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Historicising “Law” as a Language of Progress and Its Anomalies: The Case of Penal Law Reforms in Colonial India
Published online by Cambridge University Press: 29 May 2015
Abstract
This paper dispels the myth of liberal Enlightenment in relation to penal law reforms in colonial India by advancing two sets of argument. First, the liberal project of codification on the basis of universalist notion of utilitarianism never broke with cultural hierarchy inbuilt in the very act of colonisation. In this paper, I specifically look into the emerging phenomenon of evolutionary science in the nineteenth century – social Darwinism – to explain the dominant normative, as opposed to realist, justification of such racial hierarchy in colonial discourses since the nineteenth century. Second, using Dipesh Chakrabarty’s theoretical framework, I provincialise the penal law reform project in colonial India through the examination of literature in the field, and substantiate how the notion of utilitarian universality remained vague and unpromising in face of instrumental needs on ground – both in the colony and in the metropolis. Taken together, these propositions dispel the myth of the liberal project of penal law reforms in colonial India based on this universalist position and underscore the fallacies of the transition narrative of modernity itself.
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- Information
- Asian Journal of Comparative Law , Volume 9: Special Issue: Socio-Legal Research on Southeast Asia: Themes, Directions, and Challenges , 1 January 2014 , pp. 213 - 240
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- Copyright © Faculty of Law, National University of Singapore 2014
References
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court reforms in the 1820s and 1830s in India occurred while the Peel Acts were passed; Macaulay wrote a criminal code for India while a Royal Commission wrote one for England; Macaulay submitted his Code to Parliament the same year Parliament passed the 1837 Acts; the Indian Law Commission reviewed Macaulay’s Code in 1847-48 just as the second Royal Commission finished its draft criminal code; and a few months before the Indian Penal Code became law, the British Parliament passed the 1861 Acts. In substantive and procedural terms, the Indian Penal Code reflected developments in English law.
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