"What remains of the colonial period? Everything."
Interview with Heikki Pihlajamäki on early modern colonial laws
The police legislation of the early modern period, which attempted to legally regulate wide areas of people‘s lives, has been extensively studied since the 1970s, especially in German-speaking research. The framework for interpretation was usually formed by the emerging pre-modern princely state and concepts such as social discipline (Sozialdisziplinierung) or absolutism. But how did this work in a completely different context, the overseas colonies of the European powers, where European law met indigenous law? The Finnish legal historian Heikki Pihlajamäki is tackling this question. Together with a small team, he undertakes a comparison of the colonial police legislation of Spain, Portugal, England and the Netherlands.
Professor Pihlajamäki, how did you experience your fellowship here in Münster?
Wonderful! It has been really great. Everything has been perfectly organized and I think you found a very good combination of common things to do and freedom, which are both essential. And of course, the environment, the city and everything, is just perfect.
Let us talk about your research project. You are systematically comparing the colonial laws of England, the Netherlands, Spain and Portugal with each other and additionally with other Empires like Sweden, the Holy Roman Empire and Russia. How do you handle such an enormous number of sources?
First of all, the “other ones” are more the context of my investigation on the basis of literature. Because I think everything has always to be in a context. Of course, not everything is relevant for this project like, for instance, the Ottoman or the Chinese Empire.
Because they are too different?
Partly because of that: one may well determine “colonial” as pertaining to European empires only. Also, because there is no clear connection. At least, that is what I think at the moment. There are always choices, and the choice of these four empires is as good as any other. What these four share is that they are maritime empires. I have four, five researchers and myself, that is it. Within the group, I study the Spanish case. Another way how we manage the number of sources is that we are concentrating on statutory law and within it on something called “police laws”.
Let’s start with a basic question: Which people were subject to colonial law and which areas of life were regulated by it?
That is a very good question. The whole concept can be debated but the way I see it is that there are always at least two groups in all of these colonies, the European-originated people – European originated because by the 18th century they might have lived with their families there for two hundred years – and the indigenous people. The Europeans are always ruled by colonial law, which in this respect is a conglomeration of different normativities. At the bottom, you have the same law as in Europe. For instance, in the case of Spain you have the Spanish law which consists again of different particles. You have the ius commune, the Castilian law and religious canon laws. All of these are valid in the Spanish colonies as well. And on top of that comes the special administration which is what we are interested in, the police part, all kinds of small legislation which is given for the colonies – sometimes for all of them, sometimes for some of them – from Spain but with the help of the Council of the Indies which is the main governing body in charge of the colonial affairs. And there is also legislation which emanates from the colonies themselves, from the viceroys, the high courts, the governments and the city governments. There is an awful lot of different things coming from different levels. So, what we do is look at the local level and see how all kinds of legal sources interact with each other.
Do the Spanish colonies have their own courts or does the metropole always have the final say?
No, they have their own court system with appeal courts, and it is theoretically possible to appeal civil cases to the Council of the Indies in Seville in Spain, which is the highest court organ. In practice, however, this rarely happens and things are decided within the colonies.
In principal, the indigenous people are governed by the same rules but on top of that they have their own customary law which is accepted as a legal source, interestingly by all of the four colonial powers including England. The way these laws were handled is with exactly the same doctrine of customary law that one has in Europe because this was of course not a new problem. When Roman law took over in Europe starting from the 12th century, the lawyers were always stumbling upon the problem of customary law and finally came up with a theory determining the admissibility of these laws. They had to be acceptable and not against Roman or natural law. So, it was the lawyers who screened the laws in their courts. Later, the indigenous laws were treated as if they were normal European customary laws. And as centuries passed, the same thing happened to them: they lost the battle against modern positive law.
So, already in colonial times we see a coexistence of indigenous and colonial laws?
In the Spanish realm, the indigenous people had their own court system, too. It did not cover every part of the colonies and they often ended up in Spanish courts as well, just as they learned how to use the Spanish laws. They were not always victims of Spanish law, they used it smartly and effectively at times.
The other extreme are the Netherlands. In the beginning of the 17th century they landed in a very different situation in the Dutch East Indies, roughly present-day Indonesia. This was a real case of legal pluralism much more so than where the Spanish arrived. In Indonesia there were Chinese, who had already developed a legal system, Hindus with their own system, Muslims and the indigenous people with their Adat system of customary law. The Dutch did not even try to do anything like the Spanish did. In the beginning, they just applied their laws to their own people which were basically the workers of the VOC (Dutch East India Company) and those in the cities. They took a much more practical attitude towards this because for them it was really a business.
I imagine that there are very different circumstances in the colonies than in the metropoles. Are there legal issues that developed because of the specifics of the colonial environment?
At least there are different emphases on things that are more important in the colonies. Mining, for instance, becomes a big area of regulation in the Spanish and Portuguese colonies. But when one thinks about the police regulations, it is hard to find things that have not at all been thought about before because in the end it is all about community legislation.
Seen from the colonies, the king is far away beyond the ocean. Did the Spanish citizens have more freedom here in terms of police law regulations?
I would not think of it in terms of freedom. It is up to the cities to make the laws. This is a typical feature of police laws that they do not only come from top down but from bottom up. In that sense you could say the local autonomy is a little bit stronger because so much of the regulation comes from the different local or regional levels.
You have already indicated the differences between the four colonial powers and elsewhere you speak of different interests that they pursued. So, what were their interests and in how far did these affect their legal systems?
Different interests or just: different realities. Take the figures of European populations in 1500. We have Portugal with 1 million people. 50 years later, England has 3 million people, the Netherlands 1,25 million. So, we have these tiny imperial nations with one million people to conquer the whole world. Spain on the other hand had almost 8 million people which is considerably more. So, it is quite understandable that the Spaniards from early on got the idea to capture land masses. But not even Spain could think about conquering the whole Central America. It would have been impossible – and unnecessary. So, they took certain areas into firm control and secured routes to these places. Their law applied to everybody who lived there, with some exceptions like customary law. So, this is a big difference to smaller countries like Portugal and Netherlands who would have never been able to do so. They just secured trade routes and that was basically it. They had their laws apply to their own citizens only and did not really care about the others. But this changed towards the 18th century when Portugal also had more and more land masses under control, in Brazil for instance, and the Netherlands were expanding their control in Indonesia from the capital Jakarta to larger areas. The VOC started to act like a real state. That is why I was saying that these differences are quite relative, it is a sort of crude division in empires which are interested in controlling their lands and those which are interested in securing trade routes. It is true but you have to remember we are talking about 300 years.
Do the different confessional orientations – Catholic Spain and Portugal, Protestant England and Netherlands – play any role in this?
That’s a very good question. I tried to look into it for the part of the Netherlands and I am not done with it yet. I would love to say that there was a difference, but I really do not find anything. I went to some of the theological ethics where one would expect to find something on these things. But among the Dutch theologists of the 17th and 18th centuries I haven’t found a single sentence about the colonies.
In one of your articles you talk about legal globalization and westernization. What do you mean by that?
I think it is important to keep in mind here that globalization really means westernization. The only legal orders that have been attempted to spread globally and have succeeded to a certain extent are the Western ones. And there is no change in sight. One cannot imagine that the Chinese law would ever invade Europe, even in a situation where maybe culturally there might be a big change – which I don’t see either. Or take Islamic law which depends on religion. As long as we don’t have this religion we won’t have Islamic law.
So, if we talk about real globalization is it will only be a westernization. And the explanation is twofold: the obvious one has to do with pure violence and colonization. But the other one is that the common law system and the continental legal system have one advantage, which is that they are completely detached from religion today. They have been since Enlightenment. So, they are completely religion-neutral systems, which makes them easily exportable. Anybody can take Western contract law; it doesn’t commit them to anything as far as religion goes.
What remains of the colonial era? Do laws from that time still exist today?
Let us start with Spain and Portugal. What remains of the colonial period? The answer is pretty easy: everything. What happened in Europe with early modern law in the 19th century – states became constitutional and laws changed accordingly – all these developments basically also took place in the Spanish and Portuguese colonies. So, they changed their colonial past to a modern legal system, which was very similar to Europe at this point. The Indian customary laws had more or less already disappeared, with very few exceptions, in much the same way as the customary laws had in Europe since the Middle Ages.
Is this really comparable? After all, there are still many indigenous groups fighting for recognition of their traditional rights today.
That is true. Of course, there are many groups in Mexico for example and I am not saying that they are not important and that there is nothing left of their legal culture. But the sad truth is thatthe customary law only covers a small segment of the lives of the indigenous people. Everything else comes from the colonial European past. We don’t even have to look that far. In Finland we have the only remaining indigenous people in Europe, the Sámi. They are also fighting for their fishing or landowning rights. And they have even won some of the cases. But again, even if they succeed with their lawsuits, which I am very much in favour of, how big a part of their lives would then be governed by their customary laws in Lapland? If you don’t fish or have reindeer you live perfectly and only according to the Finnish laws.
So, if I understand you correctly, most of the former colonies kept the old laws because they had become a modern legal system in the meantime?
Yes. Again, the Dutch colonies were very different because even in the 19th century, there was no independence movement. But there was a constitutionalisation movement and the Dutch state took over the colonies from VOC in 1800. But they had a very conscious policy of legal pluralism even after that and did not even try to unify the whole colony legally. A pluralist system was allowed to live on which in fact means that quite little is left from the Dutch law in today’s Indonesia.
The questions were posed by Lennart Pieper.