The rule of law and racial difference in the British Empire
Why Read This
What Makes This Article Worth Your Time
Summary
What This Article Is About
Kanika Sharma examines how the British Empire weaponized the rule of law doctrine—ostensibly a democratic ideal—to construct racial hierarchies and legitimize colonial exploitation. Drawing on A.V. Dicey’s late 19th-century formulation and contrasting formal versus substantive conceptions of the doctrine, Sharma demonstrates how colonial administrators selectively applied legal protections based on racial classifications. Through the doctrine of terra nullius, Europeans erased Indigenous legal systems in territories like Australia, while in India they marginalized precolonial laws or declared them “repugnant,” systematically replacing them with colonial frameworks protecting British economic interests.
The article reveals that Partha Chatterjee’s “rule of colonial difference” undergirded all colonial legal systems, creating hierarchies where white Anglo-Saxons occupied the apex of racial and cultural categories. Evidence spans the empire: Barbados slave codes established dual legal systems with brutal punishments targeting enslaved people’s bodily integrity; South Africa’s municipalities wielded arbitrary powers to remove Black Africans from urban areas; and the Ilbert Bill controversy exposed white colonists’ fierce resistance to legal equality. Sharma argues that neither substantive ideals nor even minimal formalist protections against arbitrary rule materialized in practice, as colonial law required autocratic powers and martial law to maintain exploitation, ultimately revealing the rule of law as rhetorical cover for systematic racial violence rather than universal justice.
Key Points
Main Takeaways
Erasure of Indigenous Legal Systems
Through terra nullius claims and declarations of “barbarism,” the British systematically erased or marginalized precolonial laws across territories from Australia to India.
Dicey’s Imperial Rule of Law
A.V. Dicey’s 1889 formulation promoted equality and constrained state power but served imperial interests, with Dicey himself viewing “backward” civilizations as unable to appreciate benefits.
Rule of Colonial Difference
Partha Chatterjee’s framework reveals that colonial legal systems fundamentally required hierarchies between colonizer and colonized, making racial superiority the system’s object, not byproduct.
Systematic Racial Legal Discrimination
Dual legal systems—slave courts in Barbados, exclusion from juries, arbitrary municipal powers in South Africa—institutionalized racial difference through law’s architecture and punishment regimes.
Violence as Colonial Governance
Masters’ “right of correction” normalized brutal violence against colonized populations, with severe punishments reserved for non-white violence against whites while white-on-nonwhite violence went unpunished.
Strategic Anticolonial Appropriation
Despite the doctrine’s failures, anticolonialists like Gandhi and Nehru strategically deployed rule of law rhetoric to gain legitimacy, revealing the concept’s paradoxical endurance as shorthand for justice.
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Article Analysis
Breaking Down the Elements
Main Idea
The Paradox of Imperial Legal Universalism
Sharma’s central argument demonstrates that the British Empire transformed the rule of law—theoretically a universalist doctrine protecting citizens from arbitrary state power—into an instrument for manufacturing and maintaining racial hierarchies throughout colonial territories. By tracing the doctrine from Dicey’s formulation through its application across slavery, land dispossession, criminal justice, and professional exclusion, she reveals systematic contradictions between proclaimed legal equality and practiced racial discrimination. The rule of law served as rhetorical legitimation for colonial domination rather than substantive protection, failing even minimal formalist standards while providing moral gloss to exploitation.
Purpose
To Expose Imperial Legal Hypocrisy
Sharma writes to systematically dismantle the myth that British colonial administration delivered rule of law benefits to colonized populations. By marshaling evidence from legal codes, court cases, administrative practices, and theoretical frameworks across multiple territories and centuries, she demonstrates that racial difference was structurally necessary to colonial legal systems rather than incidental to them. Her purpose extends beyond historical critique to contemporary relevance, showing how rule of law promotion continues as neoimperialist policy in the 21st century, making critical understanding of the doctrine’s colonial genealogy essential for recognizing ongoing power structures.
Structure
Theoretical Framework → Empirical Documentation → Critical Synthesis
The article opens by establishing theoretical foundations through Dicey’s rule of law doctrine and distinguishing formal versus substantive conceptions, then introduces Chatterjee’s rule of colonial difference as analytical framework. The substantial middle section provides meticulous empirical documentation across geographic territories (Barbados, India, South Africa, Tanganyika, Australia, Kenya) and legal domains (slavery, criminal law, professional access, municipal powers, martial law), demonstrating systematic patterns of racial discrimination. The synthesis section evaluates both substantive and formalist conceptions against colonial reality, before concluding with the paradox of anticolonial appropriation and contemporary neoimperial deployment, creating a comprehensive critique spanning theory, evidence, and ongoing relevance.
Tone
Scholarly, Critical & Uncompromising
Sharma maintains rigorous academic tone throughout, grounding every claim in historical evidence, legal scholarship, and theoretical frameworks from Dicey to Bingham to Chatterjee. Her critical stance is uncompromising—she systematically dismantles claims of British legal benevolence without hedging or equivocation, using precise legal terminology and concrete examples of violence, exclusion, and exploitation. The tone avoids polemics while refusing apologetics, letting documented practices speak for themselves. The measured scholarly voice paradoxically strengthens the devastating critique, as careful accumulation of evidence renders the gap between proclaimed ideals and brutal reality inescapable, forcing recognition of law’s complicity in colonial racial violence.
Key Terms
Vocabulary from the Article
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Tough Words
Challenging Vocabulary
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Latin legal term meaning “nobody’s land”; a principle used by colonizers to claim territory as legally unoccupied, denying Indigenous political organization and land rights to justify colonization.
“Europeans declared vast territories—and, in the case of Australia, a whole continent—terra nullius to facilitate colonisation”
In colonial legal context, contradictory to or incompatible with British legal principles; a designation used to invalidate Indigenous laws by declaring them offensive to European sensibilities.
“This was achieved by declaring them to be repugnant or by marginalising such laws to the personal sphere”
A narrow or limited outlook restricted to local or provincial concerns; characterized by lack of awareness or interest in broader contexts, often displaying provincialism or insularity.
“Judith Shklar in 1987 described Dicey’s work as ‘an unfortunate outburst of Anglo-Saxon parochialism'”
Free from restraint or limitation; unconfined by restrictions or controls; operating without constraints, checks, or limitations on authority or action.
“The ancient Greeks contrasted the rule of law positively to the rule of the despot and the tyrannical possibilities of unfettered or arbitrary rule”
Latin legal term meaning “beyond the powers”; actions taken by government officials or organizations that exceed the authority granted to them by law or statute.
“in Tutu and others v Municipality of Kimberley (1918-23) this regulation was found to be neither ultra vires nor unreasonable”
Made invisible or unnoticed through deliberate obscuring or normalization; rendered imperceptible through systematic erasure from public consciousness, discourse, or historical record.
“Invisibilised by its omnipresence, routine and indiscriminatory violence by the colonising race remains one of the British Empire’s most closely guarded secrets”
Reading Comprehension
Test Your Understanding
5 questions covering different RC question types
1According to the article, A.V. Dicey believed that the rule of law doctrine originated in ancient Greece and should be credited to Greek legal tradition rather than the English system.
2What was the primary outcome of the 1883 Ilbert Bill controversy in colonial India?
3Which sentence best captures Partha Chatterjee’s concept of the “rule of colonial difference” as applied in the article?
4Evaluate the following statements about colonial legal practices across the British Empire:
The Barbados slave code of 1688 created dual legal systems where enslaved people faced status crimes and brutal punishments like flogging and dismemberment unavailable for free populations.
In Tanganyika, colonial authorities required British law degrees to practice law while simultaneously preventing Africans from receiving scholarships to study in Britain.
Colonial judges serving in territories like British Guiana enjoyed the same independence as metropolitan judges, being appointed for life tenure and protected from executive removal.
Select True or False for all three statements, then click “Check Answers”
5Based on the article’s discussion of anticolonial movements’ use of rule of law rhetoric, what can be inferred about the relationship between the doctrine’s practical failures and its continued ideological power?
FAQ
Frequently Asked Questions
Formal or “thin” conceptions, exemplified by Joseph Raz, focus on procedural requirements—open, clear, stable rules that constrain executive power and allow life planning—without making substantive moral judgments about justice. This version could theoretically exist in racist, authoritarian systems. Substantive or “thick” conceptions, articulated by scholars like Tom Bingham, insist the doctrine must include protection of human rights and dignity. Bingham rejected purely formal approaches, arguing states practicing persecution cannot truly observe rule of law regardless of procedural compliance, making the distinction crucial for evaluating colonial legal systems’ claims.
Terra nullius (“nobody’s land”) allowed Europeans to claim territories were legally unoccupied by denying Indigenous populations possessed political organization or land rights systems. This legal fiction freed colonizers from obligations to negotiate with political leaders or recognize existing property systems, as demonstrated by declaring entire continents like Australia terra nullius. The 1884-85 Berlin Conference exemplified this by treating Africa as conceptual terra nullius, with European powers and the United States dividing territories among themselves without African participation, systematically erasing precolonial legal structures to facilitate resource extraction and settlement.
Lord Sumner’s 1919 Privy Council judgment explicitly ranked Indigenous populations on a “scale of social organisation,” determining rights availability based on perceived proximity to European civilization. He stated some tribes were “so low” their conceptions couldn’t be reconciled with “civilised society,” while others possessed “hardly less precise” legal conceptions than English law. This judicial articulation formalized racial classification systems directly into legal doctrine, making rights conditional on colonial authorities’ subjective assessment of cultural advancement. The judgment exemplifies how ostensibly neutral legal principles encoded racial hierarchies, determining which communities fell inside or outside rule of law protections while remaining subject to law’s coercive force.
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This article is rated Advanced level. It demands sophisticated understanding of legal theory, colonial history, and critical scholarship, requiring readers to navigate complex arguments across multiple theoretical frameworks from Dicey to Chatterjee to Bingham. The vocabulary includes specialized legal terminology (ultra vires, terra nullius, repugnant) and abstract concepts about formal versus substantive justice. Success requires tracking evidence across diverse geographic contexts (Barbados, India, South Africa, Tanganyika, Kenya, Australia) while maintaining analytical focus on how ostensibly universal principles systematically produced racial hierarchies. The dense argumentation and critical theoretical apparatus make this suitable only for readers with strong academic reading backgrounds.
Sharma uses Thompson to demonstrate how even scholars critical of law’s role in reinforcing class relations nevertheless valorized rule of law as having “universal significance,” justifying this by citing Indian freedom fighters’ strategic use of the concept. This example illustrates the doctrine’s paradoxical endurance despite systematic failures—even those recognizing law’s oppressive functions often defend rule of law by pointing to anticolonial appropriation. However, Sharma counters that this appropriation reflected strategic choices for gaining legitimacy rather than genuine commitment to the doctrine, highlighting how the concept’s ideological power persists independent of its practical delivery, maintaining relevance for understanding contemporary neoimperial structures.
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