Recently, political theorists have sought to lay bare the connections between Western thinkers and the emergence of imperialism and colonialism. Keally McBride’s fascinating and deeply insightful new book is an important addition to this growing body of literature. Yet it also breaks new ground in a number of ways. McBride’s work expands the usual frame of reference well beyond canonical authors like Locke, Tocqueville, Bentham, J. S. Mill, Burke, or even Henry Maine, as the centerpiece of her study is the relatively unknown figure of Sir James Stephen, known derisively as “Mr. Mothercountry” by his foes. As undersecretary and legal counsel in the Colonial Office from 1813 to 1847, Stephen “was charged with protecting the rule of law in the Empire” throughout most of this long period (p. 5). To understand Stephen’s views as well as those of other colonial administrators, McBride delves more deeply into unpublished archival materials than is often the case in scholarship on theory and empire. And perhaps most importantly, she focuses on imperial practice through the medium of the law, or “the way the ideal of the rule of law is deployed” (p. 12) or “implemented by a small group of influential persons rather than the ideological logic of colonialism itself” (p. 18).

McBride is not interested in studying the past for its own sake, however. Rather, she applies this innovative approach to engage in an “excavation of the present” (p. 10). Specifically, the book’s goal is to unravel a paradox at the heart of international politics, namely, that in the contemporary world, the rule of law is treated as a universal principle that is “embraced by virtually all powers, great and small, and yet it is consistently trampled” (p. 8). For example, while under certain conditions international law theoretically trumps domestic sovereignty, even its most enthusiastic advocates admit that countries such as the United States are immune from its external enforcement (pp. 1–2).

The central argument of Mr. Mothercountry is that we simply cannot understand this paradox unless we recognize that “invoking the rule of law is not a neutral claim” (p. 9). Comprehending how the rule of law functions today demands historical sensitivity to the evolution of the concept within its various colonial contexts. On the one hand, this means resisting historically benighted contemporary claims to the effect that former colonies lack “legal capacity,” when in fact they have been exposed to a great deal of such capacity, albeit through imperialist versions of the rule of law, for a very long time. On the other hand, McBride also warns against reducing all arguments made by colonial administrators themselves to the status of an ideological “scrim” (pp. 3, 12, 119) or to a flimsy cover for straightforward domination and resource extraction. The author notes that “every idea, when employed in the world, becomes ideological” in the sense that it “hides, reshapes, and suppresses some activities that happen under its aegis” (p. 11). But she astutely observes that it is far too reductive to say that this is the only way that ideas function, and her book in fact demonstrates how multifaceted an ideal the rule of law appears when deployed.

The narrative arc of the rule of law that McBride traces has a number of crucial moments. Initially, Stephen took a common-law approach to governing the colonies. While he had vast powers to determine what was legal throughout much of the empire, Mr. Mothercountry was nevertheless deeply sensitive to historical contingencies, cultural differences, and particular local circumstances within the colonies, and allowed for wide variation in the rule of law as long as it comported with “justice” rather than “mere legality.” While Stephen “believed that the law was frequently used as a tool for the powerful rather than for justice” (p. 30), he nevertheless clung fiercely to the notion “that the law could be used as a force for good and equity” (p. 52). To this end, he sought “to interpret the law in such a way that it would become a weapon of the less fortunate in all of the British colonies and protectorates” (p. 43).

Alas, history unfolded otherwise. As McBride describes in a pair of outstanding chapters (3 and 4), Stephen’s vision of the rule of law unraveled as the result of two developments. The first, seen most clearly in Africa, was the emergence of “extraterritorial jurisdiction.” In response to the lawless behavior of British citizens conducted outside the colony of Sierra Leone’s boundaries, the colony’s governors invoked British law to protect them, and thereby overrode extant local law. In doing so, the British effectively decoupled British sovereignty from territorial possession and redefined sovereignty into a bifurcated term, such that some countries had greater amounts of it than others did. McBride convincingly argues, contra Carl Schmitt, that henceforth, empire could be extended through economic control rather than naked conquest.

The second shift was, ironically, spearheaded in large part by Mr. Mothercountry’s own son, Sir James Fitzjames Stephen. In response to further British lawlessness in the 1865 Morant Bay Rebellion, which left hundreds of Jamaicans dead, J. F. Stephen ramped up the project of legal codification in the colonies. On McBride’s account, “codification was a project to enlarge the disciplinary function of the law” that centered on colonial subjects’ “self-regulation through the criminal codes” (p. 94). J. F. Stephen was a lover of social science hell-bent on using the law to make human behavior regularized and predictable, orderly and obedient. He would later take his law codification project to India, where he served as the replacement for Henry Maine as legal member of council, a post he renamed “Benthamee Lycurgus” (p. 107) to evoke the long tradition of outsiders drawing up law codes for other societies. The effect of the younger Stephen’s approach to the rule of law on the subcontinent, McBride powerfully argues, was “to cement the racial hierarchies of Indian society, deepen religious distinctions, and ultimately, continue the impunity under which Europeans could act in India” (p. 111), a legacy that still lingers (the subject of Chapter 5).

As a result of “extraterritorial jurisdiction” and “codification,” the international rule of law took on its contemporary character, which McBride believes is best characterized as “an agreement between elites to guard their advantages against encroachment by other elites, an overt power-sharing arrangement” (p. 161). This is a bold, compelling—and deeply troubling—conclusion. As such, the author’s argument ought to give to contemporary apologists for exporting Western versions of “the rule of law” as a panacea for global political ills the sort of pause they rarely demonstrate.

Notwithstanding her withering critique of the concept, however, McBride also concludes that the rule of law need not play this role, but that the first step toward transforming it into a shield for the vulnerable is to evaluate critically whether this is actually something that anyone has ever achieved, anywhere. She claims that “James Stephen became a model for me in this regard” because he saw the rule of law “as an always incomplete project that required humility above all” (p. 161). McBride is laudatory of Stephen’s approach, and even admits that she “came to see my struggle reflected in his”—particularly his efforts to “venerate” the rule of law “as an ideal worth fighting for” (p. 8). While I share McBride’s cautious optimism regarding the rule of law’s potential, I am somewhat less sanguine about “Mr. Mothercountry” as a model for reimagining it.

McBride notes that James Stephen was born and raised within the “Clapham Sect” (a term he later coined). Purveyors of a brand of “evangelical imperialism,” the Clapham Sect played an important ideological role in justifying British imperial expansion from 1789 to 1835 (pp. 41, 37). In fact, the colony of Sierra Leone was founded by the Clapham Sect and other abolitionists, in part, “as an evangelical model for the rest of the British Empire” (p. 30). It was meant to serve as “a starting point for evangelical aspirations to spread the gospel to Africa.” Moreover, the Claphamites believed that there was “a hierarchy between those who were superior and inferior (more or less Christian) by their calculations” (p. 71); and they held that “it was the charge of the colony to bring enlightenment to Africa” (p. 64). McBride describes Stephen as fully imbued with the Clapham Sect’s values, “a religious man who believed he was put on earth to stand for good against evil,” who developed a “theology of legal practice” based on that belief (p. 42). Yet this leads one to suspect that Stephen’s legal theology was rooted in a still deeper foundational belief that he could serve as the arbiter of good and evil, justice and injustice, across the globe precisely because he inhabited the moral Archimedean point of evangelical Christianity. To the extent that this is true, Stephen’s theology of legal practice would seem to be philosophically fraught and evince a potentially dangerous lack of humility.

Likewise, the theoretical tradition of the legislator or lawgiver is arguably deeply hubristic, insofar as it assumes that an external figure both can and should determine a just set of laws for natives deemed incapable of doing so by themselves. Thus, while it is true that Sir James Stephen did not refer to himself as “Benthamee Lycurgus,” as his son did, in no way did that diminish the father’s much greater structural capacity to determine colonial law. As McBride notes, “virtually every day” for roughly 30 years Stephen simply “made up what was legal and what was not” (p. 47). Nor should we assume because the father’s approach to lawgiving privileged historical contingency, complexity and particularity while those (like his son) influenced by Bentham preferred timelessness, simplicity and universality, that the former approach was normatively preferable. Indeed, the subsequent history of “indirect rule” by the British in Africa and elsewhere demonstrates that allowing a variegated pattern of local laws and indigenous customs to subsist could prove a no less efficient form of colonial domination than one built on extraterritorial jurisdiction and codification. We are left with the conclusion that the purpose of all forms of the rule of law as practiced in the colonial context is ultimately to serve as a mechanism of control by the metropole. But this gives the rule of law limited utility as a weapon of the weak under such circumstances.

At multiple points in her nuanced argument (e.g., p. 159), McBride seems keenly aware of this latter set of problems, which is why her affinity for James Stephen seems incongruous with her overarching rejection of the possibility that justice and empire can coexist simultaneously. To be clear, a careful reading of the book leaves no doubt that McBride’s description of Stephen’s approach to the rule of law as in some respects a model worthy of emulation is not meant to laud either his evangelizing tendencies or his imperial enmeshment—far from it. However, while such a move does make Stephen a good deal more defensible, it makes McBride’s preferred version of Mr. Mothercountry appear somewhat at odds with the man who inhabits history’s pages.

Having said that, wariness concerning the historical figure of James Stephen does not diminish the argumentative force of McBride’s central thesis. Mr. Mothercountry is a book that sets out to explain how the rule of law has become what it is, and to a very great extent it admirably achieves this lofty aspiration.