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Is the Law a "Colonial Fraud"?

Trigger Warning: This article includes discussion of female genital cutting which may be distressing to some readers.

Papua New Guinean politician John Kaputin famously described the law as a "colonial fraud", mirroring widespread debates in academia about the relationship between law and colonialism and the nature of legal systems as a core tenet of the colonial project. Kaputin argues that lawyers and the establishment “pretend that law is a technical matter and that it is not something for the layman and politicians”, giving the appearance that law has “universal principles, which apply equally to all men”. But in reality, the law is “an instrument of colonialism” so that dominance of the colonist is established over the “economic and social lives” of the colonised through the law. Indeed, as will be demonstrated below, international law, particularly human rights law, can be an “instrument of colonialism”. Some of these legal frameworks are colonial enterprises that have been carried to the contemporary world so that these laws reflect “colonial fraud” even today. In particular, colonial ideas have strongly influenced the creation and proliferation of human rights discourses in international law. Applying the works of legal anthropologist Sally Engle Merry - who discusses the interplay between law and colonialism in historical and contemporary contexts, to the particular case study of human rights debates surrounding female genital cutting in Africa, can elucidate the colonial nature of law.

Colonial law is seen as integral to the colonial mission in a number of ways. Engle Merry’s ideas are useful in understanding how legal systems and legislature were integral to the “‘civilising mission’ of imperialism”. Colonisation considered Western law as superior compared to the primitive and “savage” local customs and used Western law to justify the colonisation of less developed nations in Africa and India. Western laws were used to order and regulate society, allowing colonists to dominate people and keep them in subordinate positions. In addition to maintaining colonial control, legal systems occupied a “culturally productive role” where they attempted to impose the cultural values of the colonists on the colonised. Laws, therefore, interfered in various aspects of life - from land and marriage to entertainment, in order to affect the spheres of “time, space, property, work, marriage and the state”. Colonial law was used to promote “cultural transformations of colonised peoples” based on the culture and ideologies of the dominant group. The “ritualised setting” of courts, in particular, is described as “cultural performances” which give meaning to people and their relationships and serve as a “critical site of cultural production” to transform their cultural values and practices. Engle Merry’s ideas show theoretical support for Kaputin’s statement, demonstrating how the law has been and can be used to perpetuate colonialism.

It is important to acknowledge that this connection between law and colonialism did not end with the breakdown of the empire but is still very much alive in international legal frameworks. Engle Merry argues that, as opposed to ideas of civilisation and Christian ideologies which underpinned colonial law of the past, the contemporary colonial project is founded upon principles of democracy and human rights. The colonial civilising mission claimed colonial values would bring order and civilisation. By advocating ideas of human rights and democracy similarly purports that the “improvements they advocate are of universal value” and would benefit all. International law, Engle Merry argues, creates hierarchies between rich, developed countries that incorporate democratic principles and human rights values, and poor, underdeveloped states who fail to do so. Like “British lawyers… in colonial Africa'', international human rights lawyers strive to create a “unified and codified” system of laws to which everyone must adhere. This privileges Western epistemologies and a “Euro-American global order” to which other states are expected to conform for international recognition and support. The United Nations, for example, requires states to adhere to certain “standards'' framed around European epistemologies, allowing it to perpetuate “colonial predominance of European institutions” and exclude certain groups. In this way, Engle Merry highlights how even today, the law is used to perpetuate colonial relations and cultural values. This further supports Kaputin’s claim that law can be a colonial facade.

Furthermore, academic Heather Johnson argues that by representing communities and groups as subordinate and helpless, Western countries can justify their interventions as humanitarian interventions. For instance, the imposition of Western epistemologies through laws to maintain the moral hegemony of Western power can be illustrated by human rights discourses about female genital cutting (FGC). Engle Merry’s ideas suggest that just like colonial powers promoted ideas of morality and sexual purity, human rights discourses also focus on the regulation of women through a particular focus on female genital cutting, female trafficking and honour killings. This is supported by Bettina Shell-Duncan’s anthropological research into legal discourses about the ritual of FGC that are used to justify foreign intervention in local customs. In this way, Shell-Duncan suggests, human rights may be a “guise for imposing Western norms”. These ideas of human rights are not universally shared but rather can be diametrically opposed to local understandings about FGC. For example, human rights discourses that oppose FGC by arguing that every child has the right to normal development may ignore local conceptualisations of the practice which perceive child circumcision to promote several “cultural, economic and social benefits”. Such discourses privilege Western ideas of normality and morality and can fail to consider that in societies where circumcision is widespread, circumcision is considered normal. Social acceptance may be predicated on circumcision and so failure to do so may cause exclusion or rejection, impacting the child’s social development. This demonstrates how human rights and international law impose Western beliefs, to the exclusion of local understandings thereby maintaining Western colonial hegemony.

Furthermore, those women who have experienced FGC may not agree with international laws against the practice. As a woman who has been circumcised, Fuambai Ahmadhu offers useful insight into local understandings of the practice which contrast significantly from human rights discourses. She denounces the “myths” that FGC controls, oppresses and subjugates women and argues that such ideas fail to encapsulate the symbolic and ritual power of the practice. Western scientific discourses of the harmful effects of FGC, she argues, are greatly exaggerated to support Eurocentric views of the practice as barbaric. She also points out that the supposed health risks posed by FGC (such as risks of tumours, infertility, sexual dysfunction) are marginal. She gives the example that as a risk factor for pregnancy, “female circumcision (is) somewhere behind maternal smoking”. Moreover, Ahmadhu shows that while African adult women undergoing FGC are victimised and infantilised by Western interpretations, “Western women who opt for cosmetic genital surgeries” are seen as exercising agency over their bodies. Ahmadhu’s arguments support Shell-Duncan’s research in showing how human rights discourses promote Eurocentric understandings. Shell-Duncan argues that these discourses are not considered “apolitical” but are rather framed around the same humanitarian goals as the civilising mission of protecting women against local barbarism in order to justify Western intervention. This maintains unequal power relations between the Western colonial powers and their former colonies, which continue to be viewed as subordinate. In this way, Ahmadhu and Shell-Duncan support Kaputin’s argument that law can be a colonial endeavour, even in contemporary contexts.

Drawing on theories from legal anthropology and examples of anthropological research can illustrate how international law promotes the colonial enterprise. The use of law to maintain colonial relations of power and domination did not end with the supposed decolonisation movement but persists even today. This can be illustrated by human rights discourses about female genital cutting which privilege Western ideologies and disregard local understandings of the practice. In this way, we can see evidence to support Kaputin’s argument as the law presents itself as a colonial enterprise.


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