Legal Pluralism and Empires

“Legal pluralism quickly became one of the most prolific concepts among historians of the early modern period. The richly researched and subtly argued essays in this collection amply demonstrate their power to enlighten and complicate the understanding of a variety of empires: Ottoman, British, French and Spanish. As a compendium of cutting-edge works and a model for future research, the volume aims to inspire historians from other empires and eras to add legal pluralism to their analytical arsenal. This vast volume deepens our understanding of law and empire in the early modern period. Renowned authors highlight the new dimensions of legal pluralism in the British, French, Spanish, Portuguese and Ottoman empires. In-depth analyses examine topics such as the evolution of corporate legal privileges, the entanglement of religious and legal thought, and the impact of conflicting legal authorities on sovereignty and subjectivity. Case studies show how a variety of individuals struggle with the law and shape the contours of imperial rule. The volume stretches from Peru to New Zealand to Europe in order to capture the diversity and continuities of legal pluralism and to examine the analytical power of the concept of legal pluralism in the comparative study of empires. For jurists, social scientists, and historians, Legal Pluralism and Empires, 1500-1850 describes new approaches to the study of empires and world legal history. The volume delivers on its promise. The various essays focus on contexts ranging from Europe to French North America, Spanish America, the Caribbean, Australia and New Zealand, giving life to a modern world full of different, competing and changing legal systems. Far from being concentrated in a centralized state, they argue, sovereign power in early modern Europe was highly fragmented into a set of different judicial systems organized by territory, religion, commerce, social class, etc. The subjects were not governed by a single set of laws emanating from a single centre, but by a plethora of legal regimes.

This meant that the familiar legal distinctions – state versus subject, public and private – made little sense to us. For example, as Philip Stern notes in his essay on the role of corporations in Britain, the corporation was a legal form that effortlessly combined private and public power, resembled in some respects a commercial enterprise and, in other respects, a state accountable to shareholders, but exercised extensive power over subjects. Given that the fragmentation of competences cannot be firmly anchored in the “modern period” and is therefore not just a story of “early modernity”, one wonders what might be at stake if the history of European colonialism is written as a history of judicial fragmentation. What other historical perspective is being moved here? Burbank and Cooper write that “the study of the complexity of jurisdiction opens up a much richer cast of characters involved in legal and other conflicts than was the case in the first phase of colonial research, with its dichotomies between rulers and ruled” (p. 286). That is undoubtedly true. The collection presents a complex tapestry in which the fragmentation of jurisdiction in metropolitan France and colony makes the colonial enterprise more contingent, complicated, precarious and manipulable than we could have imagined until now. Holding a magnifying glass to reveal field games “on the field” shows how all the parties – from the most powerful to the smallest – were able to play the system. As a result, in Linda Rupert`s essay we find the most pathetic colonial subjects – the slaves of the Dutch and British colonies who took advantage of differences in jurisdiction when they fled to Spanish territories under the pretext of embracing Catholicism. Such forms of fragmentation of jurisdiction were realized externally when Europeans established colonies in America, Asia, Africa and the Pacific. The fragmentation of jurisdictions that characterized the colonial enterprise created considerable room for manoeuvre that could be exploited by sovereigns, European settlers and Indigenous peoples. By the nineteenth century, however, the publishers argue, this tangle of jurisdictions had given way to a “more hierarchically structured legal order, defined in part by the assertion (realized or not) of imperial jurisdiction” (p.

12). But writing the history of the empire as a history of judicial fragmentation full of infinite possibilities for manipulation does not necessarily completely overcome the old awkward dichotomy between colonizer and colonized. On the one hand, as all contributors to the collection no doubt acknowledge, the fragmentation of the judicial system, despite the possibility of manipulation it offered, did not diminish the particular oppressions of Indigenous peoples and slaves in the New World. Even if we learn deeper stories, we should remember that we are still leading history for our own purposes. Older histories that focused on the sometimes simplistic dichotomy between colonizers and colonized – that is, those that this gang tries to suppress or complicate – were often overtly anti-colonial, linked to anti-colonial and anti-racist struggles inside and outside the West. In an attempt to overcome such histories and write the history of European colonialism as a history of fragmentation of jurisdictions, Legal Pluralism and Empires often leaves aside old anti-colonial and anti-racist impulses. In its pages, colonialism becomes an object of neutral and scientific consideration, its meaning is best understood when the judicial diversity of early modern European societies was projected onto European colonial possessions. Race, an undeniably significant structuring aspect of European empires and postcolonial states that emerged in their wake, is receding as jurisdictional fragmentation takes center stage (although it is clear that race could overcome jurisdictional fragmentation and weaken opportunities for racialized subjects). With a few notable exceptions (such as Bruce Owensby`s wonderful essays on the Spanish Empire and Linda Rupert on fugitive slaves in the Caribbean), few essays are particularly concerned with the expression of what an older historiography might have called the “victims” of European colonialism.

The European colonial project, responsible for the death and suffering of millions of non-Europeans, has become a matter of jurisdiction that hardly differs from the judicial systems characteristic of all societies. If we gain a lot from this volume, we should also be aware of what it pushes in the background. In a final commentary on the essays, Jane Burbank and Frederick Cooper astutely state that the volume “struggles to conventionally end the `primitive modernity` of its title” (p.â 287). In particular, the essays on Australia and New Zealand tell a story that dates back to the nineteenth century, when, by most accounts, “primitive modernity” gave way to “modernity.” More importantly, Burbank and Cooper point out that judicial fragmentation remained a hallmark of European empires – not to mention postcolonial sovereign states – until the twentieth and twenty-first centuries. A number of countries around the world retain aspects of fragmentation of jurisdiction based on territory and religion. Many companies offer single sign-on between the company`s website and Oxford Academic. If you see “Register via the Society`s website” in the registration area of a journal: Our books are available by subscription or purchase for libraries and institutions. Access to content on Oxford Academic is often made possible through subscriptions and institutional purchases. If you are a member of an institution with an active account, you may be able to access content in one of the following ways: If your institution is not on the list or you cannot log in to your institution`s website, please contact your librarian or administrator. Select this option to get remote access when you are away from your institution. Shibboleth/Open Athens technology is used to provide single sign-on between your institution`s website and Oxford Academic.

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