Colonial legal history

A French colonial court in Senegal holds a trial around 1920, whith the indigenous judges wearing traditional French judge’s hats. © Wikimedia Commons

In the past months, the European media has increasingly discussed the impact of the colonial period on more recent questions such as restitution of objects that were taken from former colonies with headlines such as „Return colonial artefacts“ in the British „Guardian“ or simply „Give them back!“ in the German Süddeutsche Zeitung. On Friday, 14th December 2018, the Legal History Research Group (GRR) at Humboldt University took up this subject in a workshop on „Colonial Law History“. Through four lectures and subsequent discussion between academics in both fields law and history, it dealt with this topic on the intersection of legal and colonial history, spanning from early colonisation in the Renaissance to current discussions of restitutions of colonial artefacts.

Christina Brauner (Berlin) dealt with conceptual questions on legal diversity in cultural contact. During European expansion in the early modern period, colonizers with their European legal concepts encountered local practices based on other legal norms. The beginnings of the colonization of South India and West Africa in the 17th century show that with the arrival of Europeans in the global South, different legal systems met – and sometimes clashed. The paper referred to major hubs of colonisation in the Global South as „cultural contact zones“ in which two or more legal systems were practiced simultaneously and often mixed, creating a state of  “multi-normativity”.

Anna Dönecke (Bielefeld) presented an example for this multi-normativity with a case study from Pondicherry, a South Indian commercial settlement: an inheritance dispute from the 17th century in which the parties in court invoked both Malabar and French law, depending on which promised to benefit them more. Historical actors, she concluded, have taken advantage of the context of legal diversity and, where possible, exploited the room for manoeuvre opened up by institutional heterogeneity – a strategy often referred to as “forum shopping”. In a further step, she pointed out that by doing so, actors were not only actively navigating through the state of legal „multi-normativity“, but were actively changing it by mixing and entangling different legal systems.

Ulrike Schaper (Berlin) used the complex legal system in Cameroon between 1884 and the First World War under European rule to explain how law was used not only as means of exercising power, but also to generate order in the colonial apparatus. She described the numerous administrative guidelines and adherence to the formality of legal procedures as an attempt of the colonial state to stage and perform statehood to legitimate itself. As Dönnecke before her, Schaper stressed the impact of acquiring knowledge about legal institutions and legal rights, as well as the possibility of “forum-shopping”. She therefore called for more research focussing on dynamics of negotiation.

Richard Dören (Heidelberg) finally gave insight into today’s treatment of colonialism from a legal point of view. In particular, he analysed articles in national and international law such as statutes of limitations or problems of the burden of proof, which he called legal „hurdles“ to dealing with colonialism and current questions of restitution. He also talked about the legal difficulties regarding protection treaties, in which legal documents exist yet are disputed as the signees might have had different interpretations of the transactions – or might not have been in a position to sign it in the first place.

The presentations served as a departure point for a joint discussion about the entanglements of legal history and colonialism. Special attention was paid to the topic of the normativity of the „law“ itself as a concept: The concept of the legal system is shaped by normative European ideas. Through the processes of European expansion, the colonizers came across cultures with different practices and criteria for settling disputes. The European conception of “law” sometimes reached its limits – and thus also called into question the self-imagination of European modernity, which was constructed as universal and incomparable.