Commentary

Meg Foster starts her introduction to this special issue with an important truism: criminal justice is a social construct containing myriad messy pasts that profoundly shape the present. It is a repository of social values, many of which are long past their used-by date. It defends an order of things that is classist, gendered and often deeply racist; built around a legal subject who was (is) male, heterosexual, European and middle-class. Indeed, as all of the authors in this cluster point out, criminal justice in much of the former British Empire remains insidiously, if inconsistently, colonial.¹ As Clare Anderson, Hamish Maxwell-Stuart and others have shown, it carries within it routines of management built to maintain and secure the mass transfer of forced labour from the metropole to and among colonial peripheries.² As Amanda Nettelbeck et al. have shown, in settler polities criminal law (hand-in-hand with coercive regimes of protection) served and serve the ends of dispossession.³ Perhaps most importantly, postcolonial criminal justice has been profoundly shaped by imperial insecurity: its bounds distended by the permanent crisis of imperial occupation; its practice riddled with the exceptions and discretions that facilitated extractive and/or settler colonialism. As a result, criminal justice and policing mediate the interactions of swathes of citizens and non-citizens with states in the remnants of the British Empire through a series of variable but related routines – variable because discretion fundamentally shapes encounters between postcolonial subjects and police, and familiar because many people come pre-marked by the law as deviant, disorderly or ‘other’.

This is rather a lot of baggage, and, as this collection suggests, the imperial detritus in postcolonial criminal law poses difficulties for historians and criminologists alike. How does one account for it ethically? How might one fix it? Read together, the core contribution of these three articles is to invite us to think about the colonial work done, not so much by law, as by legal records. In different ways, all three suggest that, while archives reveal some of the constitutive violence of colonial law, they obfuscate (sometimes intentionally) as much as they reveal. This makes them complicated sources of data, often far more revealing of the anxieties of the state than they are of the myriad subjects whose lives were disrupted by the inconsistencies of colonial criminal justice. The articles try to catch glimpses of the complicated politics of encounter, lay bare the continuing colonial work done by archives and their gatekeepers, and map out the stakes involved in mining archives to inform contemporary policy.

Of the three pieces, Nishant Gokhale and Meg Foster’s article takes the most straightforward archival approach – reading with and against underused imperial archives to recover the collaboration, compromise and resistance that shaped Bhil relationships with the East India Company in Western India in the first quarter of the nineteenth century. The Bhils were cast as a criminal tribe – a term that Gokhale and Foster remind us was not invented by the East India Company but was mobilised and transformed by it. Yet, Gokhale and Foster read past chauvinistic archival language to recover some of the many different registers of Bhil engagement with the colonial state. Bhil ‘crime’ can be read as resistance, diplomatic posturing or internal politics; the Company’s responses were characterised by compromise with local elites in the face of its own incapacity; elite Bhil’s complicity with the Company worked not only in individual, but sometimes in group interests. These are just a few of many relationships that cannot be contained in the simple categories of crime, punishment and policing that dominate the archive. This project does political work. By recovering social and political relations flattened into crime by legislation and bureaucratic myopia, Gokhale and Foster unsteady notions of congenital criminality that haunt Bhil people to this day.

Kate Bruce-Lockhardt and Tolulope Akande explore the then and now of colonial violence effected by archives of incarceration. They remind us that prisons did many layers of colonial work as places of confinement and producers and retainers of records. Prison records are particularly powerful tools of empire, not least because they deliberately erase colonial politics – casting the efforts of colonised people to survive exploitation as theft, and recasting rebellion as anything from insanity to degeneracy to witchcraft (thus sanitising resistance to imperial power). They argue that scholars risk reifying this violence of omission unless they engage creatively with archival absence – imagining how and why the people brought to criminal justice came to the attention of the colonial state, and guessing at their individual and collective motives for acting. To this end, they enjoin scholars to use oral history, memoirs, pamphlets and protest discourse to correct the willful ignorance of the criminal record.

At the same time, Bruce-Lockhardt and Akande highlight the potential violence of investigation and disclosure. They remind us that, if projects like the Digital Panopticon have returned the incarcerated and transported to history, they have done so chiefly through records (court cases, biometric prison data, surveillance and interrogation accounts) that are artefacts of oppression in themselves. Such recovery projects risk unwanted exposure and trauma. They can reveal intra-communal violence, complicity and betrayal that could have ramifications for the present, particularly when they focus on colonial policing in living memory. The authors raise the thorny problem of consent and demand that historians consider themselves duty-bound to take care in publicising the names and details of the incarcerated where their consent cannot be sought. This call should give pause to those of us who have written about colonial violence at the fringes of law.

Finally, and importantly, Bruce-Lockhardt and Akande note the neocolonialism of archival access: as the Mau Mau records controversy demonstrated, British imperial agents hid and/or destroyed criminal-justice and policing records to hide the crimes of the state. Only after a relatively recent legal challenge did the British government consent to open these and other suppressed records to public view, though even now access is severely limited. Meanwhile, the legacies of colonialism – the impoverishment of many former colonies, the limited resources available to scholars from the developing world, and the tyranny of restrictive visas – mean that Britain (and other imperial metropoles) effectively cut off access to colonial records to scholars from former colonies. They have also failed to mitigate the problem of access by failing to provide free copies of archives to former colonies, failing to provide aid to preserve archives in former colonies, or by selling digitisation rights to private companies whose exorbitant fees make archives less, not more, available in the digital age. Some efforts have been made to decolonise digitisation: a consortium of Indian scholars have long worked to ensure that rich countries and institutions give free access to data scanned in their archives. Google and the Library of Congress have made millions of published volumes of material freely available; while rich countries like Australia have sponsored joint copying projects that have put a great deal of archival material online. But these measures merely nibble at the edges of a crisis of access that shows no signs of abating.

Kaladelfos and Nagy take a step back to look at the ethics of using historical data. They explore Indigenous critiques of mainstream criminology in order to extract lessons for historical criminology and histories of crime. As they note, well-established First Nations’ critiques of criminology point to the neocolonial violence done by treating historical injustice as ‘background’, reducing constitutive social/historical facts like racism and cultural difference to ‘variables’, or absorbing colonial discourse in ways that reify deficit discourse and discriminatory policy. They agree with critics that criminology should better understand the ongoing relevance of history (as well as the limits of historical archives and the impact of record destruction). But moving beyond ‘presentism’ is not enough because, of course, ‘colonialism is ongoing’, particularly in settler polities like Australia.

Yet, these authors argue, the emerging field of historical criminology is not properly addressing these problems because it has mostly focused on the Global North and has profoundly neglected colonisation as a constitutive factor in the development of criminal justice. They suggest that a sustained encounter with new, ethical histories might help break open core and deeply chauvinistic assumptions that shape all criminological inquiries, including ‘norms of human behaviour – such as rational choice, motivation, fear and social cohesion’. In addition, learning from some of the newer efforts to tell deep time history might help criminologists to push the boundaries of deeper epistemologies, like western time itself.⁴ Many of us (historians) could do better at this, too. And, of course, the best way to ensure ethical interpretation and use of historical data is to engage in co-production and co-design – a movement that many Australian scholars have embraced, and many universities now require.

Kaladelfos and Nagy perhaps go farthest in their efforts to remind us that the problem of doing good history with criminal archives is not abstract. Over-policing of immigrants from former colonies in the Global South is a key problem for British criminal justice, while First Nations Australians are among the most incarcerated populations in the world. Criminology can and has served to mark certain populations as problematic – to fix them in the gaze of the state. So doing good historical criminology must be a project of critique aiming to challenge assumptions, unsteady methods, and uncover and avoid ongoing harm.

Avoiding harm is vital but not simple. For example, in Australia, many First Nations scholars agree that better encounters between First Nations people and criminal justice in Australia rest on a more fulsome understanding of First Nations Law. However, there is deep disagreement about what this process of understanding might look like and what kind of intersections are possible between our settler colonial state and First Nations Law. In a recent collection, Nicole Watson called for Australian scholars to emulate Canadian efforts to recover Cree stories to distil and make legible some principles of First Nations legal systems.⁵ This would serve as a community-building project of recovery even as it would help lawyers and policymakers to understand the fundamental difference between settler criminal justice and First Nations approaches to social wrongs. In the same volume, though, Mary Spiers Williams argued strongly for the incommensurability of First Nations Law with the very concept of crime and punishment, and cast efforts to codify First Nations Law as a form of colonial violence.⁶ These two very different approaches to the production and consumption of legal knowledge have profound ramifications for the kind of work historically informed criminology might do in recovering the colonising work of criminal law and charting a better future for policy.

In the end, this rich cluster leaves us with a heightened sense of the stakes involved in historical research into the relationship of criminal jurisdiction, disorder, emergency and state-building in the British Empire. All three papers invite us (if to differing degrees) to take more seriously the impact of historical detritus in contemporary criminal law – from inheriting long-held prejudices to using reductive criminal records and revealing court cases, counting and analysing historical ‘crime’, and using the category ‘criminal’ to describe wide-ranging efforts to resist and survive colonial states. Gokhale, Foster, Bruce-Lockhart and Akande remind us of what is lost in the gaps and omissions of colonial criminal records crafted to hide crime and incompetence and to depoliticise resistance. Bruce-Lockhart and Akande, and Kaladelfos and Nagy in particular remind us that there are no easy fixes to the problem of broken archives and access, though collaboration might fix the latter problem to some degree. They also leave us with some tentative pathways towards doing justice to and through history.

Additional information

Notes on contributors

Lisa Ford

Prof. Lisa Ford is a legal historian whose work centres on ideas and practices of order in the post-1763 British Empire and the early national United States, and the prize-winning author of three monographs. She is currently working on two Australian Research Council-funded projects: a collaborative study of British Imperial Commissions of Inquiry, from 1819–1840 (DP180100537) and a pan-imperial study of declarations of martial law, 1700–1900 (FT190100232).

Notes

1 See also, for example, Maryam Kanna, ‘Further Decolonization: Judicial Review of Colonial Criminal Laws’, Duke Law Review 70, no. 2 (2020): 411–50.

2 Clare Anderson and Hamish Maxwell-Stuart, ‘Convict Labour and the Western Empires, 1415–1954’, in The Routledge History of Western Empires, ed. Robert Aldrich and Kirsten McKenzie (Abingdon: Routledge, 2014), 102–17; Clare Anderson, ‘Transnational Histories of Penal Transportation: Punishment, Labour and Governance in the British Imperial World, 1788–1939’, Australian Historical Studies, 47, no. 3 (2016): 381–97.

3 Amanda Nettelbeck, Russell Smandych, Louis A. Knafla and Robert Foster, Fragile Settlements Aboriginal Peoples, Law, and Resistance in South-West Australia and Prairie Canada (Vancouver: UBC Press, 2016).

4 See for example, Ann McGrath’s Australian Research Council Laureate Project, ‘Rediscovering the Deep Human Past: Global Networks, Future Opportunities’ (FL170100121).

5 Nicole Watson, ‘Indigenous Legal Traditions and Australian Legal Education’, in The Cambridge Legal History of Australia, ed. Peter Cane, Lisa Ford and Mark McMillan (Cambridge: Cambridge University Press, 2022), 730–9.

6 Mary Spiers Williams, ‘Challenging Settler State Legal Fantasies: Basic Precepts of First Law’, in The Cambridge Legal History of Australia, 61–84, esp. 70–72.