Maine (and Weber) Against the Grain: Towards a Postcolonial Genealogy of the Corporate Person
| Published date | 01 March 2013 |
| Date | 01 March 2013 |
| Author | Ritu Birla |
| DOI | http://doi.org/10.1111/j.1467-6478.2013.00614.x |
JOURNAL OF LAW AND SOCIETY
VOLUME 40, NUMBER 1, MARCH 2013
ISSN: 0263-323X, pp. 92±114
Maine (and Weber) Against the Grain:
Towards a Postcolonial Genealogy of the Corporate Person
Ritu Birla*
This essay forges ties between postcolonial methodologies and the
economic sociology of law, emphasizing the history, legal production,
and governmental habitus of that modern abstraction called `the
economy'. It pursues three interrelated sites to do so: the categories of
government and economy, via Weber and Foucault; classical legal
discourse on corporate or group life and its temporizing from status to
contract; and the relationship between the legal subject and homo
economicus, investigated and telescoped through the figure of the
corporate person. Empirically, focusing on India as a lens to highlight
a colonial genealogy of neoliberal modernity, the analysis animates
these themes via the history of colonial market governance, its
relationship to the `embedded' practices of vernacular capitalism, and
emergent forms of economic citizenship today, seen through Indian
case law on the corporate person and corporate veil-piercing.
Let me begin with a note of thanks to the editors for posing the challenging
and compelling task of articulating (if not comprehensively, then
provocatively) a postcolonial approach to the economic sociology of law.
At its ground, a postcolonial deployment of the economic sociology of law
would examine the legal regimes and the political economies of modern
colonialisms and colonized societies. It should do so, I would like to argue,
not only as an empirical project, to `fill in' the big historical picture of law's
role in economic life with new global case studies and translations of culture;
it should also seek to chart colonial genealogies of contemporary forms of
governing more broadly, which direct flows of capital, from fictive and
speculative, to material and human. `Postcolonial' is therefore posed here as
a method of reading the present, one that highlights, through an historical
engagement with the techniques and limits of modern colonial governance,
92
ß2013 The Author. Journal of Law and Society ß2013 Cardiff University Law School. Published by Blackwell Publishing
Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
*Department of History and the Centre for South Asian Studies, University
of Toronto, Toronto, Ontario M5S 3G3, Canada
r.birla@utoronto.ca
the necessity for loosening the borders of law and economy studies. This
would mean addressing socialities that do not neatly fit into the classic
binaries of modern political and economic liberalism ± public/private, state/
civil society, and state/market ± and at the same time, detailing the genera-
tive power of both legal and economic fictions. There is an extensive and
diverse archive of nineteenth- and twentieth-century colonial histories to
mine for such a project. Here, my analysis is informed by the study of late
colonial India, a site that opens a genealogy from colonial liberalism (both
political and economic) to contemporary neoliberalism, one that may help to
problematize a world where markets govern and governments market the
nation as a brand. Colonial genealogies of modernity must at once consider
discourses invested in the velocity of free trade alongside the constraints and
weight of the new security state, a project ripe for critical approaches to law
and economy.
What can histories of colonial governmentality bring to the study of law
and economy? Motivated by this question, this essay foregrounds three
interrelated sites for mapping postcolonial approaches to the economic
sociology of law: the category and practice of government; the problem of
corporate or group life and its temporizing; and the relationship between the
legal subject and homo economicus, investigated and telescoped here
through the figure of the corporate person. To begin, I emphasize that the
thing we call `the economy' has a history, and that colonial formations
expose its production as an abstract object of governance and indeed as a
legitimating origin of sovereignty. This way in to the study of law and
economy, and indeed of the staging of sovereignty as economy, highlights
colonial contexts for key insights on contemporary neoliberal reflexes, most
broadly, the consistent deployment of `the economy' as a stand-in for `the
public', a process evident foremost in nineteenth- and twentieth-century
colonial contexts, where governance managed subjects, not citizens.
1
Colonial histories demand that we unpack the complicated historical-
philosophical nexus of law, agency/instrumentality, and subjecthood/subjec-
tion and so call for a robust reading of law and governmentality. They also
grapple with the temporalities and spatialities of what Karl Polanyi called
embeddedness, a term which points to socialities that are not fully captured
by the modern abstraction of social relations as exchange-relations, the
recoding and flattening of deep layers of social meaning into exchange-
values.
2
Said differently, the economic sociology of law, informed by
93
1 For more on law and sovereignty as economy, see R. Birla, `Law as Economy:
Convention, Corporation, Currency' (2011) 1 UC Irvine Law Rev. 1015±37. On
historicizing `the economy' and the colonial displacement of the public as market, see
R. Birla, Stages of Capital: Law, Culture and Market Governance in Late Colonial
India (2009).
2 K. Polanyi, The Great Transformation (1957/1944). To describe embedded social
relations, Polanyi's reading evokes a nostalgia for a pre-industrial gemeinschaft, and
deserves a critical eye on that account, for his temporal politics affirm master
ß2013 The Author. Journal of Law and Society ß2013 Cardiff University Law School
To continue reading
Request your trial