This is an extract from my chapter “Abolition and (De)colonisation Cutting the Criminal Question’s Gordian Knot” recently published in the book Decolonizing the Criminal Question: Colonial Legacies, Contemporary Problems, edited by Ana Aliverti, Henrique Carvalho, Anastasia Chamberlen and Máximo Sozzo. The whole book, including my chapter, is available as an open access pdf here.
Colonialism, justice and the concept of crime
Security? Culture? The rule of law? ……I look around and whenever there are colonizers and colonized face to face. I see force, brutality, cruelty, sadism, conflict …
Aimé Césaire, 2000: 42
The British and other European empires were created by conquest. Across the globe lands were invaded, indigenous people’s resistance crushed or otherwise overcome – the use of deceit, by, for example, signing treaties that the British had no intention of honouring, was common – and the invaded territories’ social structure demolished to make way for a new capitalist order. This violence was largely endorsed by Liberal philosophy which deployed its intellectual powers to provide a range of justifications (Losurdo, 2011; Mehta, 1999). These varied from the concept of terra nullius – seeing the lands as empty spaces despite their habitation by a people with their own culture, society and economy – through to the concept of a just war (Chatterjee, 2012: 52). Liberal theory legitimised not only invasion but the remaking of colonised places and people. It justified the violent demolition of established social relations and moral economies and, their replacement with new arrangements based on liberal political economy, a capitalist social structure and regulation by western criminal and penal law (Loomba, 2005: 9). The colonised people found their ‘cultures trampled underfoot, institutions undermined, lands confiscated, religions smashed, magnificent artistic creations destroyed’ (Césaire, 2000: 43). To satisfy the pursuit of ‘Christianity, Commerce and Civilization’ (David Livingstone cited in Rijpma 2015: 26) a new order was created, often through ‘the application of Black people’s labour to Red people’s land producing the White man’s property’ (Wolfe, 2016: 3).
Two central and inter-related aspects of the colonial project, racism and law, need to be highlighted. In Europeans’ interaction with indigenous populations racism was ever present and the concept of race was deployed as a primary register of difference that established and naturalized inequality (Kolsky, 2010: 14). Within the British Empire race provided ‘the primary grid for the organisation of power, possession and knowledge’ (Sen, 2012: 300). This racism was institutionalised in the law. For example the 1661 Barbados Slave Code established clear legal distinctions between negro slaves – the terms negro and slave were used interchangeably, emphasising how both meant the same to its authors – and white servants (Olusoga, 2016: 69-70). Under the code: ‘Mutilation of the face, slitting of nostrils, branding of cheeks and foreheads and castration were all deemed acceptable punishments (reserved exclusively) for Africans’ (Olusoga, 2016: 70). Four centuries later the deployment of laws explicitly based on race continued to operate. The United States, established as a settler and slave colony by Britain, still maintained segregation and Apartheid South Africa maintain a racist legal code established when it was a British colony. These early twentieth century British laws had as well as restricting the franchise to the white settler population institutionalised
‘job color bars’ that legally reserved certain jobs for whites only, residential segregation, a pass system for controlling the mobility and involuntary servitude of blacks, and a bifurcated legal system that subjected blacks to draconian administrative control …
Evans, 2005: 191
For the Indian nationalist Bal Gangadhar Tilak it was clear that the ‘goddess of British Justice, though blind, is able to distinguish unmistakably black from white’ (cited in Kolsky, 2010: 4).
In a critique of criminology Paddy Hillyard and Steve Tombs identified nine principal criticisms of the discipline. These included that crime had no ontological reality, consists of many petty events, excludes much serious harm, legitimises the expansion of crime control and maintains power relations (Hillyard and Tombs, 2004). Criminology, they argue, ‘perpetuates the myth of crime’ (ibid: 11). Whilst sympathetic to their critique I would argue for going beyond the no ontological reality/social construct critique of crime to argue that the concept is best understood as both a legal construct and an exercise in state power. Crime is created by the state both through legislation (technically making something a crime) and through action (the infliction of blame and pain). Nowhere is this clearer than in the operation of colonialism where law, both civil and criminal, was deployed both to establish the colonies and subsequently in their governance. (Moore, 2014). As I have argued previously, penal law has its roots in the slave societies of European Antiquity, and this equipped penal law, and the associated processes of criminalisation, for its role in colonial domination (Moore, 2016) Crime is so imbedded in our culture, that we forget it is not a universal concept but has a European history. I was struck when reading Oyérónké Oyėwùmi’s brilliant The Invention of Women that not only are gender and sex not the natural categories they are often presumed in Western feminist discourse, but the same could be argued with respect to the concepts of crime and the criminal Other. Indeed, Oyėwùmi (1997: 4) points out how the ‘omnipresence of biologically deterministic explanations in the social sciences can be demonstrated within the category of the criminal or criminal type’. Just as gender took a particular Western biological deterministic perspective to see, so too did crime (and indeed race). Crime, criminal justice and criminology are all European colonial impositions that replaced a wide variety of mechanisms for conflict resolution and the maintenance of social order long established prior to colonisation. Pre-colonial African societies, for example, were characterised by ‘accountability, forgiveness and reparative justice’ (Agozino, 2004: 243). Unlike penal law which focuses on individuals, allocating blame and enforcing shame (Christie, 2004), African models of justice ‘not only seek to restore relationships broken due to conflict, but also seek to understand and address the underlying causes of the conflict’ (Elechi, 2004: 160). Whereas Agozino, Elechi and others have seen these traditions as having potential to reform criminal justice, both in Africa and elsewhere, I would argue they are fundamentally incompatible with criminal justice. Their potential lies not in reform but in promoting an alternative paradigm. As Nọnso Okafọ (2006: 37) concludes, it is important for former colonised societies to recognise ‘indigenous social control systems as superior and preferable to foreign systems’. To illustrate this let us consider this example:
Igbo legal procedures aim essentially at re-adjusting social relations. Social justice is more important than the letter of the law … The resolution of a case does not have to include a definitive victory for one of the parties involved. Judgement among the Igbo ideally involves a compromise and consensus … This implies a ‘hostile’ compromise in which there is neither victor nor vanquished, a reconciliation to the benefit of – or a loss to both parties.
Uchendu, 1965: 14
It is an approach that implies a rejection of core criminal justice concepts. There is no division between offender and victim and the case is dealt with on its own terms without needing to be defined as a crime, or with the associated need to single out an individual for blame and the infliction of pain. This is recognised by Okafọ (2012) in his study of justice in an Igbo community, whereby the effectiveness of the indigenous system is compromised by its need to co-exist with the postcolonial Nigerian criminal justice system. He argues that Igbo justice offers greater potential for effective social control and for the abolition of the colonial legacy of criminal justice. For most of the world, the criminal justice systems operating today were imposed by colonialism. They have not got infected by a bit of colonialism, an infection that can be cured by a dose of decolonisation, they are fundamentally colonial. The criminal question, therefore, is itself inherently colonial.
The previous part of the essay can be read here: A decolonised criminal question? A decolonised criminology?
The next section of this essay can be read here: Criminology, its colonial origins and its relationship with the state
If you want to check out my sources please see the essay’s reference list
Trincomalee walks 
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