note to the comparative politics workshop · aḥkām-ı̊ ʿadliyye, the civil code applied in the...

Note to the Comparative Politics Workshop:

This paper is under review at Law and History Review, the leading journal in the history

of law, and as such presents a reading of archival material gathered from UK and

Ottoman sources in the course of recent research. My aim in presenting it for discussion

at the Workshop is to discuss its main theoretical and comparative underpinnings as a

basis for my second project on how law travels; as the paper will be further revised for

publication, any comments will be very much appreciated.

Draft not for circulation or citation

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Circulations of Law:

Cosmopolitan Elites, Global Repertoires, Local Vernaculars

Iza Hussin∗

University of Chicago

Introduction

Bernard Cohn once called the imperial point of view the “view from the boat”.

There were other boats as well. (Ho 2004, 213)

In 1893, the sovereign state of Johor adopted the Ottoman Medjelle (Med̲j̲elle-yi

Aḥkām-ı̊ ʿAdliyye, the civil code applied in the Ottoman Empire since 1877), the only

state amongst the Muslim sultanates of the Malay Peninsula to do so.1 In 1895, Johor

promulgated a Constitution (Undang-Undang Tubuh Kerajaan Johor), the first state in

Southeast Asia to do so.2 This article takes this moment, of the intersection of two types

of law from quite disparate sources, as a point of departure for tracing the pathways by

which law made its way from one corner of the globe to another. Taking nineteenth

century Johor as our vantage point provides a new optic for mapping law’s geography

and temporality and for exploring the logics of law’s itinerancy and its locality. The

travels of law were always material, and often embodied: on ships sailing the Indian

Ocean between Johor and Cairo were diplomats, merchants, pilgrims and lawyers faced

∗ This paper benefitted from discussions at the Centre for History and Economics at the University of Cambridge and at the workshop ‘Travels of Law: Networks, Trajectories, Transformations,’ held at the University of Chicago (supported by the Social Science Research Council and the Committee on Southern Asian Studies at the University of Chicago), both in April 2013. I am grateful to participants at both these events, and wish in particular to thank Joya Chatterji, John Comaroff, Michael Gilsenan, Tim Harper, Renisa Mawani, William O’Reilly, Justin Richland and Emma Rothschild for their comments. The research in this paper was supported by Clare Hall (University of Cambridge), the Social Science Research Council (Transregional Research Fellowship), and the University of Chicago (Social Science Divisional Research Grant). 1 Findley, C.V. "Med̲j̲elle." Encyclopaedia of Islam, Second Edition. Brill Online, 2013. Reference. University of Cambridge - Cambridge University Library (UK). 09 May 2013 <http://www.encquran.brill.nl/entries/encyclopaedia-of-islam-2/medjelle-SIM_5107> 2 The first modern Constitution in Asia was promulgated in the Meiji empire in 1890; after Johor, the Malolos Congress of the Philippines enacted their Constitution in 1899.


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with new pressures and new possibilities; in the growing traffic in letters and newspaper

reports between London and New York, Tokyo and Constantinople, were debates about

empire and culture, power and authenticity; in personal relationships made possible by

the technologies of nineteenth century cosmopolitanism, were similarly worldly dramas

of deception and demands for justice. In the two short years between the adoption of the

Medjelle and the Constitution in Johor, the Sultan of Johor, Abu Bakar (1833-1895),

typified this mobility and interconnection. In his travels across the Indian Ocean to the

Near East and Europe, in his appearance in diplomatic communiques in London,

Constantinople and Washington D.C., in his prominence as a figure of exoticism and

intrigue in the newspapers and the courts of the English-speaking world, the Sultan not

only embodied law’s movements figuratively, he was himself a key carrier of the law and

one of its signal articulators.

As a sovereign whose position was dependent upon his ability to balance Malay

politics and British imperial interests, Abu Bakar showed in his legislation and his

politics a keen awareness of multiple constituencies and audiences. Within the context of

his position as a participant in a new kind of cosmopolitan world, his legislative actions

were part of a wide-ranging repertoire of symbols and languages, that included his

portraiture, his court, his marriages and his travel. Therefore, while we begin with the

intersection of Medjelle and Constitution in Johor to discuss law as part of an

improvisatory political repertoire, this article broadens its focus to discuss the circulation

of legal ideas, institutions and actors made visible by Abu Bakar’s travels. Our analytic

project, therefore, is not simply that law travels, but with whom; not just that it is carried,

but alongside what other commodities and baggage; not just that it moves, but that it is

transformed by its passage across borders and among localities. The arrival of law in

Johor did not spell the end of its journeys – we return at the end of the article to how

travelling law finds its vernacular accents in a local context, where complex processes of

translation and localisation were conditioned by nascent logics of state-building and

imperialism.3

3 The phrase “law’s vernacular accents” is borrowed, with gratitude, from William O’Reilly’s comments on this paper, delivered at the University of Cambridge Centre for History and Economics Seminar on April 30 2013.


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The aim of this article is to present a view of laws as varied repertoires for state-

building and consolidation, of law’s networks as intersecting circulations of legal agents,

cosmopolitan elites and imperial officials, and of law’s multiple meanings as opening up

possibilities for interpretation, localisation and onward progression. To argue that rulers

such as Abu Bakar used law in the late nineteenth century as part of a repertoire is to see

a particular moment in the history of the modern state – in the Ottoman Empire, the Meiji

Empire, Siam, Hawaii and Malaya – as contingent and experimental, rather than

teleological. To see law in circulation across these domains is to pay attention not only to

its movement, but to trace through time and space the work of many agents in the

translation, repetition, reiteration and transformation of law, its ideas and its institutions.

Together, the concepts of repertoire, circulation and travel sketch out the global theatre in

which rulers facing European imperial pressure in the nineteenth century acted to

preserve their power and articulate their jurisdiction and authority, drawing from

particular local scripts as well as increasingly ubiquitous sources of law and

institutionalisation.

Law in Circulation: Regional and Global Cosmopolitanisms, 1862-1895

In the late nineteenth century, law moved across the Indian Ocean as books and

letters on ships, was embodied in lawyers, merchants and colonial officials, was carried

alongside ways of doing business, of thinking about politics, of being family. This view

of law takes on board the mobility encapsulated in concepts of legal transmission,

diffusion and transplant (and acknowledges its debates: Watson 1993; Legrand 2003;

Kennedy 2003; Twining 2004; Westbrook 2006) but places critical emphasis on

discovering the ways in which law was transformed by its movement. (Hussin 2013a) In

this, the language of circulation, which emphasises reciprocity, reiteration and

reproduction, provides analytic traction and returns to the fore the role of law’s agents

and agency.

Circulation is different from simple mobility, inasmuch as it implies a double

movement of going forth and coming back, which can be repeated indefinitely. In

circulating, things, men and notions often transform themselves. Circulation . . .


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therefore . . . implies an incremental aspect and not the simple reproduction across

space of already formed structures and notions. (Markovits et al 2003, 2-3)

Applied to law, this concept of circulation sees the movement of law through the world

not as seamless and uniform, but as critically intertwined with the movement of people,

goods and ideas, and therefore as deeply implicated in networks of economy, politics and

society and their attendant inequalities.4 As such, law in circulation is a global

phenomenon, but can only be made legible through its localities – its nodes and contact

zones, its ports of call. The Medjelle and Constitution were carried to Johor as part of

ongoing strategies to bolster the authority and legitimacy of its ruler, and their arrival was

conditioned by regional and local politics. As Renisa Mawani has argued (Introduction),

attention to law’s spatiality requires awareness of its temporality as well, and as this

section will elaborate, the chronology of law is not uniform either: the localisation of

Ottoman Medjelle and ‘western-style’ Constitution proceeded along different timelines

and took different forms.

The analytic contribution of the concept of law in circulation is also to highlight

the particularity of law’s movements, and the need for further investigation of the ways in

which these particulars may have been patterned. Different types of law, because they are

carried at different times, by different networks, for diverse and often divergent purposes,

do not circulate at the same rate, to the same extent, or in the same directions. In this

section, therefore, we begin by tracing circulations of law through Johor’s local political

context – the Malay world and the problem of British imperialism – and show how law

became part of a repertoire for state consolidation. We then look to wider circulations

that intersected over Johor in the late nineteenth century, in which Johor and its ruler

themselves would play transformative roles for law in far-flung places.

4 “It is in the asymmetry in negotiation processes that the power relationship resides, and it can be brought to light in its specificity only through a rigorous analysis of these processes, instead of being raised to the status of an explanatory category.” Raj 2013, 8.


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Regional networks: Malay world, Hadhrami diaspora, British imperial

hierarchies

The state of Johor, at the tip of the Malay peninsula between Singapore and

Malacca (part of the Straits Settlements, a Crown Colony) and the Malay sultanates under

British residency rule, was one of the most diversely-constituted of the Malay states.

Comprised of multiple fiefdoms on the Malay Peninsula as well as in the Riau and

Lingga islands, its polity combined elements from centres of power in Minangkabau,

Bugis and Malacca. Abu Bakar’s education by British missionaries, his upbringing in

Singapore, his early involvement in regional diplomacy and his close personal and

commercial relationships with the Arabs, Chinese and English, all contributed to his

regional cosmopolitanism. (Harper 2013) The adoption of Ottoman Medjelle and a

‘western’ Constitution was part of the Sultan’s symbolic and institutional repertoire; his

rise through the gradations of Malay sovereignty was dependent upon his ability to

project an image of authority and legitimacy in multiple languages, for the benefit of

many audiences.(Hussin 2013b) This ability to translate between languages of authority,

British, Malay and Islamic, was evident not only in his legislation, but in his public

persona. Portraits of Abu Bakar produced during the course of his life show a figure who

combined Malay, Ottoman, and British elements of dress, stance and symbols; news

reports portray a ruler adept at Malay politics despite a contested claim to sovereignty, a

global traveller comfortable amongst European and imperial aristocrats despite

nineteenth century European hierarchies of race and religion.

Abu Bakar’s career charted the progress of a ruler who went from strength to

strength by positioning himself within regional and imperial powers as a broker and

facilitator. He inherited rulership of the state as Temenggong of Johor upon the death of

his father in 1862, under the terms of a controversial arrangement with the British in

Singapore; he had his title changed to Maharaja in 1868 and then to Sultan in 1885.

These increments in status were made possible through his role as intermediary between

the British and other Malay elites in the region, his economic and political ties to

networks of Chinese commerce in the Straits, his marriage into multiple networks of

imperial power (Malay, Anglo-Dutch, Chinese and Ottoman), and extensive diplomacy

and travel.


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Abu Bakar’s early career complicates his current image as an anglophile and

moderniser, and suggests a number of different sources for his cosmopolitan worldview.

Amongst his earliest advisors were Hadhrami Arabs, such as ‘Abd al-Rahman bin

Muhammad al-Zahir al-Saqqaf (1833 – 1896, hereafter ‘al-Zahir’) and later the scholar

and reformer Sayyid Abu Bakr b. Shihab al-Din (1846-1922). (Freitag 2003, 191)

Through these and other relationships with prominent Arab families, Abu Bakar drew

upon Hadhrami networks for religious, mercantile and social matters.5 Of these advisors,

al-Zahir was among the earliest and most prominent: al-Zahir served the new

Temenggong of Johor from 1862-1864 (Freitag 2003), before his world travels began in

1866, and served as one source of his knowledge of the wider world, in particular the

world of the Indian Ocean. Al-Zahir’s “masterful command of a whole diasporic

repertoire of constituting a persona—routes, relatives, and representations” (Ho 2004,

220-221) – would not have been lost to Abu Bakar.

Al-Zahir’s biography encapsulates Hadhrami mobility and networks at this time –

born in Hadhramaut, raised in Malabar, educated in the Islamic sciences in Egypt and

Mecca, he traded between India and Arabia and travelled widely in Europe. (Ho 2004) In

fact, as Freitag puts it, for a while, Al-Zahir “became supercargo on one of his father’s

ships,” (2003, 195) moving with traded goods from India to Ceylon and Arabia. He

served rulers in military and administrative capacities from Hyderabad to Calicut, leaving

Johor to play a pivotal role in Aceh. Here, al-Zahir was an early model for developing

state legal and administrative capacities in order to build state strength, and later took a

leading role in the Acehnese revolt against the Dutch. His leadership involved diplomacy

to the British in the Straits Settlements, the Ottoman Empire and critical notables in the

Muslim world, including the Sharif of Mecca; intermarriage with the ruling families of

several key ports and states and the deployment of their wealth; strategic use of the pan-

Islamic press and the symbols of both Islamic and Western power and authority.

Abu Bakar’s regional cosmopolitanism was conditioned always by his familiarity

with, and recognition by, British imperial power. After a state visit to the United

5 The Sultan’s networks of relationship with Hadhramis served multiple purposes; his close affiliation with the mercantile Arab families of Singapore, for example, served his business and social interests. Nurfadzilah Yahaya, personal communication March 15 2013.


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Kingdom in 1866 during which he was often referred to as ‘Maharaja’, the Temenggong

requested that his title be changed to Maharaja. Prior to this, he worked to establish his

own genealogical claims with the help of various Malay notables such as Raja Ali Haji

and the Sultan of Lingga. (Winstedt 1992, 124) Dynastic succession had been a

preoccupation since his father’s rulership of Johor, and the title of Maharaja would locate

Abu Bakar within the hierarchy of British India and further cement his claim to being

sovereign over Johor. In this, Abu Bakar’s reputation amongst British officials in the

Straits as “in his tastes and habits...an English gentleman,” furthered his campaign for

imperial recognition.6 When he requested that he be recognised as Sultan of Johor, his

role as intermediary between the British and the Malay chiefs, his vast landholdings at

the heart of the Malay peninsula and his importance as a bulwark against Dutch and

French interests in the region helped overcome the objections of local British officials.7

In fact, when the increasing frustration of local British officials such as Straits

Settlements Governor Frederick Weld with Abu Bakar’s independence led them to

contemplate placing a British Resident in Johor, Abu Bakar went to London to broker a

new agreement with the imperial centre. (Nadarajah 2000, 32; Trocki 1979, 185) When

the Maharaja was made a Sultan, his treaty with the British was signed in London, not, as

other treaties with Malay rulers had been, in the Malay states; Abu Bakar would

thereafter be known within the empire as ‘Sultan Sir Abu Bakar’, a Knight Commander

of the Order of St Michael and St George.

This treaty, signed in 1885, brought a new set of terms into the discourse of Abu

Bakar’s legitimacy and sovereignty, and linked Abu Bakar’s status as a sovereign Sultan

to his standing within the British imperial imagination. In exchange for ceding foreign

affairs to the British and non-interference in the Malay States, Abu Bakar and his

successors would be recognised as Sultans of Johor. The treaty emphasised consultative

language that had not previously been part of the rationales used by Malay rulers to

6 Cowan 1961: 38–9. 7 In August 1878, the Maharajah requested British support for a change in his title to Sultan, a change that would place him as equal to the other sovereign Sultans on the Malay Peninsula. The Governor of the Straits Settlements’ reply was swift and unequivocal: “most undesirable to recognise Maharajah as Sultan it would be an incendiary to the whole Peninsula and following closely on the question of the Moar succession would greatly complicate our position.” CO 882/4/22, 1885.


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legitimise their positions: “His Highness the Maharajah of Johore has made known to the

Governor of the Straits Settlements that it is the desire of his chiefs and people that he

assume the title of Sultan.” The treaty further worked to legitimise an action that was far

from customary, and then to insert it as a link into an assumed chain of tradition and law:

“He and his heirs and successors, lawfully succeeding according to Malay custom, shall

in future be acknowledged as His Highness the Sultan of the State and territory of

Johore.” (CO 882/4/22, 1885.)

Global theatres of law: Chicago, Cairo, Constantinople, London

Having placed the Sultan in his local context and illustrated the manner in which

law, symbols of rule and local and imperial political imaginaries were entwined in

nineteenth century Johor, we now turn briefly to the wider theatre within which the

Sultan travelled, in order to further elucidate law’s multiple circulations and

transformations. The Sultan, by most accounts a marginal actor in a global context he did

not make, nonetheless appeared across the globe in a number of moments between 1893

and 1895 that illustrate a global profusion of ideas about rulership and sovereignty in a

still-imperial world. Between the adoption of the Majalla and the Constitution, he

appeared in newspaper articles reporting the World’s Columbian Exposition in Chicago

(1892-3); in the diaries of W.S. Blunt and the Ministry of Foreign Affairs of the Sublime

Porte in Constantinople (1893); in the United States Senate Committee on Foreign

Relations’ report on the Hawaiian Islands (1894); and throughout the press, as well as in

international law journals to this day, when he was sued as ‘The Sultan of the State and

Territory of Johore, otherwise known as Albert Baker’, for breach of promise to Miss

Jenny Mighell of Brighton (1893-1894).

Amongst a flurry of articles leading up to the excitement of the World’s

Columbian Exposition in Chicago (1893) were a number of articles in newspapers on

both sides of the Atlantic on the anticipated attendance of the Sultan of Johor. On

October 9 1892, the New York Times reported:

The Sultan of Johore is coming to the fair and is going to bring with him three

Malay bungalows constructed from the native nepah palm. In these bungalows the

Sultan will exhibit agricultural products, embracing gambier, tapioca, tea, coffee,

spices, &c. A superb exhibit of war implements and musical instruments from the


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Sultan’s palace will be made. He will have also a half-dozen Malay women in

their native costume and a number of dancing girls. His suite will comprise

several Princes. (‘Dormitories for women,’ 1892, Oct 09)

The Sultan was by this time a well-known figure in diplomatic circles and in London

society. His wealth, his close friendships with European aristocracy, including Queen

Victoria, and his combination of exotic ostentation and gentlemanly manners, were a

subject of knowing comment in the English-language media of his day. For the reporters

and other commentators, the Sultan represented Johor – its wealth, its power and its

culture. As we have seen, Abu Bakar was adept at using these representations to

consolidate the identification of the state of Johor with its ruler, not just to reporters and

to mass audiences like those in Chicago, but in photographs and portraits, in diplomacy

and public speeches, and in his economic and political dealings.

The Sultan did not in the end attend the World’s Fair, sending instead one of his

most senior advisors, Abdul Rahman Andak, in his stead. (Mohd Said 1940; Abdullah

2010, 12) In 1893, he was not in Chicago but in Cairo, where W.S. Blunt, British writer,

anti-imperialist and sometime diplomat, noted a meeting with the Sultan of Johor in his

diary. Blunt commented that the Sultan was:

a good old man of very simple manners and much bonhomie…he complained that

though he had been a fortnight at Cairo, he had as yet seen none but English

officials, and that Lord Cromer had not encouraged him in his desire to go into

Egyptian society. I offered to put him in the way of this…I am to take him…to

the Sheykh el Bekri and get Mohammad Abdu and other Sheykhs to call on him,

and we will put him the right way to an introduction to Sultan Abdul Hamid when

he goes to Constantinople. (Blunt 1921, March 31 1893)

Shortly thereafter, the Sultan was brought to the Sublime Porte, where he found that his

title was a liability rather than an asset: “the Court had refused from the first to

acknowledge him as having any claim to calling himself a Sultan. Nevertheless he was

credited by everyone with a very high position as a Mohammedan Prince in the Malay

States.” (April 15 1893) He was received with full honours and feted at a reception


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brokered by Jamal al-Din al-Afghani, the anti-imperialist, modernist and pan-Islamist, in

exile from Egypt and Iran. Despite reports that Abu Bakar appeared uninterested about

pan-Islamism and could not be drawn out on matters of empire and state, it was after this

visit that the Medjelle was introduced to Johor.

Perhaps the most prominent of the Sultan’s appearances on the global stage was

in the London courts, in a case entitled ‘Mighell v. the Sultan of Johore’ (1893-1894). A

woman named Jenny Mighell sued the Sultan for breach of promise, attesting that he had

courted her under the name of Albert Baker, during which courtship she had discovered

his true identity, and that he had failed to make good on his promise of marriage. The

Court of Appeal summarised the case quite differently:

[IN THE COURT OF APPEAL.]

MIGHELL v. SULTAN OF JOHORE.

International Law—Foreign Sovereign, Immunity of—Extraterritoriality—

Jurisdiction—Submission to Jurisdiction—Proof of Status of Sovereign—

Certificate of Secretary of State.

The Courts of this country have no jurisdiction over an independent foreign

sovereign, unless he submits to the jurisdiction. Such submission cannot take

place until the jurisdiction is invoked.

Therefore, the fact that a foreign sovereign has been residing in this country,

and has entered into a contract here, under an assumed name, as if a private

individual, does not amount to a submission to the jurisdiction, or render him

liable to be sued for breach of such contract.

A certificate from the Foreign or Colonial Office, as the case may be, is

conclusive as to the status of such a sovereign. (Queen’s Bench 1893, 149)

The case served to confirm a far-reaching principle of international law, that foreign

sovereigns could not be tried in British courts. However, it also established that the

sovereignty of such persons depended upon the recognition of the British empire. The

case was reported and discussed extensively in journals of international, comparative and

imperial law, but it achieved its widespread notoriety in the popular press of the English-


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speaking world, from London to New York to Auckland. In Singapore, the Straits Times

reported an item from London (November 7):

The British public has been grievously disappointed of a sensation…The prospect

of a reigning sovereign of an independent State sued by an English “Miss” for

breach of promise of marriage foreshadowed wonderful possibilities. These are

now dissipated and destroyed through the interference of a theory of international

law which deprives the disappointed maiden of her hearing and robs the British

public of the spectacle of an oriental sovereign in the court. (‘Mighell v the Sultan

of Johore,’ 12 December 1893)

The legal journals were not immune to this drama:

Mr. Gilbert ought to search the law reports for motives for comic operas. The

'Sultan of Johore' or 'The Baker and the Sultan' would, to begin with, be a capital

title for a musical performance at the Savoy Theatre. The Sultan's feats in the Law

Courts would lend themselves admirably to the treatment in which Mr. Gilbert's

genius excels. We have first the worthy and unpretending Albert Baker who sues

for the hand of Miss Mighell, obtains her love, and promises her marriage. Then

Mr. Baker is the gay deceiver who is pursued by the injured fair into the Law

Courts. His triumph seems certain, when suddenly Albert Baker is transformed

into the sovereign prince, the Sultan of Johore, and asserts his immunity from the

laws of England. The lady produces the Queen's writ; the Sultan brings out of his

pocket a certificate of sovereignty from the Foreign Office. A Court, amid the

universal approval of international lawyers, pronounces that it has no jurisdiction

over a sovereign. The Sultan is triumphant; the lady loses her case, and, we

presume, pays costs. Surely Mr. Gilbert's genius can make something out of these

suggestive incidents. (10 Law Quarterly Review, 101, 1894)

In this case, the performative aspects of law approached the conventions of theatre to a

comical degree, but the drama of these incidents helps highlight the ways in which law’s

mobility was facilitated by its publicity, its spectacle and its mass appeal. Further, this

case serves to illustrate that law in circulation can take unexpected turns, and that what


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began as an intimate matter of tort served in the courts of empire to delineate a particular

vision of the sovereign.8

Johor’s prominence in international circles also brought it to the attention of other

monarchs facing unwanted imperial attention, including King Kalakaua of Hawaii, who

visited Johor on a world tour in 1881. In 1894, this relationship attracted the attention of

the United States Senate Committee on Foreign Relations, that saw Johor as a model to

be avoided: “King Kalakaua…seemed to be blind to the course of events and to the true

interests of his people. His chief object appears to have been to change the system of

government into an Asiatic despotism on the pattern of Johore, in which the white

“invaders”, as they were called, should have no voice in its administration.” (1472) For

the report’s writers, representing the interests of the United States and investigating the

possibility of annexing Hawaii, the parallels between Kalakaua and Abu Bakar, Hawaii

and Johor, the United States and United Kingdom, were uncomfortably close.

These parallels seemed evident and relevant to Kalakaua and Abu Bakar in 1881

as well. One account of the royal meeting in 1881 noted, “Abubakr and his courtiers have

marked Hawaiian types of features, and the Malay Prince was recognised as presenting a

striking likeness to the late Hawaiian Prince Leleiohoku.” (P.C. Advertiser Co. 1881, 66)

William Armstrong, who accompanied King Kalakaua on his world tour, also observed

that the rulers sought points of commonality in language, and “These ethnological

‘strawberry marks’ placed the rulers on good terms with each other, and they were not

unwilling to assume that this meeting was one of ‘long-lost brothers.’” (Armstrong 1904,

144) At a banquet to honour Kalakaua,

(t)he Maharajah, at the close of the banquet, rose…Turning to the King, he took

his hand and said he would propose his health; he was glad to welcome a King

from a land very distant, but one who ruled over the same kind of people as those

ruled by himself; he was sorry that he did not speak the English language as well

as the King of Hawaii; and he hoped that his royal guest would reach his home in

safety and not forget the little kingdom of Johore. The royal Hawaiian replied that

8 A 2013 search of legal references to ‘Mighell v Sultan of Johore’ shows discussion of current cases involving China, the Democratic Republic of the Congo, Australia, Argentina, Malaysia, Singapore, Canada, and international tribunals.


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he had now discovered that his own people were Asiatics, and he hoped the

Asiatic nations would become powerful and stand by one another. (Armstrong

1904, 146)

What each of these moments of intersection serve to highlight is the complex

geography of Johor’s political landscape, and to make visible beyond that landscape a

wider map of global political relationships. In the vein of Engseng Ho’s “Empire

Through Diasporic Eyes,” this account of the Sultan’s travels, and the circulations of law,

legal ideas and agents that made these travels possible, contributes yet another “view of

the imperial ship of state as seen from a smaller boat sailing the same seas.” (2004, 213)

As this section has shown, just between 1893 and 1895, the ‘other boats’ to which Ho

refers made for a lively traffic – in world markets and entertainment, in communications

and industry, in diaspora and religiosity, in marriage, betrayal and criminality. The view

from these other boats, also carrying varied repertoires for law-making, layered

conceptions of sovereignty and authority, new perceptions of threat and modernity, seems

always to have included an awareness of the imperial ship of state.

This map of political relationships also helps locate a number of unexpected

audiences for what Tim Harper has called “Abu Bakar’s…global performance of Malay

sovereignty,” (Harper 2013, 5) a performance nested within a global drama of

sovereignty politics. For Abu Bakar, as for the rulers of Hawaii, Siam, Japan9 and the

Ottoman Empire, this global drama involved courts of law as well as newspaper reports,

the World’s Fair as well as royal reception halls, and increasingly a mutual awareness of

each other. “This is to see the late 19th century belle epoque not merely as globalised by

imperial networks, but as something much more complex than this…(i)t is into this kind

of world of cross-cutting linkages; its sense of synchronicity – the multiple directions of

syndication of images, techniques and ideas – that a specific experience of modernism

could take hold.” (Harper 2013, 7) It was into this context that the Medjelle and

Constitution came to Johor in the 1890s, and to which we now turn.

9 Abu Bakar visited Japan in 1883, and his stay was relatively lengthy – six months – in comparison to other trips. Abdullah 2010, 16.


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Law as Vernacular: Local Logics and Translated Juris-diction, 1893-1913

The Medjelle and Constitution arrived in Johor as part of the Sultan’s repertoire

for consolidating his authority and succession, forestalling British imperial

encroachment, and developing an administration and bureaucracy through which the ruler

would exercise power. These two sets of laws may have arrived approximately at the

same time, but their unfolding in Johor and then into the Malay world around it followed

different chronologies and geographies. Upon closer examination, their arrival in Johor

was merely a beginning – both documents have complex histories of translation,

institutionalisation and enforcement, and these histories allow a deeper exploration of

how travelling law is made local, and what elements of law facilitate their onward

movement from the port cities of their arrival, into state administrative hinterlands.

Recent work by legal historians and law and humanities scholars, building on

Benveniste’s concept of ‘juris-diction’ as both law’s speech and the speaking of law

(1973), has drawn attention to the role of jurisdictional moments in producing law’s

power (McVeigh 2007; Douzinas 2007; Cormack 2008). Tracing law at this level of

detail makes clear that, in nineteenth-century Johor at least, law’s speech was

polyphonous and polyglot from the start. Part of the work of juris-diction was to repeat,

re-iterate, echo, parse and interpret law in its new context, but these translations were

never complete, nor were they universally satisfactory. (Richland forthcoming, 29) The

polyphony and dissonance of the law in this case was an expression of political realities

in the Malay world, a site whose fluidity and cosmopolitanism is well-known, but

perhaps what the case of the Johor Constitution should also provoke is further exploration

into the polyphony and dissonance of law itself. In this section, we trace the process of

law’s ‘localisation’ and translation, showing that the move from one language to another

required complex political as well as linguistic work; that each document followed a

different path to becoming local law, and a different timeline. In this process, however,

law’s ability to speak in many voices – its polyphony – and its tendency to allow for

multiple meanings, some contradictory – its dissonance – were key elements of its

mobility.

In Johor, the adoption of the Medjelle in 1893 was part of an overarching program

of reform undertaken by the Sultan that had begun with broad changes to the


16

administration of Islamic law in 1863. This program included the drafting of a

constitutional document, the establishment of a hierarchy of state administration within

which these laws would be applied, and the eventual promulgation of the Medjelle as the

Undang–Undang Sivil Islam: Majalah Ahkam Johor (Code of Islamic Civil Law) in

1913. The adoption of the Medjelle sent a range of signals, echoing the reforms of the

Ottoman Empire (itself under European pressure) while assigning Islam a formal legal

space within the state. For the Ottomans, the Medjelle performed a number of functions –

it represented reform of the law and the Empire at a time of great civilizational anxiety,

and it did so in a way that worked to satisfy those who wanted Western-style codes and

those who wished to maintain the shar’i (Islamic jurisprudential and Quranic) content of

the law. Instead of the wholesale adoption of the French civil code, this was a

codification of the jurisprudence of the Hanafi school in matters of contract, torts and

civil procedure. The Medjelle achieved uniformity and regularity across the Ottoman

legal system by applying to all subjects of the Ottomans regardless of religion. (Findley

2012)

Importantly, it kept all powers of adjudication, interpretation, jurisdiction and

application of the law firmly in the hands of the Ottoman central state, affirming the

power of the Sultan as it radically altered the state over which he ruled. By codifying

Islamic jurisprudence and delegating its application to judges and legal officials untrained

in shari’a matters in all areas but that of the family, the Ottoman state erected an

institutional partition around family and inheritance law that soon became more like a

substantive wall.10 The adoption of the Medjelle was an explicitly Islamising move if

Johor were to be compared to the Malay States under British rule, where the only

category of law to be left to the shari’a was marriage and divorce. Unlike the practice in

these other Malay states, like Perak, in Johor ‘matters of religion and culture’ referred to

10 Collier, ‘Intertwined Histories,’ 1994: ““rationalizing" market exchanges established other types of property transfers, such as those involved in marriage, inheritance, succession, and adoption, as governed by "irrational" (i.e., emotional or religious) principles. The Ottoman reformers who subjected commercial transactions to the requirements of modernity, reason, and law thus unwittingly established family life as a realm governed by tradition, sentiment, and biology.”


17

commercial transactions as well as to marriage, divorce, inheritance, and religious

endowments.11

The Constitution, adopted two years later in 1895, detailed Johor’s autonomy, the

duties of Cabinet and Legislative Council, established Islam as the state religion, and

placed the Sultan as head of state. The document was drafted by the Sultan’s personal

legal advisors in Singapore (C.B. Buckley chief among them, from the firm Rodyk and

Davidson) and his ministers (Chief Minister Dato Jaafar bin Haji Mohamad and Dato

Abdul Rahman Andak, Setiausaha Kerajaan [State Secretary].) It comprised of four

parts: the position and powers of the Sultan, the Council of Ministers, the State Council,

and matters of justice, nomenclature and Islam. In its structure and language, this

Constitution loosely resembles the only other Asian constitution available at the time, the

Meiji Constitution of 1890.12 When the Sultan visited Tokyo in 1883, this Constitution

was already a topic of concern in Japan; the process of its drafting had begun, and a

delegation sent to explore constitutional models in the United States, United Kingdom,

and Europe was leaning towards the Prussian model.13

The Sultan would likely also have been aware of cautionary examples amongst

his contemporaries, all rulers facing both European imperial pressure and pressures from

competing elites in their state: King Chulalongkorn of Siam’s rejection of an 1885

proposal, made by Siamese elites in Europe, that Siam too adopt a Constitution along the

lines of Japan, and the earlier suspension of the Tanzimat Constitution (1876) by

Ottoman Sultan Abdulhamid in 1878.14 The Sultan’s decision to promulgate a

constitution twelve years after his visit to Tokyo and five years after the promulgation of

the Meiji Constitution in Japan, had much to do with securing his succession – he was ill,

and passed away shortly after. Unlike the Meiji Constitution, the Johor Constitution

11 Hussin 2008. 12 Hirobumi Ito, Commentaries on the constitution of the empire of Japan, trans. Miyoji Ito 1889. Meiji Constitution, National Diet Library site: http://www.ndl.go.jp/constitution/e/etc/c02.html. Hanover Historical Texts Project, http://history.hanover.edu/texts/1889con.html. 13 ‘Old and Modern Japan, the Birth of Constitutional Government,’ New York Times February 13 1890. The drafting committee included both Japanese and foreign members, among them the German legal scholars Rudolf von Gneist and Lorenz von Stein, both of whose legal theories tended towards conservatism rather than populism. 14 Chris Baker and Pasuk Phongpaichit, A History of Thailand, Cambridge UP 2005, 76.


18

contains far fewer details on the structure of government and its administration; whereas

the second section of the Meiji Constitution details the rights and duties of subjects, the

Johor document contains no such provisions.

For both the Medjelle and Constitution, the process of translation from the

original language of the text was critical, but by no means straightforward. Not only did

the translation of Constitution require the parsing of political concepts between

languages, it is difficult to determine which the Constitution’s ‘original’ language might

have been. That the Constitution was drafted by English lawyers in Singapore with the

help of English-educated court officials like Abdul Rahman Andak; that the Sultan may

have held as models both the Meiji Constitution (1890) and Chulalongkorn of Siam’s

rejection of constitutional monarchy in 1885; that Malay and English and Arabic all show

their trace in the texts; all these make the question of which – if any – of these were the

original text, difficult to answer.

What is apparent from the archive of the Johor Constitution is that there were

many constitutional texts – roughly contemporaneous versions in Malay, Jawi (Malay in

Arabic script) and English. While it may be understood that only one of these texts had

legal force, the circulation of at least four identifiably distinct texts in the first few years

of the Constitution’s life – two in English and one in Malay – destabilises the idea of a

uniform and sacrosanct constitutional text and suggests that the Constitution was not one

text but many, speaking not in one voice or language, but in a number of somewhat

different voices – a polyphony. (Hussin 2013b) In archives and textbooks of law between

1895 and 1961, there are multiple versions of the Johore Constitution: the Jawi text in the

Johor State Archives dates from an 1895 printing – this, presumably, would have been

the ‘official’ text (Version 1: Johor State Archive 1895). Next, chronologically, is a

Malay typescript copy attributed to State Secretary Abdul Rahman Andak, dated 1898

(Version 2: Basri 1988). In 1900, a Colonial Office report enclosure contains an English

text that was given to J.A. Swettenham and the Johor Advisory Board in London

(Version 3: Allen et al 1981). Finally, the Johor government printer later also issued an

‘official’ English text, The Law of the Constitution of 1895, including amendments to

1961 (Version 4: Johor State Archive 1962).


19

Each text of the Johor Constitution bears traces of the many sources of this

document, and of the struggle to reconcile political concepts very much in flux. The

Preamble, present in all four texts, articulates the basis of the Sultan’s right to enact this

law, and both English and Malay texts reverberate with imperfect synonyms, repetitions

and echoes:

Whereas We, by the rights and powers of Our State and our prerogatives as

Sovereign Ruler and Possessor of this State of Johore and its Dependencies,

together with the advice, concurrence and assent of all the Members of Our

Council of Ministers, and of Our Council of State and other Chiefs and Elders of

the country, have deliberated, considered and declared that it is proper, expedient

and suitable at the present time and age that We, in Our name, and on Our behalf,

and for and on behalf of Our Heirs and Successors, the Sovereign Rulers or

Sultans of Johore, should make, create, found and institute, and grant, give,

bestow upon and present to and for the use of the Government, subjects, and

inhabitants of Our Country, a Law and Regulation to be intituled…which,

enduring and continuing from generation to generation, shall become and form

the Law of Our State, Country, and people, and be an inheritance which cannot be

altered, varied, changed, annulled, infringed, or in any way or by any act

whatsoever repealed or destroyed. (Versions 3 and 4)

The English versions above may give the impression of being hardly able to contain the

requirements of Malay legal meaning, but each text, in fact, gives the impression of being

a translation, and none reads as though it had been written in the language of its

conception. The Malay texts (Versions 1 and 2), even accounting for the conventions of

Malay court documents, are awkward and laboured rather than ornate or elegant.15 In the

15 Version 1 of the Declaration, transcribed from the Jawi, for example, seems to have been translated word for word from the English with little concern for idiomatic expression: (Kenyataan): Dan bahawa oleh kerana kita sendiri dan mereka-mereka yang tersebut sangat-sangat berkehendak pada memulai mengadakan “undang-undang tubuh kerajaan” itu pada masa yang baik ini maka kita permulakanlah dengan panca-panca peraturan-peraturan dan syarat-syarat seperti yang ada tersebut dibawah ini iaitu ialah barang-barang yang kita pikirkan timbangkan sifatkan yang terutama dan terawali


20

English versions, the Arabic and Quranic formulae in the opening invocation (Bismillah)

were translated literally rather than idiomatically, for example Sayyidina in the English

versions translated to “Our Leader,” referring to the Prophet Muhammad, and sahbihi

was translated in the English versions as “his Friends,” drawing attention by this to the

unfamiliarity of the translator (and presumed audience) to Muslim conventions of

address.16

At times, the language of these texts serves to amplify through repetition and

echoing; at other points in the texts, imperfect synonyms and concepts taken in from

other legal lexicons strike a discordant note, providing a reading of the text that is

dissonant and open to multiple meanings. These meanings included both the

consolidation of the Sultan’s authority, and greater openness to consultation with state

elites; monarchical absolutism supported by stiff legal penalties, and the image of a

monarch bound by principles of just and rational rule. The timing of the Constitution

signals a clear need to cement the succession for Abu Bakar’s dynasty with law rather

than treaties signed with the British, and through the support of other power-holders

within the Johor polity. Part 1.1 states: “the Raja rules and owns this State of Johor and

all territories in its dominion…with the agreement of all the members of Our Council of

Ministers and Council of State.” Part 2.2 allows for penalties against those who challenge

the position and power of the Sultan, with penalties for treason at the Sultan’s

discretion.17 The short-lived Tanzimat Constitution (1876-1878) and the Meiji

dikehendaknya supaya menjadi asas panduan tauladan bagi ketetapan dan ketentuan perintahan dan tadbir kerajaan kita. Lest we be content to conclude from this that the English is therefore the originary text, the section entitled Royal Command, Titah, refers to the Sultan’s subjects using vocabulary indigenous to the Malay political world: tanah air, (tanah=land; air=water, a phrase the English translation delivers as “native soil”) and follows this with phrases underlining the legitimacy of the law that are perfectly alliterative in Malay (“benar betul teguh tentu dan tetap”) but read in English with far less fluency (“true, real, firm, fixed and settled”). 16 The opening invocation of English Version 4 is typeset in a style reminiscent of printed English-language bibles of the period, with “Allah” translated into English text as “GOD,” and terms deemed to have sacred content capitalised, such as “Our Leader Mohamed” and “His Relations and Friends”. 17 “It is clear that His Majesty saw the Constitution as a device for strengthening his position through the co-optation of the state’s elites in government. When there were no


21

Constitution both may have served as examples of monarchical attempts to answer the

challenges of political instability and imperial pressure with broadening the base of

political legitimacy while maintaining a firm grip on authority over the state.

These texts differ not only in language but in content and meaning. For example,

the Malay copy (Version 2) attributed to Abdul Rahman Andak, the State Secretary and

one of its most important Malay drafters, is missing two paragraphs that appear in the

English versions labelled as ‘Declaration’ and ‘Royal Command’, that seem to emphasise

a model of enlightened and rational constitutional monarchy: “We do therefore

commence the same with the points, arrangements, and terms stated hereunder, they

being the things which We think, consider and regard to be principally and primarily

requisite to be the basis, guide, and model for the firm establishment and proper

arrangement of the Government and administration of Our State.” (Declaration) The

Royal Command further elaborates upon the breadth of membership in the state of Johor:

“all the subjects of Our State, of all ranks, nationalities, and religions,” before asserting

that “it shall be unlawful, unmanly, rebellious and criminal for any person to refuse to

acknowledge and neglect to obey it.” In the printed Jawi version (Version 1) in the Johor

state archives, these missing paragraphs appear but differ in a new way – this text has the

last line of the Royal Command carry meanings the English versions do not carry: the

Malay parsing of “unlawful, unmanly, rebellious and criminal” (Versions 3 and 4) is

“haram, dayus, derhaka dan berdosa” (Version 1) – “wrongful, corrupt, treasonous and

sinful,” crimes against God as well as the Ruler.18

The multiplicity of versions of the Constitution is an archive of the multiplicity of

its authorship – Sultan, nobles of his court and council, English lawyers, British colonial

officials – and their differing emphases in, and interpretations of, this experiment in

constitutionalism. Further, the promulgation of one version into law in Johor did not

internal threats it was thought that the independence of the state of Johor could be preserved. The formalisation of the Sultan’s rights over Johor and legitimisation of the rule of the existing government were considered paramount at the time because of the growth of British influence in the Malay States.” Author’s translation at 57, Sahari Jantan, 1975. Mesyuarat Kerajaan Johor 1895-1914 [The Johor State Council 1895-1914]. Thesis: Jabatan Sejarah UKM Bangi. 18 Detailed discussion of the textual content of these documents may be found in Hussin 2013b.


22

prevent these multiple versions from continuing to exist and exert influence as sources of

law for the Federation of Malaya and the Federation of Malaysia Constitutions. Multiple

variations of the Johor constitutional text were in use at the same time by members of the

legal profession, members of the Johor Advisory Board, British Residents and court

advisors. There is not yet much evidence to suggest which translation of the many

available versions of the Johore Constitution were consulted by Malay rulers and elites,

in what language, and through what interpretive lens, but the existence of multiple copies

of this text in archives and in law texts between the late 1890s and the middle of the

twentieth century indicate that these elites had a variety from which they might have

chosen.

The Medjelle, in contrast to the Constitution, did have a clear language of origin –

Arabic, a language that facilitated the movement of Ottoman law across its diverse

empire through the assumption of a common vocabulary of Islamic legitimacy and

learning. When the Medjelle arrived in the Malay world, however, it followed a different

pattern and chronology than the Constitution. Unlike the Constitution, the Medjelle was

not translated into Malay until two decades after its arrival. During the period between

the adoption of the Medjelle and its translation, administrative bodies like the Department

of Religion and Education were established that bureaucratised Islam and Muslim life

further, and brought it under the formal purview of the state. When printed in Malay for

the first time in 1913, the Undang–Undang Sivil Islam: Majalah Ahkam Johor (hereafter

Majalah) began with the phrase: “This book contains discussions of the fiqh rulings

emanating from the shari’ah of Islam used by the government of Johor in times past in

the Arabic language.”19

In 1913, the Sultan (Abu Bakar’s son Ibrahim, 1873-1959) was asked by the

Mufti of Johor for permission to use the Majalah as a source for the Islamic law (hukum

syarak) of the state. The Sultan granted this request but made provision for the Majalah to

19 Printed by Matba’ Khairiyyah in Muar in 1913: “Kitab ini mengandungi perbicaraan hukum-hukum fiqh yang diterbitkan daripada syari’at al-Islam yang telah digunapakai oleh kerajaan Johor selama-lamanya dengan bahasa Arab.” The phrase “selama-lamanya,” in its contemporary usage connoting “for ever, always,” here adds a note of antiquity to the Majalah.


23

be superceded by the Constitution.20 This relationship was further clarified by the

Constitution to place the Majalah within the purview of state officials “in matters relating

to the law of Islam” (Johor Constitution Sections 49 and 57),21 a phrase that since the

Treaty of Pangkor in 1874 had specific connotations limiting Islamic law to matters of

marriage, divorce, custom and ritual observance. (Hussin 2008) Whereas the Mufti

signed the first printing of the Majalah (1913) as a servant of the Sultan, using the epithet

“Yang Hina” (the Base/the Humble), by the time of the second printing, he signed as a

state employee, “dengan perintah” (under orders). Here, the lack of translation of the

Arabic Medjelle upon its arrival into Johor helped maintain the sense of an unbroken

legacy of shari’ah from the Caliphate and the centre of Muslim empire, while also

allowing Islamic elites in Johor, such as the Arab muftis appointed by the Sultan,

interpretive control over its application. The Majalah was not translated into Malay until

its status as state law within a state bureaucracy and hierarchy had been articulated, and

the agents of its administration specified as state employees.

The timing of this promulgation was significant for other reasons as well, 1913

being the year before Johor finally conceded to British pressure for a Resident (in Johor,

titled ‘General Advisor’) to be installed. (Nadarajah 2000, 51) The Sultan’s efforts to use

a circulating language of sovereignty and legitimacy also put into place a codified Islamic

law and a hierarchy and administrative bureaucracy within which it would function. In

the case of law’s travels, the period of flux within which Abu Bakar of Johor lived was

bounded, and he was both an exemplar of its dynamism and a harbinger of its end.

Conclusion: Maps for the Muslim State, c. 1913

20 Borham 2002, vi; Correspondence between Sultan Ibrahim, the Mufti of Johor (Abdul Qadir bin Mohsin al-Attas) and Dato Pemangku Setiausaha Kerajaan Johor (Bil. 998/13, 29.11.1913.) 21 al-Mansor Adabi, Malayan Law Journal. “Berkenaan dengan Undang-Undang Tubuh Kerajaan Johor Fasal 49 dan 57, Sultan Ibrahim dengan persetujuan ahli-ahli jawatan keadilan dan beragama berkenan dan membenarkan Kitab Majalah Ahkam Johor supaya digunakan oleh sekelian pegawai-pegawai, majistret-majistret dan hakim-hakim di Negeri Johor dalam perkara yang berkenaan dengan hukum Islam. [In relation to Sections 49 and 57 of the Johor Constitution, Sultan Ibrahim with the agreement of judicial and religious personnel approves the Majalah Ahkam Johor for use by all officers, magistrates and judges in the state of Johor in matters relating to the law of Islam.]”


24

..(I)n the analysis of the relations between law and society we should substitute the

complex paradigm of scale/projection/symbolisation for the simple paradigm of

correspondence/non-correspondence. (Santos 1987: 283)

Locating law’s travels within local, regional and global theatres of politics allows

another dimension of the mobility of law to emerge: its patterns, its networks, its

conditions for locality and universality. Law circulated between its ports of call – in

Johor, in London, Constantinople, Cairo, Calcutta, Tokyo, Honolulu, Washington –

through newspaper reports of sensational trials, through lawyers, judges, merchants,

scholars and pilgrims, through networks of family and intermarriage – each trans-location

also requiring acts of translation. To trace the chronologies, geographies and mechanisms

of these circulations may help us gain further analytic purchase on questions of legal

diffusion and transplant, jurisdiction and sovereignty, globality and locality. To do so

from the vantage point of what Tim Harper has called the “open horizon” of the Malay

world in the nineteenth century, “perhaps allow(s) for the fact that there are many

traditions of thinking and acting globally, and sets us to explore what they might really

mean for people who inhabited these worlds. It is to ask: in a world of multiple

connections and networks, which had particular saliency?” (Harper 2013, 10)

For the Sultan of Johor and other independent sovereigns of the late nineteenth

century, law served as part of a cosmopolitan repertoire whose object was to consolidate

their local authority against political challenges, to forestall Western imperial

intervention, and to elaborate a new state vision. Figures like the Sultan of Johor acted as

law’s agents in ways different from that of law merchants, forum shoppers, lawyers or

judges – they were carriers of law and amongst its most creative advocates because of its

utility for their politics, their successions, and their visions of sovereignty in an imperial

world. Their legislative choices were conditioned by a global gaze, an acute awareness of

the need to balance local and foreign constituencies, and a heightened sensitivity to the

potential of law as a tool both for the consolidation of their power and its dilution.

Constitutions, in particular, were multi-vocal texts that played critical roles during this

period to establish the content of sovereignty against imperialism, and the ability of

constitutional texts to be read in multiple languages (their polyphony) and at varied


25

registers of political meaning (their dissonance) facilitated their mobility. The political

context within which these travels occurred served to condition the cast and content of

these laws.

As travelling law, both Majalah and Constitution were implicated in larger

projects of state and dynastic consolidation, and these legal instruments were harnessed

to powerful interpretive regimes. When taken together, while the Constitution made a

formal space for Islam as the state religion, the Majalah helped locate that space within

the areas of civil law and under the direct supervision of state administrators.(Hussin

forthcoming) These were not simply transplants, but vehicles by which multiple visions

of the state, some local and some imported, were institutionalised, and they represented

an increasingly common pattern of legal transformation, not only in the Malay Peninsula,

but across the Muslim world, in the nineteenth and early twentieth century.


26

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note to the comparative politics workshop · aḥkām-ı̊ ʿadliyye, the civil code applied in the...

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