Law and Colonial Cultures: Legal Regimes in World History (review)

In this stimulating book, Lauren Benton touches down on all continents, charts changes in legal regimes over some 500 years, and provides along the way in-depth discussions of particular legal cases that she argues are emblematic of the centrality of cultural practice and recognition of difference to the emergence of a global legal order by the late nineteenth century. The focus of the book is an analysis of the move from plural legal systems to legal orders dominated by the state. Among many bold claims, Benton argues that we should reconceptualize the meaning of world history. Rather than seeing the era from 1400 as dominated primarily by the rise of European capitalism with all its attendant effects, we should rather “reimagine global structure as the institutional matrix constructed out of practice and shaped by conflict.” [4]. Benton places law at the center of an understanding of world history since 1400: Law provided a common framework of knowledge whereby different societies could understand one another. She argues that different legal systems all had ways of dealing with trade, property, and particular for Benton’s interest, notions of difference. She argues that these “fluid multijurisdictional” [6] regimes, seen to best effect in newly colonized areas, created the conditions for the emergence of a “common institutional framework” based on “an ordered and contested multiculturalism.” [7]

Benton argues that the de facto dominance of colonizing powers, from the Ottomans to the British, was more apparent than real in early years of conquest. She seeks to examine how claims to hegemony were transformed into the reality of a coherent and dominant, state. Benton eschews models that see the state as self-evidently oppressive (cf Guha) or indigenous people and/or ethnic minorities as solely reactive to larger state processes. Rather, Benton puts agency back into world history. She analyzes, in chronological fashion, the ways in which individual members of groups defined as either internal others (such as Jewish communities within Muslim Spain), indigenous others (for example Aborigines in Australia) or foreign others (Brazilians facing legal procedures in early nineteenth century Uruguay) manipulated ideas about difference, the existing status of “others” in local laws to maneuver their way through complex and often paradoxical legal statutes. It is in these struggles, repeated many many times in different settings, where, Benton argues, the state’s legal order was validated as the proper place for contestation.

Benton’s book is mindful of change over time. Thus the book is divided into 7 chapters. Chapters 1 and 7 serve as introduction and conclusion, the other chapters cover different geographical regions and eras. Chapter two focuses on what Benton sees as the truly pluralist legal systems found around the Atlantic in the early modern period. Here Benton elaborates her first key argument that despite different sources of justification, and different modes of conceptualizing law, different societies from the Iberian Peninsula to Native American communities, could nonetheless engage quite productively in trade and intellectual discourse with each other. Societies in West Africa, for example, where legal independence for certain religious groups existed, and the discrete legal position of captives was recognized, could quite easily communicate and engage in trade with Europeans whose own societies shared similar legal suppositions. Chapter three turns to relations between Catholic and Islamic empires making much the same point about how competing claims by different subjects to different legal systems within empires paradoxically created a common legal frame of reference. Chapter four stresses the indeterminancy of outcomes: i.e. that the triumph of the state was far from inevitable. Looking at cases in Bengal and West Africa, Benton argues that the colonial legal order triumphed in part as an outcome of disputes and processes that gradually created a place of a body to manage laws and personnel. The next chapter examines how individuals caught up in the colonial cultures of the nineteenth and twentieth centuries in the Cape Colony and Australia, increasingly used the state, and legal arguments to try to secure their...