Writing By Firelight
Constructing an Enduring Consciousness of Post-Coloniality
Prologue – On Firelight
Edward Thompson and the Subaltern Studies group share the creation of candlelight histories based on centuries-old faded paper documents and focused more on the masses than on the elites.1 Firelight is warmer than candlelight but can also be very seductive. There are two senses to my use of firelight here. First, Papua New Guinea’s recent colonization meant that the transition from colonial to post-colonial was a very condensed process, which enabled a rapid forward-wind mode of observation of the history of transition.2 We as observers participated in the construction of our own consciousness. The second sense of firelight was of direct engagement with the ordinary people really and metaphorically sitting in houses and sharing sweet potatoes baked in the fire. The engagement was a combination of ethnographic method and active identification with perspectives and issues of the people. However, both senses of firelight have a problem. Firelight is both warmly seductive and, in its flickering quality, not a great medium for readers or writers. The headiness of being involved in the rapid progress of history can be very beguiling. The warmth of the firelight can seduce too close an identification with the perspective of the subject without full consideration of the operative context.
This chapter suggests that our intimacy in sharing the fireside with Papua New Guineans, working socially, culturally, politically with them, has remained an enduring basis for intellectual and political responses to post-coloniality through various theoretical avatars. Peter Fitzpatrick and I shared with others this transition from colonial to post-colonial in Papua New Guinea (PNG). Peter went there from Belfast in 1970 and stayed until 1976, a period that included the transition to independence. He worked on a research project for the Commonwealth Law Foundation and then for the government, subsequently moving to the Faculty of Law at the university. I was in Papua New Guinea from 1973 to 1978, being mainly at the University of Papua New Guinea but undertaking significant amounts of work for the government, including work on the reform of land law and subsequently as Secretary of the Law Reform Commission.
Fitzpatrick’s ‘fireside’ engagement commenced with a research project on forms of PNG economic organization. His methodology was ethnographic, but involving a reflexive transgressive form of participatory engagement with people who were being subordinated. Yet, in accord with Foucault’s notion of transgression, a transgressive methodology requires an understanding of limitless potential for action, but also the power of the norm, to define, to constrain and limit the transgression (Foucault 1977: 35; Fitzpatrick 2008: xiii). This involved a quality of self-critical awareness of wider contexts within which any engagement operated.3 Among his most significant engagements were observations of PNG approaches to economic work, a critique of legal and administrative restraints on economic activity that led to ten policy papers on different aspects of the ‘informal sector’ in collaboration with Loraine Blaxter, legislative proposals for recognition of new legal forms of economic enterprise, as well as working with community enterprises to initiate alternative forms such as the Tuki ni Buka community development corporation (Fitzpatrick 1980: 6–7, 178–80; 2000; Fitzpatrick and Southwood 1976).
His intellectual engagement is evidenced in Law and State in Papua New Guinea (herein Law and State) (Fitzpatrick 1980) and The Political Economy of Dispute Settlement in Papua New Guinea (Fitzpatrick 1982). At first glance the fireside concerns and intellectual approach of these earlier works seem far removed from his more contemporary publications including the The Mythology of Modern Law (herein Mythology) (Fitzpatrick 1992a) and Modernism and the Grounds of Law (herein Modernism) (Fitzpatrick 2001) as well as some of his essays published in Law as Resistance: Modernism, Imperi-alism, Legalism (herein Law as Resistance) (Fitzpatrick 2008). Therefore, the ambition of this essay is to trace the links to the PNG ‘fireside’ in these later publications.
Village Courts In Papua New Guinea
And yet I am unavoidably a misreader. In particular, if there was ever a commonality between autopoietic theory and theories of alterity, it is that when one is describing the other, one is describing oneself . . .
For this reason, I feel it necessary to begin with our mutual and different engagements with village courts in Papua New Guinea.
Village courts were introduced in Papua New Guinea in 1973 in the dying embers of Australian colonial rule. These are state-organized courts that are run by elected villagers who solve disputes without recourse to any notion of state law or formalized custormary law (Paliwala 1982; Fitzpatrick 1982; Goddard 2009). In 1977, while researching the courts, I was struck by two encounters: a statement by a ‘bigman’ traditional leader and a case before a village court involving a woman who had run away from her husband. A Kerowagi ‘bigman’ traditional leader said:
We should have got village courts long ago because then there would have been no tribal fights, and development would take place. Look at our place now! It is very peaceful, with no drunkards, stealing, swearing or gambling. People are with their families making gardens, raising pigs, looking after their children and trying to start business. They are thinking of getting loans from the Development Bank and the Rural Improvement Fund. Tribal fighting has ceased completely.
(Paliwala 1982: 227)
In the other case,
A Mendi woman had run away from her husband a second time, in spite of a preventive order from the village court which enjoined both parties to stay together in peace. The husband had beaten her very badly and the wife was brought to the court, where she refused to go back to the husband, saying she would rather commit suicide. The court insisted that she give the marriage another try and ordered the husband to give one cassowary as compensation for the injury. The wife rushed to the river. She did not commit suicide but smashed the fingers of her hand with a stone, saying to the court, ‘You may force me to go back, but I will be no use to him as I can’t dig his garden and can’t cook his food.’
These two responses are part of the attempted colonial construction of postcolonial ordering in Papua New Guinea. The attempted transformation of the ‘bigman’ traditional leader into a post-colonial entrepreneurial ‘economic man’4 obviously seemed to be working, although I noted at the time that he was probably being ‘over-optimistic’ and to some extent was trying to grisim (literally, ‘grease’ me by presenting what he thought I wished to hear). On the other hand, the Mendi woman represents a subaltern feminist resistant voice, but a voice within the ‘traditional’ context.
These two ‘consciousnesses’ – the economic man and the subaltern – endure to the present, taking different forms in different contexts as post-colonial consciousness. Echoes of these consciousnesses can be found elsewhere, including the streets of Baghdad and Kabul.
Both Fitzpatrick, in ‘The political economy of dispute settlement in Papua New Guinea’ (1982), and I, in ‘Law and order in the village’ (1982), traced the introduction of the courts to the colonial need to construct systems that would maintain order in the post-colonial period, reversing previous resistance to any kind of indirect rule. The earlier approach of Governor Murray in 1925 involved an othering of Papua New Guineans through a misunderstanding of the acephalous nature of PNG society and dispute mechanisms. Murray considered that there was no scope for support or recognition of informal dispute settlement mechanisms because there were ‘no chiefs worth talking about . . . no one to rule through and nothing to serve as a foundation’ (1925: 57). Instead, the role of dispute settlers in village societies resided in colonial district officers known as ‘kiaps’. Intelligent kiaps would in fact work with indigenous disputes machinery, while retaining power and control. In the 1960s, Professor Derham of Melbourne University proposed the introduction of a modernized system of law in a report whose findings were not revealed till 1973 (Derham 1960). The modernization involved establishment of local courts staffed by trained Papua New Guinean magistrates who would have some scope for application of ‘custom’ which would be promulgated in statements similar to those favoured in Restatements of African law (Twining 1963). This modernization did not acknowledge existing PNG informal dispute settlement mechanisms. Yet at the death of colonial rule there was a volte-face by two senior law officers, who said of the introduction of a village court system, ‘If it is established now, it could be fitted into the existing court system . . . and by a process of education secure the adoption of certain basic procedures’ (Curtis and Greenwell 1971).
On Political Economy of Law and State
Fitzpatrick’s State and Law in Papua New Guinea has a neo-Marxist political economy framework, but he selects the less fashionable, though more anthropologically charged, articulation of modes of production analysis of Meillasoux (1972) to explain the nature of colonial rule:
The function of state and law . . . is oriented towards the conservation and exploitation of the traditional mode whereas, in the context of the first world, the leading role of law and state was oriented more to the elimination of pre-capitalist modes.
(Fitzpatrick 1980: 2)
In near-echo of his position in Modernism, in contrast to Banaji (1973) and others (e.g. Snyder 1981) who argued for only a singular ‘capitalist’ mode of production, Fitzpatrick urges that the ‘two modes can co-exist and combine with one occupying the dominant, integrative position’ (1980: 6).
The articulation approach eschews the simplicity of an all-encompassing capitalism in favour of complexity of relationships which result from actual observation of cultures within a contextual frame of relationships of power. If we refer back to his engagement with the fireside of community enterprises, community groups, and community dispute settlement mechanisms, Fitzpatrick clearly established the ways in which colonial regulations disabled local enterprises in favour of metropolitan ones whether they involved the selling of food or the establishment of bars (1980: 190–2). In his early engagement he attempted to develop solutions that were located in a critique of modernity, and favoured local ways to meet ‘local needs’. However, in a self-critique he suggests that they lacked comprehension of the overall relationship between metropolitan and imperial interests and the local, and could become easy prey to either benevolent developmentalism on the part of the UN’s Overseas Development Group or the romantic populism of the ‘Melanesian Way’ (ibid.: vii).
In this context the advantage of the ‘articulation’ approach that he adopted is that it provides a context for a structure which would both affirm the local fireside perspective and locate it within world structures. Even more significantly, it explained the complexity of the transition from colonial to post-colonial. In the transition to independence and beyond, the colonial state is relatively weak and less legitimate, but so is the nascent post-colonial state. Thus, there is need for stronger legitimation which can be obtained through renewed ‘conservation’ of the traditional mode. However, the latter has to be further restructured to check the destructive effects of the capitalist mode. Thus, state support for village courts or of ‘traditional’ business groups becomes part of colonial construction of the post-colonial (Fitzpatrick 1980: ch. 8).
Fitzpatrick’s and my intention was to emphasize that the decisions over village courts were made in the context of these colonial and post-colonial needs. It is therefore not surprising that this interaction between the local and global would re-emerge in the contemporary period of globalization of ‘good governance’ strategies fuelled by global strategic and economic interests. Thus, Goddard suggests:
After a period of relative government neglect and intermittent vilification of village courts, a wider community of economic stakeholders has recognised in them a potential to contribute to the ‘law and order’ effort. The recognition has manifested itself in positive attempts to make the village courts’ practice compatible with development policy and to draw them into the coalition of community based institutions supported by the development-aid industry.
Fitzpatrick’s Mythology of Modern Law constitutes a devastating deconstruction of modern law. Whereas Law and State involved a critique of colonial capitalist modernity in its economic impact, and a witness to the endurance, however colonially constrained, of local culture, Mythology challenges the very basis of modern law and establishes its dependency on the othering of savage and uncivilized peoples. Thus, the myth of modernity is dependent on the denial of the savage, myth-ridden other while claiming an enduring universality for itself. However, once the mythical nature of modernity is itself exposed, the ‘savage’ other, our culture of the firelight, can itself be given its proper place.
Intellectually, Mythology is (de)constructed by a heady brew of Lévi-Strauss, Derrida, Foucault, and Edward Said. Politically, Fitzpatrick is not a voice for the global South in the sense used by Twining for Deng, An-Na’im, Ghai, and Baxi (Twining 2009). Nor is his standpoint that of a western jurist ‘who is concerned to make our culture of academic law less parochial and ethnocentric’ (ibid.: 1), laudable as this may be. His is a transgressive voice, of a deconstructor of the culture of the West; his immersive experience of New Guinea gives him the opportunity to gaze from the South.
The idea of articulation of modes of production in Law and State