Colonial Power and the Rule of Law's Tangled History:McBride's Mr. Mothercountry
Few political ideals are as loaded with a history of promise and betrayal as the rule of law. In principle, the rule of law is meant to limit elite power and uphold accountability for power's abuses. It is presented as a solution to violence, criminality, corruption and exploitation, and it suggests the creation of an impartial political order that advances justice and fairness for all its members. In practice, however, the rule of law has been put into the service of powerful actors who determine its meaning and extract benefits. Among other uses, it has served as justification and alibi for imperialism past and present, demarcating the boundaries of "civilization" while demeaning the status of subjugated peoples whose dis-ordering resistances the rule of law suppresses. Keally McBride's Mr. Mothercountry: The Man Who Made the Rule of Law preoccupies itself with the tangle of such organized hypocrisy.
The book is a sustained reflection on how we might comprehend the rule of law in light of its abuses and checkered past. Though McBride is clearly interested in contemporary debates, her principal approach in Mr. Mothercountry is historical. She concentrates on one troubled context and period of the rule of law's history: British colonialism in the mid 19th century. With this, Mr. Mothercountry joins a spate of other recent books on this colonial period, including works by Jeanne Morefield, Karuna Mantena, Jennifer Pitts, and Sankar Muthu. What sets McBride's book apart is its narrow focus on the rule of law and the personalities responsible for implementing it. Her primary attention is directed neither at grand theory nor at the experiences of colonized or postcolonial subjects but at the ideas and practices of colonial administrators operating principally from London. She, in effect, examines the interior of the colonial apparatus so as to lay bare the judgments, biases, philosophies and struggles that guided the rule of law's international circulation. Looking at how the British colonial bureaucracy applied the rule of law to its colonies, McBride suggests, can shed light on the rule of law's meaning and entailments then and today.
Though she decries the arbitrariness and power imbalances that underlie applications of the rule of law, McBride nonetheless stops short of calling for the wholesale rejection of the ideal. Central to her argument is her claim that the rule of law is best seen not as a static condition, arrival point, or set of institutions but rather as a mode of practice. As such, the rule of law was not merely an ideological bolster for colonial rule. It also functioned as a pragmatic [End Page 318] response to the challenges of governing diverse colonies. And it is in such practical responses—often slow and grinding—that McBride finds insights not only about the rule of law's failings but also about underlying aspirations and the sort of worldly dilemmas that make the rule of law important yet difficult.
The book is organized into five substantive chapters spanning the period from roughly 1813 to 1870. This is a period in which colonial authorities grappled with legal pluralism and the heterogeneity of local colonial contexts. The period is also characterized by the growing codification and standardization of colonial law; mercantile campaigns to extend Britain's jurisdiction beyond its sovereign territory; and the British government's struggles with rebellion and excessive policing in its colonies. Such topics provide the substance of Mr. Mothercountry's chapters. Rather than being driven by a strong central thesis, the chapters use the different contexts and practical dilemmas to unfold layers of complexity in the rule of law's meaning and applications.
One of the book's major contributions is its examination of a largely unsung group of people with outsized impacts on the rule of law in Britain's colonies. Most readers will not be shocked to learn that a few powerful actors wielded great influence over Britain's colonial bureaucracy. More surprising, however, is just how insular the group of actors was. As McBride reveals, much of the colonial legal apparatus fell under the influence of one very small and incestuous band of fundamentalist Christians referred to as "The Clapham Sect." With the British Home Office showing little interest in colonial affairs, members of this group managed, over multiple generations, to insert themselves as arbiters of colonial lawmaking. This they did with both a missionary zeal and a deep opposition to slavery: the people responsible for bringing the rule of law to the colonies were dedicated abolitionists who wanted to improve the lot of the oppressed and redeem their country for the colonial injustices it had perpetrated. Importantly, their humanism did not extend so far as a call for the abolition of colonialism as such. The problem, in their eyes, was rather the failed application of colonial law.
The leading character of the book ("the Man" in the book's title) is Sir James Stephen, the Undersecretary of the British Colonial Office in the early-to-mid 19th century. This is a man who for three decades quite literally decided how laws were to be implemented and adapted across virtually all of Britain's diverse colonies. It was a serious responsibility undertaken by a serious man. As a personality, Stephen was so hard-driving and principled that his own children described him as "a living categorical imperative" (51). As a bureaucrat, his diligence and power earned him the moniker "Mr. Mothercountry," which, McBride informs us, was not meant as a compliment (41).
Readers expecting to find a devil behind the scenes of the Colonial Office will be disappointed. In McBride's account, Sir James Stephen was neither a heartless imperialist nor Arendt's Eichmann pushing papers with a banal indifference to their evil consequences. Rather, Stephen was a committed humanist staunchly opposed to slavery and doing his best to use law to alleviate the suffering and injustice perpetrated by colonial relations. Stephen took as his mission the administration of legal codes in ways that that would limit the powerful (i.e., settlers and merchants) in the colonies while securing protections for the weak (i.e., freed slaves and natives). For him, the rule of law didn't entail overriding local custom with uniform colonial legal code. It instead meant adapting law to local contexts with an eye towards higher standards [End Page 319] of justice. Colonialism heightened the need for law to protect humanity, and this, for Stephen, required practical judgment and a great sensitivity to indigenous legal systems. His was a vision of law as an ideal and as a remedial practice that is never complete: a practice that requires a practitioner. McBride details how Stephen understood this role and carried out his task with humility, nuanced understandings of the different colonies, and an abiding sense of higher purpose.
Mr. Mothercountry is also, however, the story of a fall. McBride recounts what she sees as the degeneration of colonial rule of law from the context-sensitive and justice-driven approach of Sir James Stephen to a decontextualizing approach that emphasized universal codification and that prioritized commercial interests and the enforcement of procedural order above diverse local needs. Given the sheer quantity of information the undersecretary needed to command, Stephen's assignment was virtually impossible to realize. To make matters worse, larger forces were often aligned against him despite his considerable bureaucratic power. McBride, for example, describes Stephen's ultimately unsuccessful efforts to prevent the crown from extending its jurisdiction beyond British territory. She illustrates this with the case of Sierra Leone, a colony of former slaves that was central to the Christian abolitionist vision. This is a particularly interesting episode in the book. Because of Sierra Leone's feeble economy and limited geography, many colonists sought economic opportunities in adjacent territories (in "lawless places") beyond the colony's legal scope. When conflict ensued with local tribes due to the territorial encroachment and the criminal activities of missionaries and settlers, pressure mounted on the crown and the local governor to extend British jurisdiction in order to keep their own subjects accountable and under control. Though such jurisdictional expansion was initially proposed to police colonists beyond borders, commercial interests quickly realized the benefits of such an arrangement. The British didn't want territorial sovereignty everywhere. What they wanted was for British citizens "to be able to circulate throughout the globe, and to be able to have the force of British law support or constrain them as needed" (83). They wanted "placeless law." Attempts to establish extraterritorial jurisdiction by political fiat were contrary to Stephen's territorial vision of the rule of law as a basis for justice. The ascription of law to particular territories was, for instance, what enabled former slaves to escape their slave status when traveling to a new territory. As Undersecretary, Stephen struck down such jurisdictional expansions in Sierra Leone and South Africa. But the tide of British commercial interests seeking legal standing beyond borders was too great and by the mid 1840s extraterritoriality was becoming established practice. On McBride's account, this marked not only a change in the meaning of the rule of law but also a shift in the meaning of sovereignty, which came to include the projection of jurisdictional authority beyond the territorialized nation-state.
The shift to extraterritoriality constituted only one aspect of the degeneration from Stephen's rule of law paradigm. McBride also casts this fall as a family affair pitting Stephen's outlook against his son's. Like his father, James Fitzjames Stephen (J.F. Stephen) exercised considerable sway in colonial legal affairs. But whereas Sir James saw the rule of law as a practice requiring practical judgment rooted in extensive knowledge of local context and aiming towards justice, his son regarded the rule of law as principally a matter of procedural [End Page 320] regularity and uniformity across contexts. For him, the flexibility and discretion exercised by colonial administrators was part of the problem. He approached the rule of law as a social science offering technocratic solutions to the problems of politics.
McBride illustrates this shift in thinking through a discussion of the 1877 Morant Bay rebellion in Jamaica. This was a rebellion that involved brutal police suppression and the institution of martial law, under which two thousand Jamaicans were killed. At issue for the British government was whether the colonial governor of Jamaica had broken the law when he established martial law and had the alleged rebellion leader (ex-slave George William Gordon) hanged without due process. As McBride depicts it, both the honor of the Empire and the position of the rule of law in the colonies was at stake. "Should the law be used to protect the citizens against the rulers, or the rulers against the unruly citizens?" (99). It is a question for our age as much as theirs. After a royal commission concluded that martial law had been taken too far, the Colonial Office disbanded the Jamaican Assembly and assumed full legislative authority over the colony. In his commentary on the case, J. F. Stephen, who served as barrister during one investigation, praised the suppression of the rebellion but nonetheless maintained that the governor had broken the law with his politically expedient murder of Gordon. Unlike others, whose legal analysis was informed by moral outrage over the excessive policing, J.F. Stephen drew a sharp distinction between law and morality. He carried this perspective to his subsequent efforts to regularize, clarify, and modernize the law. He thereby helped inaugurate a period in which the colonial rule of law became increasingly a matter of codifying hierarchies and enlightening subjected people about the benefits of behaving. For J. F. Stephen, the aim was not to eliminate force but rather to depersonalize it within a highly visible and increasingly disciplinary legal apparatus. Mr. Mothercountry's vision of law and justice thus gave way to legal formalism and a vision of law and order as instruments of social control.
In a later chapter, McBride again takes up the issue of codification and policing, but this time in the context of India. She examines how, despite their theoretical incompatibility, police violence and the discourse of the rule of law worked in tandem to reinforce British rule. On one hand, the British regarded the codification of criminal law (such as through the Indian Penal Code of 1860) as a way to bring legal stability to the seemingly chaotic Indian regime. It was a way "to assert the necessary hierarchy of colonialism in an orderly fashion" (108). And if the extent of codification seemed excessive, it was considered necessary due to the Indians' presumed weak capacity for self-governance. On the other hand, colonial administrators used policing not primarily to investigate crime and uphold law but rather to instill order, often through coercive and partisan means. This is to say that law and order followed different structures. As the criminal codebook swelled so too did the backlog of criminal cases demanding investigation, investigations that under-resourced local police forces were disinclined to pursue. And when Indian police were caught abusing their powers, their violence merely provided further justification for British rule. As McBride describes, "[o]ne legacy of colonial rule was a police force that was largely unlimited by stated and apparently irrelevant legalities but nonetheless responsible for maintaining justice and order in the void created by the realities of colonial administration" (138). The proposed [End Page 321] solution? Strengthening the rule of law through more staffing, oversight, and reformed codes. It is here that the postcolonial perspective is most evident in McBride's work. She draws attention to a 2003 report issued by a governmental committee (the Malimath Committee) on criminal justice reform that proposed to address massive case backlogs by turning away from the adversarial system of law inherited from the British colonizers and towards a more inquisitorial system ostensibly linked to Indian tradition. Such a shift would further empower the police while further limiting the rights of the accused. For McBride, this exemplifies postcolonial politics and illustrates the danger that the rule of law might become measured by easy justice without even a pretense of neutrality (152).
These are just a few of the contexts used in Mr. Mothercountry to illuminate the complexities of the rule of law. Throughout, McBride's writing is fresh and vivid. Portions of her narrative have a storytelling quality to them, with clear protagonists struggling to navigate the contradictions of empire and their own roles within it. The book has some light-hearted moments—the author, for example, traces Stephen's family to an ancestral pirate—but the book's subject matter is serious, and McBride combines careful historiography with deeper reflections on the rule of law and its complications.
An effort to think both with and beyond McBride's text leads me to three critical responses. My first response pertains to how the book's arguments relate to contemporary politics. As mentioned, Mr. Mothercountry is primarily an historical examination of 19th century colonial administration of the rule of law. But McBride is nevertheless interested in the rule of law's place in contemporary politics. Her efforts to relate her historical investigations explicitly to the present day are, however, uneven. For example, she provides very insightful commentary on how contemporary struggles to reform the legal code in postcolonial India can be related to 19th century shifts in the rule of law's meaning, but she does not offer similarly thick commentary on how her analysis of excessive colonial policing or the rise of extraterritorial jurisdiction in the 19th century might be related to today. I regard this as a missed opportunity. Extraterritorial jurisdiction, for instance, is a highly contested issue in contemporary debates over commercial globalization, where it's not always presumed to serve commercial interests: American business elite gripe about paying U.S. taxes on income earned abroad. Extraterritorial jurisdiction is equally important in human rights law, where notions of universal jurisdiction and "the responsibility to protect" imply a whole new level of extraterritorial rule of law. Addressing such contemporary issues would have helped clarify the stakes of McBride's historical investigations.
My second response revolves around the book's emphasis on order when discussing the colonial administration of law. Such an emphasis is evident throughout the book but is especially pronounced in the later chapters, which describe technocratic applications of law to instill obedience. Most poignantly, the book describes how the unruly and seemingly disordered resistances of the colonized (in India in 1857 and in Jamaica in 1865) were used to justify policing and to validate both colonialism and the presumed superiority of the well-governed British citizenry. Alluding to the present, McBride gestures to how the supposed absence of the rule of law continues to be used as justification for foreign military interventions ostensibly designed to instill "order." McBride rightly critiques such interventions as serving primarily elite interests (156). In doing so, however, she seems to accept the association of colonial and neocolonial [End Page 322] interventions with the imposition of order. What the book occasionally hints at, but does not fully address is how the imposition of the rule of law has also been a considerable source of disorder in occupied societies. Colonial and neocolonial impositions of law have a way of disrupting local economies and authority structures and of scrambling preexisting social norms and ways of life. From this perspective, the rule of law is not merely an ordering practice; it is a project that is (and is often designed to be) deeply disruptive. How, I wonder, might the narrative change if the question of law and order was rearranged. Instead of asking about how the colonizers implemented and enforced order on unruly colonized subjects, what if we asked how colonized subjects managed to preserve some indigenous social structures despite the disruptions caused by colonial law? And what if we asked not how legal order was implemented by colonial authorities but instead how insurgents used law to disrupt colonial power dynamics?
Suggesting a shift in perspective also brings me to my third and final response, which centers on the paradoxical figure of Sir James Stephen, Mr. Mothercountry. McBride paints a highly sympathetic portrait of Stephen as a man struggling to do what's right from within the corridors of the colonial apparatus. His fastidious and nuanced approach to the rule of law may have been a lost cause historically, but McBride seems to regard it as a reflection of the predicament of the rule of law today. Although the book doesn't draw the connection explicitly, Stephen is represented in ways that embody the very sort of ethos often celebrated by contemporary critical theorists. He exemplifies cultural reflexivity, epistemic humility, ongoing interrogation of self and others, vigilance, and a rejection of liberal pretensions to having now, finally, gotten things right when it comes to justice and fairness. In its contemporary variant, such characteristics might be cast as a radical ethos steeped in post-structuralism and postcolonial awareness of colonial legacies. McBride closes the book by suggesting, with Stephen, that "[a]s soon as we think we know the secret recipe or ingredients of the rule of law, we have lost the battle to achieve justice" (161–162). Yet this is what makes Sir James Stephen so troubling. Humility is a trait of people, not of institutions. He was the colonial lawgiver. As McBride herself points out, Stephen may have been a radical critic, but he was also the administrator of the British Empire. How, I wonder, might such a sympathetic yet still anticolonial reading of Mr. Mothercountry shape how we situate ourselves today vis-à-vis the rule of law. He was a historical figure whose office became redundant with the changing times. Is he meant to serve as a metaphor or allegory for the contemporary condition? Who is the colonial law maker today? Are we all, in some respect, Sir James Stephen, adjusting legal codes to exigent circumstances in the name of a more flexible (neoliberal) order? Are we hopelessly reproducing hierarchy and legal domination even as we critique them? Does such a condition apply to some more than others? Normative political theory too often assumes the position of the throne rather than that of the street or the countryside. What does it mean for normative political theory to assume the perspective not of the prince or of the subject or even of the marginal outsider, but of the colonial bureaucrat? There is something deeply suggestive and highly unsettling about such a proposition. I can imagine both radical and reactionary renderings, but McBride does not quite go there. What she has done is written a superb and evocative book that will enrich existing scholarship on colonial practice and deepen understandings of the rule of law and its many dimensions and pitfalls. [End Page 323]
Craig Borowiak is an Associate Professor of Political Science at Haverford College. He is the author of Accountability and Democracy: The Pitfalls and Promise of Popular Control (Oxford 2011) and has published articles in a variety of journals, including Antipode, Politics and Society, the Journal of Politics, Constellations, New Political Science, Political Theory, and Polity, among others. He is currently coauthoring a book on the solidarity economy. Craig can be reached at email@example.com