Resisting the Rule of Law in Nineteenth-Century Ceylon

Colonialism and the Negotiation of Bureaucratic Boundaries

James S. Duncan

• Publisher: Routledge
• Year: 2020
• Print ISBN: 9780367515515
• eBook ISBN: 9781000089967
• Edition: 1
• Topic: Physical Sciences
• Subtopic: Geography
• Index: Geography

This book offers in-depth insights on the struggles implementing the rule of law in nineteenth century Ceylon, introduced into the colonies by the British as their "greatest gift." The book argues that resistance can be understood as a form of negotiation to lessen oppressive colonial conditions, and that the cumulative impact caused continual adjustments to the criminal justice system, weighing it down and distorting it.

The tactical use of rule of law is explored within the three bureaucracies: the police, the courts and the prisons. Policing was often "governed at a distance" due to fiscal constraints and economic priorities and the enforcement of law was often delegated to underpaid Ceylonese. Spaces of resistance opened up as Ceylon was largely left to manage its own affairs. Villagers, minor officials, as well as senior British government officials, alternately used or subverted the rule of law to achieve their own goals. In the courts, the imported system lacked political legitimacy and consequently the Ceylonese undermined it by embracing it with false cases and information, in the interests of achieving justice as they saw it. In the prisons, administrators developed numerous biopolitical techniques and medical experiments in order to punish prisoners' bodies to their absolute lawful limit. This limit was one which prison officials, prisoners, and doctors negotiated continuously over the decades.

The book argues that the struggles around rule of law can best be understood not in terms of a dualism of bureaucrats versus the public, but rather as a set of shifting alliances across permeable bureaucratic boundaries. It offers innovative perspectives, comparing the Ceylonese experiences to those of Britain and India, and where appropriate to other European colonies. This book will appeal to those interested in law, history, postcolonial studies, cultural studies, cultural and political geography.

Part I

Introduction

1 Introduction

This book is about struggles over the implementation of rule of law during the second half of the nineteenth century in Ceylon, a British Crown colony willing to spend only very limited resources on the criminal justice system and a subject people who, while not openly rebelling against that system, systematically undermined it by appropriating it for their own purposes. The rule of law was introduced into the colonies by the British as their “greatest gift” and the reformed English criminal justice system was an important justification for their rule. Charles Hay Cameron wrote with reference to Ceylon,

among all the duties incumbent on the British rulers in the east, it is impossible to name one more imperative than that of providing for the effectual decision by public authority of the disputes arising among the poorer classes … and it is a benefit which none but an European government can confer.¹

The criminal justice system was part of a larger bureaucratic administrative structure whose role was not only to secure the spread of British capitalism, but to establish firmer control over local populations and ultimately to inculcate British bourgeois beliefs about individualism, personal discipline, time management and a “proper” work ethic.² As Scott says, “the utopian, immanent, and continually frustrated goal of the modern state is to reduce the chaotic, disorderly, constantly changing social reality beneath it to something more closely resembling the administrative grid of its observations.”³

These bureaucratic goals, as Dwyer and Nettlebeck point out, were intended to supplement force with “an adaptable system of colonial practices that maintained the fundamental imbalance of power structuring colonial relations” and promote the development of capitalism.⁴ In Ceylon, as in the colonies, where there was thought to be little respect for British institutions, an authoritarian administration of English law was considered necessary for security.⁵ Security according to Foucault included a wide range of mechanisms, such as reports, commissions, regulations, surveillance strategies, penal techniques, statistical surveys of populations and partitioning of territory, all of which were deployed in Ceylon.⁶ However, due to fiscal constraints and economic priorities, much of rural Ceylon was left to manage its own affairs. Given the small number of British officials on the island, the enforcement of law was delegated to underpaid Ceylonese who had no real stake in the system they were to administer. This lack of a strong British presence in Ceylon opened up physical as well as metaphorical spaces for resistance. As a consequence there were many “zones of darkness” and an uneven topography of law and defiance. Villagers, minor officials, as well as senior British officials, alternatively used or subverted rule of law to achieve their own goals.

1 Report upon the Judicial Establishments and Procedures in Ceylon, 31 January, 1832. Parliamentary Papers, 1831/32, XXXVII, 274, p. 65.

2 Yang, A.A. 1987. “Disciplining ‘natives’: prisons and prisoners in early nineteenth century India.” South Asia, Vol. 10, No. 2, p. 30; Freitag, S.B. 1985. “Collective crime and authority in north India,” in Yang, A.A. (ed.), Crime and Criminality in British India. Tucson: University of Arizona, p. 141; Comaroff, J. and J. Comaroff. 1991. Of Revelation and Revolution: Christianity, Colonialism and Consciousness. Chicago: University of Chicago Press; Engel, D.M. 2015. “Rights as wrongs: legality and sacrality in Thailand.” Asian Studies Review, Vol. 39, No. 1, pp. 38–52.

3 Scott, J.C. 1998. Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed. New Haven: Yale University Press, p. 82.

4 Dwyer, P. and A. Nettelbeck. 2018. “‘Savage wars of peace’: violence, colonialism and empire in the modern world,” in Dwyer, P. and A. Nettelbeck (eds.), Violence, Colonialism and Empire in the Modern World. London: Palgrave Macmillan, p. 11. Hindess, B. 2001. “The liberal government of unfreedom.” Alternatives, Vol. 26, p. 99, says that the market was “seen as promoting the capacity for autonomous, self-directing activity—first, by encouraging individuals to calculate the costs and benefits of their own decisions and thereby … fostering the cultivation of prudential virtues, and secondly, by undermining the relations of dependence and subservience.”

5 Fitzpatrick, P. 2008. Law as Resistance: Modernism, Imperialism, Legalism. Aldershot: Ashgate, p. 31. Also see Stokes, E. 1959. The English Utilitarians and India. Delhi: Oxford University Press.

6 Here and elsewhere in this book I use the term population in the Foucauldian sense of an entity with quantifiable characteristics such as rates of crime, sickness, death, cultural and racial difference. On laissez faire as a strategy of governance see Foucault, M. 2007. Security, Territory, Population: Lectures at the College de France, 1977–78. Edited by M. Senellart. New York: Palgrave Macmillan.

The English criminal justice system has been described as the “cutting edge of colonialism.”⁷ It was an attempted inculcation of utilitarian moral principles and liberal economic values,⁸ for as Garland put it, this constellation of ideas not only formed the taken-for-granted basis of Victorian British common sense, it was “commonly taken for universal logic and reason itself.”⁹ The idea of rule of law, along with the market itself, were seen by the British as the foundation of the colonial civilising mission.¹⁰

7 Chanock, M. 1985. Law, Custom and the Social Order: The Colonial Experience in Malawi and Zambia. Portsmouth: Heinemann, p. 4.

8 See Ambirajan, S. 2008. Classical Political Economy and British Policy in India. Cambridge: Cambridge University Press; Mehta, U. 1999. Liberalism, and Empire: A Study in Nineteenth-Century British Liberal Thought. Chicago: University of Chicago Press.

9 Garland, D. 1985. Punishment and Welfare: A History of Penal Strategies. Aldershot: Gower, pp. 41–42.

10 David Nally makes the point that “the law and the market were preferred by liberals because they deploy force without being coercive.” Personal communication. Hindess, “The liberal government of unfreedom,” argues that liberal political reason endorses paternalistic, authoritarian government when subject populations are seen as not yet ready for self-direction—the ultimate goal being limited government and individual liberty. A self-regulating market and rule of law with the police function limited to peace-keeping and the protection of property were both seen as instrumental to achieving non-coercive rule. As I have found in Ceylon, non-coercive colonial rule was not only an ideological ideal, but was financially expedient, as British colonies were expected to be self-funded. Consequently, maintaining a system of direct state intervention throughout the island would have been considered too expensive.

This loosely amalgamated body of ideas was no mere disembodied discourse of course; it was materialised and given power in the day-to-day workings of colonial bureaucracies. The three bureaucracies in Ceylon that concern us here are the police, the courts and the prisons. My study is an example of the “every day state” as it was encountered at the local level. I show that in Ceylon there was no clear dichotomy between the state and those oppressed by it.¹¹ The social and spatial boundaries were always permeable and subject to negotiation by various parties despite their highly unequal positions within the colonial power structure. I have not written a history of these bureaucracies, for histories of the first two, at least, already exist.¹² Rather I have explored the tactics the Ceylonese, both inside and outside these bureaucracies, employed to resist bureaucratic goals and the punitive biopolitical and space-time surveillance strategies senior colonial government officials employed to counter subaltern resistance.¹³ In this regard, my study is indebted to Rogers’ fine monograph on the impact of social change on crime and the government’s response to it in nineteenth-century Ceylon.¹⁴ The present study extends Rogers’ analysis to include the colony’s prison system and expands upon his work by focusing more squarely on how resistance to rule of law helped shape the criminal justice system in Ceylon.¹⁵ It should be noted, however, that during the nineteenth century this shaping brought only incremental change, for the Ceylonese had little power to overturn the conditions of disparity and exploitation which the rule of law presupposed and supported.¹⁶ As I hope to show, resistance in the case of nineteenth-century Ceylon can at best be understood as a form of “negotiation” to lessen oppressive conditions by resetting bureaucratic norms, in the sense of lowering British expectations.¹⁷ Here I follow Uday Chandra who reminds his readers of the “Latin root of resistance re + sistere, literally enduring or withstanding, to re-orient the older emphasis on opposition or negation towards a logic of negotiation.” He employs the idea of resistance in a “narrower but arguably more robust sense of the term” which entails apprehending “the conditions of one’s subordination, to endure or withstand those conditions in everyday life, and to act with sufficient intention and purpose to negotiate power relations from below in order to rework them in a more favourable or emancipatory direction.”¹⁸

11 On the everyday state see Fuller, C.J. and V. Benei. 2001. The Everyday State and Society in Modern India. London: Hurst & Co Ltd.

12 Pippet, G.K. 1938. A History of the Ceylon Police, Volume 1, 1795–1870. Colombo: The Times of Ceylon; Dep, A.C. 1969. A History of the Ceylon Police, Volume 2, 1866–1913. Colombo: Police Amenities Fund; Nanaraja, T. 1972. The Legal System of Ceylon in its Historical Setting. Leiden: E.J. Brill.

13 This volume is intended to be a companion to my earlier monograph Duncan, J.S. 2016. In the Shadows of the Tropics: Climate Race and Biopower in Nineteenth Century Ceylon. London: Routledge, where I explore the themes of domination and resistance on the coffee plantations of nineteenth-century Ceylon. The concepts of biopower and biopolitics are drawn from Foucault and others. Foucault introduces these ideas in his History of Sexuality and later in his lectures at the College de France (see Foucault, Security, Territory, Population). Foucault defines biopolitics as the “calculated management of life,” the expert administration of collective bodies ...

Table of contents

• Cover
• Half Title
• Seris Page
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• List of figures
• List of tables
• Acknowledgements
• Glossary of terms
• PART I: Introduction
• PART II: The police and the arts of subterfuge
• PART III: The courts and the arts of dissembling
• PART IV: The prison and the arts of dark biopower
• Bibliography
• Index