Bentham's enlightened despotic legislator and colonial rule: Macaulay and the India Penal Code

Topic: Bentham's enlightened despotic legislator and colonial rule: Macaulay and the India Penal Code

Presenter: Professor Barry Wright - Carleton University

This paper examines Thomas Macaulay's India Penal Code (drafted in 1837, implemented in 1860), the first, and arguably the most 'Benthamic' criminal code in the British Empire. Macaulay embraced Jeremy Bentham's 'science of legislation' and ambitious aspirations to 'legislate for the world.' He became arguably the most successful utilitarian legislator of his generation.

The IPC comes closest to a practical implementation of Bentham's pannomion amongst the various 19th century British jurisdiction codifications (R.S. Wright's Jamaica Code, J.F. Stephen's Draft English Code, and the Canadian, New Zealand and Queensland codes). Its comprehensive conception and provisions are rivalled only by Samuel Griffith's 1899 code. The IPC reflects a revolutionary break in the form and presentation of law. The substantive provisions represent a progressive and liberal advance on contemporary English criminal laws, as consolidated under Peel or even as contemplated by Brougham's Criminal Law Commissioners. Equal legal status, obligations, and rights under the criminal law were introduced for all subjects in India.
Despite these liberal and universalist aspirations, the IPC was the product of the intellectual currents of a particular culture and period, European Enlightenment rationalism filtered through the sensibilities of Bentham and James Mill (whose 1833 Charter Act reorganized colonial government in India).

The substantive provisions were not invented entirely anew, as Bentham advocated, but derived largely from Macaulay's understanding of existing English doctrines (though unencumbered by arcane technicalities and reconstituted in simple modern language). Moreover, the IPC was engineered in a manner that deliberately minimized consideration of local or indigenous concerns and was imposed way of executive decree. Situated within a larger political and policy context, the IPC can be seen as an expression of modernized British colonial rule and a reflection of imperial concerns about the effectiveness and legitimacy of that rule. These concerns became intense in the wake of public order crises and play a role in all the 19th century criminal law codifications. Arbitrary discretionary authority and military intervention was to be displaced as much as possible by authority based on the rule of law and the routine administration of criminal justice. In this sense modernizing legislative projects such as the IPC were more about sovereignty than rights. The gulf between the colonizer and the colonized remained. The aspirations of disinterested reform, based on claims of universal 'scientific' jurisprudence without reference to time and place, were in part the conceit of power and privilege, the product of British Enlightenment intellectuals and Victorian empire-builders. 

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Contact: Beth Williams, ph: 334 69350, email: marketing@law.uq.edu.au