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.
No comments:
Post a Comment