Laboratories of Statehood: Legal Intervention in Colonial Africa and Today
| Date | 01 July 2012 |
| DOI | http://doi.org/10.1111/j.1468-2230.2012.00912.x |
| Published date | 01 July 2012 |
| Author | Stephen Humphreys |
THE
MODERN LAW REVIEW
Volume 75 July 2012 No 4
Laboratories of Statehood:
Legal Intervention in Colonial Africa and Today
Stephen Humphreys*
The immense body of contemporary work aimed at ‘promoting the rule of law’ is often accused
of ‘neo-imperialism’. Yet, despite many points of contiguity between past and present legal
interventions, the charge is overbroad and rarely illuminating. This article attempts to move
beyond polemic to track concrete historical and structural forerunners of today’s rule of law
work. Focusing mainly (though not exclusively) on late imperial British endeavours, it traces
colonial legal interventions over time, the techniques adopted (and rejected), the shifting nor-
mative bases of legitimacy, and moments of strategic recalibration in the face of resistance.Three
broad attitudes towards law across the period are (provisionally) characterised as ‘regulative’,
‘constitutive’ and ‘institutive’ moments. In each phase, the Powers treat colonial territories as
laboratories of statehood, within which experiments are conducted to locate the optimal con-
figuration of law. In conclusion some counterparts to these moments in today’s ‘rule of law’
activities are identified.
INTRODUCTION
The contemporary practice of rule of law promotion is frequently disparaged
as a form of ‘neo-imperialism’ or ‘neo-colonialism’.1At issue is the way law
is mobilised in international processes today, through funding incentives and
conditions – bilateral aid, multilateral development financing and support to
NGOs – by means of which courts and prisons are built, judiciaries fostered,
police, lawyers and soldiers trained, and a whole ethos of law nurtured under the
rubric of ‘building the rule of law’.2Certainly, these are activities that took place
under colonial rule.And the ‘neo-colonial’charge is not the preserve of academic
critics alone: it is also a question people working ‘in the field’ ask themselves
*Lecturer in Law, London School of Economics. Thanks to the anonymous reviewers,Yoriko Otomo
and a number of LSE colleagues for useful comments.
1 See, for example, R. E. Brooks,‘The New Imperialism:Violence,Nor ms,and the “Rule of Law”’
(2003) 101 Michigan Law Review 2275; L. Nader and U. Mattei, Plunder:When the Rule of Law is
Illegal (Oxford:Wiley-Blackwell, 2008); and the contributions to A. Bartholomew (ed),Empire’s
Law:The American Imperial Project and the ‘War to Remake the World’ (London: Pluto Press, 2006),
especially L. Panitch and S. Gindin,‘Theorising American Empire’and T. Purvis,‘Looking for Life
Signs in an International Rule of Law’.
2 See S. Humphreys, Theatre of the Rule of Law (Cambridge: Cambridge UP, 2010).
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© 2012The Author.The Modern Law Review © 2012 The Modern Law ReviewLimited. (2012) 75(4) MLR 475–510
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on occasion,3indeed with increasing urgency following the rush to ‘build the
rule of law’ in Afghanistan and Iraq after the invasions of 2002 and 2003.4
Rule of law promotion is today a multi-billion dollar industry, and has
spawned its own policy literature, communities of practice, career-paths and
academic sub-literature.5But what does it mean to refer to this body of work
as ‘neo-imperial’? It is my contention that this charge is profoundly unhelpful.
This is because it relies on prior assumptions about ‘imperialism’ itself that
not only remain polemical, but that, more fatally, are exhausted by polemic. Talk
of (neo-)imperialism obfuscates both past and present and provides little ana-
lytical traction for understanding either. There are, of course, excellent reasons
for the colonial analogy and good reasons to reject it – and I shall say more
about both in a moment. However, rather than enter ing a potentially endless
terminological dispute, it is more useful, I suggest, to examine closely the
history of colonial endeavour in order to ascertain how, in practice, it has
foreshadowed or directly shaped the contemporary practice of r ule of law
export.
In the remainder of this introduction, then, I will first hold the ‘neo-
imperialist’ claim up to closer scrutiny and then introduce the exercise in
comparative legal history that follows.
Facing (neo-)imperialism
It is easy to see why the charge of ‘neo-imperialism’ might prove attractive to
critics of contemporary rule of law promotion – and, equally, why practitioners
in the field are generally keen to resist it. Indeed, rule of law project litera-
ture expends considerable space demonstrating the authoritarianism – and
outmodedness – of colonial-era laws in contradistinction to a ‘modern’, consent-
based ‘rule of law’.6
3 I base this on personal experience, but see, for example, D. Pimentel, ‘Rule of Law Reform
Without Cultural Imperialism? Reinforcing Customary Justice Through Collateral Review in
Southern Sudan’ (2008) 2 Hague Journal on the Rule of Law 1.This question recurred throughout
(and arguably undid) an earlier waveof ‘law and development’interventions: see J.A. Gardner,Legal
Imperialism: American Lawyers and Foreign Aid in Latin America (Madison: University of Wisconsin
Press, 1981);D.Trubek and M. Galanter,‘Scholars in Self-Estrangement: Reflections on the Crisis
in Law and Development Studies in the United States’(1974) Wisconsin Law Review 1062.
4 Among copious examples: the United States Institute for Peace (USIP; http://www.usip.org/
publications/establishing-rule-law-iraq%20and%20http://www.usip.org/programs/projects/rule-
law-afghanistan); the United Nations Developing Program (UNDP; http://hdr.undp.org/en/
reports/nationalreports/asiathepacific/afghanistan/name,3408,en.html); the Council of the
European Union (http://www.consilium.europa.eu/eeas/security-defence/eu-operations/eujust-
lex.aspx); the German Development Program (GIZ; http://www.gtz.de/en/weltweit/europa-
kaukasus-zentralasien/17058.htm); the American Bar Association (ABA; http://apps.americanbar.
org/rol/mena/iraq.shtml); the UK’s Foreign and Commonwealth Office (FCO; http://www.fco.
gov.uk/en/news/latest-news/?view=News&id=581537982); the US Agency for Inter national
Development (USAID; http://pdf.usaid.gov/pdf_docs/PNADF590.pdf).All websites last visited,
1 September 2011.
5 A comprehensive list of sources is available in the bibliography to Humphreys, n 2 above.
6 See Humphreys, ibid, 142, 171, 176–182.
Laboratories of Statehood
© 2012 TheAuthor.The Moder n Law Review© 2012 The Modern Law Review Limited.
476 (2012) 75(4) MLR 475–510
There are at least three good reasons to view rule of law promotion as an
‘imperial’ exercise. First, it is profoundly global in scope. Arguably, what marks
rule of law reform out from other globalising endeavours is how deeply it reaches
into the structures and sinews of the states of the world in order to facilitate the
reproduction of similar norms everywhere. Unlike international law, this is an
exercise that delves into the very DNA of the state: it aims to reorient and direct
the telos of the state as a political form. Or rather,it uses the state-form as a vehicle
for the universalisation of a set of ideas as to the proper shape of the political,the
social and the economic.
Second, rule of law work, as we witness it today, has two principal strands,
each of which mirrors an imperial forerunner. The first is referred to variously
as ‘peacebuilding’,‘post-conflict reconstruction’ or ‘security sector reform’. Str uc-
turally it shares much with colonial era‘pacification’.That is, it is concerned with
the stabilisation and/or reconstitution of fragile states; the management of vio-
lence (and pre-emption of resistance); and the universalisation of certain norms
and apparatuses of criminality.7The second strand has to do with private inter-
action and consolidation of the public-private divide. Rule of law reform clari-
fies the role of gover nment: to structure economies in order to encourage
private activity, on one hand, and to ensure a level playing field for foreign
investors, on the other.8This formally flat world not only favours the larger
global actors over the local,but it also tends to draw the local into its vortex and
dismember it:‘all that is solid melts into air’. In this too, rule of law work looks
a lot like imperialism.
Third, rule of law promotion invokes a higher normative ideal as its guiding
motif. The guiding light of empire was of course ‘civilisation’. For the con-
temporary rule of law project, the apotheosis of law itself guides practitioners.
Law appears as a primary, perhaps the primary, public good. It appears not
merely as a reflection or product of a social or political process; it is rather a
source of authority in its own right. The guiding motif of rule of law export
is a law that precedes or pre-empts the individuals or states that find themselves
beholden to it. The law in this formulation is essentially a restatement of
imperial ‘civilisation’: it is mystified and non-negotiable. Inter national law is, of
course, a key source and expression of this universalising law, but it does not
exhaust it.
And yet, having identified these analogies (assuming they are persuasive),
we are still hardly any closer to understanding either ‘imperialism’ or rule of
law promotion. Indeed, if we suspect that rule of law discourse is not ‘really’
about the rule of law, then we must also recall that imperial discourse is also
not ‘really’ about empire. At bottom, empire is a strangely vacuous notion.9
It was lazily invoked by the European Powers in the late nineteenth centur y,
who appeared to confuse their own longstanding rapaciousness with a late
flourishing of hubristic competitive nationalism. They grasped belatedly for
7ibid,ch5.
8ibid, ch 4 and 194–204.
9 See S. Humphreys, ‘The Emptiness of Empire and Other Hazards of Theory’ (2008) 57 ICLQ
225.
Stephen Humphreys
© 2012 TheAuthor.The Moder n Law Review© 2012 The Modern Law Review Limited. 477
(2012) 75(4) MLR 475–510
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