Theoretical basis
A study of the colonial context from a legal point view rapidly reveals a multitude of strata within the organization of an empire governed from a main metropolis. According to Lauren Benton and Richard Ross, empires were “invariably” legally plural, suggesting that these layered aspects were intrinsic to colonial governance.[32]
In the case of Mauritius, the concept of legal pluralism endures in a modern hybrid French-English legal system which owes its origins to the colonial period.[33]
Lauren Benton has researched the various manifestations of legal pluralism extensively, and while the work at hand is not concerned with the idea of legal pluralities as such, it employs one of Benton's conceptualizations to support its central argument.
In an approach which moves the study of legal pluralism away from its traditional focus on the complexities or structure of legally pluralistic systems, Benton draws attention to broader issues by placing attention on what she describes as “jurisdictional tensions” or “jurisdictional conflicts”.[34] The appeal of Benton's concept lies in its inclusiveness. Making no distinctions related to the sources of law, its ambit covers “clusters of conflicts” as they arose in the exercise of power.[35] “Jurisdiction” is hereby understood very broadly and does not differentiate between public or private types of authority. As a consequence, the notion of a “jurisdictional tension” is methodologically not limited to normative content, but permits wider historical investigation into structural shifts which occurred as a result of “legal strategies” employed by the “parties to jurisdictional conflicts”.[36] According to Benton, these conflicts had the potential to powerfully influence both strategy and institution-building in the colonial setting.[37]The absence of rigid classifications, whether in respect to the conflicts per se, or to those who may be party to them, makes the concept highly suitable to the subject matter of this research.
As indicated in the previous section, this study suggests that Mauritian society emerged out of a series of contestations between various parties. These contestations may indeed be regarded as “jurisdictional conflicts”, which were not only subject to the frequently contradictory aims of the British colonial project (manifesting jurisdictional tensions within itself), but involved parties so varied that their encounters, if to be studied in conjunction, must be framed broadly. The question of labour in 19th century Mauritius engaged many stakeholders. British involvement was not unified: more often than not, the metropolitan government took a view which was quite remote from, and even at odds with, the concerns of the local British administration, which found itself more aligned with the requirements of the resident French oligarchy. Slaves and indentured labourers were both the object of, and party to, these contestations. The arrival of the latter also brought a further stakeholder to the mix: the Indian government. It is clear that the application of a strict categorization of types of conflict or authority would not serve the research at hand. For these reasons, Benton's concept of jurisdictional conflicts is employed and built upon.This study conceptualizes slavery and indentured labour as essentially legal relationships, the precise configuration of which is a significant part of the discussion contained in this study.
More fundamentally however, the research seeks to examine these labour relations to investigate the relationship between law and identities. The central hypothesis is that Mauritian society (meaning the various identities it contains), emerged out of the contestations around laws relating to labour. And it shares, in that sense, the same concern with the relationship between law and human identity that Samera Esmeir explores in her seminal work.[38] Studying the effect modern law had on colonial Egypt, Esmeir examines the processes which in turn, first dehumanized and then humanized colonial subjects, specifically peasant labourers during British occupation, endowing them with what she has termed “juridical humanity”.[39]
This work does not directly utilize any of Esmeir's concepts, or seek to theorize the concept of “humanity” in the same way.
Nevertheless, many of the queries she raises in the Egyptian colonial context are instructive and relevant for the Mauritian colonial context as considered in this research:How was the concept of the human cemented in the legal processes of colonizing projects?... How does modern law make possible and activate the moment of decision over the human?... Could this decision, in attempting to mold a human that is always chained to the law, be part of a legal technology that functions to prevent revolution against the law and to assert state power?[40]
These questions, posed with reference to 19th century peasant labourers working on Egyptian cotton fields, are considered relevant to the conditions of 19th century indentured labourers toiling on Mauritian sugar-cane fields as well. As will be discussed in the subsequent chapters, the rules underpinning labour management on the island at the time configured not only the political economy, but also constructed identities through the distributive effects of law by fixing certain groups into particular roles.
1.2.3