What makes laws authoritative? And how do law-makers ensure that the population at large both knows the law, and recognises its authority? My article considers these questions in the context of British colonial India through an examination of the influence of Jeremy Bentham on the drafting of the Indian Penal Code (IPC) of 1860.

Reflections on the law’s authority, and how it is communicated are especially relevant to the history of colonial India, as the nature and sources of colonial power changed during the nineteenth century. The Charter Act of 1833 ended the commercial activities of the East India Company, making it a purely administrative body. As a result, there followed a period of law reform, including codification of the criminal law led by Thomas Macaulay. Whilst the draft IPC was making its way through the legislature however, the Sepoy Rebellion of 1857-8 led to a swift and complete change in colonial governance. The Company was dissolved, and the Government of India Act of 1858 vested authority over India in the Crown. This change generated a renewed interest in both creating and demonstrating the source of Britain’s legal legitimacy in India. The story of the IPC, which was drafted between 1834 and 1837 but only enacted in 1860 reflects these changes in colonial authority and the law reform they necessitated.

Bentham was a fervent critic of the common law, advocating for complete law reform. Although Bentham himself had no direct influence on the writing of the IPC, he foresaw his influence in India specifically, boldly, although perhaps ironically, claiming that he would be “the dead legislative of British India.” The influence of several of Bentham’s works on the nature of law, the purpose and importance of codification and legal transfer on Macaulay and the draft IPC are examined. We see that Macaulay, like Bentham, saw codified law as a means of legitimising and communicating the authority of the legislature, making the law clear and effective. Two features of the IPC are highlighted as evidence in this respect: the use of “Illustrations” – hypothetical factual situations which were designed to show the law in action and make it easier to understand – and explanatory notes.

By placing the history of the IPC within this historical context of change in colonial authority, the article argues that the codification of criminal law was not only about communicating substantive law. Instead, at both the drafting and enactment stage, it served as a representation of the authority of the legislature, and the newly re-defined relationship between the colonial State and the individual.

Jeremy Bentham and the Communication of Legal Authority: The Indian Penal Code of 1860 by Erica Kim Ollikainen-Read (Max Planck Institute for Legal History and Legal Theory, Goethe University, Germany) is published in the Journal of Bentham Studies, volume 23.

Biographical statement:
I first studied History at the University of Kent, where I developed an interest in media history and public communication. Subsequently, I completed a Master’s in the History of Science, Technology and Medicine at the University of Oxford (Wadham College). After a few years I was lucky enough to be able to return to education to study law, and received a Graduate Diploma in Law from City St George’s, University of London. I am finalising a PhD at the Law Department of Goethe University and the Max Planck Institute for Legal History and Legal Theory, Frankfurt am Main.

Jeremy Bentham Indian Penal Code codification communication legal transfer