This is my last post as a guest blogger on Legal History Blog in September 2020. Thank you for engaging with me this past month.
In a report on a Muslim endowment known as a waqf in Penang, a scholar of Islamic law pointed out that certain paragraphs in a report quoting a translation of a will of a Peranakan (mixed Malay and Gujarati in this case) merchant in 1892 contained ellipsis, a series of three points with spaces between them which he took to mean that some part of the will had been deliberately removed. The translator told him that ellipsis punctuation marks were common in academic and legal writing and that parts of the will were omitted in the report as “it conveyed the same meaning.” Certainly, this is common form but did it really convey “the same meaning”? Any detail omitted would change the meaning of the text even if a little. Yet, ellipses are common in translations of legal documents. They are found all over Powers of Attorney, wills and codicils that I encountered in the colonial archives. Every layer of translation necessitated more ellipses in fact such that translations became progressively, and I must say, alarmingly, shorter. Ellipses is what interest me most. Not in the sense of what is hidden, but what is understood to be missing. How did groups of people across time and space come to understand what is not being said in law reports, and come to accept legal conventions regarding such deliberate omissions? When was the moment that particular words, formats and punctuation were understood to be code for something else? How was this knowledge transmitted, and to whom? Who gets to see the code, and who does not?
One can see why ellipsis invoked this reaction. In 1892, Penang was part of the British colony known as the Straits Settlements. It is easy to ascribe sinister motives to a translation of a document that was originally produced during the British colonial period and whose translation in 2020 still subscribed to colonial legal norms. Already compromises to the institution of the waqf had kicked in with the English Common Law of Trusts, being denied perpetuity, a requirement according to Islamic law.
While close to submitting my book manuscript last year which became Fluid Jurisdictions: Colonial Law and Arabs in Southeast Asia, I read Katharina Pistor’s The Code of Capital: How the Law Creates Wealth and Inequality. I came to realize that a lot of things that postcolonial nation-states inherited were not substantive laws necessarily, but rather laws that have been encoded in specific ways. These coded forms, including English law of trusts at the confluence of law and economics, had been applied to waqfs during the colonial period. A trust is a form of preemptive asset-shielding, Pistor writes. These codes are what prove to be resilient and useful through time. As cadres of legal practitioners painstakingly gained knowledge of legal codes, they understandably became more invested in preserving them. We come to rely on these legal experts who were able to decipher these established codes, much like how the translator in Penang in the middle of 2020 informed his colleague about the use of ellipsis as a norm of legal reporting while the latter was much more concerned with the Islamic law of waqfs which had been coded as a modified common law trust 128 years before in Penang.
The most interesting stories lie between the dots, historians might be tempted to suggest but the dots collectively encode so much information such that they are endowed with the capacity to protect and act in specific ways. In order to view the extent of this capacity, legal historians have to adopt a broad view across legal domains and jurisdictions to tell more unexpected stories.
Pistor, Katharina. The Code of Capital: How the Law Creates Wealth and Inequality. Princeton, NJ: Princeton University Press, 2019.
Nurfadzilah Yahaya