Introduction

In recent years there has been a curious revival in the fortunes of imperialism as a political idea, if not as an effective practice. In response to the perceived proliferation of so-called failed states, those thought to be harbouring terrorists or those guilty of humanitarian abuses, a number of politicians and commentators have suggested that a return to empire, of a brief and benign variety, might be the solution. Their argument has been bolstered by several popular historical works that seek to demonstrate the progressiveness and effectiveness of past examples of imperialism, particularly of British imperialism, in building stable states and laying the foundations for democracy and market-based economic development.Footnote ¹ Ferguson makes the case most explicitly, arguing that the British Empire was a powerful agent of ‘modernity’: the British Empire, he argues, was an early means for globalizing best governmental practice through its transposition of free markets, the rule of law, notions of rights, and liberal-democratic institutions to ‘pre-modern’ societies.Footnote ² Despite the Iraq debacle and the far from compelling case of Kosovo as real life examples of ‘benign’ imperial rule, this revived neo-imperialism, the view that Western states can effectively ‘globalize’ good government through brief imperial takeovers, seems to be emerging as acceptable among many policy-makers.Footnote ³

It is both intriguing and dispiriting to an academic historian that such a view should prevail, when the last forty years of scholarship has been devoted to refuting the simplistic association of imperialism with ‘progress’ or ‘modernization’.Footnote ⁴ One obvious reason for this chasm between academics and journalists and policy-makers is that few academics have intervened in the public debate, and neo-liberal and conservative writers have rather had the field to themselves.Footnote ⁵ There are doubtless practical reasons of time and access to the journalistic media for this. But I would also argue that there are powerful intellectual reasons for the relatively muted response of academe to the strange revival of imperialism.

Partly, it is because Ferguson and others have boldly attempted to construct a broad-brush comparative account of empire, which appeals to a general audience but which current scholarship, with its preference for the fine-grained area-study, is not well-equipped to rebut. More importantly, modern historiography has failed to address the main arguments of pro-imperialists effectively. Central to this pro-imperial argument are two assumptions: first, that empires were strong, possessing real and effective agency; second, that they were progressive, ‘progress’ being understood as something close to the ‘modernization’ paradigm of the 1950s and 1960s.

Much academic research has questioned both assumptions, but important issues have been occluded by this revisionism. There is a highly fragmentary account of the relationship between empire and ‘modernity’, and researchers, in an understandable search to recover indigenous agency, exaggerate the lack of agency of empire. If empire was weak, it makes little difference whether it was ‘modernizing’ or ‘traditionalizing’. Scholars would probably agree that both tendencies were present, but the dynamic between them is often not very clearly articulated.Footnote ⁶ From which level of the imperial/colonial state did modernizing or traditionalizing impulses emanate, and were they intentional or unintentional? One possible way of clarifying these issues is to examine a rather neglected group: the hundreds of thinly scattered district officers, political officers, administrative officers, and their youthful assistants.

In this article, I survey historiographical approaches to questions of agency and ‘modernity’ in the British Empire.Footnote ⁷ I then look at the literature on the development of colonial legal systems in Asia and Africa. I suggest that, despite some modernizing impulses, both intended and unintended, empire more often seemed to pursue a traditionalizing course. Finally I suggest that, while empires were far from the omnipotent, Olympian entities of their latter-day defenders, at the level of the locality there were real opportunities for officials to exert power and influence. It is here, contrary to the writings of neo-imperialist popular historians, that we find much hostility to modernity, and impulses for the maintenance or restoration of ‘tradition’.

Historiography and the eclipse of imperial agency

In many ways, contemporary proponents of imperialism rely on a set of arguments familiar from the inter-war era. At that time, many academic histories and textbooks presented the imperial project as a boldly transformative and progressive force. They also viewed empires as uncomplicatedly powerful entities: ideologically coherent, based upon effective prefectorial systems of government manned by an elite of European proconsuls and district officers with close understanding of the societies and cultures that they governed, and united in a project of ‘reform’.Footnote ⁸ Assisting these Western prefects was an informal army of missionaries and non-official professionals and businessmen, who together engaged in the ‘struggle … over the making of the modernist [sic] subject … the construction of the right-minded, rights-bearing, propertied individual; a being untangled from “primitive” webs of relations and free to enter both contracts and the church’.Footnote ⁹ This unified ‘struggle’ culminated in success as measured by the transplantation of markets, legal universalism, and institutions of representative government by the eve of decolonization.

Opposing this imperialist view was that of the nationalists. They agreed that empires were indeed very powerful, seeing them as even more powerful than the colonizers themselves, but disagreed about their progressive intent. So, for early moderate Indian nationalists, imperial power was a great disappointment. These predominantly liberal critics of the Raj believed that what should have been a force for great progress had actually achieved rather little. British power was, by the late nineteenth century, associated with the exclusion of the most ‘modern’ elements of ‘native’ society from government, in favour of princes, clerics, and landlords. Economically, the British used their power to ‘de-industrialize’, to drain capital from the country, and to promote only the interests of European businessmen.Footnote ¹⁰ A later generation of leftist nationalists, Nehru most prominent amongst them, crystallized these early perceptions into what might be termed the charge of ‘traditionalization’. In Nehru’s view, the British deliberately politicized community-based ascriptive identities and regional particularisms as a means of frustrating national unity.Footnote ¹¹ African critics of empire followed a similar trajectory to their Indian counterparts: early enthusiasm was followed by disappointment at the conservatism of colonial economic and political development. Meanwhile, later nationalists indicted imperialism’s close association with ‘traditional’ groups, the propagation of identities and concepts such as ‘tribe’ and ‘custom’, and the use of ‘indirect rule’ as a means to exclude urban and Westernized Africans from power and influence.Footnote ¹²

Between the 1960s and 1980s, imperial historiography attempted to refine these oppositions with more theoretically precise or empirically grounded research. Among the former were Marxian economic critics of empire, including theorists such as Frank, Amin, and Wallerstein, who saw empire, not in its regional or area manifestations, but as a world system. They shared the old imperialist and nationalist stress on the immense transformative power of empires, arguing that this power had been used to reshape the world economy into a developed core, and a tributary and undeveloped periphery.Footnote ¹³ Coinciding, as it did, with the relatively high growth rates enjoyed in some post-colonial states under planning, the critique of empire as the ‘development of underdevelopment’ had some plausibility. Nevertheless, these approaches were soon criticized for excessive generalization and unconvincing efforts to encompass the sheer variety and incoherence of imperial practice across time and space within an all-embracing Marxian model.Footnote ¹⁴

An alternative approach, more grounded in empirical and area-based research, looked at particular cases of colonial ‘development’, and generally found them wanting. Historians queried the economic value of colonial infrastructural development, pointing out the subordination of purely economic to political and strategic considerations, and the inefficient duplication of provision, owing to a chaotic private–public investment model in India, and to interstate competition in Africa. The result, it was suggested, had increased the cost of building transport links, and had reduced their effectiveness in developing internal integrated markets.Footnote ¹⁵ Others suggested that land, labour, and credit markets had been rigged by colonial governments to favour expatriate or settler capital.Footnote ¹⁶ Another approach focused on the ecologically destructive effects of arrogant colonial dismissals of indigenous agricultural and land-management practices.Footnote ¹⁷ While these largely economic analyses of imperial development differed in many of their intellectual assumptions, they agreed that empires possessed agency and operated as a powerful transformative force upon the economies and societies over which they presided.

The later 1960s and 1970s also brought a major historiographical challenge to these assumptions about imperial agency. Following Robinson and Gallagher’s path-breaking work on empire and ‘collaboration,’ Robert Frykenberg’s famous study of colonial power (or lack of it) in south India, and contemporary political-science-based accounts of the importance of local faction in the politics of developing societies, many studies appeared claiming to illustrate the fundamental weakness of empires.Footnote ¹⁸ The so-called Cambridge school of historians produced several closely researched monographs outlining the organization of power in the Indian locales through networks of magnates and patrons, who acted as powerful intermediaries, and whose ability to manipulate their ranks of clients and dependents could make or break imperial rule.Footnote ¹⁹ The supposedly iron frame of the Indian Civil Service (ICS) was a rickety entity lying limply over webs and networks of indigenous interests, and even in regions of ‘direct rule’ there was only a very limited Raj.Footnote ²⁰ In Africa, too, investigations into the operations of not only indirect rule but also supposedly more direct forms of colonial control revealed a very weakly grounded modern bureaucratic state resting atop structures of powerful indigenous agency.Footnote ²¹

The colonial state emerges from these studies as a congeries of individuals and institutions, often at odds with one another, and linked by a bewilderingly diverse set of formal and informal mechanisms to indigenous local society.Footnote ²² While none of these authors denied the coercive power of the colonial state, the revelations of its complicated and often highly etiolated involvement with local society, its tendency to adapt to pre-existing institutional structures, and its extreme reliance on powerful local collaborators, suggested that, at best, it could be only an arbiter of competing indigenous, expatriate, or settler interests. Empire, by this account, was a ramshackle contraption, ineffectual in its ‘modernizing’ goals owing to its reliance on the consent, or at least acquiescence, of groups over which it held little real power. Associated with these revisionist accounts of colonial administrative and political institutions were several economic histories, which also sought to establish the relatively feeble impress of empire. In both Africa and India, colonial subjects were now not seen so much as passive recipients of imperial policy, but as rational actors responding to market signals, over which empires exerted rather little control. Meanwhile, the broad contours of imperial and colonial economic relations were reconceptualized within the framework of the ‘open’ and ‘closed’ economy. In contrast to the world systems theorists, these writers saw empires, not as the shapers of the global economic environment, but merely as reactors – often lagging reactors – to long-term structural shifts in patterns of global production and trade.Footnote ²³

There was still an area in which empires were seen to be powerful, even by some of these revisionists – the sphere of culture and ideology. This ‘invention of tradition’ or ‘constructivist’ school, accepted the collaborative nature of imperial states and their relatively feeble economic and institutional leverage, but argued that colonialists did wield the power to shape their subjects’ cultural and ethnic identities. The cultural and ideological categories used to ‘divide’ and ‘rule’ subject peoples often owed as much to the colonizers’ imagination as to primordial realities. These identities came to be reified by various means. In India, the chief tool of identity-shaping was held to be modern forms of governmentality. The census, map-making, history-writing, anthropology, linguistic research, early criminology, and medical intervention all had the power to categorize, harden, and ‘fix’ fuzzy identities of religion, caste, and community into rigid form.Footnote ²⁴ In Africa, many of the same factors were also operative, although the census was less prominent. In Africa, the key mechanisms of identity creation and rigidification were the promulgation of customary law, and of notions of tribal and chiefly traditions pursued, especially though not exclusively, in conditions of indirect rule.Footnote ²⁵

Even the ideological agency of colonialism was called into question by in-depth studies of the genealogy of notions of caste, communalism, ‘tribe’, and ‘custom’. Historians argued that constructivists had exaggerated the ability of colonial states to create identities de novo, that they radically underestimated the influence of local indigenous informants and agents in the formation of colonial ideas of ‘tradition’, and that more attention had to be paid to the pre-colonial histories of these categories, and to the indigenous forces that helped to reshape them during the colonial era.Footnote ²⁶ Related to this work has been that of the Indian Subaltern School of scholars, who have challenged the notion of any elite ideological hegemony, whether Indian or colonial, over ‘subaltern’ groups.Footnote ²⁷ Though the rather vague category of the ‘subaltern’ has been challenged, and there seem to be serious conceptual and epistemological inconsistencies thrown up by the idea of cultural ‘authenticity’,Footnote ²⁸ subaltern historians remain an important element in the broader historiographical trend that seeks to replace the idea of imperial with indigenous agency.

Currently, then, scholars, whatever their approach, tend to diminish the notion of imperial power and agency. They would all disagree with the neo-imperial and media presentation of empire as a modernizing force, but largely because they deny the transformative (if not the coercive) power of imperialism. Older nationalist accounts relied on somewhat crude conspiracy theories that imputed excessive power to empire. Marxists, rather unconvincingly, attempted to show that empires were logically bound to further the interests of capital. Meanwhile the ‘invention of tradition’ constructivists conceived empire in terms of an all-embracing Foucauldian governmentality. In opposing these exaggerated and unconvincing accounts of agency, liberal-institutional and anti-constructivist cultural historians can sometimes give the impression that empire was largely impotent. Moreover, they are reluctant to generalize about its overall intent or effect.

But if we look closely and comparatively at the literature on colonial Asia and Africa, we can discern common patterns of development, which suggest that Britain’s empire was not an utterly incoherent patchwork. While it is abundantly clear that the British Empire was not the all-powerful force of nationalist or neo-imperial imaginations, it nevertheless seems to have demonstrated some common themes and trends of policy across time and space. One striking pattern was a tendency to intervene to block the emerging ideal-typical manifestations of ‘modernity’, such as legal universalism, free markets, and liberal political institutions based on the idea of the sovereign individual. Many of these phenomena were the unintended consequences of imperialism itself. Greater integration into the (albeit flimsy) framework of a quasi-modern state inevitably catalysed radical change. Against this background, the local-level colonial state emerged as a broadly conservative force, actively obstructing processes that it had inadvertently triggered. This is not to say that there were no intentionally modernizing trends within imperial policy, and latter-day proponents are right to identify them. But modernizing impulses seem to have been weak, sporadic, and often easily subsumed within a broader conservative thrust. I will demonstrate this by examining the comparative development of law in British Asia and Africa. Clearly these regions were very different to one another, were internally variegated, and emerged as colonial societies at different times and in different intellectual and international contexts. However, I will suggest that, across a surprising breadth of the colonial time and territory, British local officials were notable for their common interest in ‘discovering’, renovating, and ‘restoring’ supposedly ‘traditional’ customs, institutions, and social relations.

The British Empire and law

One sacred shibboleth of contemporary advocates of empire is the claim that the British Empire spread ‘the rule of law’, although it is not usually specified what, precisely, is meant by this.Footnote ²⁹ I am assuming that it implies the separation of law from executive control, and the enactment of universalist legal norms intended to foster an environment from which individual civil and property rights emerge. There are now several valuable studies of both Indian and African imperial law suggesting that this was not the effect of imperial rule.Footnote ³⁰ It appears that imperial attitudes to law were highly ambiguous and inconsistent. Some universalistic norms were indeed applied in the fields of criminal and public law, and it seems that, in these spheres, courts were not subject to executive control, though there is some disagreement among scholars.Footnote ³¹ A skeleton framework of ‘Western’ law was created: a hierarchical system of courts was established, and in India the standardization of legal education and textbook production emerged. There were also projects to codify indigenous textual and customary law, though in Africa codification was a loose and non-technical process. Most striking, however, was the emergence of two parallel systems of law: a modern, centralized, ‘technical’ law on the one hand, and a community-based customary law covering personal, family, and property matters on the other. In the latter, legal pluralism, not universalism, prevailed, and legal and administrative powers were not rigorously separated.

In India, British intervention in the law came in roughly two phases. In 1772, the legal reforms of Warren Hastings created a structure of civil and criminal courts. However, although this intervention established British procedural norms, it could not be said to have heralded a Westernizing legal revolution. In criminal courts, indigenous forms of punishment were retained. Civil courts applied the substance of indigenous legal norms, drawn from the Quran and the Hindu ‘Shasters’, in the spheres of inheritance, marriage, caste, and other religious usages or institutions, and also regulated property and labour law.Footnote ³² These new civil courts made provision for the participation of religious specialists, maulvis, and pandits, to advise British judges. Moreover, beyond the formal court system, various bodies established under the previous, Mughal regime retained much autonomy and administered a range of special exemptions and legal arrangements concerning property.Footnote ³³ Nevertheless, there was a degree of implicit Anglicization underlying this apparent embedding of ‘native’ civil law: if there was no obviously applicable indigenous law, then the Roman law formula of ‘justice, equity, and good conscience’ was held to apply, which increasingly meant the rules of English law.

Further ‘Westernization’ followed in the 1860s, when Islamic criminal law was replaced, and in the early 1870s, when indigenous laws of evidence gave way to those of English law. Pandits and maulvis lost their role as legal consultants in the civil courts, as the British commissioned further translations of those texts from which indigenous law was thought to derive. From these texts, supplemented by a growing body of case law, they began to produce legal textbooks in English. However, alongside this ‘Westernization’ of the law in the latter half of the nineteenth century, another, more ambiguous, legal process was being enacted: the codification of customary law. In 1868, a Privy Council ruling affirmed that, for Hindus, custom would outweigh written texts, and a similar doctrine in areas of Muslim law followed rather later. The first fruits of this shift to the customary were the Punjab Law Acts of 1872, which had been derived from extensive local administrative surveys of individual district practice. This provoked a reconsideration of legal administration at the all-India level, and soon further surveys followed, which also sought to codify customary practices in other localities. The result was the creation of specific regional texts for use in civil courts when making judgements concerning landholding rights.Footnote ³⁴

In practice, therefore, far from creating an even legal playing field upon which a free market and notions of individual rights could emerge, important areas of economic life, including rights over property, land, and the organization of production were placed under the aegis of Hindu or Muslim family law, or of local customary practice. Thus, the principle embodied in the Permanent Settlement of 1793, which laid the basis of the Anglo-Indian legal system, and which supposedly now recognized and protected the rights of the sovereign individual, was systematically undermined by the concurrent recognition of separate group and community laws. Among Hindus, the key institutional constraint on the rise of the free individual was the religious concept of the ‘joint Hindu family’. Legal recognition of this entity meant that the individual’s relationship to property was conceptualized as a trust not a right, making clear-cut lines of inheritance, and thus of alienation, impossible. Similarly, efforts to promote markets through the abolition of the charitable endowment (waqf), fell foul of what were seen as the norms of Islamic personal law.Footnote ³⁵

In India, then, the British created a pluralist system, in which the universalist goal of creating free, rights-bearing individuals before the law was contradicted by systems of personal and customary laws, which effectively ‘fixed’ the free individual in a moral world of ascriptive and collective status. This, Washbrook contends, had the effect of inhibiting processes of ‘modernization’. In addition to retarding the development of individual property rights, legal pluralism had the effect of subsuming the real, if limited autonomy enjoyed by women under the Mughal regime into systematic subordination to men, and of reversing processes fostering the development of the nuclear family.Footnote ³⁶ Moreover, from differential legal treatment flowed modern political identities and peculiar notions of rights. Meanwhile, the persistence of different codes of civil law for Hindus and Muslim would profoundly shape conceptions of political identity.Footnote ³⁷ Legal pluralism meant that individuals and groups operated in public arenas defined by notions of group rights to secure the economic, political, cultural, and social patronage of the state.Footnote ³⁸ This greatly inhibited the evolution of conceptions of universal national citizenship.

In Africa, the separation of executive and judicial authority was even less developed, although Mamdani has suggested that ‘bi-polar’ legal systems emerged. Those defined as non-natives, and later urbanized Africans, fell under the purview of a ‘universalist’ legal sphere, separated from the executive state and composed of formal courts, hierarchically related to each other and operating formalized procedures. Co-existing with this sphere were the much less formal courts of ‘native authorities’, administered not by independent legal officials, but by chiefs and headmen, loosely supervised by tribunals of white officials without legal training, and with the exclusion of African lawyers from both native courts and tribunals.Footnote ³⁹ Mamdani has been criticized for oversimplifying and overstating his comparison between South Africa and other African territories; however, his analysis of colonial law is generally seen as sound.Footnote ⁴⁰ He may well be guilty of overestimating the rigidity of neo-customary legal regimes, however, what is significant is that, for British officials, it was the notion of some ‘customary’ content, however flexible, that lent local law a legitimacy that trumped universalist legal projects.

Spheres of authority were only vaguely defined. In the courts of Bemba chiefs in Northern Rhodesia, for example, the composition of courts varied according to the issue discussed: violations of state regulations were heard by the chief and a court clerk, but disputes over land, marriage, and chiefly issues drew a much larger cast of participants.Footnote ⁴¹ There was often confusion about which laws applied in which context, especially whether cases on appeal from native to superior court were to be heard according to English or customary law, and if English judges were qualified to hear them. Cases were endlessly shuttling, unresolved, between jurisdictions.Footnote ⁴² It was, however, ‘native’ courts that dealt with the vast majority of cases concerning Africans. Shadle claims that, in 1942, fewer than 3% of civil cases in Kenya were heard by Europeans, and only 0.2% of criminal cases went before European administrators.Footnote ⁴³

Native courts administered laws based not on the concept of the sovereign individual but of ethnic identity and tribal authority, and the substance of the law was that deemed customary to the particular ‘tribe’. To a degree, criminal law was influenced by British norms, and there was also the constraint of the so-called ‘repugnancy rule’, whereby laws regarded as ‘repugnant to justice and morality’ were forbidden, though the impact of this provision varied across time and place.Footnote ⁴⁴ Customary law was central, but its ‘discovery’ was a somewhat haphazard process. After the First World War, British colonial governments embarked on projects of codification, but this was not codification in the formal sense. It generally consisted of the unsystematic recording of court decisions and information collected from ‘elders’ by officials, or of articles in anthropological journals.Footnote ⁴⁵ More formal and systematic codification, for example in inter-war Kenya, was often resisted by local officials, who regarded it as a form of central encroachment on their autonomy.Footnote ⁴⁶

There were efforts at more systematic reform in the 1920s and 1930s, partly in response to African professional criticism.Footnote ⁴⁷ Other proponents of reform were the central colonial states themselves. In 1930, a Royal Commission of Inquiry into the Administration of Justice in Kenya, Uganda and Tanganyika in Criminal Matters was appointed. It found that the system of ‘native courts’ was ‘fundamentally unsound’, especially the practice among district officials of applying laws based on their ‘general knowledge of African life’, not on legal training and the strict application of laws of evidence.Footnote ⁴⁸ But district officials generally succeeded in blocking proposals to create judicial advisors independent of local administration, and strove to keep English law and legal traditions out of African courts.Footnote ⁴⁹ In some cases, local officials proved more anxious to preserve ‘tradition’ than the native courts themselves, and overruled case law in the preparation of their codes.Footnote ⁵⁰

It was only during and after the Second World War that central government pressure for reform became more pressing. In 1944, the Kenya Report on Native Tribunals, for example, condemned the lack of professionalization in native courts and insisted on the need for written law. In parts of East Africa thereafter, a formal framework of panels was established to collect customary law, but this stopped short of formal codification. One reviewer of these panels in the 1960s found them to be either non-existent or ‘hopeless’, meeting infrequently and following no systematic procedure.Footnote ⁵¹ By the 1950s many nationalists were demanding a unified legal system, and the decade saw an acceleration of codification culminating in the ‘Restatement of African Law’ project, launched by London University in 1959, which covered the law of persons, family, marriage, divorce, property (including land) and succession.Footnote ⁵² There were also rudimentary efforts to systematize institutional linkages between customary and modern court structures, and to replace chiefs with lay magistrates with some training. However, even mild recommendations of reform continued to provoke the hostility of governors and district officials. Much of so-called African ‘customary’ law remained fragmented into many local systems, and only loosely codified.

One obvious consequence of such ambivalence towards the imposition of universal law was to inhibit the evolution of clear-cut notions of individual property rights and the ‘individualistic’ commercial culture associated with it. In much of southern and upper India, for example, little effort was made to create individual property rights at all, and instead various kinds of collective or corporate holdings were established to govern landholding. Elsewhere, social restrictions supposedly derived from the caste system were permitted to prevent certain groups from gaining access to land and trade.Footnote ⁵³ Moreover, the very incoherence of legal reform muddied the concept of free and inalienable property rights, as Hindu Joint-Family law and the retention of the Islamic waqf made it very difficult for individuals to establish precisely what constituted an individual’s sole property. This lack of clarity inhibited the development of a workable system of company law, and obstructed commercial relations between communities.Footnote ⁵⁴ Even where clear-cut individual property rights were established, the colonial state increasingly intervened to obstruct the operations of the free market, especially in land. Land law consisted of a maze of restrictions and limitations on sale, rents, and other opportunities that might normally be thought to follow from the holding of title to land.Footnote ⁵⁵ Beginning with the Deccan Debt Relief Act of 1878, and culminating in the Punjab Land Alienation Act of 1900, certain groups, which were now defined as ‘agricultural tribes’, were prevented from alienating their land to ‘non-agricultural’ creditors, a policy that effectively excluded urban capital.Footnote ⁵⁶

In Africa, too, colonial ambivalence towards commercialization and the development of free markets was manifest in the promulgation of ‘customary’ law that institutionalized differential access to land and property rights.Footnote ⁵⁷ Notions of individual and communal rights confusingly coexisted. In some cases, urban dwellers could acquire land through the market, but not in ‘reserves’, while rural dwellers under the remit of a ‘Native Authority’ could claim land as a ‘customary’ right, but were not permitted to sell it.Footnote ⁵⁸ Similarly, the right to cultivate land, or the obligation to pay tribute for that right, depended not on market power but on social origin.Footnote ⁵⁹ The promotion of collective ownership inhibited market development and commercialization. Customary law accorded chiefs the rights to allocate land to ‘strangers’ and collect tribute. In Nigeria, chiefs would claim enterprising cocoa farmers as their ‘subjects’ and demand tribute in the form of a slice of profits, often provoking long legal wrangles about whether such profits were owed to the chief or were the personal income of the cultivator.Footnote ⁶⁰ In Kenya similar endless disputes ensued over the relative weight of tribal, family, or individual rights in the ‘reserves’.Footnote ⁶¹

It would, however, be wrong to present imperial policy at the centre as unremittingly ‘traditionalizing’ in intent. While acute ambivalence towards legal universalism and the promotion of free markets seems to have been the default position of colonial governments, they did, periodically, embark on more ‘modernizing’ projects. These seem to have come in three phases: the eras following the Napoleonic War and the two World Wars. In each case, colonial reformism seems to have been the result of a shift in the disposition of ideological forces in the metropole as the result of war. In India, the Utilitarian reformism of the 1820s–1850s arose, in part, as a defensive reaction to the French Revolution. This took the form of a new emphasis on rational thinking, social engineering, and desire to impose the rule of law in place of the rule of men. In short, this utopian project intended to fashion a fully rationalized state, if not at home, at least in India.Footnote ⁶²

This entailed attempts to dismantle ancien regime notions of social identity by abolishing caste restrictions on landholding, intervening in religious custom, and attacking remaining redoubts of Indian kingship, through the doctrine of lapse and the propagation of ‘Anglicizing’ education among the Indian elite.Footnote ⁶³ It was halted by the uprising of 1857. This was a complex event, and no clear-cut motivation or unity of purpose can be identified among its participants.Footnote ⁶⁴ Nevertheless it lent weight to the anti-Utilitarian conservative argument that radical interventions in colonial society were misconceived and ill-advised.Footnote ⁶⁵ Henceforth the Raj, or colonial state, pursued broadly ‘traditionalizing’ policies, restoring (or inventing) the landholding aristocracy, refraining from intervention in cultural reform, and instituting, as seen above, statutory and administrative interventions designed to buffer ‘traditional’ India from modern market forces.Footnote ⁶⁶

The First World War seems to have stimulated a second era of ‘modernization’ in India. Projects were mooted to promote industrial development, agricultural modernization, and even economic ‘planning’ and managed urbanization.Footnote ⁶⁷ But these fell foul of not only financial shortfalls but also the opposition of local officials and politicians, who resented central interference and disagreed with its premises.Footnote ⁶⁸ Instead, policy in the inter-war era was characterized by interventions designed to limit the operation of the market, micro-manage tenancy agreements, enforce debt cancellation, and set up credit cooperatives designed to protect landowners from ‘predatory’ private credit.Footnote ⁶⁹ The creation of ‘rigged’ markets in this period underpinned an enduring problem of Indian agriculture – the failure to invest in infrastructure. Profits were limited, the penetration of urban capital restricted, cheap state credit was scarce, and the highly volatile markets of the inter-war era made large-scale private borrowing hazardous. This resulted in a catastrophic neglect of infrastructural and other investment.Footnote ⁷⁰

In Africa, the Great Depression, and then the Second World War, provoked major re-appraisals of colonial policy. Projects of technically inspired agricultural development and local political reform were intended to revitalize empire, to use development to generate legitimacy, and to support the ailing British imperial economy. The British embarked on a brief project of genuine ‘modernization’, but hit obstacles of poor infrastructure. More significantly, they faced unheard-of levels of opposition among workers, farmers especially. The project soon began to unravel, as more rapid development and intervention led to escalating expectations and demands. Workers complained of continuing discriminatory treatment, and farmers resented the interventions of white technicians. This experiment in modernization had the unintended effect of stimulating the development of mass nationalism, and even revolutionary confrontation, bringing empire to an inglorious end.Footnote ⁷¹

Britain’s gentlemanly colonial officers and traditionalism

There is a commonly held view that the generally anti-progressive slant of imperial rule was essentially the consequence of weak imperial agency and its dependence on powerful local collaborators.Footnote ⁷² Imperial regimes, unable to mobilize funds in the metropole, and lacking the legitimacy and manpower to raise much tax in the colonies themselves, soon came to rely on local collaboration for administration and revenue collection. This rendered them powerless to initiate radical change, on pain of provoking social churning and uncontainable opposition. The 1857 Rebellion in India and the collapse of imperial power in Africa in the 1960s might then be offered as evidence that this imperial self-estimation was very perceptive. Refinements of this interpretation stress the priority of raising revenue and the ease of doing this by preserving community rights:Footnote ⁷³ empires needed to ensure revenue flows without stirring up the agrarian order. In Africa, an additional explanation cites the peculiar problem of labour, which made it impossible fully to promote African commercialization while also ensuring an adequate African labour supply to European-owned farms and mines.Footnote ⁷⁴ These views clearly have some weight. However, we have also seen that at times empires could become more ambitious, suggesting that they were not wholly cognizant of their fundamental fragility. The 1857 Rebellion offered rhetorical ballast to conservatives, not conclusive proof, that ‘modernization’ was unpopular and impossible. After all, most of India did not rebel.

It seems, therefore, that the default conservatism of empires was not necessarily the result of a rational calculation of constraints on power, especially as there were intermittent efforts to promote ‘modernization’. Many initiatives were frustrated by lack of funds, but just as often they fell foul of the active or passive obstructiveness of the ‘men on the spot’ – local imperial officials. The hundreds of thinly scattered district officers, assistant district officers, district administrators, residents, and junior cadets, were the central nervous system of the colonial state. It is to these local imperial officers that we look for one possible explanation of the immanent and persistent conservatism of British colonial rule.

Surprisingly, there is relatively little scholarly work on the mentality, culture, and ideology of local-level colonial administrators. There is a voluminous personal memoir literature, much of it now rather old, which has an essentially narrative or descriptive approach, and is of dubious objectivity.Footnote ⁷⁵ More serious analysis of Indian officials is provided by Clive Dewey’s illuminating but highly specific micro-study of the mental world of two inter-war Indian district officers, and we also have some now rather old studies of the sociology and education of the Indian Civil Service.Footnote ⁷⁶ Most helpful, perhaps, are Robert Heussler’s studies of officials in Africa and Malaya. His work, and especially his manuscript database of memoir and questionnaire material solicited from hundreds of retired members of the colonial services, remains very useful for the contemporary scholar. But Heussler’s approach, much influenced by the modernization models of the 1960s and 1970s, can seem narrow and somewhat uncritical of the values and assumptions of his subjects.Footnote ⁷⁷

A broad social and cultural history of local colonial officialdom is clearly a project beyond the scope of a single article, but a brief preliminary survey of their attitudes can be gleaned from primary and secondary materials. Owing to remarkably circumscribed social origins, recruitment networks, and training, Britain’s local colonial bureaucracy, while clearly not entirely unified in its ideology and values, was generally out of sympathy with what historians such as Ferguson have characterized as a ‘progressive’ or ‘modernizing’ imperial project. Rather, many officials had a self-consciously ‘gentlemanly’ identity. They also viewed imperial administration as an opportunity to promote a ‘traditionalist’ Weltanschauung, favouring legal pluralism over universalism, collective over individual rights, small-scale rural over urban industrial development, and either quasi-aristocratic or paternalistic and communitarian political institutions over liberal democratic ones.

Before the mid-nineteenth century administrative reforms, recruitment to the East India Company Service had been notoriously corrupt. ‘Writers’ and ‘collectors’ were of varied origin: military and professional offspring were prominent, along with the poorer gentry and occasionally younger sons of aristocrats. Service in India was seen as a way to make a fortune quickly, enabling a swift return to the life of a (leisured) English gentleman.Footnote ⁷⁸ In India, the abolition of patronage in 1854 was intended to improve administrative standards, and ushered in a brief period of genuinely meritocratic recruitment by means of a tough academic examination. But many disputed whether intellect alone was sufficient to make good administrators, and by the mid 1870s it was considered that ‘meritocracy’ had gone too far, favouring intellectually agile men of ‘undistinguished social origin’, rather than the Varsity-educated ‘gentleman scholars’, whom the system had been designed to solicit.Footnote ⁷⁹ There followed twenty years of tinkering with the ICS recruitment system in order to make it produce ‘gentlemen’.

Various measures significantly boosted the ICS’s contingent of ‘gentlemen’, including the weighting of Oxbridge-taught subjects in the exam, increased marks for interview performance, a very low age limit, a horse-riding test, and the amalgamation of the exam with that for the Home Civil Service, although those who passed highest almost always chose the Home over the Indian service.Footnote ⁸⁰ In 1870, the ICS exam was setting questions such as: ‘“Fortitude, Courage, Endurance, Valour, Virtue.” Show by the help of sentences in which these words occur, how they differ in meaning.’Footnote ⁸¹ Between 1890 and 1938, the sociological and educational profile of colonial administrators became strikingly homogeneous, and not remarkably different from what it had been under the patronage system. Never less than 60% of recruits came from elite public schools, and between 70% and 77% had degrees from either Oxford or Cambridge.Footnote ⁸²

After the political reforms of 1919 and 1935 in India, young upper-middle class British applicants were deterred by the perceived loss of prestige and autonomy of ICS posts, to the benefit of other areas. The South Asian service was rapidly Indianized, although heroic efforts were now made to ensure the ‘gentlemanliness’ of Indian recruits.Footnote ⁸³ In contrast, the African and Far Eastern colonial services enjoyed an Indian summer of recruitment among elite British candidates, who would previously have preferred the subcontinent.Footnote ⁸⁴ For the African service, unlike the Indian, no exam system for recruitment to probationary training was ever introduced, as it was deemed off-putting to gentlemen. By 1914, recruitment to African colonial services, hitherto haphazard, had been systematized into a form of rationalized patronage, based on a closed and intricate ‘old-boy’ network linking the Colonial Office to masters in top public schools and dons in Oxbridge colleges.Footnote ⁸⁵ In 1932, recruitment to the Malayan Civil Service, which had been through the same exam route as the ICS, was subsumed within this domain of patronage.Footnote ⁸⁶

Unsurprisingly, the social and cultural background of colonial officials remained strikingly homogeneous. The sons of clergymen predominated, alongside those of military officers, doctors, lawyers, and schoolmasters, with an admixture of those of minor gentry and gentleman farmers.Footnote ⁸⁷ One Malay official, doubtless exaggerating, perceived fellow recruits as ‘sons of country squires and as such had land in their blood and looked on their tenantry as their own kith and kin … There was a feudal (in the best sense of the word) atmosphere in Malaya.’Footnote ⁸⁸ It was commonly held that the best types for colonial administration came from rural backgrounds. A set of interview notes on applicants for the African and Malayan services in 1946 mentioned a preference for men with a ‘country background’, over those from towns and ‘suburban provinces’.Footnote ⁸⁹ This was an approach that, in retrospect, one colonial recruiter found wanting: ‘the perfect type was good at being a master of fox hounds when native people behave like fox hounds’.Footnote ⁹⁰

A well-defined picture of the kind of man wanted for colonial administration emerged, as the mid nineteenth-century controversy over the relative merits of intellectual ability and social status was resolved by recourse to the murky concept of ‘character’. This vague term embraced notions of virtue, aptitude, and ‘leadership’ ability.Footnote ⁹¹ Only ‘gentlemen’ possessed ‘character’, and though this was described in supposedly class-neutral terms as ‘the capacity to govern others, to control themselves, an aptitude for combining freedom with order, and [a] love of healthy sports and exercise’,Footnote ⁹² it seemed that very few ‘gentlemen’ sprang from socially underprivileged backgrounds. Although the discipline of schooling and the polish of an elite university education were recognized, ‘character’ was essentially ‘determined not by academic examinations’, which merely tested ‘book-learning’, but through ‘careful investigation into background and character’.Footnote ⁹³

A central figure in the recruitment of gentlemanly administrators between the wars was Ralph Furse, nephew of an Oxford academic and son-in-law of the patriotic late-Victorian poet Henry Newbolt. In 1910, Furse arrived as one of two assistant private secretaries responsible for recruitment, and from 1919 until 1948 he was solely in charge of recruitment.Footnote ⁹⁴ Furse’s approach was summed up by W. R. Crocker, a colonial official in Nigeria and later a senior Australian ambassador: ‘Furse was preoccupied with the “gentleman” … with status not money’.Footnote ⁹⁵ Furse used his ‘old-boy’ network to alert him to suitable young men: headmasters’ reports, college and university tutors’ reports, and (occasionally) commanding officers’ reports were collected and considered in detail. These were supplemented by interviews designed to garner information on the candidate’s personality.Footnote ⁹⁶ The object was to identify, ‘men fit in physique, reasonably harmonious in temperament and with enough “character” to be fathers to their districts’.Footnote ⁹⁷ The emphasis was always ‘on the “soundness” of candidates, that is to say on their negativeness [sic], their basic conservatism (with a small c), their unimaginativeness and that has always been true of the Colonial Service’.Footnote ⁹⁸ Margery Perham, an Oxford don and sometime advisor on matters of colonial administration to the government, commented privately that Furse, as ‘the absolute master of recruitment and training’, was central to any understanding of British colonial administration in the twentieth century, ‘safely insulating the Colonial Service from egalitarianism’.Footnote ⁹⁹

Furse and his colleagues were convinced that only ‘gentlemen’ could maintain the fundamentally paternalistic essence of the British Empire by commanding their subjects’ respect. This was a rationale with a nineteenth-century pedigree. ‘Natives’, it was often said were ‘shrewd judges of character’ who could ‘distinguish the courteous, considerate and commanding of respect’ from ‘boorish and disgusting’ parvenus.Footnote ¹⁰⁰ This view was endorsed by an ex-colonial official from Fiji, who claimed that officials without the right background lacked self-confidence among ‘natives’ who, like animals needed firm direction: ‘Natives could always spot this type just as a horse can tell the difference between someone who knows horses and someone who does not.’Footnote ¹⁰¹ Gentlemanliness was also essential because of the ceremonial foundations on which colonial power supposedly rested. Officials were to have contact with Indians through gracious durbars and holding court among appreciative natives. In Africa, tours were likened to royal visits.Footnote ¹⁰² To succeed, the relationship between ruler and ruled was highly dependent on manners.

A paternalistic temperament was generally prized more highly than conventional administrative skill, by both officials and their recruiters. An ex-master of Eton recalled Furse’s insistence that ‘good administration is not susceptible of teaching’.Footnote ¹⁰³ Confidential interview notes for candidates in 1946 revealed that certain candidates were rejected because they seemed likely to ‘lay too much stress on rules and regulations’. Others were rejected because they ‘lacked personal charm’, while one was judged potentially unsuitable owing to his ‘pronounced Birmingham accent’.Footnote ¹⁰⁴ A successful recruit received the following assessment: ‘Rugger blue and Cantab. Rugby before that. Not overly bright but good common sense and perfect for district work.’Footnote ¹⁰⁵ An ex-Sudan officer told Heussler that the service sought candidates with ‘noblesse’ and, by preference, third-class degrees, because men with firsts ‘tended to go round the bend’.Footnote ¹⁰⁶ However, there is some indication that this belittling of intellect was perceived as inappropriate after the Second World War. One man was described as: ‘Perfect type pre-war but now suspect because intellectual ability doubtful … Keen interest in land and people, love of the outdoor life, little intellectual interest, but competent in his military duties.’Footnote ¹⁰⁷

It was accepted that character could be usefully supplemented with some ‘book learning’, if it was of a highly specific kind, such as knowledge of the language and traditions of one’s colony through study of its customs, law, history, and anthropology. For ICS probationers, the 1880s and 1890s had brought exposure on the Oxford course to a ‘new science of government’, but the novelty of the approach seemed to be its immersion in ‘native tradition’. At the urgings of former Indian government official and influential historian Henry Maine, the course placed stress on India’s ancient history and something that Maine termed ‘Archi-Sociology’, rather than on modern political economy. The latter subject, Maine insisted, was hopelessly inapplicable to India and likely to confuse rather than enlighten. ICS men should be versed in the minutiae of ancient usages and communal property law, not modern economics.Footnote ¹⁰⁸ Another powerful intellectual influence at Oxford in the late nineteenth and early twentieth centuries was T. H. Green, keen to make liberal thought less individualistic and more friendly to the needs of ‘community’. He made the notion that enduring social hierarchies underpinned the ‘common good’ both respectable and fashionable.Footnote ¹⁰⁹

While the object of probationary training was to provide useful ‘knowledge of the people’, regarded as the foundation of sound administration, the courses themselves tended to dwell on more arcane aspects of colonial culture. The three-month course at the School of Oriental and African Studies (SOAS) for all Malayan Civil Service cadets (extended in 1935 to a year-long sojourn in Oxford) taught the basics of tropical hygiene, native law and customs, and rudimentary Malay. Course texts included C. O. Blagden and W. W. Skeat’s Pagan races of the Malay Peninsula (1906), while language primers were notable for an emphasis on a rather medieval vocabulary, in which kings, princes, and serfs figured prominently. One text included an elaborate table showing the precise hierarchy of forms of address between underlings and masters, with colonial officers always called tuan (lord). Another text had an entire section on how to give orders.Footnote ¹¹⁰ Lack of modern administrative training could lead to embarrassment. Furse himself related the anecdote of ‘an old chief in Bechuanaland’ in the early 1930s who had ordered books on modern administration from London. Having read them, he became critical of the local DO’s administrative style, and the unfortunate official felt obliged to borrow these manuals in order to ‘bone up’.Footnote ¹¹¹

Colonial administrators’ social background, coupled with this somewhat slanted preparatory education, seems to have produced a broadly similar view of how they should govern. Obviously these were individuals and not all held the same ‘traditionalist’ views. However, progressive opinions were fairly rare among Heussler’s interviewees. Indeed, only one of 112 ex-colonial officers from Malay Service said that he felt it was his duty to promote self-government. W. D. Barron, a Malayan official between 1911 and 1945, insisted that:

Of those who volunteered their political philosophy, one expressed the fundamental conservatism of many officials: ‘Perhaps the latent philosophy was a development of that of the Loyalist cause (I change the R to L advisedly) which over here [in Britain] survived the English Civil War but, in America a century later, was defeated and suppressed, leaving the Roundhead philosophy unchallenged’.Footnote ¹¹³ Another commented that the best administrators invariably hailed from the old Catholic aristocracy.Footnote ¹¹⁴ Regardless of party-political or sectarian affiliations, many shared a liking for paternalistic styles of government. One Malay official requested a posting as an up-country district officer (DO), because he wanted to be an English lord of the manor.Footnote ¹¹⁵ Hubert Berkeley, a DO in Malaya between 1880 and 1927, and son of a minor aristocrat, was similarly minded. He succeeded in creating what Heussler described as ‘a self-contained feudal satrapy, leisurely in its pace of life, traditional, and rural’ in his district of Perak Hulu.Footnote ¹¹⁶ E. C. G. Barrett, another Malaya DO, mused on a happy fusion of colonial and traditional ‘extended family’ structures:

Some officials developed a protective, quasi-chivalric conception of their role. Cuthbert Harrison captured this in his entreaty of 1929 to fellow Britons to join the Malay Colonial Service: ‘For it is help that these people [Malays] want … Whom [are they] to trust? What [are they] to believe? For many years now all of them have believed and trusted the British’.Footnote ¹¹⁸ In Singapore, where much colonial activity focused on rescuing trafficked Chinese women, British officials dubbed themselves ‘Protectors of the Chinese’.Footnote ¹¹⁹

However, they were far from agreement on what constituted tradition. For some it was encapsulated in structures of quasi-aristocratic hierarchy, the emirates of Northern Nigeria or the princes and sultans of Asia. Others espoused a more communitarian view, arguing that flatter ‘tribal’ structures in Africa, self-sufficient village republics in India, or the moral economies of extended kinship in Malaya typified tradition.Footnote ¹²⁰ Occasionally, the two views might collide. Among the Tiv peoples of central Nigeria, a battle raged between one official, who sought to remodel them along patriarchal lines with chiefs and headmen, and another who insisted that chiefs were alien in this ancient communitarian democracy.Footnote ¹²¹

Whatever their alternative visions, many officials seem to have viewed ‘modernity’, whether in the form of legal reform or economic development, as an evil threatening the stamina and virtue of the indigenous peasantry. Many officials stressed the need to protect the Malays from the modernizing impress of commerce. Cuthbert Harrison’s cri de coeur for the preservation of ‘traditional’ Malay rural life praised its freedom from ‘misery, wretchedness and degradation, sodden profligacy and alcoholised unhappiness’ all of which were ‘plaguing western civilisation’.Footnote ¹²² Developments in India were seen by Malayan officials as cautionary: ‘over-populated, underfinanced districts, miserably poor, caste divided and neurotic inhabitants’. Malays, by contrast, were ‘well-balanced, happy people’ who required protecting from ‘the pressure of over-rapid materialistic development’.Footnote ¹²³ This seemed to chime with opinion in India itself. Penderel Moon, an ICS officer between the wars, in his fictionalized account of his experience, Strangers in India, denounced efforts at modernization as, ‘a rash system of law and administration which was for the most part unsuited to the people … [leading] to the peasant being ensnared by the money-lender’, and which had only been remedied by the passage of acts restricting a free market in land in the 1870s.Footnote ¹²⁴

Gentlemanly colonial officers in action

Even if we accept the fundamental conservatism of these colonial officials, the question arises of whether they really exercised much power. It might be suggested that they were a thin and feeble stratum, compressed between an intrusive colonial secretariat on the one side, and a powerful local indigenous political culture on the other. When it comes to the influence of London and central secretariats, most historians accept that local officials had a great deal of autonomy. The fragility of communications was clearly important. Frank Longland noted of his days in Tanganyika that he was almost wholly autonomous, with ‘no fixed stint’, no telephone, telegraph, or wireless, communications with the neighbouring district being by native runner. ‘In general we were much on our own … Government Directives from Kigoma were not very numerous’ and he never went to Dar-es-Salaam.Footnote ¹²⁵ Moreover a highly decentralized culture of colonial administration took the form of extreme particularism in each territory concerning authority structures, defended on grounds of precedent. Perhaps more importantly, as each territory was responsible for its own officials’ salaries and had control of their duties, unsurprisingly it proved virtually impossible to impose any kind of common structures or systems of accountability. In India, despite the political reforms of 1919, which purported to circumscribe the powers of the DO, the level of autonomy enjoyed by local officials remained remarkable. Alfred Mitchell, a DO in the Central Provinces between 1930 and 1934, recalled blowing up twenty houses to create a firebreak during communal rioting, and, despite an avalanche of Indian complaints, found that: ‘No one in official circles either approved or condemned what I did that day … A man had to be either extremely good or abysmally bad to attract even departmental attention’.Footnote ¹²⁶

If local officials had considerable autonomy from their secretariat and metropolitan superiors, they also had a good deal of influence on the societies they governed. Anti-constructivists argue that the substance of customary law reflected the power of local indigenous groups to shape and manipulate colonial perceptions. They also point out that concepts such as caste, tribe, or chiefly authority were not mere figments of colonial imagination, but reflected real, existing phenomena that pre-dated colonial takeovers, if in subtly different form. However, recognition of the pre-existence of cultural identities and the power of native informants need not necessarily lead to the conclusion that the local colonial state had little power. Much work on both pre-colonial India and Africa has stressed the fluidity of those societies, the result of various and different causes.Footnote ¹²⁷ Issues of authority, status, hierarchy, and land control were subject to dispute. Indeed, anti-constructivists point to the sheer heterogeneity of local concepts and claims about land and power as proof that the colonial state could not have simply ‘imagined’ them.Footnote ¹²⁸

This very fluidity and disputatiousness gave the colonial state, especially at the local level of district administrators and court officers, the power to settle and resettle these disputes and controversies. In India, it appears that a great deal of lee room was permitted to central and local-level judges in interpreting customary personal law, constrained only by the duty to act in the interests of undefined notions of ‘justice, equity and good conscience’. Dirks insists that the British-India judiciary, because of the observation of the separation of powers, was cut loose from the greater projects of the central state to adjudicate social conflict according to their own notions. In India, courts became an open arena, in which the central executive had to contest with local views before independent courts for legitimacy.Footnote ¹²⁹ Court power was enhanced by the evident desire among some Indian and African actors to use the authority of colonial institutions to settle competing claims. In India, litigants rapidly embraced the new colonial idiom of dispute management as a method for settling disputes over land and rank.Footnote ¹³⁰ Indeed, Western-style courts, even if administering ‘customary law’, became very popular, because they gave clear decisions over property issues.Footnote ¹³¹

This raises the question of what principles or criteria were applied by British judges in dispute settlement. For, while some have suggested that indigenous groups could manipulate judges, ultimately it was the judges themselves who decided what arguments did and did not count as valid. This was acknowledged by British academic jurists themselves. Sir Roland Knyvet Wilson in his influential Introduction to Anglo-Muhammadan Law of 1894 admitted: ‘British statesmanship determines from time to time how much of oriental precept is to be treated as law in the English sense … the mental habits of English and Scotch lawyers influence the methods of interpretation’.Footnote ¹³² As Washbrook suggests, judges generally accepted appeals to ancient tradition, which tended to have the effect of consolidating the authority of certain groups over others.Footnote ¹³³

British agency could go beyond merely deciding between competing claims to actually shaping the substance of personal or customary law. This was nowhere clearer than in the field of so-called Anglo-Mohammedan law in India, where British judicial interventions effected great changes in Islamic law. By the 1860s, having dispensed with the services of native law officials, and distrusting the word of indigenous informants, the British preferred to rely on what they regarded as ‘authoritative’ texts. Their choice of texts, translations, production of textbooks, and legal training meant that Anglo-Mohammedan law came to reflect British preoccupations and assumptions more than indigenous norms. Islamic law under the British became what it had never been under the Mughals, a fixed body of immutable rules.Footnote ¹³⁴

Similarly, in both India and Africa, it was the British who decided on what basis ‘customary’ law would be codified and operated. Customary law was not the simple reproduction of some pre-existing norm, because these ‘norms’ were bitterly contested. What really emerged from ‘codification’ was a new system of law, based on the interpretations of colonial administrators.Footnote ¹³⁵ Since the evidence of local informants was so often full of contradictions, it was the British who formulated common rules by which to interpret customary practice. In reality, this process involved adjudicating struggles over which local group’s version of ‘custom’ should prevail.

While conceding a role to indigenous informants, we also need, therefore, to take account of the ideas and principles that local colonial officials deployed in choosing who among their informants to believe in both India and Africa. It seems that many local officials came to see custom as something ancient and stable, a fact to be ascertained and codified, ignoring the political and the contingent. British local officials in Africa claimed special insight into ‘customary law’ because they were ‘conversant with the local custom and the dominant mentality’,Footnote ¹³⁶ and also because they could claim to be the ‘the European who has spent a lifetime among them and has been able to gain their complete confidence’.Footnote ¹³⁷ In Africa, ‘codification’ could have the effect of creating rigid and unalterable rules that chiefs and elders had once been able to interpret situationally.Footnote ¹³⁸ The 1912 West African Lands Committee, for example, spent three years collecting evidence on customary land tenure with a view to codification. Although much of the evidence suggested that there had been land sales in south-west Nigeria since 1870, and that Yoruba chiefs had no claim beyond lands belonging to families, the committee’s report endorsed the claim that: ‘land belongs to a vast family, of which many are dead, few are living, and countless numbers are yet unborn and cannot be alienated’. The committee duly recommended upholding ‘pure native tenure’.Footnote ¹³⁹ Claims to special knowledge of the ‘African’ were also deployed to rebuff pressure for legal reform. Lugard, for example, insisted that: ‘The separation of judicial and administrative power would seem unnatural to the primitive African since they are combined in his own ruler’.Footnote ¹⁴⁰

Conclusion

Like Lugard, many British officials had a profoundly un-modern approach to power and authority. They saw themselves less as ‘modernizers’ or bringers of ‘progress’ than as paternalistic protectors and restorers of (often-disputed) ‘tradition’. Post-Rebellion India witnessed a curious process of the ‘restoration’ of native aristocratic authority, reordering of caste hierarchies, and reshaping of village authority structures, in accordance as much with British ideas as with pre-existing norms.Footnote ¹⁴¹ In Africa, restoration took the form of ongoing battles to halt modernization or ‘detribalization’, as officials termed it, by reconstituting supposedly traditional chiefly authority structures. A DO in Tanganyika’s Kiserawe district put it thus:

Although ‘retribalization’ doubtless reflected fear of unrest and loss of control, it also indicated powerfully entrenched notions that only groups bound into ‘tribal’ structures constituted legitimate interests.

In January 1918, the British took over Tanganyika from its erstwhile German colonizers. Frank Longland, an ex-army officer, was sent as sub-assistant political officer to the district of Urambo Kilimani. Longland remembered that initially, owing to pressing practical considerations, no attempt was made to unpick the administrative structures established by the Germans. Nevertheless, these German arrangements, which were held to have meddled with ‘traditional’ tribal authorities, were thought to be illegitimate. Very soon the British began a process of ‘restoration’ according to their own conception of native authority, issuing ‘books’ at special ceremonies purporting to re-establish the chief’s powers, and instigating anthropological researches into the ‘true’ nature of tribal authority.Footnote ¹⁴³ Unbidden by any higher officer, a certain West, a district official, made a lengthy study of the Wagoni ‘who were, and are’ he insisted ‘the principal tribe in those parts’.Footnote ¹⁴⁴ There followed the re-creation of a ‘reunited Wagoni under their “correct” hereditary paramount chief’, thus repairing the damage to ‘tradition’ perpetrated by the Germans who had split the Wagoni up. There was, apparently ‘little delay in getting the Native Authority legally established. The Government … accepted the opinion of the man on the spot [and] there was little correspondence about the matter.’

The events Longland recounts tell us a great deal about British officials’ conception of their role, and the power they had to influence local politics. West was convinced that his restoration of authentic tradition had long-lasting regenerative consequences. The restored Wagoni chief had been ‘a drunken old rascal’, but ‘on regaining his hereditary authority he did make an effort to pull himself together’.Footnote ¹⁴⁵ And the peasants ‘loved their Native Authority, and the chief who was head of it, in the way the Scottish highlander loves his clan chief’. Longland concluded that West had merely restored the natural order of things: ‘One thing is certain, in some spiritual cases the chief, the giver of rain, he who caused the crops to grow was, and doubtless is, of more value to his people than many District Officers’.Footnote ¹⁴⁶ But, of course, we should not be taken in by this typically British modesty. The effects of conservative restoration could be as profound as those of radical modernization.