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. “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.”
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.” 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.” 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.
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.”
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.”
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.” 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.
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 outlook. 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.
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. 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.
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.” 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 Christianity. 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. 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. 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. This would be a central concern for the positivistic jurists in the 19th century.
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.”
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. 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 »
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1.) Shamim Shahid, “’Traitor’ gets 33 years”
2.) Ismail Khan, “Prison Term for Helping CIA Find Bin Laden”
3.) Robert Nichols (Ed), The Frontier Crimes Regulation: A History in Documents, xxiv-xxv
4.) Olaf Caroe, Pathans, 329-330
5.) The only exception to this general rule was the district of Kohat in which the British penetrated the low Khatak hills. See Ibid.
6.) Ibid.
7.) Marsden and Hopkins, Afghan Frontier, 52
8.) Caroe, Pathans, 347
9.) Ibid. 346
10.) Robert Sack, Human Territoriality, 29-40
11.) Doreen Massey, For Space,
12.) Tim Ingold, Lines – A Brief History
13.) Marsden and Hopkins, Afghan Frontier, 62
14.) Sack, Human Territory, 41
15.) Caroe, Pathans, 347
16.) Marsden and Hopkins, Afghan Frontier, 55
17.) Ibid.,
18.) Caroe, Pathans, 348
19.) Ibid., 350
20.) Ibid.,
21.) See supra note 13
22.) Ibid.,
23.) Caroe, Pathans, 349
24.) It is beyond the scope of this paper to go into details regarding the Sandemen system in Balochistan. For details regarding this history see
25.) Caroe, Pathans, 351
26.) Ibid.,
27.) Ibid., 353
28.) Ibid.,
29.) “Official Letter Dated Lahore 15th February 1886”
30.) Punjab Frontier Crimes Regulation. 1887. 10. (1) “Where the Deputy Commissioner is satisfied, from a police report or other information, that a dispute exists which is likely to cause a blood-feud or murder, or culpable homicide not amounting to murder, or mischief or a breach of the peace, or in which either or any of the parties belongs to a frontier tribe he may, if he considers that the settlement thereof in the manner provided by this section will tend to prevent or terminate the consequences anticipated, and if a suit is not pending in respect of the dispute, make an order in writing; stating the grounds of his being so satisfied”
31.) (2) The order of reference made under Sub-section (1) shall state the matter or matters on which the finding of the Council of Elders s required.
(3) On receipt of the finding of the Council of Elders under this section, the Deputy Commissioner may -
(a) remand the case to the Council for a further finding; or
(b) refer the case to a second Council; or
(c) refer the parties to the Civil Court; or
(d) pass a decree in accordance with the finding of the Council, on any matter stated in the reference; or
(e) declare that further proceedings under this section are not required.
32.) 13. (1)Where, in the opinion of the Commissioner or Deputy Commissioner, it is inexpedient that the question of the guilt or innocence of any person or persons accused of any offence, or of any several persons so accused, should be tried by a Court of any of the classes mentioned in Section 6 of the Code of Criminal Procedure, 1898, the Deputy Commissioner mayor if the Commissioner so directs, shall, by order in writing, refer the question to the decision of a Council of Elders, and require the Council to come to a finding on the question after such inquiry as may be necessary and after hearing the accused person. The members of the Council of Elders shall, in each case, be nominated and appointed by the Deputy Commissioner.
(2) Where reference to a Council of Elders is made under Sub-section (1) and the members of the Council have been nominated, the names of the members· so nominated shall, as soon as may be, be communicated to. the accused person, and any objection which he may then make to the nomination of any ·such member shall be recorded. The Deputy Commissioner shall consider every objection made by an accused person under this sub-section, and· may, in his discretion, either accept or reject the objection, provided that, in the latter case, he shall record his reasons for so' doing.' The Deputy Commissioner shall, after disposing of any objection made by the accused person, appoint the members of the Council.
(3) On receipt of the finding of the Council of Elders under this
section, .the Deputy Commissioner may -
(a) remand the question to the Council for a further finding; or
(b) refer the question to a second Council; or
(c) acquit or discharge the accused person or persons, or any of them; .or
(d) in accordance with the finding on any matter of fact of the Council, convict the accused person or persons, or any of them, of any offence of which the facts so found show him or them to be guilty
Provided that a 'person discharged under clause (c) shall not be liable to be retried for any offence arising out of the same facts after ·the expiry of two years from the date of such discharge.
33.) 16. (1) The powers conferred by Section 13 on the Commissioner and Deputy Commissioner, respectively, may be exercised by them, in cases committed to the Court of Session, at any time before the trial before that Court has commenced, and, in cases pending before any Court inferior to the Court of Session, at any time before an order of conviction or acquittal has been made.
34.) 17. (1) In any trial before a Court of Session, the Public Prosecutor may, when instructed in writing in that behalf by the Commissioner or Deputy Commissioner, at any time before an order of conviction of acquittal has been made with respect to any accused person, withdraw from the prosecution of such person in order that the case may be referred to a Council of Elders.
35.) 15. (2) Any decision of Elders ordered by the Deputy Commissioner under the Punjab Frontier Regulation Amendment Regulation IV of 1873, to be carried out into effect as if it were a sentence of the court of law, may direct in accordance with the provisions of sections 64, 65, 66, 67 of the Indian Penal Code, XLV of 1886, that the offender shall suffer imprisonment in default of payment of fine.
36.) 21. (1) An appeal shall not lie from' any decision given, decree or sentence passed, order made, or act done, under any of the provisions of this Regulation.
(2) The Commissioner may call for the record of any proceeding under this Regulation and revise any decision, decree, sentence· or order given, passed or made therein.
37.) Article 23
38.) 24. (1) The Deputy Commissioner may, with the sanction of the Commissioner, impose fines on any village community or part of a village-community the members of which, after due inquiry, are found to be guilty of colluding with or harboring or failing to take all reasonable means to prevent escape of criminals or combining to suppress evidence in criminal cases.
39.) 33. (1) No new hamlet, village-habitation, tower or walled enclosure shall, without the previous sanction in writing of the, Commissioner, who may either grant or refuse such sanction as he thinks fit.
40.) Article 35 (1)
41.) Article 37 (1)
42.) 39. (1)Where the Commissioner or the Deputy Commissioner is of opinion that it is necessary for the purpose of preventing murder, or culpable homicide not amounting to murder·, or the dissemination of sedition, to require a person to execute a bond, for good behavior or for keeping the peace, as the case may be, he may order the person to execute a bond with or without sureties, for his good behavior or for keeping the peace, as the case may be, during such period not exceeding three years, as the Commissioner or the Deputy Commissioner, as the case may be, may fix.
43.) 43. (1) Where a person ordered to give security under Section 39; or Section 40 does not give security on or before the date on which the period for which the security is to be given commences; he shall be committed to prison, or, if he is already in prison, be detained in prison until that period expires, or until within that period he furnishes the required security.
44.) Document [Nos.235]: Report by the Frontier Crimes Regulation Committee
45.) Ibid.
46.) The relevant amendment was made in the 1901 version of the FCR: 33. (1) No building of the kind commonly known as "hujra" or "chauk", and no building intended to be used as a "hujra" or "chauk", shall be, erected or built, and no existing building not now used/as a "hujra" or "chauk", shall at any time be used as such, without .the previous, sanction in writing of, the Deputy Commissioner. Whoever contravenes the provisions of Sub-section (1) shall be punishable with imprisonment; for "a term, which may extend to six months or with fine, or with both.
34. (1) Where the [Deputy Commissioner is satisfied that any building is habitually used as a meeting place by robbers, house-breakers, thieves or bad characters or for the purpose of gambling, he may, by order in writing, prohibit the owner or occupier thereof from so using such building, and, if the order is not obeyed, may, by a like order, direct that the building be demolished. Such further order shall be without prejudice to any punishment to which the owner or occupier of such building may, under any law for the time being in force, be liable for disobedience of the prohibitory order. No person shall be entitled to any compensation in respect of the demolition of any building under Sub-section (1).
47.) For an account on the rise of religious fundamentalism in South Asia, see Barbara D. Metcalf (ed.). 2009. Islam in South Asia in Practice.
48.) Marsden and Hopkins, Afghan Frontier, 78-80
49.) See supra note 41
50.) 36. Power to require persons to remove in certain cases. —
Where in the opinion of the Deputy Commissioner, any person is a dangerous fanatic; or belongs to a frontier tribe and has no ostensible means of subsistence or cannot give a satisfactory account of himself; or has a blood-feud; or has occasioned cause of quarrel likely to lead to blood-shed; the Deputy Commissioner may, by order in writing, require him to reside beyond the limits of the territories to which this Regulation extends or at such place within the said territories as may be specified in the order: Provided that, if the person has a fixed habitation in the place which the Deputy Commissioner requires him to leave, an Order under this section shall not be made without the previous sanction of the Commissioner.
51.) Correspondence Dated June,1883
52.) Eric Stokes, English Utilitarians and India, xiii
53.) Lauren Benton, Law and Colonial Cultures, 150
54.) Stokes, English Utilitarians and India, 19
55.) Ibid., 23
56.) Ibid., 30
57.) Ibid., 31
58.) Ibid., 42
59.) Ibid., 53
60.) Ibid., 55-71
61.) Kartik Kalyan Raman, “Utilitarianism and the Criminal Law in Colonial India,” 739
62.) Antony Anghie, Imperialism, 33
63.) Ibid., 37
64.) Ibid., 42
65.) Peter Fitzpatrick, Modernism and The Grounds of Law, 153
66.) Ibid
67.) Ibid., 157
68.) Ibid
69.) It is important to note that there positivist retained some of the elements of the naturalistic jurisprudence. Indeed there were jurists who attempted to reconcile the two. See Anghie, Imperialism at 43, “Jurists in the late eighteenth century and early nineteenth century combined positivism and naturalism in various ways, arguing, for example, that while a certain universal natural law applied to all nations without distinction between civilized and noncivilized, a considerable body of positive law specific to Europe was also emerging.”
70.) Anghie, Imperialism, 55
71.) However, the establishment of such a hierarchy did not mean that Europeans did not recognize the legal status of those people. The British for example, continued to make agreements with the tribes of the Frontier. But the positivists argued that such peoples lacked the requisite characteristics to be regarded as equal members of the civilized community of nation-states. See Anghie, Imperialism at 57.
72.) Quoted in Fitzpatrick, Modernism and The Grounds of Law, 160
73.) Lauren Benton “Colonial Law and Cultural Difference,” 563
74.) Ibid., 564
75.) Mahmud Tayyab, “Colonial Cartographies,” 33
76.) Bijan Omrani, “Durand Line,” 185
77.) Tayyab “Colonial Cartographies,” 27
78.) Matthew Edney, “The Irony of Imperial Mapping,” 13
79.) Michael Biggs, “Putting the State on the Map,” 378:
80.) Edney, “The Irony of Imperial Mapping,” 13
81.) Bijan Omrani, “Durand Line,” 185
82.) Tayyab “Colonial Cartography,” 27
83.) The Tribal Areas are defined by the Article 246 of the Pakistani Constitution as: 246 (c) Federally Administered Tribal Areas includes
(i)
Tribal Areas adjoining Peshawar district;
(ii)
Tribal Areas adjoining Kohat district;
(iii)
Tribal Areas adjoining Bannu district;
(iii a) Tribal Areas adjoining Lakki Marwat District;
(iv)
Tribal Areas adjoining Dera Ismail Khan district;
(iv a) Tribal Areas adjoining Tank District;
(v)
Bajaur Agency;
(v a) Orakzai Agency;
(vi)
Mohmand Agency*;
(vii)
Khyber Agency;
(viii) Kurram Agency;
(ix)
North Waziristan Agency, and
(x)
South Waziristan Agency.
*The Mohmand Agency was not created by the British but came into being in 1951. See Shaheen Sardar Ali and Javed Rehman. Indigenous Peoples and Ethnic Minorities of Pakistan: Constitutional and Legal Perspectives
84.) Tayyab “Colonial Cartography,” 36
85.) Ibid
86.) Ibid., 37
87.) Magnus and Hopkins, Afghan Frontier, 62-63
88.) Ibid
89.) Ibid., 64
90.) Ibid., 65
91.) Curzon, 28 June 1902, quoted in David Gilmour, Curzon
