It is fifty years since the publication of Frantz Fanon's The wretched of the earth, and more than thirty since that of Edward Said's Orientalism – works that changed the ways in which it was possible to think about European colonialism and its relationship with metropolitan societies.Footnote 1 The disruptions that Fanon and Said inspired continue to resonate and, judging from a host of recent publications focusing on law, liberty, settlers, and sovereignty, are far from being resolved. Fundamental questions – about how to categorize different forms of imperial activity, about how to discuss colonialism, and about the possibility of writing history that brings different regions and scales into conversation – are still being framed. Answers, let alone consensus, seem far distant. This is not to say that the field is either moribund or declining. On the contrary, while it remains fractured, individual fragments are flourishing, robust interventions emerging.
This article considers how recent scholarship, ostensibly focused on questions of law and colonialism, attempts to bridge divides of subject, scale, region, and realm. Its loose chronology is the long nineteenth century; a feature of this work is a willingness to consider themes and recurrences, as much as periods. The geographical reach of the discussion is equally broad: while a reinvigorated, often comparative, consideration of Anglophone settler societies is worthy of remark, interesting and overlapping interventions are being made by historians investigating India and Britain's dependent empire, while all, in turn, draw on work examining Europe's other empires. Whether one colony or several form the focus, a common theme of this scholarship is that it is self-consciously attuned to ‘empire’, and tends to eschew parochial, colony-, or nation-bound interpretations. This article contends that as historians of colonialism combine approaches from world history, geography, life writing, and contextual legal studies with the insights of post-colonial theory and the new imperial history, fresh ground is being broken. Current work goes well beyond the study of metropolitan–colonial interactions, and is alert to the material, bodily consequences of colonialism, as well as to their representations. As such, some of the works considered in this review contribute to a new strand within the history of colonialism – perhaps even to a ‘new colonial history’ – one which emphasizes how colonial ideas and policies were translated from one location across other colonial (and metropolitan) spheres.Footnote 2
Before turning specifically to questions of law and legal cultures in Britain's empire, the article surveys three interlinked areas of particular fecundity in colonial history writing. First, questions of scale: historians, on the one hand, are considering how to illuminate the imperial, or the global, via the local and the particular, and, on the other, making efforts to negotiate a balance between the quotidian and the exceptional. Next, the discussion turns to debates about geography and space. Here, the focus is a series of new or reworked comparative frameworks – within and between distinct empires – alongside a growing array of spatial models for conceptualizing colonialism. Finally, the possibilities presented by understanding settler colonialism as a distinct phenomenon, something that differs from, or sits alongside, rather than being subsumed by, colonialism are considered. Such an explicit recognition encompasses the need to complicate the colonizers – settlers, sojourners, local officials or distant metropolitans – as well as those they colonized. This in turn opens up questions for historians of ‘colonialism’ as well as of ‘settler colonialism’. These three areas offer insights and pose problems for colonial history generally, but in conclusion their manifestations in debates about law and legal regimes are explored. A cluster of fresh scholarship urges the centrality of law to European (and especially to British) colonialism, both as an essential enabling factor for imperial activity and also (through arguments about sovereignty, subjecthood, state-sanctioned violence, and liberty) as a site that is particularly revealing of colonial relationships. While diverse conceptions of the law and interpretations of its impact are on display, it is this duality – the law as both subject and lens – that makes it an especially fruitful way to investigate the challenges facing colonial history.
I
Historians of Britain's empire have long struggled with how best to juxtapose widely divergent scales of activity, and, given their frequent deployment of a wide geographical canvas, with what weight to give the recurrent and unexceptional against more emblematic events. In Replenishing the earth, James Belich explains the striking economic and demographic growth of the ‘Angloworld’ (Britain, the United States, and Britain's settler colonies) after 1800 by reframing colonial activity and imperial relationships in terms of ‘settlerism’.Footnote 3 Belich was an early proponent of the ‘British world’ school, which sought to revive the study of colonizers, especially in Britain's white dominions, in an era when greater attention was being given to the experiences of the colonized. By teasing out the nuances and contradictions of ‘Britishness’ as it applied to the British diaspora, our understanding of the material, financial, ideological, and sentimental bonds between Britons at home and overseas has been productively thickened.Footnote 4 Here, however, Belich bursts out from Britain's empire into the Angloworld. Rejecting ‘long term and “path dependent”’ explanations, which prioritize institutional and environmental factors, he argues that ‘mega-change’ can emerge rapidly from conjunctures bringing events together with new ideas and technologies. Angloworld acceleration in the nineteenth century thus resulted from the ‘resonant interaction’ between four revolutions: American, French, Industrial, and ‘an underestimated “Settler revolution”’.Footnote 5 As Linda Colley observed, such an approach eschews both exceptionalism and parochialism.Footnote 6
Belich's ‘Settler revolution’ comprised two stages, each defining the relationship between ‘oldlands’ (Britain and the north-east of the United States) and their ‘newlands’ (Britain's settler colonies and the American West).Footnote 7 First came ‘explosive growth’ built on ‘mass transfers’ of migrants, money, and information from the old land to the new. Besides frontier populations, these flows fed mining and agricultural booms, their frenzied growth driven more by a ‘booster mentality’ than by economic good sense. Inevitably, bust followed boom, and economic collapse ushered in the revolution's second stage, ‘re-colonization’. Neatly, while the explosive growth phase ‘compressed time and supercharged growth’, re-colonization ‘compressed space and reintegrated settler colony and metropolis’. During re-colonization the oldlands reasserted economic, if not political, influence over their peripheries. Direct investment converted shattered settler societies into exporters of staple commodities, creating ‘virtual hinterlands of the distant mega-cities, London and New York’.Footnote 8 Newlands were rescued, and oldland ‘growth, urbanization and industrialization’ allowed the unique emergence of these massive conurbations prior to the second industrial revolution.Footnote 9 The rhythm of boom and bust was syncopated, affecting each region at particular times and with varying intensity.
Belich's mode is provocative: Replenishing the earth lays out a grand narrative arc, but while it is replete (indeed it almost bursts) with detail – on ventures, commodities, and crashes – its expansive geographical scope, extended chronology, and staccato chapters render the evidence suggestive rather than conclusive. As Belich himself acknowledges, little attention is paid to political or social history, while the impact of settlement booms on indigenous peoples is pursued ‘sporadically’. The characterization of women's role in the settler revolution (semi-permanent pregnancy in the boom years giving way to temperance harangues during the more introspective busts) lacks nuance.Footnote 10 The strong and compelling message to historians of empire, settler societies, and the ‘Angloworld’ is that they must breach imperial boundaries and pay attention to the pulsating rhythm of settlerism: ignoring ‘boom, bust, and export rescue’ in the history of settler societies is akin to writing ‘rural histories without seasons’. Factoring them back in ‘adds another whole colour to the historian's palette’.Footnote 11
Other scholars, equally concerned with rethinking Britain's imperial history, and the relationship between metropole and colony, have taken a markedly different approach. Drawing on transnational feminist histories, post-colonial studies, anthropology, and cultural studies, historians such as Antoinette Burton, Catherine Hall, and Kathleen Wilson question whether conventional narratives of imperial history, including the now teenaged multi-volume Oxford history of the British empire, have the capacity to ‘account for non-elite and non-western pasts’.Footnote 12 Their work, characterized as the ‘new imperial history’ (or histories), attempts to blend post-structuralist understandings ‘of race, class, nationality, sexuality and gender’ with the ‘attention to detail and historical context’ of imperial history.Footnote 13 Rather than the sweeping gaze of Replenishing the earth, a virtue is made of exploring ‘everydayness’, the ‘lived experience’ of ordinary individuals, and ‘microhistories of empire's reach and impact’.Footnote 14
Seeking new ways of theorizing difference in the imperial context challenges historians of metropolitan Britain to consider the extent to which a ‘binary divide between nation and empire’, between ‘metropole’ and ‘colony’, is sustainable.Footnote 15 As such, a central feature of this scholarship is its interrogation of the impact of the empire on Britain. Bernard Porter, by arguing that the new imperial historians have overestimated the importance of empire to ordinary Britons, represents one strand of criticism.Footnote 16 Other critics – friendly and hostile – warn that too great a focus on metropolitan cultures might inadvertently replicate the relations of empire. And, indeed, the allure of reimagining British history, as well as the magnitude of such a task, does risk displacing the study of the colonized.Footnote 17 However, as well as arguing for an additional dimension to the study of Britain, recent works influenced by ‘new imperial history’ range far beyond dissections of metropolitan society and culture, focusing on interactions between widely separated colonial sites, juxtaposing micro and macro, and questioning the relationship between the remarkable and the everyday. In this current scholarship, exchanges within and between colonies are just as likely to take centre stage as the metropolis.
Kirsten McKenzie's A swindler's progress: nobles and convicts in the age of liberty provides one such intervention and a model for writing a history in which British, European, and colonial sites are given more balanced explanatory weight.Footnote 18 McKenzie explores two entwined biographies – one of a black sheep English aristocrat, exiled to the European continent, the other of his impostor, a shadowy Scot transported to Van Diemen's Land – and places them against a background of richly nuanced contextual discussions of the social and economic conditions of early nineteenth-century life in England, Scotland, Tasmania, and New South Wales. In this account, discourses about liberty and empire, anxieties about status and respectability, and understandings of society and self are alike permeated and shaped by both metropolitan and colonial contexts. McKenzie's approach is also notable because it champions the lives of individuals as a way of looking ‘past the macro-level shifts’: her actors both illuminate and construct imperial spaces as they move around the globe.Footnote 19
Lauren Benton adopts a different, but similarly fruitful tack, operating on an even wider chronological and geographical canvas than Belich, and advancing an equally compelling and provocative account, in her case about the place of law and legal cultures in European empires, including Britain's, since 1400. Benton, trained within a world history paradigm, and, intent on resurrecting ‘“culture” as an element of global “structure”’, explicitly addresses the relationship between different scales of human activity. She describes her work as ‘an intentional juxtaposition of microhistories and macrohistorical arguments’ and deploys skilfully selected case-studies to mount arguments covering half a millennia at a time.Footnote 20 By contrast, Lisa Ford's Settler sovereignty examines just two clearly circumscribed sites of Anglophone settler colonialism – the US state of Georgia and Britain's colony in New South Wales – in a comparative and connected context. Narrowing her chronological scope to the late eighteenth and early nineteenth centuries, and her questions to the emergence of ‘pure settler sovereignty’ as revealed in the ‘everyday legal practices’ of two local, but widely separated and divergent contexts, allows Ford to demonstrate where Belich and Benton posit.Footnote 21
Ford's focus on the ‘everyday’ is, as noted, characteristic of current scholarship on colonialism, and particularly of the new imperial histories. Questions of scale, of the relationship between ‘big’ and ‘small’, which Belich, McKenzie, and Benton all tackle, are related to, but distinct from, the problem of balancing the quotidian and the exceptional. Eric Richards hinted at the difficulties of the latter in his critique of Belich's Replenishing the earth, arguing that such a dramatic account of the long nineteenth century, ‘inevitably detracts from the gradual, tedious, cumulative and often laborious business of conquering the land and creating the cities, the quiet life beyond the booms where generations of occupiers indeed “replenished the earth” and made the foundations of new worlds’.Footnote 22 Rendering ‘gradual, tedious, cumulative’ processes and experiences illuminating, let alone engaging, continues to challenge historians of colonialism and requires thoughtful approaches to sources and archives. Nevertheless, considerations of the ‘everyday’ remain in vogue. Following John MacKenzie's lead, numerous studies have revealed the degree to which empire suffused British life and culture, to the extent that its manifestations were normalized, regarded as unremarkable and mundane.Footnote 23 Thus, considerations of hegemonic metropolitan culture become studies of empire too. Catherine Hall and Sonya Rose, whilst demonstrating that for Britons empire was both ‘natural’ and ‘taken-for-granted’, note that moments of imperial crisis and metropolitan panic revealed and heightened attitudes to race and empire. At these points, they argue, the extraordinary ‘present within the everyday’ provoked ‘conscious awareness and the possibility of critique’.Footnote 24
Two recent works on criminal justice attempt to recapture this everyday experience of empire without either making the same recourse to moments of public crisis or focusing on metropolitan Britain. In his pan-imperial study of inter-racial homicide trials in the late nineteenth and early twentieth centuries, Martin J. Wiener reminds us that ‘everyday private violence’ in the British empire greatly exceeded that perpetrated by the state. His approach in An empire on trial is to explore ‘revealing episodes in the ordinary operation of the criminal law’, which ‘disrupted the smooth everyday operation of the legal machinery, leading to moments of unusual illumination of the empire's fundamental machinery’.Footnote 25 Elizabeth Kolsky, in her work on the long nineteenth century, Colonial justice in British India, likewise contends that ‘everyday acts of violence remain largely absent from the historical literature’, while the ‘micro-moments betwixt and between … macro-events are where the violence central to the workings of empire can be found’.Footnote 26 Despite these apparent similarities, Kolsky and Wiener reach quite different conclusions about the nature of both British justice and liberalism. Their divergence, which is explored in the final section of this article, highlights the slipperiness of the ‘everyday’, and the paucity of explicit archival comment on the quotidian. Ultimately, pointillist accounts of everyday life are as malleable as those that use broad brushstrokes. To this extent, historians' insistence on ‘everyday occurrences’ can be a red herring; they reveal the texture of the past (which may be what we want), but without careful contextualizing possess little inherent explanatory power.
II
Another, even more dominant, feature of early twenty-first-century work on imperialism and colonialism could be described as a ‘spatial turn’. Insights from global and world history, as well as geography, have resulted in the questioning of long-standing geographical categories, the championing of new and ever more complex spatial metaphors and terminology, and a more explicit focus on the relationship between ‘space’ and ‘place’. Increasingly, importance is attached to connections and comparisons between colonial territories, and to de-centring empire, even while retaining an awareness of the ever-changing relationship between metropole and colony. Wiener describes such ‘interactionist and comparative’ history as ‘trans-territorial’;Footnote 27 others use (if sometimes awkwardly) the terms ‘transnational’,Footnote 28 ‘transboundary’,Footnote 29 and ‘trans-imperial’.Footnote 30 Multi-site studies have proved particularly effective in pursuing a single theme across quite different types of colonial and metropolitan territory, as shown both by Wiener and a slew of publications on sex and prostitution in the British empire.Footnote 31 But the extent to which scholars have justified, or attempted to theorize, this geographical innovation varies significantly.Footnote 32 As Frederick Cooper cautioned: ‘A global interactive approach in history needs comparison, and comparison needs interactive and global analysis.’Footnote 33
Of course, works that place European imperialism and colonialism in a global context are nothing new. In 1989, C. A. Bayly's Imperial meridian set Britain's imperial expansion in the turbulent half-century after 1780 within a framework that encompassed Islamic, West and South Asian empires. The last decade, though, has seen both a more conscious theorizing of space in accounts of colonialism and the deployment of an even broader geographical framework. For example, Bayly's The birth of the modern world (2004) engages as fully with the empires of the Far East as with their European counterparts, and is genuinely global in scope. Equally, it highlights the importance of trans-national and global interconnections, arguing that ‘all local, national, or regional histories must, in important ways … be global histories’.Footnote 34
Reworking well-established geographical categories is also in fashion. Belich's Replenishing the earth ranges across Britain, its settler colonies, the ‘old East’ and the ‘new West’ of the post-revolutionary United States, even, latterly, Siberia and China. By switching his frame of reference from ‘imperialism’ or ‘colonialism’ to ‘settlerism’, Belich makes a persuasive case for bringing the independent United States back into explanations for and taxonomies of European settler colonialism.Footnote 35 Ford, too, breaks the bounds of British ‘imperial’ or ‘colonial’ history in Settler sovereignty, demonstrating the comparative and interactive power of Belich's settler ‘Angloworld’ at the local or colonial level. Drawing the global colour line, in which Marilyn Lake and Henry Reynolds track discourses of ‘whiteness’ and ‘race’ through Australia, South Africa, the United States, and Britain in the late nineteenth and early twentieth centuries, is another work to consider Anglophone settler colonies in the round, revealing the possibilities of connection and comparison.Footnote 36
Metaphors of connection, from ‘bridgeheads’,Footnote 37 to ‘webs’,Footnote 38 ‘networks’,Footnote 39 and ‘trajectories’,Footnote 40 have also proved highly influential in both ‘new’ and established approaches to empire and colonialism over the last fifteen years. Networks, whether connecting places or people, and transmitting ideas, commodities, or money, reveal both the dynamic nature of interactions across the colonial world and their spatial messiness.Footnote 41 In an elegant analysis, which tracks the regulation of prostitution in Britain's nineteenth-century empire through widely separated locales of very different scales (Liverpool, Gibraltar, Hong Kong, Cambridge), the historical geographer Philip Howell argues that networked conceptions of empire help historians avoid the temptation to explain differences between local regimes, or between the domestic and non-domestic realms, as ‘reducible to any fundamental distinction between the “metropolitan” and the “colonial”’.Footnote 42 Another well-developed model of interconnections is offered by Kerry Ward's consideration of convicts, slaves, and political exiles in the eighteenth-century Dutch empire. Her Networks of empire demonstrates that indigenous networks permeated, disrupted, and extended beyond those of the Dutch East India Company. By bringing connections to the fore, Ward upsets territorial conceptions of empire: she shows, for example, how seaborne transportation networks and thus the seasonal nature of shipping were critical to shaping the Dutch empire. Historians’ too frequent obsession with self-contained units such as nations and empires results as much, she suggests, from the constraints of historiography as from history. Accordingly, through her study of networks, Ward manages both to conceptualize and to transcend ‘empire’.Footnote 43
More generally, a range of spatial models for the study of colonialism and imperialism continues to be refined.Footnote 44 One direction for such development is the further complication of our understandings of liminal zones of interaction on the edges of colonized space. While ‘the frontier’, ‘the bridgehead’, and ‘the beach’ remain fruitful sites of investigation, other models emphasize the permeability and mutability of borders, or – like Ward – urge us to think in terms of oceanic as well as territorial space. Lauren Benton's A search for sovereignty seeks ways to overcome binary divisions between European and non-European ‘zones’, whether of territory, sovereignty or jurisdiction. She suggests that rather than the clichéd maps of empire, more useful graphic representations of imperial power would show ‘tangled and interrupted European-claimed spaces’, with intensity of colour varying according to the ‘changing and locally differentiated qualities of rule’ in each geographical region.Footnote 45 Imperial space, asserts Benton, was understood to be ‘differentiated, fragmented, and uneven’, while geographic knowledge proceeded by analogy and categorization.Footnote 46 In characterizing the forms of knowledge, understanding, and law that arose from riverine and land-based expeditions, oceanic travel, island garrisons, and enclaves of indigenous exception, Benton posits a set of much messier imperial spaces, interpenetrating and overlapping, but not necessarily at odds with one other. In a similar vein, Ford shows how in early nineteenth-century Georgia, the Cherokees successfully exerted their jurisdiction over settlers travelling on federal roads.Footnote 47 As the works of Howell, Ward, Benton, and Ford demonstrate, spatial and jurisdictional plurality was a ubiquitous feature of colonialism in and beyond the British empire. While particularly visible in a colony's early history, managing or diminishing plurality was equally important to the colonial state in full flight. For colonizers, this ambivalent terrain sometimes threatened, but at other points offered opportunity.
III
Thus far, the works encountered have ranged widely in their considerations of colonialism and imperialism, exploring the interactions of colonizers and colonized over several centuries across and also far beyond the British empire. Belich and Ford, analysing the post-revolutionary United States alongside Britain's settler colonies, pay more attention than most to classifying the groups and processes they discuss. Belich, as noted, chooses ‘settlerism’ over the more common ‘colonialism’ and ‘imperialism’, and then studies its relationship to the ‘Angloworld’, in a move that has already attracted significant critical attention. Ford deploys the more understated ‘Anglophone settlers’ and ‘settler colonialism’. By extending their discussion of settlers beyond the formal limits of Britain's nineteenth-century empire, both conjure up thorny questions of the relationship between English-speaking settler societies and colonialism, as well as the attention accorded them by historians. Belich, for example, points out that Britain's settler colonial societies endured for much longer than its empire in tropical Africa or South Asia, arguing that it ‘was settlement, not empire, that had the spread and staying power in the history of expansion, and it is time that historians of that expansion turned their attention to it’.Footnote 48
As Belich hints, while historians of Britain's empire have long acknowledged the distinctive features of colonies of settlement, most theoretical analyses have nonetheless treated ‘settler colonialism’ as a subset of ‘colonialism’. In his theoretical overview of the subject, Lorenzo Veracini offers a different approach, arguing that settler colonialism is analytically distinct from, and not just a category of, colonialism. Emphasizing that colonial and settler colonial forms ‘actually operate in dialectical tension and in specific contradistinction’ brings both modes into sharper focus. One immediate consequence of thinking in terms of settler colonialism is the addition of a new dimension to binary conceptions of ‘colonizer’ and ‘colonized’. Settlers must engage with (distant or local) representatives of the metropolitan society; both groups also interact (sometimes in contrary ways) with indigenous agencies. Thus, relations in settler colonial situations are always, at the very least, triangular.Footnote 49 Moreover, as Patrick Wolfe observed, the dynamic of settler colonialism differs from colonialism: settler societies are centrally, although not exclusively, concerned with erasing rather than exploiting indigenous peoples.Footnote 50 (Indigenous) land, not (indigenous) labour, looms largest in settler colonies. Correspondingly, as Veracini argues, settler colonial success depends on the rhetorical and/or actual removal of original inhabitants from the colonized territory, whether that be Australia, Uruguay, or Palestine. As Ford puts it, indigenous people are ‘a logical anomaly in settler polities – an embarrassment to the sovereign settler state’.Footnote 51 A further distinctive feature of settler colonialism flows from this exceptional status, that is, the (usually unacknowledged) perpetual continuation of transfers: in the absence of total genocidal erasure, the indigenous presence must continue to be denied and diminished long after settlers comprise a majority of the population and the settler ‘nation’ has been declared.Footnote 52
As well as dissecting the processes of settler colonialism, Veracini provides a taxonomy of those who carried it out. The importance of distinguishing between settlers and imperial officials has already been remarked, but Veracini also differentiates between settlers and migrants: the former are ‘founders of political orders and carry their sovereignty with them’; the latter can be characterized as ‘appellants, facing a political order that is already constituted’.Footnote 53 While Veracini's focus on ‘settler colonialism’ brings a series of practices and situations into sharper relief, and Belich's assertive ‘settlerism’ worked most effectively in colonies where the colonizing population formed, or came to form, a majority, expatriates in other colonies sometimes also thought of themselves as settlers, laid claim to a special status, and formed a distinct group with whom the imperial power had to negotiate. Hence, Veracini's key insight – that triangular, rather than bilateral, relationships, are inherent in settler colonialism – has already been extended into studies of other colonial situations, although they are often less crisply theorized. For example, both Kolsky and Wiener, in their explorations of criminal justice in Britain's empire, distinguish fruitfully between servants (whether military or civilian) of Britain's imperial state and ‘non-official’ colonizers, who can in turn be divided into further subsets: planters, settlers, merchants, missionaries, and so on. Each sees control of these non-officials – Kolsky calls them the ‘third face of British colonialism’ and (hinting at both colonial and imperial anxieties) ‘something in-between’Footnote 54 – as a central concern for the imperial government, and both credit non-officials’ assertion of their rights and privileges as a significant force in shaping the nature of colonial encounters. Other historians, too, characterize differences within groups of colonizers, and in so doing underline the point that all colonizers (and not simply those in settler societies) need to be carefully scrutinized and differentiated. In this vein, Benton divides colonizers into ‘settlers’ and ‘sojourners’; the latter engaged in trade, governance, professional services, or simply travel – for them the colonies were not intended as a final destination.Footnote 55 John Darwin muses on the utility of dividing ‘Britons overseas’ into ‘settlers’ and ‘expatriates’ in his concluding contribution to a recent volume of the same name.Footnote 56 Ford's Settler sovereignty demonstrates the complexity of relations between ‘colonizers’ with quite different agendas and perspectives, by examining how settlers in both New South Wales and Georgia by turns publicized and covered up accounts of their violent clashes with indigenous peoples, as a means of manipulating local and more distant authorities.Footnote 57
The distinctiveness of British settlers, whether operating in the ‘settler colonies’ or elsewhere, has also proved a productive avenue of recent enquiry. Wiener, Kolsky, and McKenzie, for example, all demonstrate the recourse made by British settlers to the rights of and protection due to ‘free-born Englishmen’, whether in twentieth-century Kenya, Company India, or early colonial Australia.Footnote 58 Ford argues for ‘peculiar structural continuities that constituted Anglophone settler colonialism, bound as it was by a combination of economic, demographic, legal, and imperial histories’.Footnote 59 Newcomers from across Europe populated Belich's newlands, but what made the Angloworld's settler societies remarkable was their capacity to integrate non-English-speaking migrants into Anglophone culture.Footnote 60 Others have emphasized the importance of England's common law culture, both rhetorically and in practice, to its colonial outposts, whether or not they are normally described as ‘settler colonies’.Footnote 61 Yet, this emphasis on the distinctiveness of British or Anglophone settlers is likely to be complicated if British imperialism is placed within a genuinely trans-imperial or global context, as Antoinette Burton advocates, but which has seldom, as yet, occurred.Footnote 62 For example, Elkins and Pederson's analysis of twentieth-century settler colonialism suggests that European settler societies had more points of similarity than of difference; the major divergence they identify arises between European and Japanese settler colonialism.Footnote 63
Two recent companion volumes to the Oxford history of the British empire underline that British or Anglophone settler colonialism, and particularly ‘settlers’, do demand concerted and connected attention, if not to demonstrate their distinctiveness then better to understand Britain's imperial history. The first, edited by Robert Bickers, encompasses Settlers and expatriates: Britons over the seas. Individual chapters address the relatively neglected enclaves of expatriates in Britain's formal and informal empire – in Latin America, Egypt, East and Central Africa, the Far East, and South Asia.Footnote 64 The focus is on ‘non-official communities’, which makes it easier to consider the persistence and resonances of these settlements through and after decolonization.Footnote 65 Despite its title, however, the volume does not address Britain's major colonies of settlement –the Dominions.Footnote 66 Instead, these feature in a second volume, Migration and empire, co-authored by Marjory Harper and Stephen Constantine. Here, the authors concentrate on white migration from Europe to the colonies, although two of the twelve chapters discuss non-European diasporas within Britain's empire. While there is much good about these two volumes (whether considered independently or in tandem), their organization is symptomatic of a series which often obfuscates, rather than clarifies, imperial power relations.Footnote 67
The point about the centrality of power relations between colonizers and colonized raises a charge that has been laid against the Oxford history of the British empire more generally: one which the Companion Series was designed to address, through its greater attention to women, non-whites, and geographically discrete regions within the British empire. The difficulty with Settlers and expatriates as a collection is that by leaving out the Dominions – where white settlers accrued and continue to retain the lion's share of benefits from colonization – British expatriates are made to look more vulnerable and less rapacious than a more inclusive view would permit. Harper and Constantine, on the other hand, give limited attention to settler–indigenous relations, focusing instead on the push and pull of migration. Thus, ‘settlement’ as a process falls into a gap between the volumes. This is regrettable, as there is an evident need to study colonial settlement and settlers, and to do so in a manner that is neither apologetic nor condemnatory, but rather comprehensive and contextualized. Just as we study other hegemonic groups (men, whites, elites), we must also study settlers, ‘in order to avoid the possibility that, despite attempts to decolonize our gaze, we continue understanding the settler as normative’.Footnote 68 Of course, these imperatives apply equally to studies of colonizers in non-settler societies.
Bringing to the fore the ways in which settlers, in particular, attempted simultaneously to naturalize (indigenize) their presence in the colony, to mythologize their relationship to the metropole, and to assert their control over the land and its (neutralized and erased) original inhabitants, encourages a more nuanced discussion of both settler colonialism and colonialism whether in the British or other imperial contexts. But Veracini's taxonomy must also be understood as indicative. By establishing binary, or even multiple, categories of colonizers, there is a risk that those new subsets might assume impermeable boundaries. Rather, the lives, careers, and concerns of officials and non-officials became inextricably tangled. As we will see, for example, while in one instance a colonial official's loyalties to the ‘imperial project’ might be put ahead of the interests of settlers, in another, that same official's participation in settler economic endeavours could well prevail.
IV
The law was a medium within which the practices, priorities, and nature of British colonialism were debated; it served both to enable and to constitute colonialism. Recent scholarship explores the relationship between law and colonialism under a number of heads – including assertions of sovereignty, the law's liberal potential, and the possibility of its universal application. Some historians strive to reconcile the gap between the law as an ideal and the law in practice; others explore how colonizers and colonized used the law as a tool in territorial and intellectual terrains that were both messy and disputed.Footnote 69 Moreover, ‘law’ itself is approached from a variety of perspectives. These range, as Ian Hunter and Shaunnagh Dorsett have observed, from the view that the law is ‘only a proxy for a higher normative principle – variously justice, right, or the good’ to a more contextualized approach to the ‘rule of law’, which sets aside ‘what should have happened’ in favour of understanding the contested nature of colonial law.Footnote 70 This article does not attempt to provide a comprehensive survey of the work from legal historians and historians of colonialism on the relationship between law and colonialism, let alone to explore recent considerations of the impact of colonialism on either Britain's legal terrain or international law.Footnote 71 Instead it addresses how, via their different approaches to colonial law and legal cultures, historians of British colonialism in particular are grappling with and sometimes refining the questions – of scale, space, and settler subjecthood – already explored in this article.
As David Washbrook has observed, the colonial rule of law was ‘fatally confused’: while the state made law for its unrepresented subjects, it posited itself ‘above that law and unaccountable to it’.Footnote 72 The British pointed to the benefits of the rule of law as a justification for empire,Footnote 73 yet it is undeniable that the law frequently underpinned discrimination against the colonized. Washbrook describes the law as ‘less a tool of liberty than an instrument of despotism’; the Indian nationalist, Bal Gangadhar Tilak, memorably commented that the ‘goddess of British Justice, though blind, is able to distinguish unmistakeably black from white’.Footnote 74
Historians remain divided on how to interpret this gap between the law as an ideal and the law in practice in the British empire. As John McLaren has written, there is a pressing need to relate legal historical research on the invocations of the ‘rule of law’, to ‘a broader history of the growth of notions of liberty, liberal and libertarian ideology, and sentiment on the one hand, and on the other, attempts at a countervailing movement in the opposite direction’.Footnote 75 Those who accept the rule of law as essentially a progressive force, indicative of the concomitant rise of liberalism, need to explain its numerous illiberal and unequal colonial outcomes. Such an explanation can reference the patchy implementation of malleable ‘legal cultures’ rather than ‘the law’, and emphasize the role of individuals in shaping the law's (less than ideal) manifestations. Those, however, who follow Ranajit Guha and see the law as a force of imperial oppression, must demonstrate that it was ‘a core institution of control and domination’.Footnote 76 Increasingly, as in the work of Uday Singh Mehta, Jennifer Pitts, and Karuna Mantena, such arguments question the very concept of ‘liberalism’, suggesting that the colonial setting illuminated an irresolvable paradox at its heart.Footnote 77
Martin Wiener's An empire on trial and Elizabeth Kolsky's Colonial justice in British India characterize these two positions. In wrestling with the term liberalism, and its implications for justice and the rule of law in Britain's empire (although Kolsky restricts her study to British India), Wiener and Kolsky reach contrasting conclusions. This divergence is of particular interest here not only because of the quality of Kolsky's and Wiener's scholarship – each book has much to tell us about ‘colonial justice’ – but also, intriguingly, because both build in similar ways on current trends in colonial history: each focuses on the ‘everyday’ experience of criminal justice; each posits a significant role for ‘non-official’ colonizers in shaping colonial law; and each incorporates a spatially differentiated view of ‘liberalism’, as they struggle against adopting a metropolitan view of white degradation outside Europe. Their arguments are examined in detail below, before a consideration of other recent interventions in colonial legal history – interventions that go some way towards resolving the tensions encapsulated by the work of Wiener and Kolsky.
Kolsky challenges critiques of colonialism that revolve around either culture or violence against culture, reasserting instead the centrality of bodily violence. She argues that while ‘justice’ remained racially differentiated throughout the colonial period, the chances of Indian subjects receiving equal treatment to their Anglo-Indian counterparts declined after nineteenth-century codification. Her book emphasizes how the law normalized both violence against Indians and, more generally, their adverse treatment, via codification, justifications for the British presence, and judicial and legal processes. In Kolsky's reading, violence and the law were bound together, indeed, ‘law itself was part of the structure of violence’.Footnote 78 Moreover, although excessive white violence was ‘periodically questioned and condemned’ by the British, the legitimacy of imperialism, which underlay and depended upon that violence, was not.Footnote 79
Like Kolsky, Wiener also sets out to complicate our understanding of colonialism, seeking to disrupt a series of apparent contradictions, or ‘contrasting “principles” – of equality and liberalism on the one hand, and inequality and authoritarianism on the other’.Footnote 80 While acknowledging critiques of imperial liberalism, he claims that they are undermined by the fact that the colonized sometimes used colonial law to challenge their oppression.Footnote 81 Although Wiener brings considerable nuance to his work, this argument remains unpersuasive: the occasional (or even frequent) triumphs of the law in the hands of the colonized prove neither that the law was inherently impartial, nor that it was fairly administered. Based on his pan-imperial study of homicide trials, Wiener argues that while Britain became more liberal in the late nineteenth century, imperial rule in the rest of the empire became increasingly authoritarian. Only as settler colonies became nations or, in other colonial settings, when imperial Britain exerted greater control over expatriate colonizers, could British liberalism be reasserted, imperial authoritarianism tempered, and the dissemination of the rule of law resumed.Footnote 82 Most arrestingly, Wiener asserts that assimilation of the indigenous population underpinned the successful rise of ‘liberalism’ in late nineteenth-century Queensland, in contrast to South Africa, where racial codification led to segregation accompanied by authoritarianism.Footnote 83
The arguments of both Wiener and Kolsky hinge upon dichotomies between officials and non-officials, and contrasts between metropolitan and colonial space and identities. Kolsky argues that codification, which normalized legal differentiation between India's subjects on the basis of race, was itself a result of imperial anxiety about the ‘third face’ of colonialism, that is, the threat that non-official colonizers’ ‘tyrannical and lawless behaviour’ posed to the state's monopoly on violence.Footnote 84 But Kolsky's evidence shows (although she might have been more explicit in drawing out its implications) that this division – between official and non-official – was itself constructed, a useful artifice that distanced the metropolitan elites who ran the imperial state from the violence of colonialism, both spatially and in class terms. Imperial analyses placed non-official expatriate Britons in the lower social orders, and on this basis deemed them either intrinsically violent and criminal or more susceptible to degeneration in a colonial context.Footnote 85 Kolsky agrees that Britons in India were more violent than their metropolitan counterparts, suggesting that the law (and at times its absence) enabled such behaviour. However, she argues that a ‘consistent strand’ of official opinion attempted to ‘restrict the problem [of white violence] to the lower classes of British society’, when in fact the upper classes were equally complicit.Footnote 86 Working-class whites, with their ‘limited political, legal, and social capital’, were simply more likely to be charged, to be punished, and therefore to appear in the archival record.Footnote 87
Alongside colonial officials' reports of ‘the menace of European violence’, Kolsky cites imperial inquiries into non-official violence (such as that of indigo planters),Footnote 88 to support her emphasis on the ‘third face’ of British colonialism. Such sources must be treated cautiously: metropolitan elites had an interest in distancing themselves and the imperial state from their colonial counterparts' behaviour, even whilst implicitly endorsing their actions. Mantena argues that in later nineteenth-century Britain, ethical justifications for empire were overtaken by anthropological and sociological accounts of native societies, which displaced ‘the source of imperial legitimacy, authority and power … from metropole to colony’. This movement made possible a metropolitan ‘deferral and disavowal of a deep sense of moral and political responsibility for the fact of imperial rule’.Footnote 89 While metropolitan authorities may have imagined themselves at a safe (moral and geographical) remove from the violent behaviour of working-class colonial racists, many of their most senior representatives (both at home and in the empire) articulated equally inegalitarian principles. Arthur Buller, a judge of the Supreme Court of Calcutta, for example, branded ‘equality’ as ‘a miserable sham’, if it put Indians and Europeans on the same footing before the law, while Lord Ellenborough called his 1850 attack on British expatriates’ subjugation to laws intended for Indian subjects, Tyranny in India! Footnote 90 Kolsky's book brings out the complicity of the state – by its failure to act, and by granting jurisdiction to planters – in the violence that underpinned British colonialism in India. As she remarks, ‘colonial justice’ at once ‘sustained and destabilized the empire’.Footnote 91
For Wiener, the extent to which the rule of law reached its liberal potential in different imperial spaces also reflected the influence of non-official colonizers. As non-officials became more powerful, they used the colonial law to protect themselves ‘in a threatening environment’, undermining the capacity of imperial officials to ‘maintain the authority of the state by providing consistent, available, and equal justice’.Footnote 92 Thus, the point at which the law's liberal potential was realized in different colonies depended on whether ‘metropolitan liberal views’ (which, in the colonial context, were embodied by imperial officials) or ‘views of colonial settlers’ (which, outside settler colonies, included planters and other non-officials) prevailed. In other words, increasing inequalities before the law in the late nineteenth-century British empire stemmed from the influence of settlers and non-official expatriates, who were more racist and authoritarian than their metropolitan counterparts.Footnote 93 Similarly, improvements in the early twentieth century can be attributed to a reassertion – in India, for example – of metropolitan or ‘imperial’ values.
Wiener's mapping of liberalism – and hence justice – has a clear spatial dimension.Footnote 94An empire on trial cites the tensions experienced by officials at risk of isolation in a colonial community, and posits an increase in liberality as ‘frontiers’ were gradually pacified (and civilized), or indigenous peoples assimilated into colonial settler societies. But Wiener leaves the nature of (metropolitan) liberalism relatively unexamined. Thus, despite showing that many apparently liberal imperial interventions were either half-hearted – such as the creation of the Pacific High Commission in 1875, which allowed the Colonial Office to ignore subsequent complaints of continuing abusesFootnote 95 – or, in the twentieth century, the result of international pressure and scrutiny,Footnote 96 Wiener's geography of liberalism risks replicating that which he is critiquing: that is, the imperial centre's self-justifying views of metropolitan liberalism and colonial reaction. And just as Wiener's insistence on the universal nature of true liberalism is problematic, Kolsky's focus on the ‘third face’ of British colonialism has the potential both to discount unauthorized acts of violence perpetrated by servants of the East India Company or the Raj, and to diminish (although not to absolve entirely) the distant, more ‘liberal’, imperial state from responsibility.
How is it possible to reconcile the dissonances within these accounts? The different (but overlapping) chronologies chosen by Wiener and Kolsky do not provide an adequate explanation. One more fruitful approach is to acknowledge more explicitly that legal officials were deeply embedded in colonial societies. While accepting that non-official colonizers (whether settlers or sojourners) had interests that diverged in general terms from those of the imperial state, the interpenetration between officials and non-officials must also be recognized. In fact, as copious research shows (including that of both Wiener and Kolsky), these boundaries were mutable and intersecting rather than impermeable. Kolsky, for example, demonstrates how thoroughly enmeshed colonial officials in India's tea and indigo plantation districts were in planter society; a finding supported by Wiener's discussion of the 1893 Baladhun case, which opened up divisions between India's High Court – representatives of ‘imperial justice’ – and the police, magistrates, and session judges of the plantation districts.Footnote 97An empire on trial is replete, too, with instances of the senior colonial judiciary being more beholden or amenable to colonial non-officials than to their imperial masters, as in the case of Sir Joseph Needham, chief justice of Trinidad and cocoa planter, whose tenure coincided with a period when the island's large planters ‘generally had their way’.Footnote 98 Such evidence obscures the putative division between ‘settler [or non-official] interests and state interests’, undermining models that invoke such a divide to explain the paradox of the avowedly liberal intentions of the law and its racist, illiberal, everyday consequences.Footnote 99
In their championing of the ‘everyday’ aspects of justice and legal process, Kolsky and Wiener focus on trials, codification, and particularly criminal justice. The manifestations of ‘the law’ provide their subject matter, and both seek (if not explicitly) to assess the law in relation to Hunter and Dorsett's ‘higher normative principles’. However, as a rich recent scholarship indicates, a more expansive view, which sees the law as a self-conscious site of contestation, has also proved productive for interrogating the meanings of both the colonial law and colonialism.Footnote 100 In their analysis of the rule of law in early colonial New South Wales, for example, Ian Holloway, Simon Bronitt, and John Williams conclude that Australia adopted ‘English legal culture’ rather than ‘English law’. This idea – that the legal ‘mindset or culture’ inherited by Anglophone settler colonies was more important than institutional mechanisms, statutes, or case law – allows the law to be understood as malleable and flexible in the colonial context.Footnote 101 It places an emphasis on what happened to the law in the colonies and who influenced it, assessing the influence of both in the creation of new, distinctive legal cultures. As such, it stresses the importance of translation, not just from metropole to colony, but between colonies. The essays by legal historians in Foster, Berger, and Buck's festschrift for John McLaren, The grand experiment: law and legal culture in British settler societies, are characteristic of the latter's contextual approach in asking ‘not simply what the law was but what the law meant to the communities that engaged and lived with it’. This body of scholarship is centrally concerned with comparison and connection, exploring the extent to which ‘the magisterial nature of the British rule of law and its imperial posture’ translated across the British empire and the Anglophone world, and the divergences that arose between different colonial legal cultures.Footnote 102 As yet, the ‘Angloworld’ settler colonies are better represented than other parts of Britain's empire, but, given the avenues opened up by Kolsky, Wiener, and others, the insights offered by this approach seem unlikely to be limited to settler societies.Footnote 103
Such a contextual approach complements work emphasizing the agency of individuals involved in administering law in Britain's colonies. Colonial judges, for example, enjoyed a very different relationship with the state from their metropolitan counterparts. In the settler colonies, particularly, they were at the heart of government (typically, the chief justice also served on a crown colony's executive council) and oversaw the work of non-judicial civil servants while on circuit.Footnote 104 Judges (like other colonial officials) often enjoyed peripatetic careers, and carried ideas and assumptions with them on their ‘trajectories’ through the empire, allowing practices and policies to flow and mutate between colonies as well as between metropole and colony. Independent-minded judges frequently engaged in power struggles amongst themselves, and with governors, settlers, and metropolitan officials.Footnote 105 But settlers, sojourners, and indigenous peoples also contributed – if unevenly – to the shape of imperial law and justice. As Janna Promislow demonstrates in her study of the interactions between Hudson Bay Company officials and the indigenous Cree community, individuals were significant as ‘cross-cultural mediators’; through them we ‘see past the macro-level shifts … to how things looked on the ground and how individuals drew from centuries-old logic to grapple with new situations’.Footnote 106 As a collection, The grand experiment reveals the variegated and minute ways this could occur, pointing the way to longer, deeper, and more resolutely transnational, studies in the future.
Recent scholarship also reveals a third way to address the gap between the law's claims for itself and its practical consequences. Both Lauren Benton and Lisa Ford accept that discourses about the law laid claim to equality, liberalism and justice. Equally, however, they acknowledge that different actors – indigenous, settler, official, imperial, in various arrangements – understood the law to be ambiguous and that they worked within, as well as outside, it. Arguing about the law was a means to an end; the law was not an end in itself. By placing this ambiguity centre stage, the difficulties that follow from trying to reconcile the ideals of the rule of law and the claims of liberalism with colonial reality might not be resolved, but can at least be temporarily set aside without necessitating contradictions. As Ford writes, the ‘messy work of settlement itself required a much messier array of legal practices: and herein lies the real history of sovereignty and possession in the New World’.Footnote 107 Instead of being either ‘lawless’ or ‘lawful’, settlers living in areas where plural sovereignty and jurisdiction applied used ‘their control of legal discourse, legal evidence, and juries’ to serve their interests.Footnote 108 Further, Benton argues that colonial states’ ‘outsourcing of violence’ to non-officials, whether settlers, sojourners, or indigenous collaborators, reminds us that ‘the rule of law is not necessarily associated with republican or liberal political formations’.Footnote 109
It is unsurprising that work that revolves around ambiguities and ambivalences emphasizes plurality in sovereignty, jurisdiction, and legal identities. Sovereignty, Ford notes, has not always ‘been territorial in nature’, but has instead ‘described myriad modes of territorial and personal power’. Only in the 1820s and 1830s did courts in Anglophone settler societies successfully conflate sovereignty, territory, and jurisdiction, as part of their (never entirely completed) effort legally to obliterate indigenous customary law.Footnote 110 As Benton explains, as soon as jurisdiction formalized difference, the task of structuring that difference had to be tackled, that is ‘of making rules about cultural interactions within the law’.Footnote 111 As legal scholars grapple with these central problems in colonial history, they both draw on and shape the field more broadly.
V
Historians of Britain's empire continue, rightly, to confront their own and society's preconceptions about race, empire, and the colonial condition. As the work surveyed in this article has demonstrated, frustration with the blind spots of existing interpretations can be highly productive, but it can also lead us to dismiss too quickly, or to substitute equally, if differently, flawed assumptions. While it would be hubristic to regard any new interpretation or intellectual strategy as conclusive, there does appear to be a set of ‘new colonial histories’ (or ‘new histories of colonialism’) emerging alongside Britain's ‘new imperial histories’. Like the latter, this scholarship is concerned as much with the quotidian as the exceptional, and with individuals alongside policies and ideologies. Chronologically, it foregrounds, but is not restricted to, the nineteenth century, in part because this was when the distinctive dynamism of Anglophone settler colonization reached its peak. It sees a productive complication of the class of ‘colonizers’, whether official or non-official, settler or sojourner, which can only improve future investigations of the relationships between colonizers and colonized. The best of these recent works are informed by world history, knowledge of other imperial experiences, contemporary forms of life writing, re-conceptualizations of space and settlement, and a willingness to reach out across intellectual boundaries. Crucially, this work exemplifies a determination not just to connect metropole and periphery, nor simply to consider the effect of the latter on the former, but to take seriously the reverberations of actions and ideas in one colonial location across other colonial spheres.
