The Legacy of Empire: The Common Law Inheritance and Commitments to Legality in Former British Colonies

In this Article, we examine the colonial experiences of eight formerly British-controlled territories—Barbados, Jamaica, Botswana, Nigeria, Kenya, India, Burma, and Singapore—to identify how the processes and policies of the colonial enterprise affected their respective contemporary rule of law outcomes. While acknowledging the legal origins thesis that the British transplantation of the common law to its colonial territories conferred upon such recipient societies the institutional tools necessary and sufficient to promote the subsequent achievement of strong development outcomes, we note the diversity of modern rule of law indicators among former British colonies and question what heretofore unexplored dynamics of the colonial institutional environment may explain such divergent results. Based upon our investigations of the various governance models employed by the British, and, more significantly, the degree of responsiveness to citizen needs such institutional arrangements provided, we identify two features of colonial administration and legal transplantation whose anecdotal significance suggests to us some theoretical importance for these factors in the promotion of a long-run, stable commitment to legality in these countries (or lack thereof): (1) the degree of representation in legislative bodies afforded to the indigenous population; and (2) the extent to which indigenous and British common law courts and animating values were integrated, fostering the development of a localized common law jurisprudence. In this way, we not only seek to explain how the colonial experience influenced subsequent rule of law outcomes in these eight countries, but also to employ the lessons of the past to inform our current understanding of the dynamics of institutional development, particularly in the legal arena.