By Basil Fernando
Why did the British colonial project for introducing the rule of law fail? There may be many reasons for such a failure and these may differ from one country to another. However, there seems to be one factor in common. The following extract from a minute written by British politician Thomas Babington Macaulay may throw some light on this matter.
“In one point I fully agree with the gentlemen to whose general views I am opposed. I feel, as with them, that it is impossible for us, with our limited means, to attempt to educate the body of people. We must at present do our best to form a class who may be interpreters between us and the millions whom we govern – a class of persons, Indian in blood and colour, but English in taste, in opinions, in morals, and in intellect. To that class we may leave it to refine the vernacular dialects of the country, to enrich those dialects with terms of science borrowed from the western nomenclature, and to render them by degrees, fit vehicles for conveying the knowledge to the great mass of the population.”
In terms of the introduction of the law, this meant that a small group of persons from a colony will be provided with the opportunity to learn the law and the way the law is enforced, and this small group will in turn teach what they have learned to the rest of their population in their countries.
However, this is not what happened. The “small group” in question kept that knowledge to themselves. This possession made them a very privileged class. This group considered that any attempt to make this knowledge availed to others was a threat to themselves. The strategies used to keep this privilege became a source of many conflicts for the development of a broad-based rule of law system. With the passing of time, this situation threatened the rule of law project itself. The idea that introducing the law was a matter of planting the “western nomenclature, and to render them by degrees, fit vehicles for conveying the knowledge to the great mass of the population” was also proved wrong.
The assumption behind this assertion is that the minds of “natives” are empty and therefore this emptiness can be filled by pouring ideas from outside. However, this was not what “native minds” were, and further, this is not the way humans assimilate ideas. In the process of the assimilation of ideas, a dynamic confrontation takes place between what is already there and what is introduced as new. This process of dynamic confrontation and choice is a social experience. It is not just individuals who acquire new knowledge and teach it to others. If ideas that are important to a society are introduced, the society in question takes time to consider and to choose to admit or reject these new ideas. Often, some forms of modifications and improvement take place in the course of such introductions.
The starting point is that those new ideas must be made available to society as a whole. Perhaps Macaulay thought that the “small group” that was initially exposed to western ideas – in this case on the law, will do their duty to their society by reintroducing them to the whole society and thereby provide the opportunity for society to own or reject these new ideas and approaches.
However, if this was the case, it would have undermined the privileged positions of the “small group”.
The result was that the rule of law concept never came to be owned by the whole population. They did not even understand the associated ideas and their meanings, the laws, legal procedures, and institutions, with an accompanying effort to educate the masses about their relevance and the use of such introductions. The “small group” that operated often made use of the confusion for their own advantage. Later, after Independence, when some new leaders wanted to undermine the system, there were not many who came forward to defend it. Many did not even understand what they were losing. Those with more authoritarian tendencies were, therefore, able to achieve their ambitions by undermining the legal system.
Legalising the notion of sub-humans
With its project for colonisation, Western civilisation developed the notion of humans and sub-humans; and this distinction needed to be legalised in order to develop legitimacy for acquiring lands belonging to other people and nations that had different ways of thought and living as compared to the people from Western countries.
To develop the right of ownership by conquest, various forms of arguments were necessary. One convenient argument was that people living in another territory are incapable of developing their own resources, and that since Western interventions could do this better than them, they had the right to claim ownership to that territory. When the territory cannot be acquired by agreement or treaties, it was also permissible to acquire this by way of the use of force.
In the US, when the settlers acquired the properties of the natives, this same form of argument was used, which was upheld as legitimate legal grounds for dispossessing lands, and often causing the destruction of the indigenous people who were living there. The tearful tales for example of Apache land is a graphic example of this mode of acquisition.
Similar acquisitions had been made by the Spanish, the French, and others, using a similar type of distinction between sub-humans and humans.
This was the same form of argument that was used by the British in developing the largest empire known as the British Empire. Later, justifying this form of conquest, former British Prime Minister Winston Churchill said something to the effect that merely because a dog sleeps in a particular place, it does not become the owner of that place. He talked about people of a higher civilisation having acquired the people of the primitive types. Usually, instead of the word sub-human, the word “savage” was used.
It is this idea that British politician Thomas Macaulay articulated in his famous minutes.
This conception had its implications in the approach of the British colonialists towards the development of the legal institutions in the colonies they acquired. It is clearly shown in their colonies in Asia that they treated the local people, their cultures, and also their institutions as primitive, and that therefore a superior system needed to be established.
However, what they did not grasp was that these people and their cultures had very long histories, and that many of the values on which the Western civilisation was based were also present in these cultures and the civilisations of these people.
In any case, the people who administered the colonies were there for the particular purpose of earning revenue from their positions, on behalf of the crown of their country. They were not philosophers or even political leaders thinking about the best interest of the country they had colonised. The futuristic interest of the development of those nations was not the consideration on which their system of administration was built.
This could be empirically observed in the manner in which the early employers of the colonial administration were selected and trained. While the experience differed from country to country in terms of the profits that could be made from that country, and also the kind of problems faced in maintaining colonial possession from protests and rebellions, it however played a role in the selection of these officers. A general pattern could also be seen among the practices that were adopted in different countries.
In Sri Lanka, part of which was acquired by the British in 1796 and then the entire country by 1815, the early officials who were given the task of administration were brought from Britain. The Portuguese and the Dutch, which had occupied the coastal areas of Sri Lanka before the British, used the existing local system of administration and the system of various offices to carry out their administration. However, the British completely discontinued this, and wanted to develop what was called a modern administration. In that, all the important positions were given to the British. Certain unimportant positions, such as subordinates to the colonial officers, were allowed for the local people, but in terms of numbers, these were quite small.
It was in 1835 that a problem was identified about running the administration mainly through the British officers. That related to the expenses of maintaining such officers’ salaries. It was found that the expenditure incurred in the administration of the colony exceeded the income gained from it at that early stage. It was on that basis that a commission appointed at the time, called the Colebrooke-Cameron Commission, recommended that more Sri Lankans be recruited and trained for the purpose of cutting down costs.
However, throughout the 19th Century, this debate about recruitments from Britain and the recruitment of locals continued on many grounds. One was that the kind of training that a British officer is able to gain in England was unavailable to Sri Lankans, and that therefore, the kind of quality required could not be obtained from them.
What is important is this distinction of humans and sub-humans and how it affected the entire colonial project, and particularly the manner in which the legal institutions of the colony were developed. The laws for the colony were introduced directly from Britain. Thus, the people from the country had no involvement in the making of the laws that were to apply to them. The result of this was that people did not have the occasion to consider or even to learn the principles and the reasons for the introduction of these laws. While they had to obey the laws, they had no opportunity to understand the particular notions around which these laws have been developed.
It was worse in terms of the institutions that administered these laws. The development of these institutions was a very slow process, and in all important positions, the people who led these institutions were British. Gradually, they absorbed local persons into these professions, but they were in a subordinate position, and they were not on equal terms to be able to express their take on the manner in which the laws were administered. Therefore, the administration itself was impotent. And therefore, in historical terms, it was a great barrier to acquire any sort of localisation of the institutional principles, and towards getting the co-operation of the people. Thus, the administration of the law was not pursued through a spirit of co-operation and dialogue but only by way of superimposition.
It was only a handful of people who at the beginning had subordinate positions that were able to have any kind of interaction with a larger population. The numbers of these subordinates were too few to have any kind of impact in terms of providing greater insight and education about the laws and these institutions to the local people.
Perhaps the underlying reasoning was that these sub-humans were not capable of understanding these laws or the institutions through which these laws are enforced. Therefore, what was to be expected was to force these laws in any case, and not to follow up with any serious attempt to win the co-operation of these persons.
Perhaps there were also political reasons for not pursuing a more comprehensive policy of winning the co-operation of the people to a system of the new administration of laws that were based on principles developed in Britain, which have over the centuries seen certain significant developments towards substantive legal equality.
In the colony, it may not have been considered possible or desirable by the colonial power to create a sense of equality among the local population. If the population were to acquire a sense of equality and dignity, the demand that would be made on the colonial power would be much greater. The treatment of the natives as sub-humans had also a convenient effect of treating them not as equal subjects of the crown, but as persons to be ruled over. Thereby, their sense of development of certain rights would not hasten.
The British Empire was having experiences in countries where some sections of the local elite were able to gain a greater understanding of the democratic principles and the principles of the rule of law, and in these countries, there was a more rebellious spirit that questioned the very legitimacy of the colonial project. It would have been purely a political consideration to not create conditions within which the population felt a greater sense of equality and dignity.
For those engaged in the administration of the colony, this distinction between sub-humans and humans may also have provided some ease of conscience. If they had to take harsh measures against the native people, that was because they could tell themselves that such was for the purpose of taming the beast – the sub-human has to be gradually humanised, and that had to be done by harsh measures.
Thus, in the development of legal institutions, the principle was not for the purpose of enhancing a greater sense of liberty and participation, but to delay that as much as possible. And all that could be justified by maintaining this distinction between humans and sub-humans.