Not only an instrument of power or a one-sided constraint on its use, the rule of law is also a resonant legal ideal. British lawmakers invoked it to justify colonial rule and their project of codification against the “[p]hantasm of Oriental despotism” in India. Middle-class activists condemned the state’s intrusive surveillance of women as constitutional violations in debates over the regulation of prostitution in Britain’s empire. In the present, #BlackLivesMatter protests in the United States and elsewhere have framed their criticism of police brutality in relation to one of the tenets of the rule of law, equal treatment. Surveying these turns in rule-of-law rhetoric, we might inquire about its malleability and the particular hold the ideal has in modern politics. We might also ask if the rule of law has a deeper significance beyond the ebb and flow of everyday political contestation.
Definitions of the rule of law today are not singularly bound to its canonical formulations in the Common Law tradition. When the rule of law is measured through the World Justice Project’s Rule of Law index and the United Nations Rule of Law Indicators, international organizations ultimately rank countries according to quantifiable standards. In doing so, they alter how states and their “decision makers think and understand the rule of law.” Such indices reduce the rule of law to technical criteria and institutional forms. Yet something more than a formalistic insistence on rule-of-law norms is at play when activists repeatedly invoke the rule of law in their attempts to temper the exercise of power, even when such calls are suppressed with terrifying violence.
As Mark Fathi Massoud’s account of the enduring role of the Islamic faith in the legal politics and everyday life of Somalia and Somaliland demonstrates, Somalis’ struggles for the rule of law and their simultaneous aspirations for fairness, justice, and stability have been historically entangled with religious belief. His book Shari’a, Inshallah demands that scholars take the transcendent seriously even as we focus on the substantive rules, practices, interests, and interactions of modern law and politics. This book calls for sociolegal scholars to keep in view social actors’ understandings of divine power. Taking these observations as my points of departure, I reflect on Massoud’s concluding discussion on the rule of law as an “alternative form of theology” with “its own…[systematic, coherent] theory of a higher power.”
Demands for the rule of law speak to the exigencies and vulnerabilities of being human in the face of overwhelming governing authority. A transcendent force, whether God, law, or sometimes both, is required to limit this authority. According to Massoud’s proposal to approach the rule of law as a theology in Shari’a, Inshallah, “law and religion are two different horizons of the human, created by the human, that also take us beyond the human.” Moreover, law and religion “require a radical, inexplicable, and unknowable faith.” The rule of law as theology thus involves more than believing in the law, its institutions, and its principles; it also consists of submitting to the law.
Massoud’s formulation of the rule of law as theology bears further examination in other contexts, especially one where the notion of the rule of law originated: the modern British Empire. As Sally Engle Merry proposed of the importance of turning to the past in evaluating the significance of the rule of law, “It is far easier to see the blindness of the past than that of the present; and it is to help us better discover these assumptions, these ideas that have gone unnoticed except by those who suffer their consequences, that we study the past.” Tracing the rule of law to the imperial setting where the ideal first acquired a global resonance, I ask: Under what conditions do rulers and the governed approach the rule of law as theology?
Among the many pivotal moments in the making of the nineteenth-century British Empire, the Morant Bay rebellion offers scholars an important historical example of this dynamic. Erupting in the eastern end of Jamaica on October 11, 1865, the staging of the rebellion began at Morant Bay’s besieged courthouse, which had been the setting for proceedings helmed by magistrates who were also part of the planter class. This was the site for planter-applied law and the unjust trials that sparked the actions of the organized rebel movement led by Paul Bogle, a preacher in the Native Baptist church, which amalgamated Christian and African forms of belief.
In their historical accounts of this rebellion, Thomas Holt and Gad Heuman show how the rebels’ political consciousness was framed, on the one hand, by the injustices of the colonial legal system, and, on the other, through the alternate worldview and syncretic faith of Native Baptism. Before, during, and after the rebellion, aspirations for the rule of law appeared in indirect or refracted ways, whether in the alternative courts organized by Native Baptist leaders like Bogle in parallel to the colonial judiciary, or in the religiously influenced efforts in England to hold Jamaica’s governor, Edward John Eyre, accountable for his violent suppression of the rebellion under the guise of martial law.
The rule of law mattered not only to Paul Bogle and his followers (even if it was clearly absent in the colonial courthouse that they burned) but also for members of the Jamaica Committee, including John Stuart Mill, who mobilized in Britain to prosecute Governor Eyre for the extrajudicial killings of the rebels and their allies. As Mill explained in his autobiography: “There was much more at stake than only justice to the Negroes…The question was, whether the British dependencies, and eventually, perhaps, Great Britain itself were to be under the government of law, or of military licence…” However, these invocations of the rule of law during and especially after the rebellion raised the question of an overarching power that could safeguard “the lives or persons of British subjects [who would otherwise be] at the mercy of any two or three officers however raw and experienced or reckless and brutal…” To Mill, this power could be assumed only by “the tribunals,” as legally constituted.
Was Mill right to position English law, judges, and the courts as guarantors of the rule of law and protectors of colonized subjects? The rule of law, in this view, operated as imperial theology; British lawmakers and activists believed that law, legal principles, and their institutions could constrain the excesses and violence of arbitrary power that colonial officials often inflicted on their subjects. Indeed, as I observed in my research on colonial lawmaking and social regulation in the modern British Empire, officials repeatedly sought to harness the moral weight of the rule of law in formulating and justifying the reach and limits of state power. They did so based on their perceptions of how individual liberties were violated in the colonies. The rule of law for officials in Great Britain thus helped to advance the idea of empire as a universal and liberal project that offered protection to its subjects, who in turn owed their allegiance to the Crown.
Such workings of the rule of law as theology, however, ran skin-deep. The Jamaica Committee’s efforts to prosecute Eyre and obtain justice through the courts failed. To return to Mill’s reflections: “It was clear that to bring English functionaries to the bar of a criminal court for abuses of power committed against negroes and mulattoes was not a popular proceeding with the English middle classes.” Furthermore, the Morant Bay rebellion led to the fateful end of representative government in Jamaica, as the island was subsequently reconstituted, like other racially divided colonies in this period, as a Crown Colony under the authoritarian control of the Crown’s representative, the governor.
What this brief discussion of the 1865 Morant Bay rebellion shows is a necessary, but absent, condition for the realization of the rule of law as a theology: rulers’ recognition and acceptance of the limits to their exercise of power. In an empire preoccupied with maintaining control amidst difference, this hardly obtained. Nevertheless, in the rebels’ alternative courts, their focus on the courthouse as a site and target of their rebellion, and the Jamaica Committee’s willingness to hold Eyre legally accountable, we see how the rule of law resonated as an ideal, albeit one that was unfulfilled, among the governed. The underlying religiosity of this moment is also evident, and it shaped the organization of the Native Baptists and the support given to the Jamaica Committee.
Understood through Massoud’s thesis on the rule of law as theology, the Morant Bay rebellion leads us to questions about the relation between religion and law, what he calls “two different horizons of the human,” in articulating how the governed and rulers experience and respond differently to the problem of arbitrary power. To echo Philip Selznick’s call for social scientists to take values and ideals seriously, we might inquire into how rule-of-law claims and institutions are grounded in the social and historical contexts that mold the human condition, and actors’ orientation and fidelity, or lack thereof, to the transcendent values that discipline their uses of power.