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The Travels of Law: Indian Ocean Itineraries

Published online by Cambridge University Press:  09 September 2014

Renisa Mawani  and
Iza Hussin
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Extract

I believe that no country ever stood so much in need of a code of laws as India; and I believe also that there never was a country in which the want might so easily be supplied. I said that there were many points of analogy between the state of that country after the fall of the Mogul power, and the state of Europe after the fall of the Roman empire. In one respect the analogy is very striking. As there were in Europe then, so there are in India now, several systems of law widely differing from each other, but coexisting and coequal. The indigenous population has its own laws. Each of the successive races of conquerors has brought with it its own peculiar jurisprudence: the Mussulman his Koran and the innumerable commentators on the Koran; the Englishman his Statute Book and his Term Reports. As there were established in Italy, at one and the same time, the Roman Law, the Lombard law, the Ripuarian law, the Bavarian law, and the Salic law, so we have now in our Eastern empire Hindoo law, Mahometan law, Parsee law, English law, perpetually mingling with each other and disturbing each other, varying with the person, varying with the place.

–Thomas Babington Macaulay
On July 10 1833, in his lengthy and famous speech on the “Government of India” delivered to the House of Commons, Thomas Babington Macaulay offered a brief but fascinating spatial-temporal assessment of the exigencies confronting British legal reform in India. As his above-cited remarks suggest, Macaulay was well acquainted with the subcontinent's rich landscape of multiple legalities and was particularly attuned to the challenges this legal plurality posed to British rule. At the same time, his observations serve as an astute testament to law's travels. Macaulay's speech addressed a range of politically charged issues, including allegations of scandal and corruption surrounding the East India Company's administration. By the end, however, he turned from justifying and defending Company pursuits to persuading an attentive Parliament about the necessity and merits of legal codification. Given Macaulay's unwavering belief in the superiority of Britain (and Europe)—most clearly articulated in his developmentalist analogy between “Europe then” and “India now”—the most plausible itinerary of law's movements was a unidirectional one: law originated in metropolitan London and moved outward to India and elsewhere. However, in advancing his case for codification, Macaulay inadvertently exposed many other laws and their respective circuits of travel. India was difficult to govern precisely because it was a terrain of legal mobility; the residues of other people, places, and times produced a polyglot existence of “Hindoo law, Mahometan law, Parsee law, English law, perpetually mingling with each other and disturbing each other.” What India needed most, Macaulay urged, was a systematized, standardized, and codified rule of law that was to be introduced and imposed by the British: “A code is almost the only blessing, perhaps it is the only blessing, which absolute governments are better fitted to confer on a nation than popular governments.”

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Articles
Information
Law and History Review , Volume 32 , Issue 4 , November 2014 , pp. 733 - 747
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Copyright © the American Society for Legal History, Inc. 2014 

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References

1. Macaulay, Thomas Babington, “A speech delivered in the House of Commons on the 10th of July 1833,” in The Miscellaneous Speeches and Writings of Lord Macaulay (London: Longmans, Green, and Co., 1889), 569Google Scholar, emphasis added.

2. Ibid. The developmentalist ideas put forth by Macaulay were developed by his successor, Maine, Henry Sumner. These ideas were most fully articulated in Ancient Law: Its Connections with the Early History of Society, and it's Relation to Modern Ideas (London: Henry Holt and Company, 1834)Google Scholar and subsequently in Village Communities in East and West (New York: Henry Holt and Company, 1876)Google Scholar.

3. Macaulay, “A speech delivered,” 570.

4. Kolsky, Elizabeth, “Codification and the Rule of Colonial Difference: Criminal Procedure in British India,” Law and History Review 2005, 23: 631–83Google Scholar. See also Julia Stephens, “An Uncertain Inheritance: Litigating Religion and Sovereignty Across Empires,” Law and History Review, this volume.

5. This view is beginning to change as scholars emphasize imperial law as “a set of fluid institutional and cultural practices.” See Benton, Lauren and Ross, Richard J., “Empires and Legal Pluralism: Jurisdiction, Sovereignty, and Political Imagination in the Early Modern World,” in Legal Pluralism and Empires, 1500–1850, ed. Benton, Lauren and Ross, Richard J. (New York: New York University Press, 2013), 2Google Scholar.

6. Jane Burbank and Frederick Cooper argue that pluralistic legal structures were not exceptional, but rather were the norm in imperial and colonial contexts. See “Rules of Law, Politics of Empire,” in Benton and Ross, Legal Pluralism and Empires, 281.

7. Benton, Lauren, A Search for Sovereignty: Law and Geography in European Empires, 1400–1900 (Cambridge: Cambridge University Press, 2010), 3Google Scholar.

8. Ibid, 9.

9. Benton, Lauren, Law and Colonial Cultures: Legal Regimes in World History (Cambridge: Cambridge University Press, 2002)Google Scholar.

10. On law as a temporalizing force in colonial contexts, see Renisa Mawani, “Law as Temporality: Colonial Politics and Indian Settlers,” University of California Irvine Law Review, 4(1), 2014, 101–130 also Sen, Sudipta, “Unfinished Conquest: Residual Sovereignty and the Legal Foundations of the British Empire in India,” Law, Culture and the Humanities 9 (2013): especially 239–242Google Scholar. For a classic account of law and time, see Greenhouse, Carol, A Moment's Notice: Time Politics Across Cultures (Ithaca: Cornell University Press, 1996)Google Scholar.

11. These points are elaborated in Mawani, “Law as Temporality.”

12. Kalpagam, U., “Temporalities, History and Routines of Rule in India,” Time and Society 8 (1999): 141–59Google Scholar.

13. We are referring specifically to Benton, A Search for Sovereignty.

14. This is not a universally accepted view. However, Grotius's Mare Liberum, which is often cited as one of the origins of international law, especially in relation to the seas, was a response to a Dutch–Portuguese conflict in the Straits of Singapore. See Grotius, Hugo (Armitage, David, ed.), The Free Sea (Indianapolis: Liberty Fund, 2004)Google Scholar. On the Indian Ocean as the origins of international law, see also Ward, Kerry, Networks of Empire: Forced Migration in the Dutch East India Company (Cambridge: Cambridge University Press, 2009), 23Google Scholar. For a very useful reading of Grotius see Benton, A Search For Sovereignty, 120–37.

15. Ho, Engseng, “Empire through Diasporic Eyes: The View from the Other Boat,” Comparative Study of Society and History 46 (2004): 210–46CrossRefGoogle Scholar.

16. Bose, Sugata, A Hundred Horizons: The Indian Ocean in the Age of Global Empire (Cambridge: Harvard University Press, 2006), 4Google Scholar.

17. Stephens, “An Uncertain Inheritance,” this volume.

18. Bishara, “Paper Routes: Inscribing Islamic Law across the Nineteenth-Century Western Indian Ocean,” Law and History Review, this volume.

19. Ibid, 5.

20. De, “A Peripatetic World Court?”: Cosmopolitan Courts, Nationalist Judges and the Colonial Appeal to the Privy Council,” Law and History Review, this volume.

21. Other works that have started to draw these fields together to discuss law in the Indian Ocean include R. Metcalf, Thomas, Imperial Connections: Indian in the Indian Ocean Arena, 1860–1920 (Berkeley: University of California Press, 2007), 1Google Scholar; Ward, Networks of Empire.

22. Metcalf, Imperial Connections, 1.

23. Macaulay, “A speech delivered,” 559.

24. See Metcalf, Imperial Connections. See also Hussin, Iza, “Circulations of Law: Colonial Precedents, Contemporary Questions.” Onati Socio-Legal Series 2 (2012): 18–32Google Scholar.

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26. It is important to note that British jurists viewed law as a gift that was to be bestowed on Britain's colonies. See Fitzpatrick, Peter, The Mythology of Modern Law (London: Routledge, 1992), 107Google Scholar.

27. Kolsky, “Codification,” 632.

28. Mantena, Alibis of Empire, 91.

29. Kolsky, “Codification,” 653.

30. Ward, Networks of Empire, 7.

31. Ballantyne, Tony, “Race and the Webs of Empire: Aryanism from India to the Pacific,” Journal of Colonialism and Colonial History 2 (2001): 39Google Scholar.

32. R. Metcalf, Thomas, “Empire Recentered: India in the Indian Ocean Arena,” in Colonialism and the Modern World: Selected Studies, ed. Blue, Gregory, Bunton, Martin, and Crozier, Ralph (New York: M.E. Sharpe, 2002), 35Google Scholar.

33. Metcalf, Imperial Connections, 206.

34. Ibid.

35. On legal uncertainty in a different geographical context of the British Empire, see Mawani, Renisa, Colonial Proximities: Crossracial Encounters and Juridical Truths in British Columbia, 1871–1921 (Vancouver: University of British Columbia Press, 2009)Google Scholar. For a recent argument on the potential for legal pluralism to oppress and liberate see Paul D. Halliday, “Law's Histories: Pluralisms, Pluralities, Diversity,” in Benton and Ross, Legal Pluralism and Empires, 262.

36. Mantena, Alibis of Empire, 6.

37. Maine, Village Communities, 73.

38. On claims to “imperial citizenship,” see Banerjee, Sukanya, Becoming Imperial Citizens: Indians in the Late Victorian Empire (Durham: Duke University Press, 2010)Google Scholar; Mawani, Renisa, “Specters of Indigeneity in British Indian Migration, 1914,” Law and Society Review 46 (2012): 369–403CrossRefGoogle Scholar.

39. For a wonderful account of scribes in South India, see Raman, Bhavani, Documenting Raj: Writing and Scribes in Early Colonial South India (Chicago: University of Chicago Press, 2012Google Scholar).

40. Hussin, “Circulations of Law,” 21.

41. In a recent essay, Jane Burbank and Frederick Cooper argue that “successful imperial law had to be variegated and adaptable to all multiple and changing circumstances.” See Jane Burbank and Frederick Cooper, “Rules of Law,” 280. Collectively, the contributors to this Forum extend their argument by demonstrating that the mobility of law was central to its adaptability and variability.

42. McLaren, John, Dewigged, Bothered, and Bewildered: British Colonial Judges on trial, 1800–1900 (Osgoode Society for Canadian Legal History. Toronto: University of Toronto Press, 2011)Google Scholar.

43. Justin Richland, unpublished comments at “Indian Ocean Circuits of Law” workshop, University of Chicago April 12, 2013.