Conclusion

The long phase of British colonial rule in the Indian sub-continent from the late eighteenth century to mid-twentieth century was marked by divergent po­sitions not only on the manner of governing colonial subjects but more impor­tantly on the methods of generating law, which cannot be wholly reduced to an essentialist logic of dominance.

Critically understanding jurisprudence as the �science of law’, in the origi- nary sense of the term, aptly signifies the characteristic feature of the early- colonial legal enterprise. While thinkers like William Jones considered the preparation of digests, translations, and commentaries to be the best method of apprehending the phenomenological reality of law, they spoke in a minority voice in relation to the larger exigencies of the East India Company’s colonial rule.

This tension eclipsed a certain idea of law, limited as it may sound from our present: law as text. Law emanated from philology and the analysis of legal precepts by the jurist; it could not be reduced to laws and customs practiced within the contours of social and political life. A critical legal history should be open to the vicissitudes of the language of law that emerges through jurispru­dence. Beginning a project of this kind requires an alternative genealogy of law as lex scripta before we examine the production of laws in colonial empires. In the context of British imperial rule, the fascination with jurisprudence and codification reveals various enmeshed layers of what was meant for a char­tered trading company to hold sovereignty. This was tied with the assumption that the East India company, upon its conquest of Bengal, acquired its sover­eignty through the laws, be they public or private, bequeathed to it by the pre­modern sovereigns of India, especially, the Mughals. Though an illustration of this intertwined relation between sovereignty and law is beyond the scope of our discussion, it may be hinted in conclusion, that this idea too was philologi­cal in nature.

In a changed imperial reality by the early 1900s, William H. Rattigan, mem­ber of the Supreme Legislative Council of India 1892-93 curiously defined Brit­ish India as a �constitutional empire’.55 This was paradoxical as modern states alone are constitutional in nature due to the social contract. Unlike ancient empires like Rome that were constitutional in a limited sense of the term, the British Empire in India was neither constitutional nor a dominion. Indeed, the British Monarch was Emperor only with respect to India as the British Crown ruled it directly. The Westminster Parliament legislated the most important laws such as the Government of India Acts. The Supreme Legislative Council of India legislating matters internal to British India was not representative. All these legislations had given it quasi-constitutional provisions for administra­tion. Yet, there were several characteristics to British India as a State without a State. It had all three organs of government: the executive, the legislature, and the judiciary. British India was even a founder member of the International Labour Organisation in 1919 and recognized as if it were a sovereign state for international treaty purposes. This ambiguity of ideas and institutions over time was a product of thinking of international law as the law between differ­ent political communities rather than sovereign states alone in certain inter­national legal conventions. With respect to British India, international law was the �law of nations' in the original natural law tradition rather than a law be­tween states that it had become in the nineteenth century.

The possibility of this tectonic shift in the position of British India was a product of the receding of the instability and the constitution of a chaotic company regime where instituting a legal regime was an element of sovereign­ty. While the premodern legal procedures, treaty-making, and adjudication had disappeared from the sub-continent, the late nineteenth century deployed religious laws only as �personal laws' of religious communities. In the early for­mation of Empire that I have illustrated, premodern laws reflected instead ius civile, the real laws of the people; an understanding compatible with imperial rather than statist conceptions of law-making. Law operates under the condi­tions of translatability in Empire. From antiquity to modernity, Empires have been the hotbed for the reconstruction and complexion of legal ideas trans­mitted from different legal grammars and juridical systems.

Acknowledgments

I thank Edward Cavanagh and Saumyajit Bhattacharya for their comments and criticisms, which helped improve the arguments presented in this chapter. I thank the participants of the Law and Empire in the Longue Duree Confer­ence for their questions and comments. Thanks also to Matthew Dyson for his comments on a revised version of the paper I presented at the Biennial Confer­ence of the European Society for Comparative Legal History in June 2018 in Paris. Some of the early ideas were discussed with Anthony Pagden whose in­cisive questions and suggestions helped shape my research. Any errors that remain are mine alone.