Monday, October 25, 2010

Alibi's of Empire



Karuna Mantena's first book, Alibis of Empire: Henry Maine and the Ends of Liberal Imperialism joins a growing conversation around the British codification of law in India. Mantena, a political theorist by training, is interesting in examining the tension between liberalism and empire, particularly when the supposedly universal values of liberalism (free markets, equal rational individuals etc) and the cultural difference of empire. As a rich body of scholarship has uncovered English Benthamite utilitarians came to dominate the project of law reform in India and their universalist claims had to content both with the imbalance of power and the cultural differences between India and Britain.

Mantena focuses on the career of Sir Henry Maine, lawyer and historian, who served as the Law Member on the Viceregal Council between 1861 and 1869. His tenure saw the completion of several codes that had been proposed by Macaulay in 1832 and made several contributions to the development of the Indian Contract Act, the Native Converts Act, the earliest divorce and civil marriage laws, the Evidence Act, the decentralization of finances and the growth of municipal administration as well as thorny questions over the interpretation of treaties with the princely states. In his classic, Ancient Law, Maine put forward his theory of social development stating that the movement in progressive societies was from 'status to contract'. He therefore explained the development of the notion of 'bundle of rights' in property and the growth of primogeniture and wills in managing property.

Mantena argues that Maine was a central figure in the turn from a liberal universalist to a more cultural relativist understanding of empire and legal transformation. His reading of differences between traditional and modern societies and his arrival in India after the revolt of 1857, shaped his views on legal change in the colony. The attempt was to preserve and work with 'traditional structures' and social systems, which were earlier viewed as impediments to development. Mantena, provides evidence of this through her close reading of Maine's policies towards land revenue, property law and customary law, particularly in the case of Punjab. Scholars like Radhika Singha and Neeladri Bhattacharya have shown that this attempt to preserve traditional orders and social customs, actually led to the 'invention' of new customs.

A more thorough review of Mantena's work, especially on Maine's failiure to bring about a uniform civil code can be found in Ishita Pande's review in this weeks EPW EPW.

Needless to say, in an era of global legal reforms and attempts to transplant legal institutions, it is critical to examine the first global rule of law project i.e. in the British Empire.

2 comments:

Tarunabh Khaitan said...

fascinating rohit. the other code that was drafted but did not get enacted was on tort law - Pollock's Civil Wrongs Bill. Wonder whether that was shelved for political or technical reasons.

kevin1985 said...

With this in mind, in my opinion the biggest legal challenge in India today is not Ayodhya, or the constitutionality of reservations, or POSCO
Law