The British empire is coming under criticism in news reports about recent court decisions striking down legal bans against same-sex relations in India and Singapore. Section 377 in the Indian penal code criminalizing certain sexual acts was the direct model for penal codes in other colonies, such as Section 377A in Singapore’s criminal code. In borrowing from the Indian penal code and other legal conventions, Singapore took India’s legal system as a model adaption of the British legal and constitutional system.
Little is being said about other aspects of the colonial heritage that remain embedded in democratic governance and legal practices globally. The adoption of electoral democracy and bicameral parliamentary systems after gaining independence from direct European control was widespread, for example, even though the European claims to democracy were also part of the colonial heritage. Even those countries who were not directly colonized by European powers, like Japan and Thailand, drew on European models for their constitutions and legal systems. These colonial practices at the founding of modern nation-states is one form of the founding violence of many national democracies.
The Kenyan social critic Ngũgĩ Wa Thiong’o’s essays and novels have explored multiple ways in which the Kenyan postcolonial political and legal system reproduces the British colonial governance system and legal order. Like Section 377 in the Indian penal code, Kenyan practices were put into place after the British lost direct political control, and they have proven very effective in producing small economic and political elites rather than social equality for all. Ngũgĩ has detailed specific legal codes, government departments, and other aspects to the Kenyan postcolonial state that were effective in putting him in prison and then chasing him out of the country, just as these codes and departments have been effective to silence other critics in other postcolonial nations. This oligarchic pattern may be found across the former colonies not only of Britain but of France and other European colonial powers.
In the United States and other British settler colonies, the legal framework used by nations claiming democracy as their own is not always so directly related to the colonial legal heritage. Take the important 1823 U.S. Supreme Court decision, Johnson v. McIntosh which provides the foundation for the U.S. legal system of private property. This decision, taught in every introductory course on property law, draws not on British but on Spanish and Portuguese legal doctrines known as the Doctrine of Discovery that continue to rely on papal bulls issued from Rome. This legal decision was central to the theft of the heritage lands of Native Nations in the United States. It continues to provide an important pillar for colonialism in the Americas long after the Spanish, the Portuguese, and the British have lost direct political control of their colonies.
None of these legal instruments and government practices produce the equality that democracy promises. They were put in place centuries ago in order to produce and preserve inequality between colonizers and their subjects.
When they are left in place in postcolonial, settler colonial, and other national legal and constitutional after the colonizers have left, they do not serve democratic ends. Rather, they contribute to the inequality that characterizes so many national political systems that claim democracy as their own.
A wide range of organizations have opposed various specific items in these legal codes, as has been seen not only in the recent Section 377 decisions but also in the opposition to the Doctrine of Discovery by the Presbyterian Church, the Episcopal Church, and other religious organizations. It will take longer for consolidated opposition to emerge against other aspects of the colonial, neocolonial, and postcolonial heritage of present-day democratic practices. Only then will democracy become a decolonized form of government.