Book Review: Law and Colonial Cultures: Legal Regimes in World History, 1400–1900

by: Sam Foster Halabi

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Review of Law and Colonial Cultures: Legal Regimes in World History, 1400–1900. By Lauren Benton. Cambridge University Press: Cambridge, United Kingdom, 2002. Pp. 285. $65.00 (cloth).

The author is a J.D. candidate at Harvard Law School.

Volume 45, Issue 2 (Summer 2004)

Challenging scholars of both colonial history and globalization, Lauren Benton’s Law and Colonial Cultures argues that state-centered legal orders emerged as a result of the presence of colonial powers, both European and non-European. She describes how the colonial state developed through jurisdictional conflicts between native judicial systems and colonial legal systems. These conflicts led colonial states to assume increased control of important economic transactions. Benton tackles both the scholarly accounts that claim colonizers overran helpless native populations and those that argue only European or Western powers pursued policies aimed toward promoting markets or economic growth. Benton even takes on one of the sacred cows of traditional colonial studies: Chinua Achebe’s Things Fall Apart. In Achebe’s novel, the protagonist, Okonkwo, faces two trials: the first by his fellow villagers and the second by a British colonial tribunal. In Benton’s rendering, Achebe depicts the first as part of a generally well-functioning Nigerian society suddenly ripped apart by the arrival of British colonialists, and the second as an entity almost entirely foreign to Okonkwo. In essence, Benton argues that, as a historical matter, not only would Okonkwo have been aware of the law governing British colonialists, but he would have taken advantage of it if he saw the possibility of a better outcome.

Benton traces, through five episodes in world history, how the colonizer’s law began as one of several legal systems, then gradually expanded to areas of economic concern, such as the enforcement of contracts or the transfer of property, and finally made a place for both indigenous and colonizing litigants. In seventeenth-century North America and Iberia, eighteenth-century Africa and India, and nineteenth-century Uruguay, Benton traces parallels in the historical development of the state-centered order. The reader will find engaging and thorough narratives on the legal history of these regions, but will be left unconvinced that a single phenomenon is at work. Benton is more successful at completing the historical narratives that emphasize the colonial state as resulting from competing European empires or from local processes that developed “national” consciousness in colonies. To this end, she claims that jurisdictional conflict formed a type of regime for this period.

Benton takes the reader through three basic processes of colonial legal development: jurisdictional conflict and convergence, absorption of indigenous legal structures and participants, and the state-forming function of courts. One of the strengths of the book is its use of evidence from a wide range of sources and episodes: the settlement and expansion of the Spanish along the Atlantic coast of North and South America, the Ottoman conquest of southwest Asia and North Africa, as well as better known cases like the British and French enterprises in Africa. Benton asserts that, in all these cases, the colonizing powers more often than not sought to accommodate indigenous legal orders, and that the jurisdictional fluidity between these pre-existing orders and the new orders established for settling populations gave rise to confused legal mechanisms subsequently exploited by both settlers and indigenous populations.

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