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Legal Pluralism and Empires, 1500-1850

Legal Pluralism and Empires, 1500-1850

Lauren Benton
Richard J. Ross
Copyright Date: 2013
Published by: NYU Press
Pages: 336
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  • Book Info
    Legal Pluralism and Empires, 1500-1850
    Book Description:

    Historians used to imagine empire as an imperial power extending total domination over its colonies. Now, however, they understand empire as a site in which colonies and their constitutions were regulated by legal pluralism: layered and multicentric systems of law, which incorporated or preserved the law of conquered subjects. By placing the study of law in diverse early modern empires under the rubric of legal pluralism, Legal Pluralism and Empires, 1500-1850 offers both legal scholars and historians a much-needed framework for analyzing the complex and fluid legal politics of empires. Contributors analyze how ideas about law moved across vast empires, how imperial agents and imperial subjects used law, and how relationships between local legal practices and global ones played themselves out in the early modern world. The book's tremendous geographical breadth, including the British, French, Spanish, Ottoman, and Russian empires, gives readers the most comparative examination of legal pluralism to date. Lauren Benton is Professor of History, Affiliated Professor of Law, and Dean of the Graduate School of Arts and Science at New York University. Her books include A Search for Sovereignty: Law and Geography in European Empires, 1400-1900 and Law and Colonial Cultures: Legal Regimes in World History, 1400-1900. Richard J. Ross is Professor of Law and History at the University of Illinois (Urbana/Champaign) and Director of the Symposium on Comparative Early Modern Legal History. With Steven Wilf, he is currently working on a book, entitled: The Beginnings of American Law: A Comparative Study.

    eISBN: 978-0-8147-0831-6
    Subjects: Law

Table of Contents

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  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
    (pp. ix-x)
  4. 1 Empires and Legal Pluralism: Jurisdiction, Sovereignty, and Political Imagination in the Early Modern World
    (pp. 1-18)

    The subject of empires is both very old and very new. An old narrative of a transition from empires to nation-states has now given way to an emphasis on the centrality and persistence of empires in world history. At the heart of this history is a recognition of the importance of legal pluralism to empires, which invariably relied on layered legal arrangements within composite polities. Empires were legally plural in their core regions as well as in their overseas or distant possessions. Many empires assembled political communities boasting divergent constitutional traditions; uneasily maintained overlapping or clashing royal, ecclesiastical, local, and...


    • 2 “Bundles of Hyphens”: Corporations as Legal Communities in the Early Modern British Empire
      (pp. 21-48)

      “Corporate” life has long been at the heart of our understanding of legal pluralism, whether in the sense of religious, ethnic, or commercial “corporate” groups with claims to semi-autonomous laws and legal institutions or formal corporate bodies that served as a “middle level” or “mediating institution” between state and society.¹ Understandably, such pluralism was particularly pronounced in the context of empire, which by very definition required rule over a range of different groups, with divergent legal traditions, institutions, and cultures. Far from the confident and singular project it is often represented to be, such diversity meant that overseas expansion was...

    • 3 Litigating Empire: The Role of French Courts in Establishing Colonial Sovereignties
      (pp. 49-80)

      In seventeenth-century northeastern North America, rival titleholders gradually constructed sovereignty through the assertion of and contest over competing claims. While the struggle among European powers, especially the French and English, to effectively occupy coastal and riverine regions has traditionally received the most attention, rivalries among Frenchmen in the Saint Lawrence Valley and Acadia played at least as important a role in the evolution of French territorial claims. Contending parties fought for ascendancy on the ground through the use of instruments of metropolitan legal authority and personal power, at the court of kings Henri IV and Louis XIII, and also in...


    • 4 Aspects of Legal Pluralism in the Ottoman Empire
      (pp. 83-108)

      Empires, considered as political formations that incorporate colonized peoples within multiple legal jurisdictions that draw on diverse forms of law, offer prime examples of the practice of legal pluralism. I understand the term “legal pluralism,” following John Griffiths’s definition, as referring to a situation in which “the sovereign commands different bodies of law for different groups of the population varying by ethnicity, religion, nationality, or geography, and […] the parallel legal regimes are all dependent on the state legal system.”¹ Empires were forced to deal with this plurality because of the manner in which they expanded, incorporating and accommodating local...

    • 5 Reconstructing Early Modern Notions of Legal Pluralism
      (pp. 109-142)

      Early modern Europeans knew that they lived in a legally plural world.¹ But how exactly did they think about it? Our essay seeks to get at this question by reconstructing some of the ideological frameworks, vocabularies, and concepts that early modern Europeans used when defining what we might call “legal pluralism,” advocating for it, or contesting it.

      At the outset, it is important to distinguish among the various ways in which scholars have come to use the term “legal pluralism.” “Weak” legal pluralism exists where there may be multiple institutions at the “central” level of government—such as a “constitutionalist”...

    • 6 Between Justice and Economics: “Indians” and Reformism in Eighteenth-Century Spanish Imperial Thought
      (pp. 143-170)

      By the mid-eighteenth century, Spain’s gathering crisis was plain for all to see. Kings Felipe V (1714-1746) and Fernando VI (1746-1759) understood that the props of power were weakening under the weight of inter-imperial competition. Bullion flows from the mines at Potosí had slowed dramatically in preceding decades. Self-dealing in the New World had undermined revenue collection; smuggling and piracy had broken theflotasystem. Such concerns were hardly new. From the late seventeenth century, Spanisharbitristashad been calling for reforms to government, economy, and society in order to replenish the royal fisc and reestablish Spanish power in the...


    • 7 Magistrates in Empire: Convicts, Slaves, and the Remaking of the Plural Legal Order in the British Empire
      (pp. 173-198)

      In early January, 1790, theDuke of Leicesterapproached an unsettled coast on the sparsely populated island of Barbuda in the West Indies, and offloaded forty-eight men and five women before sailing away.¹ The stranded passengers told locals they had signed contracts of indenture and were on their way to Philadelphia when the ship had strayed off course. Residents took pity on the castaways and transported them to the town of St. John’s, on Antigua, where they were given food and shelter. The charitable islanders were surprised a few weeks later by news that theDuke of Leicesterhad attempted...

    • 8 “Seeking the Water of Baptism”: Fugitive Slaves and Imperial Jurisdiction in the Early Modern Caribbean
      (pp. 199-232)

      In 1702 thirty-one fugitive slaves arrived on the Caribbean coast of Venezuela from the small Dutch island of Curaçao, located just forty miles due north.¹ Local authorities quickly captured them and sold them in a public auction. This generated protests from the representative of the French Guinea Company, which then held theasiento de negros(the contract that allowed foreigners to provide slaves to Spanish America). He claimed that the company had exclusive rights to sell slaves in Venezuela. Meanwhile, the captain of the local free black militia interceded on behalf of the slaves, citing two previousreales cédulas(royal...

    • 9 “A Pretty Gov[ernment]!”: The “Confederation of United Tribes” and Britain’s Quest for Imperial Order in the New Zealand Islands during the 1830s
      (pp. 233-258)
      P. G. McHUGH

      During the 1830s a wild assortment of British subjects was resorting to the New Zealand islands with an array of motives, not all of them savory or evangelical. This was an unruly cast and one that was getting unrulier by the day, fomenting unrest among Maori and liable to explode into violence. Increasingly imperial authorities realized that the Crown would have to establish formally some kind of local presence (imperiumor formal governance) in the islands so as to bring ruliness to its subjects and in their dealings with the indigenous Maori tribes. As this necessity pulled into focus during...


    • 10 Laws’ Histories: Pluralisms, Pluralities, Diversity
      (pp. 261-278)

      Edward Byam condemned the “breach of the laws of the empire” he saw all around Mauritius in late 1822.¹ As British commissary general of the police in the island, he struggled to work within a “radically bad and vicious” system. Its radical badness arose from the fact that French laws that sustained the slave trade persisted alongside British laws that prohibited it. The solution was to constrain the plurality of laws by a “full and entire execution” of the “laws of the empire in regard to the slave trade.” The rule of law would end a chaos of laws.


    • 11 Rules of Law, Politics of Empire
      (pp. 279-294)

      All legal systems attempt to work by providing rules for social interaction and asserting the validity of these rules for individuals subject to them. Occasionally, rule makers and their advisors make extensive claims for applications of their laws: that they apply or should be applied to all who share a faith, to all in a single polity, in the extreme to all the peoples of the earth. But the ordinary state of law depends upon a selective and multiform approach to rules—to the range of their applicability, to their appropriate sources, and to the entitlement to implement them. Empires...

    (pp. 295-298)
  10. INDEX
    (pp. 299-314)