Legal Pluralism and Empires, 1500-1850

Lauren Benton, Richard J. Ross

• Publisher: NYU Press
• Year: 2013
• ISBN:
  9780814708187
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This wide-ranging volume advances our understanding of law and empire in the early modern world. Distinguished contributors expose new dimensions of legal pluralism in the British, French, Spanish, Portuguese, and Ottoman empires. In-depth analyses probe such topics as the shifting legal privileges of corporations, the intertwining of religious and legal thought, and the effects of clashing legal authorities on sovereignty and subjecthood. Case studies show how a variety of individuals engage with the law and shape the contours of imperial rule. The volume reaches from Peru to New Zealand to Europe to capture the varieties and continuities of legal pluralism and to probe the analytic power of the concept of legal pluralism in the comparative study of empires. For legal scholars, social scientists, and historians, Legal Pluralism and Empires, 1500-1850 maps new approaches to the study of empires and the global history of law.

1

Empires and Legal Pluralism

Jurisdiction, Sovereignty, and Political Imagination in the Early Modern World

LAUREN BENTON AND RICHARD J. ROSS

The subject of empires is both very old and very new. An old narrative of a transition from empires to nation-states has now given way to an emphasis on the centrality and persistence of empires in world history. At the heart of this history is a recognition of the importance of legal pluralism to empires, which invariably relied on layered legal arrangements within composite polities. Empires were legally plural in their core regions as well as in their overseas or distant possessions. Many empires assembled political communities boasting divergent constitutional traditions; uneasily maintained overlapping or clashing royal, ecclesiastical, local, and seigneurial jurisdictions; and encompassed a variety of forms and sources of law. Such pluralism often grew more complex in colonies and far-flung peripheries as administrators and settlers dealt with indigenous, enslaved, and conquered peoples. The resulting legal orders encompassed multiple zones with unstable and varied relationships to one another and to imperial centers.

Colonial administrators and jurists studied legal pluralism without using the term. Officials and settlers described plural institutions and practices in order to guide rulers and, sometimes, to question the justice of empire itself. The Spanish scholastic Francisco de Vitoria, for example, in the process of criticizing the conduct of Spain in the New World, developed legal rationales for European conquest and colonization that balanced Castilian and indigenous rights and jurisdictions.¹ Juan de Solórzano Pereira and Thomas Pownall were among the more prominent imperial administrators who put the problem of plural legal orders at the forefront of efforts to canvass and reform colonial governance.² In defending Dutch imperial interests, Hugo Grotius addressed central problems of legal pluralism and empire, in particular in evaluating the ways that jurisdiction could extend into the sea independently of claims to dominion.³ Such preoccupations continued into late-colonial and postcolonial contexts, encompassing debates about definitions of quasi-sovereignty and the legal status of political communities borne out of the expansion, fragmentation, dissolution, and reconfiguration of empires. Across the centuries, persisting questions about the nature and structure of plural legal orders in empires reflected and informed wider currents of religious, legal, and political thought.

This volume takes as its subject the shifting structures and processes of legal pluralism as well as historically changing ways of imagining and describing legal pluralism in empires. The chapters contribute to a new narrative of world history that places empires at its center. They present new findings and pose new questions about the complex and contingent configuration of imperial law—not as a structure of command but as a set of fluid institutional and cultural practices.

Though a relatively new subject, the study of plural legal orders in empires has already passed through several phases. Legal pluralism drew the attention of scholars in the middle decades of the twentieth century who sought to map the evident legal complexity of colonial and postcolonial societies. Their efforts featured, as one scholar has put it, “a spirit of aggressive celebration of … [the] romantic assumption that nonstate law was more egalitarian and less coercive than state law.”⁴ Studies of legal pluralism in the 1970s and 1980s also argued for analysis of law not as doctrine but as a social and cultural process, a perspective developed by anthropologists in colonial and postcolonial settings, then applied by them to the examination of legal change in societies labeled as complex and modern. Legal pluralism came to be associated in the 1990s with an emphasis on the instability of legal order and a “constructionist” understanding of multicentric legal systems as contingent products of conflict.⁵

Such efforts led logically to increased scrutiny of legal processes in empires. Sally Merry, Sally Falk Moore, Martin Chanock, and other scholars bridged anthropology and imperial history in documenting the persistence of colonial jurisdictional complexities.⁶ At the same time, historians were building on what had been largely national and imperial traditions of the study of law to develop rich new currents of research on the legal history of the Chinese, Ottoman, Spanish, British, French, and Russian empires, efforts that increasingly drew attention to cross-imperial comparisons.⁷ Scholars began to probe, too, the degree of imperial influence on processes formerly regarded as the keys to national legal development—from currents in constitutionalism to the legal underpinnings of sovereignty. The emergence of new regional fields, meanwhile, especially the rise of Atlantic and Indian Ocean history, stimulated questions about the legal foundations of inter-imperial and global regimes.⁸

These and other projects gave new relevance—and a different spin—to the decades-old concept of “legal pluralism.” Historians began to take seriously the idea that changes in the plural legal order constituted an important piece of the narrative about the shifting international order. This perspective has led to studies of the ways in which jurisdictional conflicts spurred shifts in the structure of plural legal orders, contributing, for example, to the formation of the colonial state or to “settler sovereignty.”⁹ Some scholars have reframed colonial legal history as a narrative of multiple and fluid imperial constitutions.¹⁰ Still others have sought to locate debates about “rights” in the context of jurisdictionally complex imperial law, or have followed metropolitan legal practices through new variations on the edges of empire.¹¹

We can now profitably take stock of these approaches to legal pluralism and empires—and also begin to look beyond initial contributions. This volume seeks to advance the field both by identifying new research directions and by connecting historical studies to broadly defined questions about the nature of law and legal politics in empires. The volume’s essays enrich understandings of imperial sovereignty; analyze the legal strategies of conquered subjects, slaves, and religious minorities; probe the relation between legal pluralism and inter-imperial law; and investigate circulating ideas about legal pluralism. Many of the chapters reflect a view of legal pluralism that emphasizes its rootedness in jurisdictional politics. Some chapters explore historical actors’ uses of political and religious thought to structure, justify, or undermine plural legal regimes. Jurisdictional conflicts and the strategic manipulation of ideas and information about legal pluralism are shown to have worked together in shaping the history of empires. Imperial law represented a medium of politics at the same time that it reflected ways of representing order, authority, and rights that changed more slowly and provided participants in legal disputes with a durable, if flexible, resource.

Jurisdictional vs. Normative Legal Pluralism

The concept of legal pluralism comes with a troubled past. Social scientists and legal scholars have struggled with the term’s definition, vying to capture the structural relation of multiple spheres of law while also recognizing the porousness of such spheres and the fluidity of institutional arrangements. This section summarizes problems embedded in the dominant approaches to the subject before offering an alternative perspective that defines legal pluralism as a formation of historically occurring patterns of jurisdictional complexity and conflict. Among other benefits, the approach we outline allows researchers to connect the history of legal conflicts in empires to the study of circulating ideas about legal pluralism. It also lays the foundation for comparative histories of legal pluralism in global and regional formations.

Scholars presented the study of legal pluralism as a correction to a deeply ingrained view that state law is necessarily central to all legal orders, a perspective that one influential essay defined as “the ideology of legal centralism.”¹² Those who claim that all societies are characterized by legal pluralism have not, however, agreed on the multiple entities that make up composite legal orders. Some speak of “two or more legal systems,” others identify multiple “semi-autonomous social fields,” and still others propose a plurality of “rule systems” or “different social normative systems.”¹³ Many scholars writing about legal pluralism have placed in the foreground distinctions between state law and nonstate law.¹⁴ Some propose an understanding of legal pluralism as encompassing all sources of law or rules of conduct in a given territory or social context, ranging from the state’s legal commands through customs, habits, religious precepts, and codes of etiquette. They suggest that to study this “normative” legal pluralism is to canvass potentially all the rules of various origins that people feel compelled to follow, whether or not these are imposed by institutions or backed by sanctions.¹⁵

From our perspective as historians of empires, these overlapping approaches present three main problems. First, emphasis on a distinction between state and nonstate law draws attention away from the complexities, confusions, and conflicts within “state law” while also potentially exaggerating the homogeneity and insularity of “non-state” or “customary” law.¹⁶ Some critics have complained that the supposition that all ordered social behavior is law-like opens a limitless horizon for the study of legal pluralism.¹⁷ In the study of empires, such a tendency appears less dangerous than the representation of imperial legal orders as comprising sets of neatly stacked and bounded legal spheres. Layered and composite legal arrangements in empires featured overlapping public and private jurisdictions and were characterized by continual restructuring, changes that resulted in part from the legal strategies of often litigious and legally sophisticated imperial subjects.¹⁸

Second, a key shortcoming of many attempts to analyze legal pluralism has been a tendency to view the phenomenon ahistorically or to incorporate an overly simplified historical narrative of rising state power. This flaw is particularly clear in attempts to formulate typologies in which state law figures in opposition to “nonstate” law. Consider the common assertion that state law descended or was imposed on “other” law in linear and consistent ways across several centuries. Moore’s careful description of “semi-autonomous social fields” as law-like, for example, contrasted sharply with her rendering of state law as expanding and converting customary law into a colonial “residue.”¹⁹ Tamanaha insists on an understanding of the rise of state law as “contingent,” but then characterizes its dominance as a “development which occurred initially in the West.”²⁰ Even a scholar calling for “limited, operational, historically contingent definitions of law” as a key to arriving at a sufficiently complex understanding of state law in legal pluralism comes up with a strained example of the benefits of this move: its illumination of the way state institutions “are likely to intervene” when “a private normative order … directly violates state law.”²¹ Historians of empire note that the construction of the imperial state responded to an array of political and legal problems and pressures; even (or especially) in political thought, the boundary between state and private legal spheres was not just unstable but also unclear and often a matter of fierce debate.²²

The need for more nuanced historical analysis of legal pluralism connects to a third problem for historians of empire: a dearth of sustained analysis of the changing and often locally specific understandings of law and legal complexity as presented and debated by historical actors, including state agents. Here an emphasis of “normative” legal pluralism on rules and norms creates methodological problems by asking historians to uncover elusive subjective beliefs about the applicability and ordering of bodies of law. In contrast, to the extent that we focus on jurisdictional conflicts, we examine arenas from which documents are more likely to survive, uncover disputes in which participants gave reasons for their actions, and analyze cases whose outcomes altered the future interplay of institutions and the expectations of historical actors. It becomes possible to combine an understanding of legal pluralism as a jurisdictional web without abandoning the study of the intellectual history of legal pluralism. Recent intellectual histories of empire show that engagement with imperial conflicts drew from and informed broader trends in thought while also sometimes prompting jurisprudential and philosophical innovations.²³ Without the presumption of a connection to normative structures, the study of intellectual approaches to legal pluralism opens up interesting questions about the relation of political and legal discourse to local and regional histories, and to shifting strategies of legal actors within empires.

Over a decade ago, Lauren Benton proposed replacing the study of normative orders with a focus on patterns of jurisdictional conflicts that propelled change in the structure of colonial legal orders.²⁴ She applied the term “jurisdiction” to the exercise by sometimes vaguely defined legal authorities of the power to regulate and administer sanctions over particular actions or people, including groups defined by personal status, territorial boundaries, and corporate membership.

A jurisdictional perspective helps to address the problems identified in writings on legal pluralism. The study of jurisdictional politics does not depend on a general definition of “law.” Nor does it require making distinctions between “state” and “nonstate” law. The jurisdictional claims of a wide range of authorities, from a guild or merchant ship captain to a conquistador or trading company, can be analyzed without their being defined neatly as public or private. Jurisdictional divides come into focus and matter most to an understanding of legal pluralism when conflicts occur, and so a methodological advantage of the approach is to focus attention on clusters of conflicts, rather than elusive and often inconsistently applied rules or norms. This approach invites historical analysis because it becomes possible to analyze structural shifts propelled by the legal strategies of parties to jurisdictional conflicts.

Of course, historical actors making legal claims did not focus exclusively on jurisdictional divides. They often cited natural law, divine precepts, the ius gentium, a...