Colonial India and the History of Modern Jurisprudence
November 15, 2021
Histories of jurisprudence and legal thought in the nineteenth and early twentieth centuries are focused on developments that occurred in Europe and North America. At that time, European powers ruled much of the non-western world, but the assumption of most intellectual historians of modern law is that nothing interesting happened outside the West.
More than a quarter of a century ago, while working on the history of legal thought and legal education in British-ruled Palestine, I came across files stored in the UK National Archives in London that dealt with the legal education system of British India. I knew something about the history of legal education institutions in the UK and the US, but I did not know anything about the history of the Indian system of legal education. Going over the files, I discovered that British officials in nineteenth century India created a large academic system (larger than the one that existed in the UK at the time). I also discovered that the institutional and intellectual history of this system has not been thoroughly explored in the scholarly literature.
At the time, my research focused only on the history of law and legal thought in Mandatory Palestine, and I did not pursue the matter, hoping that someone else would explore it. A few years ago, I decided to revisit the Indian materials, focusing specifically on the nature of jurisprudential theories which were taught in India during the period of British rule. I knew that in other territories of the British Empire, such as Egypt and Palestine, there were interesting jurisprudential developments that occurred as a result of the encounter of western legal theories with the legal and political reality of these territories, and I was interested in finding out whether this was also the case in colonial India.
In 2017, I spent several months in libraries such as the British Library and the Library of the School of Oriental and African Studies in London, exploring the Indian sources. I discovered many jurisprudential works written in India during the British period. Some of these works were written by English lawyers who taught law in India. Other works were produced by local Indian scholars. Many of the dusty volumes that I discovered still had uncut pages. Nobody, it seems, opened them since they were deposited in the libraries approximately a hundred years ago. I, however, found these works, and their forgotten authors, fascinating.
Specifically, I discovered three unique aspects that characterized many of these works. First, the gap between English theories and Indian legal realities led some Indian authors to question key Western notions about the nature of law (such as the definition of law suggested by legal philosopher John Austin that law was the command of a sovereign). Second, some of the works produced in India were more influenced by state-of-the-art Continental and American legal theories (such as early twentieth century sociological jurisprudence) than the equivalent English works, which were far more intellectually insular. Sometimes this was due to the fact that the authors of these works had some Continental training, and sometimes the non-English influence reflected a wider anticolonial nationalist move away from English culture. Finally, the influence of Indian nationalism also led some Indian legal scholars to create a distinctive genre of jurisprudential works: Texts that used modern Western jurisprudential theories to describe the main features of Hindu (and, to a lesser extent, also Islamic) law.
These aspects of Indian jurisprudential works, I argue in the article that I wrote based on my research entitled A Colonial Legal Laboratory? Jurisprudential Innovation in British India, illustrate a broader phenomenon: the fact that legal scholars in imperial peripheries such as India were not always passive receivers of ideas produced at the center of empires, but in some cases created works containing interesting jurisprudential insights. The notion that India was a “legal laboratory” in which legal scholars experimented with new ideas has already been discussed in the literature, largely based on examples taken from the fields of legislation (the codification of English law in nineteenth-century India) or forensic science. My article explored the extent to which India was also a site of jurisprudential innovation.
India was not unique in this respect. Similar developments occurred elsewhere in the British Empire. I already mentioned British-ruled Egypt and Mandatory Palestine, but there were other British territories (such as Hong Kong) where the British established academic institutions which taught law, and where legal scholars sought to reconcile English theories with the local legal reality. Indeed, preliminary investigations made since I completed my article show that the features that I identified in Indian jurisprudential works can also be found in works produced in non-western territories outside the British Empire, such as China and Japan, in the late nineteenth and early twentieth centuries.
I am now working on a project that analyzes and compares the history of legal thought in India, Mandatory Palestine, and Egypt. I hope that once this project is completed, it will contribute to the creation of a truly global history of modern jurisprudence, one that pays attention not just to Western thinkers and their ideas, but also to the way in which these ideas spread around the globe in the last two centuries, and the ways in which non-Western thinkers used these ideas in the study of their own indigenous legal systems.