A Figure in Law and the Archive: Samera Esmeir and the Making of Juridical Humanity

Juridical Humanity is a book about Egypt, the British occupation, persons, and law that makes a path-breaking contribution to critical theory, history, legal anthropology, and colonial studies. Samera Esmeir’s first book illustrates the rich rewards of the interdisciplinary, humanistic study of law. Esmeir’s theory provides an important new definition of the “human,” while the book’s methods perform a new approach to “archival research” and law.

By asking “What is the relationship between modern law and the human, and what was the colonial career of this relationship?” (jh, 1), Esmeir challenges anticolonial theory’s claim that colonization’s greatest harm is its dehumanization of colonial subjects, and its remedy their rehumanization through the conferring of legal rights (jh, 8). To the contrary, Esmeir shows that the colonial state “attempted to juridically humanize the colonized, and in so doing … revealed how humanity came to be thought of as something that could be confiscated or allocated” (jh, 8). Colonization “chained the human to the juridical and worked to foreclose other scenarios for the human” (jh, 9). Although colonial law proclaimed itself as the vanquisher of despotic government, it legalized and institutionalized certain forms and territorial distributions of violence. By distinguishing between permissible and impermissible suffering and pain, the law claimed the power to decide on the presence or the absence of the human.

Introducing Juridical Humanity

Esmeir focuses on Egypt under British occupation, from 1882 to 1936. By the mid-nineteenth century, the Ottoman Empire held a tenuous grasp on Egypt. The reign of Isma’il Pasha and his son Tawfiq inaugurated a period of increasing Anglo-French intervention. A rebellion aimed at ending foreign influence and overthrowing the khedival state began in 1881, led by Ahmad ‘Urabi. In retaliation, the British military conquered and occupied Egypt. Backed by the occupying British army, Khedive Tawfiq was restored to power as head of a puppet regime (jh, 36). With colonization came a rupture of the legal system. Legal reforms replaced the Ottoman-khedival order grounded in Islamic law with modern positive law, established secular national courts, and codified penal and civil law according to the French model (jh, 21). The occupiers quickly declared the humanity of all subjects, even the most vulnerable, the most criminalized, and the most rebellious. Reforms targeted conditions associated with khedival rules: reformers banned the use of the whip against peasants, fixed the taxes that peasants were required to pay, monitored the work of rural administrators, and regulated forced labor (jh, 89). Other reforms ameliorated prison conditions and sentencing, criminalized animal cruelty, and changed agricultural policy and criminal law to enjoin peasants into fighting a devastating cotton worm invasion (jh, 185). Colonial administrators sold the large tracts of land that previously belonged to the khedive, transferring formerly state-run land to private landowners. The state intervened in these estates in only two areas: agricultural state policy on irrigation and cotton, and rural criminal activity (jh, 219). Instances of rebellion to colonial rule inspired controversial legal innovation by the colonial authorities, including special tribunals, martial law, and criminal probation without trial (jh, 258–79).

The human appears in modern positive law in three ways: the human, as opposed to the divine or the universal, is argued to be the source of modern law; the human is the teleological end of law (a manifestation of the idea that humanity is an end in itself); and the human is incorporated into law through the institution of legal personality (jh, 73). Esmeir’s book explains how the juridical human emerges from modern positive law’s engagement with suffering, temporality, and violence.

Juridical humanity puts pain and suffering to use. The British colonization of Egypt brought a wave of reforms to prevent cruelty to peasants, prisoners, and animals. The task of law was to define productive, proportionate suffering in order that it could be legalized. Suffering seen to be beyond the limits of law...