Contract and the Anti-Logic of Laissez Faire in the Making of a “Modern” Private Law for British India

Within new institutional economics, including as it has informed history writing, private law has been assigned a paramount importance in the rise and differential progress of capitalism in different parts of the world. Foreshadowing the ascent of ‘the rule of law’ as a dominant paradigm of economic development, with its emphasis on the ‘institutions’ of property and contract, new institutionalism also harkens back to much older ideas equating capitalist modernity with ‘possessive’ individualism, Gemeinschaft over Gesellschaft, and so on. As a jurist and law member of British India’s Governor-General’s Council, it is perhaps not surprising that Henry Maine should have invoked ‘contract’ (as the supposed antithesis of ‘status’) in his own version of the same assertion. Yet for almost as long and even apart from the most visible strands of the Marxian tradition, there have been counter-traditions of social and legal analysis that have questioned such high-level formulations. On these views, if not little more than rhetorical such assertions are at best seen as only poorly capable of capturing the actual logic of entitlement under conditions of purportedly generalized juridification. Focusing on the Indian subcontinent, I look at the history of attempts to enshrine a ‘law of contract’ under the British Raj. From the Workman’s Breach of Contract Act of 1859, to the regime of criminalization governing indigo production agreements, to the Indian Contract Act of 1872 I show that there was no simple or uniform logic of laissez faire individualism to which contract corresponded. This, however, was not because the logic of contract was recalibrated to accommodate the subcontinent’s supposedly communally based social reality of villages, clans, and the like. Rather, contract’s failure to embody any supposedly laissez faire mode of ‘market governance’ in British India was characteristic rather than outlying relative to the wider Anglo-common law world.