The following originally appeared here at Libertarian Papers. Full Works Cited to appear in Part Three.
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.
 Rothbard attacks Bentham’s theories of fiat currency, inflationism, maximum price controls on bread, ad hoc empiricism, usury (Bentham flip-flopped on this score), and so on.
 See Fisch, Jorg. Cheap Lives and Dear Limbs: The British Transformation of the Bengal Criminal Law 1769-1817. Wiesbaden: Franz Steiner Verlag, 1983; see also and Singha, Radhika. A Despotism of Law: Crime and Justice in Early Colonial India. Oxford: Oxford University Press, 1998.
 According to Shklar, “the phrase ‘the Rule of Law’ has become meaningless thanks to ideological abuse and general overuse” (21).
 According to Ian Harden and Norman Lewis, “Dicean formulations are very much a product of their age in being both markedly positivistic and empiricist” (Harden and Lewis 3). “This is hardly surprising,” Harden and Lewis continue, “given the influence of John Austin,” Bentham’s most notable protégé, “on Dicey’s thinking and the pervasive hold which particular notions of scientific analysis of the social world enjoyed during that period” (Harden and Lewis 3-4).
 As one example among many, consider the following account of Forster during his first trip to India:
Masood’s young friends who had studied law at Cambridge chafed at the indignities of their daily lives under the Raj, and were unabashed at explaining this to Morgan. In Allahabad, he [Morgan] recorded the conversations between the junior magistrate Abu Saeed Mirza and his friends at a Mogul dinner they served. They had to be ever so careful with European women, they complained—”not even a little flirt.” Whipped into honest anger, Mirza told him, “It may be fifty or one hundred years but we shall throw you out.” Morgan transposed this comment to the mouth of Dr. Aziz, though even when he finished A Passage to India in 1924 he could have no idea how prescient it would prove to be. [Moffat 110]
 For example, when Forster visited his childhood friend May Wylde in Hyderabad, May “thought that Forster developed prejudices against the British officials in India, and strived to drive away those prejudices” (Sarker 51).
 “Then they reached their [the Turton’s] bungalow, low and enormous, the oldest and most uncomfortable bungalow in the civil station, with a sunk soup plate of a lawn” (20).
 At the time of this second trip, Britain had implemented a series of repressive laws in India, making the resultant legal system a hot button issue. According to Moffat, “Anxieties about sedition engendered repressive new laws in India, as they had in Britain, too. The Rowlatt Act authorized the government to arrest anyone suspected of terrorism and to hold prisoners indefinitely without trial. In response an obscure lawyer named Mohandas Gandhi, who had just returned from South Africa, began to organize peaceful protests against the government. In the context of calls for self-rule the sclerotic condition of Dewas Senior pointed up the compromised and antique British ideas of Indian government” (182).
 See, e.g., Glen O. Allen, “Structure, Symbol, and Theme in E.M. Forster’s A Passage to India,” PMLA, Vol. 70, No. 5 (1955).
 “[R]eformers directly or indirectly influenced by Bentham, men who believed they were carrying out the Benthamite project, were powerful in Indian administration throughout the nineteenth century. Benthamites who felt they were too regularly thwarted in England, by entrenched powers and the recalcitrant body of common law, reveled in the opportunity that they believed despotic power provided for the establishment of a complete legal code (what Bentham liked to call a pannomion) and a rational bureaucracy” (Pitts 103).
 See generally, e.g., Élie Halévy, The Growth of Philosophic Radicalism, and Raghavan Narasimhan Iyer, Utilitarianism and All That.
 While staying with the maharajah of Dewas in 1921, His Highness, upon discovering Forster’s homosexuality, provided Forster with an already-budgeted-for young boy to service Forster sexually. For further reading on this episode, see Moffat 183–86, Sarker 64–68, and Furbank 81–85.