coel kirkby on henry maine, colonialism and the law


Coel Kirkby, ‘Review Article: Henry Maine and the Re-Constitution of the British Empire’, Modern Law Review 75, 4 (2012).

extract in lieu of abstract:

When Seeley set himself the task of examining ‘historically the tendency to expansion which England has so long displayed’, he divided his lectures in two along a ‘natural’ division between those people ready for self-government and those not yet ready. The first were what he called ‘Greater Britain’, including the United Kingdom and the settler colonies of Canada (and Newfoundland), the Australian and New Zealand colonies, Cape and Natal, as well as the West Indies. The second group included India and all other dependencies. Mantena agrees with Seeley’s distinction between self-governing and dependent colonies. 


Mantena is hardly alone in accepting Seeley’s distinction as the key to explain the evolution of the imperial constitution. In the aftermath of decolonisation, Pocock called for a ‘British history’ that would encompass the settler colonies of the British empire. James Belich and Duncan Bell, among others, have shown that Seeley’s ‘Greater Britain’ arose in the 1880s and ‘was big and powerful in its day, a virtual United States, which historians of the period can no longer ignore, nor dismiss as a failed idea.’ Legal historians have also answered Pocock’s call with detailed comparative studies of discrete legal subjects like property and marriage. Recent scholarship has also examined ‘aboriginal’ or ‘indigenous’ rights in the settler colonies. All these studies reinforce the constitutional unity of the settler colonies ‘emerging’ as distinct Dominions, in contrast to India and the African colonies ‘winning’ or ‘being granted’ independence. ‘Indirect rule, the rule through native institutions,’ Mantena reminds us, ‘would be hailed as the unique and defining principle of British imperial rule in Asia and Africa’. She cites approvingly Low’s argument in Lion Rampant that the new forms of rules developed in India at the end of the century were then transplanted in south-east Asia and Africa.

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