In Winston Churchill’s famous 1943 speech at Harvard University on the common ties of the English-speaking peoples, he defined the bond in terms of three main things: law, language, and literature. Indeed, when he elaborated on what he meant, he spoke mainly of concepts derived from and guaranteed by English law:
Law, language, literature—these are considerable factors. Common conceptions of what is right and decent, a marked regard for fair play, especially to the weak and poor, a stern sentiment of impartial justice, and above all a love of personal freedom . . . these are the common conceptions on both sides of the ocean among the English-speaking peoples.
Moreover, these legally derived cultural values were not only appreciated by those people of direct British descent: They were transportable to other countries.
As a man with direct personal experience of imperial rule in the first half of the twentieth century, Churchill knew such values could even have a major influence on countries with radically different cultural traditions. In the days of the British Empire, the best means of establishing a successful and lasting imperial regime was to give it English law. Colonies, dependencies, and protectorates, whether established by settlers, by military conquest, or by international treaty, quickly felt the benefits. British imperial rule in many parts of Asia, Africa, and the Americas was not representative or democratic, but it was nonetheless orderly, largely benign, and usually fair. Thanks to English law, most British colonial officials delivered good government.
This is not an argument you will readily find in the works written by academic historians in the past fifty years. Hardly any of them, from either the left or the right, isolate the issue of law as something that deserves priority in accounts of the British Empire. Over the past decade, imperial history has seen a revisionist movement emerge among conservative and classically liberal historians. Most of their work has been in the field of economic history, most of it written in response to the radical claims of the decolonization movements of the 1930s, 1940s, and 1950s. Historians such as P. J. Cain, A. G. Hopkins, Niall Ferguson, and several authors who contributed to the Oxford History of the British Empire have demonstrated that, instead of British imperialism generating colonial exploitation and underdevelopment (as the decolonizers and the nationalists alleged) the opposite was true. Britain brought its homegrown, modern systems of finance, transportation, and manufacturing to much of the undeveloped world. Far from a form of plunder that depleted the economies that came under its influence, British imperialism brought many of the institutions of modernization to its territories.
The emphasis on the economic achievements of the empire has also had a strong influence on historians who are otherwise more interested in the politics and culture of the English people; this is especially true of Andrew Roberts. In his great work The History of the English-Speaking Peoples Since 1900, Roberts nominates Lord Cromer, the proconsul of Egypt from 1883 to 1907, as Britain’s greatest imperial administrator because he gave the Egyptians progressive projects in the fields of irrigation, taxation, and fiscal practices, and also because he developed a system of acute military intelligence to keep at bay the “political regeneration of Mohammedism.” These were all major achievements, of course, but I would have liked Roberts to have also examined those qualities to which his hero Churchill gave priority: law, language, and literature.
Until recently, a focus on the domestic and the global influence of English law has been confined largely to people writing for the legal profession. Only in the United States, because of long-standing debates about its influence on the birth of the nation, has there been a vibrant tradition of legal history that has informed both political history and the nation’s sense of self. But in Canada, Australia, New Zealand, India, and England, legal history has remained the bailiwick of lawyers writing for other lawyers.
Fortunately, in 2007, the Australian legal scholar and former judge of the Supreme Court of Queensland and the Queensland Court of Appeal, Bruce McPherson, published The Reception of English Law Abroad, on which he had worked for many years, tracing the history of the transmission of English law throughout the British Empire from the seventeenth to the twentieth century. As you might expect, it is a big, heavy book, and, unfortunately, it makes for equally heavy reading. It nonetheless brings the whole of this legal history together to provide a resource that future imperial historians will ignore at their peril. McPherson was born in South Africa and was educated at the universities of Natal, Cambridge, and Brisbane. In addition to his judicial appointment at Queensland, he has also served as a judge in the Solomon Islands and Fiji, two countries that have long histories of serious internal division and which willingly employ Australian judges because of their lack of local partiality.
It is important to note that the concept of “English law” is not just that of “the rule of law.” The rule of law is certainly necessary for a society to be a civilization, but there are different kinds of rules of law. In continental Europe, the Roman law inherited from Justinian meant the law was, in the last instance, whatever pleased the ruler—it could be used to legitimate absolute monarchy. In Britain, however, the king himself was subject to the rule of law. He could not change or reform the law according to his own will. To do that, he needed the permission of his subjects, or at least those of his subjects who controlled the established institutions. This was the lasting significance of the Magna Carta of 1215. It was enshrined in legal scholarship as early as 1250 by Bracton’s Laws and Customs of England and is the essence of the English notion of freedom—that is, of freedom within the law.
It is also worth noting that “English law” is not simply the “common law” created by judges when they decide cases but also includes the legislation or statutory law created by Parliaments or municipalities. Nor is English law defined by trial by jury, since judges alone decide many types of English law and juries are also used by legal systems that derive from the Napoleonic code, as in Quebec and Louisiana. Moreover, the British never exported trial by jury to its territories in India, the Pacific, or most of Africa. For these reasons, when Blackstone wrote his Commentaries in 1765 he named his subject “English law.” McPherson follows suit with his title The Reception of English Law Abroad.
There were two substantially different kinds of territories within the British Empire: those inhabited predominantly by settlers of British descent and those where the British were a governing minority. Both started with different assumptions about the application of the law but, despite some notable exceptions, ended up with much the same outcome. By about 1700, it was widely held that English law was carried abroad as a “birthright,” or inheritance, by English subjects settling in the overseas dominions. In 1722, this colonial birthright doctrine, as it came to be known, was endorsed by the Privy Council, the ultimate court of appeal. With the publication of Blackstone’s Commentaries, it became the dominant theory of the reception of English law in settled colonies.
As early as 1700, the American colonies began using their legislative powers to pass statutes of their own in order to declare that English law applied in the territory under their authority. Even during and after their revolt against English political rule, the Americans clung to English law. In 1774, the First Continental Congress passed resolutions that the colonies were entitled to the common law of England and to the benefit of such English statutes as existed at the time of their colonization. After 1776, they could and did pass their own new laws. Nonetheless, among their first local statutes was legislation that provided for continuation of their existing English laws, as well as for the adoption of English law, or “the common law” as some called it. (I might add that this gives further support to those few historians who argue that what took place in America between 1776 and 1783 is better designated a war of independence than a revolution.)
After 1776, American legal textbooks differed little from those in Britain, especially in their endorsement of the Commentaries of William Blackstone. In the nineteenth century, there was enthusiastic support for Blackstone’s view that a competent knowledge of the laws of society was not only the proper accomplishment of every gentleman and scholar but was an essential part of a liberal education. A number of American colleges, especially William and Mary in Virginia, embedded Blackstone in their curriculum, producing a succession of Blackstone scholars and commentaries on the Commentaries. Although one president, Thomas Jefferson, criticized Blackstone for what he called his “honeyed Toryism,” McPherson also quotes folklore that Abraham Lincoln took up the practice of law after reading a copy of Blackstone that he acquired by chance. In the American West, attorneys are said to have ridden frontier circuits, their saddlebags bulging with volumes of the Commentaries. A search has shown that, as recently as 1994, the United States Supreme Court was still citing Blackstone in opinions, at the rate of about a dozen a year.
In colonies with less English influence, the approach was different in some ways but the same in others. By the end of the eighteenth century, European rulers and Christian missionaries had almost three hundred years of experience in colonization and conversion of the non-Western societies in the Americas, Asia, and the Pacific. They had all learned that any attempt to launch the process in a revolutionary way through the destruction of the ancient traditions of these people was unlikely to be successful.
After the loss of the thirteen American colonies, the English embarked on a project to create a second global British Empire, with India as the jewel in its crown. Earlier British trading zones and charters, centered on Calcutta, Madras, and Bombay, received supreme courts in 1773, 1800, and 1824. They were courts of the British king and, apart from a small number of local statutes, applied English law in all cases. The Indian businessmen of these jurisdictions liked English law so much that, as McPherson writes, “despite early efforts to discourage it, the appetite of Indian inhabitants for litigating in British courts proved insatiable.” The modernizing sectors of the Indian economy also benefitted enormously from the process. Modern financial institutions and corporations could be established and property could be secured in ways not previously possible.
The British parliament, however, legislated that these courts should respect local culture and sensitivities. Disputes between Muslims were to be determined by Muslim law, between Hindus by Hindu law, and, in disputes between Muslims and Hindus, the law of the defendant should apply. Moreover, in matters of deep cultural tradition, especially surrounding marriage, the family, and inheritance, the British passed statutes that guaranteed recognition of customary laws for Muslims and Hindus. After the Indian territory was expanded to include Burma, the practice was extended to customary laws for Buddhists, too. This did not mean that customary laws always ruled in societies that tolerated practices such as polygamy, child marriage, and the incineration of living widows. In Bengal, the English Governor Lord Bentinck banned the practice of suttee in 1829. The Privy Council upheld the ban in 1832, thereby making it illegal in all English territories. It was a contentious decision but one welcomed by those Indians who had long agitated for reform on the issue.
In India, it often proved very difficult to distinguish between the actual laws of marriage and inheritance and what were no more than moral, religious, and folk customs, some of which went back 2,000 years and more. Because of the uncertainty about what was and was not law, the British decided in the nineteenth century to begin the process of codifying the laws of India. McPherson concludes that, for the most part, English law was received by the whole of British India, subject only to exceptions related to personal laws of the non-European population. The same kind of legal regime was later extended to British territories in Malaya, Singapore, Hong Kong, and Africa.
Since the invasion by the United States and its allies of Afghanistan and Iraq, and the subsequent overthrow of the Taliban and Saddam Hussein, the publicly declared measure of success of the regimes that replaced them has been the degree to which they function as democracies. The 2010 elections held in both countries, however, could hardly be regarded as successes. In Iraq, elections were held last March but, as of this writing, a government has still not been formed. At the September elections in Afghanistan, the voter turnout was only 30 percent, while twenty candidates and party workers were murdered. Several areas under the control of a Pashtun ethnic majority did not vote at all. Whether either country will ever emerge as a functioning democracy is still uncertain. This raises the question of whether the establishment of democratic government was the best choice as a measure of a successful outcome.
The same could be asked of some of the other reforms in these two countries, which resemble those for which Andrew Roberts praised Lord Cromer in Egypt. In fact, nato forces in Afghanistan have recently been pursuing an objective straight from Cromer’s example of colonial government. The coalition has been trying to win Afghan hearts and minds by expanding the country’s irrigation and electricity supplies. The biggest single project has been the installation of a giant turbine at the Kajaki Dam in the southeast to treble the country’s hydroelectricity output. In 2008, to get the turbine to the dam, British forces mounted what they called their largest logistical operation since World War II. The convoy was accompanied by massive air power and substantial numbers of combat troops who killed twenty insurgents along the way. Although British forces have declared the safe delivery of the turbine a victory, it has still not actually been installed because the Taliban are preventing supplies of cement from reaching the site. Unfortunately, the grand project is becoming a symbol of the weakness of nato forces in the region and is rapidly deteriorating into a propaganda victory for the enemy.
The practice of the British Empire of establishing better government through the rule of law was never in the same league as dramatic gestures like the Kajaki Dam turbine. A rule of law is not something that has an obvious symbolic appeal or that looks good on television. It was, nonetheless, an effective way to bring a measure of stability and modernity to the countries where it was introduced. It was especially important in the several artificial states created by imperialism, that is, in states—like Iraq and Afghanistan today—that had been cobbled together from various competing tribal entities who had far more hatred for their internal enemies than they ever had for the external imperial power. English law was adaptable enough to suit its subject populations without totally disrupting local cultural traditions. As well as local adaptation, English law also had one great universal appeal that made it popular—and this was true even among Indian Muslims before partition. Human nature has an inherent yearning for justice. English law delivered it.
 B. H. McPherson, The Reception of English Law Abroad; Supreme Court of Queensland Library, Brisbane, 520 pages, $88.00.
This article originally appeared in The New Criterion, Volume 29 Number 5, on page 19
Copyright © 2017 The New Criterion | www.newcriterion.com