Journal of World History 11.1 (2000) 27-56
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The Legal Regime of the South Atlantic World, 1400-1750: Jurisdictional Complexity as Institutional Order
What were the boundaries of the early modern world? Answers to this question rest upon assumptions about the nature of global interconnectedness. World-systems approaches have explicitly marked participation in global production networks as a criterion for inclusion in the world-economy of the sixteenth century, an emphasis that critics have noted leaves Africa and Asia oddly outside its boundaries. 1 Highlighting trade is an alternative that leads toward different conclusions--for example, toward a greater emphasis on the importance of Asia in the global system. 2 Yet as critics of world-systems history noted decades ago, understanding local-global connections through the analysis of trade invites inadequate attention to local conflicts that appear crucial in structuring regional incorporation in global markets. 3 The alternatives, however, have always appeared badly [End Page 27] flawed. One is to revert to a modified civilizational approach that traces cultural continuities--and that tends to represent increasing global interconnectedness as a function of the spread of Western ideas and institutions. Another possibility is to retreat from systemic kinds of questions altogether. Many studies of the discourse of cross-cultural contact, colonial policy, and representations of metropolitan identity not only refrain from speculating on the relation of local cultural shifts to global trends but also urge us to view any broader narrative as itself a cultural representation. Such a perspective does much good in warning against investigating the global economy as the "real" substratum beneath discursive and supposedly more ephemeral cultural exchanges. But the result is often a surrender of discussions of global structure to scholars with scant interest in cultural dimensions of change.
This article explores another possibility for charting interconnections and uses it to explore other sources of continuity in the early modern world. It builds upon recent approaches to institutional world history and examines the structural similarities of legal institutions in the South Atlantic in the sixteenth and seventeenth centuries. There are two components to the argument. The first, in brief, is that a single legal regime spanned the interconnected regions of the South Atlantic. Structural similarities of different regional systems of law before the expansion of long-distance maritime trade helped to make this expansion possible. Contact, settlement, and the forced migration of Africans to the New World had the effect of reinforcing these similarities. This argument, though institutional in its focus, does not exclude cultural analysis. The main feature of this legal regime (and the second component of my argument) is a shared emphasis on legal distinctions between cultural groups. Without narrowly determining meanings of ethnicity, the law created a space for ethnicity as a social category. Conflicts around legal definitions of cultural difference were simultaneously forms of cultural practice and elements of institutional continuity across Iberia, west Africa, and the colonies of the South Atlantic.
The article explores these interconnections by analyzing jurisdictional tensions and their mutual influence in different legal arenas of the South Atlantic world. I examine first the sources of jurisdictional fluidity in the Iberian empires and, in particular, the ways in which overseas empire exacerbated a jurisdictional fluidity that was built into Iberian law. The article then analyzes legal practices in the African states drawn into trade with Europeans in the early centuries of maritime contact. Although Europeans often misinterpreted or denigrated African legal systems, they also responded to aspects of African law [End Page 28] they found to be quite familiar--especially its jurisdictional complexity. The third section of the article shifts then to an analysis of legal culture in the New World African diaspora and argues that an understanding of European and African models of legal pluralism sheds new light on treaty negotiations between planter regimes and maroon communities. Across these disparate regions and sets of interactions, and in legal systems reliant on different legal sources, the law structured polities in which the existence of multiple legal authorities gave...