1 The Rule of Law and Racial Difference in the British Empire
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Kanika Sharma
Abstract
This chapter begins by discussing the history and some modern conceptions of the doctrine of the rule of law (RoL) before turning its attention to the development and deployment of the doctrine within the British Empire. Firstly, it examines how the British legal experiments in the colonial setting impacted the modern British idea of rule of law as put forward by theorists such as A.V. Dicey. Secondly, it analyses the ways in which the doctrine of rule of law was used to establish and legitimise British colonial rule.
In the second half, the chapter argues that rule of law and the rule of empire are inherently incompatible. Far from instilling equality between the coloniser and the colonised, rule of law in the British Empire was predicated upon regimes of colonial and racial difference that advantaged the ruling race. Contrary to widespread belief, the creation of this racial difference was not the work of a few corrupt officers and nor was it a mere side effect of the colonial legal order; rather, the British claim to follow rule of law in the colony actively worked to instil, preserve and obfuscate inequalities based on race.
Abstract
This chapter begins by discussing the history and some modern conceptions of the doctrine of the rule of law (RoL) before turning its attention to the development and deployment of the doctrine within the British Empire. Firstly, it examines how the British legal experiments in the colonial setting impacted the modern British idea of rule of law as put forward by theorists such as A.V. Dicey. Secondly, it analyses the ways in which the doctrine of rule of law was used to establish and legitimise British colonial rule.
In the second half, the chapter argues that rule of law and the rule of empire are inherently incompatible. Far from instilling equality between the coloniser and the colonised, rule of law in the British Empire was predicated upon regimes of colonial and racial difference that advantaged the ruling race. Contrary to widespread belief, the creation of this racial difference was not the work of a few corrupt officers and nor was it a mere side effect of the colonial legal order; rather, the British claim to follow rule of law in the colony actively worked to instil, preserve and obfuscate inequalities based on race.
Kapitel in diesem Buch
- Front Matter i
- Contents v
- Table of Cases, Statutes, Statutory Instruments and Other Jurisdictions ix
- Notes on Contributors xiv
- Series Editors’ Preface xv
- Introduction 1
-
Constitutional Structures and Concepts
- The Rule of Law and Racial Difference in the British Empire 15
- Parliamentary Supremacy and the People 35
- Strong Executive, Weak Parliament? 53
- Legislating for Seismic Events: An Examination of the Role of Delegated Legislation 71
- Scotland, Devolution and Independence: A Union at its Limits? 91
- Diverse Voices in the Judiciary 119
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The Individual and the State
- The Begum Case, Discretion and Parliamentary Sovereignty: Unmaking the Constitutional Subject 143
- Racialisation in UK Counterterrorism Law and Policy 163
- Racism, Law and the Police: Over 50 Years of Anti-discrimination Law and Policing 185
- The Administration of Social Security Benefits: Gendered Implications 205
- Administrative Violence: First-Instance Decision Making in Sexual Diversity Asylum Claims 223
- A More Diverse Public Law: Suggested Further Reading 243
- Index 247
Kapitel in diesem Buch
- Front Matter i
- Contents v
- Table of Cases, Statutes, Statutory Instruments and Other Jurisdictions ix
- Notes on Contributors xiv
- Series Editors’ Preface xv
- Introduction 1
-
Constitutional Structures and Concepts
- The Rule of Law and Racial Difference in the British Empire 15
- Parliamentary Supremacy and the People 35
- Strong Executive, Weak Parliament? 53
- Legislating for Seismic Events: An Examination of the Role of Delegated Legislation 71
- Scotland, Devolution and Independence: A Union at its Limits? 91
- Diverse Voices in the Judiciary 119
-
The Individual and the State
- The Begum Case, Discretion and Parliamentary Sovereignty: Unmaking the Constitutional Subject 143
- Racialisation in UK Counterterrorism Law and Policy 163
- Racism, Law and the Police: Over 50 Years of Anti-discrimination Law and Policing 185
- The Administration of Social Security Benefits: Gendered Implications 205
- Administrative Violence: First-Instance Decision Making in Sexual Diversity Asylum Claims 223
- A More Diverse Public Law: Suggested Further Reading 243
- Index 247
