English Common Law and British Imperial Intention
An Empire of Laws: Legal Pluralism in British Colonial Policy by Christian R. Burset (Yale University Press, 2023)
Reviewed by Elizabeth Stice
One of the fascinating things about empire and one of the tensions within any empire is the combination of conformity and diversity. By their nature, empires involve expansion that brings geographic, linguistic, ethnic, and religious diversity to a polity. Within empires, different languages are spoken, different customs observed, and different foods are consumed. Yet empires also insist on a certain level of conformity, which can range from deference and tribute to a shared ruler to enforced religious conformity or a unified law code posted in every corner, as on Ashoka’s pillars. But in many instances, law codes have not been uniform across empire. Legal scholar Christian Burset’s new book, An Empire of Laws, examines the case of strategic legal pluralism in the British Empire.
Legal pluralism within empires is not a new topic. Postcolonial scholars, especially, have often taken it up, often with attention to difference not just between colony and metropole, but within colonies. Separate legal systems within India are considered one of the long-term causes of Partition in 1947, when India and Pakistan split upon independence. Mahmood Mamdani’s 1996 book Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism, which looks at the “bifurcated state,” is still required reading. Many works related to legal pluralism focus on its negative effects and the ways in which “indirect rule” harmfully altered and reified existing traditions. This goes back at least as far as 1860, when Multatuli’s Max Havelaar; or, the Coffee Auctions of the Dutch Trading Company identified the problems with Dutch indirect rule in what was then the Dutch East Indies (today Indonesia).
While many scholars have focused closely on the effects of legal pluralism in the British Empire, the reasons behind it have been less scrutinized. Diverse legal codes have often been considered the product of weakness on the part of an empire, or tolerance on the part of an empire, or a reflection of the conditions on the ground—what seemed possible. For some, the legal pluralism of the British Empire even supports the notion of a somewhat “accidental” empire. Many people suggest that different conditions or different colonizers resulted in more or less uniform legal codes.
An Empire of Laws makes a meaningful contribution to several academic conversations with its argument that legal pluralism in the British Empire was strategic and intentional. As Burset writes, “Britain’s selective denial of English law to its colonies reflected a conscious effort to shape their political and economic development” (9). The British had an intentional, not accidental, empire. Burset builds a strong case in support of his argument, beginning with the British colonies in the Americas and the importance of English law in them and in their development. An Empire of Laws charts the conscious switch to legal pluralism, with its advocates and key moments, beginning in the Americas and then occurring elsewhere. In so doing, Burset executes a very rare maneuver—he connects the history of the American colonies with the history of non-Western British colonies.
The first thing that becomes clear upon reading An Empire of Laws is the significance that English law held for early American settlers from Europe. Colonists wanted to live under English law. And, despite distance, English law courts somewhat often ruled on colonial matters, from the American colonies and elsewhere. Colonists connected English law with economic development—in part because it upheld the possibility of justice, especially through the practice of jury trials. English law was considered the most favorable to the emerging capitalist system. This can be seen not only in documents from the time, but in the ways that settlement patterns followed legal systems. Settlers would avoid areas not under English law.
When and why did the British become interested in legal pluralism? Burset writes that legal pluralism “would keep colonies culturally distinct, politically dependent, and economically subordinate. Thus, by deciding how much English law each colony received, British officials could determine what kind of colony it would become. Britain’s selective turn toward legal pluralism after 1763 reflected the triumph of a particular vision of the British Empire—politically hierarchical, economically extractive, and culturally tolerant” (9). A key turning point identified by Burset is the Quebec Act of 1744, where the pluralism not only kept Quebec economically weaker than the southern colonies, it also prevented them from uniting with the southern colonies. The policies of legal pluralism were set in motion when “the racial attitudes that characterized the age of ‘high imperialism’ hadn’t coalesced” (35). Legal pluralism was a deliberate political strategy, not a result of rampant racialized thinking. Burset demonstrates this in the history of the development of legal pluralism in India, which actually required rescinding rights to English law from Indian subjects.
The results of legal pluralism are well established. Colonies with separate legal systems, which overlapped with the “indirect rule” approach, had less economic development, a result of less equality with the metropole, and more internal ethnic and religious division. Such states were weaker at independence in almost every conceivable way. While the underdevelopment of Africa and the effects of separate legal systems on colonies are not new topics, very often scholars on those subjects look primarily, if not exclusively, at law in the colonies. An Empire of Laws is a work of legal history that connects English common law and court happenings in the metropole with the legal reality in colonies.
An undercurrent of An Empire of Laws is the significance of English common law in capitalist development. Within legal-origins theory, Burset writes that since the 1990s, “a number of economists have argued that common-law countries enjoyed various advantages over their civil-law counterparts, including more secure property rights, greater judicial independence, and superior economic performance” (164). That certainly seems to have been assumed by many American colonists. At the same time, Burset’s book is not a simple restatement of legal-origins theory or the arguments against it which emphasize the nature of the colonized lands determining legal systems, because Burset emphasizes choice. He writes that “as this book has shown, a colony’s legal system didn’t flow automatically from the identity of the colonizer or the conditions the colonizer encountered. Instead, it reflected the empire’s political and economic agenda” (165).
An Empire of Laws has many helpful insights for historians studying the reasons why certain colonies came to look as they did. Too often, choices at the outset about legal systems have not been considered indicators of British intent. Yet, as Burset emphasizes, “Britain’s decision to transplant English law to a particular place sent a message that it was trying to build a certain kind of colony—one that included, among other things, a vibrant commercial economy with a robust Anglophone population” (167). The moral arguments about tolerance may have been sincere in some circles, but the policies of legal pluralism were designed to produce colonies of a certain type.
An Empire of Laws is a valuable contribution at the intersection of many related, but often separate, conversations. It is well-written and concise. The arguments are compelling and well-supported.
One thing that might stand out to readers who have no real interest in colonial history or legal history, or any combination thereof, is the significance of juries in An Empire of Laws. In our country today, people dread jury duty. They try to evade it. Jury duty is treated as an unbearable burden. In contrast, our colonial forebears were loath to live where they could not have access to, or serve on, a jury. A jury was both a symbol and an actual source of liberty and legal protection. Colonies which had jury trials were privileged and better off when it came to economic development. This book is not likely to spur a rediscovery of the significance of the jury or to spark enthusiasm for jury duty in the United States, but it is further evidence for the reasons such a shift would be well warranted.
Elizabeth Stice is a professor of history and assistant director of the honors program at Palm Beach Atlantic University. When she can, she reads and writes about World War I and she is the author of Empire Between the Lines: Imperial Culture in British and French Trench Newspapers of the Great War (2023).
