Week 3: Colonial Encounters with legal pluralism

Part 1 : The introduction of European colonial law to Asian and African colonies
Part 2: Racial and colonial difference under the law
Part 3: Adjudication of indigenous laws - a dual system of laws
Part 4: The search for indigenous authority, the rigidification of such law, and repugnancy
clauses
Part 5: Critiques of colonial treatment of indigenous laws, the status of indigenous law in
post-colonial states, and forum shopping
Legal Pluralism in colonial states
 Colonialism and legal orientalism denied the social, religious and political norms in Asian and
African countries.
 Colonial powers took the function of the states and their approach to the indigenous laws took 2
main forms:
- Colonialism took the notion of terra nullius to deny any existence of pre-colonial law
- Dealing with the increasing legal pluralism.
Brian Tamanaha (2008) notes the three basic strategies used to incorporate indigenous laws within the
legal systems of the colonial states:
• The codification of customary or religious laws;
• State courts apply unwritten religious laws in a manner similar to common law; and
• Creation or recognition of customary ‘courts’ run by local leaders.
Legal Pluralism in colonial states
• The problem of percolation - no matter what laws existed at the national level, they may not have
been effective at the local level.
• However, ‘foreign’ state based laws were not always seen as an imposition, they could be
strategically used by people who may not have found the customary law to be in their favour.
Introducing colonial law to the colony
• Most important thing to remember: There was/is no universal experience of colonial law.

• Colonial law differed by:

 Coloniser e.g. French colonialism differed to British Colonialism
 Colony
 Location within the colony e.g. urban differed to rural areas.
 Time e.g. early colonialism differed in purpose and intensity to late colonialism.
Direct and Indirect Rule
• Direct and indirect rule - with the idea of indirect rule often associated with Frederick Lugard in
West Africa.
• Examples of indirect rule include Basutoland (now Lesotho) and Zanzibar Sultanate in Africa,
Princely states (almost 600) in India, Sarawak in Borneo.
• In relation to French colonialism the direct (British crown using terra nullius) / indirect (Frensh)
rule distinction is usually made between assimilation and association.
Legal Positivism and imperialism
• Scholars have argued that the legal positivist approach of privileging state-based laws over other
types of laws contributed to the colonial project.
• At a time when civilizational development was seen as a linear track, jurisdictions with state-based
written laws were considered to be ‘developed’ as opposed to the ‘backward’ colonies.

Introducing colonial law to the colony

• The colonial experience of law was marked by legal pluralism.
 The creation of racial/ colonial difference.
 A dual system of laws - co-existence of customary/ religious laws and colonial laws,
where both categories applied to the indigenous population.
 This was accompanied by ‘rampant boundary crossing’ - forum shopping.

Racial discrimination under the law

• Under colonial law, the discourse of rights was linked to notions of ‘civilization’.
• Indigenous people had to prove, time and again, that they were becoming more ‘civilised’ in
order to access certain rights, and ultimately independence.
• This created multiple hierarchies of citizenship.
• ‘The estimation of the rights of aboriginal tribes is always inherently difficult. Some tribes are so
low in the scale of social organization that their usages and conceptions of rights and duties are
not to be reconciled with the institutions or the legal ideas of civilized society. Such a gulf cannot
be bridged…On the other hand, there are indigenous peoples whose legal conceptions, though
differently developed, are hardly less precise than our own. When once they have been studied
and understood they are no less enforceable than rights arising under English law. Between the
two there is a wide tract of much ethnological interest…’
• - Re Southern Rhodesia (PC) (1919) AC 211, Lord Sumner 233, 234
• Some people are so backward and less developed than others that they received lesser rights.
• In some areas, such as the Natal province in South Africa, an educated African person could apply
for the right to be judged by English law in the English courts.
• The British courts served as the courts of first instance for Europeans, and as appeal courts for the
non-white population.
• Tension between the aspiration toward imperial legal universalism ( belief in a universal notion of
justice accompanied by a standardized cohesion of laws) and the ‘othering’ of non-European
subjects.
• Bonny Ibhawoh (2013): ‘Maintaining colonial difference in the realm of law-making and
administration of justice was essential to sustaining Empire. A uniform rule of law would have
profoundly threatened the power dynamic that distinguished colonizer from the colonized, and
abrogated the very foundations of the imperial project.’
• The controversy around the Ilbert Bill, 1883 highlighted the prevalence of racial difference in
British colonial law in India.
• White non-officials in India successfully campaigned to reverse the Bill that would have allowed
Indian judges to exercise jurisdiction over them.
Distinction between French and British Colonialism
• French colonialism also recognised a category of customary law which was only applicable to the
native population.
• In French colonies people could either have a customary status (statut coutumier) or a French
civil status (status civil francais). Till 1946 the latter was largely reserved for French citizens.
 • However, ‘[i]t was provided that if an African had attained a certain level of education or had
served in the military; was of good moral character; had an advanced standard of living; was not a
party to a polygamous marriage and had formally renounced customary law, he could be declared
a French citizen by judicial or administrative act’. – TW Bennett (1981)
• After legal reforms in 1946 and 1955 all the ‘natives’ in French colonies had the option of
renouncing customary laws and choosing French Law if they were over 21 years of age and not
party to a polygamous marriage.
• Similar policies were adopted by Belgium and Portugal towards their colonies.
• In British colonies, the indigenous population did not have the option of renouncing religious
personal laws in favour of British law.
How was the colonial enforced?
 Colonialism was a gradual process.
 Early colonial states borrowed legitimacy and authority from pre-existing authorities.
 Colonialism brought with it a whole new culture; law was part of a larger mission that was also
serviced by schools, religious missionaries, new forms of trade and commerce etc.
 And when all else failed, guns and cannons did the job.
The place of indigenous laws
• Indigenous laws were usually classified under European colonial legal systems as either religious
laws or customary laws.
• Both types of laws were recognised in personal or family matters alone - i.e. matters of marriage,
inheritance, guardianship, age of majority, appointment to traditional offices, and other internal
religious matters of the non-White population.
• Non-private matters such as criminal and constitutional law were almost exclusively European.
• ‘It is by now a truism that colonial rule created, in the then British territories, a dual system of
law and courts, the legal system comprising both a general or territorial law of European origin,
and a number, varying according to the number of ethnic groups involved, of customary and
religious laws.’
-Antony Allott, ‘What is to be done with African Customary Law?’ (1984)

The role of religious law

• For instance, under Warren Hastings the Judicial plan for India, 1772 stated that in ‘all suits
regarding the inheritance, marriage, caste and other religious usages, or institutions, the laws of
the Koran with respect to Mohamedans and those of the Shaster [Shastra] with respect to Gentoos
[Hindus] shall be invariably adhered to.’
• Muslim empire: Islamic law came to occupy a particular place in the eyes of the European
coloniser: Both familiar and yet unfamiliar, it was perhaps distorted the most.
Colonialism and customary laws
• The term ‘customary law’ is used in Asia and Africa to describe those laws that are rooted in
practices/customs that predate the colonial period.
• But there are very few definitions of what constitutes customary law:
• ‘Customary law, like elephants and more recently "ownership", was evidently considered to be
one of those phenomena which it was impossible to define but which could nevertheless be
instantly recognized when seen.’
- Antony Allott, ‘Customary Law’ (1965)
The adjudication of indigenous laws
• The adjudication of indigenous laws took various forms in the colonial era, and similar
institutional arrangements continue in the post-colonial era.
1. Formal or state-based courts
 a) Where indigenous laws are adjudicated upon within the same court as European/State or
other indigenous laws. For instance in South Asia.
b) Special customary or religious courts are created by the state. For instance the Native
Courts in Malawi.
2. Informal courts
Often religious and customary laws function through informal courts either with state support or without
it. State support may be provided through financial or enforcement backing. Examples include
unofficial sharī‘a courts or Hindu caste tribunals.
The search for indigenous authority
• With its hand-picked allies recognised as heads of customary law or sources of religious laws,
enforcing ‘tradition’ became a way of entrenching colonial power.

• While indigenous laws were tolerated, the colonial authorities displayed a deep mistrust of the
indigenous elite who were tasked with making such laws intelligible to the authorities.

Distrust of the indigenous elite

 For instance speaking about the development of Hindu law in colonial India, William Jones
wrote: ‘I can no longer bear to be at the mercy of our pundits (priests), who deal out Hindu law
as they please; and make it at reasonable rates, when they cannot find it ready made.’

Applying indigenous laws

• As Lauren Benton (2004) notes, often what the British perceived as corruption on the part of the
natives, was in fact a different approach to justice and law.

• ‘For example, the common practice of qadis of charging both plaintiff and defendant for
judgment in a case struck the British as corrupt, but the practice may have been partly
understood as a way of penalizing both sides for allowing conflict to escalate and returning both
parties to the community without the aggravating stigma of “loser” attached to either side.’

• Soon the colonial judges determined that the courts had built enough case-law to decide on
future cases, and at least in India they did away with religious leaders that had so far been
attached to the courts.

• In the colonies, indigenous law, which so far had been oral and fluid, now took on the
characteristics of common law, and as each case looked towards the past for precedent, the
fluidity of customary and religious laws was soon lost.

Repugnancy clauses
• Indigenous laws were to be tolerated only if they were not repugnant to colonial values.

• In British territories the clause could take the form of ‘repugnant to justice, equity and good
conscience’ or ‘repugnant to natural justice and morality’.

• If there was any doubt as to whose morality or ideas of good conscience should be taken into
account, in Waghela v Sheikh Masludin (1887) in India the court equated ‘justice, equity and
good conscience’ with ‘English law if found applicable to society and circumstances.’
 • Similarly in Gwao bin Kilimo v Kisunda bin Ifuti (1938) a British judge in Tanganyika Territory
(part of present day Tanzania) ruled: ‘I have no doubt whatever that the only standard of justice
and morality which a British court in Africa can apply is its own British standard. Otherwise we
should find ourselves in certain circumstances having to condone such things, for example, as
the institution of slavery.’

• Repugnancy clauses were used against polygamy and ‘wife purchase’ in Kenya in R v Amyeko
(1917), to free fathers from the liability for debts raised by their adult sons in Tanganyika, and to
prevent the use of mutilation or torture in punishment authorised under customary law in
Nigeria.

• At the same time, Victorian morality forced certain ‘repugnant’ laws on Asian and African legal
systems such as criminalising homosexuality or restitution of conjugal rights.

A critique of the colonial treatment of indigenous laws

• A state-centred legal pluralism:

 Creation of the categories of ‘judicial customary law’ or ‘judicial religious laws’ for all
customs or religious practices were not equally recognised or given the status of ‘law’ by
the courts.

 While indigenous laws were accepted, indigenous law enforcing institutions were mostly
set aside.

 On issues where gaps in indigenous law were found, courts were encouraged to use
‘justice, equity and good conscience’ to create new laws.

 The need for repeated translations to make local laws intelligible to British officials led to many
translation errors, these were rarely corrected. Thus, distortions were accepted as law.

 Today countries continue to rely on colonial interpretations of indigenous law, especially where
pre-colonial law was mostly oral in nature.

 Many argue that Hindu and Muslim laws in the Indian subcontinent are best described as Anglo-
Hindu and Anglo-Mohammedan law for they bear the heavy imprint of British colonialism. As
Derrett (1961) noted: ‘the administration of what is called Anglo-Hindu law proceeds upon lines
which merely prolong those laid down well before Independence.’

 Or as Ebrahim Moosa has argued in the context of Islamic law, transculturation has altered
these laws forever.

 As Zorn and Care note in the context of the South Pacific:

‘The ultimate irony of customary law is that although state law must recognise and apply custom in
order to make itself a part of the culture, state law cannot use custom without turning it into something
else.’

- Jean Zorn and Jennifer Care, ‘“Barava tru”’ (2002).

Indigenous Laws Post- Independence
Different countries have taken different approaches to their pre-colonial laws:

• Some attempted to unify their customary or religious laws in order to strengthen an

incipient nation. For instance the Law of Marriage Act, 1971 in Tanzania.

• Some sought to expand the scope of religious laws from purely personal matters to even
commercial and criminal laws. For instance the turn to Islamic Law in Pakistan.

• Most others have maintained the uneasy truce between customary/religious laws and
state law that was established in the colonial period.

Forum Shopping
• Faced with overlapping jurisdictions and multiple (often competing) legal institutions that they
could access the indigenous people often chose the forum that they believed would be the most
advantageous for their case.

• Benton refers to this process as ‘jurisdictional jockeying’ and through the cases of Naderah
Begam in India in the 18th C and Kwame Kangah in the Ivory Coast in the 20 th C she shows us how
the indigenous elites were able to use colonial legal pluralism for their own benefit.

Forum Shopping- a warning

 ‘Confronted with multiple ways of pressing a grievance, actors will choose the alternative which
promises the greatest or most reliable benefit at the lowest cost in light of the knowledge
available to them.’

- Sally Engle Merry, ‘The Articulation of Legal Spheres’ (1982)

 We must not forget that due to their close connections with the colonial state, the indigenous
elites had far more access to forum shopping than the vast majority of the population who
tended to mistrust the colonial courts.
 For instance, in their study of local courts in Tanganyika Territory in the 1930s two
anthropologists found that ‘colonial subjects were ready to suffer an injustice they understood
rather than seek an impartial justice which they did not understand.’

- G Brown and A Hutt, Anthropology in Action (1935)

Conclusions
• Colonial law took different forms at different times and in different colonies.

• Despite its aspirations towards universalism it was rooted in racial difference.

• Indigenous laws - both religious and customary - underwent significant changes in the colonial
period, the impact of which can be felt in post-colonial states even today.

• Colonial law was both an instrument of domination as well as the site of subversion and
strategic manoeuvrings.