Law: separate from or intertwined with politics?
The tendency to perceive law and politics as a single, unified system is an old one, and according to Niklas Luhmann, largely the result of the concept of the state, which is simultaneously a legal and political entity.[56] He makes, however, an interesting argument for keeping the two systems separate.
Drawing on a conÂcept borrowed from the natural sciences, autopoiesis,[57] he conceives of the legal system as one which “is able to draw a distinction between itself and other funcÂtioning systems.”[58] The operative element in his theory is indeed that of function, which, in the instance of law and politics, must be differentiated. He does not negate the strong causal connection between the two, but rather asserts that precisely in order to find these causal links, distinctions between the two must be drawn. Luhmann states thus that “the hypothesis of the separation of the system provides a better explanation for the finding that systems are dependent on each other in their... structural development.”[59]Luhman’s conceptualization not only enables one to highlight the interdeÂpendence of the systems, but also to notice the frequently unanticipated and posÂsibly unintended outcomes from political decisions and legal rules. Since the aim of this research is to investigate the mechanics of the law relating to 19th century plantation labour and thus trace certain patterns of cause and effect, a certain proÂvisional demarcation between the legal and political fields is necessary, even if, on another analysis, both may be found to be saturated with the other. This, above all else, allows one to conceptualize law as a political stratagem.
As will be seen, law was frequently used by the British administration, whether locally in Mauritius or as directed from London, as a tactic to achieve certain ends.
Such an approach to governance and law-making has been theorized by Michel Foucault in his seminal lecture on “Governmentality”. There, Foucault draws on the definitions of La Perriere and frames the idea of government as the “right manner of disposing things so as to lead not to the form of the common good,... but to an end which is â€?convenient’ for each of the things that are to be governed.”[60] He states that there are a number of specific aims to be achieved, which he refers to as “finalities”, meaning the objectives of government. AccordÂing to Foucault, in order to achieve these objectives, the exercise of sovereignty is inseparably linked to law. Hereby, “it is a question not of imposing law on men, but of disposing things: that is to say, of employing tactics rather than laws, and even of using laws themselves as tactics - to arrange things in such a way that, through a certain number of means, such and such ends may be achieved”, and therefore “the instruments of government, instead of being laws, now come to be a range of multiform tactics.” The idea of laws as tactics finds particular application in this work, on both a metropolitan level and local level. It is argued that the abolition of the slave trade and slavery had served multiple aims across the empire, while at the same time their local implementation was yet subject to another set of considerations. In Mauritius, these were more often than not of an economic nature, with profound effects for the development of society. This echoes Karl Polanyi's concept of “embeddedness”. With economic considerations being imperative to the existence of society, he argues: “Instead of the economy being embedded in social relations, social relations are embedded in the ecoÂnomic system.”[61]The underlying supposition of this study is that law is both embedded as well as relatively autonomous, and may therefore be examined as such. This is exemÂplified by an analysis of the effects of the law, which, as will be seen in the subÂsequent chapters, had both intended as well as unintended consequences. The latter can only be perceived if the relative autonomy of law is taken as a starting point. Thus, Luhmann's theory of perceiving politics and law as separate in order to highlight their causal effects is very much applicable, while at the same time Polanyi's postulate that a society is inextricably linked to its economic system also finds validation.
1.2.6