith an exponential increase in mineral exports from Western Australia (seeFigure 3); an increase which broadly mirrors the increase in Aboriginal prisonnumbers.

It is of note that the growth in mineral exploration and exploitation, as wellas agricultural expansion in the southwest (Haebich, 1992; Ghosh, 1987),



415

FIGURE 3Western Australia Net Value Mineral Production in Western Australia,

Selected Years 1938/9-1974/5

Source: Ghosh, 1987: 282.

altered the economic value of the land on which many of the reserves,settlements, missions and pastoral stations were established. Therefore,although the closure of these institutions was associated with assimilationistpolicy, their closure also brought economic benefits to many sectors of thenon-Aboriginal society. For many Aboriginal people, however, this era con-stituted a second wave of dispossession (e.g. Bropho, 1980: 153).Over the period from 1946/7 to 1991/2, per capita rates of Aboriginal

imprisonment increased from something of the order of 1.4 to 140 per 1000(Purdy, 1995: 146). In addition to this, Aboriginal people also make up some50 percent of those incarcerated in the police lock-upsll (Australian Instituteof Criminology [AIC], 1993). It is of note that Aboriginal people in WesternAustralia constitute something less than 3 percent of the total population.Indeed, Aboriginal people in Australia may now be the most highly impris-oned minority group in the world (Moody, 1993: 435).



416

THE ‘NON-SPECIFICITY’ OF IMPRISONMENT

The contemporary imprisonment rates of both Trinidadian and Aboriginalpeoples are inconsistent with any thesis that modern disciplinary methods arereducing the incidence of imprisonment in modern society, in particular as itis used against colonized peoples. However, an alternative interpretation ofFoucault’s thesis may be that it was the specificity, more than the incidence,of imprisonment which was in decline. Even if this is allowed, difficultiesremain.

In order to dispute such a thesis one would be required to engage with whatmust, on the final analysis, remain imponderable. That is, whether life outsidethe prison is increasingly resembling life inside.12 Perhaps from a theoreticalperspective, such a thesis is persuasive; but again, much may depend on whichside of the prison walls one stands. It would seem to me that both the

extremely high incidence of Aboriginal deaths in custody and the graphichorror of imprisonment as described by inmates in the existing prisons ofTrinidad should belie this kind of speculation (Royal Commission into Abor-iginal Deaths in Custody [RCIADIC], 1989; Jagessar, 1992; Paul, 1990). Formany of the present inmates, at least, it would not seem that the ’disciplinarytechniques’ inside the prison particularly resemble those outside.Beyond this, however, to argue that imprisonment lacks specificity among

contemporary disciplinary mechanisms, that it is indeed these mechanismswhich are the ’overall political issue around the prison’ (Foucault, 1979: 306),is to preempt any study of the specific role of imprisonment in contemporarysocieties. It therefore disables recognition of any particular role that im-prisonment plays in the construction of the racially and economically mar-ginalized positions occupied by many colonized peoples. The significance ofthe violence perpetrated through law is lost if we commence with the thesisthat we are all equally subject to effectively analogous ’mechanisms of normal-ization’.

LAW AS ADMINISTRATION/DISCOURSE

The second broad interpretation of law to which I want to refer is related toFoucault’s work and is based upon the view of law as an (increasingly) admin-istrative and/or discursive process. For example, Fitzpatrick (1992: 152) dis-cusses Foucault’s thesis that as law changed in character from a prohibitive toconstitutive form, the judicial institution was incorporated into a continuumof apparatuses ’whose function is for the most part regulatory’. Alternatively,law has been subject to discourse analysis (e.g. Burton and Carlen, 1979), andappraisal as literature (see Weisberg, 1992), on the basis that such analysis andappraisal can comprehend what law is.The administrative/discursive aspect of law was apparent in the magistrates’

courts that I observed in Western Australia,13 particularly in respect tointeractions with non-Aboriginal defendants (see Broadhurst, Ferrante and



417

Susilo, 1992: 30). Often those summonsed on criminal matters were permit-ted to plead guilty by way of summons. Their physical presence in court wasdispensed with as charges, pleas and fines were all transacted through themedium of discourse and the impersonal agency of the mail. Moreover, eventhose who were required to be present in the courts tended to plead guilty,and the public spectacle did appear to confirm Fitzpatrick’s (1992: 148)assertion of the contemporary state’s attempts to inculcate ’a conformist disci-

pline in its subjects’, which is corollary to the regulative function of law incontemporary societies. For such self-regulating defendants it may well bethat law operates as a regulatory, as opposed to punitive, process. Their bodieswere not a focal site of the legal process, as were the bodies of those who didnot, or who were perceived to not, conform. With respect to the self-regulat-ing defendant, it may also be true therefore to claim that discourse analysisand literary critique provide useful perspectives on the functioning of law.The same, however, does not generally hold true for Aboriginal defendants.

Their bodies played a crucial role in the legal processes to which they weresubjected. The physical presence of Aboriginal people is overwhelminglyrequired in the courts - and prisons - of Western Australia. For such people,the language of the law may not only be irrelevant but also incomprehensible(Wilkie, 1991: 13,14). And if Aboriginal people do often plead guilty in thecourts, as do other defendants in Western Australia, it is not apparent that thisis related to the self-regulating subject discussed by Fitzpatrick. Indeed thefact that most Aboriginal defendants were in custody at the time of their courtappearance would indicate just the opposite, that is, the ’failure’ of these sub-jects to conform without direct and physical intimidation. (Whereas 17percent of non-Aboriginal defendants appeared before magistrates while incustody, 60 percent of the Aboriginal defendants I observed were in custodyat the time of their court appearance (Purdy, 1992/3)).

In Trinidad, a country of colonized peoples, the physical and personal, asdistinct from the discursive and administrative, processes of law played a sig-nificant role. The personal humiliation of defendants was frequently part ofthe court process. In particular the humiliation of prisoners, as well as the visi-bility of their ’dangerous’ (black)14 bodies, were emphasized through cagingand shackling. Moreover, relatively few defendants in that jurisdiction wereprepared to plead guilty (Purdy, 1992/3).The analysis of law as part of a continuum of disciplinary and regulatory

apparatuses failed to provide insight into the highly punitive relations withcolonized peoples constituted through the colonizers’ law. Moreover, to positlaw as discourse in the context of the massive and intervening incarceration ofthese groups disables our recognition of what is being done to them. It alsomeans that we can dispense with speaking to them. Law’s ’secrets’ may begleaned from an analysis of legal texts (Burton and Carlen, 1979: 20). We, theself-regulating subjects who are likely to know law only as regulatory and dis-cursive, define law in those terms and thereby dispense with the expertise ofthose who know otherwise. It is also of note that the approach to law as anadministrative/discursive practice leads to and consolidates notions of law’s



418

equality. The particularity of our positions as white and/or privileged is

ignored as our knowledge of law as regulatory and discursive occludes every-one else’s.

LAW’S VIOLENCE AS HISTORY

The third interpretation of law to which I want to refer is one which positsthe violence and oppression of the ’colonial era’ as somehow aberrant orexternal to law. This interpretation of law both acknowledges the violence ofcolonialism at the same time as diminishing the role of law in its perpetration.My contention is not that such an interpretation is ’postcolonial’ - except inthe broadest sense of implying that the colonial era is now past. Rather it isthat our ability to address such analyses, whether they be liberal or just wrong,is diminished if we have no firm grasp of the divide which separates the colon-izer’s and the colonized’s perceptions of law.The approach to colonial violence as either aberrant or external to law is

particularly prominent in Australia, and for that reason I confine my dis-cussion of this interpretation to the Australian context. Its appeal in Australiamay well be related to the ’internal* character of the colonialism practised inrelation to its indigenous peoples (Wolpe, 1975; Hartwig, 1978). The conces-sions which have been made to Aboriginal peoples appear meagre even incomparison to the formal political independence that has often been grantedin conditions of external colonialism and which provide legitimacy to theretained colonial legal systems of the ’neo-colonies’.

In Australia, concessions to Aboriginal peoples subsist in such measures asgranting them human status for census purposes, the right to vote and, withthe 1992 Mabo decision (Mabo v Queensland [No.2] [1992] 175 CLR 1), theoverturning of the terra nullius (no-one’s land) doctrine. With such meagrechanges to the colonial system, the imperative to locate colonial violence andoppression as external or aberrant to law remains strong if the legitimacy ofthat retained legal order is to be at all persuasive. An influential proponent ofthis kind of approach to law in Australia is Henry Reynolds. Reynolds’research has had profound effects upon many (non-Aboriginal) Australians’perceptions of our history and has highlighted the violence, duplicity andtreachery of the early colonists (e.g. 1992). Coinciding with these themes,however, has been one extolling and vindicating British common law. Toquote Reynolds:

The common law was corrupted in Australia by the nature of the relationshipbetween settlers and Aborigines in the same way it was corrupted in Britain’sslave colonies.... Forced and uncompensated dispossession was frowned on bythe Imperial government but in one way or another the colonists continued totake Aboriginal land and convince themselves it was not theft. (p. 4)

Colonial violence is presented at its highest as being within the purview of thecolonial governments and distinct from the inherited legal system. The



419

imperial policies effecting the appropriation of Aboriginal lands by the BritishCrown are assumed to have been separable from colonial violence againstAboriginal people; as if the occupation of Aboriginal peoples’ lands couldhave somehow occurred peaceably.Even beyond such a questionable assumption, Reynolds goes to some

length to show the extraneous nature of British laws which did allow theuncompensated dispossession of Aboriginal peoples. For example, Reynoldswrites of ’Land Rights Frustrated’ with reference to the colonization of SouthAustralia (1992: 103). It is true, as Reynolds indicates, that the constitution actof that state was drawn up by the company promoting the venture and not bythe British government. It is of course the case, however, that the act becameeffective because it was indeed made law by the British government. Reynoldstransforms the apathy of British parliamentarians over the passage of an actwhich described Aboriginal peoples’ lands as ’waste and unoccupied’, hencemaking it available for sale by the promoters, into an exoneration of Britishlaw in the dispossession of Aboriginal peoples (1992: 103).~5As further evidence of the purported concern for Aboriginal people evi-

denced through British imperial law, Reynolds refers to the 1849 Order inCouncil of the Imperial Government, in which Aboriginal customary rightsover land were preserved (1992: 125, 146).16 While such recognition of Abor-iginal rights is not denied, it is important to place it within its broader politi-cal and economic context. At the time of this and related imperial legislationevincing concern for Aboriginal land rights, New South Wales had alreadybeen granted a partly elected legislative council (Imp.)(5 & 6 Vic. c.76 [1842]).Therefore, it was after more than 50 years of direct imperial rule and at a timewhen independence seemed inevitable, that British law for the first timeexplicitly recognized Aboriginal land rights in Australia. In fact, New SouthWales became an independent crown colony just six years after the Order inCouncil became law in 1849 (Imp)(18 & 19 Vic. c.54 [1855]).Moreover, although colonial governments could not normally override

imperial legislation which was specifically enacted to apply to the colony, in1855 legislation was also enacted by the British parliament which repealed allimperial legislation relating to the disposal of ’waste lands’ in New SouthWales. That legislation authorized the colonial legislature to repeal any Orderin Council made under the imperial legislation, including the Order of 1849recognizing Aboriginal peoples’ rights to land (Imp.) (18 & 19 Vic. c.56

[1855]). If this is to be taken as evidence of the concern for Aboriginal peoplesafforded by the ’uncorrupted’ form of British law, then the sudden discoveryof the value of (limited) democracy for the working people of Hong Kongwithin a few years of the end of British colonial rule (Hong Kong Govern-ment Information Services, 1995) should also be taken as evidence of thestrength of the democratic impulse engendered by British common law.

Justice Brennan’s Mabo judgment illustrates the significance of this kind ofapproach to law in Australia, but avoids the difficulties of exonerating theimperial government from colonial oppression, while also maintaining the’innocence’ of the common law. (Indeed it would seem that far from being



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concerned to grant Aboriginal peoples land, it was the latter which motivatedthe judgment; see Mabo 175 CLR 1, at 69.) Brennan J. stated, ’Aboriginalrights and interests were not stripped away by operation of the common lawon first settlement by British colonists, but by the exercise of a sovereigntyover land executed recurrently by Governments’ (Mabo 175 CLR 1, at 68).While such an approach may address the issue of imperial government com-plicity in the oppression of Aboriginal peoples, it does so by means of assert-ing a distinction between the common law and its practice (Kerruish, 1989).Such an assurance of a ’law’ which exists beyond its practice may have beenfar more persuasive had it not been required to be sustainable over more than200 years of Australian legal history.

It is of note that Reynolds (1992: 4) draws a parallel between the ’corrup-tion’ of British common law in Australia and ’Britain’s slave colonies’. Both

Reynolds’ and Brennan’s analyses provide the basis for a quite different par-allel to be drawn. Criticizing conventional historical accounts of the Britishslave trade, Eric Williams notes that such accounts had been written ’almostas if Britain had introduced Negro slavery solely for the satisfaction ofabolishing it’ (quoted in Fryer, 1988: 5). In contemporary treatments of thehistory of British common law in Australia, the retreat from the doctrine ofterra nullius is transformed into a vindication of British common law; ratherthan an indictment of a system which denied Aboriginal peoples fully humanstatus for more than 200 years. Paraphrasing Williams, I find that suchaccounts leave one with the impression that the doctrine of terra nullius wasintroduced into Australian law solely for the satisfaction of abolishing it.The significance of such accounts, however, lies not so much in the issue of

their accuracy but in the implications they hold for our ability to locate sitesof oppression and violence against colonized peoples. By exonerating law, itremains unquestionably within the capacity of the colonizer’s law to ’retreatfrom [such] injustice’ (Reynolds, quoting Justice Deane of the High Court ofAustralia, 1992: 4). Inquiries into the nature of that law, such as those under-taken by Fitzpatrick (1992) and Kerruish (1991), are foreclosed, and the issueof whether the colonizers’ law can encompass the possibilities of decoloniz-ation simply do not arise. Indeed in a ’postcolonial’ era, our ability to evenidentify such law as belonging to the colonizer is lost.

CONCLUSION

It seems that as we have been made to confront the realities of colonialism, wehave simply added another manoeuvre to those relied upon by the colonizersof the past: while they distinguished themselves from their colonial rivals, wedistinguish ourselves from our colonial predecessors. Dressing law in the bor-rowed garb of postcolonialism has made us blind to the ways in which lawcontinues to function as it always has in the colonial context - a context wherepolice use their rifle butts to ’speak the language of pure force’ to the wretchedof the earth (Fanon, 1961/1990: 29). For those other than the wretched of the



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earth, Pierre Bourdieu and Jean-Claude Passeron (1977: 36) may well havebeen right to claim ’the emperor is never naked’; as Fanon note; (1961/1990:29), the ‘ &dquo;bewilderers&dquo; ... lighten the oppression’, they ’hide the domination’.And we remain puzzled if ’the native’ does not love us ’something in the

way mothers are loved’ (Sartre, 1961/1990: 7).

NOTES

I would like to thank the University of the West Indies and Professor Maureen Cainfor arranging for me to attend the university as a visiting research student throughout1992, and also to acknowledge the assistance of the La Trobe University School ofSocial Sciences Research and Travel Grants Committee. I would also like to thankAssociate Professor Valerie Kerruish for her insightful comments and assistance in thepreparation of this article.

1. Since we are not all arrested/imprisoned/flogged/executed, it is clear that the’ubiquitous’ violence to which Sarat and Kearns (1991) refer is not direct

exposure to the physical violence of law. Perhaps theirs is some sort of appre-hension of legal violence which, although real, resides at a metaphysical level.My difficulty with such an analysis is that it occludes the position of those whoseexposure to law’s violence is not confined to the metaphysical. If we accept thatlaw’s violence is ubiquitous, once again it is us - whether we be colonizers,middle class or anything else - who can claim expertise on this aspect of law;once again, the divisions which Fanon (1961/1990) and others have tried toimpress upon us disappear from our consciousness.

2. I am not disputing the significance of feminist perspectives, for example, in theanalysis of colonialism. My view, however, following that of those whose workand analysis are as activists who are and who work on behalf of impoverishedand colonized women, is that feminist analysis cannot be isolated from the vio-lence, race and class in which gender is constituted - and of which it is consti-tutive (e.g. Buchanan, 1976/1993; Cole, 1986; Moran, 1993).

3. Given the diversity in the group of ’postcolonial writers’, my comments are ofnecessity generalizations only. For example, my criticisms do not extend tothose who use a postcolonial periodization, such as Aijaz Ahmad (1992), butwho like me ’resolve to say things which go against the contemporary trend’(p. x) and work within a Marxist/socialist paradigm. There is a large degree ofoverlap in my own and Ahmad’s analyses given the shared emphasis on class,although there are also significant differences given that Ahmad’s analysis is con-structed through the ’postcolonial’ category, and my own through the retentionof a category of the colonial. Such differences would need to be worked out interms of the specificities of our enterprises, including location - in India asopposed to Australia and Trinidad; and subject matter - literature as opposed tolaw. The incommensurability of literature and law, in particular within a classanalysis, is emphasized in the criticisms of the ’law as literature’ genre whichfollow.

4. Said’s preference for interpreting the contemporary context in terms of imperial-ism rather than colonialism (1993: 8) runs counter to my own analysis.However, Said’s failure to acknowledge the persisting nature of colonialrelations in the First World and in particular with reference to the Aboriginalpeoples of Australia is of itself a glaring omission which renders his analysis onthis point less than persuasive (Purdy, 1995: 23). Note that Said is not alone in



422

this glaring omission; see also Patrick Williams and Laura Chrisman, 1994: 4and, as alluded to in note 3, Aijaz Ahmad, 1992.

5. It seems there was at least one other work that utilized the colonial hermeneu-tic in the analysis of Aboriginal/non-Aboriginal relations in Australia; R.H.W.Reece’s Aborigines and Colonists (1974). Although it is of note that this was ahistory of colonial society in New South Wales (NSW) during the 1830s and1840s.

6. European powers and the US also continue to exercise ’old-fashioned’ colonialcontrol over a number of territories. For example, refer to contemporaryrelations between France and ’French’ Polynesia, recently highlighted byFrench nuclear testing; refer also to relations between England and NorthernIreland and the Malvinas; the US and the Panama Canal region and Puerto Rico.Moreover, the ’former’ European empires continue to reap the benefits of theircolonial past and present (e.g. Barry, Wood and Preusch, 1984; McAfee, 1991).

7. Williams sought to reconstruct an historical connection between metropolitaneconomic interests and colonial (legal) relations, in order to displace official his-torical accounts of the genesis of slavery in terms of race/racism (1944/1961: 7)and its decline in terms of philanthropy. I am aware that Capitalism and Slaveryhas been subject to such sustained critique that ’it is fashionable nowadays tosay that Williams’s work is discredited’ (Fryer, 1988: 5). And yet while it isadmitted that many details now require correction, Christopher Fyfe states,’Still one wonders - has the edifice really fallen? Certainly it has not been

replaced’ (quoted in Fryer, 1988: 5). It would not seem to have been displacedfrom the thinking of many colonized peoples.

8. Refer also to the views of Helen Boyle, Karen Moran, Abdullah Omowale andBilal Abdullah, all contemporary activists among economically and raciallymarginalized groups, who strongly emphasize the economic basis of their mar-ginalization (Purdy, 1995: 54, 55, 246, 247).

9. The legal system of Trinidad and Tobago, like that of Australia, is based onBritish common law. Although Trinidad and Tobago is a republic it has retainedthe Privy Council as its highest Court of Appeal. In Australia, there is veryscarce recognition of the validity of Aboriginal law, and none of Aboriginal sov-ereignty.

10. Trotman (1986: 72) states that the decline in prison numbers in Trinidad at theend of the nineteenth century was due to the gradual abandoning of the prisonas a major agency of social control; his bibliography includes Foucault’s Disci-pline and Punish. Lash (1994) ignores prisons altogether in his analysis of con-temporary society. Of the same population which Chambliss and Sbarbaro(1993) have shown to be subjected to up to 40 percent imprisonment rates, Lash(1994: 131, 132) writes that they suffer from a ’deficit of regulation’, elsewherethat they are subject to ’neither heteronomous nor self-monitoring but verylittle monitoring at all’.

11. ’Lock-ups’ are located at police stations; although they are also sites of incar-ceration, they are distinct from prisons for statistical purposes.

12. It seems even this interpretation of Foucault remains contentious. I wouldhowever refer readers to Foucault’s discussion of the incorporation of thejudicial institution into a ’continuum of apparatuses’ (1987:144); the ’movement... from a schema of exceptional discipline to one of generalised surveillance ...the gradual extension of the mechanisms of discipline throughout the wholesocial body, the formation of what might be called in general disciplinarysocieties’ (1979: 209); the ’great carceral continuum’ constituted through thetendency of the ’frontiers between confinement, judicial punishment andinstitutions of discipline’ to disappear (p. 297); the transportation of the



423

’penitentiary technique’ by the ’carceral archipelago ... from the penal insti-tution to the entire social body’ (p. 298); the surveillance and punishment ofincarceration as ’a principle of relative continuity’ (p. 299); the ’homogenizing’of the ’legal power to punish’ and the ’technical power to discipline’ (p. 303);and as previously cited, that ’the specificity of the prison and its role as link arelosing something of their purpose’ (p. 306).

13. I conducted fieldwork in the magistrates’ courts of Trinidad and Western Aus-tralia while undertaking doctoral research during 1992 and 1993. In total Iobserved 18 courts over 55 sitting days (1992/3).

14. In the courts that I observed in Trinidad, there was a concentration of pheno-typically blacker people among the ranks of those in custody (caged). The nexusbetween colour and class in colonized societies is examined in Purdy, 1995.

15. Reynolds points out that few parliamentarians attended the final reading of theAct (1992: 103). I do not doubt that some individual politicians and others weregenuinely committed to assisting Aboriginal peoples.

16. The strength of this imperial goodwill was recently tested before the AustralianNational Native Title Tribunal. That case highlighted the attenuated protectionafforded Aboriginal people under the Order of 1849 (Re Waanyi Peoples NativeTitle Application [1995] 129 Australian Law Reports 118).

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