XQs XXVI - A Conversation with Nurfadzilah Yahaya

Posted by sepoy on January 15, 2021 · 32 mins read

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 Hardeep Dhillon for conducting this interview. Please see the archive of previous twenty five XQs.

NY Book Cover

Nurfadzilah Yahaya is Assistant Professor in the History Department at National University of Singapore. She is a legal historian of the Indian Ocean, Islamic studies, British and Dutch imperialism, gender, and Southeast Asia. Prior to joining the National University of Singapore, Yahaya was an Early Career Fellow in Islamic Studies at Washington University in St. Louis from 2012 to 2015. She received her PhD from Princeton University in 2012. Her articles have appeared in Law and History Review, Journal of Women’s History, Indonesia and the Malay World and Muslim World. Her next book project will be on history of land reclamation in the British Empire. She also tweets at https://twitter.com/nfyahaya. Her book, Fluid Jurisdictions: Colonial Law and Arabs in Southeast Asia is published by Cornell University Press (2020).

Q: I want us to think expansively about your book. In that direction, I will begin by asking you to share the intellectual and political urgencies that shaped Fluid Jurisdictions.

There are three intellectual political and intellectual urgencies that shaped Fluid Jurisdictions. The first is the relationship between space, territory and law. I am obsessed with the concept of world-building and was curious how colonial subjects continued to build their world while being reluctant to ever yield completely to oppressors. I discovered they wielded colonial devices to buttress their property holdings and scaffold their family lives. I marvel at how even under oppression, they managed to carve out a world for themselves although they were, at times, wedged into a colonial mould. At other times, they managed to comfortably transcend colonial forms by holding on to older forms of belonging–in the Muslim sense–across the Indian Ocean. The second is the notion of hybridity which was something I personally struggle with. As part of my research, I once called a possible interlocutor who asked me about my ethnicity, and I said I was a quarter of everything, and he responded that this was impossible and that I was, in fact, “all of them.” That stayed with me. As someone who is mixed, I had normalized the constant, though unsettling feeling of being not quite wholly something. Partly, of course, it is because people tell me that throughout my life. There is also the state classification process that makes us commit to one ethnicity. But my interlocutor was right in a very profound way. I was and am all of it. The third is the pervasive assumption held by many people, including scholars of Islamic law surprisingly, that Muslims would ideally like to abide by Islamic law. Islamic Studies is overdetermined by this framework. It is a symptom of what has occurred throughout the Islamic world over the past two centuries where Islamic law is applied to Muslims in terms of Personal Law. It constantly gnaws at me that Islamic law was assumed to be something that all Muslims wanted for themselves because this perception breeds a certain kind of fatalism in historical narratives. As a historian, I rub against the grain of this prominent and perennial strand of identity politics that relies on abstraction of “Muslimness” that still permeates scholarship today.

Coincidentally, the first novel I read in 2021 is called L’Anomalie by French author Hervé Le Tellier where characters experience parallel lives after traveling on a Paris-New York flight through clouds with huge air pockets. Le Teillier explores the notion that “existence precedes essence, and by quite a long way, too” (“l’existence précède l’essence, et de pas mal en plus”). The doppelgängers in the novel behaved quite differently in different iterations. You can really see where their essential nature give way to compromise repeatedly such that what is their essence fades away into something else quite easily depending on their circumstance. Our very own assumption that these characters were making compromises betrays the idea that we tend to think that people possess intrinsic values and characteristics. But such phenomena is hardly anomalous in history so to ascribe anything resembling a core value to a group of people especially, not just individuals, should be done with caution.

Q: One of the analytical moves of your research is to transition the frame of analysis from sovereignty to jurisdiction. This is visible in the title of your book and each chapter. What work does ‘jurisdiction’ as a category of analysis do for you?

The transition enables me to shift perspective from colonialists to colonial subjects. Colonialism was not a totalising enterprise; it is not the case that sovereign rulers were the only ones who determined jurisdiction during the period of high colonialism. Starting out, I had conceptualised jurisdictions as something floating above territory ruled by sovereign rulers. In the archives, I discovered it might be the opposite primarily because jurisdictions need to be recognized by people to be valid–as jurisdictions determine who rules the territory. Historical actors constantly created new kinds jurisdiction where older legal norms are not overturned, exactly, but suspended at times. As a result, it is more fruitful and accurate to depict jurisdictions below territory perhaps. The former is much older and depends on recognition by people, even colonial subjects as I argued in my article in Law and History Review in 2015. As my book shows however, the adage that ‘the house always wins in the end’ proves to be true over the long run. The colonialists did not play fair after all.

From the second half of the nineteenth century onwards, colonial forms of law formed the material substrate of their lives. Powers of Attorney radically transformed Indian Ocean space but affirmed colonialism as well in the process. It is helpful to think of them as synapses yearning to connect and finally clicking into place due to frequent and extended usage, firing off more quickly with each other over time. The points of contact and influence among people could multiply, extending in several directions. For these wealthy Arabs, colonial law serves this enabling function rather than a subject of analysis. A single lifetime is not enough to make anyone realise the full implications of one’s actions. People are generally unable to take the full measure of their actions even in the moment. As a result, they continually project their own power along colonial lines but in so doing, found it hard to exceed colonial lines. Needless to say, conjecture and controversy continue to dog this collaboration. We can’t help but wonder: What exactly did they try to achieve? Did they really not foresee that colonial strength based on law would become firmer due to their activities?

Q: Your project moves in tandem with the historical actors at its center rather than being territorially bounded by nation-states or empires. This is still a rather unique move in history writing. How has human movement allowed you to conceptualize and navigate spatiality in your research?

Hardly anything ever stays primarily within their formal boundaries. People cross boundaries constantly; boundaries remain permeable even as authorities sought to make them opaque. When people cross space, they remake the space in the own image whether they intend to or not. That is what I constantly saw when I traced the movement of people. One might argue that place has primacy because law was territorial in all sorts of ways by the end of the nineteenth century but it’s much more than that. Because I was tracing the movement of relatively mobile populations. I expected territorial boundaries to fade away; on the contrary, my historical actors mindfully, or rather, artfully adhered to territorial jurisdictions in order to play them against one another to get what they wanted. They were really adept at legal pluralism. It is quite remarkable that ultimately, the distinct territoriality of law was what they banked on.

Q. One of the many aspects of your book I was most taken by was the way you repeatedly come back to the materiality and importance of paper. The paper form of the surat kuasa (letter of power), the contract, the deed, alongside references to archival scholars such as Bhavani Raman and Cornelia Vismann appear across your writing. Paper is integral to the craft of the historian but not every historian reflects on it. What moved you to incorporate paper into your analysis with such diligence?

The proliferation of documentary evidence demonstrates how colonial authorities despite their oppressive policies were compelled to heed the words of colonial subjects when they were found in documents deemed official and legal. It is basically an imperative of legal systems one might say. Legal thinking is pervasive, continuity of things is important, and one of the oldest and universal forms of law is law of contracts. Colonial invocation of ‘rule of law’ was pressed into service as a slogan such that colonial legislators and bureaucrats laboured under the imperative of upholding it. In other words, they had trapped themselves in a legal bind, quite literally. Without clientele, legal institutions, even colonial ones, will crumble so they actually need to recognize more forms of law other than their own. On a very visceral level, they ended up recognizing legal accoutrements found in other legal cultures. Of course, we must also remember that paper was also invested in aspiration. These documents were powerful because they are imbued with human personality. One could argue that over time, the Arab diaspora and other Muslim merchants successfully coaxed authorities into acknowledging older legal systems found in the Indian Ocean such as Islamic law. This was not a given and therefore cannot be taken for granted. Their efforts are somewhat a mirror image of the exportation of Anglo-Mohamedan law, the famed British legal creation with astoundingly long legacies in the Commonwealth today despite being, or maybe because it is an amalgam of Islamic law and non-Islamic law. The Arabs themselves whom I focus on my book readily rode this new wave for as long as they could, the sea being a leitmotif in their lives although waves are unpredictable. It is also not hard to imagine how the Arab diaspora having spent so much time at sea was also influenced by the idea that the ocean facilitated a smooth flow of their own conception of Islamic law across the vast space that could potentially take root in Southeast Asia. There is an effect of floating which is very attractive to both colonialists and colonial subjects where law remains personal, initially attached to persons first before being territorial. My book demonstrates that this older view of law did not wane in the early twentieth century as originally thought.

Crucially, Fluid Jurisdictions shows how the establishment of legal jurisdictions is never unilateral. I find the metaphor of a tapestry very useful in explaining fabric of law that emerged and eventually becomes visible to us historians generations later. There has to be some give in the fabric–too taut and the tapestry might tear. Yarn tend to snag so one has to be careful. Stitches were also executed with a variance of skill across time so some people were more successful than others at suturing different forms of law. Familiarity and ease only came with long practice in the same way that certain jurisdictions firmed up with frequent recognition and constant looping across the ocean. In my book, I leave it open to the reader to determine what is the warp and weft of the tapestry of jurisdictions. It very much depends on what is seen and unseen in the legal fabric today. I find this to be a fascinating prospect and look forward to my readers’ interpretations.

Q: Gender is integral to the storyline in Fluid Jurisdictions. The very first chapter of the book quickly introduces us to the ways an Arab mercantile class insisted on colonial intervention to create a more consistent legal culture around marriage. Many of the cases you beautifully highlight involved land, property, and finances, and the urgency to control women’s decisions including who they married. May I ask you to elaborate here on the relationship between male relatives, muftis, qadis, and colonial officials on the women’s question?

True gender equity has always been an impossibility but under colonial rule, the double layer of patriarchy makes it difficult for women to achieve anything by way of rights. From the nineteenth century onwards, women not only had to battle entrenched patriarchal notions within their own families and immediate communities, but also against colonial authorities who were anxious, though they did not admit it outright, that they were going to have to fight a battle against another flank–women– whom they had not generally envisioned as a formidable rival in any way before. It worked to their advantage that women remain inferior. We all know that the trope of “white men saving brown women from brown men” was actually directed at brown men more than anything else–to chip away at their authority rather than buttress the reputation or improve the social lives of ‘brown women.’ If anything, the gender specificity of Muslim women became more prominent under colonial rule marking them out a separate section of interest group in the eyes of colonial governments.

Q: I was very taken by the array of Muslim characters in Fluid Jurisdictions. There is a wide breadth of scholarship that often collapses the heterogeneity of Muslim communities. Legal scholarship has its own schematic, and is often organized on the lines of Muslim subject/state or limited to Islamic schools of jurisprudence. However, your work shows a diversity of Muslim actors: philanthropists, merchants, qadis, muftis, Muslims of various regions and ethnicities (Malay, Indian, Javanese, and Arab), and women and the great diversity in how they were animated legal actors. May I ask you to reiterate what the stakes of highlighting such a large scope of actors does for Fluid Jurisdictions and scholarship more widely?

Indeed, Muslims had vastly competing agendas at any one time. Within Southeast Asia, the status of Arabs were historically augmented by their links with Arabia so we already see inequality set in from the beginning. My historical actors who were members of the Arab elite deftly performed displays of religiosity which most of the time, let’s admit it, were usually self-serving. To lump Muslims together as a monolith really distorts their motives. In many ways, colonial rule revealed the latent rivalries between various ethnicities within Muslim populations in Southeast Asia. Colonial powers proved to be yet another player in town, albeit structurally prominent by default in asymmetrical settings. Colonialism made identity politics hugely salient such that Muslims became a legible interest group seemingly unified its desire to continue implementing Islamic law in their daily lives. Muslim qadis and muftis retained their authority long into the colonial period in both the Netherlands Indies and the British Straits Settlements before being undermined in the latter colony. The Dutch retained their services and preserved their authority for the most part in religious courts for over three centuries. Merchants who form the core subject of my book were mostly keen on preserving their property across several generations. Some became philanthropists to for religious purposes, to get a reward from God in the afterlife, but also to preserve patronage over the communities they were a part of, and to win the favour of government authorities so that they and their progeny could benefit in the long run.

Q: There were so many parallels between your work and the larger breadth of work with which I am more familiar on Asian migration to the Americas and British empire. The attempts at “passing” by Arab men as Native, intermarriage to Native women as a technique of circumventing laws aimed at “foreigners,” the land alienation laws themselves, as well as the category of the resident alien. Of course, one cannot do everything in their book but I am curious if there are larger thematic intersections which you drew from or connected with that did not make their way into Fluid Jurisdictions?

Yes, I am glad you ask this question. The phenomenon of passing indeed features prominently in stories on mobilities and modern systems of classification, and something that rare receives much analysis in history of Southeast Asia especially which says a lot about conceptions of identities in the region and beyond where the default in many places was indeed mixed identity which was a norm cast as a problem by colonial officials. It’s a place of consistent inventiveness. I actually wish I could delve more into it but the point of passing is to hide or at least downplay an aspect of one’s multifaceted identity so it was like tracing a phenomenon that is trying its best to remain invisible. I enjoy the challenge and skirt around this void to trace its outlines. Indeed, one thing that we could trace is the forms around the invisible cloak that people wore because changing classifications are simultaneously symptoms of fluctuant realities and producers of these realities. Whenever a change occurs, it is a sign of actual reality which we need to investigate–we only see the contours–but these changes also actuate the reality so it is quite complicated.

Being classified as a “resident alien” for so many years in the USA as a graduate student and a postdoctoral fellow was not lost on me. Obviously, the legal category is different in the USA in the early 21st century than it was for 19th and 20th century Netherlands Indies but the exact wording is not a coincidence. The histories of Islamic law across the Indian Ocean exist on a longer temporal scale and larger geographical space. So it has deeper roots over a broader expanse than colonialism did which means that adaptation to colonial exigencies was part of a larger pattern. One thing for sure, the period I study saw an accelerated pace of change that my historical actors nimbly dealt with. This is what makes the individual stories in the book exciting.

Q: You are in Singapore and I am here in the United States as we sit in the midst of a pandemic in which states have built boundaries on human movement of various forms, and in some situations compel rapid movement. I am thinking of the migrant crisis in India (and many other places), or the ICE AIR deportations that unfolded in the early months of the pandemic, for example. May I ask you to share how your research has shaped your thoughts on the pandemic?

The pandemic and all the disastrous consequences it has wrought made me reflect on the history of pandemics in general first of all. I can’t help but think about the visa regime is historically predicated on economic ability, and now another layer of potential barrier exacerbate this unjust system for the foreseeable future for so many scholars around the world. On a professional level, it has made me think more about accessibility to the archives which I previously took for granted. Now the fact that a lot of colonial sources have not been digitized is a huge problem for all of us.

Secondly, all this talk about surveillance linked with contact-tracing apps all over the world also got me thinking about my own approach towards surveillance in my book and the different networks therein which one could plug into to gather information. Spies should work for everyone, or not at all, says Michael LaPointe, so that’s something I’ve been thinking about. Always, debates about the limits surveillance ramped up seemingly spontaneously in times of crises but in truth, surveillance infrastructure undergird governance all this while, something anyone who has read Foucault would know, so the crises such as the one surrounding these new apps merely pushed the issue of privacy which is more subjective than security into the spotlight. Privacy and security are two sides of the same coin really. Ironically, these discussions in turn, though critical of potential abuse, yields new ways in which yet more surveillance could be made valid sometimes.

Q: Before I let you go, may I ask you to share your experience as you transitioned from the dissertation to the book? This phase is past you now but I am sure your reflections will help many budding scholars.

I revised my entire doctoral dissertation for the book after putting the former aside for a year to gain distance and perspective. I was fortunate to have the time to write the book because I had a three-year fellowship at Washington University St. Louis and a research fellowship at the Asia Research Institute at NUS before I began my tenure track job. I workshopped all my chapters at various workshops so I owe a lot to people who gave me great feedback post-dissertation after I graduated from Princeton University. During this time, I read widely, joined various reading groups outside of my direct research interests. It was very rewarding time intellectually, and I thoroughly enjoyed it. I revised the dissertation for the book with the aim of reaching a broad audience.

I added two core chapters (Chapter Two on Powers of Attorney and Chapter Five on British-Arab collaborations on pan-Islamic surveillance in Java and Singapore) that are not in the dissertation. My last chapter on the waqf (trust or endowment) was the first I ever wrote so it is especially dear to me. It’s my pet chapter if you will, and accompanied me as I moved from Princeton to London, then Leiden and The Hague, to New York, back to Princeton and then to St. Louis before finally ending up in Singapore back again. It’s not a coincidence that it’s the chapter that ties all the strands together. In many ways, family and property are the main threads that run through the arc of my book.

There were also practical considerations. Towards the end of my time at Princeton, the Koninklijk Instituut voor Taal-, Land- en Volkenkunde (KITLV) in Leiden was in the midst of moving its holdings to the Universiteit Bibliotheek in Universiteit Leiden in The Netherlands so I had to wait for the holdings to be released again. At about the same time the Koh Seow Chuan Collection in Singapore was in the process of being moved from the National Museum to the National Library. I was lucky because there was an exhibition on Arabs of Singapore at the time which prompted the National Library to digitize their holdings which were linked with the Arabs from this collection. Hence, these documents are now available in a more accessible format.

Q: Finally, may I ask you to share the five books or interlocutors that most heavily shaped your work?

1) The first book or rather series of books I am in conversation with is Amitav Ghosh’s Ibis trilogy. In my early years at graduate school, I had read In an Antique Land and his article “Slave of Ms 6” before. In the summer before I left for archival research I read Sea of Poppies and completely fell in love with it. The book and the two subsequent ones in the Ibis trilogy enabled me to envision the Indian Ocean that my ancestors traversed in such a vivid way. Like most people in the world today, I do not have genealogies at hand of my ancestors so I have always wondered what they did exactly to earn their keep, what languages they spoke enroute to Southeast Asia, and so on. For me to see ordinary people being depicted this way so fully, so joyfully, living their lives, being at home and at odds inhabiting multiple cultures simultaneously, I was completely drawn into the world he created.

2) Natalie Zemon Davis’s oeuvre in general, but especially The Return of Martin Guerre (Cambridge: Harvard University Press, 1983) shows how a lot of law was in fact performative and theatrical. People in real life are infinitely complex, something which microhistories like Davis’ book really shows. I was drawn to the soupçon of complicity inherent in legal disputes especially amongst intimate relations for the sake of convenience. At the back of my mind, I aim to emulate this lens in my approach to history. In my book, I build a world by focusing on a diaspora who traversed the Indian Ocean ultimately settling in Southeast Asia, my aperture being a nexus of big and tight, a balance between wide perspective and a close-up.

3)I was inspired by Eric Tagliacozzo’s book Secret Trades, Porous Borders: Smuggling and States along a Southeast Asia Frontier (New Haven: Yale University Press, 2005). Tagliacozzo’s book led me to the possibility of writing a history that crosses colonial boundaries by following specific individuals and groups of people. It is a blueprint on how to conduct transimperial research across vast expanses using sources in multiple languages in several archives.

4)My book is in direct conversation with Iza Hussin’s book The Politics of Islamic Law: Local Elites, Colonial Authority, and the Making of the Muslim State (Chicago: University of Chicago Press, 2016). Hussin’s book demonstrated the travels of Islamic law in the Middle East, South Asia and Southeast Asia. Her book laid the groundwork for what I say in my book.

5) Mitra Sharafi’s Law and Identity in Colonial South Asia: Parsi Legal Culture, 1772-1947 (New York: Cambridge University Press, 2016): Mitra is the reason why I got into legal history in the first place a decade ago. She constantly approaches legal history in creative and innovative ways. Her book on Parsi minorities and how they became legally prominent in India is a tour de force. My historical actors, in contrast did not become prominent in this manner because they relied heavily on lawyers especially British lawyers in the British colonies. One of my guiding questions while doing research was indeed – why didn’t my historical actors do what hers did?

Thank you for your time and labor.

Hardeep Dhillon is a social and legal historian in the History Department with a secondary in Women, Gender, and Sexuality Studies (WGS) at Harvard University. Her dissertation, “Indians on the Move: Law, Borders, and Freedoms in the Early Twentieth Century,” works across Asian and Asian American Studies to explicate the foundations of modern immigration and border controls.