Imposition, Reception, And Colonial Law Research Paper

1. Imposition

All law is imposed, but never entirely so. Law’s operative mode is the decision—the decision of the judge, the legislator, or the legal subject. The decision cannot be reduced to, or rendered merely in terms of, some prior determination or mandate, demotic or otherwise. If it could, there would be no ‘call’ for the legal decision, no demand for ‘fresh judgment’ (Derrida 1992, p. 26). Law, then, always comes from beyond any existent situation, and is an imposition from without. In this movement from beyond into ‘fresh’ determination, however, the effective legal decision cannot be imposed purely. If law is not to be a ‘dead letter,’ it has to assume an engaged responsiveness to the demotic and to anything else involved in its making or application.

This is the point at which criticism of the idea of imposition usually enters. Summarily, this is a criticism of the idea of ‘imposition as a fait accompli rather than an interactional process affected by power differentials’ (Kidder 1979, p. 291). The criticism could be said to take a weak and a strong form. The weak variant has it that imposition is an inadequate conception, because indigenous legal modes persist and are even necessarily recognized by the would-be imposer. The system of so-called indirect rule in British colonies provides one of the more explicit types of such recognition. Imposition can, however, be more nuanced. This very ‘recognition’ of indigenous law will often transform that law in ways conformable to the exogenous imposition (Fitzpatrick 1984).

This penetrative force of imposed law is countered in the second, and strong, criticism of the idea of imposition. Such a criticism would extend the efficacy of the indigenous into the very domains of imposition. Here the epistemic arrogation of imposed law is ‘got around,’ and such law operatively subordinated to indigenous contexts and purposes (Fitzpatrick 1989). This process is facilitated by what is often a rigidity, an unresponsiveness in imposed law, something which particularly affects modern colonizations with their myopic claims to a completeness or, at least, an exemplarity of being. The premonitory quality of this myopia and the limits of simple imposition can be discerned in a hiatus vexing the colonial governor of Bombay in the middle of the nineteenth century when he remarked on ‘the perilous experiment of continuing to legislate for millions of people, with few means of knowing except by rebellion, whether the laws suited them or not’ (see Thornton 1965, p. 181).

This ambivalence of law’s imposition—the ambivalence between its determinant fixity and its responsiveness—will now be returned to the initial distinction between the voluntary and the involuntary imposition of law, and both the ambivalence and the distinction will be used to provide instances and some ordering of the varieties of legal reception and of colonial law. At the risk of being over-schematic, the combination of these two oppositions can provide four types of reception colonial law: the involuntarily determinant, the voluntarily determinant, the involuntarily responsive, and the voluntarily responsive. Each of these will now be illustrated in turn.

2. Colonial Law

It would be difficult to imagine a scene more adapted to the involuntarily determinant type than that offered by the modern colonial situation. To the imperial eye, law was pre-eminent among the gifts of an expansive civilization, one which could extend in its abounding generosity to the entire globe. The supreme justification of colonial law in its ‘civilizing mission’ was that it subjected the colonized to a new and beneficent order. It was solely the colonist who was to provide civil and civilized order. There were no rights for the colonized in this scheme, apart from ‘rights’ to have things done to them so as to bring them within the ambit of civilization (Thornton 1965, p. 158). To sustain this scheme of things, however, the colonized were also labeled and maintained as intractably apart from that civilization. They had to become the same as the civilized colonists yet remain unalterably different from them. That unsettled ambiguity permeated the whole of colonial law. The colonist took on the ‘burden’ of pervasive legal powers in the cause of an inclusive civilization, only to use them to exclude, dissipate, and generally ‘hold down’ the colonized as incorrigibly deviant. Despite this, some effective action had to be allowed to the colonized because legal imposition could not be simply or totally determinate, an inhibition heightened by what was usually called the limited penetration of colonial rule. Various systems of ‘indirect rule’ and of ‘recognition’ of native modes necessarily proliferated. Nonetheless, colonial law always sought to circumscribe effective action on the part of the colonized. Not only was it characterized as static, repetitive, and mimetic but, for good measure, such action was held or attempted to be held within a supervisory system of administration. Indigenous custom, for example, was ‘recognized’ solely in subordination to the law of the colonists and denied recognition where it was ‘repugnant to natural justice, equity and good conscience,’ or contrary to ‘the general principles of humanity,’ to take two standard and indicative formulations.

The legal mechanics of this colonial type of imposition both underline its monadic quality and set a significant distinction. Here one must accommodate, in very broad brush, a variety of the laws of colonizing nations and an immensely convenient international law, so-called, which reflected their practices and interests (see, for example, Roberts-Wray 1966, Chaps. 2, 11). All the legal modes of acquiring territory and imposing laws upon it were founded on the distinction between the civilized and the uncivilized, or on something akin to that distinction. According to what was, with an indulgent exactitude, called the ‘doctrine’ of discovery, a ‘European’ nation could lay claim to territory it had ‘discovered’ and have its laws applied there, only if that territory were uninhabited or considered insufficiently settled, and it was rare for any uncivilized settlement to be taken as sufficient. With territorial acquisition by conquest or cession, if the territory belonged to a European country, generally the law of that country continued in force, but the position was usually otherwise if the territory was occupied by the uncivilized. When territory was acquired by way of colonial settlement, the colonists were most often taken to have brought their law with them at the expense or subordination of the law or custom of the colonized. It was the case, however, that with all these modes of acquiring territory and of imposing law, there was often a vague requirement that the metropolitan law would not apply where it was not suited to local conditions. One important area of unsuitability corresponded to the civil rights frequently found in metropolitan constitutions. These were only very rarely extended to the colonized.

3. Reception

If the colonial situation exemplifies the involuntarily determinant, the first in the quartet of law’s imposition, then the reception of law is usually taken to exemplify the second in the quartet, the voluntarily determinant. This seeming self-imposition of law is associated typically with the European reception of Roman Law. ‘The Reception,’ as its chroniclers often put it, was a long and many-stranded process (Ibbetson and Lewis 1994, Stein 1999). This reception is tied conventionally to the new learning, which in most accounts comes onto the scene from the late eleventh century, eventually forming one of a momentous trio of ‘Renaissance, Reformation and Reception.’ This company perhaps renders reception more historionic than it was predominantly. It did play a large part in telling political conflicts but, in the main, its mode was one of quiet infiltration into existing legal processes. That infiltration was fueled, however, by a spectacular increase in the number of lawyers educated at the great medieval universities, most notably Bologna. Despite its operative adaptability, this was a reception of a collection of laws temporally remote and contrary to much of the then existing law—a reception of the Digest, Code, and Institutes of Justinian. This distanced quality of the reception was softened by a massive accumulation of scholarly annotations of these texts which, although purportedly exegetical, were not without their contemporary connections. And such connections also qualify the voluntary quality of this reception. Roman Law was responsive to new or emergent economic and political interests, and it would not have been uniformly acceptable. This supranational impact of Roman Law terminates with the national codifications of the late eighteenth and the nineteenth centuries, but these codes themselves exhibit some commonality influenced by Roman Law, a commonality reflected in the designation of ‘civil law countries.’

4. Variations

It is these codes which have continued the history of this type of reception most conspicuously. Perhaps the most noted example comes from the adoption by Turkey in the nineteenth century, and after the declaration of the Republic in the twentieth century, of a range of codes from a variety of European countries (Guriz 1978). This was part of a project of full-scale modernization and, in line with this, these laws were received as determinant. Another notable example is provided by the purposively modernizing Meiji Constitution of 1889, in which Japan drew greatly on the constitutions of several European states (Fujikura 1996). This type of reception has spread widely of late, through what has most compendiously been described as ‘structural adjustment’ or ‘conditionality,’ modes of reception which can be described with some paradox as involuntarily responsive. This is a putatively contractural mode of domination in which the requirement to enact or enforce certain laws is a condition attached by the International Monetary Fund or by the World Bank to loans made to nation states. Formally, these institutions operate as banks, and the relevant conditions are attached to loans to enable countries to deal with financial exigencies, or to assist in their development. More recently, conditions have also become attached to qualifying for the relief of debt. These conditions, which have by now assumed enormous and seemingly enduring significance, usually entail the promoting of the rule of law and the ‘transplanting’ of occidental laws, especially those of a commercial variety. The unabashed aim in relation to the ‘new nations’ is ‘to reform the legal system and make it more like those in the core countries’ (Trubek et al. 1994, pp. 481–2).

Doubtless it should not be overdrawn, but the contrast between such ‘conditionality’ and the earlier reception of law under the labels ‘law and development’ or ‘law and modernization’ is quite marked, and can serve to introduce the final member of the quartet, the voluntarily responsive. Although this earlier transplantation of laws to the ‘new nations’ could be accompanied by a considerable degree of outright imposition, it did nonetheless have some regard to indigenous elements and it did aim, ostensibly at least, to impart or enhance their own capacity to achieve development or modernization. Still, the responsive element here was usually quite attenuated and this particular type of reception is much more exuberantly present at the beginning of the twenty-first century in ‘Eastern Europe,’ in East Asia, and in China, even if this presence is not always without an admixture of the dependent compliance which has to accompany conditionality. This is sometimes a matter of the revival of earlier borrowings from the codes of Western Europe, but with the new transfers Anglo-American law does tend to predominate. In this situation, it is not only the case that the imported law responds to what elites in these societies want, but there is usually some effective adaptation of the laws by these elites in the process of their reception (Sharlet 1998).

Sweeping as this conspectus has been, it has only touched on some significant aspects and instantiations of legal imposition, reception, and colonial law. These legal phenomena, perhaps because of the focus in modern legal studies on the singular nation, have not been given the attention which their enormous impact and influence would suggest they deserve. Being graphically situated between the voluntary and involuntary purchase of law, and being situated between law’s determinant and responsive qualities, these phenomena raise fundamental questions about the constitution of law which have for too long been obscured within the national domain.

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