[The XQs (Ten Questions) series is a conversation with the authors of new and exciting works in South Asian Studies, whose aim is not to “review” but to contextualize, historicize and promote new scholarship. We thank Tapsi Mathur for conducting this interview. Previously: I, II, III, IV, V, VI, VII, VIII, IX, X.]
Mitra Sharafi is a legal historian of South Asia at the University of Wisconsin–Madison, USA. Her first book, Law and Identity in Colonial South Asia: Parsi Legal Culture, 1772-1947 was awarded the Law and Society Association’s Hurst Prize in 2015. She is currently working on her second book project, “Fear of the False: Forensic Science in Colonial India,” along with articles on abortion during the Raj and the expulsion of Asian and African law students from the Inns of Court. Her research has been recognized by the American Council of Learned Societies, the Institute for Advanced Study, the Andrew W. Mellon Foundation, the National Science Foundation, and the Social Science Research Council. She hosts the South Asian Legal History Resources website and is a regular contributor to the Legal History Blog.
Mitra Sharafi, Law and Identity in Colonial South Asia: Parsi Legal Culture, 1772-1947 (New York: Cambridge University Press, 2014; Ranikhet: Permanent Black, 2017)
What is the larger question that frames your work and can you tell us a little about what drew you to this project?
I was interested in how minority communities engage with law. There are plenty of examples historically and today of minority communities trying to avoid interaction with the state—particularly where there is a history of conflict and exploitation by the state. Equally, there are many examples of communities handling their intra-group disputes internally. But one day as I was leafing through the Bombay law reports, I noticed Parsi names everywhere and on both sides of many cases. Why would members of the same small, tight-knit community take each other to court, especially in a South Asian context where there were so many non-state options for dispute resolution? And why would they do so particularly in sensitive intra-group disputes over religion (temple disputes) and family (matrimonial and inheritance cases)? I was intrigued. Here was a minority community that took its inside disputes to court readily and often, in contrast to the more common patterns of avoidance (of the state) and containment (within the community).
What is your main argument?
Engaging with the state generally, and with the legal system particularly, need not come at the cost of a loss of minority community integrity and autonomy. There are plenty of instances where it has, but it does not necessarily have to be this way. The story of Parsi legal culture in British India is a case in point. The Parsi historical example offers a useful model for Muslims and those mistaken as Muslim here in the post-9/11 US. These communities (including South Asian and Middle Eastern Americans) are now turning to law and legal education in new ways. I wrote an op-ed exploring this connection between Parsi legal culture and America today.
In your book, you make significant use of case law – what you call the “neglected stepchild of South Asian legal history.” In what ways did this archive allow you to speak not just about law but also about identity?
My most exciting archives for this project were the unpublished case records and judgment notebooks of the Judicial Committee of the Privy Council (in London), and even more of the Bombay High Court (in Mumbai). South Asianist legal historians have realized over the past decade that Indian courts house unpublished archival records, although even the people working in these courts (including judges) may not realize it. Getting access to use the High Courts’ records is not quick or easy. It takes a lot of stamina to get in, and the work conditions are not ideal. These are packed, busy courts dealing with huge backlogs and delays in their current case load. If you do manage to get access, find your records, and get them moved to an empty desk in the corner of some office, though, you could have a gold mine on your hands. I don’t recommend High Court research if a person is looking for a particular case or three. You need to be interested in broad swathes of case law, because the chance of finding particular cases is slim. But as with any archive, the best things come from being open and receptive to what you come across. You need to be ready to be surprised. Many of these cases never even made it into the published law reports.
These records help us think about identity because they provide the backstory to the published judgment. We see not just what the judge ultimately decided, but often the cross-examination, written evidence, and briefs by the lawyers. We can see how the litigants thought about their lives, their problems, and their social worlds. Some of the most important cases for my project were temple trust disputes. Who could enter a Parsi fire temple? translated into: Who is “in” and who is “out”? What does it mean to be Parsi? Is it only about religion, or is it also about ethnicity or race? Orthodox Parsis then (as now) felt that there was an essential hereditary aspect to being Parsi. It wasn’t just about practicing the religion. Your biological father also had to be Parsi. The patrilinear principle remains the subject of litigation between Parsis in India today. It was first disputed in court just over a century ago. My book tells the story of how these kind of sensitive intra-group questions came to be fought out in court.
Your discussion of identity is at several levels. One is the trajectory you draw in your last chapter of what it means to be a Parsi, another is the ways in which class and male privilege are consolidated within the community through the entirety of the book. This is further complicated by diasporic identity, and, of course, colonialism. Can you elaborate on the challenges of excavating identity historically?
There is a special issue here for historians working with case law, so let me address that. The problem is that our court records bring the courtroom dialogue to life. But we also know that litigants’ speech is scripted. People in court usually say what their lawyers tell them to say. On the one hand, then, India’s High Courts offer a treasure trove of previously untouched, unknown records—story upon story of suffering, conflict, and loss (and now and then, of good fortune). On the other hand, though, these narratives are what comes out of the meat grinder of legal strategizing. So how can we take these records to reflect the litigants’ true sense of themselves and what they stood for? One answer is that we can’t, but this is not just a problem for legal historians. Primary sources are always the products of complex pressures, processes, and priorities. The more specific answer for me was twofold: I had some cases (especially the big Parsi trust cases) where litigants were pressing on with their case for many years at immense expense and for the sake of a principle, not necessarily because they expected to win. Litigants like these seemed to really believe in the position they were taking in court. I was fairly sure they were not just saying whatever it would take to win their case. These were the cases about the basic principle of Parsi group membership, and thus about community identity. My other way in was to think about identity in relation to the form, as much as the content, of these disputes. The fact that Parsi litigants so often fought out their intra-community disputes in the colonial courts was itself a reflection of a certain kind of identity: by the late colonial period, being hyper-litigious and legally savvy were part of what it meant to be Parsi. This was my solution to the problem of strategic courtroom speech. In using legal sources to get at identity questions, I was as interested in the repeated pattern of going to court to solve social problems as in what people said inside the courtroom.
The Parsi legal culture you define consists of histories of both law and lawyering. Can you talk us through your decision to study these together?
The history of substantive law (for instance, criminal or family law) and the history of the legal profession have traditionally been written separately. The first flavor of legal history has often been written by scholars who use legal sources to write social and cultural history. They may not be terribly interested in law itself. The history of the legal profession (a much smaller body of work) has been written by scholars who get really fired up by Bar Council minutes and who are often speaking to sociologists of the professions more than historians. I kept seeing all of the ways that who the lawyers were mattered to the substantive areas of law in which they were working. For instance, it mattered that some of the lawyers and the senior judge in the best-known Parsi religious trust case, Petit v. Jijibhai, were Parsi themselves. They came to the dispute as insiders with their own views on community politics and religion—unlike British judges and lawyers who were generally completely clueless on the finer points of Zoroastrian theology (and theology was central in many of these cases). These legal professionals were acting as intermediaries or cultural middlemen, translating views within the Parsi community for the courts and vice versa. But the existing approach to legal history kept the legal professionals and their cases apart. I considered that a missed opportunity.
You complicate much of existing literature that broadly paints Parsis as “compradors,” “collaborators,” or “mimic men” of the colonizer to see them instead as “cultural intermediaries” carving out a semiautonomous space within the bounds of the colonial state. Can you talk a little about the implications of this repositioning for the history of minorities in colonial South Asia?
My argument is that Parsis were not selling out or losing themselves by investing heavily in colonial law. They did not forget their core values because they were wearing barristers’ gowns and speaking in English in the courtroom. Mastering the mechanics of colonial law allowed them to de-Anglicize the law that governed them. And as much as the Parsi pattern was early and extreme, the idea that it was possible to use the colonizers’ law ways to protect community autonomy, integrity, and priorities is surely applicable to other communities in colonial India. There is exciting research going on right now on the legal history of Muslim communities in colonial South Asia—by Julia Stephens and Elizabeth Lhost, for instance. Someone needs to do a legal history of the Sikh community, as there is an important story to be told about the legislative lobbying that produced the Sikh Gurdwaras Act of 1925, and probably lots to say about case law and the legal profession in Punjab, too. The history of Jain legal culture would also make a fascinating project. It could straddle British India and the princely states in western India and would have to address the relationship between non-state Jaina law and state law involving Jains. There is also a great project waiting to be done on the role of Brahmin lawyers, judges, and litigants at the Madras High Court during the late 19th and early 20th centuries. The Madras Law Journal was one of the earliest in India, and there is a very rich history there. That would be a community-specific study of colonial legal culture, more than a minority one.
What is your impression of the directions in which the field of South Asian Studies is developing?
Through the American Society for Legal History, I am chairing a committee for a new book prize, the Stein Prize for best book in non-US legal history. That experience has reminded me how essential it is for scholars to write clearly if they want their work to be accessible even to scholars in neighboring fields. At its best, South Asian studies have been conceptually rich and theoretically sophisticated. At its worst, it has produced highly abstract and jargon-laden writing that is impenetrable even to next-door academic audiences. In some of these instances, the emperor is wearing no clothes and no one will say it. Vagueness masquerading as profundity does no service to public views of the humanities, and it reduces the reach of our research findings even within academia. If I can read an entire paragraph and not be able to summarize its meaning, something is wrong. I’m glad to see more and more writing in South Asian studies that communicates effectively. Many legal historians of South Asia are producing work that clearly conveys an argument and its significance while still engaging with big ideas.
South Asian legal history and South Asian legal studies more broadly are establishing themselves as coherent sub-fields. The challenge lies in their interdisciplinarity and the global spread of their participants. It takes extra work to stay connected, not only across disciplines, but also across oceans—between scholars based in North America, Europe, and South Asia. I hope we can work to maintain ties and conversations across these disciplinary and geographic divides. I also hope that videoconferencing technology will soon be good enough that we can hold online workshops.
Can you recommend five works we can read in conversation with your work?
i. A book that made a big impression on me for its law-and-identity approach in a colonial-ish setting is Assaf Likhovski’s study of law in mandate Palestine. Funnily enough, my title mirrors his, although this was my publisher’s inadvertent doing, not my own: Law and Identity in Mandate Palestine (University of North Carolina Press, 2006). Assaf Likhovski and I are in conversation in a Law & Social Inquiry review symposium about my book (42:4, fall 2017), which also includes essays by Bhavani Raman, Sylvia Vatuk, and Winnifred Fallers Sullivan.
ii. Chandra Mallampalli’s Race, Religion and Law in Colonial India: Trials of an Interracial Family (Cambridge University Press, 2015) is a great example of some of the rich new work in South Asian legal history that focuses on case law.
Then I hope you’ll forgive me if I move away from scholarly books into other domains here. I am a lover of fiction, physically beautiful books, and strange primary sources:
iii. Edited by Pheroza Godrej and Firoza Punthakey Mistree, A Zoroastrian Tapestry: Art, Religion & Culture (Mapin, 2002). This is a piece of furniture and a cultural artifact as much as it is a book. There is a whole genre of large, gorgeous books on Parsi culture and history published in India, usually by Parsi authors. A Zoroastrian Tapestry is the book that I haul out when friends who know little about India come over for dinner. I say: Freddie Mercury? Zubin Mehta? The three wise men? Here, look at this! It conveys the full aesthetic richness of Parsi history and heritage. If you want to understand what it meant to be a Parsi “merchant prince” of early nineteenth-century Bombay, you need to experience this book. (Incidentally, you should also read Amitav Ghosh’s Ibis trilogy, which features a Parsi opium merchant.) A couple of generations later, the confidence and networks generated during this early era were redirected into the professions, including medicine and law.
iv. H. D. Darukhanawala, Parsis and Sports and kindred subjects (author, 1935): This is one of my all-time favorite primary sources, a wacky prequel to the author’s more straight-laced Parsi Lustre on Indian Soil (Claridge, 1939). Parsi Lustre is a biographical dictionary of leading Parsis (mostly men) circa 1900. It is an essential reference work for anyone following particular Parsi figures pre-1940. Parsis and Sports takes us into the domain of the physical culture movement of the 1930s. It includes biographical entries for the stars of Parsi bodybuilding and boxing on roller skates! This may seem unrelated to my book, but my final chapter traces Parsi eugenics through the intra-community case law. The father of Parsi eugenics was J. J. Vimadalal, a solicitor who was very active in Parsi-vs.-Parsi lawsuits. The physical culture movement was related to the larger Parsi eugenics movement. Both were part of a conversation about physical degeneration among Parsis in the early twentieth century.
v. Sujata Massey’s The Widows of Malabar Hill (Soho Crime, 2018). This is a fun one if you are looking for fiction that complements my book. It is the first book in a new murder mystery series featuring Perveen Mistry, a female Parsi lawyer in 1920s Bombay. The Parsi legal profession and Parsi personal law backdrop tie in with themes from my book, and the author and I were in touch about historical context. The main mystery is about Muslim personal law and a murder in a polygynous household in Malabar Hill, which was incidentally also a favorite Bombay neighborhood among Parsi elites.
Can you tell us about your journey from dissertation to book? More specifically, what did you jettison from your dissertation and what was developed anew in your published work?
My dissertation featured a single case, the 1925 Parsi temple trust case from colonial Burma called Saklat v. Bella (also known as the Rangoon navjote case). I had a very clear principle of expansion for my book. I knew the book would be about how an entire community engaged with law, meaning litigation, legislation, and the legal profession. After finishing my PhD, I did another year’s worth of research at the archives. I looked at the history of legislation then. I stumbled upon the Parsi Chief Matrimonial Court’s incredible records at the Bombay High Court, so all of those cases were new, too. Rather than tinkering with the dissertation to produce the book manuscript, I wrote the book from scratch, only dipping into the dissertation here and there to borrow particular phrases and paragraphs. In the end, there was only a 22% overlap in writing between the dissertation and book. I have an exact figure because my home institution required a statement of overlap for my tenure dossier (and the lower this figure, the better—from an institutional point of view). I find fiddling around with an existing text slow, hard, and often demoralizing. So although I definitely took the long, scenic route on the dissertation-to-book journey, rewriting at a much larger scale and with new research felt fresh and exciting. I’m happy I did it this way.
You also run a blog – South Asian Legal History Resources (which includes excellent resources for students just starting work on legal history in South Asia) – can you tell us more about the role of digital work in your scholarship? Including, perhaps, how you manage your time!
I started my South Asian Legal History Resources website in 2010, when I was about halfway through my assistant professor years. Until tenure, I only posted resources—an online bibliography, reference lists of law report citation abbreviations, that sort of thing. After tenure, I added a blogging component, although I have worked hard to pace myself there. Bloggers often dry up. I aim for monthly blogposts, and these are often announcements about events in my field. I also organize the Law and Society Association’s South Asia Collaborative Research Network (CRN 22), so the CRN listserv and blog announcements often overlap. I’ve had many fascinating interactions with people through my website (and related tweeting), including descendants, journalists, novelists, and people from the museum and tv world. A recent article I published on Parsi personal and family memoirs came about in part because of these interactions.
I am also a regular contributor to the Legal History Blog, and that is a much more fast-moving website, featuring daily posts. I usually try to post 2-3 times per week there, mainly new publication announcements. Together, I spend about one full day per month working on my own website and the LHB posts. Although it has been hugely rewarding for me, I don’t think I could have spent this much time on websites pre-tenure. These things take more time than you think and can have an addictive quality (they produce immediate results, by contrast with our academic publication timelines). You do have to be careful about time management. I try to prioritize my research time by following the one-hour rule: I do one hour of research-related work first thing in the early morning. I may spend more time later if I have a deadline looming, but the one-hour rule ensures that the research never stops even when teaching and service are imposing huge demands. E-mail is also a real challenge to control, of course, when it comes to time management. The more you feed it, the hungrier it gets, so my view is that you must keep it a bit lean and underfed. I don’t think I’m horrible at e-mail, but I’m not the fastest person either. My honest view is that if I’m good at e-mail, I can’t be good at anything else.
Tapsi Mathur is a doctoral candidate in history at the University of Michigan.