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This chapter poses a question often aimed at lawyers, especially when they straddle a culturally diverse and contested terrain of human experience, such as the role of children and families in society: does law matter? The question is all the more pertinent in African contexts, due to the pervasive poverty, prevalence of practices harmful to children, and perceived inability of weak states to put legislative intentions into effect. The chapter commences in Part 9.2 with a discussion of pre-modern African childhood. Part 9.3 reviews the impact of colonial children's laws in constructions of childhood. It argues that even the adoption of colonial children's legislation during the twentieth century failed to dislodge the primacy of culture in African childhood literature, and that by and large, formal law remained irrelevant to children's lives. Part 9.4 examines the implications of ratification of the UN Convention on the Rights of the Child (CRC) and the African Charter on the Rights and Welfare of the Child as far as the main question raised at the outset is concerned. Part 9.5 proposes that the introduction of a child rights discourse via the CRC and the African Charter on the Rights and Welfare of the Child, coupled with the implementation of large scale continental law reforms, has altered not only the legal landscape, but so too the present day understanding of childhood at a much more fundamental level. The conclusion that this chapter puts forward is that law does matter: and that an irreversible journey has been set in place which redefines African childhood.

This chapter shows how Discovery was imported and expressly adopted into American colonial and state law in royal charters and colonial and state constitutions, governments, and courts. It explains how the United States government adopted Discovery and how it was accepted by American jurisprudence in 1823 in Johnson v M'Intosh. The loss of tribal and individual Indian property rights and sovereignty followed naturally from the use of Discovery against indigenous peoples in what is now the United States.

This chapter discusses American legislation on search and seizure. American legislation before 1760 illuminated the Fourth Amendment's repudiation of the general warrant in several ways. Colonial statutes revealed that, in rejecting general warrants, the amendment struck at an abuse that was as American as British. Moreover, those laws also indicated why the trend to abolish those warrants did not catch on in the colonies for more than a century after the English had started it.

This chapter addresses the insights that past and current studies have brought to bear on issues of colonialism, postcolonialism, and law. India offers a well-tailored case to examine the forms and influences of legal continuity in the postcolonial state. Uniform laws were vital to the idea of nationalism. The work of legal pluralists illustrates the early wave of scholarship on colonial law. Personal laws could be a way for minority groups to retain and preserve their unique cultural heritage. Among the legacies of colonial rule, the law has had a unique staying power in postcolonial India. The system of personal laws was a key component of the legacy of state power and legal policy before and after independence. Subrata Mitra and Alexander Fischer determined four key institutions that influenced the personal laws: the national government and parliament; the Supreme Court and High Courts; state governments and legislatures; and political organizations.

This chapter explores the sources and techniques useful for finding information about the legal culture and law of individual colonies. While the rights and laws of England were the primary source of the laws of the colonies, local laws also governed. Indeed, each of the thirteen North American colonies had different fundamental laws, charters, and local legislation and courts. Publication of American law books came slowly from the earliest American printing presses. Not surprisingly, these first books were not carefully written legal treatises. They were instead publications of the colonial governments—often statutory—and “how-to” manuals and formbooks primarily designed for justices of the peace, law officers, and town officials. Other sources of information on colonial law include colonial charters and legislation, royal proclamations, colonial court decisions, and colonial court records.

This chapter explains two of the building blocks of colonial copyright: legal transplants and colonial law. The discussion of the former provides a critical analysis of the literature on the topic. The discussion of the latter, focuses on the role of the concept of ‘rule of law’, and on the division of legislative labour between the Empire and its different kinds of colonies, including mandates. The intersection of the legal transplants and colonial law provides a general model for studying colonial law, and provides the concrete guideline for the sequence of the discussion throughout the book, along the timeline of the legal transplant. The chapter further explains the methodology used in the book, of a back-and-forth examination of the colonial and the local, i.e. studying both the central authority (the London Colonial Office policies, in this case), and the local activities, within each colony.

It focuses on Muslim articulation of evolving ideas about shari’ah in terms of law and its relation to adat and European laws. Muslim reformers sought to spread legal interpretations by addressing and accommodating aspects of Islamic, customary, and colonial laws. Some Muslim reformers emphasised the values of Islamic law such as justice and equality whereas other Muslims emphasised the ritual aspects of Islamic law. The Indonesians became critical of the Dutch regulations that they saw discriminatory but left other regulations that ensured religious freedom. The Malays did not reject the British secular legal system as long as they were permitted to preserve or implement aspects of Islamic law and customary law.

The introductory chapter establishes a critical framework for reading oral jurisprudence in East Africa in relationship to narratives of temporality in British colonial law, colonial and postcolonial literatures, and modern law generally. I begin with a brief analysis of the 2012 trial Mutua and others v. The Foreign Commonwealth Office to illustrate the relationship between law and time and the lasting effects of the British Empire’s “crisis of modernity,” or simultaneous promotion of and retreat from modernity as it faced resistance in the colonies. I then theorize the oral-legalistic strategies that colonial subjects developed to exploit this crisis and restore, imaginatively at first, what was lost in the encounter with colonial time. Ngũgĩ wa Thiong’o has argued that orature, in particular, “played the most important role” in anti-colonial struggles, and this is so because of its relationship to the deep history of colonial law, which unwittingly empowered legalistic orature with the force of subversion as well as restoration. I conclude with a discussion of East Africa’s important but misunderstood place in the history and development of modern law.

This chapter shows that customs searches provided the first inducement to an American acceptance of English attitudes against promiscuous search and seizure. Unlike searches and seizures under colonial law, those by the royal customs officers involved substantial violence and bred intense resentment.

This chapter introduces the key questions addressed in the book. It theorizes judicial discourses of colonial difference and imperial universalism. It explores how these notions of native difference and imperial universalism influenced the practices of power in colonial settings, and shaped the evolving jurisprudence of Empire. The chapter also critically engages the historiography on British imperial justice and colonial law in Africa

The nineteenth century was a turning point in forest management and the forms of state control over the teak and nonteak forests of Java. It was then that a bureaucratic, colonial Forest Service drew boundaries between forest and agricultural land—on maps and in the field—and established police forces to restrict people's access to trees and other forest products. Through a process of trial and error, regulations for profitable tree plantation management were encoded in colonial law, as were the philosophies of forest conservation for hydrological purposes. This period was also the beginning of the foresters' great concern with their eminent rights of domain over land, timber, and the demarcation of forest boundaries. Their possessiveness is seen today in the persistent use of the terms of exclusion that criminalize customary rights of access to forest products and land: “forest theft,” “encroachment,” “squatting,” and “illegal grazing.” Forest dwellers continued to engage in these activities, despite the pejorative labels, in their practice of everyday life.

This chapter examines a legal regime operating in a political regime in sharp contrast to that of politically centralized China. The precolonial India legal system is essentially community bound with some signal characteristics. In the sphere of canon law, the state did not make laws but upheld them with the hierarchy of state courts reflecting the political order rather than the contents of law or the nature of offense. In civil matters outside the sphere of canon law, communities both made and administered laws, but with weak, informal, or highly differentiated procedures and rules. This chapter looks at two influential interpretations of this process. The transmission theory claims that India basically inherited a common law system. On the other hand, the translation theory required the codification of the indigenous laws.

This chapter illustrates the pattern of change in India's personal laws since independence, based largely on the norms and initiatives of the concerned group. It highlights the tensions between personal laws based on religious and other cultural norms, secularist principles, and the promotion of individual liberties and women's rights. The approaches of ruling elites to form the nation and recognize difference influenced the different responses of regimes to the personal laws they inherited. There were extensive modernist reforms in Turkey, Tunisia, and more recently Morocco, moderate modernist reforms in Egypt, India, and Indonesia, limited changes in Algeria, Lebanon, and Syria, and extensive changes that reduced women's rights and individual autonomy in Pakistan, Iran, Sudan, and Nigeria starting in the 1970s. The formation of the personal-law systems and the engagements of religious and nationalist mobilizers with personal law in colonial India are surveyed.

This chapter examines the Nayiniyappa Affair as a court case, addressing the judicial setting in which it took place and the legal questions it attempted to resolve with its focus on proper legal procedure. It charts out the role of colonial law in French rule of Pondichéry, by focusing on claims for justice made by indigenous agents, and the role of the Criminal Ordinance of 1670 in justifying these claims.

This chapter focuses on how Rules hatched in England which governed police–citizen relations helped shape the justice apparatus of occupied states and the actions of officials administering them. In restructuring the relationship of criminal suspects and police to the criminal justice system, English judges rolled out defective procedures, which remain part of the fixture and fittings of those jurisdictions still burdened by the colonial inheritance. This chapter will reveal how senior judges, whether sitting in the Privy Council in London or reposing in the highest courts of former colonial outposts, continue as legal missionaries proselytizing the common law and overseeing the implementation of rules, discredited and long-discarded back home.

This chapter discusses preventive detention in India and argues that it has not been able to fulfil its underlying rationale of ensuring security and stability while also giving rise to a repeated pattern of abuse and suppression. First, it traces the history of preventive detention laws in India, focusing on the Indian Constitution, British colonial laws, and post-Independence Constituent Assembly debates. It also looks at various national and state preventive detention laws drafted pursuant to the Constitution. The chapter then considers judicial oversight of preventive detention as well as the failure of the judiciary to adequately ensure fundamental rights. Moreover, it analyses India's preventive detention laws and Constitutional provisions in light of international human rights law. Finally, the chapter offers some basic recommendations on how to improve the preventive detention regime in India.

This chapter examines the development of criminal law and substantive, procedural, and relevant institutions on the African continent from antiquity to the present day. It demonstrates the existence of a well-knit and contextual criminal justice system throughout Africa, which was later infused with elements of Islamic law to serve the needs of the newly converted populations. The key characteristic of pre-colonial African criminal law is its customary, unwritten nature, with a focus on serving community rather than individual pursuits. Incarceration and punishment were unknown and instead efforts were made to compensate the victim, whose role was central to the process. This customary law served the continent until the advent of colonialism, whose protagonists enforced their conception of social control by reducing or even eliminating the application and influence of customary norms. As a result, even following decolonization, the new African nations retained colonial criminal legislation.

Meat played a central role not only in legitimizing the protectorate but also in funding its operation. To advertise respect for Islam, colonial officers amplified the celebrations for 'Id al–Adha, or 'Id al–Kabir, as it was called by Moroccans, when the sultan sacrificed a ram on behalf of his subjects. For ordinary meals, however, the French expected urban residents to buy meat from local butchers at a municipal slaughterhouse. To increase demand for commercially butchered meat, the French banned private slaughter. By collecting a tax on each slaughtered animal, the French forced two hundred butchers to provide 10 percent of Fez's municipal income. Butchers increased their clientele among workers by exploiting colonial tax laws and slaughtering female animals. This chapter argues that the colonial regulation of the meat industry transformed the way that social classes conducted daily life, with workers and the poor increasing their access to meat, an influential luxury.