The British Empire wielded a powerful democratic ideal to enforce racial divisions and justify colonial domination.
Law played a pivotal role in the British colonial project, serving both to control colonized populations and facilitate the extraction of resources. Firm in its belief in superiority, the British Empire sought to replace indigenous legal systems with those designed to maximize economic gain. In The Dual Mandate in British Tropical Africa (1922), F.D. Lugard, former governor-general of Nigeria, summarized the supposed benefits of European colonialism:
Europe benefited by the enhanced amenities for the masses of its people, brought about by the opening up of Africa at the end of the 19th century. Africa gained from the influx of manufactured goods and the substitution of law and order for barbarism.
Lugard, in this statement, echoes the European view that colonized territories lacked any meaningful indigenous legal systems before colonialism. This perspective culminated in the concept of terra nullius—land belonging to no one—asserting that the absence of political organization or land rights among indigenous populations freed colonizers from any responsibility to negotiate with local leaders. This legal fiction enabled the British to declare vast territories uninhabited or uncivilized, which in turn justified the imposition of colonial law that protected British economic interests.
In colonies like India, where precolonial laws had some recognition, the British used a Eurocentric, self-referential definition of law to systematically replace indigenous systems. British authorities either deemed indigenous laws repugnant or relegated them to the personal sphere (e.g., marriage, inheritance), making them applicable only within colonized communities. Even laws that remained in place were often altered beyond recognition through colonial intervention.
The concept of the rule of law was central to both the legal mechanisms of colonial control and to the British self-image as a benevolent imperial power. Today, the doctrine is closely associated with British jurist A.V. Dicey, whose formulation of the rule of law became influential in the late 19th century. Political theorist Judith Shklar criticized Dicey’s work in 1987 as overly Anglo-Saxon, highlighting its exclusion of non-English legal traditions and its narrow focus on state supremacy.
In Introduction to the Study of the Law of the Constitution (1889), Dicey identified three core principles of the rule of law: 1) the absence of arbitrary state power, 2) legal equality for all classes, and 3) the idea that constitutional law is a product of common law, not a written constitution. However, despite Dicey’s claims of the rule of law being inherently tied to English legal tradition, the idea traces its roots to ancient Greece, where it was contrasted with the arbitrary rule of despots.
In its modern form, the rule of law can be categorized into formal (thin) and substantive (thick) versions. The formal version, as articulated by Joseph Raz, holds that any legal system—even one that denies human rights or maintains racial segregation—can conform to the rule of law if it meets basic standards of clarity and stability. In contrast, substantive theories associate the rule of law with democracy, human dignity, and the protection of rights. Tom Bingham, in The Rule of Law (2010), argued for a thicker definition, one that includes human rights protection.
In the context of the British Empire, the rule of law was used to legitimize colonial exploitation by masking the racial hierarchies and injustices that underpinned colonial law. Far from fulfilling the promises of equality, the rule of law in colonies was implemented selectively, primarily to benefit the colonizers.
The British Empire, at its peak in the early 20th century, spanned a quarter of the globe and ruled over 450 million people. Dicey’s concept of the rule of law was integral to British self-perception as a civilizing force. However, this ideal often clashed with the realities of colonial governance, where British officials asserted their superiority by denying the application of the rule of law to indigenous populations. For example, many colonized people were denied jury trials, and judges were appointed based on loyalty to the colonial state, with any attempt to extend legal equality resulting in swift removal.
Attempts to implement equality under the rule of law were limited, as seen in the case of Campbell v Hall (1774) concerning taxation in Grenada, where Lord Mansfield’s notion that an Englishman in the colonies should be treated equally to the natives was contradicted by the empire’s practice of slavery and racial segregation.
As Partha Chatterjee observed in The Nation and its Fragments (1993), colonial legal systems were built on the principle of racial difference, which underpinned every aspect of the colonial legal order. Race and the perceived civilizational status of different groups determined the application of legal rights, with indigenous and enslaved populations often excluded from the protection of the rule of law.
Racial distinctions were not just theoretical but were codified in laws that denied legal personhood to enslaved individuals and justified brutal punishments for crimes committed by non-white populations. For example, in Barbados, the 1688 Act for the Governing of Negroes explicitly stated that slaves were unqualified to be governed by the laws of the British Empire, and it established a dual legal system where enslaved people were subjected to harsher punishments than free persons.
The doctrine of the rule of law in colonial contexts was heavily racialized. Indigenous people in places like Australia and India were often deemed outside the scope of the law, while white settlers enjoyed the privileges of legal protection. The rule of law in the colonies was not about equality or justice but about maintaining the colonial hierarchy.
Across the British Empire, racial discrimination was not just an incidental flaw in the application of law but its very foundation. From the denial of legal education and professional opportunities for non-white populations to the unequal punishments meted out for crimes, the colonial legal system was designed to preserve racial and colonial superiority.
Despite these failings, the rule of law was rarely questioned within the empire. Its failure was blamed on local corruption or the supposed backwardness of colonized peoples, further justifying the continuation of colonial rule until the indigenous populations were “civilized” enough to embrace the rule of law.
Ultimately, the colonial application of the rule of law was not stable, clear, or equitable. Its origins in European social structures, its alignment with colonial exploitation, and its reliance on racial hierarchies ensured that it could never fulfill the promises it claimed.
The analysis of the rule of law doctrine in the British Empire, aside from its substantive principles, reveals its failure in the colonial context. In the formalist interpretation of rule of law, the most basic conception equates to rule by law—where law serves merely as a tool for state governance, often blending with the idea of “rule by the government.” This framework imposes minimal limits on state power, primarily aiming to protect citizens and communities from arbitrary executive rule. However, even these formalist interpretations of rule of law were undermined by frequent suspensions of civil law, particularly through martial law, which further curtailed the already limited freedoms of colonized populations. In these instances, the rule of the colonial powers was marked by instability, lack of transparency, and autocratic governance. From the 19th century onwards, the British Empire resorted to martial law in response to uprisings such as the Demerara slave rebellion (1823), the Indian Uprising (1857), and the Mau Mau Uprising (mid-20th century) in Kenya.
Despite the evident flaws in the doctrine of rule of law under British colonialism, the discussion took an unexpected turn in the 20th century. As anti-colonial struggles in Asia and Africa gained momentum, the British Empire’s failure to uphold rule of law in the colonies was criticized by anti-colonialists as being “un-British” and branded as the “lawless law” of colonial rule. While some denounced the idea of rule of law as a mere facade for colonial exploitation, others among the colonized populations utilized it as a tool for legal and political protection, resistance, collaboration, and even subversion.
Scholars like E.P. Thompson, a Marxist historian critical of law’s role in reinforcing class structures, nonetheless appreciated the concept of rule of law. In Whigs and Hunters (1975), he described Britain’s contribution to rule of law as “a cultural achievement of universal significance.” Thompson and others argued that leaders of the Indian independence movement, including M.K. Gandhi and Jawaharlal Nehru, used the idea of rule of law in their quest for independence. However, critics emphasize that when colonized people invoked the rule of law to demand greater rights, they did so strategically to gain legitimacy and visibility, rather than out of genuine adherence to the doctrine itself.
The adoption of rule of law rhetoric by anti-colonialists, though often a strategic decision, underscores the enduring appeal of certain ideals associated with the doctrine. Despite its association with maintaining the status quo and its complicity with liberal capitalist regimes, the concept of rule of law has become synonymous with justice, equality, and democracy—values that were central to the aims of anti-colonial movements. The legacy of this doctrine persists into the 21st century, where the promotion of rule of law has evolved into a multi-billion-pound industry. International aid, often tied to rule-of-law reforms, is regularly imposed on post-colonial nations in the Global South, furthering neo-imperialist global structures. At the same time, resistance movements in these regions continue to harness the concept of rule of law to challenge global capitalist exploitation.