Writing History from the Courtrooms: In Conversation with Mitra Sharafi
uponita mukherjee
Oleander, an abortifacient used in colonial India. Source: Wellcome Collection. Attribution 4.0 International (CC BY 4.0)
In the last decade, the study of law in South Asia has seen exciting new developments. Scholars trained in different disciplines (law, history, anthropology) and academic contexts (India, UK, and the US) have mined new kinds of sources across archives and courtrooms in South Asia, drawing upon new methodological frames and perspectives to rethink law and its relationship with society. Uponita Mukherjee speaks to Mitra Sharafi about what it means to study the legal history of South Asia now. In a conversation that spanned over a series of emails, reflections on questions of methods and sources blended with personal anecdotes from Mitra on graduate life, archival work, teaching, and blogging. What follows are excerpts from these exchanges that map the lay of the land: how the field of legal history has changed over the years with new textual and material archives. The discussion explores the new possibilities (and challenges) that socio-legal studies of South Asia now hold for scholars interested in studying the history of law in colonial and post-colonial contexts.
Uponita Mukherjee (UM): I have always been interested in how scholars identify a theme or topic of research, and I am sure our readers are too. How did you decide that you were going to conduct your doctoral research on the braided histories of British law in the colony and the Parsi community in Western India?
Mitra Sharafi (MS): I grew up in a small town in British Columbia and saw the film Gandhi (1982) when I was eight years old. I was fascinated by Indian history ever since. In fact, I wrote a poem about the film and it was published in the school newspaper—my first publication! I went to India for the first time in 1997, on the 50th anniversary of Indian independence. I had an internship with a law firm in Delhi. But I was given almost no work, so I spent most of my time reading cases from the law reports. That was my introduction to the idea of the personal law system—that there could be different bodies of state-administered religious law applied according to one’s religious affiliation. It was mind-blowing to me. If you are interested in comparative law and religion, India is a goldmine.
As for the Parsi angle: my father’s side of the family is Iranian, and I was always curious about Zoroastrians in India. You pass through my father’s village in Iran (Zarghan) as you travel from the southern city of Shiraz to the ruins of Persepolis (Takht-e Jamshid). I had grown up hearing a lot about the ancient Persians. But I had never met a living Zoroastrian until I began my Ph.D. project! I wanted to look at the use of colonial law by minority populations. I originally planned to do a comparative study of the use of law by three mercantile minorities in Bombay: the Khoja (or Memon), Baghdadi Jewish, and Parsi communities. But as I became familiar with Parsi names, I noticed that there were a huge number of cases involving Parsi parties in the Bombay law reports—often on both sides. And so my focus became Parsi legal culture. Why did colonial-era Parsis sue each other in the state courts so often, particularly in sensitive religious and family disputes? What did it mean for this community to have pioneered legislative lobbying strategies and to go into the legal profession from so early on? How did the Parsi community not lose cultural autonomy, but gain it, by internalizing Anglo law ways?
Winged figure from Takht-e Jamshid (Persepolis), Iran. Source: Mitra Sharafi
Winged figure from Zoroastrian temple (Vatcha Agiary), Mumbai.
Source: Mitra Sharafi
During my dissertation research (in 2003), I was the Paying Guest of an 80-year-old Parsi barrister named R. P. Vachha in Mumbai. My host’s father was P. B. Vachha, a lawyer and Persianist during the colonial period who wrote the classic history of the Bombay High Court, Famous Judges, Lawyers, and Cases of Bombay (1962). I learned many things at the breakfast table, both for my project on Parsi legal history and also for my third big project. That will be a global history of legal education focusing on students from across the empire (and beyond) who studied at London’s Inns of Court to become barristers, circa 1860s-1960s. My host had been a law student at the Inns in the late 1940s, and he missed Indian independence because he was in London in 1947. He told me many stories about the experience of being an Indian law student in the imperial metropole.
Parsi lawyer P. B. Vachha (center) and friends, circa 1909. Source: R. P. Vachha
UM: For a long time, social history dominated the historiography of South Asia, and shaped academic studies of law too. As you had noted in your article-length survey of the state of the field (2015) that between the 1960s and the 1990s “[t]here were historians who wrote about law in history […] but few if any would have described themselves as legal historians.” What has changed in the field of South Asian legal history since then? What do you think distinguishes the new generation of legal historians from the earlier era of social historians who were interested in legal themes, but perhaps would not, have described themselves as legal historians?
MS: I can think of three things that have contributed to this flowering of legal history among South Asianists in the new millennium. First, there is the simple realization that case law is a kind of storytelling. And the law reports are published and increasingly available online. Second, scholars have realized that the courts can be accessed as archives too. They house judgment notebooks and unpublished case records. Few scholars had looked at these materials before. I used the records of the Bombay High Court. Kalyani Ramnath and Rohit De have done remarkable work with the records of the Madras High Court and Indian Supreme Court, respectively. Alastair McClure has worked with the records of the Allahabad High Court. And many of us have mined the Judicial Committee of the Privy Council records. When I did my doctoral research, these records were at the JCPC, which still functions as a court, on Downing Street in London. They were then moved to the National Archives at Kew, although it has been more than a decade and we’re still waiting for those to come out of the boxes. At least the decisions (and in some cases, other case papers) are now available here. The third thing is that there is a new generation of Indian lawyers coming to the US (as well as Canada and the UK) to do doctorates, especially in social science and humanities disciplines. This generation is helping create a vibrant and rich body of socio-legal research, focusing especially on religion, gender and family law; migration and immigration; criminal law; constitutionalism; the legal profession, and legal education. There is also a wider community of scholars trained as social scientists and humanities scholars who are doing wonderful work. Altogether, this has created a critical mass in South Asian socio-legal studies, and it is allowing synergies to form at conferences like the Law and Society Association (LSA), the Annual Conference on South Asia (ACSA), and the American Society for Legal History (ASLH).
Law reports from the Columbia Law Library basement. Source: Mitra Sharafi
UM: Across the body of your work – your monograph as well as the spectacular set of essays and articles you have published over the years – there runs a through-line of a sustained interest in exploring what might be called ‘Law in Action,’ rather than the ‘Letter of the Law’. In other words, in your work, you make a strong (and I think a very important) argument, for turning analytical attention beyond ‘pre-interpretation law’ to what historical actors do with the law when they take matters to court. In your articles, you have explored how judges (2009, 2020), lawyers, legislators, petitioners (2014), and litigants (2010, 2014, 2019, 2020) actively, albeit with varying degrees of success, engaged with and put pressure on statutory provisions during the colonial period in India. This is a crucial methodological intervention in Indian legal history, especially the colonial period. How do you think a researcher’s attention to the dynamism of law, that the process of litigation activates, pushes us to rethink our understanding of how law and society shape one another? In what ways would a deeper and closer look at how cases are resolved in court, shape our conceptualization of how social relations and collective identities are constituted over time, in and through law?
MS: The idea that we should study law in action (and not just “law on the books”) is practically the motto of the University of Wisconsin Law School, where I have taught since 2007. It is really a critique directed at lawyers and law schools, in particular: we need to know and teach more than just the technical rules because law and society are flowing into each other in so many ways. This approach is also the product of the socio-legal studies movement (Law and Society Association) since the 1960s and the work of J. Willard Hurst, a pioneer in US legal history who taught at UW Law School from 1946 until 1980. In US academia, socio-legal history has emerged as the dominant style of legal history, and I think it is a great thing whether we’re talking about the legal history of the US, South Asia, or elsewhere. The technical legal mechanics mattered, but so did the larger world. But legal history is not necessarily done like this elsewhere. In the UK and Europe, for instance, most legal history is written by lawyers and focuses on how legal doctrine changed over time, from within an exclusively legal context. As a legal historian working in that tradition once told me, “I don’t care about social context. I’m a legal historian.” Legal historians in the US do things differently, and this has influenced those of us based in the US who work on South Asia.
UM: Your work is deeply informed by your training as a lawyer. You have turned to certain technical features of the common law to forge methods for your historical analysis. I am thinking particularly of your use of the element of ‘leading cases’ in common law as a methodological tool (2009). You explain that the legal interpretation of statutory provisions by judges in framing legal verdicts/rulings in a selection of cases operate as precedents, and structure the very way in which common law develops over time. Your work is a powerful reminder to scholars that to chart a history of law, it is important to understand the internal logic of how law operates. How important do you think legal training is for pursuing legal history? How can students who are interested in legal history but are not trained in or have a degree in law, acquaint themselves with the technical aspects of legal institutions and processes? In other words, could you share with our readers at Borderlines, many of whom might be interested in pursuing legal history, some advice on how they can start preparing themselves for conducting research?
MS: In the field of South Asian legal history, there are some scholars trained exclusively as lawyers and others trained exclusively as historians, and each side is aware of the limits of their training. The lawyers need to learn to do archival research and to take an interest in the past that is not just about “what led us to today” (or for those at American law schools, how this relates to the US). The historians need to take the time to figure out the mechanics, terms of art, and the intellectual history of law. Each side can work at acquiring the other set of skills and sensibilities by reading and corresponding across disciplines. The risk for pure historians doing legal history is that they will take something as unusual or exceptional that was actually standard and unremarkable within the context of the legal system. But this should come out, with sufficient communication and sharing of work at conferences like the LSA and ASLH. There is also the South Asia Legal Studies workshop that we run in Madison every October (right before the ACSA) where we read each others’ drafts.
UM: Your call for a new methodology in legal history – the study of the processes of litigations and indeed, legal cases – is also a turn to a new kind of archive for writing legal history. In your 2014 monograph Law and Identity you write that “most historians of South Asia rely on state archives for their staple diet of unpublished materials […] To get at case law in all its archival richness, historians of South Asia must look beyond state archives.” Could you tell our readers at Borderlines about the specific character, texture, and materialities of these new legal archives?
MS: By “state archives,” I’m thinking of the standard government-run archives where historians do most of our research—places like the National Archives of India, the regional government archives across India, and the British Library. But as noted above, courts also house unpublished records. All of the High Courts across India are archives, potentially. They can be amazing, although the conditions of work are challenging. It took me 3-4 weeks to get permission to do research at the Bombay High Court (upon arrival, from the Registrar), then a week or two to locate the relevant records in the court complex, and then a couple of months to go through them. When I did this work in 2003-9, no copies or photos were allowed. So I sat at the Bombay High Court for several months and typed out as much as I could from judgment notebooks, after discovering them in the glass bookcases lining courtroom 21. It was extremely hot and humid. There were fans but no air conditioning. I occasionally had to share my space with small animals (I was happier about the cat than the rat!). The leather book covers crumbled into red dust in my hands, despite my best efforts. I probably should have worn gloves and a mask for my health. It was exhausting work. We don’t usually think of historians’ work being physically hard, but it can be. Kalyani Ramnath has similar stories from the Madras High Court. Photographer Dayanita Singh’s book, File Room (2013) captures the mood and the feel perfectly.
UM: Your two most recent articles on abortion law and forensic serology contain fascinating accounts of scientific experts as actors in legal forums. In both the articles, you explore the efficacies of medical and serological sciences with as much care as the limits of these forms of scientific expertise. Scientific techniques are ‘hijacked’ by litigants to suit their purposes. Experts risk losing their professional credibility on account of alleged malpractice. I do not want to spoil the articles for our readers, because they practically read like thrillers! What draws you to the limits of expertise?
MS: Both my forensics book project and my Parsi study have circled the theme of experts, or more broadly, professionals, especially South Asian figures in a colonial context. How did racial, cultural, and religious identities intersect with professional ones? On the one hand, primary sources produced by professionals were often detailed and well preserved, comparatively speaking. These were elites working within state systems. But on the other hand, documents produced by professionals—whether in law, science, or medicine–tended to be very tight and dry. Neither judges nor the chemical examiners, for instance, usually said anything more than was strictly necessary for their decisions and annual reports. They very rarely editorialized. So while these figures’ professional status has made them visible and accessible to me as a historian, I also find the self-restraint that is classically part of their “professionalism” to be frustrating!
UM: In your 2019 article on Imperial Serology in British India, your readers got a glimpse of the exciting work that you are doing on the history of forensic science in India. How did you turn to the history of forensic science? Your book looks to introduce a set of absolutely fresh themes in Indian legal history and the history of science and medicine alike. What do you think the history of forensic science in colonial India will contribute to our understanding of the relationship between law and science in a colonized society?
MS: During my research at the Bombay High Court for my first book, I came across the Parsi Chief Matrimonial Court notebooks for the late colonial period. These were remarkable sources, and they featured 47 medical experts giving testimony on pregnancy, impotence, virginity, venereal disease, domestic violence, and forced abortion. My 2020 abortion article started there. But I also started thinking more about the interplay between law and science—two of the most important knowledge-production systems in modern societies—and what difference colonialism made. I’m still writing my forensics book, but right now what I see is a turn to scientific experts to avoid “native mendacity” in the courtroom (a phenomenon noted by Elizabeth Kolsky), but also a heightened awareness of the risk of wrongful convictions in cases among South Asians because of this same stereotypical idea that colonized people lied. Pulling in the opposite direction were aspects of criminal procedure that made science seem misleadingly simple in a colonial context. A difference of opinion between battling experts—like disagreement among the top imperial judges—could undermine British science, law, and authority in the empire.
I also want to think more about the relationship between truth-telling and diversity specifically. There is fascinating work by literary scholars on the trickster figure in multicultural settings, and on dissimulation as a protective device during the English Reformation. How did scientific and legal systems assess the truth value of claims made in culturally diverse, colonial contexts? I want to entertain the possibility that there may have been falsity, but without buying into the racist and sexist explanations of British officials. Other things may have been going on, including resistance, coercion, and legal pluralist interactions between normative systems. That’s the first half of the book. The second half explores falsity generated from within forensic systems themselves, including “suspect sciences,” the contest between adversarial and inquisitorial principles, and expert misconduct (including corruption).
In the forensics project, I am exploring tensions between groups of professionals when they interacted in the courtroom—how adversarial lawyers and truth-seeking “men of science” often clashed, how Britons’ fear of racial embarrassment in the colonial context complicated the quest for scientific and legal truth, and how experts in new forensic fields (like handwriting analysis) struggled to convince skeptical judges of the “scientificity” of their work.
UM: You had noted in your 2015 article that in the past few decades, the legal history of India has developed along two somewhat divergent trajectories: that academics based in the US, tightly in dialogue with US legal history and law and society movement work around a set of research questions, that set these works apart from scholarship on law and history that are produced by historians, anthropologists and sociologists based in or, indeed, trained in India. You have also written about how the field of legal history in South Asia is framed by the imbalance of wealth and access to resources between the global North and South. The unequal material conditions of scholarship have sharpened in recent years: public universities in India, long neglected by the state, have now come under systematic attacks under the current BJP regime. What impact, do you think, this heightened divide and inequality will have on the field in the coming years? What are the concerns that the community of scholars working on law in India should be collectively thinking about?
MS: For the past couple of decades, it has not been unusual for Indian scholars (especially coming out of Jawaharlal Nehru University or the National Law School) to come to the US or UK for their doctorates, and then to return to India to take up faculty positions. I worry that the BJP government’s assault on higher education (particularly JNU) is going to reverse this trend: scholars will leave India and stay abroad for their entire careers. The reverse brain drain will revert to a brain drain. It will be a tragedy if people feel that they must leave India to make Indian history a career—with proper resources, time, and freedom to produce solid research. Contributing to this pattern is the growing digital divide. On the one hand, amazing new open-access resources are becoming available every day. Internet Archive, the Legal Information Institute, Indian Kanoon provide mountains of primary sources for scholars in my field. Some authors are publishing on an open-access basis, too, especially in the UK. But at the same time, powerful databases like HeinOnline, LLMC Digital, and Gale’s Making of Modern Law are only available by subscription. I am not aware of lower subscription rates for institutions in the Global South. Take the Proquest Historical Newspapers Times of India database, which allows you to search the newspaper from 1838 to 2010. I cannot do my research without it. I have yet to hear of an Indian university library with a subscription. In other words, politics and technology together are widening the gap between the kinds of research one can do if based in India or the US.
The global community of scholars should think about how to share resources on an open-access basis. The fact that we’re getting better at holding conferences and workshops online—because of the pandemic—is promising because it means scholars in South Asia may have better access to academic events in the Global North. Visa denials to South Asian scholars planning to attend US conferences seem to have risen in recent years, so the online format also helps there. There should be differential rates in conference registration fees (by the country of one’s home institution), and there are the time-zone challenges, of course. The LSA recently held its 2020 annual conference virtually, and it was a great success, with 1,428 attendees from 47 countries.
UM: I want to take this opportunity to bring our readers’ attention to a website that you have maintained since 2010: “South Asian Legal History Resources.” It offers the most comprehensive list of resources that are available online for researchers to browse through, with meticulous notes on how to navigate a range of legal records – textbooks, law reports, statutes. Since you started it in 2010, it has been an asset to the South Asian legal history community. For those of our readers who have not had the opportunity to check out the website, I would highly recommend a visit (or two!). Could you tell us how the project started? What inspired you to build the website and what has the journey of sustaining the project been like?
MS: My website turns ten in August 2020, in fact! I have spent a lot of time on it. I am perpetually behind on updating the bibliography (apologies to authors for that). But all sorts of wonderful interactions have come out of it. Some of my favorites: hearing from the descendants of South Asians at the Inns; discussing historical plausibility with Sujata Massey for her Perveen Mistry detective novels; and being invited to write magazine articles like this on the basis of a blog post. I am also on Twitter (@mjsharafi) and I am a blogger for the Legal History Blog. These platforms cross-fertilize in fun and interesting ways. I started my website because I was receiving e-mails asking how to use legal primary sources. So I figured I’d post my thoughts on a website to share this information with more people. For the first four years, I only posted research reference tools. I started the blogposts after I got tenure in 2014. I try to be slow and steady there, posting once a month. Many people start blogs and then dry up. I usually blog about things that won’t necessarily make it into an article or book. I love having a venue for just a little thing. As the legal historian Bob Gordon once said to introduce a talk, “This is part of a much smaller project!” These weird scraps would not otherwise get to meet the world, like this on a family of lawyers and judges called the Spankies or this on a poisoning case involving skin-lightening in utero. I also try to post timely things. I recently posted this on research people can do during the pandemic—when the archives are shut and we only have online sources (hint: use the law reports!).
UM: Your academic training, research, and career straddle the fields of law and history. You majored in history as an undergrad in Canada, at McGill University before moving to the UK to study law at Cambridge and Oxford, respectively. After earning a BA and BCL (the UK equivalent of a JD and LLM) you joined the History Department at Princeton University as a graduate student. You currently teach history, legal studies, and law courses at UW-Madison. Did you develop an interest in law while studying history as an undergrad or was law an independent field of interest that fed into your study of history as a student? What led you from history to law and then back to history again as a legal expert?
MS: I loved my undergraduate history studies at McGill. I had wonderful teachers, and I was given lots of freedom to choose my courses and projects. For instance, for my senior thesis, I worked on McGill’s collection of medieval European manuscripts. Prof. Faith Wallis spent an hour or two every Friday afternoon with me going through the collection. I produced a written senior thesis but also did an exhibit in the lobby of the main humanities and social science library. People came to see the rude marginalia doodles. It was fantastic. For my next degree, I shifted to law probably because I had done so much debating in high school. In North America, high school debate is training for law school. I had another fantastic teacher named Douglas Buchanan who coached our team for 2 days per week after school for 4-5 years, even though I did not even go to his school. I dedicated my first book to his memory (he died in 2007). But I must admit that I found the first law degree tough, especially as relevance seemed more important than intellectual curiosity. There is a lot of hard slogging in a first law degree. There is a lot of very dense and technical material and the analytical skills are different from what you develop in BA studies. And there are lots of required courses. I found it difficult, particularly as I had a very traditional, “black-letter law” education at Cambridge. Once I had gotten through the first law degree, though, I realized that I had an interesting set of tools and materials at my disposal—systems of rules that differed across time and place—and that I could analyze them as cultural artifacts. I studied law for one more year after that, getting a BCL at Oxford (a program that allowed more room for scholarly inquiry). And then I happily returned to history, with law as the object of analysis. Doctoral studies at Princeton were a dream come true. I had a wonderful cohort of classmates (rigorous and generous at the same time) and I learned so much from US legal historian Dirk Hartog especially. Since 2007, I’ve had the pleasure of teaching law courses every fall (Contracts I) and undergrad Legal Studies and History courses every spring (Legal Pluralism, History of Forensic Science). I’m very lucky to have this set-up at UW–Madison, which is unusual and so well suited to my background and interests.
Mitra Sharafi is a legal historian of modern South Asia. She holds law degrees from Cambridge and Oxford (the UK equivalent of a JD and LLM) and history degrees from McGill and Princeton (BA and PhD, respectively). She has taught at the University of Wisconsin–Madison since 2007. Her publications include Law and Identity in Colonial South Asia: Parsi Legal Culture, 1772-1947 which was awarded the Law and Society Association's J. Willard Hurst Prize for socio-legal history in 2015. Sharafi is now working on her second book project, "Fear of the False: Forensic Science in Colonial India." Her website “South Asian Legal History Resources” turns 10 this August.
Uponita Mukherjee is completing her PhD at MESAAS in Columbia University. Before coming to the US, she finished her Masters and M.Phil in modern Indian history from the Centre for Historical Studies, Jawaharlal Nehru University, New Delhi. She specializes in legal history and history of science. She studies 19th-century legal ideas of evidence and the inter-disciplinary practices of criminal detection in British India. For her research she mines dusty files in government archives, leafs through 19th century treatises on legal statutes and medical jurisprudence, and digs into 19th-century (Bengali) detective fiction.
-Prepared with the editorial assistance of Nishat Akhtar.