British colonial expansion brought the administration of English common and statutory law to the newly acquired territories in America, Asia, Africa, and the Pacific. Common law had been developing in England since the twelfth century, and denominated a body of mostly unlegislated law founded on custom and precedent. Due to its centuries-long evolution, common law proved to be a stable and slow-to-change legal system. It formed the basis of jurisdiction in all three types of direct colonial holdings. Common law formed the basis of British jurisdiction in the trading posts along the Indian Ocean coast. British settlers brought it to the settlement colonies of North America, South Africa, and Australia. And it became the legal fundament of all British colonies of domination in Asia and in Africa.
Nevertheless, British administrators in all three types of colonies soon recognized the need to adapt their imported law according to local circumstances, and they amended English common and statutory law with colonial statutes in response to specific colonial situations.
Until the passing of the Colonial Laws Validity Act in 1865, such colonial laws were valid only if they were in no aspect “repugnant”—that is, contradictory—to the laws of the home country. Although often criticized for manifesting the principle of “nonrepugnancy,” the Colonial Laws Validity Act recognized the validity of colonial legislation and declared “repugnant” laws invalid only to the extent of their conflict with British law (whereas such laws had been invalid in total before).
The Colonial Laws Validity Act and the nonrepugnancy principle governed colonial legislation in all British colonial holdings (regardless of colonial self-government) until the passing of the Statute of Westminster in 1931, which granted validity to any law passed in a dominion parliament. In British Crown colony holdings the Colonial Laws Validity Act remained valid until independence.
COLONIAL LAW IN TRADING POSTS AND FACTORIES
When European merchant companies started to establish trading stations and factories in territories under foreign authority, they took advantage of a practice relatively widespread in contemporary merchant societies—the practice of consular law. To further and protect their foreign trade, local sovereigns, particularly in Asia, recognized the right of foreign merchants (or other subjects) to live under their own legal system.
Thus, the British East India Company brought English law to its trading posts and factories in India. The company’s founding charter of 1600 already made indirect reference to the principle of nonrepugnancy regarding the laws and punishments in future company territories. Company legal authority was vested in miniature governments and originally covered only British subjects. In 1661 legal authority over company servants and other Europeans was placed in the hands of Governor and Council. But with its power in the trading posts steadily growing, the company continuously extended its jurisdiction to legal cases involving European and indigenous subjects and finally assumed legal authority over the indigenous population as well. However, indigenous cases were generally handled by local judges according to local customary law—thus establishing a practice of legal pluralism.
COLONIAL LAW IN SETTLEMENT COLONIES
In colonial territories with a comparatively sparse indigenous population and continuous European immigration, English common and statutory law were claimed by the settlers as the one and only law of the new colonies. To live under English law was perceived as a privilege reserved for the white population, and the privilege was not readily shared with the indigenous inhabitants. The royally- appointed or (in case of chartered colonies) proprietarily-appointed Governor and Council constituted the highest legal authority in the colonies in civil as well as in criminal matters. Although theoretically bound by the principle of nonrepugnancy, slow communications and the practice of issuing “temporary” laws guaranteed considerable legislative freedom to Governor and Council.
English law was adapted to local colonial circumstances. In the North American colonies, the importation of African slaves required the implementation of European-designed laws regulating master-slave relations. In the Australian settlements, colonizers adopted the practice of terra nullius (nobody’s land), thus not recognizing native claims to land and securing European land titles. Settlement colonies rarely produced legal pluralisms (and if so only in their weakest form), but they confirmed British law as the single legal system. It is important to note that self-government in settlement colonies did not override the principle of nonre-pugnancy. Only with the Statute of Westminster did Britain’s six dominions (Australia, Canada, the Irish Free State, New Zealand, Newfoundland, and South Africa) achieve full legal authority.
COLONIAL LAW IN INDIA AND OTHER COLONIES OF DOMINATION
With the acquisition of Bengal in 1757, the British East India Company (and with it the British government) was confronted with new challenges concerning the legal administration of its European and indigenous subjects in India. Legal pluralism as practiced in the factories and trading stations was advocated by the legal reforms of Warren Hastings (1732-1818), India’s first governor-general, in 1772 (placing Muslims under Muslim civil law, Hindus under Hindu civil law, and all indigenous inhabitants under Muslim penal law) and the Regulating Act of 1773 (extending British jurisdiction over all British subjects, all company servants, and all other indigenous inhabitants who chose to submit to it).
Discovering the economic value of India beyond mere revenue collection, the British administrators began to interfere with the relatively untouched indigenous legal systems only in the second quarter of the nineteenth century. After the Indian Revolt of 1857, the British Crown took over the Indian holdings from the East India Company in 1858. A unified Indian Penal Code was introduced in 1860 and during the rest of the nineteenth century most fields of commercial, criminal, and procedural law had been fully codified—incorporating only little indigenous legal practice. Legal pluralism continued only in the fields of Hindu and Muslim personal laws. After Indian independence was achieved in 1947, the legal system introduced by the British remained practically intact.
Warren Hastings. Legal pluralism as practiced in Britain’s colonial factories and trading stations was advocated by the legal reforms of Warren Hastings in 1772, placing Muslims under Muslim civil law, Hindus under Hindu civil law, and all indigenous inhabitants under Muslim penal law.
The legal practice that had evolved in colonial India became a role model for other British colonies of domination. Codification, the expansion of British law and the application of indigenous customary law in personal affairs, became the acknowledged practice. Labeled as indirect rule, the British made use of indigenous elites to administer law in their African colonies, thus keeping up a form of legal pluralism. However, local customary laws mostly survived only in altered forms as appendages to British state law.
PURPOSE AND SCOPE OF COLONIAL SYSTEMS OF LAW
The primary purpose of colonial law was the safeguarding of the colonizers’ interests. The introduction of British laws regarding land and property secured British acquisition of and titles to land in settlement colonies and—later—secured investments in the plantation industry. British-designed slave laws regulated master-slave relations in North America and provided a steady and reliable labor force. In trading stations, British law on a consular basis guaranteed personal security in an alien society and protected foreign trade.
Both in settler and nonsettler colonies, to fall under British jurisdiction had been viewed as a privilege not readily shared with the indigenous population. The resulting legal pluralism retained legal inequality in nonsettler colonies. The codification of colonial law— incorporating altered forms of local customary law— finally imposed a Europeanized legal system on many colonies of domination, much of which remained in place even in the postcolonial era.
