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Utilitarianism and the Criminal Law in Colonial India: A Study of the Practical Limits of Utilitarian Jurisprudence

Published online by Cambridge University Press:  28 November 2008

Kartik Kalyan Raman
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Extract

The role of legal tradition in the reformist rhetoric of Benthamite Utilitarianism presents us with a contradiction. On the one hand, there is the common observation that Utilitarian jurisprudence was necessarily ahistorical and rejected the past as a source of concepts for reworking the criminal justice system existing in Britain during the late eighteenth and early nineteenth centuries. For philosophic reformers such as Bentham, contemporary British criminal justice was to be replaced by a scientific jurisprudence, abstract, universal, and secular in outlook, and antipathetic to the more conservative insistence that the foundations of the penal law continue to be tradition-based. ‘If society was to see any improvement, its law must be reformed; if its law was to be reformed it must be burned to the ground and rebuilt according to a new and rational pattern.’ On the other hand, we find that the very same Utilitarian thinkers, in works describing the state of the law in British India, were concerned with local rather than universal conceptions of criminality. In his 1782 Essay on the Influence of Time and Place in Matters of Legislation, Bentham, for instance, urged the philosophic reformer to temper change in India by fitting Utilitarian judgments about the law to the frames of local society.

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Articles
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Modern Asian Studies , Volume 28 , Issue 4 , October 1994 , pp. 739 - 791
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Copyright © Cambridge University Press 1994

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References

This article is derived from my M. Phil, thesis, ‘The Anglicization of Indian Law: The “Age of Reform” Revisited,' University of Cambridge, 1991, and from a research project undertaken in 1992 at Northwestern University School of Law. I would like to thank C. A. Bayly, who supervised my thesis, and Javed Majeed, Dilip Menon, Michael J. Perry, and Robert P. Burns for their insightful comments.

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59 Of course, one may object to this or any other version of Utilitarian logic in two ways. First, although maximizing happiness seems to be a worthwhile goal, it entails some practical difficulties: knowing what will achieve overall happiness, to whom happiness will result, and the degree to which the individual will be made happy or unhappy. Second, there is always the question of the moral rightness of following the greatest happiness principle in some instances, for example, when a morally wrong act such as lying may create happiness.

60 Extensive treatment of Bentham's jurisprudence is found in Postema, supra note 1, and Schofield, Philip, Jeremy Bentham and Nineteenth Century English Jurisprudence, 12 J. Legal Stud. 58 (1991).Google Scholar

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86 Id. at 585 (citing letter from Ryan to Bentinck (Jan. 13, 1831)).

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91 Minutes of Evidence before the Select Committee on the Affairs of the East India Company, in 10 British Parliamentary Papers (Session 1831–32) 78–9 (1970) (citing statement of W. B. Bayley (Apr. 16, 1832)).Google Scholar

92 1Philips, C. H., supra note 85, at 164Google Scholar (citing letter from Court of Directors to Bengal Government on Retrenchment (Feb. 18, 1829)). See generally Bayly, C. A., Imperial Meridian, supra note 80,Google Scholar and Stokes, Eric T., The First Century of British Colonial Rule in India: Social Revolution or Social Stagnation, 58 Past and Present 136, 145–50 (1973).CrossRefGoogle Scholar

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100 A typical view was expressed by William L. Melville on 12 Apr. 1832: ‘The administration of criminal law under the system devised by Lord Cornwallis has always appeared to me, as well as to other much more competent judges with whom I have communicated, to be the most successful part of our administration.’ 10 British Parliamentary Papers, supra note 91, at 60.Google Scholar

101 Judicial Despatches to Bengal 1804–1839, supra note 89 (citing Judicial Letter (Jan. 26, 1831)).Google Scholar

102 73 Edinburgh Rev. 457 (1841).Google Scholar

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107 Miller, John reported in 1828 that ‘the Mahomedan law is administered by requiring the Mahomedan law officers to read the trials, and give their futwas or decisions on the cases.’ Id. at 137. As before, ‘t[he] futwah of the law officers declares whether or not the fact is proved, and states what the Mahomedan law may be.’ 10 British Parliamentary Papers, supra note 91, at 58 (statement of James O. Oldham (Apr. 9, 1832)).Google Scholar

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115 A letter from the Bengal Judicial Department, 22 June 1838, in Judicial Despatches to Bengal 1837–1838 (unpublished manuscript, India Office Library & Records, London), describes the Company's experiments with juries, and The First Report from the Select Committee on Indian Territories, in 13 British Parliamentary Papers Session 1852–53, supra note 108, discusses the feasibility and concludes that it was impractical.Google Scholar

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118 It was reported in 1853 that in cases where the Hindu and Muslim law were applicable, they were ‘expounded by persons called law officers.’ 13 British Parliamentary Papers, supra note 108 (statement of N. B. E. Baillie (Apr. 25, 1853)).Google Scholar

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127 Id.

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132 Id.

133 Id.

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135 Id. at 91 (citing statement of W. B. Bayley).

136 Id.

137 Id.

138 Judicial Despatches to Bengal 1804–1839, supra note 89 (citing despatch from Court of Directors to Governor-General in Council (July 23, 1824)). See also id. (citing despatch from Court of Directors to Governor-General (Apr. 11, 1826)).Google Scholar

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140 Judicial Letters from Bengal 1803–1855 (unpublished manuscript, India Office Library & Records, London) (citing letter from Bengal Judicial Department to Court of Directors (02 22, 1827)).Google Scholar

141 Id.

142 Id.

143 The Committee, which was appointed in February, 1831, considered the state of the judiciary in the context of debate over renewal of the Company's Charter. Several witnesses provided testimony regarding the use of panchayats, including Rammohun Roy, who considered it to be ‘the only tribunal which can estimate properly the whole bearings of a case, with the validity of the documentary evidence and the character of the witnesses, who could have little chance of imposing false testimony upon such a tribunal.’ Nag and Burman, supra note 111, at 21.Google Scholar

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147 Id. at 171. Of course, Bentham acknowledged that he was ‘a lawgiver having been bred upon English notions.’ Id. at 172.Google Scholar

148 Id. at 177. Bentham notes that ‘[l]egislators who have learnt to soar above the mists of prejudice, know as well how to make laws for one country as for another: all they need is to be fully possessed of the facts; to be informed of the local situation, the climate, the bodily constitution, the manners, the legal customs, the religion, of those with whom they have to deal.’ Id. at 180.Google Scholar

149 Id. at 179.

150 Id. at 182.

151 Id. at 184.

152 Id. Compare this with what Bentham said in An Introduction to the Principles of Morals and Legislation, supra note 56, at 198–9: ‘When the people are satisfied with the law, they voluntarily lend their assistance in the execution; when they are dissatisfied, they will naturally withhold that assistance. This contributes greatly to the uncertainty of the punishment.’

153 Essay on the Influence of Time and Place in Matters of Legislation, supra note 2, at 181.Google Scholar

154 Some of the most illuminating works on Macaulay's efforts are John Clive, Macaulay: The Shaping of the Historian (1987);Google Scholar and Stokes, , supra note 18, at 219–33.Google Scholar

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161 Id.

162 Id. at 219.

163 Id.

164 Id. at 219–20 (citing speech of Macaulay (July 10, 1833)).

165 Id.

166 Macaulay regarded the Code as complete. ‘Not only ought everything within the Code to be law: but nothing that is not in the Code ought to be law.’ Id. at 222.

167 Id. at 230.

168 The Code, of course, was in fact espousing what was already established by Bengal Regulation IX (1793), sec. 75.Google Scholar

169 Draft Penal Code, supra note 121, at 3.Google Scholar

170 Id. at Ch. XVIII (‘Of Offences affecting the Human Body’), sec. 298.

171 Id. at Illus. (a)

172 For a contrary view, see Clive, , supra note 154, at 451, for whom ‘the setting is, in a sense, immaterial; for the acts described would be crimes in whatever setting they were committed.’Google Scholar

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174 Draft Penal Code, supra note 121, at Ch. XIX (‘Of Offences Against Property’), sec. 375, illus. (b).

175 Id. at Ch. XVIII, sec. 354 (concerns the crime of kidnapping children, a practice prevalent at the time).

176 Id. at Ch. XXIV.

177 Id. at Note Q.

178 Id.

179 Id. at Note M.

180 Id.

181 Id. at Ch. III.

182 Id. at Note B.

183 Id.

184 Id. at Note M.

185 Id. at Ch. XV (‘Of Offences relating to Religion and Caste’), sec. 254.

186 Id. at Note M.

187 Id. at Note R.

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192 Ian Copland, The British Raj and the Indian Princes 21–5 (1982).Google Scholar

193 Ballhatchet, Kenneth, Social Policy and Social Change in Western India, 1817–30, at 166 (1961).Google Scholar

194 Mill, John Stuart, despatch (July 20, 1830) (unpublished manuscript, India Office Library & Records, London), cited in Zastoupil, supra note 189.Google Scholar

195 Id.

196 Id.

197 Id.

198 Mill, John Stuart, Smith on Law Reform, in Essays on Equality, Law, & Education, in 21 Collected Works of John Stuart Mill, supra note 189, at 83.Google Scholar

199 Id.

200 Id. at 84.

201 Mill, John Stuart, Penal Code for India, in 30 Works of John Suart Mill, supra note 189, at 19.Google Scholar

202 Id. at 20.

203 Id.

204 Id.

205 Id.

206 Zastoupil, , supra note 189, at 43.Google Scholar

207 Id.

208 Id.

209 Mill, John Stuart, despatch (Feb. 4, 1846) (unpublished manuscript, India Office Library & Records, London), cited in Zastoupil, supra note 189.Google Scholar

210 Mill, John Stuart, Memorandum of Improvement in Indian Administration, in 30 Works of John Stuart Mill, supra note 189, at 112.Google Scholar

211 Mill, John Stuart, despatch (July 29, 1846) (unpublished manuscript, India Office Library & Records, London), cited in Zastoupil, supra note 189.Google Scholar

212 Id.

213 Id.

214 Moore, R. J., John Stuart Mill at the East India House, 20 Hist. Stud. 497, 516 (1983) (citing On Liberty).CrossRefGoogle Scholar

215 Id. (citing Representative Government).