Volume 2, Article 44 (2010)

There it was. Bombay. E.M. Forster, affectionately called Morgan by his friends, hurried to the railing of the ship to get a better view. The blue sparkling water stretched out before him until it met land on the horizon where buildings and bustling communities nestled among green trees. Forster had been sailing for two weeks. He was tired and dirty. The heat bothered him. It had forced him to sleep on deck where he could catch the occasional cool breeze. His friends Robert Trevelyan and Goldworthy Lowes Dickinson, or “Goldie,” were with him at the railing. The three men chirped about the welcome scene of city life. Forster breathed a sigh of relief. Here he would be liberated from the constraints of Britain. Forster achieved some celebrity after the recent publication of Howards End. This getaway would enable him to escape the public gaze. Soon he would see his friend and sometime lover Syed Ross Masood, and also his friend Malcolm Darling, who had recently attained a favorable post in the Indian Civil Service. On this autumn day in 1912, Forster did not know that his journey would inspire his best fiction yet.

Forster made two long trips to India during which he observed district collectors, local laws, and local courtrooms at work. He spent most of his time in territories ruled by Hindu maharajahs. His experiences in India suggest that his familiarity with colonial law was greater than that of the average Englishman living in India and certainly greater than that of the average Englishman living outside India. This familiarity manifests itself in A Passage to India, published in 1924. Forster’s knowledge about district collectors in particular allowed him to use the character Mr. Turton as a site for critique. Nevertheless, Forster transmogrifies the district collector and the legal system in several passages in the novel.

In light of his knowledge of the colonial experience, including the colonial legal experience, Forster’s rejection of verisimilitude seems intentional and not the consequence of misunderstanding. Forster allows enough actual law into the novel to ensure his and his characters’ credibility, but he does not go so far as to depict the legal system as it appeared on a day-to-day basis, perhaps because the routine workings of law did not always excite. Forster gives us enough real law to make his story and characters believable, but he does not bore us with total accuracy. His hyperbolic depictions of Turton and the law invest the novel with political significance. This essay examines how Forster uses Turton to portray colonial law and rule of law discourse as dispensable flourishes of liberal ideology. It argues that Passage challenges the idea that law is universal and can be universally applied. Forster shows instead that law is entrenched in discourses of religion, race, community, and culture. To this end, he holds up Brahman Hindu as an alternative to British rule of law and to the reforming utilitarianism of Jeremy Bentham. He contrasts the coercion and compulsion of rule of law to the emergent orders attendant upon Brahman Hindu. Although Forster later championed Mulk Raj Anand’s novel The Untouchable (1935), which attacked the endemic injustice of the Hindu caste system, he held out Brahman Hindu as a distinctive category of Hinduism that, in its inclusivity, rejected caste and exclusionism. His was not a referential but an idealized conception of Brahman Hindu; nevertheless, the signifier “Brahman Hindu” seems less important to the novel than the concept Forster summons forth: that of spontaneous order rather than of the centralized, artificial construct of British rule of law. This order represents a polycentric system.

The characters in Passage demonstrate that the colonial encounter is too complex for grand schemes of criminal and civil law. Unlike utilitarian jurisprudence, Brahman Hindu accounts for the complicated nexus of interrelated people and processes that shape Indian society. Utilitarianism and rule of law jurisprudence are closely related, especially in the British-Indian context, and Forster rejects these braided concepts in favor of the multiplicity of Brahman. Forster extols Brahman Hindu philosophy because it exalts the variety of human experience and, unlike the despotism resulting from Benthamite utilitarianism, embraces emotion and romanticism. For Forster, a one-size-fits-all legislative calculus simply will not do.

Rule of Law and Utilitarian Jurisprudence

Outside of Forster’s novel, there is not, to my knowledge, a jurisprudential school of Brahman Hindu. Yet Forster uses Brahman Hindu in a fictional medium to register an alternative to rule of law discourse. It is impossible to say whether Forster believed that an actual legal system predicated on Brahman Hindu would be viable or efficient. It is clear, however, that Forster uses Brahman Hindu in the novel to point out the insufficiencies and bigotry that rule of law discourse perpetuates. Forster may not have been literally advocating a Brahman legal system, but instead for any kind of system, like Brahman, that refused to universalize laws into ultra-rigid codes of behavior. He seems to have pointed out what Murray Rothbard recognized many years later: that Bentham’s “consistent philosophical utilitarianism” is bound up with “intensified statism” that opens “a broad sluice-gate for state despotism” (49).

Even if there is no jurisprudential school of Brahman Hindu, the makeup of colonial courts under the rule of the East India Company included Muslim Maulavis and Hindu Pandits who advised British magistrates on legal matters. Thus, there was a definite set of procedures, rules, and laws with which Hindu law participated.

The concept of rule of law has become increasingly dubious among jurisprudents. According to John Hasnas, rule of law is the belief that “law is a body of consistent, politically neutral rules that can be objectively applied by judges” (5). Figures as wide-ranging as Carl Schmitt (McCormick 205-248) and Judith N. Shklar have criticized rule of law for the ideological freight that it carries. Brian Z. Tamanaha calls rule of law an “exceedingly elusive notion” (9). Hasnas suggests that the belief in rule of law goes “a long way toward explaining citizens’ acquiescence in the steady erosion of their fundamental freedoms” (5). For Hasnas, rule of law is a “powerful” and “dangerous” myth that “can command both the allegiance and respect of the citizenry” (5). Richard Posner refers to rule of law as “the central tenet and aspiration of the American legal ideology” (43), a “complex of beliefs” (45), a “body of myth” (45), and “a cornerstone of liberal polity” (45). Posner’s indictments might apply not only to the American legal landscape but also to early 20th century British advocates of rule of law such as Albert Venn Dicey (1835-1922), who published some of his most influential work while Forster published his most influential novels (Dicey died in 1922, the year Forster visited India for the second time).

Dicey is perhaps best known for popularizing rule of law. He incorporated three kindred principles in his definition of rule of law. For the purposes of this essay, the first principle—”absence of arbitrary power on the part of the government” (183)—is the most instructive. This principle implicates the awkward interface between the British and their Indian subjects in Chandrapore. It pits arbitrariness and predictability against one another. Of this principle, Dicey claims, “In this sense the rule of law is contrasted with every system of government based on the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint” (184). In other words, rule of law is stable and steady whereas legal systems instituted upon flexible and case-by-case bases are too free from external controls to function smoothly or properly. Taking into account the prominence of Dicey’s dissertations about rule of law, and also the fact that those beliefs are firmly rooted in utilitarian and positivist traditions of jurisprudence dating back to Bentham, we may assume that Forster considered rule of law to be a product of, or justification for, colonial rule in India. If Forster did not think as much, he at least considered rule of law an apt starting-point from which to critique various formations of British imperialism. Put another way, rule of law provided Forster with a motif and theme that differed wildly from the motif and theme of Brahman Hindu that he wished to explore if not exalt. For Forster, either rule of law was a vehicle to glorify Brahman Hindu, or Brahman Hindu was a vehicle to disparage rule of law. Either way, rule of law appears in his novel like an archetypal prescription that he seeks to ward off and run down.

Forster undoes the privilege of Dicey’s rule of law and instead extols the arbitrariness and variety intrinsic to Brahman Hindu. Forster even has the Muslim Aziz reflect admiringly that “Hinduism, so solid from a distance, is riven into sects and clans, which radiate and join, and change their names according to the aspect from which they are approached” (265). Hinduism, although divided into subcategories, is inclusive in nature—so inclusive, in fact, that Aziz himself could be considered Brahman by way of Godbole (265). Aziz’s reflection is even more telling for its juxtaposition of the laws of Hindu states with the British legal system in Chandrapore. The problems in Hindu states were “totally different” because “here the cleavage was between Brahman and non-Brahman; Moslems and English were quite out of the running, and sometimes not mentioned for days” (265). The rulers in Hindu states are still Hindu people sharing a common culture. They are not a foreign power seeking to impose values upon an alien culture. Nevertheless, the “fissures in Indian soil are infinite” (265) such that even non-Hindus are incorporated into Hindu society. All are fused into the transcendental, absolute philosophy of Brahman. All are subject to the order—the laws—of the universe.

Whereas Dicey defends positive rules laid down by humans, Forster celebrates ordered chaos, a paradox that needs no resolution because it is the ultimate resolution. Chaos brings about order and justice; the British insistence on human-made order results in disorder and injustice. Therefore, British rule of law seems little more than a rhetorical flourish and a pretext for colonial rule, or else a grave mistake.

Forster and District Collectors in India

During the early weeks of his six-month visit to India, Forster enjoyed a country expedition, arranged by Masood, with a district collector, the local magistrate and revenue administrator. Attentive as he was, Forster must have scrutinized this collector as he scrutinized other figures he encountered (Furbank 226). Forster often recorded his observations of people and based fictional characters on those observations. He even seemed at times to blur the distinction between reality and fantasy. “Forster conducted his life as if everyone lived in a novel,” submits Wendy Moffat, adding that he carefully observed every occasion and subjected “even the most clear-cut matters” to interpretation (12). This trait was not lost on those who encountered Forster in India. After the publication of Passage, many of these individuals saw themselves in the various characters of the novel. Forster did not even bother concealing the identity of Mr. Godbole, a Brahman whom Foster met in Lahore (Sarker 50 and Furbank 249). Godbole appears in the novel with his name and identity intact.

During his second trip to India, roughly one decade after his first trip, Forster visited with Rupert Smith, a former assistant magistrate who had since become a district collector. Smith’s house, befitting his social station, was impressive. Smith was “rather proud” of this house, but was “later annoyed to see [it] vilified in A Passage to India” (Furbank 92). It would, I think, be fair to say that Smith and the other collectors whom Forster observed in India served as models for Mr. Turton, the fictional collector in Passage. Forster’s acquaintance with collectors suggests, at any rate, that he was at least aware of collectors’ official and legal responsibilities. Forster exaggerated and ridiculed these responsibilities in the novel. His portrayals ruffled the feathers of more than a few British readers both in Britain and in India. He received, for instance, the following letter from H.H. Shipley, a gentleman recently retired from the Indian Civil Service who had read Passage with disgust:

Frankly, your Collector is impossible. There is not a Collector in India—not an English Collector—who would behave as he does. No Collector in his senses would go to the railway station to witness the arrest of a Native Asst. Surgeon. Nor would he discuss a case ‘pendente lite’ publicly at the Club. Nor (incidentally) do Collectors clap their hands at such meetings to enforce silence or attract attention. […] If a Collector behaved as Turton did he would be written down as a madman. And pardon me if I say that the idea of the members rising to their feet at Heaslop’s entrance made me roar with laughter. In our Indian Clubs a member is a member, not a God, whether he be Collector or Merchant’s Assistant. We are not such bum-suckers as that, if you will excuse the expression. (Furbank 126–27)

Shipley’s take on Turton typifies the British outrage that Forster faced after the publication of Passage. Shipley’s perception of Turton as a real-life figure and not as a memorable or hyperbolic creation of fiction not only fails to account for narrative technique but also points to the urgency with which British readers in India sought to counter threats to existing social and legal orders.

Referred to as “the Collector” by the narrator and the other characters, Turton is an aptronymic figure in that his nickname signifies not only his job but also his “collected” demeanor. He is rich in contradiction and uniquely situated vis-à-vis the law. More or less in charge of the local government, this oft-ignored figure aspires, with limited success, to neutrality—as well he might, for the job of collector called for strategic, intercultural maneuvering. We first hear of Turton by way of three prominent Indian characters—Hamidullah, Mahmoud Ali, and Dr. Aziz—who casually discuss whether Indians and Englishmen can become friends. “Why, I remember when Turton came out first,” one of the men (it is unclear which) announces, adding, “You fellows will not believe me, but I have driven with Turton in his carriage—Turton! Oh yes, we were once quite intimate. He has shown me his stamp collection.” “He would expect you to steal it now,” counters another. This dialogue indicates how India transforms the English; it is perhaps Forster’s way of indicting the system rather than certain individuals. Forster invites readers to think of Turton as a decent man spoiled by dislocation and desensitization—as a victim, in other words—and not as an instinctively villainous oppressor. This scene also reveals the hypocrisy of the imperial legal system as manifested by a glaring double-standard: Mrs. Turton’s acceptance of a sewing machine from “some Rajah or other” in exchange for running water in the Rajah’s territory (4–5). The men remark that the law would not tolerate such bribing by an Indian, thus foreshadowing the law’s double-standard as applied to Aziz.

Turton materializes for the second time as a host (of sorts) for Mrs. Moore and Adela Quested, who are fresh off the boat from England. Turton—who will arrange an outing for the women to see the “real” India—proposes a “Bridge Party,” by which he means not the card game but “a party to bridge the gulf between East and West” (20). That Turton is fond of bridge parties is not coincidental: he himself is attempting to be a bridge between cultures, seeking out qualities both Indian and British. As if to satirize the utilitarianism that “is self-refuting in violating its own axiom of not going beyond given emotions and valuations” (Rothbard 74), Forster takes pains to portray the English as unreasonable and herdlike and the Indians, both Hindu and Muslim, as reasonable.

Unlike the other English figures who “gush” with “exalted emotion” (161), Turton seems separate from the British herd. Neither is he Indian. He seems torn between his sense of law on the one hand and unfettered passion on the other: “He was still after facts, though the [English] herd had decided on emotion” (148). Seasoned in the “business of compromise and moderation,” a man normally “brave” and “unselfish,” he vacillates between reason (he is “after the facts,” not feelings) and herd-like emotion: that “fanatical” quality “fused by some white and generous heat” (164, 146). The narrator submits that Turton’s “mind whirled with contradictory impulses” (164). Turton’s oscillations between one polarity or another signal the overarching societal behaviors—reasonable and herd-like—that Forster uses to distinguish Indians from the British. Turton’s ambivalence points, in short, to the formative oppositions dividing the fictional city of Chandrapore.

Having spent time observing colonial law in India, and having corresponded with Malcolm Darling and Masood, Forster was familiar with the colonial legal system imposed upon India. Forster might well have read James Fitzjames Stephen’s legal tracts because, besides being familiar with the popular works of his day, Forster was a close friend of fellow Bloomsbury author Virginia Woolf, Stephen’s niece and the publisher of Forster’s Alexandria, which was released two years before Passage. That Forster embellished and mocked the colonial legal system in Passage suggests that he was writing a political novel, despite his claims to the contrary. Forster was too smart and his depictions too outrageous to warrant the claim that he accidentally distorted colonial law or that his depictions of law were the result of carelessness or laziness instead of calculated design. Even if Passage is not a “political” novel, it had and has political ramifications. Forster’s portrayal of Turton satirizes the office of district collector and undermines the jurisprudence buttressing Benthamite colonial legal structures that still remain in place in India.

Some scholars have argued that Passage is a Hindu manifesto. Brahman Hindu differs markedly from the organizing principles of utilitarianism that “sought to reduce all human desires and values from the qualitative to the quantitative” and to reduce all “seemingly different values,” such as “pushpin and poetry,” to “mere differences in quantity and degree” (Rothbard 74). Contra this British-made system that treats individuals as “unmotivated objects always describing a quantitative path” (Rothbard 74), Brahman Hindu fuses all knowledge and matter into a single, transcendent unity. Brahman Hindu is at odds with a system whose legislative pretensions emphasize exclusion and classification. As early Forster scholars such as Michael Spencer have suggested, Forster sets up Brahmin Hindu as an alternative to reforming utilitarianism, with its rigid methodology of labeling and grouping. Spencer argues that Hinduism is “fused into the development of the plot,” determines “the character of at least one important figure in the novel,” and “can be seen to be involved in his [Forster’s] purposes and his [Forster’s] use of symbols in the book” (281). What Spencer does not do is relate this Hindu influence to British rule of law discourse. But it follows from Spencer’s research that Forster creates a Hindu jurisprudence that challenges the grouping and divisions insisted on by utilitarian jurisprudents.

According to Bentham, “a man may pretend to abjure their empire: but in reality he will remain subject to it [the empire] all the while. The principle of utility recognizes this subjection, and assumes it for the foundation of that system, the object of which is to rear the fabric of felicity in the hands of reason and law” (Bentham 1–2). Assuming that the highest aim of any political or legal system is to maximize happiness, Bentham insists on utility as the common denominator by which to calculate the overall social pleasure from which general happiness emanates. Systems that question utility, claims Bentham, “deal in sounds instead of sense, in caprice instead of reason, in darkness instead of light” (2). Accordingly, Bentham would have despised a legal system based on the elation of religious experience.

Nevertheless, Brahman Hindu and its attendant order and beauty are, for Forster at least, endemic to a spiritual legal system that disregards utility and mathematical equation. Forster takes pains to portray Brahman Hindu as above and beyond reason, as a state of spiritual ecstasy and liberation that nevertheless remains structured. Forster even likens the Gokul Astami festival to a passage—a reference, perhaps, to the title of the novel. “[T]he singers,” Forster’s narrator explains, “sounding every note but terror, and preparing to throw God away, God Himself (not that God can be thrown), into the storm” with the other emblems of passage: “little images of Ganpetti,” “baskets of ten-day corn,” and “tiny tazias after Mohurram” (286). Such a passage is “not easy, not now, not here, not to be apprehended except when it is unattainable: the God to be thrown was an emblem of that” (286). Therefore, the passage reflects the mystery and confusion of Brahman Hindu, from which meaning and order spring forth. Forster seems to elevate these mystic elements of Brahman Hindu over the logic-laden strictures of British-controlled Chandrapore. With fresh, spontaneous-seeming diction, he portrays the festival as the celebrants’ intense communion with the social and natural order of things. Transcending human reason, this order is true law. It is, in short, God. And God and His law cannot be superseded.

The jurisprudence of Bentham is not so stirring. It erases individuals and localities and gauges the happiness and pleasure of the majority. It is, in short, “a social felicific calculus in which each man counts for one, no more and no less” (Rothbard 76). Not so with Brahman Hindu, which celebrates complexity, mystery, and curiosity as shared in the essence of all, not just some, peoples and cultures. Benthamite utilitarians would wipe away the histories, mores, and customs of foreign peoples and replace them with a consolidated government bent on the dictates of the majority. Little wonder that Forster extols Brahman Hindu as a viable and vibrant alternative.

Many if not most of the English administrators in India adopted Bentham’s jurisprudence, a fact that is less important than the fact that utilitarianism inspired legislators in India. Élie Halévy and Raghavan Narasimhan Iyer have written extensively about this utilitarian influence on Indian administration. Both men conclude that utilitarianism is both liberal and imperial by nature. For Forster, whose motto “only connect” applauded personal relations, categorizing individuals and engineering human behavior simply would not do. Forster saw in Brahman Hindu a jurisprudence that emphasized contingency, variability, and deferral—a jurisprudence whose refusal of organizing binaries countermanded British rule of law discourse. Brahman Hindu and its emphases on inclusiveness and muddle clash with and undermine British rule of law discourse. Forster presents confusion and ambiguity as alternatives to rule of law.

It is not the case that ambiguity is what the law contends with, because order itself emerges not from law, which is a government creation, but from the voluntary association of individuals, which is, if not a spiritual creation in the Brahman sense, then at least a state of peace and harmony that reflects Brahman teachings. British rule of law was a rhetorical justification for liberal empire; it became a tactic for establishing legal structures that distinguished among groups (British, Hindu, Muslim) and that ossified mores of inclusion and exclusion. Therefore, Forster, humanist that he was, would have nothing to do with it.

Forster is hard to pin down politically. His writing cuts across party and ideological divisions. The man who gave “two cheers for democracy” defied political labels. In his personal philosophy, Forster resisted colonialism but nevertheless participated in colonialism. He decried the exploitation of local Indian peoples and cultures yet exploited those peoples and cultures, most notably by taking part in the sexual trafficking of young boys. If Passage is a political novel, it is not one that champions an abstract cause. Instead, it is one that seeks to unite individuals despite their fragmented societies.

The Role of District Collector

Partly because of Lord Thomas Babington Macaulay’s codes, and partly because of the British need to establish powerful offices that would entice colonizers to remain in India rather than return to England, collectors gained extraordinary powers between 1857 and 1909 (Arora and Goyal 243). “In him [the Collector] was created a ‘little Napoleon,’” Ramesh Kumar Arora and Rajni Goyal explain, “who, being part and parcel of the steel-frame, made it possible for the British to govern and control the vast subcontinent” (244). It is fair to say that Mr. Turton is one of these little Napoleons—an official forced to countenance Indian interests while pledging ultimate allegiance to the British sovereign. In fact, Forster goes so far as to call Mr. and Mrs. Turton “little gods” (20). Thus cast, Mr. Turton is problematic—for like other collectors he “had to adjust his autocratic rule and at times benevolent administration to a climate of representative politics” (Tummala 126). In other words, he had to straddle two societies and to pander to multiple interests; but his loyalties were to remain unchanged. Turton is a conflicted, ambivalent character in part because his occupation is itself conflicted. He is a site and symbol of British power but also of British mercy and tolerance. As such, he is the perfect character through which to critique colonial programs in general and utilitarian jurisprudence in particular. Forster uses Turton to show that British rule of law is either a myth or a pretext for nation-building, and that Brahman Hindu philosophy is a jurisprudentially sound alternative to rule of law.

The district collector was a major locus of power in the centrally planned Indian Civil Service. Arora and Goyal describe the current office of district collector as “the kingpin of district administration in India” (243). “The office,” Arora and Goyal continue, “is the result of a long process of evolution of about two hundred years of the British rule” (243). Forster’s productions came about during the late stages of this British rule. Although the “administration of revenue, civil justice and magistracy was united in the office of District Collector,” thus making the District Collector “the executive machinery in the district,” District Collectors did not become “the symbol of imperial rule” until after the 1857 revolt (Sarkar 117). Before the revolt, also known as the Indian Mutiny or the First War of Independence, the district collector signified an “extremely powerful civil servant running the executive machinery in the district” (Sarkar 117). The causes of the Indian Rebellion are disputed, but the ramifications seem to have been, in one contemporary’s words, “a persistent attempt to force Western ideas,” including Benthamite utilitarianism, “upon an Eastern people” (Malleson G. B. 412).

By the time Forster visited India, the office of district collector would entail “powers of the magistrate and the judge too” (Tummala 126), the former power being limited to small claims and ceremonial rights (Brimnes 222). During Forster’s visit, district collectors would have spent “more time on the office desk and less on tours which provided [them] an opportunity to come in direct contact with people,” including tourists like Forster (Parashar 83). The prepositional phrase “on the office desk” seems suggestive of any number of activities (some sexual) besides simply work. Anyhow, district Collectors worked closely with District Magistrates (represented by the character Ronny in Passage) and District Police Superintendents (represented by McBryde) to keep local populations under constant surveillance as required by Macaulay’s legal codes (Kumar and Verma 66–67).

Macaulay was a British statesman and a man of letters who participated on the Supreme Council of India in the early 19th century. In this position, Macaulay advised George Lord Auckland, the Governor-General of India, regarding the laws of India. The best known of these efforts is probably the Indian Penal Code, the introductory footnote to which proclaims, “These papers […] are by no means merely of Indian interest, for, while they were the commencement of a new system of law for India, they chiefly relate to general principles of jurisprudence which are of universal application” (Macaulay, The Complete Works 551). This short footnote exemplifies the extent to which doctrinaire utilitarian paternalism had come to mark British administration in India. Indeed, Macaulay’s codes pivot on the assumption that British utilitarian jurisprudence is so enlightened as to be universal. By this logic, anything at odds with this jurisprudence would be unenlightened and backward and thus would require replacement.

Depicting Ronny as foolish and Turton as misguided, Forster rejects British utilitarianism and its assertion of consequentialism and legalism. Forster constantly refers to India as a muddle; he celebrates the chaos and confusion of the Gokul Astami festival, a rapturous Hindu “muddle” that is not only “the approaching triumph of India” but also “a frustration of reason and form” (258). During this festival, Godbole, a Brahman Hindu who teaches with Fielding, detaches “the tiny reverberation that was his soul” (258, 260). This scene reveals “a positive attitude toward chaos,” which is “completely un-Western” (Singh 272). It shows that the seemingly disordered is really spontaneously ordered. Chaos, here, recalls Brahman Hindu philosophy, which blends dualities into a single state and renders all things inclusive or unified. Forster portrays Hindu as organizing despite its inherent anarchy. It is the ultimate reality and thus the ultimate law. Forster, then, reverses the British utilitarian’s assumption about the universality of his jurisprudence. The truly universal system is Indian and, paradoxically, ordered by chaos.

Roughly half a century before Forster’s experiences in India, Macaulay and others would see in these Hindu or Indian forms of lawlessness an excuse for imposing and implementing centrally planned British rule of law in India. “[I]f we had found India in possession of a system of criminal law which the people regarded with partiality,” Macaulay claims in his introduction to the penal code, “we should have been inclined rather to ascertain it, to digest it, and moderately to correct it, than to propose a system fundamentally different” (Macaulay, The Complete Works 553). Both Hindu and Muslim laws existed, but Macaulay appears to downplay them in his introduction to the penal code, saying that the “criminal law of the Hindoos was long ago superseded” (553), and likewise that the “Mahomedan criminal law has in its turn been superseded, to a great extent, by the British Regulations” (553). Because India’s existing laws lacked uniformity and consistency, Macaulay sought to reshape Indian society within a British-drawn grid that squashed pluralistic complexities and local subtleties.

Interestingly enough, the office of district collector was supposed to embody something different from rule of law. Law was the province of district judges, for whom “the rule of law, though built on English ideas, was presumed to embody universal principles of justice, and assumed as well that men everywhere would, unless checked, abuse power to their own advantage” (Metcalf 27). For the district collectors, however, “India was a different kind of place from England, so much so that even despotism, so long as it was exercised by enlightened rulers, might properly flourish” (Metcalf 27). The district collector seems to have been an English official with interests in Indian ways.

Turton embodies this tension in the novel. While Forster shows his readers that rule of law is but a farce in Chandrapore because it completely fails to secure justice for Aziz and others, Forster also implies that the office of district collector is bound to fail because there are too many contradictions at its core. Aziz is not convicted, but that is because the courtroom is not British-controlled but rather presided over by an Indian judge. Although Turton tries to straddle English and Indian societies, he ultimately throws in his lot with the British, his own kind. Supplanting the laws and offices of the land with the laws and offices of the colonizer turns out to be disastrous for both the British and Indian characters. Even the office of district collector, which is supposed to pander to Indian interests, cannot endure for too long because it is bound up with empire. Although the office is a rare anti-utilitarian icon of the British raj, it is nevertheless part of the utilitarian system; therefore, Turton succumbs to utilitarian values, which is to say that he succumbs to the negation of all values save for utility, happiness, and pleasure.

Macaulay’s codes signify these “values” of utilitarianism. They enable paternalistic beliefs and assumptions about native lawlessness because they are meant as a newer and better system. The operation of these codes “depended not on the execution of one chapter but on all with equal importance” (Kumar and Verma 67). Nothing if not panoptic, in the Foucaultian sense of the term, these codes also “provided a degree of security to life and property of the natives, but at the same time introduced [previously] unknown legal concepts that deterred resistance against the colonial state” (Kumar and Verma 67). These legal concepts sought to achieve consistency and uniformity in law, since Macaulay believed that Indian law, particularly the Hindu variety celebrated by Forster, was inconsistent and disordered. One example of Macaulay’s belief that Hindu law was inadequate is his approving citation of Sir Francis Macnaghten, who proclaims that “it is a delusion to fancy that there is any known and fixed law under which the Hindoo people live; that texts may be produced on any side of any question; that expositors equal in authority perpetually contradict each other; that the obsolete law is perpetually confounded with the law actually in force; and that the first lesson to be impressed on a functionary who has to administer Hindoo law is that it is vain to think of extracting certainty from the books of the jurist” (Macaulay 76). These perceived shortcomings lead Macaulay to conclude that Hindu laws are “arbitrary” and not actually law but a “kind of rude and capricious equity” (Macaulay 76). For Forster, however, the Hindu arbitrariness is a good thing precisely because of its equity, its rejection of general rules in favor of case-by-case approaches, and its denial of legal clichés.

Although Forster never details specific Hindu laws, he establishes Hindu as a spiritual force that signifies order and justice—things that the British administrators purport to seek. In Chandrapore, though, the British system merely bungles justice. Brahman Hindu and its mystical appearances in the novel seem to unify people and groups and to be profoundly present whenever justice is served. Before Adela retracts her false accusation, the courtroom crowds deify Mrs. Moore as a Hindu goddess. This scene is ironic and perhaps even farcical. It casts British characters as buffoons compared to the rational Indians whose legal system works despite the British claims otherwise. When collectivized to achieve governmental and legal objectives, British characters act herd-like, but collectivized Indian characters, uninterested in government as such, harmonize in spiritual communion. After Aziz’s innocence is established at trial, the punkah-wallah becomes deified in the courtroom. It seems that Forster constantly flips the statement of the Nawab Bahadur, who remarks to Adela and Ronny, “I have little experience of Hindu States […] yet I cannot imagine that they have been as successful as British India, where we see reason and orderliness spreading in every direction” (80). In fact, reason and orderliness never come about by the British system but instead by emotive and disordered Hindu worship and celebration.

Macaulay’s codes derived from Benthamite jurisprudence. Sir Leslie Stephen indicates that “The ‘Penal Code’ drawn by Macaulay […] was the first actual attempt to carry out Bentham’s favourite schemes under British rule, and the influence of the chief of Bentham’s disciples [James Mill] at the India House may have had something to do with its imitation” (36). As if to bolster this claim, Stephen adds that “Macaulay’s chief subordinate […] Charles Hay Cameron, was one of the Benthamites” (36). Benthamite jurisprudence is hard to summarize simply. Eric Stokes’s landmark work The English Utilitarians in India remains the most definitive and detailed account of this workaday jurisprudence. Two recent books, Liberalism and Empire (1999) by Uday Singh Mehta and A Turn to Empire (2005) by Jennifer Pitts, pick up on Stokes’s precedent and explain how the liberal legacy of utilitarianism—and its jurisprudential significations—led to empire and British domination. Inherent in liberalism and its utilitarian manifestations, Mehta and Pitts argue, is the paternalistic assumption that one worldview is more advanced than another and that therefore those who do not share that worldview require conversion or updating. J. S. Mill’s nuanced utilitarianism in On Liberty would add complexity to this understanding, but it falls outside the scope of this essay.

Mehta in particular holds up Edmund Burke’s conservatism as being reluctant toward empire and also the “most sensitive to the complexities of imperial links and to the strengths and vulnerabilities upon which they draw at both ends” (2). Burke was an Irishman; he understood the evils of imperialism and foreign occupation. Mehta adds that “no thinker or statesman of the eighteenth or nineteenth century expresses anything like the moral and political indignation that Burke voiced against the injustices, cruelty, caprice, and exploitation of empire” (3). For Mehta, then, Burke represents not conservatism per se but a resistance to foreign intervention and universalistic dogma. The conservatism of Burke, in short, stands in contradistinction to Benthamite utilitarianism.

The liberal universalism of Bethamite utilitarianism treats Indians as monolithic and their society as fixed. On this score, it bears noting that the universalities contemplated by Brahman Hindu are more like natural law theories than the universalities contemplated by Bentham’s analytical positivism. Brahman Hindu is above all spiritual, and natural law theories derive their lexicon from divine law and the belief that rules are immanent in nature.

Brahman Hindu technically does not espouse a particular jurisprudence at all. When I speak of Brahman jurisprudence, I speak of the motifs in Passage rather than of Brahman philosophy as understood outside of Forster’s appropriation of it. Brahman jurisprudence is mostly Forster’s revision of Brahman ideas about an infinite consciousness and infinite truth. Forster may or may not have fully understood Brahman. Nevertheless, Brahman served, on a rhetorical or metaphorical level, to challenge the Benthamite system that celebrated a different variety of inclusion: one with prerequisites for admission—adherence to British rules, submission to British centralized authority, and participation with British mercantilism. Brahman is universal in that every person or idea, however different, is already part of the Brahman conception of the cosmos; Benthamite utilitarianism is therefore universal in a way that refuses differences and assumes an intersection of all philosophical paths.

Brahman adheres to the belief in transcendent reality. Law, for Forster, is an element of this transcendent reality. Only the Indian judge, Das, and the punka wallah subaltern, who lends the courtroom an air of spirituality and divinity, bring about the kind of justice that the utilitarian schema fails to bring about. Even if Das applies British law—a possibility not made clear in Forster’s portrayal of the Anglo-Indian legal system—his oversight in the courtroom allows the spectators to chant uncontrollably and to force Adela to retract her accusation. Unlike Brahman Hindu, British views on law are calculated and mathematical. Moments before the Muslim Aziz resolves to become a doctor and a poet in a Hindu state, Hamidullah points out that the British legal system leads to occasional disaster and even reveals the “secret thoughts” that British people maintain against Indian character (and characters) (299). A system of “true” law would not perpetuate bias or pander to majority interests. It would be a form of natural law such as that exposited in Forster’s appropriation of Brahaman. Nevertheless, Bentham despises natural law and fumes against natural law thinkers like William Blackstone. Therefore, Bentham’s system does not result in justice in India. That is why Hamidullah remarks to Aziz, “If God himself descended from heaven into their [the English] club and said you were innocent, they would disbelieve him” (299). A system based on utility and happiness simply manufactures law into uniformity consonant with majority whim and preference. Law based on moral and divine prescription, however, is not so petty as to assimilate local laws into the laws of England; thus, it will not decimate the customs of a foreign and less powerful populace. Being immanent and a priori, it will not permit a group to suffer at the hands of legal administrators—district collectors, district superintendents, and the like—for whom general happiness means general British happiness.

For all of its emphasis on equity and fair play, the British system only solidifies inequality and unfairness. This irony is at the heart of Benthamite imperialism. Pitt lists three defining characteristics of utilitarians in this Benthamite tradition: a “narrow and hierarchical understanding of progress,” a belief “that British rule of ‘backward’ peoples was both morally justified (even a moral duty) and good for the conquered nations,” and a “conviction that certain peoples were unfit for self-government” (104). Utilitarianism is predicated on “exclusionary conventions” pivoting on universal principles that necessarily delegitimize those constituents whose customs and conventions differ from the supposedly universal principles (Mehta 47–48). The thrust of utilitarianism is therefore bound up in awkward, self-serving logic: principle A is right and universal; people X recognize the rightness and universality of principle A; people Y fail to recognize the rightness and universality of principle A; therefore, people X need to civilize and educate people Y, lest people Y self-destruct by adhering to wrong principles. The problem, of course, is that people X are not motivated by a purely humane desire to civilize and educate, but instead are motivated, economically or otherwise, by the process of civilizing and educating. Altruism becomes part of the rationale for colonizing.

In the nineteenth and early twentieth century, district collectors played vital roles in transforming this rationale into actual practice. Tasked with countenancing Indian interests, district collectors like Mr. Turton were nevertheless agents of the British utilitarian system. Like Fielding, a schoolteacher, Turton fails to occupy the space between the British and Indian binaries, despite his desire to do so. No matter how hard he tries or how many bridge parties he hosts, Turton is unconditionally wedded to British ideas of ethnic and cultural superiority. He fails to recognize the follies of rule of law and misses the grave and healing import of Brahman Hindu.

From Turton Towards a New Jurisprudence

For much of the novel, Turton tries to balance his allegiance to Britain and his duties toward Indians. He hosts bridge parties, for instance, and fraternizes with Indians. In the scene at the club, wherein the Englishmen discuss the charges against Aziz and what should be done about them, Turton tries to remain “scrupulously fair,” although he also wants to “avenge Miss Quested and punish Fielding,” who has, it seems, taken Aziz’s side over the British (164). Despite his anger, Turton resolves to go about “the old weary business of compromise and moderation” (164). He reminds himself that, “in the eyes of the law, Aziz was not yet guilty” (165). Yet the law does not matter in Chandrapore because Aziz has been found guilty in the court of British public opinion. Moreover, law in the colony amounts to public opinion. Justice may be blind, but injustice is not—it holds Aziz accountable for his foreignness and for the color of his skin.

Even if Turton discourages violence against Indians, telling the room, “Don’t start carrying arms about,” he can no longer occupy the space between the British and Indian binary (166). He comes down on the side of the English and thereby demonstrates that law is not merely a written text or a code of rules but a bundle of biases and personal preferences. British law rests on prejudices outside of the pure, divine law that is Brahman Hindu. Turton shows, in other words, that rule of law can never work in a society controlled by one group that is culturally distinct from the less powerful group.

Like a good utilitarian, Turton abides by rationality and logic. The result is a gross legalism that compels a segregated worldview. Turton supports one “simple rule” above all: Indians and English belong in separate societies (147). “I have had twenty-five years’ experience of this country,” he pontificates to Fielding,

and during those twenty-five years I have never known anything but disaster result when English people and Indians attempt to be intimate socially. Intercourse, yes. Courtesy, by all means. Intimacy—never, never. The whole weight of my authority is against it. I have been in charge at Chandrapore for six years, and if everything has gone smoothly, if there has been mutual respect and esteem, it is because both peoples kept to this simple rule. (147)

This rule anticipates the end of the novel when Fielding asks why he and Aziz cannot be friends and the land and sky seem to answer, “No, not yet,” and “No, not there” (293). One could argue that this vision of segregated society—which may not have been Forster’s vision—is offensive and against the all-inclusive Brahman Hindu spirit of the story. And yet it is a vision that Fielding and Aziz seem to share. It flies in the face of the “aesthetic of clutter and confusion” at the Gokul Astami festival (Singh 274). It denies the forces of nature that unite everyone as a marvelous energy. It therefore is not law at all but rather an unjust perversion of law. Not being true law, it is not morally binding. Assuming that Spencer’s thesis (above) is correct and Passage is a Hindu magnum opus, Turton’s segregated worldview gainsays the general oneness articulated in Brahman philosophy and privileges that British fiction—rule of law—that seeks to establish opposition structures rather than to embrace hybrid, transcultural unities.

Although English characters call for rule of law in the colonies, they go to great lengths to violate true law, unjustly prosecuting the innocent Aziz with shoddy evidence. Although they aspire to logic and calculation, they become like emotional herd animals with no ability to reason. Forster likens emotion, which always has to do with racial difference, to herd-like behavior. He employs this tactic when describing Fielding as having no racial feeling, “not because he was superior to his brother civilians, but because he had matured in a different atmosphere, where the herd-instinct does not flourish” (52, my italics). If this sentence is representative of Fielding’s character, then Fielding’s racial enlightenment is the product of a distinct cultural system, an inherited behavior not necessarily chosen. More than Fielding, then, Turton straddles English and Indian societies, occupying an interstitial space and resisting “herdism” by asserting his individuality. Turton is, to that end, the only English character who invites “numerous Indian gentlemen in the neighbourhood” to his home, an action that “caused much excitement” (35). Unlike Fielding, however, the conflictual Turton maintains a clear distance from these Indians, lending critical substance to Mahmoud Ali’s belief that “Turton would never [invite Indians to his house] unless compelled” (35). Turton’s hospitable gestures and high-minded aspirations to neutrality amount to little more than subtle, apologetic pleadings to and for existing social norms. Turton is, despite himself, a servant of British culture.

In contrast to Turton, McBryde, the District Superintendent of Police, stands for all that is absolute in British culture; he epitomizes the absurdity of English assumptions about the nature of Indian men, believing that “all unfortunate natives are criminals at heart, for the simple reason that they live south of latitude 30” (149). From this position, McBryde infers that Indians are guilty by nature, or, in Calvinistic terms, predestined for sin; therefore, he reasons, the English cannot hold Indians accountable for crimes because “[t]hey are not to blame, they have not a dog’s chance—we should be like them if we settled here” (149). This claim is both resonant and politically charged, rooted as it is in the belief that individuals are products of their environment. Such a belief would seem to further justify imposing colonial rule by suggesting that changing the environment would also change the people in the environment. If Indians are culturally conditioned subjects, their tendencies and behavior assigned them by their communities, then they lack the requisite mens rea for their crimes; they are blameless, having “transgressed” without mental fault. The irony, of course, is that McBryde himself was born in Karachi (south of latitude 30) and “would sometimes admit as much with a sad, quiet smile” (149).

A self-proclaimed paradox, McBryde reveals how Anglo-Indian relationships depend upon the signification of negative biological characteristics, how Englishmen presuppose an innate and unchanging origin for these characteristics, and how these presuppositions “justify” the double-standards of the English legal system—a prime example being Mrs. Turton’s acceptance of bribes. “When we poor blacks take bribes,” submits Mahmoud Ali, an Indian lawyer, “we perform what we are bribed to perform, and the law discovers us in consequence. The English take and do nothing. I admire them” (5). Ali realizes that law in Chandropore is a discursive construct and so mocks its purely notional grounds.

Isolated from the English in his supervising role as collector, Turton ruminates and forms judgments by process of logic; but among the English in his support for Adela, he grows irrational. At times the reason and emotion binaries collapse into each other in his ambivalence. For example, after Aziz is accused of raping Adela, Fielding approaches Turton to inquire about Adela’s condition. Frustrated with Fielding, Turton ends the interview and walks onto a platform overlooking the everyday goings-on of Chandrapore. He feels “his sense of justice function” even while he is “insane with rage” (149). Later, his emotion does seem to prevail over reason as he drives through the streets, seeing “the cookies asleep in the ditches or the shopkeepers rising to salute him on their little platforms,” and saying to himself, “‘I know what you’re like at last; you shall pay for this, you shall squeal’” (149). These passions call for a “justice” that is more like revenge than retribution. But so far neither Turton’s passion (emotion) nor his reason fully coheres. His commitment to impartiality—or to the ideal of impartiality—sets him apart from the erratic, temperamental Englishmen who would mete out punishment swiftly and extra-judicially were it not for prescribed legal procedures—neutral in theory but discriminatory in practice—that putatively restrain emotion and compel rational adjudication. Yet after Adela’s rape and Turton’s abortive meeting with Fielding, Turton seems to exemplify English irrationality. Rather than ensuring justice or equality, Turton and the legal system formalize bigotry in that they do not fully realize the impartiality and non-arbitrariness so popularized by rule of law rhetoric.

Rational and polarized society fails Turton when the two worlds, English and Indian, become intimate vis-à-vis Aziz and Adela. When he suspects Aziz and Adela of becoming not just intimate but sexually intimate, he breaks down, “involved in his own emotions,” for he thinks it “impossible to regard a tragedy from two points of view” (148). His inability to see society as anything but two isolated spheres causes a shift in the balance of power: he cannot “avenge the girl” and “save the man” and thus cannot occupy that space between binaries (148). No longer the midpoint between reason and emotion, he surrenders to emotion and, as it were, tips the scales—becomes, at last, fully English. Completely disassociated from Indianness, having abandoned the principles of neutrality supposedly characteristic of all collectors, Turton appears in the final chapter in name only as Aziz declares, “Clear out, all you Turtons and Burtons. We wanted to know you ten years back—now it’s too late! […] Clear out, clear out, I say” (292). Like Fielding, and even like Forster himself, Turton is a failed cultural intermediary whose increasing prejudice calls into question the equality and consistency of the entire legal system of Anglo-India. If only Turton had abided by the law of Brahman Hindu and obliterated vacant categories like English/Indian or reason/emotion, distinctions essential to the hegemony of British rule of law, the novel might have played out differently.

Turton’s failure to connect with Indians recalls the similarly failed connections of Mrs. Moore and Fielding. These three characters, taken together, suggest that hegemonic or colonial systems prevent the triumph of personal relations by injecting both colonizers and colonized with spite and contempt. The machinery of the system makes friendship improbable if not impossible. Forster’s firsthand knowledge of the colonial experience increases the likelihood that his satirizing extends far beyond the pages of the novel and into the schema of colonial law. Turton’s botched mediations implicate this schema in ways that Mrs. Moore’s and Fielding’s mediations cannot. That is because Turton, as district collector, holds the system in place. He is a linchpin. Without him, the structure, as it were, falls apart. Forster uses Turton to show not only that the system is doomed to fail, but also that the system is based on purely British behaviors, philosophies, and norms. The system is a function of the ideological needs of colonizers. As the British characters rehearse racial scripts and act superior to their Indian counterparts, as they revise their cultural classifications, they demonstrate that the system is anything but universal. If it were universal, the Indians—Hindu, Muslim, or otherwise—would at least have some familiarity or appreciation for it. If it were universal, it would work. If it were universal, it would achieve, not deny, justice.

Turton’s role in exposing the inconsistencies and vagaries of British rule of law and its concomitant utilitarianism suggests that the Brahman Hindu philosophy celebrated by Forster provides a better starting point for governing and for mediating between cultures. The all-inclusive framework of Brahman Hindu better protects, or could better protect, basic rights. Put differently, Brahman Hindu could go some length towards establishing a system of polycentric law, a relatively new concept celebrated by philosophers and sociologists alike. Polycentric law refers to the overlapping and amalgamating of rules and jurisdictions in contrast to the legislating of a monolithic legal code that denies cultural particularities. Polycentric law is not centrally planned. With the emergence of alternative dispute resolution, Internet law, transnational law, and private adoption and child kidnapping disputes, debates over polycentric law will become even more pressing. Novels like Passage can tell us a great deal about the social and political implications of a legal system—informed by jurisprudence in keeping with Brahman Hindu—whereby individuals and localities assert and defend their culturally specific rules and regulations. Such novels can dispel monopolistic claims on law and “de-universalize” repressive jurisprudence that arrogantly presumes the backwardness of other cultures.