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June 15th 2015 print

Keith Windschuttle

The Civilising Power of English Law

The monarch could not change the law according to his will and whim. 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, whose 800th anniversary we celebrate today

king johnIn Winston Churchill’s famous speech at Harvard University in 1943 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 appreciated not only 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 these 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. Once it had this, an English colony, dependency or protectorate, whether established by settler immigrants, by military conquest, or 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 essay was first published in the March, 2011, edition of Quadrant

This is not an argument you will readily find in the works written by scholarly historians in the past fifty years. Hardly any of them isolate the issue of law as something that deserves priority in accounts of the British Empire. This is true of historians from both the Left and the Right. Over the past decade, imperial history has seen a revisionist movement emerge among conservative and classical liberal historians. Most of their work has been in the field of economic history. It has been largely written in response to the radical claims of the decolonisation movements of the 1930s, 1940s and 1950s. Instead of British imperialism generating colonial exploitation and underdevelopment, as the decolonisers and the nationalists alleged, revisionist economic historians such as P.J. Cain and A.G. Hopkins, Niall Ferguson and several authors who contributed to The Oxford History of the British Empire have demonstrated that the opposite was true. Britain brought the modern systems of finance, transportation and manufacturing that emerged at home 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 modernisation to its territories.

This 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 global influence of English law has been largely confined to people writing for the legal profession. Only in the United States, because of some 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 itself. But in Canada, Australia, New Zealand, India and England, legal history has been largely a matter of lawyers writing for other lawyers.

Fortunately, in 2007 an Australian legal scholar published a book 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. It is the first complete work on its subject and a truly monumental project. Future imperial historians will ignore it at their peril. The Reception of English Law Abroad is written by Bruce McPherson, a former judge of the Supreme Court of Queensland and the Queensland Court of Appeal. McPherson was born in South Africa and educated at the universities of Natal, Cambridge and Queensland. He has also served as a judge in the Solomon Islands and Fiji, two countries that have long had serious internal divisions 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”. A rule of law of some kind is certainly necessary for a society to be a civilisation. 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. Hence 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, by the way, 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 do not derive from English law, such as in Quebec and Louisiana. Moreover, the British never exported trial by jury to its empire in India, the Pacific or to 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 going to settle 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 colonisation. 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. The new states of the Union also enacted statutes 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 should be better known as a war of independence than a revolution.)

After 1776, America 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, not only embedded Blackstone in their curriculum, but produced a succession of Blackstone scholars and commentaries on the Commentaries. Although Thomas Jefferson was one presidential critic of 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 on horseback with 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 colonisation and conversion of the non-Western societies in the Americas, Asia and the Pacific. They had all learnt that any attempt to undertake the process in a revolutionary way, through the destruction of the ancient traditions of these peoples, 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 the jewel in its crown. The original British trading zones and charters centred on Calcutta, Madras and Bombay gained supreme courts in 1773, 1800 and 1824. The supreme courts were courts of the British king and, apart from a small number of local statutes, applied English law. The Indian businessmen of these jurisdictions liked English law so much that, McPherson writes, “despite early efforts to discourage it, the appetite of Indian inhabitants for litigating in British courts proved insatiable”. The modernising sectors of the Indian economy gained enormous benefit 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 in societies that tolerated practices such as polygamy, child marriage and the incineration of living widows, customary laws always ruled. In Bengal the 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. This 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 what were actually the laws of marriage and inheritance and what were no more than moral, religious and folk customs, some of which went back 2000 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. Overall, McPherson concludes that, subject only to exceptions related to personal laws of the non-European population, English law was received by the whole of British India. 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. However, seven and eight years later, the elections held in both countries last year 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. In Afghanistan at the September elections the voter turnout was only 30 per cent, while twenty candidates and party workers were murdered. Several areas under the control of the 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 south-east to treble the country’s hydro-electricity output. In 2008, to get the turbine to the dam, British forces mounted what they called the largest logistical operation by the British Army since the Second World War. 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, rather than winning hearts and minds, 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. Nonetheless, it was 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.


This article was originally a paper to the symposium “The Anglosphere and the Future of Liberty”, organised jointly by the New Criterion, New York, and the Social Affairs Unit, London, and held in Winchester, England, in September. It was first published in the January edition of the New Criterion.