Repertoires of Rule

What was said by Homer, “The earth was common to you all,” you have made a reality, by surveying the whole inhabited world (the oikoumene), by bridging the rivers in various ways, by cutting carriage roads through the mountains, by filling desert places with post stations, and by civilizing everything with your way of life and good order....

The world of Roman (civil) law was fashioned and shaped by imperial expansion, just as the world of Anglo- American common law was later “built through the global spread of colonialism and capitalism”; both “... carried a story of delivering law as [their] gift, bringing order to chaos, light to darkness.”^[537] Speaking in praise of Rome during the second century ce, the Greek orator Aelius Aristides described Rome's universal “civilizing mission” as extending over multiple peoples, their (local) laws, and even the natural world itself. The “justness” of this domination, according to Aristides, did not lie in military force or right of conquest, but in Rome's superiority over all others in the art of governing: “For you alone are rulers according to nature, so to speak... Since you were free right from the start and had immediately be­come rulers, you equipped yourselves with all that was helpful for this position, and you invented a constitution such as no one ever had before, and prescribed for all men rules and fixed arrangements.”^[538] As Peter Fitzpatrick has argued with respect to modern empires and colonialism:

To the imperial eye, law was pre-eminent among the “gifts” of an expansive civilisation, one which could extend in its abounding generosity to the entire globe... Law, that is, had not only to extend into new found worlds but had also forcefully to bring them into a determined order.

Islamic imperial rulers also framed “subjection to [their] laws” as a civilizing gift, bestowed through the practice of an ordered, rational, “art of governing.”^[540] “According to Islamic and Turkic theories of state, the primary duty of the sultan to his subjects (reaya: literally, ‘flock’) was the provision of justice, especially against the harassment of the local ruling authorities or of illegal taxation.”^[541] The mazalim institutions of medieval Islam—involving the adjudication of complaints relating to “injustices”—were “usually regarded as an expression of the sovereign’s direct justice,” distinct from the dispensation of justice by qadis.^[542] Similarly, according to Baldwin: “The key component of Ottoman legitimation, alongside the claim to de­fend and expand Islam, was the provision of justice. This involved providing se­curity for people and property by suppressing crime, and providing facilities that enabled subjects to resolve their disputes.”^[543] In ancient and modern empires alike, the “art of governing” was used to legitimate imperial rule, at the same time as defining it.^[544]

Empires put “law” to work in numerous different contexts. Arguments from law were employed in the acquisition and the ordering of imperial space: from the “piling up” of multiple and layered claims to sovereignty to the negotiation of treaties, coalitions, and trade charters in early modern colonial empires; from the development of modern juridical tools to “justify” the violent dispossession of indigenous peoples from land newly designated as “property,” to the cumulative elaboration of legalistic concepts such as “territorial jurisdiction” and “extrater- ritoriality.”^[545] “Legal rules also localize people’s rights and obligations in space.”^[546] One fundamental obligation of imperial subjects across ancient and Asian land empires, as well as modern commercial and colonial empires, was the payment of taxation (and other tribute) to the imperial center.

Arguments from law were also put to work in the juridical ordering of people (see section 1). The “Ottoman desire to rule diversity,” for example, led to the de­velopment of a highly specific form of non-territorial rule, namely what came to be termed the “millet system” (in operation from 1453 to the nineteenth century):

The Ottoman rulers recognized the diversity of religious and ethnic communities that made up the empire and also understood that this diversity could not and should not be assimilated into an overarching principle of sameness. Instead, they organized a series of ad-hoc negotiations with the heads of religious communities, resulting in what became known as the millet system. Under these arrangements Jewish, Greek Orthodox and Armenian communities organized their existence in the empire and survived through a generalized system ofimperial toleration and intense negotiation.^[549]

The millet system was a “... form of indirect rule based on religious difference,” through which “[t]he state gave up its control of the internal dynamics of the [Jewish, Greek Orthodox or Armenian] community in return for regular taxation and cohesive and obedient administration.”^[550] The Ottomans also permitted non­Muslims to litigate personal matters in Shari‘a courts, if they chose to do so.^[551]

Different imperial aims underpinned the adaptation and development of dif­ferent kinds of “repertoires of rule.”^[552] As Christopher Tomlins states with respect to early modern European colonialism:

To colonize means, fundamentally, to appropriate, to take possession.

English colonizers, like ancient Roman lawyers and imperial bureaucrats, differentiated between “citizens” and “subjects”—a distinction that does not, nec­essarily, map directly onto (metropolitan) “core” and (colonized) “periphery.”^[554] In juridical terms, citizenship tended to be a well-defined status, even if its applica­tion in practice was frequently fuzzy and contested. The juridical category of “sub­ject,” however, was relatively ill-defined. Across the British Empire, before 1780, the term “subjects of the crown” was a “... term without precise legal meaning, connoting nothing more than residency in territories claimed or, in the case of India, administered by Britain.”^[555] The juridical definition of “unfree,” as opposed to “free,” status likewise varied widely across time and space, from the “chattel slavery” of ancient Rome and the New World (recast into a different, racialized, form), to the indentured servitude of Colonial English America and the “serfdom” of Tsarist Russia. For the leaders of Imperial Russia, “... governance was about control over resources—territory and labor—and the social order required to se­cure them. Administration, rather than law, was the primary imperative of Russian rulers, but law entered the picture as soon as the imperial state asserted its claim to define the rights and obligations of people living on its terrain.”^[556] Hence, as Burbank, explains:

Over time, the [Russian] empire produced a series of regulations and decrees that asserted the particular rights and obligations of whole groups of people, de­fined by territory, confession, ethnicity, or work.

The phenomenon of serfdom, moreover, meant that roughly half of Imperial Russia's peasant population were classed as citizens—under the legal authority of landlords who were not necessarily Russian—with their own local courts and governance practices. As citizens, serfs had the right to present petitions to the emperor—creating a “rights regime” in which the citizenry related to the imperial state “as petitioners.”^[558] As Kollman has argued in relation to the earlier Muscovite court system, the right to petition the emperor also had a crucial ideological func­tion: it “mitigated” the imperial authorities' own use of judicial violence through the tsar's capacity to grant mercy.^[559] The right to petition the emperor was, in other words, used as a tool of governance.

“Bureaucracy was an essential component of imperial rule.”^[560] As we have already seen however, not all empires are alike. During the Tang dynasty (618-907 ce), China developed a sophisticated system of administrative and penal law. The Tang (penal) code covered aspects of what Western scholars would term “family law” and the “law of property, contract, and succession,” in addition to setting penalties for “deviant” conduct: “The emperor's subjects are instructed to behave in certain ways; should they fail to comply, punishments are to be imposed.”^[561] Bureaucratic rule was here intended to function as a counterbalance to local elites: “Rule by officials helped Chinese emperors avoid dependence on local lords, making China's imperial trajectory different from that of Rome and post-Roman polities in western Europe.”^[562] As the example of the Tang Code suggests, the codification of law was an important technique of the “art of governing,” but it was by no means ubiquitous or even essential to imperial rule.

The state codification of law under the Ottoman Empire, on the other hand, was part of a much broader program of imperial legal and bureaucratic reform undertaken during the Tanzimat era (1839-1876). The Ottoman civil code, the Mecelle-i Ahkam-i Adliye—in force from 1869 onward—was derived from Hanafi jurisprudence and covered contracts, torts, and (some) civil procedure. It was ap­plied in both Shari'a (“religious”) courts and the new Nizamiye (“secular”) courts; the former were presided over by qadis and the latter by imperial bureaucrats, overseen by the Ottoman Ministry of Justice. The Mecelle was just one aspect of “the remarkable growth of the civil bureaucracy” during the Tanzimat era:

In the nineteenth century, activities and institutions that had traditionally been the purview of religious groups or communities—education, forms of tax collec­tion, orphanages, hospitals, policing—were assumed by the state. In instituting these reforms, the bureaucracy and the imperial administration battled older institutions of the empire: tribes, religious groups, guilds, the janissary corps, pro­vincial rulers and recalcitrant subjects, to mention nothing of the external military threats and financial woes.^[564]

The processes of state bureaucratization seen in the nineteenth-century Ottoman Empire can be compared directly to processes ofcentralization and “modernization” associated with modern European colonialism: “Colonial authorities ruled over colonized populations by imposing modern law's doctrines, institutions and practices. Positive law and jurisprudence, comprehensive codes, judicial au­tonomy, rule of law, and other liberal legal ideologies were but a few aspects of the modernizing juridical transformation through which colonial states endeavored to colonize countries and to govern subjects.”^[565] And yet, as legal pluralist studies have shown, “... systems of law crafted from afar cannot simply be imposed in toto on different social contexts. Instead, imported legal institutions and codes get signifi­cantly reshaped to fit the local reality.”^[566]

The on-the-ground development of modern European colonial legal institutions— the complex networks of martial law and other kinds of “exceptional” powers, state courts, police, prisons, and penal colonies—all testify to the fundamental role that legal and bureaucratic techniques played in imperial, hegemonic, domination. As we have already seen, however, the development of imperial “repertories of rule” tends to rely on a “cumulative kind of legalism”—which, in turn, suggests “... the incompleteness of imperial control through the instrument of law.”^[567] As we shall see in section 3, the “complex and contingent configuration of imperial law” needs to be understood “not as a structure of command, but as a set of fluid institutional and cultural practices.”^[568]

3.