Untrodden Field
“It seems obvious, indeed imperative, that American research is needed in the law of South Asia. Every effort should be directed toward the training of adequate personnel, the stimulation of interest among American legal scholars, the support for studies through adequate grants, and the collection of necessary materials, in order that this untrodden field may be adequately explored.”1
These are the closing lines of a two-page paper called “Law in South Asia,” written in 1949 by A. Arthur Schiller, a Roman law professor at Columbia who also worked on Indonesian customary law. He wrote the paper for a meeting of American scholars trying to take stock of where their work on Asia stood after the war. This is the second of two posts I’m writing about that meeting. The first post, a few days ago, was on a companion paper by Richard Ettinghausen of the Freer Gallery in Washington, who had been asked to do the same kind of audit for Islamic studies of Southern Asia. The two scholars were looking at much the same emptiness in American postwar scholarship, but they came to opposite conclusions. Ettinghausen thought nothing could be done about it. Schiller, as you can see from the lines above, thought a great deal could be, and should be. A note on terms before going further: in 1949, ‘South Asia’ and ‘Southern Asia’ covered what we would now call South and Southeast Asia together, and Schiller’s “law in South Asia” includes Indonesia, Malaya, Burma, the Philippines and Indo-China alongside India and Pakistan. The split between the two regions had not yet hardened.
What struck me most in Schiller’s paper is the moment at which he names the entire American body of work on the law of Southeast Asia, and the body of work turns out to be his. The sentence runs: “Outside of the Philippines there has been very little research on the law of South Asia. Several studies, completed and in progress, by A. A. Schiller are concerned with various aspects of Indonesian law. This appears to be the extent of American effort devoted directly to the law of South Asia, so far as a fairly comprehensive bibliographical search reveals. The third-person voice, which academic surveys use as a matter of convention, softens the gesture a little, but the sentence is doing what it is doing. The man writing the survey is the only American scholar in it, which is why the survey is so short. The two American writers on Philippine law that Schiller does name, before arriving at himself, get briefly set aside. R. F. Barton and H. O. Beyer, he points out, are “better known as ethnologists,” and the historical outline of Philippine law by B. S. Ohnick and E. E. Selph is allowed to stand as the one piece of American legal writing on the subject,2 A footnote at the bottom of the page deals with everything else in a single sentence: “American practitioners in Manila have written lawyers’ manuals but these can scarcely be termed research studies.”
Against this small American showing, Schiller’s account of the European traditions is firm and admiring. Sir Henry Maine, the Victorian comparativist of Indian law, is “perhaps the best known among the score of English jurists who have intensively studied the law of India.” The University of Paris produces a doctoral dissertation or two on the law of Indo-China each year. The Dutch at Leiden, under Cornelis van Vollenhoven and, later, Barend ter Haar, the two senior figures who had built up an entire school of adat studies, adat being the customary law of the various peoples of Indonesia, have “delved deeply into the intricacies of the adat (indigenous) law of the various peoples of Indonesia.” Van Vollenhoven’s three-volume Het Adatrecht van Nederlandsch-Indië mapped the customary law of the archipelago across some nineteen rechtskringen, or law areas, and ter Haar’s textbook Beginselen en stelsel van het adatrecht, published shortly before the Japanese interned him in 1942, was the book through which a generation of Dutch colonial officials and Indonesian jurists learned the subject.3 On Schiller’s reading, the European legal academies of the region have generations of work behind them, while the American one is, on his own showing, just him.
What he wants for the American academy is what the European ones already have. The phrase that does the most work in his closing call is the one I quoted at the top: this untrodden field needs to be adequately explored. Untrodden and explored are nineteenth-century frontier words, the vocabulary of European expeditions describing a continent waiting to be entered, and Schiller is using that vocabulary, in 1949, for an American academic enterprise. The landscape he wants Americans to explore is not untrodden at all. The Dutch have been working on adat for more than fifty years, the French on Indo-Chinese law for longer, the English on Indian law for over a century. The field is trodden by everyone except American legal scholars.
The contrast with Ettinghausen makes sense in this light. Ettinghausen, at the Freer, was looking at a field whose centre of gravity was art history and religious studies, and he came away convinced that no amount of money or new posts would produce a Wilfred Cantwell Smith (the senior scholar of Indian Islam I wrote about in the first post). Schiller, at Columbia Law, was looking at a field that could in principle be built by hiring lawyers and giving them archives, and the building is what he calls for. Some of the difference between the two is disciplinary location, since you can grow a legal field by recruitment in a way you cannot grow art history or the study of religion. Some of it is also temperament.
The line in Schiller’s paper that has stayed with me most, though, is the one I have not yet quoted. In the middle of his admiring paragraph on the European traditions, he drops in a short remark: “with one or two exceptions all these scholars have concentrated on their own particular colonies and have not studied neighbouring legal systems.” He says it in passing and moves on, but it points to something his paper never picks up. The Dutch wrote about Indonesia, the French about Indo-China, the English about India, and each tradition stayed inside its own colony. The legal systems themselves did no such thing. Islamic law moved between Singapore, Batavia and Aden, carried by merchants and judges and the contracts they wrote. Different versions of adat travelled across Malaya and the southern Philippines. The Anglo-American common law that Schiller notices flourishing in four colonial holdings travelled along the same shipping routes as the traders whose disputes it settled.
Schiller was well placed to see this. His own working life crossed several legal frames at once: Roman law as his main training, comparative African customary law as a secondary specialism, and Indonesian adat as a third. The year before this conference, he and the anthropologist E. Adamson Hoebel had translated ter Haar’s textbook into English, which puts his survey in a more particular light. He was not reporting on the Dutch tradition from outside. He had just spent a year inside it. The recruiting call he makes at the end of his paper can be read, in this light, as a call not only for American scholars to catch up with the European traditions but also, more quietly, to do something with those materials that the European traditions had not yet done themselves.
A. Arthur Schiller, "Law in South Asia," paper prepared for the Conference on Southern Asia Studies, December 2–4, 1949, p. 2, John Fee Embree Papers, MS 976, Box 3, Folder 19.
Schiller, "Law in South Asia," p. 1, citing R. F. Barton, H. Otley Beyer, B. S. Ohnick and E. E. Selph as the named American writers on Philippine law
Cornelis van Vollenhoven, Het Adatrecht van Nederlandsch-Indië, 3 vols. (Leiden: E. J. Brill, 1918–1933); Barend ter Haar, Beginselen en stelsel van het adatrecht (Groningen: J. B. Wolters, 1939), translated as Adat Law in Indonesia, ed. and trans. E. Adamson Hoebel and A. Arthur Schiller (New York: Institute of Pacific Relations, 1948).