Laws, engagements and legacies: the legal histories of the British Empire – an introduction

Chapter 1
Laws, engagements and legacies

The legal histories of the British Empire: An introduction

Shaunnagh Dorsett and John McLaren

In recent years attention has again turned to the subject of empire(s). While previous scholarship often focused on the history of colonies, or of nation states, the newer history of empire focuses on the interconnected nature of the different parts of empire, on the idea of ‘empire’ itself. The ‘boundedness’ of colony and nation has given way to the complexity of the networks of empire. Metropole and periphery have given way to networking, borrowing and transnational history, and the nature of colonial rule has been complicated by accounts of resistance, hybridity and accommodation. Recent work increasingly emphasizes the less formal social and economic connections between the colonies and metropole which are reflected in both activities and initiatives in the colonies and how the colonial experience was internalized in Britain itself. In all of this, the role of law has remained central, although views on how we should understand the deployment of law across empire have hardly remained static.¹

Perhaps the most discernable trend in Imperial History over the last two decades has been the ‘turn’ to questions of interconnectedness and of scale in empire.² In part as a result of the flourishing in ‘postcolonial’ work, particularly from the 1980s onwards, and drawing on cultural studies and feminist scholarship, historians have self-consciously set out to rethink the relations between different parts of empire, and to work to produce a way of thinking about empire that can account for the experiences of both colonial elites and those subjected to the colonial rule.³ New interdisciplinary perspectives have raised serious questions, such as: how are we to understand the links between imperialism and globalization? They also force us to rethink frameworks through which power and authority were simply imposed from the metropole – or, more locally, from the colonial elite – on either a subordinate settler or subaltern population. Not just the connections between parts of empire, but the concept of empire itself, have been interrogated and reconceptualized through a series of metaphors: networks; webs; trajectories.⁴ One of the most important facets of the ‘new’ imperial history has been the rejection for many of the colonial or nation state as the analytical framework for considering the relations of persons and places in Empire. Many historians now look to other spaces – the Pacific, the Islamic world, the frontier, archipelagos, or river systems – or to other entities, the East India Company, the Hudson’s Bay Company – or to the personal connections and networks of empire, in order to think through the relations of empire.5

At the same time, historians outside the settler states – most obviously in India – have written accounts of the deployment of law in the places of the empire from within, using local materials to question the extent to which law was imposed, and to question the ways in which new colonial subjects actively engaged with and subverted new colonial institutions, including legal institutions. Accessing these new institutions, imperial subjects worked actively to shape colonial policies and laws, and to use these laws and policies to manipulate and reshape local (legal) relations. Prompted by a (re)turn to the archival, and accompanied by an examination of the archives itself as subject,⁶ such work increasingly draws attention to the fractured nature of the imperial subject.⁷

The centrality of law to the colonial project remains uncontested, although our understandings of the role of law have broadened and deepened. No longer do we simply think of law as ‘imposed by the colonizer’. Recent scholarship looks not just to the myriad ways in which law enabled and facilitated the imperial project, but to the complex manifestations of law within colonized spaces and the myriad ways in which law was appealed to, and accessed, by colonizer and colonized alike. Recent scholarship has approached this from numerous directions. On the one hand there has been a significant move to rethink key concepts such as sovereignty, jurisdiction, justice and legality – not just as intellectual constructs but as concepts grounded in local practices. Much of this work centres on accounts of ‘legal pluralism’.⁸ On the other hand, and at a different scale, there are also detailed histories of local legal interactions. In many colonies, for example, local courts were the interface between the laws of the settlers and the laws, cultures, practices and histories of indigenous subjects. While the more common lens through which this has been observed is that of the criminal law, other histories are uncovering use of the courts for family and civil litigation, most often, although not exclusively, in India.⁹ Pioneer work has also been done on the informal modes of resolving disputes in the civil realm within settler populations that reflected both the absence of developed infrastructures of imported systems of justice, and a desire to deal expeditiously, at little or no cost, with irritants between neighbours.¹⁰

Overall, there has been a plethora of research and writing on the legal histories of various former British colonies. These include the settler colonies, such as those that became Australia, Canada and New Zealand, and the more diverse territories acquired by conquest, cession or through suzerainty, such as those of South East Asia, Africa and the Caribbean. This increasing focus has been both encouraged and spurred on by the systematic unearthing of legal records,¹¹ as well as institutional encouragement of scholarly literature in the area.¹² As a generalization, colonial legal historians (an admittedly somewhat artificial designation) have responded more slowly to the challenges of the new imperial histories. Much legal history has traditionally been focused on single sites, rather than being comparative or transnational. In some ways this single focus has been reinforced by the increasing accessibility of legal records in various jurisdictions. The availability of new data has encouraged deeper, more nuanced scholarship, but scholarship that therefore remains locked to a single locale. As a discipline, in general, law can be slow to engage with other disciplines and to take up insights from social science or the humanities. This can also be true of more ‘traditional’ legal history. The turn to the spatial, now evident in imperial history, is a good example, having yet to make much impact on colonial legal history.13

Nevertheless, what is emerging is a ‘new’ approach to legal history in the British Empire. Legal historians are increasingly engaging in work that is pan-colonial, comparative and transnational.¹⁴ While much work does still focus on particular colonies, it often seeks to place that site within broader legal, political, cultural and intellectual frameworks.¹⁵ The result is a developing body of scholarship on a variety of legal history topics and which embodies cultural, institutional, procedural, theoretical and biographical themes. This collection (and the 2012 conference of the same name that inspired it) is one of the first attempts to bring together scholars and focus on the legal histories in and of the British Empire. That such a conference and collection now exist in itself shows perhaps a consolidation, rather than a shift, in the legal historiography of empire, and a conscious move to a more outward-facing legal scholarship.

This collection focuses specifically on the legal histories of the British Empire for two reasons. The first is practical. The British Empire was a diverse place, from the white settler colonies of Canada and New Zealand, to the penal colony of New South Wales, to the highly pluralized empires, colonies and outposts of South East Asia and Africa. All have in common some form of inheritance of British law and culture and (despite whatever other networks in which they may have sat) an ongoing relationship to the metropole. Given the diversity and richness of the approaches to legal history taken in these essays, a consideration of the legal histories of the British Empire in particular provides a point of focus. The second reason is arguably partisan. This collection is unusual because it consciously seeks to move beyond the more common focus on the ‘settler colonies’ (Canada, the United States, Australia and New Zealand), to include work from other places of the British Empire: here Africa, India, the Caribbean, the Arabian Gulf and the Straits Settlement. This collection, therefore, brings together fifteen interdisciplinary chapters that consider some legal histories from the vast sweep of the British Empire. In so doing, the book presents work by established senior scholars and by exciting newer authors.

Despite this growing literature that engages with law in and of empire, we have only begun to explore the realities of how British laws and British constitutional concepts were engaged, and engaged with, around empire. Too often law is still relegated in more general imperial histories to one of a number of forces or trajectories (for example the movements of military forces and commodities) that circulated and operated in empire.¹⁶ For its part, legal history has still to fully embrace the new imperial histories. This collection seeks, therefore, to again make central the investigation of law’s place in the British Empire, and the role of its agents in embedding British rule and culture in colonial territories. In order to so do, the chapters in this collection engage a variety of historiographic techniques, reflecting the richness generally of this new emerging scholarship. Recent work is strongly underpinned by interdisciplinarity (law, history, anthropology, sociology, criminology, geography, indigenous studies and cultural studies) and many of the essays in this collection reflect this. Strong archival research helps to bring to light the stories and histories hidden in the archives and repositories of empire.

While the essays cover a wide range of topics in the legal histories of the British Empire, this collection takes seriously the need to ensure that our new legal histories also look to the marginal, the subaltern and to minority groups.17 In some ways, the cover of this collection visually represents this aim. Whether or not the Colonial Office official who doodled the cartoon appreciated it, the image is open to a number of metaphorical interpretations: the colonial subject of colour at the margin burdened with the task of guiding the slow-moving ass of empire and its imperial passengers, but necessary as a guide to the completion of the journey; the ass as a representation of both the ‘white man’s burden’ and of the colonial territories groaning under imperial superstructure; and, a question raised in the note to the cartoon of who, the Queen (the Crown, most especially the Colonial Office) or the Commissioner (the Crown’s local representative), should control the colonial beast, a reference perhaps to tensions between the centre and periphery.¹⁸ Here, we seek to deconstruct or unpack some of the legal ideas and practices implicated in the configuring of imperial (often indigenous) subjects and their relations with imperial and colonial rulers. This focus enables us to move beyond the analysis of spread of English law as a vehicle for importing universal ideals and values elsewhere in the world, to a discernment of its engagement and negotiation with other legal cultures both non-European and European, the realities of its practice and effects, and the contested nature of its application in new and different political, social and economic circumstances, as well as the deployment of some its most cherished precepts by the colonial subjects against their colonizers.