Race, Law and Resistance

Vol. 15 No.12 (December 2005), pp.1044-1048

RACE, LAW AND RESISTANCE, Patricia Tuitt. London, Glasshouse Press, 2004. 138pp. Paperback. £25.00/$50.00. ISBN : 1904385060.

Reviewed by Upendra Baxi, University of Warwick. Email: U.Baxi [at] warwick.ac.uk.

This slender monograph contains many a galaxy of dazzling insights concerning violence in the making /unmaking of modern and postcolonial law. It brings a breath of fresh air to the now somewhat conventional bodies of critical legal and race studies and some “post-feminist” scholarship, by re-situating them in slave and the postcolonial contexts. Indeed, Patricia Tuitt accomplishes much more. She resurrects the thoughts of Frantz Fanon amidst more current Benjamin-Derrida understandings of the foundational and reiterative violence of modern law. She further provides fresh and rather against-the-grain approaches to contemporary “postcolonial” law and literature. This work offers a new grasp of the “pedagogy of the oppressed” in an otherwise triumphant era of hyper-globalization, despite the presence of two “terror” wars—the “wars” of and on “terror” (Baxi 2005).

Given the range of its narrative purpose, perhaps it is not all unfair to say at the outset that the author ought to have resisted the publisher’s space constraints and the relatively heavy price. The latter forbids access by Global South readership outside some insurgency blessed acts of undetected copyright piracy! In addition, the bouquet of insights need not have been so tightly laced. I very much hope that the richly merited second enlarged edition allows a lengthier articulation of themes and reader-friendly textual elaboration.

The six chapters, at first sight, form an assemblage of diverse essays. Of course, each may be read as offering an independent contribution to our understanding of diverse, though related, jurisprudential issues. Chapter 3 presents a provocative and timely account of the “institutionalised racism” of the latter day habitus of the not-so “common law.” Chapter 4 speaks to us of a similar occurrence of racism that constitutes the “discovery” of a “New Europe” via its agonized, but as yet not fully reflexive, narratives of immigration, refugee, and asylum law, policy, and administration. Substantial parts of Chapters 5 and 6 offer a range of interesting problems in the traditions of law and literature studies. And historians of ideas may find the exploration of “Fanon and Causation” in Chapter 2 of compelling interest. However, what holds the book together is its unity–in-diversity, a form that also at the same moment fully confronts the now pervasive globalizing influences that challenge some logic, paralogic, and languages of unity-in-perversity. All this occurs in a series of sustained meditations concerning the “violence of law” and the “law of violence” (my terms for grasping Guha’s (1983) insightful analysis. In this context, Tuitt’s omission of Guha’s pioneering historiography is puzzling.

No writing concerning the law’s violence should ignore the master frames of discourse provided by Walter Benjamin, Jacques Derrida, and Michel [*1045] Foucault. Tuitt renders the due postmodern obedience to them, even when focused mainly on Fanon. She could also have considered the work of Giorgio Agamben. However, Tuitt invites us to go beyond the new markers of “progressive Eurocentrism,” as Zizek (1999, at 215-216), with some irony, terms it; however, this presents rather formidable conceptual and historical challenges. Tuitt certainly aspires to redress all these multiple deficiencies in the literature, and in this, she contributes to the process of reversing the vestiges of epistemic racism (My recourse to this phrase is more in sorrow than anger).

Tuitt is not the first voice articulating this concern. A number of distinguished forerunners and contemporaries in the critical legal studies, feminist, and race theory genre have already variously addressed violence of colonial regimes. Even so, her re-consideration of the life and legacy of Frantz Fanon is extraordinarily thorough (also see Macey 2000). This gesture, in comparison to other work of this genre, speaks to us differently concerning the violent roots of modern law originating from colonization – the Siamese twin of the European Enlightenment.

Despite the fact that Tuitt refers to the dichotomies and contradictions within Benjamin-Derrida notions of foundational (law creating) and recurrent (law preserving) violence, she observes that this does not quite attend to the “racial” undertones of colonization. What is needed is a more full-fledged “theory” of the colonial state, and which Tuitt proceeds to construct by recourse to Fanon”s crucial lived insights.

Tuitt offers a typology of state formations in terms of “casual” and “(a)causal.” The latter is inherently racist in the sense that it displaces “the most fundamental of securities, the persistent recognition of human state to all, irrespective of race” (p.32.) This state form signifies sustained systemic violence by the dominant, going beyond the immediate realities of the racially dominated (p.33). It persists as well as a diffuse contemporary form in which “the project of the history of racial harm, domination, and violence” stands subjected to other histories of past wrongs, in all their unending, even infinite, assertions of “innocent causes” and to “the unreliability of memory and testimony” (p.33).

The space of this brief review allows only four dense observations. First, Tuitt seems reluctant to bear the burden of developing a new theory of state formation, because she frequently refers to the “state” or the “situation.” The reference to “situation” allows Tuitt to address the diffuse sites of racism in late modern or the postmodern law. But there is no way, as I read Fanon, independently and in conjunction with Tuitt, that authorizes this conflation. Second, despite her dexterity, the passage between modern and postmodern racism (to evoke Zizek again) is left rather under-determined. Third, if the latter so perniciously persists, and so it does, much further rigorous work is needed than simple recourse to Derrida’s dense evocation of “justice” that “many not wait” (p.101, fn.44). Indeed, others, such as Janna Thompson (2004) in her work concerning righting ancient wrongs have noted the serious perplexities of global reparative justice. Fourth, although the [*1046] contrast between the two forms of state remains promising, it is often understood as a problematic distinction between the “normal” and the “pathological.” Put another way, perhaps this is where all the violence/terror of the “modern” law dwells; even so the markers of the distance between the “causal” and the “(a)causal” state, invite further consideration.

Tuitt’s central theme invites our re-engagement with the notion of “the conscious human agent in conflict, in extremis” as one which is produced by the voracious cannibalistic appetites of the modern/colonial law, a notion that “the law produces that upon which it feeds” (p.11). Unfortunately, I do not recall any existing work that deals with cannibalism of the common law. Even so, this untheorized experience lives rather infinitely in the “postcolonial” lives, memory, and history, accentuated by Tuitt’s rich and enriching narrative frame. Regardless, Tuitt finds that the lines of distinction are blurring between such concepts as “sanctioned” and “unsanctioned violence” within the reality and images of modern law. In her account of the distinctively colonial, the “unsanctioned” represent the bleeding heart of “sanctioned” forms of violence of the modern law. The rather fecund “sanctioned/unsanctioned” distinction is perhaps best revisited in CAPITAL (Vol.1), where Marx speaks of some co-existing forms of the rule of law and the reign of terror (e.g., Baxi 1993, at 85-94).

The book ends with a promise of “the law’s pause, and . . . hesitation” as marking some redemptive space “for justice” precisely where “the law sees the terror of its own force” (p.114, emphasis added). The jury, as it were, is still out on such hermeneutic estates. On the registers of the many global post-colonial systems, the mirrors of law stand already shattered by the agents and managers of the war on, and of, terror. This observation requires some heavy labours of explanation, a treasure forbidden by space constraints. However, at least this much needs to be foregrounded: surely, the estates of the détentes at Guantanamo Bay, and other equally hideous North and global south outsourced incarcerating spaces “reveal” the agonizing truth concerning postmodern “law”—it has yet to attain even the most sparsely guarded engagement with “the terror of its own force.”

To say this is by no means to contest the observations that Tuitt offers concerning the eventual demise of classical forms of decolonization. Indeed, she presents a series of interesting explanations for the “compossiblity” (to evoke both the Arab Aristotelians, as well as Liebniz) of both the “law of violence” and the “violence of the law.” For Tuitt, the “counter-violence” (a most puzzling, even wounding expression) of colonial subjects remains open to a “full gaze of history” (p.96). Whose gaze is this? This is exemplified by the political problems associated with understanding résistance and insurgency. How may reading divergent stories found in postcolonial law and literature enable us to resituate the law of violence and violence of law discourse? Space forbids further discussion of Tuitt’s ways of understanding contrasts between the postcolonial production of valiant affirmation in MABO with either the WIDE SARGASSO SEA (Chapter 5) or NATIVE SON (Chapter 6.) [*1047]

Tuitt offers a number of interesting insights on counter-violence and the shedding of Empire (pp.95-97). However, her understanding of résistance as counter-violence necessarily invites a response from the cognoscenti. I have in view here especially the rather complex contribution somewhat modestly titled POSTCOLONIALISM: AN INTRODUCTION (Young 2001).

How may we read this work? Does it speak to us in postcolonial languages that summon future “resistance” against the forms of “potential suffusing violence” of the modern law? I write these heavy phrases in a rather poignant moment of mourning in remembrance of the 21st anniversary of the Bhopal catastrophe (the ‘largest peace time industrial disaster’ in recent history as Judge Keenan named this, even as he denied standing to the victims.) Indeed, prescriptive languages, even in a semi-Kantian cosmopolitan justice vein (if such things may ever be!) sound cruelly hollow.

At any rate, Patricia Tuitt attempts to offer some consolation in philosophy. Within the “law” we find possibilities to help erase the bright lines between its violence and terror—i.e., inherent negotiability, infinite openness to future that may allow the law somehow to recover “its natural poise as ‘violent but more than violent’” (p.101).

How may we recover some of the non-violent constitutive moments from the modern law’s otherwise violent origins? Should the critique of the modern, postcolonial lawlessness exhaust our ability to re-imagine law? How may we “get there” and even beyond?

My suggestion is that we may find it useful to reengage with Gramsci’s rather unfathomed and unfashionable remark concerning Gandhi’s imaginations of an ultimately non-violent “passive revolution.” If Fanon furnishes the groundwork for “terminal legality” (to evoke the phrase-regime of Peter Fitzpatrick), Gandhi also vitally prefigures that “terminal.” In future research of these questions, Tuitt might consider Gandhi in addition to Fanon.

In conclusion, Tuitt has much of interest to say about colonial and post-colonial law, and colleagues interested in legal development, law and society, and the philosophy of law will find this book thought-provoking.

REFERENCES:

Baxi, Upendra. 2005. ““The War on Terror” and the “War of Terror”: Nomadic Multitudes, Aggressive Incumbents, and the New International Law.”” 43 OSGOODE HALL LAW JOURNAL 7-42.

Baxi, Upendra. 1993. MARX, LAW, AND JUSTICE. Bombay: N.M. Tripathi & Co.

Guha, Ranajit. 1983. THE ELEMENTARY ASPECTS OF PESANT INSUGENCY. New Delhi: Oxford University Press.

Macey, David. 2000. FRANTZ FANON: A LIFE. London: Granta.

Thomson, Janna. 2004. TAKING RESPOSIBILTY FOR THE PAST: REPARATION AND HISTORIC JUSTICE. Cambridge: Polity. [*1048]

Young, Robert J.C. 2001. POSTCOLONIALISM: AN INTRODUCTION. Oxford: Blackwell.

Zizek, Slavoj. 1999. THE TICKLISH SUBJECT: THE ABSENT CENTRE OF POLITICAL ONTOLOGY. London, Verso.

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