How do Maine, Sarbah, and Lugard suggest colonial administrators should deal with existing laws and practices—“custom”/“customary law”—in areas such as India and West Africa? Why do you think they make these suggestions?
HIST 285 / AFS 270 | SPRING 2019
Maine argues that existing laws and practices may seem well founded at first glance, but upon further examination they “prove, on larger experience, to have been merely the cloudy outline produced by mental distance.” Yet, he does recognize the similarities in social and legal development between what he calls “primitive” and “civilized races.” He notes the “formation of the Patriarchal Family,” a complex structure not formed in nature, is reflective of the similarities in development. He does claim that the Indian society, while more developed than “wild tribes” reflects “earlier stages of human society.” He argues that primitive law and cultural practices are “characteristic of the infancy of mankind,” but does not say they are inherently without value.
Sarbah, however, does not recognize these similarities between western and eastern laws. He says the Indian “institutions, popular traditions, and prejudices are so entirely different than those of England” and encourages cultural relativity where they are concerned. He claims “It cannot, therefore, be correct to say … that native laws and customs are foreign matter which, unless proved, cannot be recognized or notice by a judge.” Sarbah argues native laws should be taken into consideration in court by “seek[ing] the assistance of others who may be versed in the native laws and customs.”
Lugard believes differently, claiming that the inclusion of native law into colonial power only creates confusion of power and “would not be for the good of the country.” Restricting the power of the Commissioners and seeking assistance from natives, he argues, “cause delays, and result in cases being heard at great distances from the place where they originated.”
All of their arguments seem well founded, and when talking about something so controversial as colonial power it is hard to determine if any of them are correct, morally or legally. As we had a hard time defining “law” in class, I can see how it is equally hard to determine the rights of Indigenous people in a legal matter, especially as we feel so separated from the events as they took place centuries ago. I am interested to hear how everyone interpreted the reading in class on Monday.
All of the soon to be analyzed authors (Maine, Sarbah, and Lugard) each propose their own argument for the best possible way to assert English authority over new territories. Maine claims that the pre-existing system (whatever it may be whether similar or completely different) be demolished, so as to start a new foundation. While Sarbah argues the exact opposite of Maine, in that the only reliable way to impose a new authority is through using the pre-existing system and building upon it. Whereas Lugard, asserts a middle ground so to speak, in that in order to avoid confusion the new authority should utilize the pre-existing narrative to impose new ordinances, but be careful to never undermine the native law. Ultimately, each author provides a different opinion as to how to impose colonial law on new territories.
First, I will look at Maine who asserts that it is ultimately a beneficial idea to build upon the pre-existing society as is. To clarify, Maine argues that colonial rule should build upon the foundation set by any pre-existing laws and practices. Ultimately though, Maine recognizes the impossibility of building upon laws and practices that have evolved over time, and while may at times share a similarity with the colonial’s desired laws and practices, ultimately cannot coexist. My analysis of Maine’s argument is supported by a quote stating that “nor is there any expedient by which it can escape the duty of rebuilding upon its own principles that which it unwillingly destroys.” (Maine). The aforementioned quote states that there is no possibility for colonial powers to build upon the pre-existing laws and practices, even if it wishes to do so, and thus the powers will inevitably destroy the laws and practices to make room for their own. I believe that Maine arrived at such a viewpoint through his perception that dual law can not be attained. In a pragmatic analysis he reasons that two laws cannot co-exist, which through reason alone does make sense; however, pure hypotheticals are not the only way to determine the capability of such a practice and thus is an erroneous methodology in my opinion.
Second, Sarbah differs from Maine regarding his perspective of native law in lieu of English law. Where the laws deemed necessary for a particular region, may have no equivalent in English law, and therefore must only be litigated with native law reigning supreme. Furthermore, it is not acceptable for one to impose their own laws and practices upon another, and rather one should subject themselves to the laws of the land itself. If there is to be any change, it must be done through the slow manipulation and construction with the pre-existing laws, as it is only possible to change the law by building upon it. This is supported by a quote from Sarbah that states “for any reform to be permanent and enduring, it must be based and rooted in the principles of the aboriginal institution.” (Sarbah). This quote claims that it is necessary for there to be any changes of laws in a region, must be done so through the pre-existing ones, otherwise it will ultimately fail. Sarbah is more accommodating then Maine was, by arguing for the co-evolution of the pre-existing laws and practices. Early on he gives examples of how there are certain practices in native regions, where there is no equivalent English law, which can be used as supportive evidence for his claim that to reform law and practices, they must be built upon pre-existing ones.
The final author I will look at is Lugard who asserts that it is not proper for there to be either the complete destruction of native law, or the complete co-evolution of such; however, it is a combination of both views. Where it is necessary to impart English law on native courts, it is not reasonable to leave them full reign. Ultimately, he argues that English law cannot appear to undermine the local courts, but can impart advice, and if necessary re-try cases. A summary of Lugard’s opinion is expressed by a quote that states that in order to integrate native courts with the English government we must “promote co-operation between the native executive authority and the courts.” (Lugard). To explain, the quote states that there must be an open appreciation and encouragement for the combination of native authority and English authority. The reasoning behind his opinion is to result in the removal of confusion, in lieu of a new ordinance (English authority) in place of the pre-existing one. As it is necessary to rely on current powers to execute new and foreign laws.
Lugard is very attached to the idea of a purely, truly, genuinely native court, as opposed to one muddied by colonial influence. According to Lugard, the function of such a court would be lost if forced to obey colonial, European custom and bureaucracy. Thus, he favors a system where the native court is as insular as possible with limited influence or instruction from colonial forces. In fact, Lugard writes that “there can be no more important duty imposed upon an administrative officer than that of keeping the closest touch with the native courts.” I think that he makes these suggestions so as to allow for the maximum function of each court; it is true that with influence from contexts that the natives might not understand, their own courts would weaken in effectiveness, and thus so would all courts.
Maine, in his writings about India, emphasizes the importance of British thought on Indian culture. He literally writes, “Native Indian society is doubtless as a whole very ignorant, very superstitious, very tenacious of usages which are not always wholesome.” It appears, based on quotes like these, that Maine views England and English culture/philosophy as superior. He seems to view Indian government and law as bastardized and incomplete, and certainly still in their infancy. I imagine that he holds this view, as many westerners of his era did, because subjects like anthropology were still new, and they were not yet considerate of issues like relativism.
Sarbah seems to occupy a sort of middle ground between these two, as he does not dismiss a colonial presence, but he does emphasize the absolute importance of native participation in the courts affecting them. He notes that customary laws in places like India and the Gold Coast are continually advancing and will continue to do so.
To begin, Lugard is in favor of colonial law overtaking customary law as he continually highlights its superiority to native law. I believe he illustrates this perceived inferiority of native law by claiming that it would not be beneficial to try to combine the two. Looking to native law for assistance or guidance in gaining colonial power is burdensome to the colonists involved. Lugard believes trying to integrate or respect native law would not help maintain power and order in the colony. Instead, Lugard implies that trying to meld the two would be an unnecessary burden causing much confusion that ultimately would not benefit the advancement of the society. Hence, the push for a more dominant colonial law that overtakes customary law.
With similar beliefs to Lugard, Maine discusses the lack of substance in colonial laws. Maine believes that there is a distinction between colonial peoples and native peoples: referred to as “civilized” and “primitive” accordingly. The practices and laws of the native peoples, as described by Maine, are not as thorough or productive as their colonial counterparts. Even though these practices can be seen as in-depth and intensive from an outsider’s perspective, they lack the materiality that exists in colonial laws. Although he acknowledges the lawfulness of native customs, Maine believes they are simply not as developed as the colonists, and, ultimately, the colonists will overcome native customs and push for the permanent establishment of colonial laws.
Taking a completely different stance than Maine and Lugard, I believe Sarbah emphasizes the importance of native customs and laws. Sarbah focuses on the huge societal differences between the colonizers and the natives, saying that one cannot be compared to the other. It would be unfair to create a hierarchy of cultural customs and laws when both operate so differently. Unlike the other two authors, Sarbah takes a more respectful tone to the laws and customs of the natives; thus, legitimizing their power and proving it is worthy of the colonizer’s respect. There should be a balance between colonial and native customs.
Overall, all three of their arguments present different positions on how law and customs should be regarded between natives and colonizers. As colonialism continues, the decision of respecting or disregarding native laws becomes an important issue. I think Maine and Lugard are coming from a more western, entitled, and innate superiority viewpoint whereas Sarbah attempts to prove why the practices of the natives deserve equal recognition. Although all three authors acknowledge the contributions of native customs, I think it is clear the some do not see them as a possible permanent form of societal rule or power. The superiority of colonial customs is forced onto the natives and will ultimately overrule their old traditions.
Maine notes the ‘closer-than-one-would-think’ proximity between Western law and ‘primitive’ law while questioning the acceptance of ‘law’ simply because it is ‘law.’ Sarbah argues that the customs (or laws) of natives, particularly in India, should be taken into account by the British courts, by means of someone who is familiar in them as a translator of sorts, and he also claims that there is far more distance between Western law and “primitive” law than Maine believes. Finally, Lugard does not see any benefits of incorporating the customary law of natives, as it would be a burden on the already laden system.
Despite the variety of their approaches, all three make a similar claim– if British/European law is to be modified by consideration of native customs or laws, it is at the complete discretion of what the court finds not “repugnant to natural justice” that the modification will be made (Sarbah and Lugard). While Maine claims this in a more subtle way, all three uphold British discretion. These suggestions, these blanket statements, are made in order to strengthen the power of the Crown in each of these respective territories and ensure, whether or not native customary law is being considered, British law will have the final say.
Lugard believes that there are no aspects of native laws that should be incorporated or respected in the imposition of colonial laws. Maine asserts that native law has no place with colonial law, for they are “uncivilized” and “primitive” and that British law should oversee native law. Finally, Sarbah recognizes the importance and standing of native law and states that native law should coincide with British law.
After some research, it becomes apparent why Maine, Lugard, and Sarbah made those suggestions. Maine was born in the UK and was a jurist. Lugard was also born in the UK and as a general, was an imperative part of England’s colonialism in Africa. Sarbah was born in Ghana and was educated in England.
All three readings deal with the issue of pre-established “custom” against “law” in distinct ways. Maine argues that societies go through universal stages, drawing similarities between Indian society to others. Some of these stages include the “ancient society”, which Maine contends is what Western civilization’s past consisted of. Hence, he indirectly places societies that he dubs “ancient” as less advanced or beneath Western society. Maine also points out the concept of “the Patriarchal family” as a marker of emerging civilization. In doing so, he then makes the argument that a sort of blanket, universal law can be applied to all society—including India—and that Indian custom must be seen as simply the precursor to this already established Western law, given India’s placement as a “fragmented ancient civilization”.
Sarbah, on the other hand, contends that custom and law are distinct from one another in Fanti and Indian societies, and that especially there are distinctions between “western” and “eastern” laws. Here, he makes the main argument that there is no such thing as a “universal law”—that law, as are customs, is culturally dependent, and that to impose colonial law would be to ignore already established procedures and norms. Sarbah does, however, note that custom is in itself an early form of law.
Lugard argues, finally, for a “fundamental law”—that is, English law—that is to be the supreme arbiter in all cases of justice, and that Native law and “custom” should be taken into account in judicial proceedings only if their practices are deemed “natural”—i.e., civilized. His argument echoes Maine’s in the idea of a universal civilized proper law that operates at a level above “tribal” or “primitive” law, and that by ruling in the colonies (specifically India and Africa) using English law, colonizers would be performing the colonized a service.
Such suggestions largely play into a view of colonizer law as the superior and universal mechanism of moral behavior and judgement. By placing custom as a precursor to law, “tribal custom” can be viewed by the colonizers under judicial light and judged on a Western moral basis. Doing so gives the colonizers an excuse to use their own “Enlightened” judiciary system over the “primitive” unnatural, immoral customs/laws.
Maine, Sarbah, and Lugard advocate practices for the administering of justice that are, to varying extents, restrictions on, or collaborations with, native institutions and custom. An interesting point of explication for the authors was that the operational features of the judiciary, if grounded in native habits and institutions, should still be means of reform and advancement. Instead of entering a village or community, that already has a preexistent system of laws and customs, with the pompous motive to oppress, it is best to consider the judicial mechanisms hitherto established, and guide or amend as necessary. For instance, Lugard addresses the need for natives to be in close proximity to the operations of justice within their community through several propositions, including cooperation between native executive authority and the courts. Through the delegation of responsibility to natives, not only will traditional law and custom be preserved in the judicial system, but a sense of discipline and respect for authority will also be instilled in individuals.
I believe Maine, Sarbah, and Lugard make these suggestions in order to facilitate, to varying extents, a joint judicial environment, which either somewhat preserves native culture by honoring preexistent law and custom or advocates a greater colonial dominance. Markedly, the authors are concerned not only with the degree of preservation of systematic legal and customary tradition, but also with improvement and progress, which begins upon recognition of native laws and habits. Maine, Sarbah, and Lugard are concerned with enduring and permanent growth in the societies featured in their works, yet differ in their beliefs of the degree of close proximity to native livelihood and tradition in order to catalyze lasting advancements.
Maine takes a critical view of Indian customs themselves, claiming that “Each individual in India is a slave to the customs of the group to which he belongs . . . [these customs]. do not differ from one another . . . [in comparison with] the individual men and women who make up the modern societies of the civilised West” (Maine, 14). This, in and of itself, suggests that he views such customs with enough disdain to disregard them with regard to law. He elaborates on this point further, noting that “Native Indian society is doubtless as a whole very ignorant, very superstitious, very tenacious of usages which are not always wholesome” (Maine, 25). If Indian society did, in his estimation, possess these qualities, there would be no incentive to integrate existing laws and practices with those of colonizing nations. Instead, he makes these suggestions in an effort to explain that the mission of “the law” in any colonial situation should be to rid any colonial outpost (India in this case) of its suffocating and inappropriate legal and customary practices.
Lugard takes the opposite approach, as does Sarbah. Both argue that the integration of existing law and the law of colonizing nations is a far better approach then merely wiping out customs native to the land being conquered. Lugard notes that, “To provide for the Natives tribunals which fully understand their own customs and modes of thought, and command their confidence” is of the utmost importance in shaping colonial judicial systems (Lugard, 548). This is a blatantly obvious demonstration of his sympathy for existing law: it is absolutely paramount, he argues, that native custom is recognized and even institutionalized as legal systems are developed in colonized nations. Sarbah states a similar assertion: “It is always safer and better for the court . . . to seek the assistance of others who may be versed in the native laws and customs” (Sarbah, 19). While he may not view the institutionalization and legitimate legal recognition of existing laws as necessary, Sarbah does contend that they must be dealt with in legal proceedings. It is incredibly important, he asserts, that individuals who understand native custom are aiding judicial officials as binding legal decisions are made. This is “better and safer” — without this sort of nuanced analysis, and the distinct recognization of native law, long-valued customs will go largely ignored, fostering resentment and dismay among those who have traditionally lived in colonized regions.
Maine uses the Comparative method (examination and comparision of laws). He also claims the most valuable materials are obtained for legal improvement. Both India and British law pursue the same end, but the mechanism by which the end is attained is extremely dissimilar. English law is excellent due to its “good sense frequently exhibited in the results which it finally evolves and the force and even the beauty of the judicial reasoning by which in many cases they are reached”(5). I believe Maine is arguing to make Indian law more expedient and convenient in India by incorporating the best law: English law. English law may be able to help India due to English law’s uniformity and monotony, since India is so fragmented; thus view appealing to India. He also mentions how India is losing everything which is characteristic to it and only Western power can keep Indian characteristics alive. Basically, Maine wants to take over Indian law with British law just as the Greek and Roman literature and laws did to Europe.
Sarbah dichotomizes law as statutory or customary. The difficulty is trying to incorporate both these laws is why incorporating English law will be difficult. In the beginning, Sarbah mentions the praise a certain judge received for allowing Indian laws to stand, while a British higher court observed. Sarbah mentions the customs of India, yet he argues that these customs can be viewed as a law, but those custom laws are only valid by a higher court giving that law validity. Sarbah ultimately argues for the incorporation of British law into the Indian legal system, and not keep governing India with strict British laws. Overall, any reform to a domestic legal system by a foreign legal system must be rooted in the principals of the aboriginal institutions
Lugard argues that all law is ruled by common law and the doctrines of equity, and thus enforced by England. He also mentions foreign laws should be recognized, however, the those foreign laws contradict natural (British) law, then British law will decide the case. He mentions British law should govern land, marriage, and inheritance; however, what else is left for the foreign laws? I believe Lugard encourages the complete dominance of English law over foreign laws. By dominance, he means to establish English courts over proxy “foreign” courts. Therefore, British law completely undermines local law by establishing British law as the premium institution over the lands. He basically believes in interference with foreign laws for the “betterment” of the land as a whole.
I think they all make these suggestions because the practice of foreign intervention during this time was common. Any foreign intervention yields inevitable disputes. All the writers allude to customary laws and structural laws, however, the interpretations and incorporation of such laws are where they differ. Therefore, the three writers are trying to solve the same problem of governance by using different means.
The three authors Maine, Sarbah, and Lugard offers differentiating opinions on dealing with existing law and practices from a western point of view. Although the culture and environment in which the authors deal with are different, they all recognize the difficulty of imposing the British justice system directly on the native civilizations. Whereas Maine and Lugard’s works are condescending to say the least, Sarbah argues that there is no such thing as ‘universal law’ and that enforcing colonial law on natives would be in conflict with established societal procedures.
In regards to Indian customs, Maine begins by saying that the English society is much more civilized and has a perfect judicial system as opposed to the underdeveloped and ‘primitive’ India. “Each individual in India is a slave to the customs of the group to which he belong, in comparison with the individual men and women who make up the modern societies of the civilized West.” (Maine, 14) Maine recognizes the differences in which Indian society has with the West and argues that enforcing the British judicial system directly is difficult. As such, the solution is to build upon the existing rules and norms within the Indian society.
Lugard, whom argues in similarity with Maine, states that English law is the overarching form of justice across all societies. He proposes a more definitive approach in which Western customs and law should be enforced, outlines several necessary points on how customary law should form and that it is only up to the western society to decide on the efficiency of said system. If the customary law is out of place, then the West will be obligated to intervene.
Sarbah, on the other hand, draws similarity between the different societies. Sarbah argues that there is simply no universal law and thus proposes a co-evolution of the pre-existing laws and practices. On one hand he emphasizes the importance and necessity of a strong and effective judicial system, but he note the colonial presence. Overall, Maine and Lugard argues from purely a western, superior perspective and Sarbah tries to draw some common-ground between the native and the West. Nonetheless the judicial systems and system of justice will be unavoidably affected by the colonial West.
In Maine, Sarbah, and Lugard’s writings on the interactions of native and colonial law, they differ on the extent to which the two laws can or should be mixed, or if one should override the other. Maine and Lugard are in favor of the imposition of European law over natives (though Maine is a stronger believer in this). Sarbah believes instead that native customs and rules should be maintained and implemented when possible. While we might naturally say that Sarbah’s viewpoint is the most moral way, we should consider that under Sarbah’s method, the local slavery we saw in Abina and the Important Men would remain, because the British laws against slavery would not be imposed on the area.
I find it interesting that all of these authors must necessarily believe that the foreign-imposed law is legitimate to some extent within colonized spaces. The colonizers are from another part of the world, have lived here at best a couple of years and only have any power due to their force of arms. If an Englishman moved to Germany, he would not expect to be able to impose any of English law to people in Germany. So even the relatively pro-native Sarbah is still acknowledging to some extent colonial authority (though that might be a necessary conceit of the piece – the colonizers are gonna colonize, so the question is what is the right way to do it).
When examining the work of Maine, it becomes clear that a distinction is made by colonizers when dealing with preexisting legal systems. In particular, the examination of the Indian subcontinents cultural distinction based on class and what Maine referred to as the “ancient fragments” of societies that predated those of the contemporary time being written of shows a fundamental difference between the foundation of the two systems. What is forwarded through this piece of writing is that colonial powers have a necessity to understand the foundation upon which the local legal systems are formed. In regard to India, the distinction is made between the west and the east with what is referred to as the “patriarchal model” vs the western “Roman legal model.” The fundamental difference between the two systems is an obvious obstacle to occupation, yet Maine forwards the argument that if properly understood, the seemingly primitive model becomes beautiful in its structural simplicity. In the Township distinction, the interpersonal unwritten legal system of ancient cultures takes the form of the legal par excellence for the local regions they dictate. The reason these localized legal systems were effective is due to what Maine referred to as the simple language they utilized. In contrast to the Roman legal model that requires complex language providing a far more complex system that is walled from mass understanding, the patriarchal model is far more familial and accessible. In conclusion, the distinction made between local preexisting legal systems and colonial legal systems are necessary in order to effectively mold cultures to coexist, a proverbial give and take in legal customs.
Maine does not explicitly claim the manner in which law should be applied in colonial India. He asserts that Indian culture is grounded in custom and tradition more than any other, but maintains that the social structures in the colonial region are analogous to the patriarchal family and the Teutonic proprietary system of Germany. It is clear that he sees English jurisprudence as clearly superior than Indian societal structures, but he does not absolutely advise against allowing the colony to be governed in accordance to endemic societal law and customs; rather, he just warns against the ease with which jurists can use that philosophy to twist the legal practice to their desires.
Mensah takes a more direct stance, advocating for the incorporation of “native” practices into colonial legal procedures, writing that “it is always safer and better for the court, after the parties have stated the native laws or customs they rely upon, to seek the assistance of others who may be versed in the native laws and customs.” Unlike Maine, Mensah posits that native societies share little in common with British or European law, but are analogous to each other (citing, for instance, matrilineal succession in both Indian and West African cultures) and should be dealt with as such from a colonial perspective.
Lugard states that the legal actions of colonial powers and native societies should remain separate; the colonizing forces administering parliamentary law to the regions under their control, while “the native courts administer native law.” He also argues that imperial forces must oversee the functions of “the native courts” as to prevent unjust or contradictory rulings.
All three of the authors seem to fall on a continuum regarding the issue of how the English colonizers should deal with the existing laws and customs of the native peoples. Lugard is the far end with the view of supreme domination of English law and the complete eradication of law that was currently being practiced in these territories. He continually points out what he believes to be drastic differences between these two types of law and distances his colonizing country’s practices from the native’s by continually giving them labels like “primative”, that serve to demean the native culture and up that of the English. He also states that any combining of English law and native law will only cause confusion and slow the process of justice. Main’s view lies more in the middle of the continuum. He still believes in the superiority of English law, but he does not believe that native law is completely without merit. He notes some similarities as to the values and motivations of both types of law. Ultimately though, he agrees that they cannot co-exist in a society, and if one is to survive, it must be English law. Sarbah falls on the complete opposite side of the continuum that the other two authors. He does not believe that colonizing Europeans should not impose their own law on the natives because the two systems of law may be so different that it would be almost impossible for the natives to implement English law. He states that lasting change in the colony must be enacted through the existing culture and way of life.
For Maine, Comparative Jurisprudence is present in the colonies in order to improve the laws on the book and “facilitate legislation,” but Maine does not agree with the dominant theory. This theory that the colonized country should follow the customs and conditions of the more powerful country, but he does not agree with this. Maine is very judgemental of the concept that comes with colonisation, but at the same time, it dissolves customs and customary law in India. I think Maine made this suggestion because he noted how important Indian customs were, but also how English customs doesn’t supercede the customs and experiences of those from India. Sarbah speaks of the Fanti tribes customs and rules in addition to the rule and jurisdiction of the English along the Gold Coast. He makes it a point to call the English “the alien would-be-reformer”, which makes his opinions pretty clear, especially compared to other places. He believes that the law should not counteract and overreach over existing laws because the reforms that would take place do not fix anything. Sarbah uses his own experiences from the Gold Coast to make these just suppositions, which provide an informed understanding. Lugard states that the law should recognize civil law until it conflicts natural law. Lugard thinks that the colonising law has the power to keep touch with natives and prevent them from doing things detrimental to the natural order, and this seems to be founded in a set of views that colonisers are the more powerful group, so it is their duty to make sure that the “native” laws are not peverting the course of justice.