Abstract
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Along with the railways, the rule of law is often cited as one of the ‘gifts’ that the British Empire bestowed upon India. However, the legal system inherited from the British Raj is far from an unmixed blessing. If there is a ‘rule of law’ in twenty-first century India, it is a rule by attrition and frustration. In Law and the Economy in Colonial India, Tirthankar Roy and Anand Swamy set out to evaluate whether the colonial legacy can be held responsible for the notoriously cumbersome legal system that entangles commercial flows in the subcontinent today.
The scholarship here is situated within the field of New Institutional Economics, which has engaged substantively with the long-run economic impacts of colonialism and colonial legal systems in particular. Roy and Swamy, quite rightly, find the influential dichotomies of settler versus extractive colonialism or civil versus common law to be overly simplistic in explaining the Indian case. Instead, they argue that the colonial legal system incorporated all of these different characteristics and as importantly, it evolved over time and in reaction to political exigencies. The book persuasively demonstrates how a contingent and scattershot process of legislation produced overlapping legal codes that impeded rather than fostered economic growth.
Moreover, while much of the literature in New Institutional Economics presumes that legislation operates as unproblematic ‘rules of the game’, the authors pay close attention to the actual enforcement of laws, their contestation within the courts and the procedural issues that shape law’s impact on economic activity. Throughout the book, the authors mine case law as both an indication of the effectiveness of legislation, and as a source of judicial rule-making that shaped economic activity. This methodological innovation is unquestionably an important and necessary intervention in the literature.
The substantive chapters of Law and the Economy in Colonial India begin with a framing chapter that maps the arc of legislation across the colonial period. Unfortunately, this beginning is rather problematic. In the discussion of pre-colonial legal systems, the authors seem to uncritically repeat the analysis of colonial authors concerning the inefficacy of religious law (they also misleadingly gloss Islamic fiqh as ‘canon law’). This uncritical adoption of colonial arguments frustratingly extends across the book, even to the extent that colonial inconsistencies in transliteration are repeated (the term Sadar Diwani Adalat is spelled in at least six different ways in the authors’ own prose). While this does not undercut the main thrust of the argument, it was jarring and highlights the book’s lack of engagement with the substantial legal historiography of colonial India.
The following two chapters concern the notoriously thorny question of landed property rights. Here, the book provides a schematic account of the myriad different forms of land tenure that emerge across colonial India and their equally multifarious impacts on different regions and groups. Most interestingly in the fourth chapter on ‘Landed Property and Credit’, the authors provide a colonial history of benami transactions (where one person engages in a transaction but in another’s name), which have been so widely discussed in the recent process of demonetisation. The authors persuasively illustrate how convoluted this legal structure was and the wide ambit of everyday circumventions.
The fifth and sixth chapters explore aspects of economic law that impinge most directly on sociocultural issues. ‘Succession of Property’ delves into religious personal laws, focused mostly on the family as a legal entity that develops to jointly own property. The chapter evaluates the challenges that emerge in both managing joint family firms and determining claims on inheritance. The authors convey the complicated dynamics of legal knowledge where state-employed scholars of religious law have vested interests in a particular interpretation of the law. The sixth chapter details legislation on labour, and its mostly ineffective role in regulating factories and agricultural labour. Both chapters importantly touch on the problem of gender and the ways that colonial law often functioned to enforce and even expand patriarchal norms.
The next two chapters examine legislation on contract. They demonstrate first, the lack of unified contract law until the so-called ‘Blue Mutiny’, where conflicts over the cultivation of indigo lead to economic crisis and eventually violent rebellion. Roy and Swamy argue that this was the main impetus to the Indian Contract Act of 1872, but that it was under-utilised and its effects were ultimately minimal. Subsequently, legislation appeared largely in the wake of and adapted from English law. Thus, the authors compellingly argue that one of the key institutions in the colonial economy, the managing agency, never obtains a clearly defined status in law. This is perhaps the most blatant instance in which colonial rule impeded the development of useful legal structures.
The most innovative part of the book is the penultimate and final substantive chapter that examines the development of procedural law. Roy and Swamy provide quantitative analyses of the frequency of legislation and the backlog of cases awaiting adjudication. They intriguingly show how the production of codes of procedure, far from clarifying the law, created new possibilities for litigation and ‘increased the disputatious propensity of the population’ (p. 163). These procedural aspects of the law are surprisingly absent from the literature in both economic and legal history and thus the analysis here is a very valuable contribution.
Law and the Economy in Colonial India is consequently an important intervention in the literature on New Institutional Economics. By paying close attention to the operation of the law, its everyday subversions and blockages, the authors bring vital nuance and complexity to the existing literature. The work may have less relevance to social and legal historians for whom much of this contingency and complexity is already well established in the scholarship. Nevertheless, the book provides a concise overview of the tortuous development of colonial law and its multifarious and muddled impacts on the colonial economy. Colonial law was gifted to India as the framework for a modern economy, but this book compellingly shows that it would have been advisable to look this particular gift horse in the mouth.