The Rule of Laws, page 35
Influential politicians and officials denigrated the Indian governments as ‘arbitrary’, ‘founded neither on law, nor upon the opinions and attachments of mankind’, and talked of the ‘perverseness and depravity’ of the Indians.17 One East India Company employee reported that ‘law’ in India was nothing more than the will of the Muslim rulers. In the local courts, petitioners would plead for justice, he explained, but the judges would make arbitrary decisions, unconstrained by rules or proper records.18 The British, by contrast, were a ‘governing race’, fit to rule because of their ‘moral independency’, a phrase constantly heard in political circles. In 1800, a new governor, Lord Wellesley, explained that the company’s officers had initially copied the despotic methods of the Indian princes but had now reformed their methods ‘on principles drawn from the British constitution’. Imperial expansion in India could now be presented as a crusade to introduce civilized forms of government and law to those who had suffered under Mughal rule.
The British were reflecting ideas now circulating widely in Europe. French merchants and adventurers had established fortified towns and trading enclaves along the African coasts from the sixteenth century. Here, they encountered ‘wild Arabs’, as Montesquieu described them, who were little more than a race of ‘roaming thieves’.19 Later, the philosopher and mathematician Nicolas de Condorcet argued that the interests of the Africans, ‘les Noirs’, should be respected, but that they were still people ‘waiting to be civilized’.20 Throughout Europe, ideas about conquest and conversion of the ‘infidels’ had given way to projects of civilization. In the late eighteenth century, the German philosopher Immanuel Kant argued that colonial activities would open up trade routes and communications, which would create a truly cosmopolitan world order. He echoed Condorcet’s call for a global civilization that would unite people across racial, religious, and cultural divides. But for both men, this meant order based on European legal and political principles.21
IN INDIA, DESPITE the denigration of the ‘Oriental despots’, British officials knew they had to exercise caution. Having learned from their experiences in America, they were unwilling to promote large-scale settlement, seize territory, or exploit indigenous and slave labour.22 They knew that the Mughals had established complex systems of taxation, and most British officials were fully aware of the perils of trying to intervene in, and manage, a territory with a sophisticated government of its own, even if it was in disarray. It became East India Company policy to respect local laws and structures of government. The problem was how to understand them. The company employees sent to assess and collect land revenues found a mass of quasi-feudal rights and obligations that defied interpretation in Western terms. The intricacies of Persian estate law baffled them, and they struggled to master the language of the medieval texts that described property ownership. It did not help that the Indians seemed to place just as much emphasis on oral tradition, custom, and local usage as on their written records.23
The Mughal emperor’s diwani had stipulated that the company must govern its new possessions ‘agreeably to the rules of Mahomen and the law of the Empire’. So, when Warren Hastings arrived as governor in 1772, he declared that the administration should be conducted ‘agreeably to the old constitution of the Empire’.24 He encouraged his more junior colleagues to study Sanskrit, Persian, and Arabic, the languages of Indian learning and administration, in order to create structures of government that would work with Indian laws and institutions. Hastings was familiar with the Mughals’ methods, and he had studied the Ain-i-Akbari, a fifteenth-century Persian text on the arts of government. This set out rules and regulations for taxation and the administration of justice as well as detailed discussions on the qualities of a good ruler. Indian systems were to be respected, Hastings declared, and his employees should identify and record local landholdings. The problem was that English categories did not always fit indigenous ideas and arrangements.
When a British parliamentary committee argued for the introduction of British law and institutions throughout the company’s territories, Hastings lobbied hard against the idea, arguing that the ‘ancient constitution’ of Bengal was very much intact. The Hindus, he said, ‘had been in possession of laws which continued unchanged, from remotest antiquity’. He instructed the officers stationed in local districts to get to know ‘the natives’, as well as raising taxes, maintaining order, and meting out justice.25 In the district courts, they were to sit with Hindu and Muslim experts who could advise them on the relevant law. Hastings believed, correctly, that the Hindu and Muslim populations had sophisticated systems of law and justice, but he assumed that in a ‘theocratic state’ religious scholars must have worked out rules of conduct which they applied as law. These must have been written down in codes, he felt, or could at least be compiled into sets of rules, which could then be read and applied by British judges. He was impressed by the ancient Dharmashastras, which he understood to be codes of law rather than the amalgams of brahminical learning, wisdom, religious principles, ritual guidelines, and directions for practical administration that they were. The shastras, he maintained, were known to all brahmins and respected by Muslim rulers, so what was needed was an English version, which the British could apply in their district courts. It only remained for him to commission such a text. Because there were no Europeans in Calcutta who knew Sanskrit, he employed a team of Bengali scholars (pandits) to translate the most relevant Dharmashastras into Persian, from which one of the company’s employees translated them into English. He published the result in 1776, as A Code of Gentoo Laws, or Ordinations of the Pundits.
Hastings’s approach was continued by Sir William Jones, appointed to the Calcutta Crown Court in 1783. Jones had studied both Arabic and Persian and argued that although British law was superior to Indian, it could not be imposed without tyranny. ‘The laws of the natives must be preserved inviolate’, he declared, and the courts’ decrees must conform with their legal traditions. The problem, as far as Jones was concerned, was that there was no authoritative text on Indian law equivalent to Justinian’s Corpus Iuris, which meant that the judges were reliant on Indian scholars who kept the laws in their heads. He worried that they could not be trusted. Although Jones had trained in the English tradition, in which the common law crystallised out of previous cases and could, in practice, adapt to changing circumstances, he held the view, as Hastings had, that Hindu customs had been fixed since ancient times. This meant that the earliest legal texts had the greatest authority. As Jones could see, the Dharmashastras were religious as much as legal texts. So he proposed to build on Hastings’s work by compiling a complete digest of Hindu and Muslim law, and he commissioned a number of pandits to extract the relevant legal principles from the most ancient texts. They were to arrange them in a scientific order, under headings he specified, such as on contracts, succession, and property ownership. This was, of course, just like Justinian, who had ordered his scholars to compile a new text from older Roman material. Jones declared that the British government would, in this way, give to the natives of India ‘security for the due administration of justice among them, similar to that which Justinian gave to his Greek and Roman subjects’. They should then, he declared, be able to live content and productive lives under British rule. He was interpreting Indian law in European terms, as if it could be divorced from its religious foundations.
It was Jones’s successor, H. T. Colebrook, who finished the translation of the Digest after Jones’s death in 1794.26 He had studied Sanskrit and had a much better grasp than Jones of the nature of Hindu and Muslim law, appreciating the variety of legal texts in the Hindu tradition and the principles of interpretation, which militated against the establishment of any fixed and certain set of norms. He concluded that he needed to establish a system according to which the judges could work out which were the most authoritative legal texts. But time, resources, and the demands of his administrative duties did not allow him to complete this project, and the aims of British governors to discover and apply Indian laws finally stalled.
In the meantime, the Permanent Settlement of 1793 had established an independent judiciary in India and, at least in theory, the rule of law.27 The law was supposed to define and protect the private rights of all subjects. Over the following decades, some of the Indian elite were able to take advantage of the new property rights, adapting their commercial activities accordingly. But although, when faced with Indian litigants, judges and officials were supposed to ‘discover’ and recognize customary and religious norms, in the absence of useful texts they largely relied on the advice of Indian pandits. The image of the unreliable native continued to hold sway, particularly among new arrivals to the subcontinent, fresh from their schooling in Britain. In history lessons they might have read James Mill’s monumental History of British India, published in 1817, with its disparaging remarks about the ‘mendacity and perjury’ of the Indians. Mill, who had never even set foot in the country, did not appreciate that the British system baffled the pandits, and even more, most petitioners, who were often treated with contempt, leading to confusion and suspicions of perjury and fabrication. Even the more conscientious and fair-minded officials struggled with what they saw as local variations in custom and a lack of precision in legal norms, as well as differences between Hindu practices and Islamic laws.28 Of course, the English common law had developed out of just such a varied and imprecise set of customs and practices, but British officials believed it to be more rational than it actually was.
During the nineteenth century, British judges and officials effectively developed the civil law they applied in the Indian courts on common law principles. They supported market-oriented rules and entrenched private property relations in place of rights and relations based on status.29 The brahmin pandits continued to insist upon the importance of caste, which reinforced many inequalities, not least in taxation, and their new powers as legal experts allowed them to entrench the caste hierarchy, disastrously for many sections of the population. Meanwhile, Indian merchants operated through kin and caste networks, while much land was in communal ownership. But the courts decided to recognize these lands as ‘ancestral’, subject to a form of ‘trust’, thereby transforming complex and historical Indian property relations into categories familiar to English lawyers. Meanwhile, the colonial judges adopted the system of precedent, with which they were familiar from Britain, looking to earlier cases as sources of guidance and authority.
Thomas Macaulay, charged with educational reform in India, proposed an Indian Penal Code in 1837.30 He took the view that ‘a single shelf of a good European library was worth the whole native literature of India and Arabia’, and he argued for the replacement of Persian by English as the language of administration. His criminal code, eventually passed in 1860, following the British declaration of empire, was in theory based on first principles, but in practice it incorporated a good many Indian social and religious norms, which the judges realized they needed to respect if their judgements were to have any effect. Officials soon argued that they needed means to punish violent acts more severely and more quickly than the code allowed, particularly in the northwest frontier, now part of Pakistan, where sixteen Europeans had been killed or injured by 1867. Here, those who committed ‘murderous attacks’ needed ‘a lesson of obedience’, and local commissioners were allowed to exceed their legal powers to address the ‘special danger’ of multiple murders.31 The Murderous Outrages Act was passed to suppress murderous outrages by ‘fanatics’. With great irony, the philosopher John Stuart Mill, who worked for the East India Company, declared that Indians were not ready for representative government. He wrote that ‘a vigorous despotism is in itself the best mode of government for training the people in what is specifically wanting to render them capable of a higher civilization’.32
Eventually, the colonial authorities dismissed the pandits and codified practically all commercial, criminal, and procedural laws, while the judges used case reports, following the English system of precedent. Despite the best efforts of Warren Hastings and Sir William Jones to discover and preserve the indigenous legal systems of India, and despite all the opinions and advice of the pandits, the British authorities ended up establishing a form of English common law throughout India. Traditional Indian laws and legal practices, decentralized as they were, and based on centuries of esoteric textual and religious scholarship, could never have fitted into the structures established by the colonial authorities, even had the administrators better understood them. European ideas about legal certainty and rationality, along with assumptions about final authority and structures of enforcement, were a world away from the rules and practices of the Hindu Dharmashastras and the Islamic shari‘a. Legalistic though they were, and authoritative though their scholars and judges might have been, the ancient laws of India could not withstand the onslaught of British ‘rationality’ and the determination to ‘improve’ and ‘civilize’ the lands of ‘Oriental despotism’.
AFTER SPAIN AND Portugal lost the last of their South American territories in the 1830s, Britain and France expanded their imperial ambitions.33 For centuries, Portuguese and Dutch merchants had traded with their Asian counterparts from enclaves in India, Malaysia, and the East Indies while the Spanish and French concentrated on the African coastline. Now the British and French were able to dominate much of this trade. So they established consular jurisdictions in China, Meiji Japan, Siam (Thailand), Zanzibar, Muscat, and the weakening Ottoman Empire. The new arrangements reduced trading tariffs and allowed Europeans to avoid local courts and laws.
Elsewhere, they forcibly annexed new territory, including in Burma, which was incorporated into British India in 1826, and the Malaysian enclave of Malacca, ceded to Britain by the Dutch in 1824 and soon forcibly ‘pacified’. By this time they had also seized Singapore. The British had been settling parts of Australia since the late eighteenth century and now extended their domains to New Zealand, signing the Treaty of Waitangi with the Maori in 1840. Meanwhile, the French invaded and conquered Algeria, the first of their African territories, and forcibly occupied most of Indochina (now Vietnam, Cambodia, and Laos). The Dutch East India Company, too, established settlements in South Africa and Indonesia, where they had formerly maintained trading posts.
The French navy had taken Algiers in 1830, and eventually the government decided to claim the whole territory as part of France.34 Settlers inevitably wanted the French government to grant them land, but Algeria had a substantial population, and around half of its farmland was held under Islamic trusts, waqf. Some of these supported religious establishments, while others were essentially family property. French scholars were already writing treatises on North African Islamic law and now they produced dubious arguments to the effect that the family waqf were both immoral and illegal, preventing the ‘efficient’ exploitation of land. This notion justified the confiscation of all such land in 1844, although most Muslims refused to deal with it as private property. The French administration also took over responsibility for funding religious establishments, which were gradually starved of resources. The French government ultimately decided to support an Islamic legal system in Algeria, ‘le droit musulman-algérien’, partly to avoid allowing Muslims to claim full political rights. But by centralizing and subjecting it to bureaucratic structures and processes, at odds with the fluid and segmented character of the shari‘a, they turned it into something else. Like the British in India, they constructed a new form of law based on a European model.
By the late nineteenth century, Britain, along with Italy and Germany, had followed the French into Africa, where they all claimed large tracts of territory. Fearing another debilitating conflict among European powers, the German chancellor, Otto von Bismarck, convened a conference in 1884 to establish guidelines for the acquisition of African territory. So began the ‘scramble for Africa’, which, over the next three decades, saw almost 90 percent of the continent come under European control. Following its incursions into Algeria, France instituted a mission to West Africa, where it consolidated several territories under a governor general based in Dakar. Its armies confronted the rulers of the Savannah states and eventually took on the formidable Tukulor Empire, which had recently been founded by a Muslim cleric.35 Finally, they overcame the disciplined army of the Fon kingdoms of Dahomey, which had established large palm oil plantations worked by slaves. By the early twentieth century, the French ruled over a vast area which included most of modern Mauritania as well as Senegal, the Ivory Coast, Guinea, Burkina Faso, Mali, Niger, and Benin.
In an effort to overcome Muslim ‘fanaticism’, the French introduced schools and hospitals into Algeria. By the 1870s, they were pursuing a programme of cultural change through education, courts, and ministerial offices. They rolled out the same policies in West Africa, initially constructing a network of railways and launching programmes of hygiene in an explicitly ‘civilizing’ mission. As Ernest Roume, governor general in the early 1900s, declared, the idea was to go beyond maintaining order and promoting commerce: ‘We have a higher ambition and a significantly broader intention: we wish truly to open Africa to civilization.’36 This meant expanding communications, providing medical assistance, promoting hygiene, offering education, developing agriculture, and, ‘last but not least, the guaranteed enjoyment of individual rights and of the most sacred right of all, that of individual freedom’.37
On Roume’s view, to institute a fair and humane system of justice and guarantee the rule of law, it was necessary for the colonizers to wield ultimate power to settle disputes. But their new courts were to respect African customs. The object was not to turn Africans into Frenchmen. In the urban areas, they would apply French law, save in family matters, for which Muslims could also go to shari‘a courts. But in treaties with African chiefs, the colonial powers agreed to respect custom, so in the rural areas local courts staffed by African chiefs were to apply customary or Islamic laws to the African populations. Above them, the ‘circle court’, presided over by a French administrator, tried serious crimes and heard appeals.
