presence-absence, preservation-destruction: the ocean as legal archive

a talk by

Renisa mawani

My talk today thinks with and through the ocean as a legal archive. For almost a decade, I've been working on a book, Across Oceans of Law, which focuses on the S.S. Komagata Maru, a British-built and Japanese-owned steamship that was turned back from Vancouver Harbour in 1914. In many ways, the ship has become iconic in the Canadian imaginary as stark evidence of the racial power of immigration exclusions. Told as an immigration history, this epic voyage has been narrativized largely through landfall, nation, and territoriality. It is interesting that the ship and the ocean are largely unremarked in these accounts. The book traces the ship through time and space. It follows the actual voyage in 1914 - from Hong Kong to Shanghai, Moji to Yokohama, across the Pacific to Vancouver - and then its outbound passage from Vancouver to Calcutta through the Straits of Singapore. The Komagata Maru is certainly a story of dispossession, death, and displacement, the themes of the workshop. What I would like to talk about is how do we, as scholars interested in history, think and write histories of displacement, death, and dispossession. This question brings me to the archive. 

Gurdit Singh, the man who charted the Komagata Maru, was a railway contractor and rubber planter who lived between Malaya and Singapore. In 1913, turned his attention from land to sea. After a visit to Hong Kong, after witnessing hundreds of Indian men awaiting passage to North America and with no ships agreeing to take them, Gurdit Singh began plans to initiate a shipping company. The Komagata Maru was to be the first ship of four, which Singh would commission to transport Indian migrants and commodities – including iron and steel - across the Indian, Atlantic, and Pacific Oceans. As I have been working on this book, and working with documents and materials from archives in Vancouver, Ottawa, London, Glasgow, and Delhi, I have been thinking a lot about what law and history’s archives look like.

What does it mean to think of the ocean as an archive and the ship and its respective documentation - Lloyds shipping registries, ship manifests, insurance documents, passenger lists, shipwrecks - as historical artifacts and objects, in some cases, sedimented at the bottom of the sea? These are just some of the questions that animate this task to think through the ocean as an archive of both law and history. Let me elaborate.

I

In the early pages of Lose Your Mother: A Journey Along the Atlantic Slave Route, Saidiya Hartman (2007) introduces her readers to the elusive contours of slavery's archive. Slavery's archives, she maintains, is crowded with the documentation of commercial transactions and of bodies commodified as cargo. Despite this voluminous production of texts, these records say little of the African men, women, and children who were captured from what was then the Gold Coast, transported in horrific conditions across the Atlantic, and then enslaved in the Americas. “I searched for the traces of the destroyed,” Hartman writes of her own deeply personal journey to Ghana. “In every line item, I saw a grave” (17).  Hartman's reflections offer a powerful reminder of the absences and inadequacies of all official archives, and particularly those of the transatlantic slave trade. She's clearly not alone. For at least two decades scholars of slavery have drawn attention to these gaps and omissions and how they influence what we know or think we know to be a history of transatlantic slavery. More recently, slavery's archive has featured as a sight of ethical-political and methodological debate on what can be said of the horrors of slavery and what remains unspeakable.

          Viewed from the fields of law and legal studies, these discussions raise additional questions on the limits and possibilities of archival legal history. The archive of slavery, Simon Gikandi (2015) observes, is filled with the sovereign claims of white slave owners. The ledgers, diaries, bills of sale, shipping registries, manifests, and the writings of captain's and crew's, may offer invaluable insights into the institutions and operations of slavery yet they provide little account of those captured, subjected, and killed. From the very start, law plays clear limits on slavery's archive. African captives in the ships and bound to plantations were not permitted to write or represent themselves even though some did. Those who appeared before the law's victims, witnesses, and accused were prohibited from speaking and appear as silences in court books and transcripts. As Gikandi (2015) describes it, “record-keeping and the archiving gesture was a form of violent control…an attestation to the authority of natural history, the key to the ideology of white power..[where] the African could be reduced to the world of nature and the prehuman” (93). If the archive is the commencement and commandment of law, as Derrida (1996) argues in Archive Fever, then to speak of slavery’s archive is not only to speak to silence. It is to locate the force of law in white power (1).

          Critiques of slavery’s archive, as compelling as they are, have not gone unchallenged. For some, the figure of the slave has always already haunted the archive, even in her conspicuous absence (Morrison, 1992). Others have argued, very persuasively, that hundreds of years of transatlantic slavery cannot be consigned to the past. Nor can it be reduced to one archive. Slavery’s afterlives persist in many places (Sharpe, 2016).

          Elsewhere, I've explored how law’s archive writes the authority and legitimacy of law through a double logic of violence: the violence of law and the violence of the archive (Mawani, 2012). Building on these arguments, my talk today reconsiders these dynamics of presence-absence, preservation-destruction, through the ocean as legal archive.

          Oceans cover more than 70% of the earth's surface. However, they are regularly placed beyond the forces of law, politics, and history. For writers of slavery, however, oceans are useful to think with. As Derek Walcott (1986) argues, the sea is not an absence, “the sea is history.” It is a “vault” filled with memories of racial violence that bears witness to the past, shapes the present, while generating imaginative possibilities for the future (364). The ocean, I argue here, is a legal archive filled with texts, objects, and artifacts. From the sixteenth century onwards, European efforts to know, map, and control the world’s oceans produced an explosion of early legal writing in the form of maps, ledgers, diaries, shipping, lists, commercial documents, imperial decrees, and correspondence of various kinds. During the nineteenth and early the twentieth centuries, virtually all commerce, communication, and migration were water-borne, oceanic, and riverine (Johnson, 2013). Thus, the sea has never been vacant. Through the movements of ships and slaves and in the writings of sovereigns, captains, merchants, subalterns, pirates, and fugitive/ freed slaves, the world’s oceans have long been juridical spaces marked by shared, overlapping, and competing legalities (Mawani, 2018). The sea is history. The sea is slavery. The sea is a legal archive of slavery.

          Oceans offer a rich trove of legal, political, and financial writings and has featured prominently in genealogical and academic research. European contests over the Atlantic, to draw one example, were advanced through copious procedures of documentation that centered on navigation, commerce, and enslavement, and was aimed at tracking the movements of ships, people, and cargo. By the 19th century, first in Britain and then in the US, maritime control authorized regimes of racial discipline, surveillance, and legalized violence that expanded and intensified through the transatlantic slave trade. These regimes of terror circulated between sea and land, from ship to plantation, and continue to animate juridical forms today. As an aqueous domain that materializes the tension between what can be known and unknown, the sea calls forth a productive mode of writing archival legal history, one that moves beyond the positivist orientation of retrieval and recovery. Note that the ocean as legal archive may not recover the lost subjectivities of those enslaved but it thus draws our attention to two important elements. The first is the foundational role of slavery in the development of modern law - I am thinking specifically of maritime law and its relationship to the laws of the land - but also to other imaginative possibilities in terms of how we might rethink the archive of law and history. 

II

Foucault's (1972) Archeology of Knowledge may not be a text on law or history's archive.  As a critical method and orientation, archeology directs attention away from textual content to forms of speech. This is significant, as the archive of law and history function not only through content but also through form. For Foucault (1972), the archive is not “the sum of all the texts that a culture has kept upon its person as documents attesting to its own past.” In his formulation, the “archive is first the law of what can be said…it is that which differentiates discourses in their multiple existence and specifies them in their own duration” (128-129). The archive is not a place, text, or record. It is a discursive structure that initiates, arranges, and enables systems of enunciability.

          Foucault's reflections on the archive have generated a range of illuminating responses, mainly from historians and anthropologists, though less so from legal scholars. There are notable exceptions. In her path breaking book Files, late German media theorist Cornelia Vismann (2008) echoes Foucault's concerns of textual form over content. Law and legal studies, she argues, has had very little to say about the substance of law including the textuality that underpins it and informs it. Legal scholars read and analyze records for their meaning, she claims, but pay significantly less attention to the material structure, organization, and form of text and documents. Describing files loosely and capaciously to include texts as diverse as Roman documents, handwritten documents, and computer generated data, Vismann is clear that “law and files mutually determine each other.” Files provide a basis for law, giving it direction and directive, while fortifying its power. Significantly, “files control the formalization and differentiation of the law...into authority and administration” (Vismann, 2008, xii, xiii). As its material basis, files make law possible.

          Over the past several years there's been a growing interest in both the discursive and material forms of law, including texts and archives. Many have drawn varying degrees of inspiration from Vismann's history of files. My own account of law's archive tries to move away from files to thinking about what the contours of the archive actually look like in the first place. Building from Vismann, Foucault, and Derrida, I argue that law's archive operates, as I said, through this double logic of violence: the violence of law and the violence of the archive (Mawani, 2012). This process of remembering and forgetting, protecting and erasing, is what gives law its sovereignty and authority. Through the preservation and destruction of files and documents law creates itself as a legitimate form of command. Although I characterize law’s archive as a dynamic site of struggle and contest, it still remains inherently textual and holds few imaginative possibilities for counter-archives, including objects and artifacts.

          The archives of law and history have long been sites of contest over truth and justice. These struggles have only intensified in recent years as various communities recall the legacies of European colonialism, transatlantic slavery, mass violence, indigenous dispossession, death, and displacement. To be sure, growing recognition of the incompleteness of the archives, whether history's archive, law's archive, or slavery's archive, has led to critical appraisals. At the same time, though, the limits of the archive have generated a search for other histories and evidentiary forms. With the development of new technologies, forensic scientists and archaeologists have searched other places and spaces beneath the ground and at the bottom of the sea for sedimentation and traces of the past. Objects and artifacts from the sea have supplemented the gaps and silences of slavery’s archive while producing other ways to imagine the resilience, creativity, and beauty of black life. Ayesha's S. Hameed’s work is on “Black Atlantis” is a good example.

Ayesha hameed - "black atlantis"

III

The ocean as legal archive, as I am trying to think of it, is material, figurative, and human/non-human. The sea has many surfaces, layers, and dimensions that demonstrate the materiality law and legal violence in productive ways. As I said earlier, there has been a growing interest in using shipping documents to track family histories and family genealogies but the ocean as legal archive is beyond text and file. At the same time that oceans have produced a proliferation of historical legal documentation, its fury and ungovernability have generated other artifacts and objects. In the sea, everything is moving and present, even if these particles are not fully visible. Traces emerge, re-emerge, surface, and submerge. Therefore, a turn to the dynamic sea might displace and even disrupt the long-standing textual emphasis on archives as sites of death, destruction, and violence while inviting new ways to imagine the past and new ways to write history.

Author Acknowledgement: The paper which forms the basis of this talk is titled: “Archival Legal History: Toward the Ocean as Archive” and will be published in Markus Dubber and Christopher Tomlins (eds.), The Oxford Handbook of Legal History (Oxford University Press, 2018).

Works Cited:

Derrida, Jacques. Archive Fever: A Freudian Impression. Transl. E. Prenowitz (Chicago: University of Chicago Press, 1996).

Foucault, Michel. The Archaeology of Knowledge and the Discourse on Language (New York: Pantheon Books: 1972).

Gikandi, Simon. “Rethinking the Archive of Enslavement,” Early American Literature, (2015), 50(1): 81-102.

Hartman, Saidiya. Lose Your Mother: A Journey Along the Atlantic Slave Route (New York: Farrar, Straus, and Giroux, 2007).

Johnson, Walter. River of Dark Dreams: Slavery and Empire in the Cotton Kingdom (Cambridge: Harvard University Press, 2013).

Mawani, Renisa. “Law’s Archive,” Annual Review of Law and Social Science, 8, (2012): 337-365.

Mawani, Renisa. Across Oceans of Law: The Komagata Maru and Jurisdiction in the Time of Empire (Durham: Duke University Press, 2018).

Morrison, Toni. Playing in the Dark: Whiteness and the Literary Imagination (Cambridge: Harvard University Press, 1992).

Sharpe, Christina. In the Wake: On Blackness and Being (Durham: Duke University Press, 2016).

Vismann, Cornelia. Files: Law and Media Technology. Transl. Geoffrey Winthrop-Young (Stanford: Stanford University Press, 2008).

Walcott, Derek. “The Sea is History,” in Derek Walcott: Collected Poems,1948-1984 (New York: Farrar, Straus, and Giroux, 1986), 364-367

SLAVE WRECKS PROJECt website:

https://nmaahc.si.edu/explore/initiatives/slave-wrecks-project

Renisa Mawani, Mark Harris, Alyosha Goldstein Q&A