Law and Colonial Cultures: Legal Regimes in World History, 1400-1900 (review)

Much world history scholarship still treats culture and social institutions as local and bounded phenomena. Innovative research on broad global processes has focused on economic development or the environment. But culture, if seen as anything more than epiphenomenal, is still located within autonomous civilizations, religions, and societies, becoming global only through "exchange" and "interaction." This book, rooted in analyses of the complex interaction of law, property, power, and culture, presents the groundwork for more conceptions of culture at a global scale. It resonates with recent studies of contemporary "cultural globalization" that examine the mutual production of difference and homogeneity, while adding a dynamic historical dimension.

Benton proposes the idea of a "legal regime" as broadly shared conceptions of how legal authorities are ordered and distinguished. She argues that a legal regime emerged across the Americas, Africa, the Indian Ocean, and Europe in the fifteenth and sixteenth centuries, based on the mutual recognition of distinct spheres of judicial authority and the common negotiation of standards for exchange and interaction. In the nineteenth century this "weak" pluralism transformed into a "strong" pluralism in which legal jurisdictions were increasingly structured under a colonial states. This growing centralization was not the inevitable expansion of European power and "rule of law," but was impelled by local struggles over authority and property. Conflicts and jockeying between separate jurisdictions were assertions of cultural difference and autonomy, but also relied on appeals to higher powers that could fortify particular claims. The livelihood of legal intermediaries was dependent on the existence of distinct jurisdictions across which they could negotiate, but their very services also facilitated access to outside authorities and blurred the differences between them. Although the distant colonial state was theoretically a target of resistance, individual actors consistently appealed to that state as a way to circumvent more immediate challenges to property and status. Colonial states were thus drawn into these conflicts, despite inclinations to avoid the expense of more intensive sovereignty and awareness that broad-based inclusion of many peoples under a single law could undermine special privileges for colonizers that had been protected by separate jurisdictions.

Benton builds her argument on a myriad of examples, including legal issues from the Iberian recnoquista; the Portuguese trading empire in Brazil, West Africa, and Goa; ex-slave maroon polities in the Americas; negotiations over captives in the Mediterranean; jurisdictional squabbling in Spanish New Mexico; the Ottoman polity; the British East India Company; French West Africa; South African Khoi; Australian aborigines; and Uruguayan frontier settlement. The diversity of examples is part of a methodological insistence that world history is not the diffusion of homogenizing structures (in this case, the imposition of colonial "rule of law"), but the emergence of expansive structures out of local compromise and confrontation. She is remarkably successful in demonstrating the relevance of these diverse examples, showing how seemingly divergent legal structures were part of a more extensive pattern. For example, the early nineteenth century extension of British colonial law in South Africa resulted in recognition of Khoi traditional law, but in Australia it led to "inclusion" of aboriginal peoples under colonial law and the denial of autonomy. In South Africa, Khoi appealed to British law as a way to resist Afrikaner power, and the recognition of traditional Khoi law helped the British undermine Afrikaner autonomy. Once British preeminence was attained, limited autonomy for the Khoi remained an effective means of economical rule. In Australia, on the other hand, the logic of convicts' demands for equal rights under British law included arguments about the need to recognize the cultural gap between whites and aboriginals. This distinction did not lead to the recognition of traditional aboriginal law, but to the construction of the aboriginals as people without coherent legal or property traditions. Australian law had to be extended over the aboriginals in default of native...