Writing in the Postcolonial: Postcolonial Legal Scholarship

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8. Barbarous, ill-explained Law.

Authority, the basis of the constitution, thus the ultimate source of Parliament’s right to legislate, and of the validity of the common law seems, then, to be something painfully negotiated – and it is clear, for example from Wilson’s discussion of Addison’s attacks on ‘effeminacy’ on the one hand, and from the continuing activities of women in maintaining the politeness on which civilization seemed to depend on the other, that there was no consensus or homogeneity. The people were there in the authority-making business, as we know from the writings of EP Thompson76, however vaguely for the theorists, and however increasing the attacks made upon their customary rights77.

Blackstone, in his lectures for young gentlemen attending Oxford, writes of Parliament’s ‘being the place where that absolute despotic power which must in all governments reside somewhere is entrusted by the constitution of these kingdoms’,78 and of municipal law as a rule prescribed by the supreme power79.
Compared with the situation ‘in all tyrannous governments’, however, the liberty of the subject is not threatened by this ‘despotic power’, however, since the King as executive must confront the tripartite legislature of King, Lords and Commons, for his will to be translated into law80. When Blackstone addresses the Lockean question, ‘whether there still remains in the people a supreme power to remove or alter the legislative when they find the legislative act contrary to the trust reposed in them ...’81, like Hume he takes what clearly seems to him a prudentially conservative path. Such an act of removal, Blackstone says, would retroactively as well as proactively abolishes all laws, ‘annihilating the sovereign power’ and compelling people to begin again on a new foundation. In practice, revolutions are not generally taken to have this effect. But in a sense, of course, exactly what Hume and the figures whom Porter and Brewer discuss are doing, is beginning again on a fresh foundation, frightened into what Hume recognizes to be a discontinuity with the Stuart constitution and the discontents it provoked, into conversation, understanding, away from zealotry and the search for foundations based on reason, a new sentiment that will bring peace and order, protect property and enhance commerce. Hume, as we have seen, wants for prudential reasons to go further and begin again on the constructed foundation of absolute monarchy. In this context, Blackstone’s concluding remarks on the subject, ‘so long, therefore, as the English constitution lasts, we may venture to affirm that the power of parliament is absolute and without control’, means rather less than it says. The absolute power of parliament rests on the constitution, and the continuing existence of the constitution rests in turn on the construction of polite society in the manner discussed above.
This is certainly Burke’s position. Long before his dismissal of the French assembly as nothing but provincial lawyers engaged in the doomed fantasy of constructing government from rational first principles82, he distinguished the ‘grandeur’ of law from the expositions given by its technicians, which he considered ‘narrow, contracted notions’:
‘They (i.e. lawyers) presented jurisprudence ‘in barbarous terms, ill-explained, a coarse but not a plain expression, an ill-digested method, a species of reasoning the very refuse of the schools’83.
Like Blackstone, who had hoped that his Vinerian lectures might inspire a broad liberal education, Burke believed that the lawyers of his own time were not the people best equipped to understand its socially contexted nature, what it rested on, and what depended upon it. In an early essay, Burke points to lawyers’ misapprehensions about the common law’s uniqueness – whereas, he remarks, its borrowings from Roman and other foreign jurisdictions are obvious – and the ‘persuasion hardly to be eradicated from (their) minds that English law has continued in the same form from antiquity’84. Far from having no beginning, another lawyer’s conceit - in Burke’s view, designed to obtain for it a reverence that would be better earned through liberal learning - the evidence of its conception and evolution is for him manifest. As a Whig, Burke ‘argued that the laws were the product of the people’s insistence that their liberties be protected from the arbitrary power of the king’85. Moreover, the common law ‘is compounded, altered, and variously modified according to the various necessities which the manners, the religion and the commerce of the people have at different times86.
Consistently with this view of law as continually produced by and continually maintaining the manners, religion and commerce as they change over time, Burke was eventually brought to support the cause of the 13 colonies:
‘Public troubles have often called upon this country to look to its constitution. It has ever been bettered by such revision. If our happy and luxuriant increase of dominion and our diffused population have outgrown the limits of a constitution made for a contracted object, we ought to bless God, who has furnished us with the noble occasion for displaying our skill and beneficence in enlarging rational happiness and of the making of the political generosity of this kingdom as extensive as its fortune’87.
Equally, he objected to India’s being governed by ‘a state in the guise of a merchant’ – the East India Company – and to any suggested supplanting of that country’s own laws, legitimated by the customs of its own people, by English notions of law and property, based on English customs. Since such a supplanting denied the conceptual nexus between people, custom and proper law, he remarked in the Commons debates on Fox’s India Bill in 1783 that ‘every means effectual to preserve India from oppression is a guard to preserve the British constitution from its worst corruption’88.

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