Anxieties of Empire: Examining Frontier Governance in 19th Century British India

The Limits of Utilitarianism

In his celebrated work The English Utilitarians and India, Eric Stokes contends the transformation of British policy in the subcontinent during the 19th century owed much to the changes that took place within England during the Victorian Age. Two institutions played the defining role in determining this transformation: the free market and the Church. The Industrial Revolution led to the reversal of the relationship between the center and colony.52 “Whereas in the late eighteenth century, the Company was focused on revenue collection and, much like the zamindars under the Mughals, used judicial authority to support revenue functions, by the mid-nineteenth century the British were beginning to view the economic value of India as residing in its potential as a market for British goods and in its production of raw materials and agricultural commodities.”53

The transformation of economic purpose led to a more aggressive attitude which would eventually defined as the civilizing mission. Administers belonging to the guard of the early 19th century, particularly Governor of Madras Lord Wellesley and his subordinates such as Monroe, Malcolm and Elphinstone represented the dominant school of thought which utilitarianism would eventually challenge. The system of government they championed did not intend to revolutionize Indian society. Their political aim was “to take the peasant in all his simplicity, to secure him in the possession of his land, to rule him with a paternal and simple government, and so to avoid all the artificialities of a sophisticated form of rule.”54 They were vehemently against the spirit of utilitarianism and challenged its emphasis on abstract goodness. For them politics had to be “experiential in nature, necessarily near sighted and essentially limited in their achievement.”55 However, relations between the local population and colonial administrators radically altered as the role of the British changed from “supplicant merchants to a ruling caste.” The force of Evangelicalism which was being felt so strongly in Victorian England reverberated in India as well. The Evangelical desire to gain inner salvation through struggle in the external realm propelled missionaries to travel to India and further the Kingdom of God.56

The condemnation of Indian culture, laws, institutions and traditions was vociferously proclaimed by the missionaries. It followed that they called for the establishment of British rules, laws and institutions to bring civility to the native population. This approach was sharply distinct from that of the East India Company which had due to motives of exigency “shown the most scrupulous regard for Indian religions, laws, institutions and customs.”57 The policy of ‘assimilation’ found its second set of ardent supporters in the free-trade merchants. This class was vehemently against the Company’s monopoly on India exemplified by Adam Smith’s vociferous attacks on it. For the merchants, the ultimate benefit of the political dominion over India was an indirect one – in its value as a market. This aim was achieved by the dismantling on the Company monopoly and maintenance of law and order by the colonial state. “Efficient administration of justice meant English law, particularly a modern law establishing private property rights in land, and a system of courts which would ensure that the influence of the law should be fully felt in the remotest hamlet. It meant using law in a revolutionary way, consciously employing it as a weapon to transform Indian society by breaking up the customary, communal tenures.”58 One of the key architects of the philosophy of utilitarianism was James Mill. In his work “History of British India,” Mill sought to displace what he thought to be admiration for oriental despotism. In a fierce indictment of Muslim and Hindu culture, he argued that the state of affairs in India was hideous, “much inferior in acquirements to Europe even in its darkest feudal age.”59 At the root of this barbaric and primitive state of society was despotism – the political and social system underpinned by religion.

So, Evangelicalism and Utilitarianism shared two common beliefs: first that India desperately lagged behind in the scale of civilizations and second that the British were equipped with the moral and intellectual tools to save India despite the degree of the barbarity it was engulfed in. The former held that the route to salvation lay in the belief in Christian God. The latter replaced the divine with the concept of justice upheld by secular, rational institutions of the law. Through the application of codified, universal and scientifically designed laws, Indian society could be revolutionized. The purpose of this revolution was to free individual energy by freeing it from the despotism of custom and communalism. This freedom would pave the way for free capital and labor and set India on the path towards becoming an advanced civilization. To administer a scientific body of law, there was to be established a judicial system in which the main feature of was to be series of local courts. Law was to be framed in a scientific manner doing away with obscurities and inconsistencies.60

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Thus, Utilitarian jurisprudence was necessarily ahistorical rejecting the past as a source of concepts for reworking the criminal justice system. The foundations of the criminal law could not be based on tradition but a jurisprudence which was abstract and universalistic in outlook61. However, the rationale behind the unique nature of the Frontier Crimes Regulation lay in the “peculiar nature” and the centuries old customs and traditions which were the root of the problems of disorder in there. Herein lays the central contradictions in the imperial project. First, law was simultaneously supposed to be based on universal principles whilst having the ability to respond to local demands. Second, the superiority of British institutions gave them the power to transform native barbarity and yet the savagery of the Frontier tribesmen remained unraveled despite the promulgation of British codes of law; making the Frontier unsuitable for the implementation of ordinary law. Third, the British colonial agenda was imbued with a civilizing and moral quality and yet allowed for the worst kind of despotism to assert its power. An analysis of the relation between positive law and the imperial project can explicate the nature of these contradictions.  

Imperial Jurisprudence

The nineteenth century saw the rise of positivistic jurisprudence (of which utilitarianism in a category) and the demise of the naturalistic law. Concomitantly, this century was also the grand “Age of Empire.” Positivist jurists needed to create a conceptual apparatus to deal with the colonial confrontation. Indeed, the experience of the colonies played a central role in the definition of the central tenants of positive jurisprudence including the crucial question of sovereignty.62 The maneuvers that positivist jurists engaged in with regards to colonialism can be understood by what Antony Anghie has termed as the “dynamic of difference.” Positivistic jurisprudence postulated a gap, understood primarily in terms of cultural differences and between civilized and uncivilized. Once this gap was established, the positivist sought to devise a series of measures to rectify the gulf – to civilize the uncivilized.63

The positivist project was defined, firstly, in opposition to its predecessor: natural law. During the 16th and 17th centuries, the naturalistic school of thought dominated international law. “Natural law was strongly identified with principles of justice, with the notion that all human activity was bound by an overarching morality.”64 A prominent example of how in natural law dealt the imperial expansion is found in the works of Francisco de Vitoria, a sixteenth-century Spanish theologian and jurist. Vitoria set his lectures were set against the “more predatory and resolutely genocidal amongst the Spanish colonists.” He argued that the “Indies” had not been without an owner – the native Indians had the right of “dominium”: a mixture of proprietary and sovereign title. These rights however had to adjust to the Spanish right to “sojourn,” to travel, trade and spread Christianity65. Vitoria, thus, despite the humanistic element in his commentary, did not extend the equal right of sovereignty to the native population.

Nonetheless, the natural law he espoused could be applied to all human beings who had the necessary accoutrements: family, hierarchal government, legal institutions and something like religion.66 As the eighteenth century approached, there was accentuation the sovereign and separate character of the European state. This was one of international law’s “founding” moments. The range of civilizations admissible to the society of nations became increasingly confined. The European legal system became a precondition to entry into the comity of nations. Systems in place in other parts of the world began to lose their legal character rendering those nations uncivilized and thus excluded. Mid-eighteenth century jurist Vattel was a key proponent of this separation and a forerunner to the positivistic jurists who would dominate in the succeeding century.67 Vattel argued that the society of independent nations was not bound by any transcendent, supreme and higher law. On the contrary, each state was independent and self contained. There was however a common quality to all sovereign state. The problem for Vattel was how to distinguish between this society of sovereign states and its savage other.68 This would be a central concern for the positivistic jurists in the 19th century.69

Jurists writing in the nineteenth century increasingly stressed on law as the product of human institutions rather than a given (as it is considered in natural law). As European institutions were superior, the law they produced was also necessarily more advanced than those created by uncivilized societies. “Once the connection between ‘law’ and ‘institutions’ had been established, it followed from this premise that jurists could focus on the character of institutions, a shift which facilitated the racialization of law by delimiting the notion of law the very specific European institutions.”70

Adherence to this principle of distinction allowed for the primacy of the right of civilized to be established. One positivist jurist wrote “the occupation by uncivilized tribes of a tract, of which according to our habits a small part ought to have sufficed for them, was not felt to interpose a serious obstacle to the right of the first civilized occupant.” The denial of sovereignty and equality to non-European peoples precluded them from participating in international law as equal members.71 Positivistic jurisprudence carried out two conceptual/philosophical functions. First, it created conditions for a racialized hierarchy between legal orders flowing from the premise that only the civilized society can create law. Secondly, it contended that law, as the expression of the right of the sovereign, accorded greater rights to the civilized than to the uncivilized. Ultimately, law must be congenial to the needs and requirements of the civilized. Should the rights of the civilized party be under duress, it should be able to assert them through any means necessary. J. S Mill thus proclaimed that “to characterize any conduct whatever towards barbarous people as violation of the law of nations, only shows that he who so speaks has never considered the subject.” The fundamental problem for the barbarians is that “have no rights as a nation, except a right to such treatment as may, at the earliest possible period, fit them for becoming one.”Continued on Next Page »