In reflecting on the mission statement of Comparative Studies of South Asia, Africa and the Middle East, I found myself returning to another comparative mission statement, that of the Journal of the Society of Comparative Legislation. Founded in 1895, the society’s objective was to promote “knowledge of the course of legislation in different countries, more particularly in several parts of ‘her Majesty’s dominions’ and in the United States.” The geographic reach of the two journals overlaps; “her Majesty’s dominions” included parts of Africa, the Middle East, and South Asia. The disciplinary focus intersects less; unlike CSSAAME, JSCL confined itself to legal research. Yet what joins the two journals and separates them is something other than areas and disciplines. Joining them is the reference to the method of comparison, and separating them are the details of the comparative practice, its ends and its powers. More specifically, the main difference between the two journals concerns the fate of the world covered on their pages. The first engages in what I call comparative destruction, and the second in comparative construction. The word comparative here pertains to the comparison of different units as well as to the opposite of the positive or the absolute. As I explain below, CSSAAME’s editors may wish to commission research projects that examine these two relationships to the world.
It was Courtenay Ilbert (1841–1924) who inspired the foundation of the Society of Comparative Legislation in 1895. A distinguished lawyer who had been law member of the Viceroy of India’s Council, Ilbert would later serve as the head of the Treasury Department and clerk to the House of Commons in England. At a conference held at the Imperial Institute on 19 December 1894, he delivered a paper that would inform the resolution to establish the society. The presidency of the society, however, would go to Farrer Herschell, then lord chancellor. His life, too, like Ilbert’s, included imperial itineraries. He chaired the royal commission on Indian currency and promoted the Imperial Institute in India. Printed as the introduction of the first volume of JSCL, the “Statement of the Objects of the Society” included the resolutions passed on that December day, as well as some “further explanations of its objects” that were “both practical and scientific.” What were the practical objects? And how were they to be achieved?
To jurisprudence the Society will apply the comparative method of investigation, which has already proved fruitful. It will gather together, epitomize, and arrange materials now scattered through many periodicals, or to be found only in official documents of which few libraries contain copies, and it will otherwise endeavor to promote the study of comparative law. Chief among its aims will be the collecting of information as to the Statute law and the forms and methods of legislation in the British Empire and the United States.
Comparison consisted mainly in the practice of archiving: collecting, epitomizing, and arranging that which was otherwise scattered, or not thoroughly public (as in the “official documents of which few libraries have copies”). But to what end? Why was comparison- as- archiving necessary?
The necessity could be explained by the fact that the society belonged to an era in which the practice of comparison facilitated the rise of internationalism in Europe. Hundreds of international and comparative congresses flourished in nineteenth-century Europe. Consider, for example, that in the field of statistics several international congresses were held between 1853 and 1876 and engaged in the practice of comparative statistics. Still, the suggestion that comparison during that period was a method of internationalism neither addresses the particular promises of comparison when the height of internationalism coincided with that of imperialism nor explains how comparison operated to achieve these promises. The statement explains that the British Empire “with its great variety of legal systems” has been lacking such as a society. In India, for example, “English, Hindu and Mahommedan law co- exist and have affected each other” next to “ancient customs.” And there are colonies, dependencies, and possessions in which French, Roman-Dutch, and Spanish law subsist. The JSCL statement concludes: “It is somewhat remarkable that there should not have long ago been founded a society for the scientific study and comparison of the very diverse laws brought before the Appellate Court of the colonies and possessions of the British Empire.” Comparison and its usefulness were so obvious that the failure to institutionalize them was deemed “remarkable.” The obvious promise of comparison-as-archiving was the production of unity in the British Empire and in the English-speaking world.
English-speaking races show a tendency toward unity in law. Our colonies borrow the principle and form of many Statutes from England. The United Kingdom also borrows from the colonies. But the open and avowed adoption of Statutes gives no complete idea of the extent of assimilation. Underneath differences of phraseology will be found a tendency to approximation, even in colonies and possessions where the English common law never prevailed. The Roman- Dutch law, for example in both South Africa and Ceylon, has been modified by the introduction of elements borrowed from English Statute and common law.
Two “tendencies” drive the unity in law: that of the “English-speaking races” and that in the laws of the British Empire. The force of these tendencies is nevertheless incomplete: there is still “no complete idea of the extent of assimilation” of all laws. The promise of the journal’s comparative method is to fill this gap. By collecting, epitomizing, and arranging, comparison demonstrates and materializes the tendency (of the English and of the law) to unity.
As to local differences, they are recognized but often declared “unimportant and accidental.” The evidence is that English mercantile law applies to almost all English-speaking countries; the Indian Contract Act follows English decisions and statutes; other colonies and several American states have passed similar statutes; and the Cape Colony incorporated a large part of the commercial law of England, despite the prevailing Roman- Dutch law. Where differences do exist, such as in bankruptcy law, which the comparative method cannot but reveal, the statement calls for reforms “throughout the British Empire according to the same principles.” By revealing the unity of the world of the law, or its English-speaking parts, comparison promises the repression of differences and the insistence on the universal. A strategy of universalization, comparison is also a reformist project in the face of differences that persist. It produces worlds it fails to discover.
The universalized object is English law. While it seemed once that “Roman law might become the law of the world,” in recent times, we are told, the tendency is “to approximate English law,” especially in commercial legislation. English law “has spread almost as widely as the English language or literature.” The ultimate hope is to compile a “general index of the legislation of the British Empire.” To achieve this goal, the society intends to “establish branches in the different colonies and possessions”; this undertaking cannot succeed without the cooperation of the different parts of the empire. The comparative method produces the world by institutionalizing it. This is the world of the “English-speaking races,” the world of the British Empire. It emerges from the remains of the ruins of another world, remains reformed and archived through the comparative method. Comparison, in other words, promises to accomplish what imperialism fails to secure: the destruction of a world that had several legal lives and the production of a singular empire united by its law.
It seems to me that this “other world,” the world that survived both imperial expansion and comparative destruction, is the site of CSSAAME ’s interventions. The editors, however, seem to target in their statement other comparative methods. They articulate the research agenda of CSSAAME as an alternative to the more recent comparative approach that has dominated knowledge production in area studies in US universities. This approach classified the regions covered in the journal as separate, bounded, and discrete. Against this approach, the editors suggest tracing connections and linkages among these regions. The comparative method in their statement is associative and connective. It is telling that they speak of comparative history as connective: “New linkages of regions hitherto kept separate, and new appreciation of the possibilities of theoretical innovation in comparative or connective history, present a research agenda of vast scope and promise.”
The comparative-connective method challenges not only the US area studies model but also the comparison-as-archiving characteristic of the age of empire. In associating and connecting areas, this method departs from the practice of epitomizing, classifying, and archiving. Further, the world of linkages is precisely what imperial comparison destroyed. Comparative destruction ignored local legal traditions and sites of difference but also erased connections between the different parts of “her Majesty’s dominion” in favor of linkages and associations with English law. Once such connections were obliterated, it became possible to reestablish the British Empire as the singular source of all associations.
The gap between the comparative method of the Society of Comparative Legislation and of the US area studies model is not vast. Yes, the first erases differences in favor of English unity and assimilation, and the second approaches Africa, South Asia, and the Middle East as discrete and bounded. But engendering assimilation and unity first entailed depicting the different parts of “her Majesty’s dominions” as bounded and discrete. Articles in the first volume of JSCL discussed “British India,” “Mediterranean colonies,” “Eastern colonies,” “Australasia,” “South Africa,” “West Africa,” the “South Atlantic,” “North American Colonies,” and the “West Indies.” Further, it seems that the function of English law in JSCL, as a unifying and productive force of the British Empire, parallels the powers of prevailing social science and humanities theories, which in the US model have been the primary tools in the production of explanatory knowledge about these areas.
While the gap between the two approaches might not be vast, they are nonetheless different: they are destructive and productive in particular ways that invite further research. And there are additional comparative methods, other than the methods of US area studies and imperialism, which have affected our understanding of these regions: the relationship among them, the world they have come to be associated with, or the other worlds they reveal. CSSAAME’s editors might solicit projects devoted to the genealogy of the practice of comparison as it has shaped different visions of, and about, the regions included in the journal’s scope. The comparative practice neither begins in the nineteenth century nor ends with the rearticulation of comparison as connectedness. Its itineraries are not solely Western; its powers and effects are far from uniform. This is precisely why comparison is a fruitful subject of inquiry. That said, it seems to me that CSSAAME’s main mission is to highlight or construct the world that persisted despite comparative destruction. This is a world of many figures, movements, and characters. It is unnecessary to provide a comprehensive list of themes, but perhaps the “connective history” of the hunger striker illuminates what I have in mind. Today’s hunger strikers are perhaps epitomized by the Palestinian hunger striker confronting Israeli occupation. And yet the hunger striker is also significantly South Asian, African, and Middle Eastern.
“Statement of the Objects of the Society.” Journal of the Society of Comparative Legislation 1 (1896 – 97): vi – x.
© 2013 by Duke University Press