Colonial law as an arena for cultural contestation and hegemonic process has displaced an older view of law as a tool of imperial domination.Footnote 1 Rich studies based on archival work in local judicial and notarial archives in Africa and the Americas, complemented by a wide range of sources from colonial and metropolitan archives, emphasize the role of indigenous peoples in shaping legal institutions, practices, bodies of law, and ideas about justice. We now understand that colonial legal culture was forged in diverse configurations of conflict and alliance that played out in remote village tribunals and metropolitan courts of appeal. However, the tyranny of the archives persists in that the written evidence favors—in descending order—the perspective of European legal thinkers and reformers, the functionaries of intermediate institutions like the magistrates and lawyers who operated in district courts, and litigants who included European settlers and native people. In colonial courts, the voices of native litigants and witnesses tend to be highly mediated through translation and transcription.
How, then, do we write effectively about native agency in the making of colonial legal cultures? If we limit our analysis to the court record, we perceive it through a glass darkly and in slim proportion to that of Europeans or a European-educated native elite. If we move beyond the courts to uncover systems of meaning and social networks that undergirded native legal agency, we blur the boundaries around the law, which some argue dilutes our unit of study. Four recent works bring to the fore this conceptual problem in the literature on law and empire. In this essay, I put into conversation works that privilege a jurisdictional perspective on law and empire and those that privilege what we might call native agency. The fundamental tensions in these approaches concern method and the place of translation, meaning, social networks, and the law in relation to other social fields.
Lauren Benton's seminal comparative work Law and Colonial Cultures: Legal Regimes in World History, 1500–1900 set the agenda for the recent wave of studies of law and empire.Footnote 2 Benton's innovation was to identify a pattern in the development of colonial legal cultures across distinct European empires over the longue durée: from plural legal systems made up of competing and overlapping jurisdictions to a centralized hierarchical system dominated by state law, with the shift occurring primarily at the end of the long nineteenth century. Her thesis challenges the misconception of centralized early modern states whose authority flowed from the metropole toward the colonies. She argues instead that the imperial legal-administrative systems grew out of jurisdictional contests on the ground. Indeed, Benton identifies as the motor of change what she calls jurisdictional politics: the playing off of one jurisdiction against others by European and native litigants as they pursued individual and collective agendas. The opportunities presented by venue shopping and jurisdictional jockeying opened the space for colonial subjects to shape legal procedures, institutions, and the “rules about rule,” suggesting a bottom-up process of change that ultimately empowered intermediate institutions.
Benton is interested not only in the power of jurisdictions to reproduce across space and time, but also in the question of meaning. She argues that the mechanics, strategies, and institutional contexts of disputing were integral to the production of cultural difference. Although many colonial legal disputes concerned property or authority, they also represented struggles over ethnic, racial, and cultural boundaries. As native litigants made their cases, they resorted to colonial categories to appeal to colonial magistrates or native authorities and distinguish or distance themselves from other natives. In this way, colonial legal cultures produced ideas about difference that undergirded and rationalized colonial inequalities.
The scope of Benton's work, its mastery of the differences among imperial legal systems and contexts, its sensitivity to institutions and meaning, and its bold comparative thesis have rightfully made it a classic, and inspired regionally specific studies of law and empire that incorporate a focus on jurisdictional politics. The shortcoming of this approach is that it tells us more about the institutional architecture and logic of colonial legal systems and cultures than it does about the reciprocal relationship between the law and the native people and societies that engaged it. To Benton's credit, she recognizes the need to remedy this imbalance. In her “Introduction” to a 2012 American Historical Review forum dedicated to “Law and Empire,” she identifies the need to merge “the study of legal politics with the analysis of cultures of law, broadly defined to include the political imagination of participants in legal conflicts.”Footnote 3 I would add that this is an important endeavor, and an especially difficult one, in contexts in which political imaginations were shaped by non-Western systems of meaning. What remains open is the question of method—how scholars should go about doing this.
Legal Pluralism and Empires, 1500–1800, co-edited by Benton and Richard Ross, a legal historian of the early modern world, grew out of the Symposium on Comparative Early Modern Legal History at the Newberry Library, and builds upon Benton's earlier work by making a strong case for a jurisdictional approach to legal pluralism. The concept of legal pluralism has a long and contested history. In a seminal essay, Sally Engle Merry defines it as “two or more legal systems [that] coexist in the same social field.” Crucially, her definition of “legal system” includes institutions of law supported by the state, as well as “non-legal forms of normative ordering.”Footnote 4 Brian Tamanaha argues that the concept of legal pluralism is flawed at its foundation given that it can imply equivalence and difference simultaneously. He contends that if one system constitutes “law” as recognized by the state, and another system does not, we cannot define their coexistence in terms of legal pluralism.Footnote 5 Kristin Mann and Richard Roberts in their foundational work on law in colonial Africa advocate an alternative to legal pluralism: the perspective of a single, interactive colonial system that encompasses European and native structures of authority. Their conceptualization arises from the historical complexities of colonial Africa in which multiple African states and legal and non-legal normative orders coexisted and interacted with European ones.Footnote 6
The debate about legal pluralism raises important questions regarding native agency in the making of colonial law. How did native systems of law and authority interact with European ones, and to what end? How did this interaction change over time, and what institutional forms did it take? Where is the boundary between systems of law and non-legal normative systems, and what role does cultural difference and native epistemology play in defining that boundary?
Although Benton and Ross focus on law in the making of European empire, their conceptualization of legal pluralism does not address issues of cultural difference or native agency and epistemology. Instead, they define legal pluralism in terms of the many parallel jurisdictions at work in the composite polities of early modern European empires. The volume's diverse case studies from the British, French, Spanish, and Dutch imperial contexts focus on three broad arenas of jurisdictional politics: European institutions such as corporations and courts as extensions of imperial sovereignty; the ideological and programmatic perspectives of empires on legal pluralism, including the relationship between religious and civil jurisdictions; and the agency of imperial functionaries and subjects in jurisdictional conflicts, including mid-level magistrates and slaves. Several common themes emerge from the essays, including the fundamental point that European polities were composite at home as much as abroad in the period under study. And although pluralism was part and parcel of European political culture in the age of empire, it took different forms across European empires. The volume's contributors also highlight the centrality of religious institutions and thought in the making of jurisdictions, the importance of middlemen in jurisdictional politics, and the dynamic nature of colonial policies, which changed frequently in response to local and metropolitan conditions. Legal Pluralism does not deal exclusively with European empires; there is one chapter on the Ottoman Empire that provides an interesting counterpoint to the European examples. Karen Barkey contends that in the Ottoman case state-centered law prevailed, and jurisdictional complexity represented a form of hegemony with which to rule a religiously plural population.
Strikingly, the agency of native people and their conceptions of law figure hardly at all in Legal Pluralism's case studies. In the Introduction, Benton and Ross explicitly argue against a distinction between “state law” and “non-state” law, and propose instead a “jurisdictional perspective” of legal pluralism, the advantage being that it “does not depend on a general definition of ‘law.’” This approach certainly gets around a lack of scholarly consensus regarding cross-cultural definitions of law. The problem is that jurisdictions were extensions of European political systems, and were bounded in terms of both their authority and territory. A jurisdictional perspective privileges actors who fell within European jurisdiction, or appeared in colonial courts, and overlooks the kinds of extrajudicial activity and historical documentation through which native people often made claims to land and sovereignty. Native agency comes into view only when framed within European jurisdiction. In this regard, Benton and Ross make a Eurocentric argument regarding the context in which legal pluralism was made, one that ignores messy cross-cultural processes outside the courts that shaped the law and its exercise. According to the jurisdictional perspective, the plurality and diversity of European imperial laws and institutions originated in a longstanding tradition of legal pluralism within early modern Europe itself, a tradition that extended to imperial and colonial contexts through an expansion of legal jurisdictions.
A jurisdictional approach leaves another important question hanging: how did colonial law take root in native societies since it was not wholly imposed from above? This question requires approaching native agency in a different way; venue shopping and jurisdictional jockeying can provide only part of the answer. We need to understand how European laws and legal institutions were made meaningful in local contexts. This requires more attention to translation.
Translation refers not only to the linguistic practices that shaped colonial legal systems, such as the work of court interpreters who translated across indigenous and imperial languages, but also to broader processes such as the incorporation of ideas, norms, discourses, and communicative practices across cultures. Translation occurred across languages, and also across mediums and genres, such as from oral to written, visual to oral, pictographic to written, and religious to administrative. These varied forms of translation facilitated the circulation of knowledge—and the production of new forms of knowledge—through multi-ethnic social networks made up of colonial administrators, native peoples, and other social groups. This broad notion of translation provides a key to understanding how native people participated in the making of colonial legal cultures both within and beyond the bounds of European jurisdictions.
The problems of translation and meaning lie at the heart of Native Claims: Indigenous Law against Empire 1500–1920. The volume puts native people at the center of the action as co-creators of colonial legal cultures, even when they were acting outside of formal legal jurisdictions or colonial courts. In this regard, it provides a counterpoint to Legal Pluralism and Empires. Whereas Benton and Ross purposefully avoid a general definition of “law,” the contributors to Native Claims engage it squarely through a cross-cultural conceptualization of “legality.” According to the volume's editor, Saliha Belmessous, native legality encompasses moral arguments, normative codes, contests, and claims that often fell outside of formal (European) bodies of law and legal institutions. The volume's juxtaposition between state-centered law and rule systems beyond the purview of the state reaches back toward earlier legal-anthropological notions of “legal pluralism,” but does so in a decidedly historical way: by reading archival documentation against the grain in order to uncover native perspectives on property, authority, vassalage, and diplomacy through their points of intersection and commensuration with European perspectives. A focus on claim-making, legal or legal-like, allows us to see native-European contests over law and legality as part of an ongoing set of interactions and conflicts that built and transformed imperial systems of authority, a view that would be occluded by a more narrow focus on jurisdictional politics. This innovation of moving beyond courts and formal jurisdictions is compelling and productive.
A comparative analysis of how native legality shaped colonial legal cultures across Spanish and British imperial contexts (with a nod to French contexts), and over four centuries, is an ambitious project in itself. But Belmessous pushes the envelope further with a provocative thesis: European legal justifications for colonialism did not constitute an originating discourse, but rather represented a counterclaim to indigenous claims to land and sovereignty. Although the thesis grabbed my attention, I am unconvinced of its applicability across the case studies. Many of the claims analyzed in the volume were made in the context of decades if not centuries of contact between natives and Europeans, which makes a discussion of “origins” problematic. What better fits the historical evidence in these cases is a dialogic framework in which claims on both sides were part of an ongoing process of interaction and exchange (albeit an uneven one) that produced an increasingly shared vocabulary of rights and justice.
A signal contribution of Native Claims is its consideration of native claims and European counterclaims in a comparative context across a wide swath of space and time. To do this effectively, a stronger comparative framing of British and Spanish colonialism and the relationship of native peoples to these empires is necessary. At the crux of such a comparison is the condition of colonial subjecthood, which implies an unequal but reciprocal and mutually understood relationship between the sovereign and subject. Indeed, colonial subjecthood allowed native people to seek the King's justice. In the case of Spanish America, the conquest of the Mexica and Inca empires, and the recognition of Spanish sovereignty on the part of the native nobility provided the foundation of indigenous claims and Spanish counterclaims to land and sovereignty from the mid-sixteenth century forward. As Spanish colonial subjects and members of the “republic of Indians,” indigenous people had clearly defined legal obligations, including labor and tribute, but also rights and privileges that included land tenure and political semi-autonomy. From the outset, they engaged with Spanish legal institutions to assert and defend those rights. They did so from within the Spanish system, and with recourse to a layered patchwork of Spanish civil and ecclesiastical laws and courts, and through the strategic use of Spanish legal discourse. The experience of colonial subjecthood over three hundred years of Spanish rule profoundly shaped legal culture and continues to influence how native people relate to Latin American nation-states.
By contrast, in the case of British Empire in the Americas, many native groups remained outside British jurisdiction, and thus related to British authorities as independent “nations,” or, if they lived under British jurisdiction, they often did so for much shorter periods of time. In the case of colonial Africa, British jurisdiction was complex and changed over time. During the first three quarters of the nineteenth century, the British established crown colonies in which British law applied to natives and Europeans alike. British officials found this model problematic in that the imposition of British laws, such as those related to slavery, often ran counter to colonial interests. From the 1880s onward, the British shifted gears by establishing colonial protectorates. In these territories, British authorities exercised sovereignty and jurisdiction over serious crimes such as murder, but in the case of lesser crimes, and civil and family law, native authorities exercised jurisdiction with recourse to customary law. In Islamic regions, British authorities allowed emirs to retain Islamic courts and exercise sharia law. This system of indirect rule better suited British administrative and financial realities, and economic interests. In the case of Australia and New Zealand, the relationship of native to British jurisdiction, and the legal institutions that grew out of the imperial encounter were quite different than they were in colonial Africa. One of the major contributions of Native Claims is that three of its case studies pertain to Australia and New Zealand, regions for which we know comparatively less about law and empire. The volume also makes evident that European-indigenous encounters in the Australia and New Zealand cases were quite different.
Native engagement with Europeans in the context of legal institutions versus extrajudicial engagement that entailed legal-like arguments provides a fundamental distinction among the case studies in Native Claims. Three chapters focus on how native people made legal arguments about land and sovereignty from a position outside of European jurisdiction. The sources that they use are quite different from the petitions and legal cases available to historians of colonial contexts, and pose distinct challenges to historical interpretation. For example, Powhatan legal claims after 1609 are read through the accounts of British settlers; Wabanaki claims to land after 1715 are read through Wabanaki correspondence with the French and British; Maori claims to property rights in New Zealand from 1858–1861 are read through “writing campaigns” on the part of British authorities and Maori elites, a Maori language newspaper, and a translation of the laws of England into the Maori language. In the first two cases, the authors attempt to read native concepts through the European ones via points of intersection or commensurability. In short, they attempt to read a cross-cultural dialogue through the European languages of the documents. In the case of British and Maori in New Zealand, where the author has access to native language sources, the problem of incommensurability in the conceptualization of property rises to the surface. The question of commensurability and incommensurability must be considered in light of translation. For example, even where native language documents exist (as they do in the case of the Maori), writing itself implies translation from orality. European cultural assumptions were built into the social contexts, genres, and purposes of writing, which further complicates discussion of and access to an originating discourse.
In the remaining six case studies in Native Claims native people engaged Europeans as colonial subjects, a fact that was reflected in the content and form of their claims to land and semi-autonomy. In two chapters on Spanish America, native claims were justified in the language, rhetoric, and legal principles of the conqueror. Catholic evangelization, education, and the literacy of a cadre of the native elite made this possible, as did the rootedness of a legal system in which native people could seek “justice.” Petitioning the King for justice in the face of the depredations of local colonists and authorities represented a strategy common to indigenous peoples in British and Spanish colonies, and provided an arena in which the meaning of justice could be negotiated. This theme runs through four chapters on British North America, in which native people used European legal concepts—rights, possession, and sovereignty—to present native visions of political and territorial order. In this way, they inserted themselves as players in the transatlantic politics of empire. As with the case studies of Spanish America, Christian identity and education, and the alliances that they entailed, facilitated such appeals. Social networks created by evangelization, trade, and diplomacy produced cultural change and shaped the meanings of colonial justice.
The assertions that legal culture was made by social networks that stretched beyond the legal realm and into other institutions such as the Catholic Church, and that notions of justice and rights were co-constructed through the claims and arguments of natives and Europeans, lie at the heart of a burgeoning scholarship on native people and the law in colonial Latin America.Footnote 7 In Indians and Mestizos in the “Lettered City,” Alcira Dueñas argues that during the seventeenth and eighteenth centuries literate native Andean and mestizo intellectuals in colonial Peru engaged the Spanish legal system in order to decry the injustices of local colonial officials, including viceroys, governors, magistrates, and priests. Through petitions and other forms of legal and notarial writing submitted to the courts or written directly to the king, these Andean activists foregrounded the diminution of traditional ethnic authority, brutal working conditions in the silver mines, and the corrosive effects of taxes, tribute, and labor drafts on native communities. In the eighteenth century, their arguments congealed into a case for ethnic autonomy.
Dueñas characterizes the legal engagement of these native figures as judicial activism, and emphasizes that the claims they made were the product of the circulation of knowledge among interethnic social and political networks that included native ethnic lords, missionary friars, secular priests, and lawyers. She also highlights the relationship between legal engagement and violent rebellion, a dynamic explained in part by the reach of the social networks in which native litigants participated. During the period that she analyzes, three rebellions shook the Andes, including the devastating Tupac Amaru rebellion of 1780–1782. Dueñas and others have argued that legal engagement and violent rebellion constituted mutually reinforcing strategies for native Andeans; when one method failed, they resorted to the other.Footnote 8
As a historian of colonial Latin America, Dueñas has the benefit of access to rich written documentation penned by native people. In fact, one of the central points of her book is that writing made native judicial activism possible. The Spanish judicial system was built on writing; almost all legal business was conducted through the exchange of written documentation. Mastery of the written word by native people meant access to the law. A second point concerns knowledge: it was not sufficient to write; one also needed to master the legal discourse of the Spanish system in order to frame legal claims with any hope of success. This knowledge came from two sources: the Catholic Church, whose priests and functionaries imparted literacy and the fundamentals of the Catholic faith, and which alongside Roman Law, undergirded ecclesiastical and civil justice; and Spanish lawyers who were appointed to defend native legal rights. Working closely with these figures, native litigants learned to frame their arguments and gained access to Spanish legal texts.
One of the strengths of Dueñas' work, then, is that it takes us beyond the courts to other social contexts, such as the Catholic schools for native elites and native communities where native litigants honed cultural and linguistic skills and their own ideology of colonial justice. In an exemplary essay from Native Claims about the case of colonial Lagos, Kristin Mann also pays close attention to social networks and cultural processes that laid the groundwork for native litigation. Mann emphasizes not only the period of British colonialism, but equally important, the period prior to it when trade, diplomacy, the arrival of Christian missionaries, and the immigration of repatriated slaves from Sierra Leone and Brazil introduced new ideas about property relations. In short, Mann traces the development of a legal culture around property in advance of the introduction of colonial legal institutions and laws. Crucially, this culture was not wholly “indigenous” but rather a product of the interaction of diverse peoples and practices. In her capacious, extra-institutional approach to legal culture, Mann provides an answer to the question of how colonial legal systems took root in local societies: through social networks, practices, and ideas that predated or were produced beyond formal jurisdictions, and that became meaningful in the local context.
How does the textured process that Mann brings to life compare with a view of colonial legal culture from the perspective of imperial law? In Imperial Justice: Africans in Empire's Court, Bonnie Ibhawoh attempts to bring both perspectives together by tacking back and forth between the world of imperial legal institutions and that of native litigants. In doing so, she combines a jurisdictional approach with a focus on claim making, the co-creation of “justice” on the part of natives and Europeans, and the production of colonial difference. The Judicial Committee of the Privy Council (JCPC), the highest appeal court of the British Empire, provides the setting for Ibhawoh's analysis of these tensions of empire. From 1890 into the early 1960s the JCPC adjudicated roughly 350 African appeals. Rather than represent the full range of civil and criminal cases, Ibhawoh focuses on high profile cases that highlighted the tension between imperial universalism and local exceptionalism, and generated public discussion and debate. The conflicts at work in the cases included medicine murder (a form of ritual murder), blood money (as compensation for murder), male control over female sexuality, and land tenure. Throughout, Ibhawoh foregrounds the metropolitan judges, African litigants, and the African assessors, lawyers, clerks, and interpreters who mediated between them by translating local custom into an idiom that the British judges, far removed from the African context, could understand. These western-educated African elites who made the system function eventually led to its demise through their decrial of insufficient African representation on the JCPC. The JCPC represented an unacceptable holdover of British imperialism in the context of decolonization and African nationhood.
A central point in Ibhawoh's analysis concerns how jurisdictional politics produced ideas of cultural difference, a contention that lies at the core of Lauren Benton's work in Law and Colonial Cultures. Ibhawoh argues that jurisdictional conflict between British courts and native tribunals played a key role in colonial power relations and the development of the colonial state (as well as its demise) while native claims as articulated by African intermediaries elicited shifts in imperial law and governance. These twin processes produced a tension between imperial universalism and the “adjudication of colonial difference” in the British administration of justice in Africa. Adherence to British cultural values and law, and the desire to spread them via the civilizing mission, often clashed with a competing desire to recognize cultural difference and enshrine it in African “custom.” At the heart of this tension lay a fundamental belief in racial inequality and the inferiority of African culture.
The strength of Ibhawoh's study is that she demonstrates the role of both British officials and African litigants and intermediaries in shaping colonial law and discourses about cultural and racial difference such that the law itself became a culturally hybrid institution, malleable across a wide range of contexts. Her institutional perspective, that of the highest court of appeal, allows her a broad angle of vision through which to perceive these tensions, the discursive changes they engendered, and a wide range of actors. At the same time, the focus on the appeals court necessarily limits the analysis. The everyday workings of law and justice, to which Mann's work allows access, occurred at quite a distance from the JCPC. Imperialism, colonialism, and culture contact produced fundamental changes at the ground level—in the practice of everyday life, not just in discourses about difference—that shaped both imperial law and the local administration of justice. This can get lost when one moves to the scale of empire.
This last point brings me back to this essay's core questions: How did colonial law take root in native societies? How do we write effectively about native agency in the making of colonial legal cultures while keeping both the local and the imperial in view? As a number of works reviewed in this essay suggest, in some contexts the Christian project of evangelization, and I would add translation, represent an important part of the answer.Footnote 9 For the case of Spanish America, and in some cases in British North America and Africa, it was Christian missionaries who created alphabetic writing systems for languages in which writing did not exist prior to the colonial encounter, a process that strongly shaped language ideologies and relationships of power.Footnote 10 In the case of colonial Mexico, this was especially important in that the local administration of justice was overseen by native municipal officers who recorded petty criminal cases, the distribution of communal lands, property transfers, and last wills and testaments in native language notarial documents, enabling them to enact their jurisdiction and create a native archive that could be mobilized for use in Spanish courts. In the absence of native language writing, access to the law across colonial contexts was provided by writing at the hands of native peoples in the imperial language, generally transmitted through Christian education. Ideas about authority, morality, temporality, and the native past were forged through these processes of evangelization and translation.Footnote 11 They cannot be separated from questions about native legalities and native legal agency.
The example of Christian evangelization raises a broader point about the genesis of colonial legal culture. If we focus exclusively on jurisdictional politics and meaning-making through disputing, we miss the creation of habits of body and mind that help to explain both native agency in imperial legal systems and the meaningfulness of imperial law for native peoples. Understanding the role of indigenous peoples in creating imperial law requires moving beyond formal legal institutions and their archives in order to look for a range of legalities and ideas about justice. In this endeavor, a jurisdictional perspective can take us only so far. Native jurisdiction played an important role in the administration of colonial justice in Spanish America and British Africa, but its purview was limited, as is its source base. Colonial legal culture was made and gained traction in indigenous villages and urban spaces through the interaction of native people with many actors, including Christian missionaries, merchants, immigrants, traders, anthropologists, and other cultural brokers. Legal institutions did not exist in a vacuum, but were connected to other institutions, both ideologically and in terms of social networks. Christian evangelization often served as the handmaiden of legal culture as parish churches and mission schools provided training grounds for native legal intermediaries whose work occurred outside the courts as often as within. Moving beyond the realm of the law and formal jurisdiction also allows us to consider other factors in the making of legal culture, such as violence, ritual, and spirituality.Footnote 12 It helps to put the law in its place in relation to other social fields, and just as importantly, reveals the limits of the law as an arena for the negotiation of colonial power relations.
