Historiography, Empire and the Rule of Law: Imagined Constitutions, Remembered Legalities by Ian Duncanson (review)

Drawing upon the observations of Thomas Paine, who was writing in the midst of the revolutionary civil war that gripped Britain’s Atlantic Empire in the 1770s and 1780s, Ian Duncanson concludes that, in the early twenty-first century, we too live in troubled times that try men’s souls. Haunted by environmental and economic crises, terrifying and senseless wars, global immiseration, sectarian strife and slaughter, and the routine and systemic use of torture by loathsome and even legitimate regimes, the future of humanity seems perhaps as bleak as it did over two centuries ago when Paine sought to shake his brethren from their imperial and colonial lethargy. It is against this rather pessimistic and, at times, protracted preoccupation with the present that Duncanson’s Historiography, Empire and the Rule of Law considers the influence of historiography—perhaps more accurately political thought and philosophical argument—and imperial experience and expansion upon legal culture and “the rule of law” in Britain and, by extension, those postcolonial polities who inherited her legal and constitutional mores and blueprints.

For readers of Victorian Studies, Duncanson’s discussions of nineteenth-century efforts to blend post-Enlightenment and utilitarian visions of education with reformist approaches to the law will prove both compelling and contentious. Underpinning his reading of early modern and Victorian political and legal philosophy—from Edward Coke and James VI through Thomas Hobbes, Lord Shaftesbury, and John Locke to Edmund Burke, Jeremy Bentham, A. V. Dicey, and James and John Stuart Mill—is the influential work of Hannah Arendt, Jacques Lacan, and Michel Foucault. Indeed, it is through the very broadly conceived but pervasive and predatory lenses of knowledge and power that, Duncanson argues, modern perceptions of sovereignty, property, and the rule of law emerged. Some of Duncanson’s insights on these themes and on “education and legislation,” to use his terms, will be familiar to specialists toiling in those fields; at the same time, there is much that challenges received interpretations in a volume impressive for its breadth of discussion, for its range of sources, and for the implications (past and present) of its argument (8). Ultimately, the monograph concludes that the episodic and, at times, epic domestic and imperial struggles over British common and constitutional law between the accession of the Stuarts and the crowning of Victoria as Empress of India were as much about command and control as they were about liberty, freedom, and the rule of law. In this telling, law—or “lawfare,” to draw upon John and Jean Comaroff’s convincing characterization of cross-cultural legal relations between the colonizer and the colonized in the age of empires—imposed British perceptions of political and civil society, of appropriate authority and social stability, and of private property and subordination to the Crown (“Colonialism, Culture, and the Law: A Foreword,” Law and Social Inquiry 26 [2001], 306). Empire and imperial experiences in the early modern Atlantic world and later in the nineteenth century in Australasia and Africa proved foundational for these processes and for their imposition on indigenous peoples. Yet, Duncanson also strenuously argues that “the rule of law” was systematically used to coerce and compel complicity from Britain’s own metropolitan and provincial plebeian population.

Historiography, Empire and the Rule of Law charts the genesis and realization of this Anglophone hegemonic legal culture in a roughly chronological order. As such, the great seventeenth-century debates, revolutions, and civil wars over the preservation of property, the balance of the constitution, the nature of sovereignty, and the rights of freeborn Englishmen and women raised—and failed satisfactorily to resolve—fundamental questions about the nature of law and the essence of sovereignty, whether plebeian, populist, and parliamentary or patrician, monarchical, and prerogative in perspective. In the wake of the Glorious Revolution and the Act of Union, Britons—newly named and minted—seized upon civility and politeness to patch...