Law has always been central to British self-perception. The heritage of a balanced constitution, the rule of law, and the ‘rights of free-born Englishmen’ has been as important to the historical formation of British identity as language, Protestant religion, and perceived differences with enemies, rivals or subordinated populations. Unsurprisingly, law played an equally central role in imperial governance as well as in the justification of imperial rule. This role is still being evaluated by scholars, who continue to diverge widely in their opinions. These are not simplistic arguments highlighting or denying the blessings of English law – scholars argue over whether English law was indeed capable of being transported, and if not, what kind of laws came to be applied in the colonies. Scholars have also debated the motivations and visions underlying imperial legislation, the social effect of the laws as applied, and the role of colonial populations themselves in shaping these laws and their effects.
Jack Greene, ‘Empire and identity from the Glorious Revolution to the American
Revolution’, in Oxford History of the British Empire, Vol. II, pp. 208-230
David Armitage, The Ideological Origins of the British Empire (Cambridge: Cambridge University Press, 2000)
Daniel J. Hulsebosch, ‘The ancient constitution and expanding empire: Sir Edward Coke’s British jurisprudence’, Law and History Review, 21: 3 (2003)
Law and ideology
Scholars studying the ideological roots of the American War of Independence have pointed to the centrality of constitutional claims by the colonists. Rebelling against Parliamentary control and taxation, they claimed the right to be British and to enjoy the legal protections that they claimed were afforded by the British constitution. The claim to a distinctive American national identity was one that followed, rather than preceded the rebellion in the north American colonies.
In what historians call the ‘second British empire’ – centred on Africa and Australasia – law was supposed to be Britain’s particular boon to previously benighted societies. By prohibiting the murder and mutilation of women and children, the freeing of the enslaved, the ending of arbitrary rule by despotic rulers, and the introduction of property rights and the incentives to free productive labour – Britain would bring such places to civilisation. In fact, that Britain would do so justified their rule over foreign people and the postponement of democracy while colonised people were prepared for that political privilege. Scholars however have demonstrated that reformism with relation to social evils such as ‘Suttee’ or the burning of Hindu widows with their husband’s corpses in India, or cliterodectomy in East Africa, British statesmen and legislators were cautious and more concerned with avoiding allegations of cultural aggression than with the experience of women themselves. Also, in all these cases, because legal reform came packaged as a much broader civilisational and political claim, its more specific aims could be challenged and frustrated by those resisting the broader and invalid assertions of cultural superiority and the necessity of undemocratic rule. Thus, Indian defenders of child marriage and Kenyan defenders of cliterodectomy could both assert that British efforts at legal prohibition were based not on self-evident universal principles, but on cultural prejudice and political domination. Of course, such arguments were equally guilty of privileging certain specific political and social visions, many of which are ethically questionable. What is undeniable is that historically, it has been impossible to separate imperial law from imperial politics.
John L. Comaroff, ‘Colonialism, culture and the law: a foreword’, Law and Social Inquiry, 26: 2 (2006), pp. 305-314
Nasser Hussain, The jurisprudence of emergency: colonialism and the rule of law (Ann
Arbor: University of Michigan Press, 2003)
Lata Mani, Contentious traditions: the debate on Sati in colonial India (Berkeley: University of California Press, 1998)
Susan Pedersen, ‘National bodies, unspeakable acts: the sexual politics of colonial policy-making’,The Journal of Modern History, Volume 63: Issue 4 (Dec., 1991), 647-80
Partha Chatterjee, ‘The nation and its women’, Chapter 6 in his The nation and its fragments: colonial and postcolonial histories (Princeton, 1993)
Law and order
Africanists in particular have argued that no matter what the ideological assertions, the
primary function of colonial law was the maintenance of order. Indeed, under the arrangements of indirect rule which were instituted in many parts of British-ruled east and west Africa, the tribunals and jurisdictions of European and ‘native’ law were separated, the latter administered either by British magistrates or by African chiefs. In these tribunals, common law procedures designed to protect the rule of law – such as a jury of peers, right to legal representation, right to appeal – were absent, as was any pretence of separating the executive from the judiciary.
Such arrangements were justified with reference to the special nature of the subjects of such tribunals – in this case, Africans – who were said to appreciate personal authority over the intricacies of law. Similar arguments were in fact made about the people of the Punjab – which also happened to be the recruitment base for the British imperial army. Whether or not this was a true characterisation of Africans or Indians, reliance on co-opted powerful local figures, and deference towards their prejudices and interests was often the most pragmatic method of colonial rule.
David Killingray, ‘The maintenance of law and order in British colonial Africa’, African
affairs, 85: 340 (1986), pp. 411-437
H.F. Morris and James F. Read (eds) Indirect Rule and the Search for Justice: Essays in
East African legal History (Oxford: Clarendon Press, 1972)
Law as culture
And yet, institutionally bolstered conservatism does not describe the effects of colonial law accurately. Whether in the form of administrative orders or rules for resolving disputes and punishing crime, law played a huge transformative role across the British empire. It did so by changing the social value and purpose of things, the rhythm and rules of work, the use and division of space, and even the order of personal relationships. For example, both great philosophers and ordinary European settlers assumed that in north America, and to an even greater extent, Australia, the manner in which indigenous people related to nature and used natural resources revealed them to be incapable of owning property. Thus, in their view, until the arrival of European settlers, these portions of the earth were in fact empty land, orterra nullius. This culturally blinkered idea caused displacement and dispossession on a scale that continues to be evaluated even today.
In those parts of the British empire where the norm was recognition rather than denial of existing norms and entitlements, law was no less transformative. Scholars have shown that what purported to be African customary law were not only colonial creations, but they were the products of both British expectations about African society and the specific agendas of African notables who offered to inform the rulers regarding the rules by which their societies functioned. Moreover, whether during the process of legislation or codification, or during a legal dispute, colonial litigants revealed themselves as fully aware of what the government officials and the law expected of them, and proved more than willing to represent themselves and their cultures accordingly.
Law turns the mirror in a different direction when it reflects British conflicts with larger, more hierarchical, militarised and resource-rich Asian regimes. There legal disputes reflect British aspirations and frustration in the face of another regime’s assumptions and power structures. In the early nineteenth century, British expatriate traders, crowded at the port of Canton, complained not only about China’s strict regulation of foreign trade but also about having to submit to the Chinese legal system, which they alleged was corrupt, irrational and barbaric. In an altered context following the Chinese defeat in the Opium wars, the infamous unequal treaties signed between Britain and China not only provided for reparations and opening of treaty ports, but also that henceforth Chinese officials would not refer to British subjects with the character 夷 ‘yi’ which the British took to mean ‘barbarian.’ While this may seem a laughably minor issue in an international conflict over drugs, power and sovereignty, the dispute over this single Chinese character has been subject to vastly varying scholarly interpretations. Some have seen in this episode a beginning of the forced education of China in a modern system of international law and diplomacy. Others however see a gradual British creation of a powerful negative stereotype about the Chinese as lawless and subject to a despotic regime, which would eventually justify their own violent methods of changing the terms of international trade and inter-state relations.
Of course, colonised and subordinated people argued back about what things really meant and what good law ought to consist of. Thus, when the Government of India proposed to pass a law in 1892 that would raise the legal age of consent to sexual intercourse to twelve, Hindu nationalists argued that such legislation consisted of an unjustifiable aggression by an alien government into the most intimate area of family life. Citing Sanskrit scriptures that recommended marriage for girls well before puberty and marital intercourse immediately afterwards, many argued that British rulers had no right to define either Hindu marriage, or what happened within it. That such scriptures may not have been followed by most Hindus, or that its strict application may cause suffering for little children was conveniently ignored by such advocates of Hindu law.
Genevieve Lloyd, ‘No one’s land: Australia and the philosophical imagination’, Hypatia 15: 2 (2000), pp. 26-39
Lydia Liu, The clash of empires: the invention of China in modern world-making(Cambridge, Mass., 2004)
Tanika Sarkar, Hindu wife, Hindu nation: community, religion and cultural nationalism (New Delhi: Permanent Black, 2001)
Kristin Mann and Richard Roberts (ed) Law in colonial Africa (London: Heinemann, 1991)
Sally Falk Moore, Social facts and fabrications: “customary law” in Kilimanjaro, 1880-1980(Cambridge: Cambridge University Press, 1986)
Law and justice
Equality and freedom could therefore be compromised, property used to dispossess others, and cultural defence used to perpetrate and justify violence against the vulnerable. And yet, what is striking about the records of legal trials and disputes from across the British empire is the unquenchable hope that people expressed in the possibility of justice. Unlike Gandhi in 1922, not all colonised people pleaded guilty to crimes they were accused of, thus rejecting the legal system altogether; neither did they accept the social status ascribed to them. Many argued for their rights, like James Somerset, the slave who jumped ship, was re-captured and was eventually declared free by Lord Mansfield in 1772. They did so even when social prejudices, legal precedent and their extreme vulnerability may have made their cause appear hopeless. This website is dedicated to their hopes.
James Oldham, ‘New light on Mansfield and slavery’, Journal of British Studies, 27: 1 (1988), pp. 45-68