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Lauren A. Benton, Monika Dommann, ...: »A Just Outcome is Possible.«
»A Just Outcome is Possible.«
(S. 15 – 30)

Law as a zone of contact and conflict

Lauren A. Benton, Monika Dommann, Kijan Malte Espahangizi

»A Just Outcome is Possible.«
An Interview about Legal Pluralism, Jurisdictional Conflicts and Imperial Law in Historical Perspective

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Lauren A. Benton is one of the most innovative contemporary researchers working in the field of legal history. Since July 2015, she is professor of history and law and the dean of the College of Arts and Science at Vanderbilt University in Nashville, Tennessee. Previously, she held a position at NYU in the department of history. She has drawn the material for her studies, to large extent, from the Early Modern, Atlantic world: mainly from the writings of colonial legal scholars, in particular their studies of the legal status of the open sea, the slave trade, and the mountains of paper produced during the colonial period documenting the paradoxical situation of subaltern governors. Consequently, her understanding of law as a zone of contact and conflict is enlightening for those undertaking a post-colonial analysis of the globalized world. We met with Lauren Benton for an extensive interview on occasion of the public talk she held in December 2014 at the Center »History of Knowledge« (ETH & University of Zurich).

Interviewers: Monika Dommann, Kijan Espahangizi

Lauren A. Benton is one of the most innovative contemporary researchers working in the field of legal history. Since July 2015, she is professor of history and law and the dean of the College of Arts and Science at Vanderbilt University in Nashville, Tennessee. Previously, she held a position at NYU in the department of history. She has drawn the material for her studies, to large extent, from the Early Modern, Atlantic world: mainly from the writings of colonial legal scholars, in particular their studies of the legal status of the open sea, the slave trade, and the mountains of paper produced during the colonial period documenting the paradoxical situation of subaltern governors. Consequently, her understanding of law as a zone of contact and conflict is enlightening for those undertaking a post-colonial analysis of the globalized world. We met with Lauren Benton for an extensive interview on occasion of a public talk she held in December 2014 at the Center »History of Knowledge« (ETH and University of Zurich).

Dommann: Can you tell us a few things about your intellectual biography? What did you study? And what led you to your current interests?

Benton: That’s a long story because it involves a radical shift in what I was doing at first. I did my PhD in anthropology and history but worked mostly with sociologists on the study of migration. I wrote my dissertation on the informal sector, in particular on people working off the books in Spain, and this was post Franco Spain in the 1980’s, so it was not a terribly historical project although there was some history in it, of course. It was a good project to do, I enjoyed it, and I got interested in law while I was doing it because one of the things I found was that people who work in the underground economy were using a lot of the regulatory frameworks of the formal economy, and so I began to get interested in legal pluralism through that route.

But when I finished the dissertation and then the book, I realized that my heart was with history and that the big questions I wanted to consider were historical questions. So the reason why it was such a radical shift was that this in fact required leaving a very good university post, a faculty position at MIT. At that point that was a pretty unusual thing to do and I think it was unclear whether I would find another university post. So in order to stop doing what I didn’t want to do any longer and do something new, I had to just leap, so I leapt, and then I ended up getting another position and being able to work on this book about legal pluralism, Law and Colonial Cultures.

I mention all of this because it explains why for me that book really was my opportunity to write what I most wanted to write. I didn’t have any sponsors I needed to make happy, I was just working on what I wanted to work on. So that was my first book about comparative law and legal history, and from there I continued to do what I am doing now.

Dommann: It seems that you have the typical biography of someone who is in science and technology studies. Most of us move between the disciplines. The first paper I read of yours was the paper you wrote together with your colleague Benjamin Straumann, Acquiring Empire by Law. This is a history of the legal concepts of the colonial period dealing with things (especially land) without owners. Your methodology seemed very anthropological to me. So what you just told us about your biography explains a lot. Can you describe how the imperial agents used the corpus of knowledge of the Roman Period concerning the res nullius and terra nullius?

Benton: Well, sure. That was a piece we wanted to write because we noticed there was a debate happening among historians about the way that the doctrine of res nullius (things without owners) was being used by early modern Europeans in empire. The debate was very striking because you had one side saying that Europeans in empire were absolutely applying this Roman legal concept in a very faithful way in making claims to imperial lands through occupation, and on the other side, you had scholars saying they were not applying it at all, in fact they were recognizing sovereignty and acquiring territory by purchase and their reasoning had nothing to do with res nullius, although it might have something to do with Roman law.

What we realized was that historians were cherry-picking from the sources – taking out the parts that supported their arguments, and often when you went to the sources you would find that the historical actors were saying both these things in the same sermon or tract. Partly what was happening, was that there was a misunderstanding on the part of many historians about the way people make legal arguments. Europeans were often making inconsistent legal arguments, which is not that unusual. If one is making a legal argument, one throws everything at the wall to see what sticks. So when historians expected to see legal arguments built around a single logic, they were misreading law and failing to understand it as discourse. Now the thing that was very interesting about this, too, was that the people making these legal arguments often did not have any legal training. They were picking up ideas about law somehow from circulating knowledge – from stories about the law, from royal instructions, and sometimes just from their cultural milieu.

I like that article very much, too, because it shows how important the cultural context is and that people pull ideas out of strange places when they are thinking about law. One of the analogies I give my students is about legal culture in the United States, where at any public meeting – it can be a parent-teacher association meeting or a local zoning board meeting – someone will always say, »Oh you can’t do that, we’ll get sued.« Because there is this litigious kind of culture and people who say that very often don’t know what a tort is, have never been sued, have never been involved in a suit, but they live in a legal culture that is just steeped in this idea of litigation. So I think the idea is similar for the early modern setting, one has to study legal culture in order to understand the law, and vice-versa.

Dommann: It’s interesting that lawyers use these old legal concepts as tools for their arguments. But historians perceived the Roman law as a stable entity. Roman law is still considered core knowledge in legal studies. I don’t know how it is in the US, but here in Europe, students of law still have to study Roman law. Do you think Roman legal concepts are still relevant?

Benton: Well, don’t forget I am not a lawyer and I am not law-trained myself. But I certainly know from my law school colleagues that Roman law is not a required subject for law students in the US. I think that has in fact probably contributed to the fact that historians weren’t able to see the influence of Roman law in some of the early colonial historical contexts. A lot of that has to do, too, with the myth that Roman law was so much less important to English law than to continental law. Because of that myth there was a kind of writing out of Roman law from the Anglo-American historical tradition. That is being corrected now with some historians writing about the impact of Roman legal ideas recently, although there has in some quarters been an overcorrection, and scholars treat the Roman law influence as a little bit too canonical.

Dommann: I would like to draw attention back to legal knowledge. In your books and papers about early modern law, the legal concepts are always in circulation and far from being stable. They are used and reused by different actors. From a history of knowledge point of view, legal knowledge is comparable to medical knowledge: it is organized by professionals who serve the state and have access to power. As I didn’t read a lot about this in your books, I was wondering: What is the role of experts in these imperial settings of law? What kind of legal knowledge is of concern and how is this legal knowledge actually acquired? How do these actors actually get the knowledge they use for different purposes?

Benton: That is a great question. I think there could be in fact a lot more research on this subject than has been done. It varies in different settings and in different times. As I was saying before, you find many imperial and colonial officials who had some legal training, sometimes a lot of legal training, but also many who did not, and they all interacted with one another in shaping colonial legal systems.

In general, my approach has been to gauge the ways legal knowledge influenced colonial politics and the way empires were structured and run, because I see the imperial project as one that was really narrated by law, through law. People who were not legally trained were looking to law to describe the way they wanted to organize empires politically. So I see the influences as much broader than those emanating from people who were designated as the experts. For example, in the book I am just completing with Lisa Ford about legal reordering in the nineteenth-century British Empire, we are finding that military men in the colonies designed many key legal reforms in the empire. Their legal knowledge came from a variety of sources, including hearsay, and impressions they carried from earlier postings. People at the very bottom of the social and political hierarchy also exerted influence on the colonial legal order and operated on the basis of rumor. Slaves in the West Indies responded to rumors about proposed changes to slave law by organizing protests and revolts, and by pushing for slave owners to be held legally responsible for the mistreatment of slaves.

Espahangizi: In your recent work you deal with the notion of legal pluralism. How did the legal culture in this early modern empire come to be so pluralist?

Benton: Empires by definition were legally plural. Legal authority had to be delegated in order for empires to run. In addition, pluralism resulted from the interactions between legal systems imposed by conquerors and the law of the conquered. It was very rare for conquerors to destroy and replace existing legal systems. Much more often they created layered jurisdictional orders. My book Law and Colonial Cultures was about the resulting patterns of legal pluralism. In A Search for Sovereignty, I make the point that there is a close interrelation between the way European jurists and theorists thought about sovereignty as divisible and the construction of very fragmented colonial legal orders. Europeans were used to composite monarchies and, also, accustomed to jurisdictional tangles between church and royal authority, so for them legal pluralism was very familiar. An empire had certain real administrative limits and constraints, too. In many cases legal pluralism came out of a very pragmatic attempt to keep the cost of administration down, to make empire orderly without overextending administrative costs and erecting a huge bureaucracy. So legal pluralism in part resulted from very practical tensions, and there was a nice homology with theoretical approaches. The turn toward a view of sovereignty as indivisible and as closely associated with territorial control happened much later than many scholars suppose.

Dommann: Perhaps for empires it was a successful way to rule or to govern through the use of legal pluralism. Perhaps, this was the only possible way?

Benton: Yes, I mean, to a certain extent it was necessary. But of course the big insight for me, which comes out in Law and Colonial Cultures, is that in the early modern period every legal system was multi-jurisdictional, every legal system was plural, and that was true of European legal systems just as it was true of the legal systems that Europeans were interacting with, and so it was not unusual to find colonial powers engineering multi-jurisdictional legal orders. That really is the way people did law and in fact everyone would expect the legal order to look that way. So, in that context, it’s not unusual to be creating more and different varieties of legal pluralism. Does that make sense?

Dommann: Definitely! But for a nineteenth century scholar or a twentieth century scholar, it is unusual. Because history turned the other way around.

Benton: Yes, that is exactly right, and that is part of my argument, too. In the long nineteenth century you begin to see – but from very different angles, not only from the top down – the construction of more claims by the state to hegemony over the legal order.

Dommann: I was asking myself why you stopped at 1900, because the period before WW I is in fact shaped by globalization.

Benton: Oh, it is partly inclination, and maybe partly lack of time. But the more substantive reason is that even though legal pluralism continued beyond 1900, the context changed radically once there was an explicit claim by international lawyers, and others, that sovereign states were the most important entities in the international order. I should add that I work with a couple of people at NYU who study empires in world history, Jane Burbank and Frederick Cooper, and they have written a book about empires in world history that tells a slightly different story. We teach together, we write together, and we have an interesting private debate about whether the nineteenth century marks an important turning point. I see a very important turn happening in the nature of legal pluralism in this long nineteenth century, but Jane Burbank and Fred Cooper consider empire as the dominant organizing principle of world history right through the twentieth century. I think that we probably have a more subtle difference than a stark difference in opinion, I can see their point, but I also think the early modern world was distinctive. I am beginning to work on a book now with Adam Clulow, a historian of early modern Southeast Asia, and we are writing about a set of rubrics and practices that made up what we are calling »interpolity law« in the early modern world. Some of them continue into the present, but not in the same forms.

Dommann: So the rise of the nation state in the late nineteenth century isn’t your concern. But it could be interesting to look at what happens exactly at this moment of transformation at the beginning of international law based on nation state law.

Benton: Yes, and you may be happy to know I am finishing a book on the early nineteenth century now and part of the argument there is to recover the early nineteenth century as an influence on these late nineteenth century developments. So I am getting closer. It is certainly important to recognize that in many parts of the world the impulse to create states with claims to legal hegemony developed as part of imperial legal politics, not after the decline of empires. One of the patterns clearly visible through the study of empires is the strengthening of nation-states’ legal authority through conflicts with imperial powers.

Espahangizi: In the 1970s, we can observe the rise of legal pluralism studies that criticized the so-called ideology of the centralized state law, which had turned into a dominant legal perspective in the era of the nation state. Seen from this angle, there is in fact a continuity of global legal pluralist orders since the early modern period and throughout the era of the nation state in the nineteenth and twentieth century. How and where can we grasp this continuity?

Benton: In A Search for Sovereignty I define empires as having very fragmented, layered kinds of systems of rule, and being very productive of these zones of legal anomaly. I actually borrowed that phrase anomalous legal zones from someone writing about Washington DC in the late twentieth century. There are zones of legal anomaly in the present world all over the place. The last line of that book says something about Gaza and Guantánamo. You begin to understand those formations much better, I think, when you see how productive earlier systems were of such places. A chapter of that book deals with island penal colonies that virtually all the major empires produced, in the late eighteenth century in particular. And so, clearly, there is continuity. I think there is a lot of continuity in international law, too, and one of the things that the current project is trying to look at is the way that attempts to make imperial law do more work as a global system influenced the development of international law. Certainly you can see continuities of imperial thinking in contemporary international law, though no one talks about them. They are written out.

Dommann: Do you have an example for that?

Benton: Yes, I do. An example would be, say, the implicit connection between protection in empires and the Responsibility to Protect doctrine in international law today. Protection is a very old idea, and it became a key construct in the British Empire, and Lisa Ford and I have written a chapter about the way protection talk was all over the empire. As we were writing this, the conflict in Crimea was emerging and I think that Russia’s assertions about its intervention in Crimea in order to protect Russians was very interesting in this regard, because the principle of protection was stated in a way that echoed imperial ideas of protection even though it was meant to formally cite the responsibility to protect doctrine. R2P, as people like to call it, is an interstate period doctrine about when one is allowed to make an intervention across state lines, but the way that Putin was framing protection was very imperial because it included the anticipation of annexation, which is something that was part of the imperial approach to protection but is not at all part of the responsibility to protect doctrine.

Dommann: Do you think that we are witnessing a new imperial age, regarding especially what you just told us about President Putin in Crimea? Is his knowledge on how to rule based on historical techniques, which were already used by sovereigns in the early modern period?

Benton: Yes and no. I don’t think that the influence of the empires is gone, I think there are still many imperial constructs and I do see the imperial legacy as an important political force in the contemporary world. One thing, though, is that the way that people use discourse, as you know, is influenced by context. Imperial discourse is very different in the context of, or at least the claim of, an interstate order and the idea of strong state sovereignty. So it isn’t the same, there are continuities but it isn’t the same. It is important to study political ideas over the long period to trace their changes. This is one of the reasons why I like a world historical perspective, because you don’t then lose sight of these continuities and can still search for discontinuities.

Dommann: Yes, you have to look at the longue durée, but also the points of rupture and discontinuities.

Benton: This brings me back to the point about legal pluralism and something I wanted to say before, which is that the main methodological insight that for me came out of my early work, and has continued to influence the way I think about it, is that jurisdictional conflicts were very important to people in their cultural interactions and also in shifting institutional configurations. I began to look for clusters of jurisdictional conflicts, and that is a methodology that has born some fruit for me and has influenced other historians, too. Clusters of jurisdictional conflicts produce institutional shifts in world history, and they are also often accompanied by a great deal of cultural tension. The clusters also don’t necessarily occur at the times we normally associate with turning points in world history. I think you could take that methodology and apply it in the contemporary world and see where there are these jurisdictional conflicts of a particular kind and that they emerge around particular issues. It’s a good place to look for understanding cultures of law but also for looking for institutional shifts.

Dommann: What is jurisdiction? And how can we study it historically?

Benton: Well, you know, I don’t think jurisdiction is terribly mysterious, I just think about it as legal authority essentially, and the reason I like it methodologically is because it is not that difficult to locate and to discuss, it has almost always in these historical settings some contemporary recognition. People in all periods do talk about legal authority, they know who holds it, they have reference points, it’s not as if you were naming something categorically that doesn’t have a historical name also. It is much more difficult to try to study legal practice as reflecting norms because you can’t locate normative orders historically with the same certainty. So I haven’t found jurisdiction to be an elusive sort of category, but I do think it’s worth bringing out and sharpening a bit. Do you think it requires more elaboration theoretically?

Dommann: No, I think it’s a much broader concept than law. There are many more practices involved, from different spheres of society, than just a legal perspective would suggest, and that’s what’s so interesting about it.

Benton: Yes, I agree with that.

Espahangizi: So, if you take jurisdiction as a main methodological focus, and if you say that, basically, it’s a way of solving conflicts with a legal authority involved, what other forms of this conflict solving do we miss?

Benton: I would say it’s all a way of performing conflict rather than solving conflict. So the object of analysis is jurisdictional conflicts rather than the solving of jurisdictional conflicts. Sometimes they don’t get solved or they get solved in ways that are temporary. So that’s maybe a difference from older anthropological approaches in legal anthropology that used to emphasize conflict resolution. An excellent example comes out of the work of Lisa Ford, who wrote a book about the way jurisdictional conflicts between white settlers and indigenous people in North America and Australia produced a very gradual shift in the way that settlers were defining jurisdiction and sovereignty. They slowly moved away from focusing on authority over the person and toward defining jurisdiction as territorial, and that happened in reaction to a whole series of disputes along the frontier, a lot of them having to do with violence and crime. Or another example is from my own work on British-controlled parts of India. The British designed an elaborate system of legal pluralism in which they had limited jurisdiction, and then Indian litigants, often using very sophisticated legal strategies, began to use the jurisdictional complexity in ways the British hadn’t anticipated, mainly through bringing cases to courts where it wasn’t clear they had standing to sue, and by insisting they should be recognized by those courts, and as a result of this jurisdictional politics it was impossible for the British to create fixed jurisdictional boundaries.

Espahangizi: So maybe I should specify: You understand jurisdiction as a way of performing conflict rather than a way of solving conflict. But there are other performances of conflict, such as, for example, protests or violence. How can we link jurisdiction to these forms of performing conflict?

Benton: They are certainly linked and they are certainly linked to violence. The relationship to violence is one that is particularly interesting, and again, one finds that looking at the imperial and colonial histories, you tend to shift around some of the expected categories. Much of the colonial history that has focused on law shows something very interesting, which is that people who are protesting against colonial rule don’t regard legal protest as something that should be conducted separately from, or in exclusion to, violence. So you have settings in which people are violently protesting against a colonial legal regime or reform, and at the same they are bringing action in court.

Espahangizi: Could you give us an example?

Benton: Sure, the best example is not from my own work but from the work of someone named Sergio Serulnikov, who worked on protests in the Andes in the late eighteenth century. He traces these Indian groups who were responding to Bourbon reforms by attacking local judges, corregidores, but at the same time they were sending delegations to walk miles and miles to get to the audiencia, the high court, to make a formal complaint, and they were doing both these things, the same group. So they didn’t regard law as something that was separate from violent protest, they were actually doing both at the same time. It’s pretty interesting.

Espahangizi: So, if the legal appeal is not only a posture or an empty gesture, why do they do it? Is there a kind of belief behind it, or is this just theatre?

Benton: Oh no, it’s not just theatre – although there is always an element of theatre in law. I do think that we should not underestimate the sense of devotion people have, as well as the strong sense about justice and how it’s supposed to work, and the outcomes that it’s supposed to be able to give them. This isn’t purely theoretical, though, and it isn’t purely philosophical, and it isn’t purely religious, even though it always intersects with all those ways of thinking. When people think about justice, they also think about justice procedurally, they think about justice in terms of jurisdiction and having just outcomes be decided by people who are legitimate to them, and these are things that they think about simultaneously, it’s very difficult to pull them apart in fact.

Espahangizi: So there is a kind of possibility of justice behind it that …

Benton: Yes, I think so. In Law and Colonial Cultures, I have a last chapter that is really all about this very short intervention made by E.P. Thompson in the book that he wrote about law, Whigs and Hunters, and that intervention of his was very upsetting to people who read Thompson as a Marxist historian only, because he says the rule of law is a good thing, and he upset a lot of people. But what he actually says in that chapter is that it’s very important to realize that people often act based on their expectation that there is a tiny possibility of justice being done, and they will opt into political institutions and political frameworks even if there is a very small chance of justice and a very large chance of injustice. That seemed to me a very interesting insight that explains a lot of participation in very unequal kinds of systems and also in very skewed legal orders, where legal outcomes really are difficult to predict, or it’s difficult to predict that justice will happen. So you know, why do the Indians in Serulnikov’s case walk hundreds of miles to get to the audiencia? They perceive a very slim possibility that a just outcome is possible, so they are participating in this legal order.

Espahangizi: What role does this legal participation of the oppressed or subalterns play in the emergence of the centralized state law we were talking about earlier? There is a pessimistic narrative that tells us the history of the nation state legal order is about rule and control. But you seem to suggest another story?

Benton: Well, I do partly make an argument that is something like that, I argue that out of the jurisdictional politics and the jurisdictional jockeying of the colonial order, in many cases there was an appeal for the creation of a state-dominated legal order, and that came from below as much as it did from above. Sometimes it had to do with people’s desire to have predictability in law, when historical actors wanted a state, or somebody, to just provide predictability even if it was a bad kind of predictability. Sometimes it was better to have reliable expectations than to have none because then you had information to work with in devising new strategies.

Espahangizi: So this would be the dark side of legal pluralism? In the legal pluralism studies since the 1980s, legal pluralism is perceived as a good thing, the bad thing is centralized state law. How did we get there? As far as I can see, legal pluralism emerged as a concept and research program in the twentieth century through an anthropological encounter with the colonial world, and it was at first linked to »primitive« cultures, and then, in the 1970s, the concept was reversed towards western societies. Is there a link between the nineteenth century world and the rise of legal pluralist studies in the early twentieth century?

Benton: I guess I don’t think about it in terms of »good« and »bad«. I think you are right in characterizing some of that literature as creating that kind of opposition between state law and non-state law. In a sense I would say my intervention has to do with saying that this duality is a kind of false structure, that we shouldn’t be coding legal practices in that sort of way. A historical approach is very fundamental to making that correction, because unless you see that legal pluralism really was in fact the way the world worked and the way law worked across the early modern world, in Europe as well as outside Europe, then you can fall very easily into a Eurocentric approach and to a state-centered approach, and unless you take the longue durée approach to history you can operate with a very settled, and false, perspective of what state law is. And you’re right. The earlier approaches to legal pluralism did come straight out of anthropology, they came out of an anthropological context that in turn was influenced by these views of the traditional, the primitive, and if you look at those anthropological approaches, it took a long time to get out of that way of thinking about a sharp distinction between formal and informal law. Even some people who professed to be complicating the picture held on to this distinction longer than they should have.

Dommann: What you described as the historical methodology that is used for the description of processes instead of the stating of norms seems quite familiar to historians of science. It’s a descriptive approach contrary to a normative approach. Is there a danger that the outcome of this is just relativism?

Benton: Well, there is, I suppose. But one doesn’t have to go all the way toward relativism. There is a move towards a kind of post-modernist perspective that suggests there is no world-historical narrative and we should get away from all narratives. I have actually remained fairly interested in the grand narrative, and I think we can use cultural analysis and similar approaches to construct new narratives, and so I think that I am not a poststructuralist in that sense.

If you take this approach to legal pluralism or jurisdictional conflicts and layer it into world-historical narratives you get some different chronological breaks, you get a different way of seeing some shifts in global ordering, but you can still arrive at a narrative, not just at a big soup in which everything is floating around. I am not so interested in the soup. I suspect we are past the point where that’s going to be the outcome of our interest; I think the fashion of a kind of cultural studies approach to everything is over. We can still, though, use some of the insights of that approach to do other things.

Espahangizi: So we can learn from history?

Benton: I hope so!

Espahangizi: Ok, that’s good to know.

Dommann: There is one more question I would like to ask, because you studied the early modern period of the colonies so profoundly. The Europeans brought along some norms to the »new« world, for example common law, and then they transformed it. Many contemporary legal scholars stress the difference between American law and European law. There are people talking about a cultural gap between these two cultures. Sometimes I think it’s a political argument. What do you think about these discussions as you have studied the transfer of legal concepts over the ocean back and forth?

Benton: I tend to be skeptical about cultural-gap arguments. You know, when I started working on this, I was not very interested in the legal history of my own country, but then, after studying colonial history, I began to see the history of the United States as a part of the world history of empires, not in the nationalistic vein that used to dominate the subject. And when you look at the legal history of the North American colonies in this broader context, you see that there really wasn’t just an Anglo-legal imprint on the colonies, the colonists created the common law in America out of a political process that had to do with their own internal struggles as well as tensions with the empire. So the legal tradition looks much more contingent and much less programmed by its heritage. In general, I tend to be much more interested in the way that people can use legal categories to communicate across legal systems fairly well without a lot of difficulty, and I tend to think that people understand strategic thinking on the part of others fairly well, so that they are not mystified very often by other peoples approaches to the law.

Now let me turn the question around and ask you. How do you see this kind of thinking about law as relevant to your thinking about the history or sociology of knowledge?

Dommann: Yes, perhaps you know that I started as a historian of science, I did my PhD about X-rays, and then I turned to the history of law studying copyright. I tried to study legal knowledge in the same fashion as I did with other corpuses of knowledge before. I realized that it’s quite difficult. But I observed some specific characteristics of legal thinking, for example, that history or the use of history is quite important. So I think we are still at the beginning of a history of knowledge of legal concepts. When I read your paper about res nullius, I realized how the history of law could be done quite differently from the way it was done before when it was still largely perceived from the view point of a history of ideas: to look at legal concepts, to study how they are transformed, how they are used and reused. But I think we are still at the beginning, really at the beginning compared to other disciplines where the process has a much longer tradition.

This kind of research is always accompanied by tensions because you enter another field with already established experts asking: What are these guys doing in our garden now?

Benton: I’ve had mostly a very good experience with legal scholars because legal history has changed radically as a field in the last fifteen years. It is much more open than it was to different approaches, it used to be much more closed and more focused on a narrower set of questions.

Dommann: Until recently, the history of law was predominated by a history of ideas approach. If you try to follow a practical turn, it’s a completely different picture you get.

Benton: Yes, you ask very different questions. I think I benefitted from being outside the legal profession in studying law. It meant that I was never tempted to ask doctrinal questions, and it also meant that I could combine very different kinds of sources. When I was starting my work on A Search for Sovereignty I just asked the general question, if people were not claiming territorial sovereignty in early modern European empires, then what were they doing, and what kinds of legal ideas and practices were they using? And that led me to read a wide variety of sources, and ultimately to some quirky results. There is a chapter, for example, about the European imagination of riverine regions and about the way that Europeans saw rivers as central to colonial ventures but then imagined upriver regions as politically dangerous places where it was especially hard to constitute political communities. I came to this conclusion from reading accounts of river travel and finding treason cases coming up all over the place. That is an association – between the conquest of river regions and the law of treason – that you would not get from someone who studies traditional legal history or even traditional intellectual history. A practice-based approach, as you describe it, means you can begin by reading what people were writing about, how they were narrating their experience, what kind of legal language they were using, and what sorts of legal practices they were invoking. I am sure it’s similar in the history of science, where you have to know some science, but if you are not thinking like a scientist, you ask completely different kinds of questions.

Espahangizi: Earlier, you said there is hope that we can learn something from all this. I really find that appealing. A lot of us are struggling with the case of economic globalization and legal pluralism in a capitalist world order. Take, for example, the ongoing negotiations on the transatlantic free trade agreement and the plan to institute arbitrary tribunals for investor–state dispute settlements. How can we perform a democratic conflict if the tribunal is out of reach? And what would be the possibility of achieving justice in this kind of globalized economic jurisdiction?

Benton: I am happy to say, or unhappy to say, I don’t know. I think these are good questions to think about and I think you should think about them. Although I am an optimist about a great many of things I am not especially optimistic that an emancipatory agenda will be the outcome of my scholarship. I just don’t know if that will be the case. I do think there are things that come out of it which are analytically useful to people, in grappling with contemporary problems. The problem you allude to involves, essentially, a jurisdictional conflict, and the history of jurisdictional conflicts suggests that we should not expect a lot of stability in the jurisdictional power of any international forums.

Dommann: Is there also a liberal reading of legal pluralism? Or is it used, for example, in economic theory? Are you aware of any such cases?

Benton: These are good questions, only partly answerable through historical scholarship. One of the insights that comes out of imperial legal history is that the distinctions between neo-authoritarianism and liberalism are often very blurred. For example, in the early nineteenth century, the British Empire was engaged in a massive project to strengthen imperial legal authority in plural legal orders, and this was occurring exactly at the same time that big projects were also under way to enforce a ban on slave trading and to open new markets to British goods. Some so-called humanitarian reformers thought the only way to get massive reform to happen was to create a counter-revolutionary empire with a strong, even autocratic, imperial government at the center. And some free-trade reformers thought the same thing. It has become very difficult – and it would even be misleading – to describe what they were doing as creating the origins of global liberalism, although there were elements of liberalism present in these various political and economic projects. In other words, you get a much more nuanced history of liberalism when you look at legal ordering as an important dimension of social, economic, and cultural experience.

Dommann: Yes, I think that is quite interesting.

Benton: And I do think there is going to be a lot more work coming up, I would say, in the next five to ten years, on the relation between political economy, law and legal pluralism, and imperial law. Institutional economists have now become interested in analyzing legacies of imperial institutions, and historians are returning now to political economy as a subject after a long hiatus. I hope that legal history will be a part of both projects.

Dommann: Well, do you have any more questions, Kijan?

Espahangizi: A lot more, we are just starting to have fun …

Benton: Well I just want to say thank you for having read and thought about this material so much. I really appreciate it. It’s always nice to have such a good in-depth conversation.

  • Empire
  • Gespräch
  • Justiz
  • Geschichte
  • Römisches Recht
  • Kolonialismus
  • Gerechtigkeit
  • Konflikt
  • Rechtspraxis
  • Souveränität

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Lauren A. Benton

ist Rechtshistorikerin und seit Juli 2015 Dean of the College of Arts and Science an der Vanderbilt University in Nashville, Tennessee (vorher NYU, Department of History). Ihre Forschungsschwerpunkte sind Kolonial- und imperiales Recht sowie die Geschichte des Internationalen Rechts. Ihre Studie Law and Colonial Cultures wurde 2003 mit dem Preis der Wild History Association und dem James Willard Hurst Book Prize ausgezeichnet.

Monika Dommann

Monika Dommann

ist Professorin für die Geschichte der Neuzeit an der Universität Zürich. Sie forschte und lehrte u.a. an der Universität Basel, am Internationalen Kolleg für Kulturtechnikforschung und Medienphilosophie (IKKM) in Weimar, dem German Historical Institut (GHI) in Washington, dem Max Planck Institut für Wissenschaftsgeschichte in Berlin, an der McGill University in Montreal und dem Internationalen Forschungszentrum Kulturwissenschaften (IFK) in Wien. Zu ihren Forschungsschwerpunkten gehören die Verflechtungen der Alten und Neuen Welt, die Geschichte materieller Kulturen, die Geschichte immaterieller Güter, die Geschichte der Logistik, die Geschichte des Marktes und seiner Grenzen, die Geschichte von Bild- und Tonspeichern sowie die Methodologie und Theorie der Geschichtswissenschaft.

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Kijan Malte Espahangizi

Kijan Malte Espahangizi

ist Wissenshistoriker und Geschäftsführer des Zentrums »Geschichte des Wissens« der ETH & Universität Zürich. Er hat an den Universitäten Köln und Sevilla Geschichte und Physik studiert. Von 2006 bis 2010 war er wissenschaftlicher Mitarbeiter an der Professur für Wissenschaftsforschung der ETH Zürich. 2010 beendete er seine Promotion mit dem Titel Wissenschaft im Glas. Eine historische Ökologie moderner Laborforschung. Er leitet die Redaktion von Nach Feierabend. Zürcher Jahrbuch für Wissensgeschichte. Seine Forschungsinteressen sind Wissensgeschichte, Wissenschafts- und Technikgeschichte, materielle Kulturen, Historische Epistemologie, Ökologie und Anthropologie, Erinnerungskulturen, Migrationsgeschichte.

Weitere Texte von Kijan Malte Espahangizi bei DIAPHANES
Monika Dommann (Hg.), Kijan Malte Espahangizi (Hg.), ...: Nach Feierabend 2015

Obwohl Recht auf Wissen zurückgreift und neues Wissen produziert, ist der epistemische Status von Gesetzen, Gerichtsentscheidungen, Rechtsansprüchen und Gerechtigkeitsvorstellungen in der wissensgeschichtlichen Forschung bislang wenig beleuchtet worden. Diese Ausgabe untersucht den breiten Fundus von Wissen, der bei der Formulierung von Rechts- und Gerechtigkeitsansprüchen ebenso ins Spiel kommt wie bei Praxen des Anklagens, Ermittelns oder Urteilens. Auf welche Weise und in welcher Form finden dabei Wissensbestände aus anderen Disziplinen, Gesellschaftssphären und kulturellen Bereichen Eingang in die Rechtspraxis? Wie wirkt das Recht auf die Fabrikation von Wissen ein? Und welche Rolle spielen Kriterien und Praktiken der Rechtfertigung, der Zeugenschaft und der Macht?

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