Contrapuntal Reading: Outlines of a Theory

In his classic book, Culture and Imperialism, Edward Said proposed a new way of reading literary texts: “contrapuntally“. Said argued that some of the most important works of the Western literary canon rested upon a submerged and unacknowledged foundation of colonialism. For example, in Jane Austen’s Mansfield Park, the protagonist’s benefactor owns a plantation in Antigua (and profits from the imperial slave trade), a fact that is mentioned in passing, but for most of the novel, is “off-stage”, as it were. The first part of Said’s contrapuntal reading (the term “contrapuntal” is derived from music, and refers to melodic lines that are in “counterpoint” with each other, but maintain their independence) required readers to “connect the structures of a narrative to the ideas, concepts, experiences from which it draws support.” In Mansfield Park, for instance, it would require an acknowledgment of the fact that Fanny Price’s wealth, and the possibilities of action open to her, depended upon the political, social, and economic relationship between the British Empire and its colonies.

The second – and critically important – part of the contrapuntal reading involved “not only the construction of the colonial situation as envisaged by the writers, but the resistance to it as well.” (Culture and Imperialism, p. 79) Said wrote:

“We must therefore read the great canonical texts with an effort to draw out, extend, give emphasis and voice to what is silent or marginally present or ideologically represented in such works. The contrapuntal reading must take account of both processes – that of imperialism and that of resistance to it, which can be done by extending our reading of the texts to include what was once forcibly excluded.” (Culture and Imperalism, pp. 78 – 9)

A contrapuntal reading of Camus’ famous L’Etranger, for example, would identify and resurrect the whole previous history of France’s colonialism and its destruction of the Algerian state, and the later emergence of an independent Algeria (and Kamel Daoud’s The Meursault Investigation is a recent, controversial attempt to do just that). A contrapuntal reading of Rudyard Kipling’s Kim would entail examining the fact that:

“Kipling’s India… has a quality of permanence and inevitability that belongs not just to that wonderful novel but to British India, its history, administrators, and apologists and, no less important, to the India fought for by Indian nationalists as their country to be won back. By giving an account of this series of pressures and counter-pressures in Kipling’s India, we understand the process of imperialism itself as the great work engages them, and of later anti-imperialist resistance. In reading a text, one must open it out both to what went into it and to what its author excluded.” (Culture and Imperialism, p. 79)

Said’s contrapuntal reading bore a strong affinity the work of the anthropologist James Scott. In a book called Domination and the Arts of Resistance, published three years before Culture and Imperialism, Scott argued that the historical relationship between dominant and marginalised groups is marked by a “public transcript” of official discourse, visible to history and to the public consciousness. However, parallel to the public transcript, there also exists a “hidden transcript”, which operates as a mode of resistance, and a form of subversion, through “speeches, gestures, and practices that confirm, contradict, or inflect what appears in the public transcript.”

Scott and Said’s important insight, therefore, was that any literary artefact – which takes the form of a narrative – is fundamentally constituted by both inclusion and exclusion. The former makes the visible artefact, and the latter is hidden, “off-stage”, or submerged, but equally important to the existence of the artefact. The task of contrapuntal reading is to both identify and resurrect what is invisible and excluded.

Law, Text, Narrative, and History

In his famous 1982 article, Nomos and Narrative, Robert Cover pointed out that “no set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning… a legal tradition is hence part and parcel of a complex normative world.” Narratives, however, are never singular. While one set of institutions – i.e., the Courts – have been granted the power to select one narrative as authoritative, this does not prevent individuals and communities from locating legal and constitutional texts in alternative narratives. Through the course of his article, Cover explored the proliferation of legal meanings and narratives through a range of of examples, taken from American history. For instance, in the mid-19th century, the “radical constitutionalists” challenged the American Supreme Court’s interpretation of the relationship between slavery and the Constitution. Instead, they:

“… worked out a constitutional attack upon slavery from the general structure of the Constitution; they evolved a literalist attack from the language of the due process clause and from the jury and grand jury provisions of the fifth and sixth amendments; they studied interpretive methodologies and selfconsciously employed the one most favorable to their ends; they developed arguments for extending the range of constitutional sources to include at least the Declaration of Independence.”

Cover’s argument about the inevitable pluralism of “meanings” that circulate around legal and constitutional texts, as well as the pluralism of the “narratives” within which those texts come to be located, along with his analysis of the legal and moral tensions that arise when the selection of meaning and narrative by the Courts is challenged by dissident individuals and communities (who build their alternative systems of meaning instead), is an important and path-breaking one (a good recent example of this in the Indian constitutional context is the disagreement between the majority and the minority in the Supreme Court’s judgment on appeals to religion during election campaigning). Here, however, I want to take Cover’s argument in a slightly different direction, focusing not upon the plurality of legal meanings and narratives, but upon non-legal ones, which play an equally important role in constituting any judicial decision. The distinction between legal and non-legal is a slippery one, but for now, let us bracket the problems that that entails.

Let us start with Cover’s invocation of the American author and historian, Mark DeWolfe Howe, which he flags, and returns to briefly towards the end of his essay, but does not develop in any great detail:

“Among the stupendous powers of the Supreme Court of the United States, there are two which in logic may be independent and yet in fact are related. The one is the power, through an articulate search for principle, to interpret history. The other is the power, through the disposition of cases, to make it…  I must remind you, however, that a great many Americans tend to think that because a majority of the justices have the power to bind us by their law they are also empowered to bind us by their history. Happily that is not the case. Each of us is entirely free to find his history in other places than the pages of the United States Reports.”

In other words, legal claims before a Court (and this is especially true of constitutional claims) often rely upon non-legal arguments for support, including arguments from history, from economics, from sociology and anthropology, from science. These claims are challenged, and the Court’s task then becomes to adjudicate between them, and to provide official, authoritative sanction (enforceable by violence and coercion, if disobeyed) to one set of claims at the expense of the other. This – presumably – is what Howe meant when he said that the Supreme Court has the power not only to interpret history, but to make it.

A fascinating example of how a Court “makes” history is found in an essay by the Italian oral historian, Alessandro Portelli, called ‘The Oral Shape of the Law’ (part of a book of essays called The Death of Luigi Trastulli). In this essay, Portelli described the “April 7 Case”, an Italian terror trial arising out of (but not limited to) the kidnapping and murder of the former Prime Minister, Aldo Moro, an act that was carried out by the Far-Left “Red Brigades”. However, the trial expanded to covering a gamut of charges of sabotage, conspiracy and insurrection against political and intellectual leaders of the Far-Left, which left – in the words of Guiliano Scarpari – “the judiciary [with the task of] the reconstruction of fragments of this history (of the New Left), especially of those which eventuated in terrorism.” (‘The Oral Shape of the Law’, p. 246) Consequently, Portelli observed that:

“The magistrates were… 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.” [‘The Oral Shape of the Law, p. 246].

The framing, Portelli went on to point out, was done in terms of a “criminal conspiracy”, through an informal network of relationships within the broader terrorist “Organisation”. This meant – Portelli noted – that “terrorism… is then described… as a conspiracy, rather than a social movement… mass struggles or insurrections do not depend upon the masses or on broad social causes, but on the secret dealings of leaders whose influence on the working class was never more than marginal anyway.” [‘The Oral Shape of the Law’, p. 249] In other words, the Court took an event (“political terrorism”), and attributed its occurrence to one set of historical causes (individual conspiratorial acts) while rejecting another (social causes). The Court interpreted history. But it also made history because, as Portelli pointed out at the end of his essay:

“Historical truth is hardly ever more than a descriptive hypothesis; legal truth, on the other hand, has a performative nature, measured in years in jail. Also, legal truth has a tendency to become historical truth, in the sense that future historians will rely on the court sentence and trial records for their reconstruction of the political history of the 1970s.” [‘The Oral Shape of the Law’, p. 269]

To these two ways in which a Court “makes” history (by creating a historical record of its own, and by enforcing its interpretation in real life through the organised coercive apparatus of the State), we can add a third: the Court’s reading of history carries a particular moral, or normative force, by virtue of its position in society as a neutral, unbiased, and objective arbiter. A Court is a more powerful historian than professional historians, a more powerful economist than professional economists, and a more powerful anthropologist than professional anthropologists, because its “findings” on historical, economic and anthropological issues have moral, performative, and actual, tangible force.

Contrapuntal Readings

We are now in a position to combine Scott and Said’s insights about the existence of submerged narratives with Cover and Portelli’s analyses about the role of Courts in selecting and imposing narratives. This gives us the outline of a theory of contrapuntal reading of judicial texts:

A contrapuntal reading of a judicial decision excavates the competing, non-legal narratives that were offered to the Court for it to ground its legal decision (whether they are visible or invisible in the text of the actual judgment), identifies the Court’s chosen narrative, and finally, resurrects the rejected narratives on their own terms.”

Let us study two examples of the contrapuntal reading, in practice.

Example 1: The Interpretation of the 1856 Hindu Widow Remarriage Act

In 1856, in response to a movement for social reform initiated by the likes of Ishwar Chandra Vidyasagar, the colonial British government passed the Hindu Widows’ Remarriage Act. The Act was ostensibly for the benefit of Hindu widows who – it was argued – were prohibited from remarrying after the death of their husbands. Section 2 of the Act stated:

“All rights and interests which any widow may have in her deceased husband’s property by way of maintenance, or by inheritance to her husband or to his lineal successors, or by virtue of any will or testamentary disposition conferring upon her, without express permission to remarry, only a limited interest in such property, with no power of alienating the same, shall upon her re-marriage cease and determine as if she had then died; and the next heirs of her deceased husband or other persons entitled to the property on her death, shall thereupon succeed to the same.”

Or, in other words, a widow, on remarriage, would forfeit the property that she had inherited from her dead husband.

As Lucy Carroll points out, the interpretation of this Act raised an immediate problem, because the bar on widow remarriage was, predominantly, an upper-caste prohibition. Among the lower castes, widow remarriage was permitted, without accompanying forfeiture of property. What, then, was the fate of lower-caste Hindu widows who remarried after the 1856 Act had been passed? Would they forfeit their property in accordance with the Act, or keep it in accordance with their custom?

The question came before the Bombay High Court in 1898 (Vithu vs Govinda), and the Court decided against the widow, holding that Section 2 “only declared what was a universal practice.” However, this finding was predicated on the assumption that it was, actually, the universal practice of Hindus to compel forfeiture of property in case of remarriage. Consequently, the Court either denied the existence of those caste customs that did allow the widow to keep her property on remarriage, or denied them any normative validity in its assessment of what constituted “Hindu law”.

A contrapuntal reading of Vithu vs Govinda – which Carroll undertakes in her essay – would begin by identifying the choice before the Court: the existence of a unified “Hindu” law, or the existence of diverse caste customs; it would then show how the Court reasoned its way to selecting the former (i.e., reliance upon geographically limited legal compendia, and the metaphysical belief that in Hindu law, the wife and husband were part of the same body); and lastly, it would resurrect the rejected narrative – the caste customs that allowed remarriage sans forfeiture of property – and place it, on its own terms, alongside the Court’s narrative of unification. Interestingly, a proto-reading of this sort was actually conducted by the Allahabad High Court in 1932, in Bhola Umar vs Kausillawhere the Court not only recognised the existence of competing customs and granted them normative validity, but also dismissed the same-body image as a “picturesque metaphor.”

Example 2: Education, Moral Capacity, and Rajbala vs State of Haryana

Contrapuntal readings are obvious, and relatively easy, when we’re dealing with colonial judgments, and especially those that deal with personal laws. It is even more important, however, to undertake contrapuntal readings of the post-Independence Supreme Court, because of the near-absolute presumption of legitimacy that its judgments enjoy, and because of its exalted status under the Constitution. In this context, consider the Court’s 2015 judgment in Rajbala vs State of Haryana, which upheld educational disqualifications for contesting local government elections. The Court’s response to the constitutional challenge to the Haryana Act, which was based on equal treatment and Article 14 of the Constitution, was to say that “it is only education which gives a human being the power to discriminate between  right and wrong, good and bad.” 

A constitutional critique of the judgment would point out the evidence-free nature of this claim, its departure from accepted principles of rational-review scrutiny under Article 14, and its refusal to consider disparate impact. A contrapuntal reading would go one step further. It would locate within the Court’s statement not simply an endorsement of “education“, but an endorsement of the centralised system of formal education controlled or approved by the State. It would argue that in elevating this system of formal education to a level where it served as a pre-requisite for the very existence of moral capacity among citizens, the Court effectively delegitimised – without argument or reason – alternative, non-formal traditions of education, and the role played by them in constituting the interior moral landscape of individuals. It would then resurrect these alternative traditions through testimonies and evidence from those who had not been part of the State’s centralised structure of education, but had nonetheless been part of its local governance structure (and, at that time, numerous such testimonies were taken).

Qualifications

It is important not to overstate the case, and to introduce some qualifications. To start with, it is a banal fact that every judicial decision, that is the outcome of an adverserial process, involves the selection and rejection of competing sets of facts and narratives. A property dispute requires the Court to accept one version of events and reject another, as does a murder trial. A contrapuntal reading, therefore, is not simply a resurrection of the story told by the defeated party in a litigation. As the Rajbala example shows, it is meant to apply to cases where the selection between a plurality of competing narratives bears a direct relationship with the nature, scope, and limits of the basic rights of citizens.

Secondly, there are areas of (constitutional) law where contrapuntal readings – although not by that name – are prevalent: most famously, within the realm of the Court’s religious freedom jurisprudence. In cases such as Sastri Yagnapurushadji and Acharya Avadhuta, where the Court is literally substituting its view of religious content for those of the adherents of that religion, a contrapuntal reading is the first form of interpretation that comes to mind (most recently, the Rajasthan High Court’s santhara judgment gave rise to numerous contrapuntally-oriented critiques about the true nature of the santhara practice). However, as cases such as Rajbala demonstrate, contrapuntal readings are equally important in other domains, especially where the Court’s selection and rejection of narratives is much less obvious.

And lastly, the legal/non-legal distinction drawn above is, I admit, a slippery one, given how intertwined legal and non-legal facts are in any complex judicial decision. For instance, in his book, The Horizontal Effects Revolution, Johan van der Walt criticises the German Constitutional Court’s “radiating effects” doctrine, calling it – in effect – a totalitarian imposition of a single set of values upon society. To what extent would a contrapuntal reading apply to a case where the selection is of a set of values in this manner? I am not sure; however, I do think that despite these troublesome issues at the border, the contrapuntal reading can serve as a useful guide to interpreting and understanding judicial decisions in a rigorous and critical manner.

 

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8 Comments

Filed under Constitutional interpretation, Contrapuntal Reading

8 responses to “Contrapuntal Reading: Outlines of a Theory

  1. Gautam – I enjoyed this post and do think that there is a place for a contrapunctual theory of legal analysis and of judicial decisions.

    But the examples that you use from Indian law to apply and explicate this theory might not be the best choices. Also why do you make a distinction between legal and non-legal narratives in judicial decisions. This is not made clear and I am not sure I understand its relevance.

    I just have the following comments in response to this interesting idea and the interesting material that you cite.

    The Law is always contested. The Law is according to some narratives a tool of oppression and control.

    Official narratives in official records like court decisions are used to record a version of truth which might be a contested truth. A version of history is sought to be created.

    Judges adjudicate upon facts. They often assess competing claims of fact and arrive at the “true” facts.

    But judgments can lie in many different ways.

    Bhagat Singh according to the judicial decision condemning him to death was a criminal, a traitor who did not deserve to live. But Indian history judges him otherwise.

    A man who steals food might according to a judge be a thief but a different narrative would view him as a starving man doing what he has to survive.

    Judges and courts are fallible. Judgments are fallible. Judgments can record the incorrect facts for a number of reasons. Judgments can deliberately misrepresent facts. Judges can make mistakes. The adjudication process is fallible.

    Or Judges might deem some facts irrelevant to the judicial function in a given case. But an observer from a different vantage point looking at the same situation or using a broader or different normative frame might consider those facts relevant.

    The cases you mention (the Hindu widow remarriage act and the Rajbala case) are really cases where the judges failed even in the strictly legal argumentation sense to correctly appreciate the relevant facts and the inferences to be drawn from those facts. The exact criticism that you make of those decisions can therefore also be undertaken using conventional formal legal theory.

    Contrapuntual theory would be more relevant to those judicial decisions where a disputed narrative whether legal or factual is to be challenged on broader grounds than strict formal legal correctness.

    Marital rape is not rape. Consenting homosexual intercourse is a crime. Contrapunctual theory could apply to these laws for instance and argue that the law is wrong.

    Also just thinking, how would apply the ideas of social constructivism to the ideas in your post.

    • OK correction. I miswrote contrapunctual when it should have read contrapuntal.

      • So contrapuntal means point and counter-point.
        But Edward Said uses it in a very particular way to read hidden and competing realities and narratives into literary texts.

        There is a quotation that I like (but keep losing) that says that the greatest violence is committed on the official records of history books, court documents, public records and in the recording of news. The dominant narrative is used to create a version of official truth at the cost of great violence to the truth.

        What I understand from the references to James Scott, Robert Cover, Mark DeWolfe Howe and Portelli in the post is that all of them are concerned with the spaces that exist to challenge official and dominant narratives. As Howe states “I must remind you, however, that a great many Americans tend to think that because a majority of the justices have the power to bind us by their law they are also empowered to bind us by their history. Happily that is not the case. Each of us is entirely free to find his history in other places than the pages of the United States Reports.”

        History is much broader than court decisions.

        The world of the internet has created a digital repository of information and facts that is unlimited by source or size or time. Competing non-official narratives have more space to exist today than they did before the internet existed.

        The spaces to challenge narratives in court decisions (like Portelli does) depend to an extent also on the transparency of court proceedings. The Indian Judiciary is increasingly moving toward greater opacity, toward secrecy and toward discouraging even press coverage of court hearings. Pleadings are difficult to obtain. Oral arguments are not recorded. Sealed cover filings are now common-place. Filings are often not shared with all parties. Important trials get conducted in secrecy. And then an official narrative is issued in a court decision that may or may not record proceedings or facts or arguments correctly. The Court also uses its contempt of court power to control narratives about the Indian judiciary.

        Practicing lawyers in India know all this. They know the limitations of published judicial decisions (narratives) in India.

        Therefore I would disagree with Gautam Bhatia when he posits that “A Court is a more powerful historian than professional historians, a more powerful economist than professional economists, and a more powerful anthropologist than professional anthropologists, because its “findings” on historical, economic and anthropological issues have moral, performative, and actual, tangible force.”

        There are alternative spaces for non-legal narratives by historians, economists, anthropologists, social scientists, etc., that enjoy greater normative acceptance in larger communities than court decisions. Anuj Bhuwania’s bopk on PIL is exactly one such competing narrative.

        I agree that contrapuntal readings of court decisions must uncover the hidden narratives. And the most contested judicial narratives would be those that impose values incompatible with competing narratives, especially in the context of colonialism, slavery, legally sanctioned or legally condoned oppression or violation of rights.

        Besides marital rape and homosexuality law, other interesting subjects for contrapuntal readings could be the law of secession, or patriarchal concepts applied to women by the law. A contrapuntal retelling of the Bhopal gas litigation, the forest cases, the mining cases would all be interesting.

        For many decades we had very limited published scholarship in India on the higher judiciary. Most of it was either text-books or laudatory and uncritical pieces by insiders retelling the official story of our Courts.

        But young scholars are increasingly publishing critical scholarship on the Indian judiciary and there is so much that could be retold contrapuntally.

  2. The word or phrase you were looking for Seema Sapra,but were unable to recall is probably ” epistemic violence” of official narratives and Institutions,including the institutions of family and schools.Also, a similar but more engaging and incisive discussion of this phenomenon is found in Ranajit Guha’s classic ” The Prose of Counter Insurgency”. When you are thinking of reading texts ‘contrapuntally’ in the Indian colonial context, one can’t overemphasize the significance of Guha’s method.

  3. Thank you both Mukesh Srivastava and Gautam Bhatia for the references. I downloaded both the Guha and the Robert Cover (Violence and the Word) articles and will read them.
    Yes, the quote I wanted to use is partly about the epistemic violence of law. (I knew this term epistemic violence but had forgotten it, so thanks for mentioning this as well.) But the quotation was also about the violence committed at the sites of history recording and news reporting – the other sites for the official creation of the truth.
    It was a nice sentence by an obscure journalist-author, which I just cannot get out of my head but also cannot find. I copied it once and saved it somewhere on my laptop but can’t find it. I spent an hour yesterday looking for that quotation! Hopefully it will turn up again someday.

    • Found it.
      “But even in the shadows of physical violence, the real battlefield is the realm of ideas. The real violence is committed in the writing of history, the records of the legal system, the reporting of news, through the manipulation of social contracts, and the control of information.” – Bryant McGill

  4. “There is no crueler tyranny than that which is perpetuated under the shield of law and in the name of justice.” – Charles de Montesquieu

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