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Circulations of Law: Cosmopolitan Elites, Global Repertoires, Local Vernaculars

  • Iza Hussin
Extract

Bernard Cohn once called the imperial point of view the “view from the boat”. There were other boats as well.

In 1893, the sovereign state of Johor adopted the Ottoman Medjelle (Meḏj̱elle-yi Aḥkām-i˚ḥʿAdliyye, the civil code applied in the Ottoman Empire since 1877), being the only state among the Muslim sultanates of the Malay Peninsula to do so. In 1895, Johor promulgated a Constitution (Undang-Undang Tubuh Kerajaan Johor), being the first state in Southeast Asia to do so. This article takes this moment, of the intersection of two types of law from quite disparate sources, as a point of departure for tracing the pathways by which law made its way from one corner of the globe to another. Taking nineteenth century Johor as our vantage point provides a new optic for mapping law's geography and temporality and for exploring the logics of law's itinerancy and its locality. The travels of law were always material, and often embodied; on ships sailing the Indian Ocean between Johor and Cairo were diplomats, merchants, pilgrims, and lawyers faced with new pressures and new possibilities; in the growing traffic in letters and newspaper reports between London and New York, Tokyo and Constantinople, were debates about empire and culture, power and authenticity; in personal relationships made possible by the technologies of nineteenth century cosmopolitanism, were similarly worldly dramas of deception and demands for justice. In the 2 short years between the adoption of the Medjelle and the Constitution in Johor, the sultan of Johor, Abu Bakar (1833–1895), typified this mobility and interconnection. In his travels across the Indian Ocean to the Near East and Europe; in his appearance in diplomatic communiques in London, Constantinople and Washington D.C.; in his prominence as a figure of exoticism and intrigue in the newspapers and the courts of the English-speaking world, the sultan not only embodied law's movements in a figurative way, he was also himself a key carrier of the law, and one of its signal articulators.

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hussin@post.harvard.edu
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1. Ho, Engseng, “Empire through Diasporic Eyes: The View from the Other Boat,” Comparative Study of Society and History 46 (2004): 210–46.

2. Findley, Carter V., “Meḏj̱elle,” Encyclopaedia of Islam, 2nd ed.Brill Online, 2013. http://www.encquran.brill.nl/entries/encyclopaedia-of-islam-2/medjelle-SIM_5107 (May 9, 2013).

3. The first modern Constitution in Asia was promulgated in the Meiji Empire in 1890, after Johor, the Malolos Congress of the Philippines enacted their Constitution in 1899.

4. Hussin, Iza, “Circulations of Law: Colonial Precedents, Contemporary Questions,” Oñati Socio-Legal Working Paper Series 2 (2012): 1832.

5. The phrase “law's vernacular accents” is borrowed, with gratitude, from William O'Reilly's comments on this article, delivered at the University of Cambridge Centre for History and Economics Seminar on April 30 2013.

6. Acknowledging also, its lively debates: compare Watson, Alan, Legal Transplants: An Approach to Comparative Law, 2nd ed. (Athens, GA: The University of Georgia Press, 1993); Legrand, Pierre, “The Impossibility of “Legal Transplants,” Maastricht Journal of European & Comparative Law 4 (1997): 111; Legrand, “The Same and the Different,” in Comparative Legal Studies: Traditions and Transitions, ed. Legrand, Pierre and Munday, Roderick (Cambridge: Cambridge University Press), 240; Kennedy, Duncan, “Two Globalizations of Law and Legal Thought, 1850–1968,” Suffolk University Law Review 36 (2003): 631; Twining, William, “Diffusion of Law: A Global Perspective,” Journal of Legal Pluralism 49 (2004): 145; and Westbrook, David, “Theorizing the Diffusion of Law: Conceptual Difficulties, Unstable Imaginations, and the Effort To Think Gracefully Nonetheless,” Harvard International Law Journal 47 (2006): 2.

7. Hussin, Iza, “Textual Trajectories––Re-reading the Majalah and Constitution in 1890s Johor,” Indonesia and the Malay World 41 (2013): 119.

8. Markovits, Claude, Pouchepadass, Jacques, and Subramanyam, Sanjay, eds. Society and Circulation: Mobile People and Itinerant Cultures in South Asia 1750–1950 (London: Anthem Press, 2003), 23.

9. Among these inequalities were race and gender, whose emergence in the negotiations and struggles are important issues for further exploration, but will not, for reasons of space, be discussed in great detail in this article. “It is in the asymmetry in negotiation processes that the power relationship resides, and it can be brought to light in its specificity only through a rigorous analysis of these processes, instead of being raised to the status of an explanatory category.” (Raj, Kapil, Relocating Modern Science: Circulation and the Construction of Knowledge in South Asia and Europe, 1650–1900. (New York: Palgrave MacMillan 2013), 8.

10. Pitts, Jennifer, “Empire and Legal Universalisms in the Eighteenth Century,” The American Historical Review 117 (2012): 92121.

11. Johor's geographic importance had long been recognized, by the Portuguese and the Dutch as well as the British. Borschberg argues that negotiations between the king of Johor and the Dutch East India Company in the first years of the seventeenth century prompted the young Grotius to begin articulating his conceptions of sovereignty, law, and treaty. Borschberg, Peter, “Hugo Grotius, East India Trade and the King of Johor,” Journal of Southeast Asian Studies 30 (1999), 229.

12. Harper, Tim, “The Malay World, Besides Empire and Nation,” Indonesia and the Malay World 41 (2013), 3.

13. Hussin, “Textual Trajectories”.

14. Freitag, Ulrike, Indian Ocean Migrants and State Formation in Hadhramaut: Reforming the Homeland (Leiden: Brill, 2003), 191.

15. Nurfadzilah Yahaya, personal communication March 15 2013: In addition to figures such as al-Zahir, the sultan's networks of relationships included a diversity of Hadhrami groups, such as the mercantile Arab families of Singapore.

16. Freitag, Indian Ocean Migrants.

17. Ho, “Empire through Diasporic Eyes,” 220–221.

18. Ibid.

19. Freitag Indian Ocean Migrants, 195.

20. Winstedt, Richard, A History of Johore, 1365–1941 (Kuala Lumpur: Malaysian Branch of the Royal Asiatic Society, 1992), 124.

21. Cowan, Charles, Nineteenth-century Malaya: The origins of British Political Control (London: Oxford University Press, 1961), 3839.

22. In August 1878, the maharajah requested British support for a change in his title to “Sultan,” a change that would place him as equal to the other sovereign sultans on the Malay Peninsula. The governor of the Straits Settlements’ reply was swift and unequivocal: “most undesirable to recognise Maharajah as Sultan it would be an incendiary to the whole Peninsula and following closely on the question of the Moar succession would greatly complicate our position.” Colonial Office Records: CO 882/4/22, 1885.

23. Nadarajah, Nesalamar, Johore and the Origins of British Control, 1895–1914 (Kuala Lumpur: Arenabuku, 2000), 32; Trocki, CarlPrince of Pirates: The Temenggongs and the Development of Johor and Singapore 1784–1885 (Singapore: National University of Singapore Press, 1979), 185.

24. Hussin, “Textual Trajectories”, 5–6.

25. Ho “Empire through Diasporic Eyes,”, 213.

26. Ibid.

27. “Dormitories for women,” New York Times, October 9, 1892.

28. A. Rahman Tang Abdullah, “Sultan Abu Bakar's Foreign Guests and Travels Abroad, 1860–1895: Fact and Fiction in Early Malay Historical Accounts,” Journal of the Malaysian Branch of the Royal Asiatic Society 84 (2010):12.

29. Blunt, Wilfrid, My Diaries: 1888–1914, Vol. 1 (New York: Alfred A. Knopf, 1921) April 15 1893.

30. This is a court case, which can be cited as Mighell v.Sultan of Johore [1894] 1 Q.B. 149.

31. Straits Times, December 12 1893, “Mighell v the Sultan of Johore.”

32. Law Quarterly Review 10 (1894): 101.

33. A 2013 search of legal citations to Mighell v Sultan of Johore shows discussion of contemporary cases involving China, the Democratic Republic of the Congo, Australia, Argentina, Malaysia, Singapore, Canada, and international tribunals.

34. United States. 1894. Hawaiian Islands: Report of the Committee on Foreign Relations, United States Senate, with accompanying testimony and executive documents transmitted to Congress from January 1, 1893, to March 10, 1894, 1472.

35. Pacific Commercial Advertiser Company, King Kalakaua's Tour Round the World: A Sketch of Incidents of Travel (Honolulu: P.C. Advertiser Co., 1881), 66.

36. Armstrong, William, Around the World with a King (Cambridge: The University Press, 1904), 144.

37. Armstrong, Around the World, 146.

38. Ho, “Empire through Diasporic Eyes,” 213.

39. Harper, “The Malay World,” 5.

40. Abu Bakar visited Japan in 1883, and his stay was relatively lengthy––6 months––in comparison with other trips. Abdullah, “Sultan Abu Bakar's Foreign Guests,” 1–22, 16.

41. Harper, “The Malay World,” 7.

42. McVeigh, Shaun, ed. Jurisprudence of Jurisdiction (New York: Routledge Cavendish Press, 2007); Costas Douzinas 2007. The Metaphysics of Jurisdiction. In: Jurisprudence of Jurisdiction, ed. Shaun McVeigh, 21–32. New York: Routledge Cavendish Press; Cormack, Bradin, A Power to do Justice: Jurisdiction, English Literature and the Rise of Common Law, 1509–1625 (Chicago: University of Chicago Press, 2008).

43. Justin Richland, 2013. Jurisdiction: Law's grounding in language Annual Review of Anthropology, 42: 209–226.

44. Findley 2013, see footnote 2.

45. “Rationalizing” market exchanges established other types of property transfers, such as those involved in marriage, inheritance, succession, and adoption, as governed by “irrational” (i.e., emotional or religious) principles. The Ottoman reformers who subjected commercial transactions to the requirements of modernity, reason, and law thus unwittingly established family life as a realm governed by tradition, sentiment, and biology.” Collier, June, “Intertwined Histories: Islamic Law and Western Imperialism,” Law & Society Review 28 (1994): 395408.

46. Hussin, Iza, “The Pursuit of the Perak Regalia: Law and the Making of the Colonial State,” Law and Social Inquiry 32 (2007): 759–88.

47. Hirobumi Ito (trans. Miyoji Ito), Commentaries on the Constitution of the Empire of Japan, 1889. Meiji Constitution, National Diet Library site: http://www.ndl.go.jp/constitution/e/etc/c02.html (accessed 10 September 2014).

48. “Old and Modern Japan, the Birth of Constitutional Government,” New York Times, February 13, 1890. The drafting committee included both Japanese and foreign members, among them the German legal scholars Rudolf von Gneist and Lorenz von Stein, both of whose legal theories tended toward conservatism rather than populism.

49. Baker, Chris and Phongpaichit, Pasuk, A History of Thailand (New York: Cambridge University Press, 2005), 76.

50. Hussin, Iza, “Misreading and Mobility in Constitutional Texts: A Nineteenth Century Case,” Indiana Journal of Global Legal Studies 21 (2014): 145158.

51. The Declaration, transcribed from the Jawi, for example, seems to have been translated word for word from the English with little concern for idiomatic expression: (Kenyataan): Dan bahawa oleh kerana kita sendiri dan mereka-mereka yang tersebut sangat-sangat berkehendak pada memulai mengadakan “undang-undang tubuh kerajaan” itu pada masa yang baik ini maka kita permulakanlah dengan panca–panca peraturan–peraturan dan syarat–syarat seperti yang ada tersebut dibawah ini iaitu ialah barang–barang yang kita pikirkan timbangkan sifatkan yang terutama dan terawali dikehendaknya supaya menjadi asas panduan tauladan bagi ketetapan dan ketentuan perintahan dan tadbir kerajaan kita. Lest we be content to conclude from this that the English is, therefore, the original text, the section entitled Royal Command, Titah, refers to the sultan's subjects using vocabulary indigenous to the Malay political world: tanah air, (tanah = land; air = water, a phrase the English translation delivers as “native soil”) and follows this with phrases underlining the legitimacy of the law that are perfectly alliterative in Malay (benar betul teguh tentu dan tetap) but read in English with far less fluency (“true, real, firm, fixed and settled”).

52. The opening invocation of the Constitution (Bismillah) was translated literally from Arabic to English, rather than idiomatically, for example Sayyidina in the English versions translated to “Our Leader,” referring to the prophet Muhammad, and sahbihi was translated in the English versions as “his Friends.” The opening invocation of the official English constitutional document is typeset in a style reminiscent of printed English-language bibles of the period, with “Allah” translated into English text as “GOD,” and terms deemed to have sacred content capitalized, such as “Our Leader Mohamed” and “His Relations and Friends.”

53. These texts differ not only in language but in content and meaning. For example, the Malay copy attributed to Abdul Rahman Andak, the state secretary and one of its most important Malay drafters, is missing two paragraphs that appear in the English versions labelled as “Declaration” and “Royal Command,” which seem to emphasize a model of enlightened and rational constitutional monarchy: “We do therefore commence the same with the points, arrangements, and terms stated hereunder, they being the things which We think, consider and regard to be principally and primarily requisite to be the basis, guide, and model for the firm establishment and proper arrangement of the Government and administration of Our State.” (Declaration) The Royal Command further elaborates upon the breadth of membership in the state of Johor: “all the subjects of Our State, of all ranks, nationalities, and religions,” before asserting that “it shall be unlawful, unmanly, rebellious and criminal for any person to refuse to acknowledge and neglect to obey it.” In the printed Jawi version in the Johor state archives, these missing paragraphs appear but differ in a new way––this text has the last line of the Royal Command carry meanings the English versions do not carry: the Malay parsing of “unlawful, unmanly, rebellious and criminal” is “haram, dayus, derhaka dan berdosa”– “wrongful, corrupt, treasonous and sinful,” crimes against God as well as the ruler. More detailed discussion of the textual content of these documents and their translations may be found in Hussin 2013 and 2014.

54. Part 1.1 states: “the Raja rules and owns this State of Johor and all territories in its dominion…with the agreement of all the members of Our Council of Ministers and Council of State.” Part 2.2 allows for penalties against those who challenge the position and power of the sultan, with penalties for treason at the sultan's discretion.

55. The literature on Malay political concepts and of the concept of Malay itself is extensive (c.f.: Milner, Anthony C., Kerajaan: Malay Political Culture on the Eve of Colonial Rule [Tucson: University of Arizona Press, 1982]; Hirschman, Charles, “The Making of Race in Colonial Malaya: Political Economy and Racial Ideology,” Sociological Forum 1 [1986]; and Kahn, Joel, Other Malays: Nationalism and Cosmopolitanism in the Modern Malay World [Singapore: NUS Press, 2006]), but the link between the language of nineteenth century Malay constitutions and the current Malaysian constitution in the matter of race and religion has remained largely unexplored.

56. Printed by Matba’ Khairiyyah in Muar in 1913: “Kitab ini mengandungi perbicaraan hukum-hukum fiqh yang diterbitkan daripada syari'at al-Islam yang telah digunapakai oleh kerajaan Johor selama-lamanya dengan bahasa Arab.” (This book contains discussions of the fiqh rules that emerged from the shari'ah of Islam that have been in use by the government of Johor always in the Arabic language.) The phrase “selama-lamanya,” in its contemporary usage connoting “forever, always,” here adds a note of antiquity to the Majalah. During the period between the adoption of the Medjelle and its translation, administrative bodies such as the Department of Religion and Education were established that bureaucratized Islam and Muslim life further, and brought it under the formal purview of the state.

57. Hussin, Iza, The Politics of Islamic Law: Local Elites, Colonial Authority and the Making of the Muslim State. (Chicago: University of Chicago Press, 2015).

58. Aydin, Cemil, The Politics of Anti-Westernism in Asia: Visions of World Order in Pan-Islamic and Pan-Asian Thought. (New York: Columbia University Press, 2006); and Critiques of the ‘West’ in Turkey, Iran and Japan: Occidentalism, the Crisis of Global Modernity and the Politics of Nationalism,” Comparative Studies of South Asia, Africa and the Middle East 26 (2006), 347–52.

59. Harper, “The Malay World,” 10.

She is grateful to the University of Chicago's Social Science Division, the Centre for History and Economics and Clare Hall at the University of Cambridge, and the Social Science Research Council, for supporting the research in this article. Versions of this article were presented at the Centre for History and Economics (April 2013), the University of Chicago (Comparative Politics Workshop November 2013; Indian Ocean Travels of Law Workshop, Committee on Southern Asian Studies April 2013), New York University (Islam, Law and Society Workshop, Hagop Kevorkian Center for Middle Eastern Studies May 2012), the Law and Society Association meetings in Honolulu (June 2012), and the Legal Histories of the British Empire Conference in Singapore (July 2012). The author thanks participants in these meetings for their input, and expresses particular thanks to John Comaroff, Eve Darian-Smith, Tim Harper, Engseng Ho, Renisa Mawani, Monika Nalepa, Kapil Raj, and Justin Richland for their guidance.

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