Imperialism, Colonialism and International Law
This paper makes an original contribution by unearthing the relationship between imperialism and colonialism in nineteenth century international law. My exploration of the relationship between imperialism and colonialism concretely demonstrates how international legal doctrines surrounding British protectorates of the nineteenth century did not distinguish between imperialism as represented by the introduction of rules and practices of English private and business law into the colonies, on the one hand, and colonialism particularly as exemplified by rules of acquisition of title to territory, on the other. The introduction of English rules of property, tort and contract in the protectorate however went beyond facilitating the expansion of industrial and commercial capitalism in the East African Protectorate. These English rules of property, tort and contract in turn laid the basis for challenging the illiberalism of British governance by colonial peoples like the Maasai of the East African protectorate. My exploration of the relationship between imperialism and colonialism results in three major conclusions. First, this relationship demonstrates that international legal rules of British protectorates were internally inconsistent between their claims of liberty, on the one hand, and their repressive and illiberal consequences for colonial peoples, on the other. Second, this inconsistency between the promise of liberty and the reality of colonial illiberalism created room for resistance and reconstitution of colonial territorial acquisition by colonialized peoples. I illustrate this theme of resistance and efforts at challenging the illiberalism of colonialism using a High Court and East African Court of Appeal case brought by the Maasai of the East African Protectorate against the British government. My discussion of this case shows that this resistance was in part mediated by invoking rules of English private law such as contract, property and tort as well rules of public international law. The contestation of, and resistance to the expropriation of Maasai land in British courts was mediated through a highly formalist and positivist jurisprudence in at least three ways. First, by taking the view that the Crown's prerogatives are limitable by moral principles and not by judicial review. Second, by disaggregating territorial from suspended sovereignty, and third by distinguishing between power and jurisdiction, on the hand, and territorial sovereignty, on the other. The paper then traces the continuities between the jurisprudence of the British courts in the Maasai case with analogous contemporary jurisprudence - including that produced by the holding of detainees in Guantanamo Bay.
International Law | Jurisprudence | Legal History
Date of this Version
James Gathii, "Imperialism, Colonialism and International Law" (April 14, 2006). bepress Legal Series. bepress Legal Series.Working Paper 1262.