Địa lý Tưởng tượng, Pháp lý Phương Tây & Luật: Tác động đến Nhận diện, Đa dạng và Thiểu số

This electronic thesis or dissertation has been downloaded from the King’s Research Portal at https://kclpure.uk/portal/ Occidental Legality, Imagined Geographies, and Law Implications for Recognition, Diversity and Minorities in Liberal Societies Gilani, Sabrina Awarding institution: King's College London The copyright of this thesis rests with the author and no quotation from it or information derived from it may be published without proper acknowledgement. END USER LICENCE AGREEMENT Unless another licence is stated on the immediately following page this work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.org/licenses/by-nc-nd/4.0/ You are free to copy, distribute and transmit the work Under the following conditions:  Attribution: You must attribute the work in the manner specified by the author (but not in any way that suggests that they endorse you or your use of the work).  Non Commercial: You may not use this work for commercial purposes.  No Derivative Works - You may not alter, transform, or build upon this work.

Any of these conditions can be waived if you receive permission from the author. Your fair dealings and other rights are in no way affected by the above. Take down policy If you believe that this document breaches copyright please contact librarypure@kcl.uk providing details, and we will remove access to the work immediately and investigate your claim. 2022 “Occidental Legality, Imagined Geographies, and Law: Implications for Recognition, Diversity and Minorities in Liberal Societies” Sabrina Gilani Doctor of Philosophy in Law Page 1 Acknowledgements This research could not have been possible without the generous financial support of the Social Sciences and Human Rights Research Council of Canada (SSHRC), the Sir James Lougheed Award of Distinction, and the Dickson Poon School of Law at King’s College London.

I would like to extend my deepest gratitude to my supervisory team, made up of Professor Maleiha Malik and Professor Aileen McColgan. Maleiha has been a tremendous support throughout the life of this project, and her enthusiasm for my research was all that kept me going for most of the last six months. Maleiha’s constant encouragement and foresight has helped move the project into new and innovative terrains and for that I am deeply grateful. I would also like to thank Aileen for starting this journey with me four years ago and seeing it through to the end.

I would like to thank Dr. Cian Murphy for his feedback on earlier drafts of this thesis, and a number of presentations that were drafted on the idea of Occidental Legality over the last four years. I am also deeply indebted to Dr. Henrique Carvalho, Dr.

Sabrina Germain, and Dr. Anastasia Chamberlen for their insightful comments and consistent support in these last few years. The opportunity to share the successes and tragedies of this often alienating process with Sabrina, Ana and Henrique made the process of writing this thesis so much more enjoyable. Their words of wisdom, support, and encouragement have meant more to me than I can ever express.

I am also grateful to Professor Christiane Wilke, who taught me during my undergraduate years at Carleton University and urged me to move into academia. Her belief in me has been deeply influential throughout my academic career. Wilke is both a mentor and an inspiration. I would like to thank my parents for being so supportive, and particularly for their kind words of encouragement and compassion over the last, very stressful, few weeks of this project.

Lastly, I am deeply lucky to have Farhan Gilani, Carmie Nicolas, and Cairo Ali Nicolas-Gilani in my life. Thank you so much for the much needed comedic relief, laughter, and words of motivation over the last few months. Page 2 Abstract This thesis discusses how imagined geographies are made real through structures of political and legal governance. Using a method of historical literary analysis, this thesis analyses how geographic space was imagined by European voyagers, explorers, and political agents during the first encounters between European and non-European people in the mid-fifteenth century.

It traces how this – owned, bounded, culturally-divisible – notion of geographic space was later operationalised through political and legal structures of governance in the colonial and postcolonial setting. I use the term Occidental Legality to refer to these spatialising tendencies and demonstrate how they produce a vision of space that we now associate with ‘territory’. This thesis reveals how an owned, bounded, and culturally-divisible notion of space emerges time and again through contemporary cultural geographies, in particular the Aboriginal Reservation, the ‘protected areas’ of national parks, and the public/private divide. Over the course of this work I trace how geographies are the product of jurisdictional struggles between normative communities, and demonstrate how colonial geographies continue to have an influence on how we manage cultural pluralism today.

In so doing, I draw a connection between the exclusionary history of the colonial experience and contemporary forms of minority protection. By drawing attention to the mutually-constitutive relationship between law and geography, I argue that a focus on territorial forms of autonomy tends to displace the issue that is at the heart of minority demands for cultural and legal recognition. This is the demand for coeval recognition. This thesis concludes by developing the notion of coeval recognition and introducing crucial modifications that need to be made to liberal law and forms of governance if contemporary societies are to ensure better protection for their minority communities.

Coeval recognition must be pursued through an acknowledgement of hybridity, a focus on sustaining conditions for self-reflexive intercultural dialogue, and more robust policies to reduce limitations on the mobility of minority communities. Page 3 List of Figures  Figure 2.1 – d’Anville’s map of Africa (1749). Retrieved from: http://www.2 - The British Colonies in North America 1763-1775. Image retrieved from: http://www.edu/maps/historical/shepherd/british_colonies_1763-76.3 – Cartouche from Rennell’s Map of Hindoostan (1782).

Retrieved from: http://memory.gov/cgi-bin/map_item.4 Human-drawn Palanquin Used for Travelling during the Earlier Periods of British India – Retrieved from: http://delhidiary.in/whats-new_detail.php?wid=nGw  Figure 4.1 – Map of Pakistan Demarcating the FATA and NWFP (now known as the Khyber Pakhtunkhwa Province). Retrieved from: http://www.org/pakistan/fata-and- nwfp-map  Figure 4.2 – Chart of Settled, Provincially Administered, and Federally Administered Tribal Areas of Pakistan  Figure 4.3 – Colonial Map of British-India. Retrieved from: http://3.com/_2ZXSsLYde8U/TJuIxtVzLxI/AAAAAAAADgQ/WqbjEHLz0I0/s1600/ british-india-map.jpg Page 4 Contents Introduction 1. Occidental Legality and the Production of Territory.

The Concept of ‘Territory’. Place, Space, Geography and Territory. Critical Legal Enterprise. The Use of ‘Postcolonial’.

Contributions to Postcolonial Thinking. Situating the Current Research. 35 Chapter One: The 'Spatial Turn' in the Social Sciences 1. Charting the Course.

The Politics of Space. The Power View of Space. Lafebvrian Space and Space as a Political ‘Strategy’. The Relational View of Space and Socialising the Spatial Form.

Making Spaces into ‘Places’. Place-Making and the Natural Environment. 59 Table of Contents Page 5 i. The Imaginative Geographies of ‘Orientalism’.

Examining the Intersection of Law and Geography. Legal Geography and its ‘Critical’ Turn. The ‘Law-in-Space’ Approach. The ‘Space-in-Law’ Approach.

70 Chapter Two: Mapping the Imperial Indigenous Encounters 1. Overview of Chapter. Concepts of Clarification. The Treaty of Tordesillas as an Envisioning of European Conquest.

Potential Spaces, Imagined Places. Techniques of Territoriality and European Experiences of Overseas Travel. Emptying Geographic Space of its Normative Content. Witnessing the Pristine Wilderness.

Tropes of Discovery and European Benevolence. Mapping Cultural Knowledge onto Geographic Space. Maps as a Method of ‘Coming to Terms with’ Difference. The Discourse of Tropicality.

The Aesthetics of Mapping. Grounding Identities in Geographic Space. Identity and the Natural Environment. Foreign Geographies as Sites of European Identity-Formation.

99 Table of Contents Page 6 D. Temporalising Geographies of Difference. The Re-writing and Erasure of Native History. The Fluidity of Space and the Potential for Native Civilisation.

Conclusion: the Social Production of Territory. 105 Chapter Three: The Political and Legal Construction of Territory 1. Colonial Possession & the Linking of Legal Regulation to Geographies of Difference. Markers of Colonial Possession.

Legitimising Colonial Possession: Vitoria’s Notion of Jus Gentium. Legal Narratives as Expressions of ‘Imperial Witnessing’. Tracing the Idea of Territory through Native-Imperial Conflict in British India. Ordering Relations through the Public/Private Distinction.

Legal Difference Anchored in Cultural Difference. ‘Territoriality’ and the Ethicalness of European Rule. Reproducing Territory through Postcolonial Governance in Australia & Canada. Why Canada and Australia?.

Constructing the Modern State: Embracing Plurality and Rejecting Difference. Constitutional Developments and (dis)Locating the Political Community. Situating Native Identity through Claims for Aboriginal Rights and Title. Immobilising the Native Body.

The Aboriginal Reserve System. Aboriginal Mobility and the Australian ‘Desert-lands’. Protecting the ‘Pristine Wilderness’. Anxieties of Proximity.

Aboriginal Perspectives on the Relationship between Law, Land, and ‘Territory’. Land, Aboriginal Identity, and Reciprocal Relations of Sovereignty. Territory and its Denial of Aboriginal Sovereignty. 165 Table of Contents Page 7 B.

Treaty-Making between Sovereign Nations. Misrepresenting Demands for Sovereignty as Demands for Property. Concluding Remarks: Law’s Reproduction of Space as Territory. 176 Chapter Four: The Operation of Occidental Legality in the Tribal Areas of Pakistan 1.

The Space-Identity Matrix of Power. Imagining the Buffer and Spatialising the ‘Frontier’. Naturalising the Buffer. Imagining the Pakhtun ‘Tribesmen’.

Frontier Landscape and Pakhtun Temperament. Making the ‘Primitive’ Substantiating the Modern. Identifying Space and Spacing Identities and the Exercise of Power. Postcolonial Law-Making & the Legal Status of the FATA.

The Constitutionally Anomalous Status of the Tribal Areas. Tribal Rights of Autonomy. Liminality and the North-West Frontier. Analysing Pakhtun Autonomy: Testing the Limits of Multiculturalism.

Fragmentary Solutions for Cultural Diversity. Places of Legal Excess. Space for Opposition. Pakistan and the Dislocation of ‘the Orient’.

218 Chapter Five: Coeval Recognition of Plurality 1. The Emancipatory and Regulatory Function of Law. 224 Table of Contents Page 8 3. ‘Recognising’ the Native and Producing the ‘Subaltern’.

Legal Recognition and Mutuality. Coeval Recognition and the Plasticity of the Human Body. Acknowledging the Potential of Hybridity. Self-Reflexive Intercultural Dialogue.

Incorporating the ‘Self-Reflexive’ Component. Forums and Strategies for Intercultural Self-Reflexive Dialogue. Contesting the Political and Economic Immobilisation of the Native Body. Occidental Legality and the Production of a Territorial Vision of Space.

Unsettling the Foundations of Territory. Broader Debates of Human Geography. Imagined Geographies and Discursive Power. Timeless Geographies, Progressive Geographies & Hybrid Geographies.

Disembodied Identities and Native Subjectivity. Law as a Cultural Process. Prospects for Further Research. 279 Table of Contents Page 9 Introduction The Spatial Tendencies of the Colonial Gaze Occidental Legality and the Territorialisation of Geographic Space If myth and fantasy touch on levels outside the conscious mind, then simply to point out the falsity of one’s imagination leaves untouched the psychic investments which determine the formation of the fiction that sustains the world we live and act within.

To recognise the instability of the divide between fantasy and reality, fiction and facts is to begin the difficult and painful task of constructing alternative futures. Occidental Legality and the Production of Territory The greatest measure of a social group’s political power is predominantly perceived in terms of its territory - the space in which it exercises its autonomous decision-making capacity. Territory is traditionally imagined as a demarcated geographic zone within which a particular group is said to have exclusive governing capacity. By determining the features and qualities of those that are included within, excluded from, and contained by a space (and the relationships and resources that it contains) groups are able to operationalise their governing power.2 Conceptually, therefore, territory is partially understood as a political and legal construct that is underwritten by specific rules of access and diversity, and designed to keep some people out and others within.

As a concept, territory materialised during the colonial period and was the product of European attempts to lay claim to newly discovered land.