Academic journal article Nineteenth-Century Prose

Exporting Time Immemorial: Writing Land Law Reform in India and Ireland

Academic journal article Nineteenth-Century Prose

Exporting Time Immemorial: Writing Land Law Reform in India and Ireland

Article excerpt

In this article I trace out a new attention to native custom manifested in writing on both Indian and Irish land law in the 1860s and 1870s. During this time, land reformers treat India and Ireland as occupying a stage of legal development prior to Victorian English law, one in which native custom regulates the distribution of land better than could modern legislation from one clearly defined center of authority. While the idea of colonized zones as constituting earlier stages of civilization was hardly a new one, I argue that this legal trend, in effect, exported to the colonies the legitimizing power of time immemorial, from which England saw its own constitution and common law emerging. By calling attention to the power of immemorial custom in India and Ireland, England styles itself as the civilization whose superior progress can be measured by contrast with the primitive cultures over which it ruled. Yet England's own identity as a nation shaped by history beyond the reach of memory complicates this position of superiority, making the difference between England and its subordinate zones less apparent

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The 1857 Sepoy Rebellion in India, along with the insurgencies plotted by the Irish Fenian Brotherhood in the decade that followed, mark moments of native resistance that permanently altered the fabric of British rule on non-British soil. Administrators responded to both conflicts by insisting that native custom and native habit must be incorporated into Indian and Irish policy. The changes that followed interpreted Indian and Irish violence as caused by a British failure to apprehend the unique logic that held each population together, and held them to the land. In this article I trace out this new attention to native habit, as it plays out in writing on both Indian and Irish land law. Land reforms of the 1860s and 1870s treat India and Ireland as occupying a stage of legal development prior to Victorian English law, one in which native custom regulates the distribution of land better than could modern legislation from one clearly defined center of authority. While the idea of colonized zones as constituting earlier stages of civilization was hardly a new one, I argue that this legal trend, in effect, exported to the colonies the legitimizing power of time immemorial, from which England saw its own constitution and common law emerging. By calling attention to the power of immemorial custom in India and Ireland, England styles itself as the civilization whose superior progress can be measured by contrast with the primitive cultures over which it ruled. Yet England's own identity as a nation shaped by history beyond the reach of memory complicates this position of superiority, making the difference between England and its subordinate zones less apparent. (1)

Henry Sumner Maine might be seen as the intellectual father of this new way of thinking about attachment to land outside of England. His works of jurisprudence detailed a scheme of the evolution of all law from status to contract, unfolding at different rates around the globe. Maine's theories created the intellectual environment in which new land reforms were devised, influencing George Campbell, the Indian administrator turned champion of Irish traditional law; Isaac Butt, father of the Irish home rule movement; and even William Gladstone, Prime Minister of England. In arguing for a universal tendency to progress from communal custom to clearly and consciously legislated law, Maine celebrated England's superiority as a culture of written law, boasting that it comprised "the most copious system of express rules known to the world" (Village Communities 75). But written law's triumph in England emerges as something other than a clear-cut rule of conscious authority. Rather, in Maine's writing, and the writing of reformers who follow him, written law is imagined neither to clearly separate English law from the more primordial law of India and Ireland, nor does it work very well to accurately preserve the past. …

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