G.A Cohen's egalitarian fallacy

The egalitarian fallacy consists in rejecting claims about group differences because of their perceived moral implications. Thankfully, economic egalitarianism need not suffer from this infirmity. Why? Well, productivity is highly plastic. People with very different traits can have the same marginal product. Moreover, there is an endogenous and impredicative aspect to this. You are a painter and making a good living. Then you see your brother, the poet, has bought himself a nicer house. He explains that he tapped a new market. You do so too. Your marginal product has gone up. There is no reason why productivity in different industries should not rise without any limit save that given by the overall 'general equilibrium'. But that equilibrium is non-unique and can always afford Pareto improvement. Egalitarianism- like any other ism- can be perfectly fine provided it focuses on mechanism design to raise productivity for everyone. 

Sadly, there are those who think that what is truly important is virtue signalling and claiming to feel very very guilty because you have a dick whereas billions of women are having to sit down to pee. In the past some such shitheads did quite well for themselves financially. 

Some 25 years ago, one such shithead, G.A Cohen, wrote a paper titled 'If you are an egalitarian, how come you are so rich?' 

The answer may be that egalitarians have a trait which correlates with earning or inheriting or otherwise receiving more money. Ensuring egalitarians are rich may cause more and more people to seek to become egalitarian.  Philippe Égalité was one of the richest men in France. Sadly, this didn't save him from the guillotine but his son did get to be King for about 18 years. Clearly, being an egalitarian is no bar, it might be an advantage, to being or becoming as rich as fuck or even becoming the ruler of a country.

Egalitarianism can be an optimal ideology for wealth creation and those willing to migrate so as get richer faster. Assuming non-convexities and external economies, this ethic generates push and pull factors and supports 'Tiebout models' (i.e. different mixes of local taxes and local club good provision in different 'Marshallian industrial districts) which are 'separating equilibria'. In other words, people want to go to where their target peer group lives and to do what they do and achieve the same productivity and adopt the same preferences as they have. This is the morally positive aspect of egalitarianism. The negative aspect is that people of lower productivity may be pushed out even if they are the indigenous 'owners' of the land. Where there is deep inequality- even slavery- we need to ask if the worst off aren't alive only because of that inequality. Alternatively, Kings and Dukes- or even Dictators- may only be kept around by a class of 'new men' that seeks to mask its rise until it is powerful enough to show its hand.

By contrast, hierarchical ideologies of various types may take as their premise the notion that certain groups can never have high productivity. They need a Gandhian type of leadership which involves those who used to earn good money as lawyers or businessmen, turning themselves into facsimiles of emaciated beggars or starving spinners of cotton yarn or some such shite. 

Marxism was once an egalitarian theory predicated on the rise of the proletariat into a self-managing, highly productive, class who would be strong enough to disavow the control rights of owners of land, and financial capital. This may have involved fighting and defeating an aristocratic military caste which would rally behind 'Church & Crown' to defend the 'rents' that they extract. 

In America, where there was neither an Established Church nor a hereditary ruling class, Egalitarianism could stride forward more rapidly thanks to Henry George's notion of 'value capture'.  Vickrey was a Georgist and the Vickrey/Harsanyi 'original position' yields a perfectly sensible egalitarian utilitarianism once expected utility maximization is dropped in favour of something like regret minimization (because of Knightian Uncertainty). However, the steam was running out of egalitarianism because the world had changed. Some want to be more productive through STEM subject research. Others want to be stupid and prevent productivity increases by talking non-STEM bollocks. Also, drugs are nice. Seriously, have you tried drugs? 

I don't suppose G.A Cohen took a lot of drugs. But he did talk non-STEM bollocks. Thus, he did well enough out of an academic Ponzi scheme which he entered in the early Sixties. Thus, he was entitled to ask how he himself was quite rich even though his stock in trade was some sort of moral egalitarianism or egalitarian Marxism or other such shite. 

I suppose, if you suddenly inherit vast wealth, people would think you a hypocrite if you hang on to it while also claiming to be morally committed to economic egalitarianism. Even if it is important you retain 'control rights' over it because you alone know how best to invest that money, still, you could set up a trust and distribute beneficial rights in an egalitarian manner

 On the other hand, if your income is high, and you use that income to achieve a high material standard of living, there is no great scandal. We would say the outcome you support has to do with disutility- i.e. opportunity cost which has a signalling function for resource allocation. Yours is high. That of a poor, unproductive, person is low. If you live large, this advertises your higher productivity and there is a mimetic effect such that the currently poor raise their productivity so as to enjoy what you have. The categorical imperative at work here has to do with the meta-ethics of egalitarianism being utilitarian. Being more productive entails living larger so there is mimetic effect such that total utility rises

Many people, including many egalitarian political philosophers, profess a belief in equality while enjoying high incomes

as high as those of Tele-evangelists?  

of which they devote very little to egalitarian purposes. The article critically examines ways of resolving the putative inconsistency in the stance of these people, in particular, that favouring an egalitarian society has no implications for behaviour in an unequal one;

Which is true. However, you may have a theory of morality which says you must 'walk the talk' and yourself do what you want to see done by Society at large. But ascribing to a particular moral belief does not entail having that particular theory of morality. Cohen is committing a 'fallacy of composition'. It is not the case that what you want for the whole is also what you want for any particular part of the whole- including yourself.  I am not a Mormon, but I may want to live in a Mormon society because I believe there will be little substance abuse and thus much less crime. People will be polite and cheerful. Marriages will be stable. Kids will play actual, not video, games.  

Cohen now raises up a series of strawmen-

that what's bad about inequality is a social division that philanthropy cannot reduce;

some type of philanthropy can reduce any type of inequality 

that private action cannot ensure that others have good lives;

some coalition of private actors can ensure anything that can be ensured by Society as a whole 

that private action can only achieve a "drop in the ocean";

lots of drops create an ocean 

that private effort is not called for, since justice is a matter for the state to enforce;

a big enough private coalition is the State. 

that private effort cannot remove the fundamental injustice, which is inequality of power;

see above 

and that private effort involves an unreasonably large psychological burden.

which seeing a shrink can reduce. 

The steelman argument Cohen steers clear from is the original Utilitarian one which has to do with disutility as opportunity cost and the mimetic effects of showcasing what is achievable through higher productivity- viz. a higher material standard of living.

Cohen believes

justice in personal choice, within a just ethos, is necessary for a society to qualify as just.

Presumably the meaning is 'most people must make the type of choice which is in accordance with the ethos of their society in order for that society to qualify as having that ethos.'

This is obviously false. Suppose our Society is an absolutist monarchy. Its ethos has to do with the Divine Right of Kings. It does not follow that most people in our Society must be Kings and act in a regal manner. Indeed, there may be no King- just a Regency Council.  

But the question: "What does justice demand of individuals in a just society?" is not the same as the question: "What does justice demand of individuals in an unjust society?"

True. But the answer to both may be the same. Justice demands the same thing under all circumstances because there is a Science of Law which is like the Science of Physics which does not demand something different in China from what it demands in Chad.  

And, in the present article, I raise a question related to that second one: I ask whether egalitarians who live in an unequal society

why be an egalitarian in an equal society? That would be like being in favour of saying woof woof if you are a dog. My adherence to 'woof woofism' is only remarkable because I am not a dog. I am actually a cat and should be addressed as Chairman Miaow.  

(one, that is, whose government, for whatever reason, fails to establish the equality that these egalitarians favour)

If there is a government, there is inequality. Indeed, following Dahrendorf, one might say a sufficient condition for social stratification is the existence of the law.  

are committed to implementing, so far as they can, in their own lives, the norm of equality that they prescribe for government.

This does not follow. You can be personally committed to egalitarianism while holding that there should be no government or that it should be a 'night-watchman' concerned only with External Defence.  

There is one thing egalitarians within an unequal society cannot say, in the light of what was shown in "Where the Action Is."

That wasn't light. It was stupid shit. There can be no equality if some shithead gets to tell us what we can or can't say.  

They cannot say that equality is not a goal for individuals to pursue in their own lives in any society (be it just or unjust) and, therefore, more particularly, not something for individuals to pursue in their own lives in an unequal society.

A poor, unproductive, person is welcome to pursue the goal of becoming equal in productivity, and thus income, to anybody she likes. Equally, a person who is highly productive is welcome to start slacking off till her productivity declines to that of whatever peer group she wishes to gain acceptance in. 

But they might, and do, advance other reasons for not pursuing it in an unequal society, reasons which I propose to examine here.

No they don't. Only stupid shitheads teaching worthless shite 'advance reasons' in this connection. But, as I have said, there has always been- at least since the second half of the nineteenth century- one reason viz. using mimetic effects to advertise and broadcast the habitus of higher productivity.

In asking what conduct egalitarians are committed to in an unequal society, I am interested, more particularly, in the conduct of rich egalitarians in an unequal society: it's not so hard for a poor egalitarian to be true to her egalitarianism in an unequal society.

But Society benefits if poor people decide they are just as good as those with high productivity and decide to imitate them till they become their equal. Thus, in rural India or Africa, when the child of a peasant sees the superior material standard of living of educated lawyers, doctors, engineers etc., they are motivated to themselves gain education and much higher productivity than involuted agriculture can afford. The result of this 'Tardean mimetics' is that the whole society is pulled up the value chain. The opposite situation- wealthy Gandhian barristers and industrialists parading around as soi disant peasants of a particularly emaciated type- is bad for Society.  

Or, if you prefer, I am interested in the conduct of rich professed egalitarians, since many people would say that they can't be egalitarians, that they can't really believe in equality, if they're rich, if, that is, they keep their money.

Just as no man can be a feminist till he cuts off his dick and thus has to pee sitting down. But why stop there? No human being can claim to believe in Justice unless they give up territory stolen from Neanderthals or Denisovans or primates more ancient yet.  

Cohen was a British Marxist with an on again-off again relationship with the Labour Party. He appears to have had no understanding of British economic history or its complicated class politics. The fact is, Labour knew that coal mining was becoming unproductive (output peaked in 1913 but employment peaked in the Twenties) but the miner's union was the biggest weapon in its arsenal as Ted Heath learned to his cost. Thus it had to tell stupid lies. Once the voters showed they cared more about cheap holidays in Franco's Spain that punishing the rich with super-taxes, Labour had no ideology, no program, nothing that wasn't bluff and the hope of muddling through. It literally had nothing to put in 'place of strife' while strife was all its financiers could offer. This was a slow motion suicide which only ended when Blair removed Clause 4. Sadly, Blair hadn't the nous to rid himself of Brown and Brown, who has a PhD, worked diligently to make Labour unelectable as did the stupider of Ralph Miliband's sons and then the appalling Jeremy Corbyn whose brother is a climate denier because he thinks the thing is a plot to wean Britain off coal- and thus the miner's unions. In other words, these guys live in a pre 1913 past. Sir Keir, sadly, has turned out to be an utter imbecile. Still, he has lasted longer than Liz Truss. 

We are navigating close to those familiar philosophical rocks that surround the question whether people may truly believe in principles on which they do not act.

The answer is, sure. I believe that super-models want to rape me. However I do not go out of my way to avoid them. This is because I have great faith in the ability of the British Police to defend me from their insensate lust.  

This is the ancient problem of akrasia,

lack of will power 

on which Socrates and Aristotle had opposed views. Socrates thought that it was not possible to do intentionally what you think it morally wrong to do,

or did he merely pretend this was the case for the sake of making conversation?  

and Aristotle held a view that is harder to summarize but which was certainly not that Socratic one. The akrasia problem, or one part of it, is whether this dyad is inconsistent: 

1. A believes that he morally ought (all things considered) to do X.

Since all things can't be considered, there is no moral 'ought' 

2. A does not intend to do X.

There is no inconsistency in having intentions contrary to your morality. If morality prevents you carrying out your intention, your good angel has won. If not, the reverse is the case. The good news is your good angel always wins if you stick with the intention to beat up Mike Tyson or other large muscular men. Here, your moral abhorrence of violence saves you from certain death.

The other point is you can believe something is morally wrong but that purging yourself of that moral wrong is inexpensive. Thus, though homosexual acts are immoral in Hinduism, the expiation for them consists of little more than having a bath and changing your clothes- which you would do anyway because India is very hot.  

 

1. A believes that he morally ought (all things considered) to do X. 

2. A does not intend to do X. 

3. (A believes that) A's behaviour is not out of line with his own moral principles. 

Now that triad undoubtedly represents an inconsistency.

No. It may be that it is only moral to do x if you don't intend to do x. Some extra ingredient, e.g. the intervention of an angel, is required for you to do accomplish what you morally ought to do. 

Thus suppose I feel I have a moral obligation to write a poem about Sir Keir Starmer's victory. Yet I also believe it is immoral to write a poem save when moved by something far beyond my will, or my intentions, or my political loyalties. It so happens that I am also an alcoholic. I wake up with a hangover and find I have written 'The Moon in June is like a lovely prune whom I hope to encounter soon but not in June or on the Moon.' Since Sir Keir became PM in July, which is the month which follows June, it is obvious that this sublime poem is indeed that which I morally ought to have written without intending to do so. Clearly mention of the Moon is a rebuke to the Sun newspaper which only endorsed Sir Keir in July. The meaning is, unlike Blair, Starmer is not obligated to Murdoch. I honestly don't think I could have written a better poem commemorating Labour's victory if I had intended to do so. 

If you leave out what's in the parentheses in 3, the inconsistency is a logical one: it's logically impossible for all that to be true of A.

Nope. Firstly 'all things considered' may mean 'at the end of mathematical time'. Secondly, what is morally right may require the intervention of some power greater than one's own will and intention. Thirdly X may be 'epistemic' and thus not subject to Leibniz's law of identity. Indeed, it may be impredicative- e.g. halachah vein morin kein- i.e. the law which if known forbids its own application. 

The sad thing about logic is that whatever you think it rules out, it actually rules in. 

And if you include what's in the parentheses, then all of 1 through 3 might be all too true, but there's then an inconsistency in A herself, between her beliefs and her behaviour.

Not if the belief is impredicative or otherwise epistemic or involves the intervention of something higher than intention.  

Or, if there is a subtle consistency in the triad that I'm failing to see, then I'm sure it could be eliminated through a (non-tendentious) tightening of one or more of the triad's constituent formulations.

Nope. So long as X is epistemic, there is an intensional fallacy which takes the thing out of the realm of set theory or a logical calculus.  

If Cohen was crap at logic- i.e. had shit for brains- was his heart, perhaps, in the right place? 

I think the rich/poor division is hateful in part because the poor have intelligible sentiments of injustice when they contemplate that division.

According to this logic, if there are people who find the existence of Jews living amongst them to be a terrible atrocity and miscarriage of justice, then their intelligible sentiments- as expressed by Hitler or Hamas- when they contemplate the division between Jews who are still alive and those who have met with the final solution, renders the former group- viz. Jews who are flagrantly alive- truly hateful. 

Thankfully, poor people don't think it is unjust that more productive people have more than they do. What is unjust is to attribute to them the evil opinions of ranting, economically illiterate, nutters or academics. Similarly, it really isn't true that 'Aryans' or Muslims or any other group harbours a wholly psychotic and murderous hatred of any devout or decent set of people- more particularly a talented, humane, community whose Holy Scripture all can profit by. 

Why does Cohen attribute such horrible sentiments to England's poor? He says his parent's were working class Communists. Sadly, they were also Canadian. As has been mathematically proved by Lawvere, Canadians have no souls. The fact that Cohen emigrated to England can't change this brute fact. 

But the anti-division egalitarian who eschews the discourse of justice says that such sentiments are, or (supposing that the poor have no such sentiments) would be, misplaced. He rejects the thought that (at least part of) his reason for hating inequality is its injustice. 

It is unjust that women have to sit down to pee. If you have injustice, you should hate your penis and chop it off immediately. As a Feminist, I chop off my penis up to five times a day. That is why, at any given moment, it is likely to be way smaller than average. I've tried to explain this to various women. If they just stay with me long enough, it will attain a length they find satisfactory. Sadly, females are too stupid to understand this. That is why, as I have often said, Feminism can't be left to women. Men must take charge of it.  

 Within Dworkin's theory of equality,

is a non sequitur. People are themselves a resource. Nothing can grant people equal access to people because every person is more accessible to himself than to anybody else. 

the locus of the norm of equality proper (as opposed to, for example, norms governing duties of compassion to the unfortunate, be they at home or abroad) is in the relationship between the state and those over whom it claims the right to govern.

But those it claims the right to govern, claim the right to make it their bitch. Dworkin- like other such Professors- was as stupid as shit.  

Because it claims that right, the state must treat its citizens with equal respect and concern, on pain of being a tyranny,

but citizens can make the State their bitch and refuse it even the courtesy of a reach-around. Instead they can keep reaming it while screaming 'you like it rough, don't you you little retard?' 

On the other hand it is true that the state must treat its citizens with equal respect, concern, and an  appreciative and undiscriminating appetite for any such turds as they might let fall from their anuses.  How can anyone claim to have shown you genuine respect if they balk at devouring your faeces? A Head of State whose mouth is not the proper depository for every single turd the citizenry produces is nothing but a tyrant! Even Hitler and Stalin eagerly devoured the turds of the proletariat. It is only in soi disant Capitalist 'Democracies' that Presidents and Prime Ministers turn up their nose at such humble fare as emerges from the anuses of the working class. 

and it must therefore distribute resources equally to its members.

Especially reproductive resources- e.g. super models.  

But, if the state fails to do so, then no analogous duty falls on individuals: it is not the individual's duty to treat everyone (relatives, friends, and strangers alike) with equal respect and concern.

Also, they don't have to eat their shit- unless they teach Political Philosophy.  

It does not follow that no related duty falls on the individual when the state fails to be just. For Dworkin, it is then her duty to promote equality by trying to change the state's policy.

By getting the Head of Government to eat everybody's shit.  

For, insofar as government is unjust, then the citizenry whom it represents are, Dworkin thinks, collectively guilty: each therefore has a duty to seek to rectify the state's injustice.

by shitting copiously and forcing the Cabinet to eat that shit.  

So there is indeed a tension between professing egalitarianism and not doing anything to promote equality, by, for example,

force feeding your turds to senior officials.  

contributing money and/or time to an egalitarian political party.

Fuck that. Contribute your turds and force the head of that egalitarian political party to, very respectfully, eat your shit.  

But there is no obligation so to contribute that one ends up as one would in an egalitarian society.

i.e. dead. Death is the great leveller.  

 Nozick said, in Anarchy, State and Utopia, that, if it was of compelling moral concern that the badly off be assisted, then private charity could achieve that.

Or if it couldn't, famine and epidemics would serve as Malthusian checks.  

He claimed that the only reason for preferring to assist them through state-imposed redistribution was that under such a policy people who do not want to give would be forced to give.

Till they figured a way to avoid taxes or emigrate. Only economic rent can be confiscated. As demand and supply become more elastic, less and less is available for redistribution. All that can be achieved is a degree of risk pooling- i.e. transfers within a particular economic class. Sadly, the bureaucrats will take an increasing bite out of it.  

In reply to Nozick, Nagel claimed that there are good grounds for state redistribution of the holdings of those who indeed want to contribute, because a person who is willing and, indeed, eager to contribute through taxation might reasonably be unwilling to give off her own bat.

Actually, people who'd never dream of under-tipping a waiter, gain much satisfaction from bilking the tax-man. After all, the State is rich. What's more it gets to literally print money.  

And Nagel's justification of that unwillingness would, if sound, apply to our case, the case of the rich egalitarian who is asked why he does not contribute massively in a society whose state will not force him to do so. I quote Nagel: Most people are not generous when asked to give voluntarily, and it is unreasonable to ask that they should be. Admittedly there are cases in which a person should do something although it would not be right to force him to do it [for example, to keep an ordinary promise, or to refrain from ordinary lying - GAC]. But here I believe the reverse is true. Sometimes it is proper to force people to do something even though it is not true that they should do it without being forced.

The problem here is that such people may create a countervailing force. If we bang on about how the rich should hand over their cash, they might pay people to bang on about all sorts of wedge issues or create 'scapegoats'- immigrants, drug-addicted criminals, Hollywood paedophiles who have taken over the Post Office- so that our type of crazy gets swamped by all sorts of other types of crazy. 

It is acceptable to compel people to contribute to the support of the indigent by automatic taxation, but unreasonable to insist that in the absence of such a system they ought to contribute voluntarily. The latter is an excessively demanding moral position because it requires voluntary decisions that are quite difficult to make. Most people will tolerate a universal system of compulsory taxation without feeling entitled to complain, whereas they would feel justified in refusing an appeal that they contribute the same amount voluntarily. 

Economists know different. In the short run, under exigent circumstances- e.g. a vital war of defence- tax avoidance may not rise. Medium to long term, everybody does it. This is because the tax-man isn't a starving beggar. He's a fucker who got a scholarship to Winchester and joined the Treasury because his tutor at Baliol told him there aren't any gentlemen left in Merchant Banking. 

Yet another putative rationale for not expecting people to pursue privately the norms that would prevail in what they regard as a just society is that each person has the right to a private space into which social duty does not intrude.

We don't expect people to respect irrelevant norms, e.g. those which apply to safely driving a motor vehicle while taking a shit. On the other hand, certain actions taken in one's private life may be considered inconsistent with the discharge of a particular public office. More generally, advocacy for a particular cause would be negated by inconsistent private behaviour- e.g. demanding the abolition of private schools while sending your own kid to one such.  

But the prosecutor hounding the rich egalitarian

is in the same boat as the self-appointed prosecutor hounding the 'Feminist' who hasn't chopped off his own dick. The problem with being prosecutors of this type is that people run away when they see you approaching.  

need not deny that private spaces are legitimate.

Private enterprise occurs in private spaces. If liberty is protected there, then liberty obtains. The public distribution system has competition from private traders.

Why might we want the State do do certain things which we would not want to do ourselves? One answer is the free rider problem, Another is one's superior ability to escape both paying for and being subject to the action of the State- which is itself a free rider problem. Cohen takes a different view.

Suppose we are on the battlefield, and that a comrade will die unless my leg is cut off (never mind how that's supposed to help him: this is a philosophy paper, not a treatise on interpersonal surgery).

You could volunteer to have the leg cut off. But the army can't have a rule of this type. Desertions would be too great.  

Nagel is saying the analogue of this: I might recognize that it would be right for someone forcibly to cut my leg off, but I can nevertheless protest that it is asking too much to expect me to cut it off myself.

Nonsense! It isn't right for someone else to cut off my leg. You should trust me to do it myself. Also, let me hold your gun while I do it. I promise not to shoot you.  

Let me elaborate my doubt about Nagel's case through closer focus on this analogy. Suppose that the leg is to be removed by a knife, and that there is no anaesthetic available. We need to compare, on the one hand, someone else cutting my leg off, who, like the taxing state, operates independently of my will, and, on the other hand, me having to cut it off myself. The cost that results from the cutting is the same in both cases: pain, and loss of the leg. But, because much pain comes immediately with the cutting, it is fiendishly difficult, will-wise, for me to do the cutting myself, for me to keep myself applied to that ghastly task, so difficult that substantial extra costs of struggle and strain supervene if I do.

Rubbish! Just give me a knife, a bottle of whiskey and trust me to chop off my own leg. I won't get drunk and stab you. Take my word for it.  

Contrast, now, a case where my leg will be severed by an electrically powered knife five minutes after a button is pressed, and I do agree that the button should be pressed: I recognize the validity of my comrade's claim to my leg. Perhaps there is, in addition to the other costs, an extra burden, on the will, if I have to press the button myself, but that extra burden is surely inconsiderable: it will not be a great relief to discover that you are determined to push the button, so that I need not do so. And, so I submit, that second case, not the manual cutting one, is the right analogy here. The rich egalitarian wants the state to press the tax button.

No. A stupid egalitarian may do so. But wealth does not entail stupidity- though it may be associated with hypocrisy. 'I'd be happy to give up my billions if the postman is content to pay more in taxes so as to help the starving drug-addict. On the other hand,  

It may be a bit easier for him if the state does that than if he has to press the standing order button when e-mailing his bank,

Cohen was a technophobe. He knew about standing orders and he knew about email. He didn't know that you can't combine the two things.  

An egalitarian may believe that all people can be equally productive. Anything which prevents them becoming so- even if it is excessive wealth which allows them to be looked after as if they were babies- is bad. For this reason a 'Nanny State' is inegalitarian. It discourages the proper self-development of productive powers and abilities. 

Cohen's paper had no conclusion. My blog does. It is that Cohen was stupid. An 'ism' is about productivity. Nationalism is the notion that people who speak the same religion or who belong to the same creed can be more productive if they rule themselves. Feminism is the notion that women know how to raise their own productivity and everybody benefits if this is done. Capitalism is the notion that financial markets are better at allocating investible funds so that productivity rises faster. Communism is the opposite. It is alleged that irrational speculation and 'wasteful competition' and the inevitability of an 'under-consumption crisis' will cause an economic disaster. Fascism or Corporatism promised to combine the best features of other 'isms' thanks to the genius of the Il Duce or Fuhrer. 

Sadly, these 'isms', even if egalitarian, were liable to point at certain groups as essentially 'parasitic' and not productive. Cohen and his ilk made a different assumption- viz. that 'the poor we will always have with us' because some people are shit. If you aren't shit, and thus not as poor as shit, the least you can do is feel bad about yourself for this reason. Egalitarianism means everybody should be fucking miserable. Either you are shit and thus poor or you are morally shit and therefore you ought to feel really shitty about yourself. Alternatively, you could just tell Rawls, Cohen, Nozick etc. to go fuck themselves. The political tide had turned against them at the end of the Sixties. They would end up teaching imbeciles doomed to themselves teach woke nutters who would publicly shit themselves anytime they were triggered by anything which looked like it might be a dick or might have a dick attached to it. How can there be any type of equality so long as women have to sit down to pee? Also, what if they sit down on a dick? If even one dick is prowling around, there can be no Democracy, no Fraternity and no Equality whatsoever. 

Kanika Sharma on Rukhmabai

It is one thing for foreigners to hold absurd ideas about India. It is another entirely when an Indian educated at JNU teaches these absurd lies to foreigners. Kanika Sharma, the subject of my previous post, has a book chapter titled 

Restitution of conjugal rights and the dissenting female body: The Rukhmabai Case

 Rukhmabai was not a 'dissenting female body''. She did what her step-father- Dr. Sakharam Arjun- wanted her to do. Sadly, her husband was less keen on blindly obeying his kinsman, Dr. Arjun, who never ceased to pile humiliations upon his head and wouldn't even let him consummate the marriage.

Sudhir Chandra in 'Enslaved Daughters' writes- 'Offering the public his view of the case in April 1887, the husband, who estimating his wife's property’s value to be ‘upwards of Rs. 25,000’,  maintained: ‘In this little history of property lies the whole secret of the world-wide case of Dadaji vs. Rakhmabai.’ 

' ‘If the name of the maternal grandfather is substituted for the name Rakhmabai in this case, its realities will be better understood but its poetry will be gone’.'

 Put simply, the fact is that the petitioner was making a property claim and 'restitution of conjugal rights' was merely the convenient doorway provided by law towards this end. This did not mean he desperately wanted to fuck Rukhmabai or genuinely desired to maintain her in his own house. He wanted money and after Dr. Arjun died, that is what he got. It wasn't a lot of money but it was some compensation for what Dr. Arjun had put him through when he was a 'ghar-jamail' (i.e. a son-in-law maintained by the father-in-law). There was reason to suspect that Dr. Arjun had arranged the marriage with a view to benefitting his own family. He chose a blockhead as a groom because he hoped to control him. Later a maternal uncle of the blockhead took him under his wing, perhaps with a similar view. 

Since the Rukhmabai's maternal grand-father was a man of substance who had served the Government and been granted a title, the sensible thing to do was settle the matter with a couple of thousand rupees in cash. Once the property angle became clear, the 'poetry', or political aspect, was gone. At the same time, the Anglophone public were becoming aware that, in the caste to which Rukhmabai belonged it was quite usual for a wife to put a notice in the vernacular press dissolving a marriage with an errant husband. This was in accordance with customary usage. The fact that Rukhmabai had a Bank account and property which could be attached by a Court order is what had led to litigation. 'Restitution' in England and India was always only about money. The fairest thing to say is 'though the wife, who gained no benefit from the husband may feel it is unfair that the husband gets a penny of her Estate, still, the sensible thing to do is pay him off and put an end to vexatious litigation. After all, he was induced to enter a marriage which did a yield a benefit to the wife and her family- viz. the pretence of upholding orthodox Hindu religion. By contrast, the husband received no benefit to offset his legal claim. Given him some money and let him get on with his life. You and your people have dragged his name through the mud for long enough.' 

Did Rukhmabai act autonomously when she spewed contumely on her husband? Did he did so to please her step-father? She may have genuinely wanted to emulate him by training as a Doctor. But this does not mean she wanted to undergo child marriage, yet nevertheless, remain celibate and childless. Yet, since such was her step-father's will, such was her fate. Pandita Ramabai, being a free agent, could defy convention and get married to a Kayastha (she was Brahmin). Sadly, her husband died but she had the consolation of having a daughter. She travelled abroad, converted to Christianity, and ensured her daughter graduated from an American College. Still, it is notable that she did not re-marry- which, as an evangelical Christian at that time, she was welcome to do. Rukhmabai, it is said, acted as an orthodox Hindu wife, and later a Hindu widow, though her husband had remarried. It may be mentioned, that there was considerable financial support for Rukhmabai and this enabled her to study in England. However, the case had no wider import. India was and is very fucking poor. Court judgments don't matter in the slightest unless a large Estate is involved. Moreover, it has never been the case that Courts have forced people to have sex. 'Restitution' was just a device for a money claim and a gateway to divorce. There is no sinister 'biopolitical' aspect to this whatsoever. 

 In Moonshee Buzloor Ruheem v Shumsoonnissa Begum, decided some years previously, a Muslim husband who had defrauded his wife brought such a suit so as to offset damages he would be obliged to pay her. The plain fact is 'Restitution of conjugal rights' was just a legal artifice or fiction, similar to the old tort of trespass vie et armis (i.e. by 'force and arms'), and not actually involving any rape or the flourishing of spears or bows and arrows. It could be claimed by both men and women. Kanika Sharma is pretending that evil White judges were forcing Hindu women to have sex with their husbands. Rukhmabai was a dissenter. She requested Queen Victoria to order evil White Judges in India to stop holding down Hindu women so they could be beaten and raped by evil Hindu husbands. Sadly, under evil dictatorial reign of Narendra Modi (real name, Nicholas Maugham) this hideous procedure is being used. However, I may point out that this also happened when Rajiv Gandhi came to power. My then wife threatened my parents with such a suit. My mother was terrified. Dad, an enthusiast for the law who, I suspect was wholly ignorant of it, painted a vivid picture of female police constables laying rough hands on me and dragging me out of the house to some hideous prison cell where my wife could sate her insensate lust upon my frail and quivering form. Since my wife was Italian, my mother jumped to the conclusion that Indira had lost Rajiv to Sonia by some similar rape under colour of law. She bowed to the majesty of the law and yielded me up to my wife's tender mercies. 

However, like Dr. Sharma, my mother's conception of the Indian law re. 'restitution of conjugal rights' was wholly mistaken. It has always been just the legal doorway to a financial settlement and divorce. Nobody was or is actually forced to have sex. Bodies, even if Hindu and dickless, were not sexual objects which the law disposed off as it pleased. 

Colonial laws in late-nineteenth century India often reduced the native female to her corporeal body,

No law has ever done so to any type of person- even a slave. The 'native female' could own property and discharge various religious, legal and other obligations.  Similarly, even a slave could be held accountable for actions of his mind, not his body. 

and this was especially the case with laws regarding marriage and a woman’s rights within that marriage.

The case of Rukmabai shows the opposite was the case. A wife who could not be returned to the matrimonial home by brute force could not be returned by the force of law. Why? Custom did not permit it. It was against public policy. 'Restitution of conjugal rights' was merely a legal device preparatory to divorce and a financial settlement. It didn't actually mean that anybody was forced to submit to sex. 

In India, it often happened- and still happens- that a bride from a powerful local family would refuse to stay with her in-laws. The groom would be obliged to become a servant of his in-laws if he wanted to enjoy married life. Indeed, some grooms brought to England from the Punjab are beaten by the brothers-in-law and used as slave labour. A shelter for such battered husbands was mooted but they were afraid of being beaten up by the 'Black Sisters of Southall'- or so I have heard. 

It must be said, it was Lord Denning- in Bendall v McWhirter- who introduced the notion that women, in the eyes of the law prior to 1882, were a type of furniture, or other such insensate object. He said the English wife was “more like a piece of her husband’s furniture than anything else. The husband could not sue her in ejectment or trespass, but neither could he sue a piece of furniture. He could bundle his furniture out into the street, and so he could his wife.” What Denning did not say, is that the husband could fuck this piece of furniture- just as America's next Vice President fucks his sofa- and have babies with it. No doubt, he also believed that sofas and ottomans could approach the court for restitution of conjugal rights or maintenance from absconded husbands. 

My point is that though the Law is an ass- it may be a useful enough ass. Bendall v McWhirter led to statute law which gives the deserted wife occupying a home belonging to her delinquent husband's trustee in bankruptcy a one year grace period to find alternative accommodation. However, legal scholarship which assumes that the Law's asinine ratios reflect, or otherwise sustain, some power relation of dominance and submission is not an ass. It is what emerges from the anus of the ass. 

This essay closely examines the Rukhmabai case where intertwined laws on age of consent as well as restitution of conjugal rights focused on the body of the Hindu woman

as opposed to her similarity to a sofa or an ottoman- probably because sofas and ottomans come from Muslim countries and Rukhmabai was Hindu. 

while ignoring her thoughts and desires,

initially, the case was decided in her favour 

thus seeking to render her a mute spectator in her own life.

Yet the outcome of the case showed that Rukhmabai was not mute and that she prevailed. The plain fact is the plaintiff was appealing to an English law re. restitution of conjugal rights which had no support in Hindu law or Indian case law. Nevertheless, the initial decision in Rukhmabai's favour was wrong in law. There is no difference between 'institution' and 'restitution'. What decided the case was whether her husband could support her. The Court decided he could.

I should mention, the penalty of six months imprisonment for failure to provide conjugal rights had been abolished in England around the time the case was brought. Still, since the orthodox Hindus created a furore, the plaintiff got what he really wanted- viz a pay out. Truth be told, he had been dealt with in a high handed fashion by his wife's step-father. Still, this was a storm in a teacup to do with an ongoing fight between 'reformists' and the orthodox party- who, however, weren't really orthodox at all. They just wanted to pretend that English education was dangerous to Hindu womanhood or some such shite.  From the British point of view, the Courts had upheld 'orthodox' Hindu law while leaving the question of enforcement to one side. Similarly, a court could say 'such and such marriage is 'svagotra' and illegal'. Those involved could reply 'go fuck yourself you svagotra cunts.' There the matter would end. The law is merely a service industry when it isn't too busy being an ass. 

This attempt at muting women in their own lives is replicated in mainstream historiography which remains a deeply patriarchal enterprise and largely ignores ‘what the women were saying’.

Not in this case. Rukhmabai's letter to the Queen Empress gained wide publicity. But then Pandita Ramabai too had gained a lot of publicity. Indian women, then as now, had no difficulty making themselves heard. On the other hand, it is true that Colonial law did succeed in turning the Rani of Jhansi into just a corporeal body. Viceroy Sahib did voodoo compelling her to surrender to British forces. Evil Hindoooo men are propagating the myth that she died of wounds received on the battlefield.  

Even when focusing on age of consent women are repeatedly framed as objects rather than subjects, despite the fact that many contemporary women were speaking and writing about these issues.

It is this silly bint who is 'framing' women as objects. This is because evil Rishi Sunak is using Voodoo to control her body.  

The woman as subaltern is not allowed to speak for herself,

Spivak said this of the Guleri Rani of Sirmur. Sadly, the Golden Book of the Indian Princes mentions her great role in expanding her kingdom despite the best efforts of her idiot of a husband.  

instead many influential tracts on the history of age of consent in India focus on the male voices prevalent at the time, with particular emphasis on men such as Behramji Malabari

a Parsi journalist sucking up to the Brits.  

or BG Tilak.

Who actually mattered. But so did Annie Besant and Madam Cama. Still, it was Rani Rashmoni, Indian women wanted to emulate. She was an excellent business woman and left a great name for philanthropy and temple construction.  

For the purpose of this essay, I seek to posit Rukhmabai as a subaltern subject

why? She qualified as a Doctor in London and held senior positions in the Medical Service. She wasn't 'subaltern' in any way.  

and attempt to recover her voice by tracing the defence that was articulated on her behalf in the courtroom and examining the letters that she wrote to The Times of India within the country and The Times in England.

Wonderful! Sharma will recover the voice of a woman from her letters which voiced whatever she wanted to say. Hopefully, Sharma will next recover the voice of Mamta and Mayawati and Liz Truss and Kamala Harris by watching YouTube videos of their speeches. 

Her first-hand accounts of the plight of the child wife married to a man she would have never chosen for herself lent a strident voice against the institution of child marriage and the idea that a Hindu woman must always acquiesce to conjugal relations with her husband even against her own wishes.

No. Had her garbadhan ceremony been followed by consummation, then she would be able to give a 'first hand' account of the plight of the child wife. Since she was 22 years old when the court case began, she could do no such thing.  

Rukhmabai’s rigorous public intervention

passionate not rigorous. 

reveals that for brief moments, though always closely circumscribed by the patriarchal norms determined by the elite in the society,

elite Marathas were 'sanadi' and did not permit widow remarriage. Rukhmabai's mother married a reformist Doctor. As such, this meant that 'elite' Hindu rules did not apply to her. However, her husband was related to her father and thus the real issue here is whether the family was 'sanadi' or 'kunbi' Maratha. Indians understand these things though they may not say so in clear terms. Sharma probably understands all this better than I do. But it is her job to pretend that women can't talk or act for themselves because they are utterly shit.  

the subaltern woman can attempt to have her dissent registered.

No she can't. Some nice Professor should pretend to be registering her dissent on her behalf because, since she didn't have a dick, she obviously could not have had a mind or a voice or a will of her own.  

The problem with the Rukhmabai case is that we don't really know whether she disliked her husband or didn't want to consummate the marriage after puberty. Whatever she said or wrote may have been dictated by her step-father or other such authority figures. The problem was, they were all men. They didn't really know what was best for her. 

As for 'age of consent' or the ban on Brahmin girls marrying non-Brahmins and other such provisions of law, they simply didn't matter at all though no doubt, a Court Case could end with one party or the other getting paid off. However, it was cheaper and more satisfying to just get the fellow beaten or killed. Alternatively, if you were into 'Ahimsa', you just defied any and every court order. The law is merely a service industry. If people won't pay to enforce its judgments, it is ineffective or is disintermediated. 

Kanika Sharma's cock-eyed Jurisprudence

What’s in the rule of law?

Two things. Firstly a body of law- i.e. decision rules or protocol bound juristic procedures. Secondly the provision of incentive compatible remedies linked to rights created under a vinculum juris, or bond of law. 

The rule of law can be limited by lack of resources, lack of incentive on the part of obligation holders, lack of power, legitimacy, or popular support. However, it can also be considered to be a service industry- just like finance, insurance, education etc.- which is provided for a price and makes a profit for 'the Stationary bandit'- i.e. the state. 

In England, Justice was initially a profit centre for the King. Sending a 'General Eyre' to a place meant revenue in terms of fines, forfeitures and quo warranto reclamations of Crown rights. It began to develop independently as a system of dispute resolution which supported the commercial prosperity of a region. The 'Law Merchant', which had evolved autonomously on the Continent, gave rise to the notion that law may be non-arbitrary- i.e. have 'naturality' and this further stimulated the growth of both the Common Law and King's Equity. 

The British were determined to keep the profits from oceanic colonialism out of the hands of the King so he would be reliant on Parliament to raise taxes. Thus, England arrived at a doctrine of separation of powers in an endogenous manner. We may say lawyers like Thomas Cromwell were the Gramscian 'organic intellectuals' of the Tudor/Stuart period which, remarkably, did not end in Absolutism but the Glorious Revolution. In other words, the British Empire began to grow at precisely the time when Britain rejected both 'Divine Right' and 'Leveller' Democracy or Republicanism. From Locke and Hutcheson to Hume & Smith & Bentham, there was consensus that the Law was a service industry whose aim was Utility, nothing more, nothing less. 

Sadly, some stupid Professors of Law don't understand this. They say- 

The British Empire used a great democratic ideal (rule of law) to manufacture racial difference and rationalise colonial domination

This is utterly mad. Racial differences and colonial domination had existed thousands of years before there was any notion of the rule of law separate from the rule of the Monarch. Moreover Democrats distrusted Courts as tools of the rich. The democratic ideal of justice might feature 'People's Courts'- redistributing agricultural land- or the 'Revolutionary Tribunals' of the French Revolution which chopped off the heads of plenty of Aristocrats. 

Prof Kanika Sharma, mis-educated at JNU, teaches at SOAS. She writes in Aeon

Law was central to the British colonial project to subjugate the colonised populations and maximise their exploitation.

This is nonsense. Force is central to any such project. Extra-judicial killing and extortion and looting is the basis of subjugation. The Law, by contrast, is a service industry. The Brits supplied it to those who could afford it. However, getting a court judgment in your favour still left you with the problem of hiring muscle men to enforce that judgment. In other words, what you paid the court for was 'title'. It was up to you to get 'possession'.

The British established their paramountcy in India by paying some Princes who controlled strategic territory to 'keep the peace'. They also charged other Princes or landlords for providing them with protection. 

If Sharma is right then the reason India retained the British legal system was because Jawaharlal Nehru was determined to subjugate Indians and maximise their exploitation by his own dynasty. The corollary is obvious. The BJP should scrap the Constitution (which deems all laws made by the Brits to be 'autochthonous') and introduce a truly Indian alternative. Moreover, they should give up the British created Indian Army and substitute a bunch of guys with sticks dressed in dhotis for soldiers dressed in khaki armed with guns. 

Is Sharma some sort of crazy Hindu fanatic? Did Jawaharlal Nehru University indoctrinate this girl in Hindutva ideology?  

Convinced of its superiority, British forces sought to exchange their law for the maximum extraction of resources from the colonised territories.

No they didn't. The Brits were 'satisficers'. If they had wanted 'maximum extraction of resources', they would have got rid of the 'Permanent Settlement'. Indeed, they would have replaced 'zamindari' with 'ryotwari'- i.e. they would have got rid of intermediaries so that the Government directly received all the surplus of the peasantry. They would also have nationalized every private industrial concern owned by Indians. In other words, they would have followed a Stalinist policy. The last thing they would have wanted was the 'Rule of Law' and 'habeas corpus' and 'trial by jury'.  

In The Dual Mandate in British Tropical Africa (1922), F D Lugard – the first governor general of Nigeria (previously governor of Hong Kong) – summed up the advantages of European colonialism as:
Europe benefitted by the wonderful increase in the amenities of life for the mass of her people which followed the opening up of Africa at the end of the 19th century. Africa benefited by the influx of manufactured goods, and the substitution of law and order for the methods of barbarism.

Like India, Nigeria was not a 'settler colony'. Nigerians did indeed rise up in commerce and the learned professions. Not having to fear enslavement and transportation to Brazil was a good thing.  

Lugard, here, expresses the European orthodoxy that colonised territories did not contain any Indigenous laws before the advent of colonialism.

Nonsense! As in India, indigenous law was the basis of court judgments save where statute law or public policy, if intra vires, dictated otherwise.  

In its most extreme form, this erasure manifested as a claim of terra nullius – or nobody’s land –

which was not made in connection with either Nigeria or India.  

where the coloniser claimed that the Indigenous population lacked any form of political organisation or system of land rights at all.

Very true. Did you know that 'zamindari' is actually an English word? Prior to the establishment of British rule, Indians had never heard of it. Also, when a law suit was decided on the basis of 'Mitakshara' rather than 'Mayabhaga', this was because Lord Coke had introduced this distinction into the English Common Law circa 1600. 

So, not only did the land not belong to any individual,

The Tagores didn't own any land. Also Viceroy Sahib was incessantly raping them.  

but the absence of political organisation also freed the coloniser from the obligation of negotiating with any political leader.

The Maharaja of Mysore was not a 'political leader'. Viceroy never negotiated with any Maharaja. He raped them incessantly.  

Europeans declared vast territories – and, in the case of Australia, a whole continent – terra nullius to facilitate colonisation.

They did this to 'settler colonies'. Indians and Nigerians want to emigrate to such places.  

European claims of African ‘backwardness’ were used to justify the exclusion of Africans from political decision-making.

If you can't stop Europeans from defeating you in battle and taking over your territory, you are indeed 'backward' with respect to them. The Ethiopians, however, defeated the Italians at the battle of Adowa in 1896.  

In the 1884-85 Berlin Conference, for example, 13 European states (including Russia and the Ottoman Empire) and the United States met to divide among themselves territories in Africa, transforming the continent into a conceptual terra nullius.

Nonsense! Liberia was part of Africa. It was ruled by an elite of African American origin. A West Indian Pan-Africanist wanted it to become a British Protectorate because, he said, this elite behaved towards the natives just as badly as the Boers in South Africa.  

This allowed for any precolonial forms of law to be disregarded and to be replaced by colonial law that sought to protect British economic interests in the colonies.

No. Precolonial forms of law were retained by and large. The European District Officer spent a lot of time consulting with local Chiefs. Disputes had to be resolved in a manner acceptable to the indigenous people. True, some land could be grabbed and corvee labour could be imposed. But this might spark unrest, or people fleeing the region, and thus end up being counterproductive. The exception was King Leopold's 'Free State of Congo' which had precious little by way of 'Rule of Law'. But this created an international scandal and so Belgium was forced to take it over.  

In other colonies, such as India, where some form of precolonial law was recognised, by using a self-referential and Eurocentric definition of what constituted law, the British were able to systematically replace Indigenous laws.

No. Only the Indians could replace 'indigenous laws'. Take 'Mitakshara' and 'Dayabhaga'. They only became irrelevant after an act of Parliament in 1956. The complaint made by Judges like Gajendragadkar was that his British brother Justices were too conservative and attached to the letter of 'Smriti' law.  

This was achieved by declaring them to be repugnant or by marginalising such laws to the personal sphere, ie, laws relating to marriage, succession and inheritance, and hence applicable only to the colonised community.

This crazy woman thinks Emperor Aurangazeb was bound by Hindu law! There were plenty of repugnant laws and customs in England and India and China and elsewhere. Over time, they were discarded. Sometimes, Europeans played a role in this- e.g. Mary Slessor helping end the superstitious practice of killing twins in Calabar. Sometimes, reform was brought about wholly by indigenous people. 

Indigenous laws that Europeans allowed to continue were altered beyond recognition through colonial interventions.

And were altered again after Independence. So what? Sharma must know that England itself has changed all sorts of laws and repugnant customs. When I was born, male homosexuals could be sent to prison. Now, in Islington, sodomy is compulsory- or so my relatives, who live there, assure me. They plead with me not to visit them because they fear for my anal cherry.  

The rule of law was central both to the colonial legal enterprise

Law is central to a legal enterprise. What an amazing discovery! JNU must be so proud.  

and to the British imagination of itself as a colonial power.

as opposed to my imagination of myself as the Emperor of the Galaxy.  

Today, the doctrine of the rule of law is closely associated with the works of the British jurist A V Dicey (1835-1922) who articulated the most popular modern idea of the rule of law at the end of the 19th century.

Nonsense! Nobody gives a fuck about Maitland or Dicey, though, I suppose Brexiteers could have quoted the latter. But they didn't (except for Jacob Rees Mogg whose shtick is to be the 'Honourable Member for the Eighteenth Century) .

The political theorist Judith Shklar

who had shkit for brains.  

in 1987 described Dicey’s work as ‘an unfortunate outburst of Anglo-Saxon parochialism’, in part because he identified the doctrine as being embedded within the English legal tradition and argued that the supremacy of law had been a characteristic of the English constitution ever since the Norman conquest.

This was the position upheld by America's founding fathers. They took the path of Pym & Hampden. England took the path of Wentworth.  

In his germinal Introduction to the Study of the Law of the Constitution (1889), Dicey noted three key features of the rule of law: firstly, the absence of arbitrary powers of the state;

save under exigent circumstances (i.e. Emergency or 'state of exception').

secondly, legal equality among people of all classes;

which is purely notional. Lords had a right to 'trial by their peers' till Atlee became PM.  

and, lastly, that the general principles of constitutional law had developed as part of English common law, rather than being attributed to a written constitution.

In other words, nobody knows what it is till after the fact. This is 'dog's law' of which Bentham complained. Still, since the law is defeasible, we can't say it always supports one party over another party. In other words, it has no substantive, as opposed to procedural, content. 

Despite Dicey’s attempts to claim the doctrine of rule of law for the English legal tradition, its earliest formulation comes from ancient Greece.

Sharma is Eurocentric. So far as we know the 'earliest formulation' was from ancient Sumer.  

The ancient Greeks contrasted the rule of law positively to the rule of the despot and the tyrannical possibilities of unfettered or arbitrary rule.

Everybody has always done so. On the other hand, it is true that the Greeks invented triangles.  

The doctrine has developed significantly over the past two centuries

Nope. The subject has only attracted the attentions of stupid pedants. If you know the law, you can make a lot of money as a lawyer. If you are stupid, you try to get tenure on the basis of your colour, sexuality, gender or obvious unemployability in any useful field.  

and can be divided into two main types: formal and substantive ideas of rule of law.

But formal ideas can be divided into two main types, substantive and bollocks. Sadly, substantive ideas of the rule of law can be divided into stupid and yet more stupid. The essence of the law is defeasibility. But, au fond, it is merely a service industry. If it can't 'pay for itself' by supporting better correlated equilibria, it will be disintermediated.  

Seeking to divest the rule of law from ideas of justice,

is like seeking to divest the rule 'don't eat your own shit' from ideas of what constitutes proper nutrition.  

the formal or thin version of the doctrine is best encapsulated by Joseph Raz

a blathershite whose 'perfectionist liberalism' ( "family of views that base political principles on 'ideals claiming to shape our overall conception of the good life, and not just our role as citizens.') added virtue signalling to the already vicious circle of squaring 'positivism' with 'defeasibility'. Briefly, a defeasible command is not a command. It is merely something it is not worth the bother of contesting. 

in The Authority of Law: Essays on Law and Morality (1979):
A non-democratic legal system,

i.e. every legal system 

based on the denial of human rights,

rights are 'denied' if the remedy, under a bond of law, is not provided, or if it is ineffective.  This is likely to be the case if the thing is incentive incompatible. 

Why, at this very moment, is the human right to freedom being denied to young women who have been trafficked into the country by ruthless pimps belonging to powerful criminal gangs? The answer is that we either don't have the resources to deal with the problem or, more realistically, we don't greatly care. 

on extensive poverty,

which is caused by low productivity. Coase/Posner type 'Law & Econ' can play a role here. But Sharma and her Woke clique won't touch it with a barge-pole. Obama, who was part of that tradition, condemned the circular firing squad that is Wokeness.  

on racial segregation,

Schelling showed how this can happen without any coercion or even any 'bigotry'.  

sexual inequalities,

It is unfair that women have to sit down to pee. The Judiciary must take action! 

and religious persecution

Sharma often travels to Afghanistan to protest against this.  

may, in principle, conform to the requirements of the rule of law better than any of the legal systems of the more enlightened Western democracies.

Also, in principle, pigs might fly.  

For formalists, the value of the doctrine lies in its ability to define the lawful authority in any jurisdiction;

Which everybody can do easily enough. You demand to see the badge of the police officer arresting you. If he shows you his dick instead you know he isn't exercising lawful authority.  

the constraints that it seeks to put on executive power,

which is what happens when people beat the shit out of the police and start burning down public buildings.  

and its role in allowing individuals to plan their own lives in light of open, general, clear and reasonably stable rules of governance.

Nobody needs anybody's permission to do this. Anyway, rules don't matter if your country is invaded or criminal gangs take over your neighbourhood.  

On the other hand, modern substantive theories of rule of law

are shit produced by shitheads who teach stupid kids who won't be able to make money in any useful profession. Clearly, this is because Society is bigoted against stupid shitheads with sheepskins in shite. 

associate the doctrine with 

virtue signalling. If you are stupid, you should at least pretend to be a good person constantly lactating the milk of human kindness from your hairy nipples.  

various ideas of ‘good’, be it democratic government, or protection of human dignity and rights, or notions of liberty.

Not to mention Diversity, Equity, Inclusivity and the banning of dicks because dicks cause RAPE! 

In response to Raz, Tom Bingham noted in The Rule of Law (2010):
While … one can recognise the logical force of Professor Raz’s contention, I would roundly reject it in favour of a ‘thick’ definition, embracing the protection of human rights within its scope.

Sadly, we have the human right to refuse any such embrace from thickos.  

A state which savagely represses or persecutes sections of its people cannot in my view be regarded as observing the rule of law, even if the transport of the persecuted minority to the concentration camp or the compulsory exposure of female children on the mountainside is the subject of detailed laws duly enacted and scrupulously observed.

Opinions are like assholes. Everybody's got one. In my view, no regime could be said to be observing the rule of law unless male children are given an equal right to be exposed on mountainsides.  

While they may define rule of law differently, both schools

are useless and stupid 

champion its importance both to the state and to the citizenry.

But the thing isn't important at all. It just provides a few Professorships to feeble minded people who then have to teach drooling retards. 

I argue that, in the British Empire, the doctrine of the rule of law was similarly championed and used to give a gloss of moral legitimacy to the colonial enterprise.

The British Empire was flourishing long before Dicey and Maitland were born. What gave it legitimacy was that it made Britain stronger and more secure. When this ceased to be the case, the Brits got shot of the Empire. But many New Commonwealth countries chose to keep British institutions- if they could afford to do so.  

In doing so, it helped to hide the policies of racial and colonial difference that undergirded colonial law

The reverse was the case. Look at the Ilbert Bill which permitted Brown Judges to decide cases involving Whites. European women in India- including the mother of the author of the Beveridge Report- were up in arms against this. The compromise was to let a White elect for trial by a majority White jury. Later a British Communist was advised by Jinnah to opt for this as Whites didn't like sending one of their own to Jail. Sadly, the Communist (who later married an Indian lady and moved to the Right) was opposed to Racism.  

and enabled the extraction of resources from the colony to the metropole.

Which had already been going on for centuries without any pi-jaw about the rule of law.

Far from meeting the lofty goals of substantive ideas of rule of law, the exercise of legality in the colonies could not even fulfil the prosaic promises of the formalist conceptions of the doctrine.

Yet people paid money to get their disputes adjudicated by Courts of Law presided over by White Judges (though the proportion of Indian judges tended to rise). Mahatma Gandhi tried to organize a boycott of British courts but, unlike Sinn Fein, he as not able to set up an alternative. British Justice may not have represent 'perfectionist liberalism' but it was often better than any available alternative. One reason, Indians had financed the expansion of John Company's territory was because they lives and property were safer in White jurisdictions than in Princely domains. Gandhi often made this point. 

The British Empire established its earliest colonies in the 17th century in North America and expanded rapidly in the 19th century. At its peak in the early 20th century, it covered a quarter of the world and ruled over 450 million people.

The Brits were top dog when British people had highest productivity. The reason they had an Empire was because of the Royal Navy and Merchant Marine. As an island, this was its first line of defence. But ships cost money. Thus to preserve its own free institutions, the Brits had to enter 'repugnancy markets'- initially piracy, then the slave trade, opium trade, etc. However, as British domestic productivity rose, Evangelical Christianity (which had high Income elasticity) burgeoned and this was a driver of reform. However, there was always a trade off between doing the right thing and losing the power (i.e. money) to do anything at all. The Brits were pragmatic utilitarians though a few pedants could earn a living by writing high falutin' shite.  

Dicey’s exposition of the rule of law was an imperial project

No. Dicey was on the Left in that regard. He was on the Jamaica Committee which called for the prosecution of Governor Eyre. Incidentally, two of Gandhi's gurus- Ruskin and Carlyle- supported Eyre.  

and Dicey himself was a frequent participant in the British debates about the empire and its moral and legal responsibilities.

He was at the LSE and thus part of Haldane's circle. But nobody who hadn't actually worked and lived in the Colonies was considered an authority on those subjects.  

He sometimes recognised that the rule of law when imposed by one society on another may itself be ‘arbitrary and oppressive’, however, the doctrine itself, as he understood it, was fundamentally sound. He attributed the discrepancy to the fact that certain civilisations were too ‘backward’ to appreciate its benefits. Despite these reservations, Dicey held a positive view of the British Empire and its commitment to rule of law, and noted that: ‘The one permanent, certain, indisputable effect of English government in the East has been the establishment of the rule of law.’

It is indisputable that Gandhi and Nehru and Ambedkar, etc., were barristers who qualified in Britain. It is also indisputable that the Indian Bench wields more power than that of Britain. Indeed, the latter only got a Supreme Court a dozen or so years ago.  

The British viewed their claim to have established the rule of law

by militarily defeating invaders- e.g. the Japanese- and putting down insurrections.  

as a great achievement and an important benefit of the empire as it spread across the globe.

Pax Britannica was indeed a great benefit- more particularly to minorities. Millions died or were displaced when the Brits departed India.  

It was central to Britain’s self-perception as a coloniser.

If your colony gets invaded or the natives rebel and expel your forces, you aren't a coloniser. The Brits had been thrown out of the 13 Colonies. In future, they would be more circumspect.  

Rule of law not only stood in direct opposition to the rule of the ‘oriental despot’, it also distinguished the British from other European colonisers such as the Spanish and the Belgians who were deemed to be brutal and inegalitarian. In practice, the doctrine was reserved for those seen as ‘civilised’ enough by the British imperial officers.

No. The Brits ran away from places where the savages would kill and eat them. Taxes are the price you pay for civilization. If no taxes can be raised in your territory, you aren't going to have very much of that commodity.  

When they wished not to extend the doctrine, imperial officials deemed certain communities too backward to merit its application. For instance, most colonised people were denied the right to a jury trial.

Independent India took away that right after Nanavati- a guy who killed his wife's lover- was acquitted.  

Further, judges serving in the colonies, far from being independent, were appointed ‘at pleasure’ and were expected to be loyal to the colonial state, with their office being subject to executive removal.

Employees are expected to be loyal. Shocker! 

Any attempt by them to extend the rule of law to the colonised population against the perceived interests of the colonial regime led to the swift removal of the judge from office.

Nonsense! If the Judge came from the British bar, he could count on considerable support back home. The case would go to the Privy Council. Only if the Judge had been guilty of flagrant 'indiscretion, want of judicial temper, and a desire to embarrass the Executive Government rather than promote the ends of justice', would he be removed.  

In one such case, the Privy Council advised the removal of Joseph Beaumont as the chief justice of British Guiana in South America in 1868, on the grounds that he lacked ‘judicial temper’ and tended to embarrass the colonial government by criticising their practices against indentured labourers in the colony.

There was proof of his indiscretions. Still, it must be said, Governor Hincks was a quarrelsome man. Still, Beaumont was better educated and should have proceeded with greater finesse.  

When from time to time attempts were made in the colonies to honour the principle of equality under the rule of law doctrine, these measures were limited.

As they were in England.  

For instance, in the case regarding the institution of taxes in newly conquered Grenada, in Campbell v Hall (1774) almost echoing modern substantive – especially modern, rights based – ideas of rule of law, Lord Mansfield noted: ‘An Englishman in Ireland, Minorca, the Isle of Man, or the Plantations, has no privilege distinct from the natives while he continues there.’

Sharma is either ignorant or disingenuous. The fact is, British law applied in British possessions till a representative Assembly, or other body with law making powers, came into existence. This happened soon enough.  

Yet, the widespread practice of slavery across the empire, and other forms of colonial and racial difference belied Mansfield’s premise.

No. In that particular case, the King had bound himself to create a Legislative Assembly for Grenada when it was conquered but this had not yet been done. Thus the tax against which Campbell appealed was illegal. 

In The Nation and its Fragments: Colonial and Postcolonial Histories (1993), Partha Chatterjee posited that the rule of colonial difference underlies all colonial legal systems.

Colonial legal systems feature 'colonial difference'. What an amazing discovery! Why stop there? Why not say 'legal differences' underlie 'legal systems' or just 'differences' underlie 'systems'.  

That is, despite the supposed liberal ideology of the coloniser,

Colonisers have a Colonial ideology. I suppose a person who is liberal at home may be something else when it comes to some other country. Churchill was very peaceful in his dealing with political opponents in Westminster. Sadly, he enjoyed killing Nazis and didn't shed a tear when Hitler ate a bullet.  

the empire could operate only through a preservation of the superiority of the ruling group over the colonised population.

Another amazing discovery! Did you know that Skools can only operate by preserving the superior authority of teechurs over little kiddies? How is that fair?  

This hierarchy between the coloniser and the colonised was

created by armed force. Judges did not matter in the slightest.  

not a byproduct of the system, but the very object that every colonial legal system was created to instil, maintain and justify.

Which is why, in order to conquer China, we just need to create a legal system for China as our colony. This will achieve our object of ruling over the Chinese people. Just picture Chairman Xi scratching his head and saying to Sir Keir Starmer, 'It's a fair cop Guv. Henceforth, I will become your coolie and pull your rickshaw for you. You round-eyed white devils are too smart for us.'  

A subject’s race and the so-called dichotomy between the ‘civilised’ and the ‘savage’ were central to the application of law in the colonies.

Which is why we will get to rule over China just by saying the Chinese are savages.  

These distinctions were based on ideas of intrinsic physical and biological difference between different populations, with the white Anglo-Saxon man placed at the apex of both the racial and cultural hierarchies.

The Chinese placed themselves at that apex. But when they were militarily inferior to European powers, there was nothing they could do about it. But that was a long time ago.  

Those who were considered racially ‘inferior’ were also considered to be culturally ‘backward’, with each category serving to reinforce the other. This involved the linking of previously value-neutral physical attributes or cultural practices and assigning to them value-laden interpretations, either positive (as in the case of the ruling races) or negative (as in the case of colonised races).

Anybody can do this. I declare Americans and Chinese people inferior to me. This means Trump will flip my burgers while Xi will pull my rickshaw.  

A stark example of this idea of racial difference can be seen in Lord Sumner’s Privy Council judgment in Re Southern Rhodesia (1919):

Which recognised that the place was not a terra nullis.  The aborigines were not 'destitute of any recognizable form of sovereignty.'

However, the plain fact was that a particular Company had possession of the territory. Thus the Privy Council observed- 'On the other hand, it would be idle to ignore the fact that, between the subjects of Her Majesty Queen Victoria and those of this native monarch, whose sovereignty she was pleased to recognize, there was in all juridical conceptions a great gulf fixed, which it would, perhaps, be only fanciful to try to span.' In other words, what was de jure had to bow down to what was de facto. 

The estimation of the rights of aboriginal tribes is always inherently difficult. Some tribes are so low in the scale of social organisation that their usages and conceptions of rights and duties are not to be reconciled with the institutions or the legal ideas of civilised society …

But that was not the case with 'Bantu' kingdoms which, in fact, had representative institutions. 

On the other hand, there are indigenous peoples whose legal conceptions, though differently developed, are hardly less precise than our own. When once they have been studied and understood they are no less enforceable than rights arising under English law. Between the two there is a wide tract of much ethnological interest …

But 'ethnology' was interesting for a purely utilitarian reason. If a place was governed in a particular way in the past, chances are it can still be governed in that way. One could certainly depart from tradition to introduce utilitarian reforms which, self-evidently, raised productivity. The problem here is that the interests of the native agriculturists might conflict with Colonial Corporations- more particularly if the land was suitable for White settlement. In that case, the hands of the Privy Council were tied. If London seeks to protect the indigenous people, some other Company or party of 'settlers' might take over and the territory might be lost to the Crown. As a matter of fact Rhodesia did unilaterally declare independence. Harold Wilson couldn't send troops to put down this rebellion because White British soldiers might refuse to open fire on fellow Whites- like Ian Smith. The Boer War had taught the Brits an expensive lesson.  

Race, thus, played an important role in determining the types of rights that were made available to the colonised populations.

No. The costs and benefits of military intervention determined these outcomes. The Japanese were of a different race from the French and Dutch and British colonisers of South East Asia. If they had prevailed militarily, their Race would have tyrannised over all non-Japanese people in that part of the world.  

Based on where they were assumed to be on the ‘scale of civilisation’, some communities came to be placed entirely outside the ambit of the rule of law

no. They were outside the 'comity of nations'.  This doctrine permits recognition of foreign proceedings to the extent that such proceedings are determined to be orderly, fair, and not detrimental to another nation’s interests. Obviously, it does not apply to places inhabited by cannibals.

while still being subject to law’s coercion. At their most stark, the racial inequalities upheld by the empire took the form of slavery that dehumanised the African origin population

which was enslaved and sold to Europeans and Arabs by 'African origin populations'. 

and remained legal until the Slavery Abolition Act of 1833 fully came into effect in 1838.

Slavery in India remained legal till the Crown took over.  

For instance, the slave code passed in Barbados,

after it had been conquered by military force 

known as An Act for the Governing of Negroes 1688, explicitly noted that the slave population ‘are of Barbarous, Wild, and Savage Natures, and such as renders them wholly unqualified to be governed by the Laws, Customs, and Practices of our Nation’.

Which is why, if we want to annex China we just need to pass an Act for the Governing of Chinese people which explicitly notes that Chinese people are barbaric. Chairman Xi does not understand that he would be happier pulling Sir Keir's rickshaw. 

This justified the creation of a dual legal system, wherein ‘slave crimes’ were to be tried in slave courts without the benefit of juries.

Sharma has not heard of 'lynch law'.  

Such laws not only created ‘status crimes’ – ie, crimes that could be committed only by enslaved people, such as being a runaway, abusing a planter/free person, possession of weapons –

sadly, such status crimes continued to exist even after Abolition.  

they also created a dual system of punishment wherein only enslaved people faced brutal punishments that sought to attack their bodily integrity, including flogging, branding, dismemberment and other bodily mutilations.

Actually, England retained such punishments. The last flogging in a prison occurred in 1962.  

As a result, the dominant experience of colonial law from the enslaved peoples’ point of view ‘was of terror and violence’.

White guys being flogged in English prisons didn't feel any terror or discomfort. You often heard them shout 'stop! You are tickling me! I am laughing so hard I'm bound to piss myself.'  

Elsewhere in the world, the Indigenous people belonging to what were described as ‘savage tribes’ in Australia were seen to be inherently outside the law,

no. They were subject to it. But they were considered to possess an 'inherent vice' such that the burden of proof was against them.  

as were those who were deemed to be ‘hereditary criminals’ under the Criminal Tribes Act 1871 in colonial India.

Sharma is Indian.  She must know that Independent India replaced this with a 'Habitual Offenders Act'- i.e. old wine in a new bottle. It was only in the Nineties that Courts cracked down on this abuse. 

And, in blatant disregard for the doctrine of rule of law,

No. This was by due process of law under 'Habitual Offenders'. Surely, Sharma heard about this at the JNU? I recall going to a seminar there in 1984 where a lawyer from my native State made a brilliant speech. I was busy taking notes. Nobody else was. Only Tamils can understand Tamil English.  

these communities were often collectively punished for any crime by an individual of the group.

Sharma does not know that such collective punishment is visited upon members of proscribed groups even if they are themselves wholly law-abiding.  Indeed, it is illegal to even wear clothing in public which arouses reasonable suspicion that an individual is a member or supporter of a proscribed organization. 

By contrast, during the 19th century,

and the 18th century 

white settler colonies came to enjoy some of the freedoms that were seen to be ideologically linked to the rule of law.

No. They had superior freedoms- e.g. the right of Dissenters or Catholics to set up Colleges in India or Canada but not England. Indeed, burial according to non-conformist rites was only allowed in 1880 in England. Holyoake & Bradlaugh & Besant pointed out that a White man in India had more freedom than in his own ancestral country. Thus the word 'Secularism' was inspired by what obtained in British India but not Britain itself. Furthermore, women got the vote and the right to practice law, etc, in some Colonies before they did in England itself. 

Across the empire, the colonising population was aware of the privileges granted to them under colonial law and reluctant to see them reduced in any way.

No. They wanted to be exempt from the law. One trick was to demand White majority juries for White offenders. But extra-territoriality obtained in some non-Colonies. A White man in Shanghai or Abadan could get away with worse crimes against 'natives' than in Mumbai or Lagos.  

Using Chatterjee’s framework, Elizabeth Kolsky argues in her study Colonial Justice in British India (2010) that the notion of rule of law was constantly contradicted by the institutionalisation of racial difference under the law, as well as the overt partiality of legal personnel, including the police, judges and juries.

But this paled into insignificance compared to religious differences post-Independence. If I was a Bangladeshi Hindu, right now, I'd sell up and run the fuck away.  

This led to one of the biggest legal controversies in colonial India, when the Ilbert Bill of 1883 was proposed to allow Indian magistrates to preside over cases involving European British defendants. After sustained protest by the white population, the Bill was finally passed in 1884 after securing the compromise of ensuring that they could be tried only by European British majority juries. Of course, similar provisions were not made for the Indian population.

Princes had sovereign immunity. Many big 'zamindars' had immunity from arrest while on their own estates. Sadly, this meant they spent a lot of time and money arranging for the demise of their siblings or cousins. Furthermore, many communities were judged only according to their own customs. Ranajit Guha, shithead that he is, mentions the case of a woman who died after consuming an abortifacient.  Nobody was prosecuted once it was established that there had been no negligence and, furthermore, customary law had not been violated. Interestingly, the Brits were reluctant to prosecute even White women for this crime. Why? It was accepted that White men in India had to spend a lot of time 'on tour'. Moreover, 'where the climate is sultry, there is bound to be adultery'. Women needed to be able to get rid of pregnancies for which their hubbies couldn't possibly be responsible. 

Similarly, in the context of South Africa, Martin Channock argues in The Making of South African Legal Culture 1902-1936 (2001) that the doctrine of rule of law developed in the country ‘primarily along the racial frontiers’ and was used to restrict the rights of African and Asian people in the jurisdiction.

This worsened after the place became independent.  

He uses the example of the Natives (Urban Areas) Act of 1923 to show how

as the Boers got political power, they fucked over the kaffirs and the Hindoooos and so forth. Smuts had already deported the Chinese.  

increasingly arbitrary and despotic powers were exercised by local municipalities to remove Black Africans from urban municipal areas, including a regulation that empowered the local superintendent to not only remove people from an area, but to order their huts to be destroyed if they did not comply within 24 hours. And yet, in Tutu and others v Municipality of Kimberley (1918-23) this regulation was found to be neither ultra vires nor unreasonable.

 Because power had passed from Westminster to the fucking Boers. Smuts & Botha had put a democratic boot up the arse of Milner's Kindergarten. Gandhi took note. It was obvious that each 'Colony' would go its own way- i.e. fuck over religious minorities or oppress militarily weaker indigenous majorities. 

With regards to the Asian population, various economic laws that sought to deny them licenses to trade in South Africa reflected the racial unease of the colonisers.

Westminster had no fucking 'racial unease'. They had no objection to Indians and Chinese and Jews and Armenians and Lebanese traders moving in and boosting economic growth. It was the 'settlers' who were determined to monopolize all economic, political, and other benefits. But this meant they had to be willing to fight those they oppressed. Cheap Kalashnikovs changed the picture. But it also meant that you could have 'child soldiers' led by crazy War Lords.  

Channock outlines three main concerns: the colonisers worried that the proximity of white housewives to Asian traders in the absence of their husbands may lead to inappropriate contact;

Fuck off! Nobody was worried that Mahatma Gandhi would slip their wife the sausage. It was the muscular Zulu with a ginormous dong that caused them unease.  

that Asian traders extending credit facilities to poor whites may erode racial hierarchies; and, similarly, white women working in Asian shops may lose their sense of ‘racial superiority’.

Or, like Mahatma Gandhi's secretary, Sonja Schlesin, they might want to become lawyers. Thankfully, the Pretoria High Court pointed out that all lawyers must have dicks. You can't be a dickhead unless something substantial is dangling between your legs. It must be said, in Gandhi's favour, that he did slap Sonja when she smoked in his presence.  

Thus, it is evident that, despite any claims to the rule of law, racial difference was built into the very edifice of the South African colonial legal system

as South Africa became more and more self-garrisoning and self-administering. But the same thing was happening in other settler colonies.  

and lay the foundations for racial segregation through Apartheid later.

What laid that foundation was Whites enforcing the thing with force. Similarly, when White property is taken away, it is done by force. The law does not matter.  

Direct racial discrimination was also apparent in the punishment meted out for crimes.

Discrimination becomes apparent where discrimination becomes apparent. Sadly, it is one thing to say an outcome is discriminatory and another to prove it. Many feel OJ Simpson would not have been acquitted for killing his wife if he had not been Black. They are wrong. What got Simpson acquitted was money and fame and a kick-ass legal team.  

Across the British Empire, the most severe punishments were saved for violence committed by non-whites against the white population.

But a dark dude hanged for killing a white was not more severely punished than one hanged for killing his own brother.  

And if the perpetrator was white, punishment for white-on-white violence was a lot more rigorous than the punishment for acts of violence committed by white men against the non-white population.

 Similarly, a wealthy or influential brown man got off more lightly. There was a scandalous case of a Muslim ICS officer who killed a maid-servant during the Second World War. He wasn't prosecuted though this White and Hindu colleagues whispered against him. 

In large part, the latter kind of violence was an intrinsic and normalised part of the colonial capitalist structure that allowed ‘masters’ to have the ‘right of correction’ to brutally beat, flog, mutilate or confine their workers as and when they saw fit.

Such rights preceded Colonialism or Capitalism. In any case Blackstone (who provided the foundation for American Common Law) thought a servant was similar to a slave and that the master had a right to inflict corporal punishment. The problem here is obvious. The servant might kick the master's head in. Thus the law was often a dead letter. However, in England, till the late 1860s, the law was very much on the side of the master and against the servant. 

Still, a planter who beat a 'native' to death would face an expensive court case and- even in the Kenya of Karen Blixen- have to do a spell of porridge.  

Invisibilised by its omnipresence, routine and indiscriminatory violence by the colonising race remains one of the British Empire’s most closely guarded secrets.

Did you know that many British people were white? Also a goodly proportion had dicks. How is that fair? White peeps should have stripes- like zebras. Also, dicks must be banned. They cause RAPE! 

Further, the issue of equal punishment for the same crime for people of different races had always been contentious, and arguments against it focused both on the supposed mental and civilisational differences between the races and their physical or biological differences. For example, in 1844 the legislative member Herbert Maddock argued for shorter jail sentences to be awarded to Englishmen in India on the grounds that ‘the heat of a crowded building surrounded by high walls’ was not at all injurious to the health of the native population but would have a detrimental effect on white prisoners.

Whites were scarce in India because of the climate. John Company had to arrange incentives and penalties with this in mind. The other thing was that Whites who had run to seed could be deported.  

Racial discrimination under the law was further entrenched through indirect means by restricting the access of the non-white populations to both legal education and legal professions. For instance, in Tanganyika,

which was a mandated territory, not a colony.  

in the absence of any local legal training being available,

it had been ruled by Germans.  

the colonial government required a British law degree

or an Indian or West Indian one. The first black barrister was from Sierra Leone and qualified in 1854. However, in East Africa, the first indigenous lawyers qualified after the Second World War. A future Chief Justice of Tanzania, despite being a Christian, studied at Aligarh Muslim University. 

to practise law in the territory, while at the same time following a policy of preventing Africans from receiving scholarships to study in Britain.

There was no such policy. The various Churches were keen to bring in bright young Africans to train in their seminaries. If they also picked up Medical or other such useful knowledge, so much the better. However, it was only in 1922 that the Brits were able to create schools for the sons of Chiefs- e.g. Julius Nyerere- in Tanzania. This was also when Makerere was founded, initially as a Trade School. By the end of the Thirties it was a Teacher training college affiliated with the University of London. Nyerere started off at a local school for the sons of Chiefs before transferring to Tabora High school and then Makerere. From there he went to Edinburgh after the Second World War. Subsequently, there was massive expansion in education throughout East Africa. Sadly, this also meant a 'brain drain'. Some of the brightest kids I knew at School in Nairobi are now Doctors in Germany or Professors in America, etc. 

Similar policies were followed by the British elsewhere in Africa,

Their policy was to first set up primary schools and then Secondary Schools and then Teacher Training Colleges and then Universities. East African leaders increased investment in education and ensured that Swahili could become a lingua franca. I recall our teacher telling us that even Nyerere and Kenyatta had to learn Swahili. If we wanted to excel, we should work hard just as they did.  

thus, effectively excluding the non-white population

Tanzania had very few whites. The Kenyan Highlands did. That's why Kenya had to have a Mau Mau uprising.  

from entering the legal profession in large parts of the continent,

the Canadians kept Punjabis out of the legal profession. The Brits in South Africa did not keep out darkies- like Gandhi or Sylvester-Williams (from Trinidad). Alfred Mangena became the first black South African barrister in 1909. 

which no doubt helped to stifle local resistance against colonial law and governance.

It had zero effect. 'Local resistance' is shit if it means spears going up against machine guns. Lawyers don't matter in the slightest unless, like Smuts, they are also very good soldiers.  

Despite the endemic failure of the doctrine of rule of law in the colony,

and the home country not to mention Uranus and the Andromeda galaxy. 

the suitability of the rule and its application were never questioned.

No. It was laughed at. If even England wasn't ruled by Judges or Law Professors, how the fuck do you expect muscular Africans or Kung Fu savvy Orientals to submit to it?  

Instead, the failure was blamed

by shitheads nobody listened to 

on the corruption of local officials both white and non-white, or on the backwardness and criminality of the native population. Both this ‘corruption’ and ‘backwardness’ were then posited as reasons for colonial rule to continue until the local population was civilised and advanced enough to accept the mantle of rule of law by itself.

No. You rule a place till the cost of doing so outweighs the benefit. If the local population keeps killing and eating your people, you steer clear of the place.  

A few key reasons point towards the inevitable failure of any substantive notions of rule of law in the colonies.

There are no 'substantive notions of rule of law' for the same reason that there is no substantive notion of the rule of my magical farts. This is because the thing has no fucking substance.  

Firstly, the concept could not overcome its origins.

This stupid lady says the concept came from ancient Greece. If so, it obviously did escape its origins.  

Despite its universal claims, rule of law could not transcend its European social roots

coz what Hitler gave the Germans was the 'rule of law'- right? Stalin was even more devoted to it.  

and, thus, mostly remained an oppressive imposition patchily enforced when it was of benefit to the coloniser.

No. Possession is nine-tenths of the law. Enforcement may or may not be legal. If it is effective, somebody rules something. If it isn't, talk of 'rule of law' is as meaningless as talk of the manner in which my melodious farts bring order to the Universe.  

This links to a second issue: as David Killingray notes in ‘The Maintenance of Law and Order in British Colonial Africa’ (1986), the concept of rule of law remained incompatible with the continuing need of colonial law to oppress and exploit the colonised population.

Colonial law was very depraved. It needed to oppress and exploit and sodomize and inflict fellatio and cunnilingus on colonised populations. Why? It is because Capitalism needs Colonialism to engage in such depraved activities so as to get its own rocks off. You may say 'Colonialism disappeared long ago. Yet, Capitalism is still around.' The rejoinder is obvious- 'Colonialism is still around! Who is ruling India?  It is Nicholas Maugham who has cunningly applied some boot polish to his face and who is calling himself Narendra Modi. Even Soniaji pretended to be an Italian lady rather than a hefty Scottish bloke.' 

Due to its very nature, the colonial state needed to possess autocratic powers:

States need to possess military powers. Otherwise, they aren't States but simply a collection of blathershites.  An autocrat without military power is a lunatic in a padded cell. 

‘Government was usually by decree or proclamation, while a battery of laws and reserve powers were directed at the maintenance and preservation of the colonial order.’

Not in Settler Colonies or India or Ceylon or other places where the Brits gradually introduced representative institutions.  

Thirdly, racial discrimination within the colony

could be ended without harming the Enterprise. Lord Reading was quite successful in this regard.  

further weakened the commitment to rule of law.

She just said there was no such fucking commitment. Why not pretend instead that the Brits justified their Empire by claiming a duty to wipe the bums of all their dusky subjects? In that case, pedants shittier than Sharma could write books showing that Lord Willingdon betrayed his Imperial duty by refusing to wipe the bum of Subhas Chandra Bose. Naturally, that irate Bengali allied with Hitler and Tojo so as to protest this inhumane, totally illegal, action of the Viceroy. 

Indeed, as we have seen, despite the rhetorical stance of legal equality,

There was no such stance. British politicians needed to get elected by White, British, peeps. They needed to say 'us guys are great. Wogs begin at Calais. Fuck you wogs! Fuck you very much!' 

The law has a purely legal notion of equality which does not correspond to anything in economics or sociology or political science. Still, some pedants can make a meagre living pretending otherwise. But, the Maharishi made billions teaching his disciples 'yogic levitation'. My point is, if you are going to tell stupid lies, you need to be making a lot of money by so doing. Otherwise people will think you are just a stupid liar. 

legal practice and conventions awarded distinct privileges to the white population and frequently tolerated, and even excused, white violence against the non-white population.

Sadly, some White peeps in Britain now feel that violence against them by non-whites is 'excused' and not just 'tolerated', it is 'encouraged'. This is particularly true if those Whites happen to be Jewish. 

Setting aside the substantive ideas of rule of law, the evaluation of the formalist notion of the doctrine in the British Empire also points to the failure of rule of law in the colonial setting.

In which case Sharma's 'evaluation' is utter shit. The fact is ex-Colonies kept the British legal system- if they could afford to do so. Indians who are way smarter than Sharma make a lot of money practicing law in India. But then do did Motilal Nehru and Mohammad Ali Jinnah and Sardar Patel.  

Within formalist ideas of rule of law, the thinnest conception of the doctrine takes the form of rule by law.

The conception of the idea of x is x whether the conception is thick or thin. That's how tautologies work.  

Rule by law is the idea that law is the means by which the state conducts its affairs

No. The executive is subject to some judicial oversight though there may be a capacious 'doctrine of political question' such that there is a lot of executive immunity.  

and, thus, easily collapses into the notion of the ‘rule by the government’.

Governments actually rule. Judges do not.  

Such a doctrine places minimal limitations on state power, save seeking to offer protection to citizens and communities by restricting unfettered or arbitrary rule by the executive.

No. Doctrines don't matter in the slightest. Deeds do. What limits state- or any other type of power- is availability of resources and the countervailing power of different interest groups. Liz Truss & Kwarteng may have thought they had the power to create a 'Barber boom'. But the City disagreed. Truss had to go.  

Yet, even formalist notions of rule of law were regularly undermined by the frequent suspension of civil law through the invocation of autocratic martial law under which the colonised people’s already limited freedoms were further restricted and the rule of the colonial powers was anything but stable, open and clear governance.

Does this silly bint mean the 'Rowlatt act'? It succeeded. Viceroy Reading could suspend it because once Gandhi unilaterally surrendered, there was no further need for it. The big headache faced by his successor was Hindu-Muslim riots in places like Calcutta. But that problem worsened till 'Direct Action day' in 1946, when the Hindus and Sikhs beat the fuck out of the Muslims thus preserving Calcutta for Hindu Bengali misrule. 

What Indira Gandhi remembered in 1974/75 was that the real lesson of Rowlatt, Non-Cooperation & Quit India was that nutter like JP could be jailed with impunity. The public preferred that nuisance to be curbed. Her mistake was 'forcible sterilization'. The North Indian Hindu may prefer 'anushasan'- (i.e. jailing ranters and sticking a bumboo up their bum)- but he wants his testicles to be left alone.  Anyway, Indira, as Empress of Delhi, had to hold elections otherwise, like other past Emperors, her son's cronies would arrange a nice little 'accident' for her. 

Across the empire, the British frequently resorted to martial law from the 19th century onward,

Ted Heath imposed a State of Emergency. He failed. His Cabinet Secretary stripped off all his clothes and rolled around on the carpet of Number 10, foaming at the mouth and screaming about a Communist Conspiracy. Indira showed the Brits how to do the thing properly. India was not a 'soft state' as the Myrdals claimed. It was well hard.  

especially in response to popular movements such as the Demerara slave rebellion of 1823 (in modern Guyana), the Indian Uprising of 1857,

there was no declaration of martial law. Why bother with anything so foolish? It was only after 1914 that the concept gained salience in India.  

and the Mau Mau Uprising in Kenya in the mid-20th century.

The joke here is that Obama's people- Luos- enthusiastically participated in suppressing the Kikuyus of the Mau Mau. Idi Amin got his start there.  

However, it is South Korea which had most frequent use of martial law- 16 in total. The last one only lasted a few hours. 

Despite the obvious flaws in the rule of law doctrine in the British Empire,

flaws only visible to nutters like Sharma. The fact is Indians liked and retained the judicial and legislative systems they inherited from the Brits.  

the discourse encountered an unexpected twist in the 20th century. As the struggle against colonialism intensified in Asia and Africa, British officials’ lack of commitment to rule of law in the colony came to be branded by the anticolonialists as ‘un-British’ and condemned as the ‘lawless law’ of British rule.

This failed. Gandhi could not set up a parallel legal system. However, it was only in 1947/48 that Indians learned what true 'lawless law' was like. Gandhi told Congressmen in Bihar that he knew which of them had killed innocent Muslims. Did he demand that criminal proceedings be brought against such people? No. He didn't even ask that they be suspended from membership in the Indian National Congress.  

On one hand, the idea of rule of law was denounced as simply being a veil to cover the colonial and capitalist exploitation of the colonies;

That was something to boast off, for company promoters or politicians seeking re-election. Why draw a veil over the fact that your people are getting lots of wealth from some foreign shithole?  

on the other hand, colonised people actively chose to use the concept as a means of legal and political protection, resistance, collaboration and subversion.

They stopped doing so when they realized the alternative was anarchy.  

Even a scholar such as E P Thompson, a Marxist historian

his daddy was a pal of Tagore's. Rabi didn't want the Brits to cut and run because, as his grandfather had said, the Muslims in the East would slit Hindu throats and take over their vast estates.  

who was critical of law as a device that mediates and reinforces existing class relations, valorised the idea of rule of law in Whigs and Hunters (1975) and described the British contribution to it as ‘a cultural achievement of universal significance’. In fact, Thompson, like others, justified the ‘goodness’ inherent in rule of law by arguing that Indian freedom fighters, including M K Gandhi and Jawaharlal Nehru,

barristers both 

had used the idea of rule of law in their quest for Indian independence.

The Tories had unilaterally imposed Provincial autonomy on India. Had the Indians been able to agree to form a representative Federal Government in 1937/38, the country would have become a de facto Dominion which could choose to remain neutral in the looming War.  

However, as critics of the doctrine highlight, it is important to remember that when colonised people couched their own demands for greater rights in the conceptual language of rule of law, they did so as a strategic move to gain legitimacy and visibility for their causes, and not necessarily as a commitment to the doctrine itself.

In other words, the same stupid lie can be used by all sorts of stupid liars.  

At the same time, the anticolonialists’ choice to use the rhetoric of rule of law in their own movements, even if it was a choice made for strategic reasons, points to the endurance of some of the ideals associated with the concept.

No. It points to the fact that folks say the darndest things. The fact is, Govind Vallabh Pant- Premier of the biggest Indian province- called Gandhi the Il Duce and Fuhrer of India. In other words, if Fascism looked like it was winning, everybody was saying they were totes Fascist. The same thing happened with Communism. Z.A Bhutto put on a Mao cap and pretended to be the champion of the tenants his own family had been busy oppressing for hundreds of years.  

Despite its status quo-ist nature, and complicity with liberal capitalist regimes, the doctrine has come to stand as shorthand for

virtue signalling pedants who can't get a job doing anything useful.  

justice, equality and democracy,

not to mention compulsory gender reassignment surgery for heterosexual males 

which were precisely the objectives that the anticolonial struggles of the 20th century sought to achieve.

No. Anticolonial struggles were about getting Colonists to fuck off back where they came from so their nice houses and offices could be taken over by your family or clique.  

The enduring legacy of the doctrine to both colonial and anticolonial agendas continues in the 21st century,

only in the sense that the enduring legacy of the Spanish Inquisition continues in the 21st century. I have frequently pointed out that King Charles should behead at least three or four of his Queens so as to keep this island safe from that scourge.  

where the promotion of rule of law has devolved into a multi-billion-pound industry.

Why is demotion of rule of law not earning Sharma a few measly millions of pounds? Is it because she is bleck? No. It is because she has to sit down to pee. So do I, but this is because, at my age, I never know if a fart will turn into a shart.  

While furthering neo-imperialist global structures, international developmental aid is routinely tied to rule-of-law commitments and is forced upon postcolonies in the Global South;

Not by China. That is why they are winning. Still, 'international developmental aid' has always meant 'white elephants which will fuck you up if you receive them'.  

at the same time, resistance movements in these countries

Boko Haram?  

seek to use the concept of rule of law to denounce global capitalist exploitation.

No they don't. Stupid professors teaching worthless shite denounce all sorts of shit. However, not till they demand the immediate banning of dicks and the forcible painting of black stripes on White peeps as well as the deportation of Europeans from a Europe which they illegally seized from Neanderthals and which they continue to occupy in flagrant defiance of the rule of law, will Professors like Sharma attain the imbecility of a Prahlad Iyengar. 

My point is that North Indian Brahmins- like Sharma- should not even try to compete with us Tambrams in the imbecility stakes. Still, the fact that some continue to do so is undoubtedly the fault of evil White bastids like Sir Keir. You may say 'bring back National Service' Rishi Sunak was worse. But at least if you rang up 10 Downing street, when he was its occupant, and ordered 'saag-aaloo' with 'rumali roti' delivery was very prompt- provided your credit card permitted payments exceeding ten million pounds. I'm not blaming Rishi. His South Indian wife is a billionaire. As a nice Punjabi boy, he obviously feels he needs to start showing a better bank balance otherwise wifey will make him eat idli sambar rather than chole bhatore. 

If you think about it, you will realise this too is the fault of Neo-Liberal White dicks. Indeed, everything is.