Themes

It has been only in the past two or three decades that the importance of law in shaping imperial endeavour has come to be appreciated. Previously, law, particularly when seen in comparison with the economics and politics of conquest and annexation, was considered little more than a backdrop to be aware of rather than analysed in any real depth. It is now generally recognized not only that the operation of law informed European imperial endeavour, but that such endeavour was critical in the making of the shared codes of international law.

The case of Britain was representative. From the sixteenth century, at a time when European powers first found it necessary to justify imperial conquest on legal grounds, the British state exploited legal precedents in Roman and common law to assert its right to seize and subsequently exercise sovereign rights over Ireland and the individual territories which made up North America to the exclusion of the indigenous peoples. The turn to the East Indies marked a new phase for included in the original charter of the East India Company was a remarkable clause empowering the company to seize all lands owned by ‘heathens’. In the heathen East Indies, however, the company discovered lands  ruled by a powerful and well organized elites which had no intention of yielding to British demands whether or not they were justified by international law. In India, the company initially had to rely on agents, few of whom had a legal background, but gradually it acquired territory and there introduced a system of legal administration based on English practice which was alien and hostile to Hindu and Islamic traditions.

In the course of the nineteenth century, British sovereignty was consolidated through the annexation of land, the reins of political power and the administration of justice which relied increasingly on personnel trained appropriately in English law. It was a system used coercively to control and subdue the indigenous population by introduction of harsh legal codes which criminalized manifold aspects of indigenous customs and culture. Thus, at the same time as European colonization was rationalized as enlightened and humane, it criminalized and racialized – and so marginalized and dispossessed – indigenous peoples. It would be a mistake, however, to see law simply as an arm of imperial control, rather it was a constitutive element. The law defined territory and citizenship, the rights of colonizer and colonized, and the economic relations between them, endowing the former with an aura of authority, and the latter with one of subjection.

Such considerations offer a necessary corrective to the more celebratory accounts of the rise of international law. So while many have noted that the modern law of nations laid the foundation for abolition of the slave trade, mitigated a constate state of warfare, and promoted freedom of the seas, it has a dark side. Since the law of nations was consolidated by the experience of European colonialism, it came at a cost for the inevitable consequence was the exploitation and subjection of indigenous peoples beyond Europe.

This important new area of research has yet to attract a collection of primary sources, but John Marriott and Bhaskar Mukhopadhyay’s Britain in India, 1795 – 1905 has one of its six volumes devoted to the operation of law. There are, however, important monographs, from Berriedale Keith’s classic Constitutional History of India, Irene Watson’s Aboriginal Peoples, Colonization and International Law, to Shaunnaugh Dorsett and John McLaren’s Legal Histories of the British Empire. Crime specifically is explored in Barry Godfrey and Graeme Dunstall’s Crime and Empire, 1840 – 1940.