Karuna Mantena: Alibis of Empire: Henry Maine and the End of Liberal Imperialism. Princeton: Princeton University Press, 2010.
Shaken by the 1857 Sepoy Mutiny, the British Parliament abolished the East India Company and transferred rule of India to the Crown. This and similar uprisings induced British imperialists to abandon liberal-utilitarian reformism and to replace it with rule animated by a conservative form of historicism. Undertaking to govern the empire indirectly by managing local customs, the British held fast to their goal of modernizing ‘traditional’ socieites, but now proceeded much more slowly and cautiously—eventually undermining their own claims to rule. “The era of [the British Empire’s] greatest geographic expansion—the period between 1857 and 1914—directly coincided with a phase of liberal retrenchment and the repudiation of central assumptions and imperatives underlying the ‘civilizing mission'” (1).
After serving six years as Law Member in the Viceroy’s Council, Henry Sumner Maine provided the intellectual foundation for indirect rule, and along the way pioneered the disciplines of sociology and anthropology in the English-speaking world. In the United States, Maine is best known for his 1885 book, Popular Government, in which he praises the United States Constitution as (so far) effective measure of prudence moderating a regime founded upon popular sovereignty and criticizes the First Republic of France as lacking such a carefully-designed set of governing institutions. He warns that the combination of ill-designed regimes incorporating a degree of popular sovereignty with a “passion for national dignity” issuing in imperialism (exemplified by the German Empire and the Italian Kingdom) may lead to a valorizing of “military virtue” that will destroy popular sovereignty (as the civil virtue of popular self-government and the military virtue of obedience conflict). Further, one people’s identification of national dignity with imperial rule may well provoke an equally nationalistic passion in the hearts of the peoples they rule, again introducing a destabilizing tension into the regime.
That “sound aristocrat,” “History,” denies that “the multitudes” possess the knowledge required “to be capable of understanding their interest.” Athenian ‘democracy’ contributed to Western civilization because it was really an aristocracy; similarly, modern popular governments will succeed only insofar as they adhere to such quasi-aristocratic institutions as representative government, separation and balance of powers (including an independent judicial system), confidential deliberation in the executive cabinet, and other “securities against surprise or haste.” The democratic “passion for change” or “change for its own sake” endangers popular regimes. Given the power of the people, the state controlled by such a regime will incline toward excessive power, harnessing the techno-scientific conquest of nature to provide popular demands, inflaming appetites at the expense of reasoned self-government. But ‘progress’ is anything but natural; human nature, unchanging or repetitive/cyclical insofar as it exhibits change, cannot flourish under a regime of scientism spurred by popular passion. The scientistic aristocracy of the administrative state lacks the prudence of the older aristocracies. Unlikely to succeed in governing, even if it did it would not likely rule with benevolence.
Mantena’s study of Maine’s theory of imperialism shows these principles applied to the problem of ruling foreign peoples. “Maine’s seminal contribution to imperial policy debates stemmed from his evocative account of the unique dynamics of primitive, ancient societies, of which India was a prime example” (3). To rule such societies required, paradoxically, stepping back from strictly political considerations and to respect the ways in which “native society” must be understood as “apolitical,” a structure “held together by stable bonds of custom and structures of kinship” (3). To put it in Aristotelian terms, these societies were pre-political or tribal; they had not achieved the way of life of the polis. For this reason it was not only pointless but dangerous to attempt to push modern liberal politics upon them, as the native peoples would surely push back, as they had done in the Mutiny. Native religious beliefs, animating kinship relations and tribal life generally, must be understood and respected. “The native was thought to be best ruled through his/her own institutions and structures of authority” (5), that is, by indirect rule, “protect[ing] native society from the traumatic impact of modernity” (7). This new strategy did not imply an abandonment of the intention of the “universalism”—the eventual liberalization of ruled societies—but instead a more careful and (as Maine would say) prudent approach toward that purpose.
A tension immediately developed between universalism and “culturalism,” a strain of thought seen at least as far back as Montesquieu, and continued in various ways by Diderot, Kant, Herder, and some of the Scottish historians (13). Culturalism tended toward historical determinism and away from the very prudential, political rule that leaves room for human “agency” (14-15). Political science loses much of its authority to sociology and anthropology; given the fact that ’empire’ means ‘rule,’ this bodes ill for imperialism because it erodes the self-confidence and self-knowledge of imperialists. But it is likely that Maine understood himself as following not in the line of some determinism but along the way opened by Edmund Burke in his famous speech occasioned by the impeachment trial of India’s first British Governor-General, Warren Hastings, which Mantena calls “the founding political drama of British India” (22), not an instance of historical fatality but “a verdict on the moral basis of future empire in India” (23).
Burke regarded political foundings very much as Machiavelli had done: bloody affairs of “violence, conquest, and usurpation” (23). What redeemed them was what the conquerors did thereafter “to secure stable and lawful governance” (23). In British India, this meant institutional checks on the East India Company, subjecting its rule to Parliamentary oversight aimed at securing the trust and consent of the ruled and aiming at the good of the ruled. Crucially, such rule must respect the traditions of the Indians and not aim at replacing them wholesale with British practices because a people “cannot change their maxims, lives, and opinions” (Burke, quoted p. 24). This is precisely the argument Burke made against the French revolutionaries, who also sought to wipe out centuries of custom in the name of Enlightenment. Such efforts tyrannize more than they reform.
Hastings had classified the many Indian political societies as specimens of “Oriental despotism” (25). On the contrary, Burke “articulated a reverent image of the ancient laws, customs, and institutions of India,” which registered its unique geography, society, and politics (25). Victorious conquerors shouldn’t preen themselves on their military prowess, which hardly reflects superiority to the conquered people ‘across the board.’ The longstanding character of Indian civilization bespoke time-tested qualities which should “evoke a humility and appreciation” for them in the souls of the new rulers.
‘Enlightenment’ intellectuals struck back in the next generation, whose utilitarians had little patience with Burkean traditionalism. James Mill, who worked for the East India Company from 1819 to 1836, wrote a book-length critique of “every claim made on behalf of the achievements of Indian arts, science, philosophy, and government” (26). Measured by the standard of utility, India lagged behind on the march of “social progress” (26); Indians exhibited the traits of indolence, mendacity, and superstition characteristic of peoples long ruled by “political despotism and religious tyranny” (27). It was Great Britain’s imperial responsibility to push them forward. The “infinite malleability of human nature” made this project possible (30).
Evangelical Christian writers also demurred. For Charles Grant, Hinduism was a form of paganism, “despotic in character, maintained by a crafty priestly class,” desperately in need not of the light of the Enlighteners but the light of the Gospel (28). It is “our duty” as Christians “to impart to them knowledge, light, and happiness,” not to “wink at the stupidity which we deem profitable to us” (Grant, quoted p. 28). In the long run, such greed is short-sighted even in its own blinkered terms: trade with civilized men is more profitable than governing savages.
No evangelical Christian, John Stuart Mill also (and famously) opposed the narrowly ‘economistic’ utilitarianism of his father and his father’s colleague, Jeremy Bentham, for a broader form of that doctrine, one that made room for a more capacious understanding of human happiness. Unlike them, he emphasized “the importance of government as one of the great instruments of forming national character” (31). With Burke, he understood that “liberty was not an unqualified benefit in all times and for all peoples,” that prudent political rule must perceive and adjust for the customs and habits of the people ruled (32). Neither the “savage” customs and habits of a people who refuse to obey any commands nor the hidebound customs and habits of those who cannot think for themselves will conduce to ready development toward self-government. Over such peoples, only what Mill called a regime of “vigorous despotism” would do, one aiming at civilizing the subject people in the literal sense of that word: making the civil, amenable to being ruled and to sharing in rule (33). The human capacity for self-government is universal in the sense that it is a natural potential of all peoples—Mill firmly rejected the naturalist racism of Thomas Carlyle—but its actual implementation is not universal. Bridging that gulf is very hard to do, as the several colonial revolts against British imperial rule during Mill’s lifetime so violently illustrated. This debate intensified because it became entwined with the simultaneous British regime debate over democratic republicanism, seen in the controversies surrounding the three major reform acts of the nineteenth century, which gradually widened the franchise to include all classes of Englishmen.
James Fitzjames Stephens spearhead the reaction against Mill’s liberal imperialism, and indeed against liberalism generally. Stephens scored liberalism as too ‘soft’ to rule India effectively; liberals only invited revolt. “Unapologetic authoritarian rule in the colonies” was necessary to maintain the basic conditions of “law and order” needed to prevent social and political chaos. He differed from Mill primarily in insisting that such rule must be permanent, justified by English “virtue, honor, and superiority” over the Indians (41). “Stephen sought to undermine the normative appeal of the goal of self-government more generally. Through the claim that self-government was unfit for India, Stephen hoped to expose its limitations for England as well.” (42) He denied the existence of fundamental human progress, not simply on the basis of natural right but on a Hobbesian form of natural right: Man is “at heart selfish and unruly and therefore needed to be continuously compelled to live peaceably and morally in society” (42). The more Britain democratized socially, the more such absolute rule would be needed. Absolute rule was not despotism or tyranny because it aimed at the good of the people ruled. But that ‘good’ scarcely allowed them to attempt to govern themselves, a task for which few people can be fitted.
Maine shared much of Stephens’s skepticism about liberal hopes for popular self-government although, as his argument in Popular Government shows, he was not an unqualified ‘absolutist,’ either. He came down somewhere between Mill and Stephens. Nonetheless, “in rendering the moral grounds of empire in more ambivalent terms,” critics of liberalism caused liberalism to lose “a straightforward purpose or substantive agenda” (46), as indeed the Liberal Party itself headed for decline and eventual dissolution. Despite Mill’s best efforts, the sense of the political was never fully established in English liberalism, as the more sociological and anthropological approaches to understanding foreign societies prevailed. One is tempted to suggest that the very democratization esteemed by liberals gave the critics of liberalism an opening for ‘cultural’ arguments intended to show that political republicanism abroad and even at home were unsound, dangerous, illusory. In his seminal study, Ancient Law and Village-Communities in the East and West, Maine criticized the ‘abstract’ modes of liberal thought, insisting that India and other non-modernized colonies could only be governed if rulers understood “the unique logic of primitive society” as seen in its “ancient usage and ancient juridical thought” (51). The encounters of such societies with modernity would dissolve them, promising not improved rule but anarchy, no-rule. This brought Maine to formulate his strategy of “indirect rule” over the colonies.
Mantena carefully distinguishes the new, social-cultural approach to understanding human communities from modern social-contract and classical regime theory. The “idea-typical model of traditional society [was] a central innovation of nineteenth-century social theory” (56). True, both the social-contract philosophers and the regime-centered political philosophers of antiquity clearly distinguished between philosophy and convention. But between them and thinkers like Maine and Emile Durkheim stood Hegel and historicism, of which the early sociologists and anthropologists stand as inheritors, but on the ‘Right’ wing of the family. “Traditional society” as conceived by Maine is “apolitical, dominated by nonrational—customary and kin-based—norms of politics and economics” (58). Such non-rational and apolitical customs and ties decisively influence political forms, not the other way around; in this claim Maine departs from the claims of Aristotle and Hobbes, Locke and Montesquieu would have agreed, who regarded political regimes and state forms as decisive influences on customs and kinship ties. Nor is Maine a Hegelian in the sense of positing a set of dialectical laws of historical progress. Mantena rather points to the reaction against the excesses of the French Revolution seen in the writings of Benjamin Constant, Numa Denis Fustel de Coulanges, Barthold Georg Niebuhr, and others who distinguished between the traditionalism of ancient societies and the rationalist/contractualist theories of the moderns. Niebuhr identifies the several social structures in ancient societies, as Aristotle had done, but claims that “the ancient state” or polis had no territorial boundaries. (This is implausible, given the importance of (for example) border walls in ancient Athens and elsewhere; Niebuhr unduly downplays the political).
Niebuhr’s scholarship notwithstanding, his argument does anticipate Maine’s critique of the individualism seen in much of modern social contract theory and his insistence on the patriarchal family and status-based kinship ties as the keys to understanding the ancients. Maine regards this observation as no less scientific than Hegel regards his dialectical laws of ‘History,’ but Maine’s historicism (if one wishes to call it that) does not assume the existence of inevitable progress toward the modern state and an eventual World State. Traditional societies have a ‘logic,’ to be sure, a discernible order, but that logic is not the logic of ‘high-modern’ political philosophy. Nonetheless, in this respect like the Hegelian historicists, Maine denies that this logic was discernible by the ancients themselves, including the philosophers of classical antiquity. Therefore, the ancient philosophers who praised prudent, statesmanlike consideration of regime types, and even Montesquieu, the “founder of modern social science,” had failed to understand the narrow limits in which political deliberation and action operate. As a “historical animal,” man’s “political will” doesn’t amount to all that much. Societies have “an internal coherence and logic that [is] prior to and independent of politics” (72). ‘The social’ “mark[s] the limits of politics” (73), and is exceedingly hard if not impossible to change by means of political reform, including regime change. In antiquity, public law seldom penetrated into the family, which was “imperium in imperio“; its “closest modern analogy” is international law (77).
This is not to suggest that Maine regarded kinship societies as natural. On the contrary, kinship ties was highly artificial, as the practice of adopting adult members of other families had a ‘political’ motivation and obviously nothing to do with natural birth-relations. Adoption and intermarriage enabled patriarchal families to expand, eventually developing into tribes and gentes. It is not clear, however, that Aristotle’s description of how families eventually link together to form tribes, gentes, and eventually poleis really differs from this account, except that Maine understands the ancient family as more or less patriarchic/despotic, whereas Aristotle’s view is considerably more nuanced. Aristotle would regard Maine’s account as applicable rather to the ‘Cyclopean’ families of barbarians, including Greek families of what was ‘antiquity’ in his own day. At any rate, for Maine as distinguished from many historicists, there was no impulsion, dialectical or otherwise, for such traditional societies to evolve into anything else, even a polis. “In contrast to [the] perfectionist and progressive notion of culture, the modern anthropological concept of culture stressed the historicity, plurality, integrative capacity and relativity of cultures understood as bounded wholes, one that saw culture as a determinative shaper of human behavior” (85). If there is a human nature at all, it is seen in an “inherent psychological resistance to change and innovation” (86).
What, then, should imperial rulers do with the British Empire? Although Maine did not expect India to modernize anytime soon, he did recognize that its traditional way of life was disintegrating in contact with modernizers. In his time as Law Member in the British government in India and in his work thereafter he did not suppose that English-all-too-English common law would bear transplantation to the subcontinent—that one tradition could replace another. (For one thing, judge-made law will not survive where there are few or no judges to formulate it.) Instead of England’s unwritten, judge-made common law, he advocated an entirely new, codified system of law, the Indian Penal Code. At the same time, he saw that treating India as a “blank slate for speculate legislative experimentation was a recipe for political disaster” (97). Taking his bearings from the writings of Karl Friedrich von Savigny, eminence of the German Historical School of jurisprudence and critics of the “pure abstract universality” of the Napoleonic Code and other ‘Enlightenment’ law codes, Maine paid attention to the existing customs of the country and proposed culling them for “wholesome and expedient” usages and practices (104). This would give the appearance that the law code was familiar, not some radical revision imposed by foreigners. Modest progress in modernization then would be achieved, first by the very act of writing these things down so that British rulers and Indian subjects could learn them, shifting Indian custom from a non-literate to a literate practice, even while seeming to maintain a strict fidelity to tradition. Second, Maine rejected the assumption that the extant Brahmin legal systems—the products of one of the most rigid aristocratic orders ever established—should provide the materials from which British jurists should select wholesome and expedient laws. On the contrary, the customs of the villages should be combed for this purpose; reaching ‘down’ to the ways of villagers this democratize, and therefore modernize, the laws governing India without causing the society to fall victim to the vices of democratization, so often associated with the lawlessness of majority tyranny. “With the disintegration of any native alternative, legal codes based on rational principles were the better option than the existing state in which English common law was arbitrarily and haphazardly introduced through judicial legislation” (112). But those rational principles were prudential/Burkean, not abstract/utilitarian or abstract/’Enlightenment.’ To this Burkean sensitivity to custom, however, he did not neglect to add a strong dose of Hobbesian state formation. Hobbes, after all, was not simply arguing abstractly, but also responding to an acute practical crisis, religious civil war in England, something not unheard-of on the Indian subcontinent. What he wanted to avoid above all, in India and in Britain was a state that combined Hobbesian absolutism with democratic restlessness, perpetual change, a “never-ending revolution in customs and manners” (117) which would destabilize and even destroy even the most beneficial imperial rule.
In addition to the rule of law, India needed to establish a system of property rights. Like Locke, whose writings he seems either not to have consulted or not to have understood, Maine holds that “property was originally held in common” but over time has become divided, resulting in “forms of individual ownership” (119, and see Locke, Essay Concerning Civil Government, V. 25-26). When Mantena asserts that “Maine’s thesis about the communal origins of rights in property (and of modern conceptions of rights in general) effectively called into question the historical and logical priority of the unitary conception of individual proprietorship” (119), that isn’t quite correct: He was really calling into question the Lockean version of modern natural rights respecting the labor theory of value. Locke emphasizes that property arises from the fact that, first, “every man has a property in his own person,” equal to that of every other man because he is of the same species as every other man; second, when a man removes something from commonly-held nature for his own use, he “hath mixed his Labour” with it, joining it to something already his own, namely, his person. If I fail to gather acorns and prepare them to be edible, the communal property that is nature is of no use to me or anyone else. What Maine asserts, based on his historical research, is that the first step in establishing conventional individually-owned property isn’t taken by an individual but by a kinship-based commune. Individual property arose only after its disentanglement from the conventional communally-owned property (127). Indian society before the British conquest exhibited this communally-owned property; the English were attempting to establish private property rights there.
Maine objects to “unmooring the law of nature from actual legal practices,” as seen in modern natural rights theory (124). But natural law should never be derived from the state of nature, as Locke, Hobbes, and Rousseau all do, even as they conceive of the state of nature in somewhat different ways. “For Maine, the important question was less why people began to appropriate things individually, but rather why appropriation or occupancy created a sentiment of respect by society” (125). Locke would answer that human beings formed the social compact because enforcement of the law of nature by individuals secured their life, liberty, and property weakly; Maine might reply by saying that human beings have existed in a social condition from time immemorial, that one would need to recur to the Garden of Eden or whatever its materialist/evolutionary equivalent would be to find human beings existing in an asocial state. In this, Maine registers his main philosophic target, who is not Locke but Rousseau, the thinker he associates with the excesses of the French Revolution. Maine “transformed a speculative/logical account of origins into a historical explanation” (126); in Locke, the law of nature is reason, but not for the historicist Maine, for whom individual rights to property originated in a transition from property conceived as based in kinship/status to property conceived as based on contract. This is especially true of landed property, which “began when larger groups of self-styled kinsmen (the tribe of gens) settled and worked the land collectively” (134); as these villages increased in size, the individual families began to stake out their own plots, on the one hand, and tribal chieftains used military power to stake out their own, vaster, landholdings, on the other. The next step was to make land alienable, inasmuch as family plots initially had been considered sacred soil where one’s family ancestors, deified after death, were buried (as per Fustel’s account). Although moveable property became salable early on, land “was often the last [type of property] to be incorporated into the law of sales” (136). For this, a modern, centralized state was a highly useful instrument for the establishment of rights to alienable property, both for individuals and for rulers in need of revenues. But this is not natural. “The idea that human beings are naturally inclined to sell goods and services at the highest possible price was not a given fact of nature but was made possible only in economic systems where the ideology of the market had taken hold,” system which replaced “the primitive community” (142). Having denied the natural-law or rule-of-reason standard of Locke, Maine can regard kinship, even the Indian caste system, as no more or less natural than contracts and markets.
Crucially, Maine found this movement toward private property to be widespread. He therefore spared no nostalgia (pace Rousseau) for man’s earlier, communal societies. As a historicist, he regarded the “movement” toward private property as “a product of processes of change that were immanent to the social formation,” a “progressive and legitimate development” (137)—immanence (whether in the form of Hegel’s Absolute Spirit or Marx’s materialist ‘iron laws of history’) being the centerpiece of the historicist understanding of reality. In terms of imperial rule, Maine drew a straightforward conclusion: Yes, Indian practices should be reformed, brought forward toward the protection of private property; but no, these practices must not be reformed too quickly, as Brits had been attempting to do. Such precipitous reform disoriented a traditional society. But at the same time, what was done was done. “We British,” Maine wrote, “should stand even by our mistakes,” which “is better than perpetual meddling” (145). Attempting somehow to reconstitute the now-disrupted social customs of kinship would only make things worse. This was true not only in India but in Ireland and elsewhere throughout the Empire. Neither ‘reaction’ nor over-hasty ‘progress’ would work, only the slow but firm guidance of indirect rule, a policy not of meddling but of muddling—of the time-honored English practice of ‘muddling through.’
Indirect rule amounted to “the insinuation of imperial power in the customary order of native society rather than through its repudiation and transformation” (150). Direct rule governed by the principles of liberalism “had set in motion a process of modernization that overwhelmed the traditional adaptability of native society,” which by the middle of the nineteenth century remained “intact” but “vulnerable” (151). Indirect rule “signaled the intellectual triumph of historicism over the tenets of classical political economy” (152) and, it might be added, over modern natural-right theories in modern universities throughout the West, as seen in the rise of Marxism and various forms of ‘progressivism’ which soon animated political parties from the United States to Russia. Although Mantena does not emphasize the point, Maine evidently understood that he was addressing the religio-political question, which had convulsed European politics would continue to do so in much of the world, including India, for the next century-and-a-half and counting. The caste system of India, which Maine was at pains to describe as not so rigid as most Westerners suppose, was infused with religiosity (157), as Indian Muslims clearly saw. Maine’s historical analysis did not commit him to moral and cultural relativism with respect to native customs, including religious customs. He was rather intent on enabling English rulers to see Indian society in its own terms, and so to “temper the arrogance of imperial power” (159), making it more prudent. Unlike Burke, that other great English advocate of prudential rule, Maine did partake in historicist assumptions leading to “reading differences in institutions as differences in stages in a unilinear trajectory” or evolution (159), although not in the grand dialectical manner of a Hegel or a Marx.
Mantena identifies Alfred C. Lyall as Maine’s “most respected intellectual successor” (165). Having joined the Indian Civil Service in 1856, the year before the Sepoy Mutiny, Lyall enjoyed a long and distinguished career, capped by his appointment to the King’s Privy Council in 1902. Lyall viewed India through a Tocquevillian lens, concerned that the introduction of modern statism would ruin the intermediate institutions and associations Tocqueville understood as necessary bulwarks against centralized despotic rule in democratized modern (and modernizing) societies. Lyall identified the Rajput tribal kingdoms as examples of such a well-articulated socio-political order, “worthy of free men,” as he put it (167). Without such institutions, despotism—whether ‘Oriental’ or Napoleonic, whether of the East or of the West—would prevail in the modern world. “Lyall was especially concerned with the cumulative impact of Western education on the transformation of religious belief,” as native students were educated out of their traditional convictions in English-style schools (168). New and more fanatical religious movements might result, threatening British rule with violent resistance. At the same time, ‘secularized’ Western-style ‘intellectuals’ (one thinks of Jawaharlal Nehru, in the next century) might well turn out to be “vocal critics” of foreign imperialists and “agitators” against their rule while at the same time having no real connection with the vast majority of their countrymen (170-171). This turned out to be somewhat true in India, where the remarkable figure of Mohandas K. Gandhi understood the problem and deliberately managed to connect what he had learned in the English university system with the traditional life of villagers, and far more and sadly true in Africa. There, British indirect rule tolerated local government not by the many or even the few but by local strongmen, establishing a system of “decentralized despotism” inclined both to rebellion against their overlords and refusal of genuine self-government of, by, and for the people in their territories (176).
Mantena criticizes indirect rule because it provided an “alibi” for imperialism by “shift[ing] the burden of imperial legitimation onto native societies” (177). This tended to prolong imperial rule by limiting it to things it could really do, while denying full sovereignty to the colonized peoples. She nonetheless prefers it to direct rule founded upon liberal principles, which she describes as violent in practice if not in theory, precisely because they require forceful implementation against native customs and beliefs. This of course raises the complex question of whether societies animated by those customs and beliefs have benefited from Western modernity, corrosive but also constructive. To begin to answer that question, however, criteria of judgment would be needed, and the various historicisms typically do not do very well in providing such criteria.
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