Edward Said, Alessandro Portelli, Law’s Representing Power, and Judicial Humility

In a piece called Death and the Sovereign (the reference is unmistakable), Pratap Bhanu Mehta has an important critique of the Rajasthan High Court’s Santhara judgment. He argues that legal categories (such as “suicide” and “attempted suicide”) are insufficient and inaccurate placeholders for understanding the range and complexity of religious practices, as well as them meaning and significance they carry for their adherents.

Mehta’s argument reminds me of something Edward Said wrote about in Culture and Imperialism: that representation is an act of power, and one way to recognize an unequal relationship is by observing how it acts to silence, exclude and marginalize the experiences of the subjects of representation. Said writes:

Power even in casual conversation to represent what is beyond metropolitan borders derives from the power of an imperial society, and that power takes the discursive form of a reshaping or reordering of ‘raw’ or primitive data into the local conventions of European narrative and formal utterance, or in the case of France, the systematics of disciplinary order. And these were under no obligation to please or persuade a ‘native’ African, Indian, or Islamic audience: indeed, they were in most influential instances premised upon the silence of the native. When it came to what lay beyond metropolitan Europe, the arts and the disciplines of representation – on the one hand, ficton, history and travel writing, philology, racial theory – depended on the powers of Europe to bring the non-European world into representations, the better to be able to see it, to master it, and, above all, to hold it.

Said’s point resonates. In the Santhara judgment, the Rajasthan High Court takes the “raw” or “primitive” data (i.e., the fact that some Jains are undergoing a fast unto death). The Court shoehorns it into the “local conventions” of legal “narrative and formal utterance” (which can equally well be classified as a disciplinary order), i.e., the prohibition against abetment to “suicide”. This, of course, is premised upon the “silence of the… [Jains]”. The questions whether they regard it as “suicide”, and whether there a divergence between how they experience Santhara, and how the law understands suicide, are not addressed.

In a similar vein, Alessandro Portelli, the oral legal historian, writes about the anatomy of an Italian terror trial in the 1970s. In defining a political movement as a criminal conspiracy, Portelli argues that the magistrates were thus involved in reconstructing the past, redefining its meaning, and attempting an overall interpretation. These are historical tasks, and it is appropriate to examine the way they were performed from the point of view of the theory and method of history, oral history specifically, given the nature of most sources used.” A trial, according to Portelli, always involves reconstructing (or constructing history), through documents and – where there are gaps in the documents – through oral testimonies. This, of course, is another form of representation, and another form of power: through its final judgment, the Court will declare one version of history to be true, which may well be contrary to the experiences of its participants (note, for instance: any finding of guilt must, by necessity, affix whole and complete responsibility upon individuals, rather than structural or social causes. Portelli extracts the evidence of a prosecution witness, before observing that “prosecution witness Romito favors political over social history: mass struggles or insurrections do not depend upon the masses or on broad social causes, but on the secret dealings of leaderswhose influence on the working class was never more than marginal anyway.”)

The judge’s task, therefore, repeatedly requires her to answer questions that are centrally anthropological (what is the character of Santhara?) or historical (what was the cause of the terror attack?), without obligating her to adhere to the rigorous standards of method and scholarship required of an anthropologist or a historian. Paradoxically, however, the judge has far more power than the anthropologist or historian. While the latter’s conclusions are provisional, tentative and always open, the judge’s findings assume the crystalline immutability of “judicial truth” one they are ensconced in a judgment. More than that, of course, they have very real consequences. As Robert Cover points out, “legal interpretation takes place in a field of pain and death.” In the Santhara case, that is literally true.

All this points to an urgent need for judicial humility. Hard questions should be approached with an awareness of the judge’s privileged subject position, the power that she wields to impose a representation of the “truth”, the further power to convert that representation into actual facts on the ground, and the consequent need to be wary of sweeping, assured positions. True “demosprudence” would require the judge to listen to the experiences of those who will soon be represented in judgments, especially when their experiences seem not to fit easily into pre-defined, a priori, universalising legal categories. It is a trait that, as Mehta points out, is unfortunately completely missing in the Rajasthan High Court’s judgment.

Judicial humility, I suspect, will be a recurring theme when the historians of the future, finally unshackled by contempt of court laws, sit down to write the history of the present Court. In particular, I think they will marvel at how easily our judges liberated themselves from the gravitational pull of doubt, which keeps most of us earthbound, and escaped into the stratosphere of diamond-bright moral certainty. Recently, in confirming a death sentence (Edit: V. Venkatesan has kindly pointed out that it was an abetment to suicide case, and not a death penalty confirmation. My thanks to Mr. Venkatesan), Justice Dipak Misra stated that judges have a duty to respond to the “collective cry of society”. We have heard such words before – in the mouths of prophets and madmen, who have considered themselves to have privileged communion with the Voice of God (vox dei or vox populi, the clarity of the moral vision never dulls). Prophets and madmen, however, have no need of explaining themselves. Judges do, because they live under the Constitution, like the rest of us, and have as much a duty of fidelity to the Constitution as the rest of us do.

What is the collective? How can you know that there is only one collective, which speaks with one voice (one “cry”)? How can you know that the collective is right? And above all else, how can you be so sure that you, among all citizens, have correctly heard and interpreted this “collective cry”? Such pretensions would provoke laughter, did they not have such real and tragic consequences.

Almost five hundred years ago, Oliver Cromwell wrote to the synod of the Church of Scotland, stating thus: “I beseech you… think it possible that you might be mistaken.” It is a plea that one wishes would be heard by the present judges of the Court.

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3 Comments

Filed under Law and Philosophy

3 responses to “Edward Said, Alessandro Portelli, Law’s Representing Power, and Judicial Humility

  1. venkatvenkatesan

    Justice Dipak Misra invoked the collective conscience theory not in a death penalty case, but in an abetment to suicide case. that makes it worse. the facts of that case show that the accused might not have intended to abet the suicide of the deceased. still, Justice Dipak Misra wanted to enhance the punishment. Fortunately, he restrained himself, because neither the state nor the victim’s family urged enhancement. One does not know how Justice Dipak Misra felt that collective conscience had a role here.

  2. Vibhor Jain

    This is a beautiful, beautiful post.

    People in the college library are staring at me as I clap my hands at the computer screen in praise.

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