PANEL: The Common Law in the British Empire
Friday, October 19, 2000, 3:45-5:15
Chair: Martin J. Wiener, Department of History
`A Moral Conquest More Striking': Law, Custom and Codification in Mid-Nineteeth Century British India
Sandra M. den Otter
Central to British imperial design from the early nineteenth century was the introduction of law to India and the ambition to create legal codes for British India. This ambition found its fist and primary inspiration in Bentham whose advocacy of codification was carried to India by T. B. Macaulay, the first Law Member of the Governor General's Executive Counsel. In the wake of the Rebellion of 1856-1857 the British government, persuaded by the virtues of a more authoritarian colonial policy, revived the plan to frame codified law for India. The 1860s and 1870s saw the most ambitious period of law-making. In 1860 Macaulay's Penal Code which had been set aside for almost thirty years was enacted, accompanied by Codes for Civil and Criminal Procedure. Within two decades, under the aegis of the Law Members H. S. Maine and J. F. Stephen, an Evidence Act, Contract Law, Act of Succession, and a revised Code of Criminal Procedure had codified vast parts of customary law. The pace of codification had so accelerated that protests against "over-legislation" were increasingly made, both in London and in India. By the mid 1880s, codification had ground to a halt; none the less, by this point Indian law was much more codified and systematized than British law was or has since become. India served as a laboratory for British legal experiments.
This paper critically examines the imperial project in the 60s and 70s to translate Indian customary law into legal codes. It traces how this project was received, debated and contested in Britain and in India. The lively debate in imperial and metropolitan circles in the mid century about codification offers a valuable perspective on the interaction between legal principles and Empire-building, in particular, on the status of custom.
Ruling Strangers: Common Law and the Development of Colonial Criminal Justice in the British Mediterranean
Thomas W. Gallant
This paper examines the various tensions that emerged as British jurists attempted to promulgate law codes and to develop the corresponding criminal justice institutions to enforce them on the British colonial possessions in the Mediterranean during the first two decades of the Nineteenth-century. The Ionian Islands and Malta provide good case studies for examining issues about law and imperialism in British Empire because culturally they were less exotic and more "western" than other cultures in the empire and this indeterminacy made their categorical status within the empire problematic. And second, in each case because of their long attachment to pre-modern empires, the pre-existing legal situation was complex and complicated. Finally in both cases the peculiar manner by which the British came to occupy and rule the islands elevated the importance of the law to a very high level. The story this papers tells, then, is of the sustained and important debates that British, Maltese and Greek jurists engaged in over the role of law in society, the applicability of the Common law to other cultures, and the nature of judicial administration. The paper demonstrates how the British endeavored to impose a vision of law on colonized peoples, but also how out of that struggle important ideas about the role of law in British also emerged.
Law and Sexuality in the British Empire
Associations between indigenous peoples and sexual 'deviance' was a point of entry for colonial rule throughout the period of high imperialism so closely associated with the nineteenth century. Throughout the colonies they ruled, and frequently using the doctrine of 'legal repugnance,' the British imposed their own ethnographic understandings and their own moralities on local law. At the same time, however, colonial rule offered lip service to local custom and tradition.
This paper will examine the colonial laws around the regulation of prostitution, arguing that they constituted a central feature of colonial rule. Though nominally the same in all colonies, these laws were startling dissimilar, differing largely on the basis of how the colonial authorities viewed what they saw as indigenous sexualities in a given environment. This combination of early anthropology and sociology alongside the rule of law was a potent mix which fed colonial knowledge about race and sexuality.
Concentrating on the Asian colonies of Hong Kong, the Straits Settlements, and India, this presentation will pursue the contradictory themes around the legal regulation of sexuality in the nineteenth century.
Comment: Peter Karsten, Department of History
University of Pittsburgh