Berkeley Books: Juridical Humanity: A Colonial History

Sookyoung Lee
February 05, 2013
The book cover of Juridical Humanity depicts a partially drawn person among empty human outlines.

During the first two decades of the twentieth century, worms plagued the cotton fields of Egypt, badly damaging British stakes in the industry (which had grown following the decline of American cotton production after the abolition of slavery). Since the cotton worms had to be manually picked off, peasants were central to the agricultural campaign against the infestation. Their labor was increasingly regulated, and the neglect of agricultural duties to combat the worms was liable to be penalized through fines, imprisonment or additional hard fieldwork. The agricultural legalities and scientific reports of the era are writ with irony: concurrent with humane reforms that banned whipping and forced labor, new conventions of law, governance and economy effectively freed peasants into a lifetime of tax, debt and the sale of their labor to private estates where violence still went unchecked outside the regulation of state law.

This strange scene reveals much about the logic of colonial legal operation. Juridical Humanity: A Colonial History by Associate Professor of Rhetoric Samera Esmeir provides a historical and theoretical account of the modern positive law that was implemented to replace shari’a (Islamic) law during the British occupation of Egypt following the conquest of the region in 1882. Modern law, argues Esmeir, set the pursuit of “juridical humanity” as its telos, negotiating and ever so refining the terms of being human. Through the example of Egypt, Esmeir demonstrates that secular notions of humanity weren’t a mere consequence of the new rule of law; rather, modern law, by circumscribing all that is “human” and rejecting anything outside it as dehumanizing, was a necessary operating force in the colonial enterprise. Declared subjects of the rule of law, the Egyptians were accounted for as human by modern law and therefore bound to the colonial state. Esmeir takes off but deviates from Arendt’s articulation of the “juridical person,” a figure who, upon losing his right loses his humanity, and who can be said to commit violence only when excluded from the law. By extension, “juridical humanity” – collapsing the human into the juridical person – involves the colonial state itself as an actor who legally sanctions useful violence, characterizing these as within the realm of the human. Unlike traditional anti-colonialist thinkers, who critique the colonial state for its exclusionary and dehumanizing laws, Esmeir locates coloniality in its positive, inclusive laws that sought to encompass a universal humanity.

Scrutinizing the textbooks and journals of the era published by legal professionals who were trained in the new regime of law, Esmeir describes how the rhetorical force of positive law produced a new temporal sensibility above and beyond cultural and political changes. She posits that authority in Islamic law referred to tradition, which connects the acts of the present with those of the past, its force always immanent in the present. By contrast, modern legal scholarship delimited the remembered past, relegating the precolonial, shari’a-based Khedival legal system to a past era retroactively deemed ineffectual and chaotic. New, secular national courts were drawn up as combinations of the French and British models; in particular, Bentham’s “pleasure principle” (an increase in pleasure corresponds to the reduction of suffering) was instrumental in putting a prohibition on pain and suffering, marking these conditions as occasions for intervention. The pursuit of superhuman perfection promised by the narrative of ever-increasing progress replaced the Islamic doctrine of human perfection, an ongoing ahistorical practice without specific ends. In contradistinction to the juridical human and the sensibility accompanied by positive law, Esmeir looks to an altogether different concept of a human, available for example in Jawhari’s texts that stress the continuity between life and death, human as part and parcel of the larger substance of both organic and inorganic matter.
Divided into three parts, each with two chapters, the book begins with a historical account of what Esmeir calls “juridical consciousness.” Part II, “Nature,” probes the terms of the legal reforms and the instrumental use of pain and suffering. Some pre-colonial violence was eliminated while other forms of violence considered more humane were sanctioned in accordance with the morally-invested goal of productivity. In chapters four and five, Esmeir provides a striking case study of peasant labor that pulls together the legal and theoretic frameworks of the previous chapters. Part III, “Powers,” ends with a recounting of the British debates over the application of martial law, imposed to try the leaders of the Urabi rebellion against the British-supported Khedive. It was declared again in response to the Ottoman Empire’s entrance into the First World War. Esmeir thus shows that martial law, in its exceptional legality, drew justification from humanitarian ideals to deal with political dissent. Perhaps by her estimation, then, dictatorship might be the ultimate expression of modern law that seeks to define and encompass humane punishment.

Visit the Biblio-file to view books that shaped Professor Esmeir's thinking while working on Juridical Humanity.

Sookyoung Lee is a Graduate Student Researcher at the Townsend Center for the Humanities.