Redefining the Rule of Law: An Eighteenth-Century Case Study

Abstract

Abstract Scholars who write about the relationship between law and empire tend to adopt one of two frameworks. The first describes imperial rule and the rule of law as fundamentally incompatible. The second praises empires—especially the British Empire—for exporting the rule of law to lands that lacked it. These competing approaches have very different political valences, but they agree in suggesting that colonial rule made no substantial contribution to today’s rule of law tradition. At best, the metropole exported a premade rule of law abroad; at worst, colonialism corrupted preexisting commitments to legality. But in neither case did imperial rule alter rule of law ideals. This Article argues, in contrast, that colonialism helped to reshape how anglophones defined the rule of law. It begins by reconstructing two conceptions of legality in the eighteenth-century British Empire. At the start of that century, most Britons subscribed to what this Article calls the traditional conception of the rule of law. This conception aimed at a thick set of political, social, and economic ends, which proponents sought to advance through specific English institutions, such as juries. A second, thinner conception of legality—what this Article calls the modern rule of law—emerged in the second half of the eighteenth century. Like many rule of law theories today, the modern conception focused on abstract ideals, such as legal certainty, rather than particular institutions. Proponents of the modern rule of law aimed to provide a cosmopolitan standard that would transcend national and cultural boundaries. Although these two conceptions were often compatible, their differences became apparent in the 1770s, as politicians debated whether to extend English law to conquered colonies. Britain’s ultimate decision to embrace colonial legal pluralism encouraged commentators to embrace the newer, thinner conception, which was easier to reconcile with the growing diversity of the empire’s many legal systems. This debate over the colonial rule of law continues to shape our efforts to theorize the rule of law. Understanding the rule of law’s history also offers new insights into the potential utility of different versions of that concept today. Finally, this Article shows how invoking the rule of law in everyday political debates can ultimately redefine the concept itself.