Abstract

Excerpted From: Ahmed Memon, 'English in Taste, Indian in Blood’: Caste Hegemony in the Making of British International Legal Thought, 12 London Review of International Law 23 (March, 2024) (191 Footnotes) (Full Document)

The concept of caste has been recognised primarily within international legal forums in the form of a liberal human rights approach. With the exception of civil society activism, this recognition which dates back to the League of Nations has remained relatively underexamined in the international legal sphere. Taking its cue from the Convention of the Elimination of Racial Discrimination, the current conversation on caste frames the issue as one to be dealt with by international human rights mechanisms. Beyond liberal concepts of human rights, even critical conversations within the field of international law focus on caste as an issue to be resolved or studied through the involvement of global governance mechanisms. In the past few decades, caste discrimination, particularly within the South Asian subcontinent--most notably in India--has been the focus of critical literature on development in the Third World, UN special rapporteurs, UN treaty bodies and most notably the UN's Universal Periodic Review.

In this article, I suggest that caste ought not to be viewed simply as a form of social discrimination that can be solved through a human rights or constitutional framework of legal protection. In this mode--as with other human rights abuses--the international legal system is used as a vehicle to address, put a spotlight on and shame countries as a tactic of internationalisation of a localised social issue. Instead, I ask if and how caste was intertwined with early understandings of the international legal order, serving as part of global racialised hierarchies. This argument thus utilises TWAIL methodologies to show how specific forms of imperialism are co-constitutive of the making of international legal conceptions of world order. This exploration also contributes to the crucial literature on race making as central to early developments of international law, where the question of how caste fits within these developments has not yet been explored.

In this particular instance, I explore the histories and theories of caste within the subcontinent as part of British international legal thought. This approach goes beyond histories of Victorian conceptions of international law in recent years by critical historians of international law. By focusing on caste, I emphasise and build on Burra's suggestion to take into account colonialisms within colonialisms and argue that 'native’ elites have a more complicated relationship to the development of international legal regimes than previously recognised by work on international legal history within the subcontinent. In the context of broader histories of international law, this has been suggested in the case of Latin America. Similarly to these histories that echo the complexity of racialisation through the role played by native elites in international law-making, I focus instead on the system of caste in the context of the subcontinent. The purpose of this article is to further this argument from the vantage point of the Indian subcontinent in specific relation to Victorian conceptions of international legal order.

What this article does not do, however, is centre anti-caste figures or histories of resistance, or specifically point to Brahmin/Upper caste leaders to deromanticise them by unveiling their participation in and perpetuation of caste violence and the caste system. Instead, it focuses on deconstructing the caste-blind narrative of international legal history during this period. I aim to open up the conversation for further provocations that follow these threads towards an anti-caste analysis of race and caste. More importantly, this article takes the primary concern of anti-caste theory--caste as the central oppressive force in the subcontinent--as a springboard for a more complex question: not only the relationship between race/racialisation and caste but the place of caste in the history and theory of international law.

In the argument that follows, I show how the caste hegemony that existed in pre-colonial subcontinental society was further ingrained and re-entrenched within the development and deployment of British international legal thought throughout the colonial encounter in the nineteenth century subcontinent. This entrenchment of caste further naturalised the category of race as part of a civilisational hierarchy. The entrenchment and then naturalisation of caste into racial hierarchy in British colonial governance also became part of how the international legal order as a racialised hierarchy was conceptualised by British colonial administrators and international legal jurists in the twentieth century.

In the first part of the article, I explain the social category of caste as a central social reality of the pre-colonial subcontinent. In the second section I explore how the British colonial encounter with the subcontinent and its construction of the relationship between caste and race was developed by other European colonial powers. In particular, I look at how European notions of racial hierarchy helped to naturalise the idea of 'caste’ as a natural social order of the 'subcontinent’ which is part of its 'culture’ and 'native law’. In explaining this naturalisation of caste, I focus specifically on the role of key early anthropologists who acted as colonial officers, known as Sanskritists and Indologists. In the third section, I explore how the early work of these colonial officers drew connections between racial hierarchy and caste supremacy, making them a 'natural’ part of the subcontinent. I suggest this work became not only relevant to but a key part of how international legal order was understood as a racialised hierarchy in the nineteenth and twentieth centuries. In particular, I trace how British international legal theorists both drew on discourses on the naturalisation of caste and racial hierarchy in presenting their vision of British international legal order and also then influenced how colonial officers and colonial governance systems operationalised their account of caste and racial hierarchy in the subcontinent.

In the concluding section, I explore what this redescription of the place of caste within international legal history might mean for contemporary discussions on race, imperialism and international law, specifically in the field of critical international law and Third World Approaches to International Law. Finally, I consider how this redescription of the linkages between racial hierarchy and caste supremacy can create new political and intellectual possibilities for a post-race and post-caste discourse.

[. . .]

The colonial encounter of the British Empire--first through the commercial company and then through the Empire itself--is a negotiation of overlapping powers in which the native dominant caste elite ultimately continues to thrive in its caste dominance while gaining capital through subsuming itself under the racialising logic of the coloniser. Being closer to British values and civilisation was also particularly important to the maintenance of caste hierarchy and superiority since the dominant caste were deemed 'closest'-- though never equal--to British civilisation.

It is also crucial to point here, as caste historians observe, that the same ideas used for imperial governance by the British and caste elites to continue their dominance were also then used to create resistance movements by the marginalised caste people. 'Dalit’ politics, as Anupama Rao points out, used ideas of minority representation, access to public office, and the army as a way to seek their own self-determination in a period where dominant caste elites had already secured political and administrative positions in the colonial government. Thus, the reliance on broader notions of 'rule of law’ or liberal legal notions like civil rights and protection became and remain important avenues for discussing the relationship of caste discrimination and legal reform. However, the question of whether juridification of caste discrimination also limits anti-caste aims and at times perpetuates caste is often left unanswered. In this sense, it is also possible to look at the argument of this article as pointing to a double edge of Dalit politics: as a form of emancipation and limitation that is also inherent within the paradox of international law in the twentieth century, that is, the offer both of hope and of doubt.

As to international legal history, what remains missing in conversations on race and international law, and distinctive to the subcontinent, is how exactly the 'dynamic of difference’ fits within already differentiated pre-European society. Here the 'dynamic of difference’ was not, I argue, simply a case of racial differentiation but of placing the internal difference of caste into the broad global hierarchy of difference, namely race. This relationship between caste and race within a history of the early law of nations and Victorian international law is particularly important as it is also the time period which foreshadowed the rise of the international society, the imperial nation state and the formalisation of international law as a codified body of jurisprudence.

Following this, it is worth then thinking and perhaps problematising the concurrent emergence Dalit politics during this very time period, keeping in mind the groundwork laid by the British and upper-caste communities in engraving, entrenching and juridifying caste into a liberal imperial order. This is particularly important given the critical arguments within Dalit political philosophy that imagine the postcolonial 'secular’ state of India as a Brahminical political and legal order. Anti-caste scholars have continuously pointed out the limitations of subaltern and postcolonial theories. In particular, scholars such as Kancha Illiah Sheppard, Gopal Guru, and Gail Omvedt point towards a lack of focus on social movements led by marginalised caste leaders and communities, as opposed to Brahmin and upper-caste leaders. In thinking about the historical linking of caste within the broader racial hierarchy of international legal order, we can also rethink and reframe contemporary politics of the subcontinent and the issues of Dalit, Adivasi and Pasmanda resistance, taking into consideration the presumptions and limitations that form when thinking only through the lens of a legal liberal world order.

This reconceptualisation of the construction of race embedding caste within it--thereby both inscribing its violence in the emerging global legal order and concealing its operation through liberal notions of state governance--can lead to other possibilities of addressing inequalities of caste and race. In a sense then, my argument also opens up opportunities for us not just to think about the role of race in international law, but how to think about addressing other forms of discrimination beyond a siloed form of liberal human rights, or ontological categories that need to be fixed, and instead understanding them as constitutive of racial global order.

The nature of race and caste, though important to understand separately, needs also to be understood as embedded through the British colonial encounter within international legal history. Here, we have further space to explore alternate epistemologies from the Global South that do not necessarily homogenise the history and sociology of the 'Global South’. This makes way for us to think more sensitively about Dalit, Adivasi and Pasmanda approaches to international legal history and international legal theory can be consistent with theories of race and international law. One example would be anchoring Ambedkar's thought on 'annihilation of caste’ beyond interpretations of Ambedkarian thought within constitutional reform in a liberal legal order. Another intervention could be that we might give more consideration to Periyar's approach to the construction of the 'village’ in broader anti-caste developmental thinking. The inclusion of Dalit Feminist theory, for example, has the ability to make its mark in telling us about the anti-caste movement's contribution to anti-colonialism in the subcontinent--without objectifying caste as a fixed category of culture. Adivasi thought on developmentalist history, counter-narration and counter-visuality could be explored in conjunction with the role of caste and race in the making of international law. Pasmanda thought complicates liberal narratives of minority rights further in both the context of postcolonial Pakistan and India, pushing us to think beyond theories and critiques of human rights from the location of peripheries within the Global South.

These possibilities do not simply complicate, but enrich, the furthering of TWAIL scholarship. Taking up the attention to caste as interlinked with the construction of race allows us to explore these possibilities through specific contexts and local histories of the subcontinent and leads to new pathways of thinking about how international law is developed, actualised and adopted within these contexts. Existing interventions within TWAIL and broader critical international law that rely on subaltern studies, postcolonial feminist theory and critical literature on law, gender and development, while addressing questions of race and even Indigeneity, do not contextualise it within the central social category of the subcontinent: caste. This article therefore, most importantly, gives critical international legal theorists and historians the possibility of not essentialising processes of racialisation in a way to subsume or undermine caste as a social construction, but to understand how their histories intersect and continue to connect in contemporary forms. It allows us to think further on how the abolition of race and the annihilation of caste are prefigurative liberatory goals that do not contradict each other, but need to be understood together.

Cardiff School of Law and Politics, Cardiff University.