Introduction: Reframing “Law and Empire”
Law is an instrument for civilizing the peoples of the world.1
In 1964 Emperor Haile Selassie I—“the Conquering Lion of the Tribe of Judah, King of the Kings, Elect of God”—provided the “Inaugural Statement” for the first issue of the Journal of Ethiopian Law.
Published in English, the statement begins by tracing Ethiopia’s rich, multilingual legal heritage back to the Fetha Negast, or “Law of the Kings,” a legal code which included authoritative (canonical) Christian writings, probably written in Arabic by a thirteenth-century Coptic Christian in Egypt, then translated into Ge’ez—the written language of the ancient Aksumite and medieval Abyssinian empires and the liturgical language of the Ethiopian Orthodox Church—and adapted by Ethiopian (Amhara) kings in the midfifteenth century. Having situated Ethiopian law within a specific—but at the same time universalizing—Christian context, the “Inaugural Statement” then turns to enumerating the legal developments effected under Haile Selassie’s own imperial rule (1930-1974): the promulgation and implementation of a written constitution (1931, revised 1955), alongside other legal codes; the “modernization of the legal system”; the establishment of a Faculty of law (in 1963) “... to educate persons capable of ensuring the effective application of the law”; and the creation of the Journal of Ethiopian Law itself, which would contain “... reports of the decisions of Our courts and commentary on the law of Ethiopia.”2 Each of these four elements— a set of codified (state) laws; a modernized system of courts; an institutionalized law school to train Ethiopian lawyers in Ethiopian laws; and the publication of an official Journal of Ethiopian Law—were to constitute a single “Ethiopian” legal system. If doubt existed as to the meaning of the provisions of the (state) law, or a question arose that was not covered by the law, then the courts had to interpret the law and decide upon its application—and one of the functions of the Journal of Ethiopian Law was to make these court judgements known “... to all engaged in the1 Haile Selassie I 1964, v.
2 Haile Selassie I 1964, v.
Caroline Humfress, Law, Bureaucracy, and the Practice of Government and Rule In: The Oxford World History of Empire.
Edited by: Peter Fibiger Bang, C.A. Bayly, Walter Scheidel, Oxford University Press (2021). © Oxford University Press. DOI: 10.1093/oso/9780199772360.003.0007.
administration of justice and the study of the law.” “Law,” continues Haile Selassie I, “is a unifying force in a nation.” As emperor of Africa's oldest independent country and its second largest in terms of population (almost 25 million people in 1964), with a territory encompassing around 80 spoken languages, 17 “ethnic” groups, a mixture of cultures and religions (including various forms of Christianity and Islam) and “... memories of diversity and autonomous rule (19th- century kingdoms or chiefdoms from Maale to Kafa, from Jimma to Gojjam)...,” Haile Selassie I did not simply seek to “modernize” law, bureaucracy, and the practice of government according to a Western script. He strove to create a specific, Ethiopian, narrative of “unity in diversity.”[518]
“Unity in diversity” is a hallmark of imperial rule, from the multiethnic empires of the ancient Near East and China to the city-state empires of the Classical Mediterranean and the early medieval empires of the Guptas (South Asia) and the Mayans (Central America). The same dialectic, played out in different ways and to differing effects, is evident in the early modern empires of the Songhai (western Africa) and Incas (South America); the Ottoman, Mughal, and Safavid empires of Eurasia; and the nineteenth- and twentieth-century “historical bureaucratic empires” of Russia, Japan, and Iran.[519] Empire-states differ, in this respect, from nation-states:
Empires are large political units, expansionist or with a memory of power extended over space, polities that maintain distinction and hierarchy as they incorporate new people.
The nation-state, in contrast, is based on the idea of a single people in a single territory constituting itself as a unique political community. The nation-state proclaims the commonality of its people—even if the reality is more complicated—while the empire-state declares the non-equivalence of multiple populations. Both kinds of state are incorporative—they insist that people be ruled by their institutions—but the nation-state tends to homogenize those inside its borders and exclude those who do not belong, while the empire reaches outward and draws, usually coercively, peoples whose difference is made explicit under its rule.[520]Burbank and Cooper's distinction between empires and nation-states implies a basic contrast between plurality (associated with empire-states) and monism (the “one state—one society—one law model” associated with nation-states). Situating this contrast within the dominant Western historical narrative—according to which empires, from the nineteenth century onward, gradually gave way to nation-states—has led, in turn, to a seductive developmental model in which the legal pluralities of empire are seen to gradually, but inevitably, give way to a “modernizing,” nation-state mono-legalism. Historical reality, however, is much more layered and complex. Haile Selassie I’s centralizing legal, bureaucratic, and administrative reforms should not be understood simply as a staging post along (African) Ethiopia’s (Western) path to nation-state modernity. As we shall see, the “Ethiopian law” of Haile Selassie I was a tool of empire, adapted and reshaped from Anglo-American materials in the context of multiple state, non-state, and suprastate inter-legalities and conflicts.
Ethiopia’s revised 1955 constitution states that the emperor is “supreme colegislator,” “supreme judge,” and “head of both the administration and the judiciary.”[521] Article 36 specified that that the emperor himself was the supreme sovereign guardian of the people’s constitutional rights and liberties; rights and liberties that were defined by subsequent articles in the constitution (Articles 3762).
Article 63 placed these constitutional guarantees within a striking imperial framework which stretches all the way back to the first multiethnic empires of the Ancient Near East: “In these and other matters, everyone has the traditional right to present petitions to the Emperor.”[522] The constitutional enshrinement of this “traditional right to present petitions to the Emperor” points us toward the diversity of Ethiopia’s institutional forms, relationships, and legal orderings—beyond the state-law codifications of the late 1950s and 1960s.[523] Prior to 1855 and the establishment of a centralized bureaucratic Empire, Ethiopia “... was split into numerous sub-divisions which were administered either by military officers and nobility appointed by Emperor, or by traditional leaders indigenous to a given area who agreed to co-operate with their conquerors. The administrators collected taxes and tribute in labor and kind, keeping designated portions for themselves and forwarding the remainder to the Crown.”[524] After 1855, Ethiopian emperors pursued a centralizing strategy—including the use of violent state force—comparable to that seen in the Tanzimat era of the Ottoman Empire and Tsarist Russia. The power bases of local kings and nobles were fragmented by the reconstitution of regional administrative units, with officials appointed directly by imperial power. In Ethiopia, this bureaucratizing process was intensified by the creation of a professional, salaried army recruited from across the empire, independent from local lordship structures. On the ground, however, and especially outside the major cities, local and regional customary laws and dispute practices continued (until 1974)—most crucially in relation to slavery and systems of rural land ownership and tenure. Shari‘a courts and dispute resolution by Christian, Jewish, and other non-state officials further added to the diversity of the legal landscape. The 1955 guarantee of a “traditional right” to petition the emperor was thus intended to reinforce imperial rule and authority, at the same time as making space—beyond the constitution—for diverse non-state customs and laws. Imperial rule could invoke multiple legal orders and orderings, while at the same time pursuing a strategy of “nation-building through legal reform.”[525]Aside from five years (1936-1941) during which Ethiopia was occupied by Italian forces and annexed as part of the newly created Africa Orientale Italiana (Italian East Africa)—an administrative division that was deliberately intended to evoke the imperial glories of ancient Rome—the Ethiopian Empire was never subject to direct colonial rule. The legal pluralities of the mid-twentieth-century Ethiopian Empire thus differed, in important respects, from the situation of “legal pluralism” identified—and theorized—by lawyers, social scientists, anthropologists, and historians with respect to (former) imperial colonies.[526] Under some forms of modern European colonial rule the concept of “customary law” or “native law and custom”—a term used in British colonies—played a highly specific role in imperial governance:
[“Customary Law”] was assumed to be a body of law existing before and independently of colonial state. But not all of “native law and custom” received such “recognition” and was treated as “law.” Generally, for example, this did not occur in the area of criminal law, nor (depending on the extent to which “indirect rule” was adopted as the technique of colonial administration) too much of public law. “Native law and custom” was also not recognized as “law” if it was “repugnant” to European legal values.[527]
French and British colonial administrators, especially those involved in nineteenth-century African and Indian territories, also set out to codify (usable) “native” rules, fundamentally altering their nature in the process.[528] From the colonists' perspective, putting “native law” into writing made it “reproducible”— and hence governable.
It was this “colonial legal pluralism” that underpinned the work of postcolonial legal planners in the 1950s, 1960s, and 1970s, particularly in postcolonial Africa: “Pluralism provided postcolonial planners with a diagnostic label, a way to identify a problem in need of a solution.
The problem was that different sorts of people had different sorts of law.”[529] Western-trained socio-legal engineers (as Halliday terms them) involved in postcolonial reconstruction projects tended to view legal pluralism as an obstacle to “modernization” and (nation-state) “development.” The fact that Western-trained socio-legal engineers were also at work in Ethiopia during the 1950s and 1960s—drafting the national codes and the 1955 constitution, in addition to pursuing other legal “restatement projects”—is an important reminder that “entangled legalities” and relations of dominance are by no means limited to the forced imposition of colonial governance.[530] The Ethiopian Law School mentioned in Haile Selassie I's “Inaugural Statement” had in fact been founded with help from the Ford Foundation—a New York-based, “globally oriented,” private organization, funded by profits from the Ford Motor Company. The Law School's initial curriculum was taken from American law schools, as were many of its professors. British, European, and American involvement in Ethiopia's constitutional, administrative, and military affairs was by no means a new phenomenon. Hence Haile Selassie I's insistence in his “Inaugural Statement” for the Journal of Ethiopian Law—published in the same year as he took office as the first “Chairperson of the Organisation of African Unity”—that “[t]he foundation of the [Ethiopian] codes lies in the feeling of the people as to what is just.” Ethiopia's codes drew on foreign sources, but Ethiopian “... courts and judges cannot rely exclusively on foreign sources in interpreting the codes.”[531] Nonetheless, the involvement of private, global (capitalist) organizations—such as the Ford Foundation—in modern, “neo-colonial” law and development projects is a reminder of the imperialism of (Western) law itself[532]—an imperialism that, as we shall see in section 3, had always worked through, beyond, and—to a certain extent—aside from state structures.Haile Selassie I was well aware of multiple legal, administrative, and bureaucratic orderings in operation above and beyond the Ethiopian state. In 1932 Ethiopia joined the League of Nations (later the United Nations). Speaking in Amharic, Haile Selassie I addressed the General Assembly twice: first, in Geneva, as an emperor in exile, to seek aid against Mussolini's invading forces (1936), and second, in New York, in 1963. On this second occasion, Haile Selassie I appealed to the General Assembly as a “maker and enforcer of the international law,” listing the aims of the United Nations from its founding Charter: “the abjuration of force in the settlement of disputes between states,” “the assurance of human rights and fundamental freedoms for all without distinctions as to race, sex, language or religion,” and “the safeguarding of international peace and security”:
The goal of the equality of man which we seek is the antithesis of the exploitation of one people by another with which the pages of history and in particular those written of the African and Asian continents, speak at such length. Exploitation, thus viewed, has many faces. But whatever guise it assumes, this evil is to be shunned where it does not exist and crushed where it does. It is the sacred duty of this Organization to ensure that the dream of equality is finally realized for all men to whom it is still denied, to guarantee that exploitation is not reincarnated in other forms in places whence it has already been banished.[533]
Recent scholarship has begun to emphasize the fundamental role that imperialism—encompassing both rivalries between imperial powers and colonial exploitation founded on violence, slavery, and racial subjugation—played in the development of international law itself from the sixteenth century to the pre- sent.[534] Haile Selassie I’s 1963 “Address to the United Nations General Assembly” famously ends with the invocation that “[w]e must look, first, to Almighty God... We must become members of a new race, overcoming petty prejudice, owing our ultimate allegiance not to nations but to our fellow men within the human community.” This explicitly religious form of universalism also underpins Haile Selassie I's 1964 “Inaugural Statement” for the Journal of Ethiopian Law: When he stated, in the concluding paragraph, that “[l]aw is an instrument for civilizing the peoples of the world,” Haile Selassie I—“the Conquering Lion of the Tribe of Judah, King of the Kings, Elect of God” (an imperial title first created by the late nineteenth-century Ethiopian emperor Menelik II)—was primarily invoking a Judeo-Christian concept, not a modern, Western, rationalizing project of extending “the rule of law” across the globe. Civilizing missions take many different forms.
Exploring the “logic of empire” in relation to law, bureaucracy, and the practice of government and rule thus forces us to break out from what William Twining has termed “the Country and Western tradition”: a tradition that has, until recently, dominated mainstream Western legal scholarship with its almost exclusive focus on “the positive laws and ‘official’ legal systems of nation-states.”[535] Section 2 of this chapter explores how different empires have fostered different “repertoires of rule”—at the same time as making space for multiple “ad hoc” administrative regimes (for example, martial law, “emergency regulations,” and “special jurisdictions”), in addition to sanctioning numerous forms of violence and abuse (for example, indentured servitude in the colonies; galley slavery; forced military conscription). Section 3 surveys some of the numerous ways in which empires put law “to work,” facilitating the development of multiple, normative orders and institutions far beyond the jurisdiction of their own imperial officials. Finally, in section 4, we briefly turn to postcolonial legal scholarship and the concept of “legalism from below”: the practice of citizens invoking state legal norms and structures, and in the process transforming them. As we shall see, the study of colonial courtroom archives is beginning to transform our understanding of how law's empire shifted and changed through time, “out there” in the provinces and colonies, but also, crucially, “at home” in the imperial heartlands.
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