Legal pluralism and Colonial customary law
date de sortie
Legal pluralism is a corollary of colonialism. The colonial legal order in the early modern and modern European states was characterized by the coexistence of different legal systems in a given territory. The administration of law witnessed the unfolding of complex jurisdictional politics, in which the law of the colonizers and the laws and customs of the colonized were juxtaposed in the pluralistic scheme. The dual legal system was the norm in the European colonial setting: there was one set of law and courts for the European and one for the natives. Does this pattern of legal pluralism apply to colonial encounters involving non-European imperial powers?
This article compares European and Japanese colonial law in the late nineteenth and early twentieth centuries, with a particular emphasis on how different imperial powers approached the legal instrument of custom in dealing with indigenous practices as part of colonial administration. The European imperial powers introduced law of European origin as the general law of the colonial territories, while allowing the continuance of indigenous customs and local institutions. The uneven relationship between the two highlights the complex nature of colonial customary law. The school of legal pluralism which has dominated colonial historiography for some time has viewed colonial legal pluralism a “weak” pluralism because it was part of the state-controlled system. The presumed analogy of customary law to indigenous practices in the European colonies has recently been widely questioned. The majority of rural populations in Africa were governed by native chiefs enforcing “customary law.” Colonial officials, aided by lawyers and legal anthropologists, tried to articulate certain rules from the native court practices, which they then labeled “customary law” of the native peoples. But scholars agree that what was enforced in colonial courts was far from a reflection of immemorial traditions in pre-colonial reality.
The Japanese followed the general imperial pattern of recognizing the legal force of indigenous custom to govern private legal relations among the colonial subjects, yet there were significant differences in their customary law policy. Japan did not establish native courts in its colonies and instead opted for a sweeping imposition of new legal structures in duplication of Japan’s civil law system. Customs were implemented by the colonial courts according to Japanese metropolitan legal principles and procedure. The case was most prominent in colonial Korea. Korea became Japan’s protectorate in 1905, followed by annexation in 1910. Until the demise of the Japanese colonial empire in 1945, Korea remained Japan's most important overseas territory. Custom in colonial Korea was part of legal centralism, an implement of assimilation. The mechanism of legal pluralism was in place but it functioned only to the extent that it would facilitate the ultimate goal of legal unification and assimilation within the empire.
Comparisons of European and Japanese colonial legal policies must proceed with caution. French colonial planners, in domination of areas as vast and ethnically diverse as West Africa or Indochina, were incapable of taking a uniform interventionist approach like their Japanese counterparts. The Japanese settler colonialism was obviously quite removed from the European external colonialism. Further, the fact that in East Asia the colonizers and the colonized belonged to the same cultural sphere of the Sinicized civilization entailed the formulation of a policy distinct from European colonialism. Yet examination of Japanese and European customary law policy can serve as an important point of reference in approaching the question how the different colonial policies influenced the trajectories of legal development in postcolonial societies.
Legal Pluralism in European Colonies
The theory of indirect rule was dear to British colonial ideology. In Southern Nigeria, the Native Court Proclamation of 1900 established native courts. In South Africa, the Black Administration Act of 1927 recognized native courts as part of the official court system. Customary courts were part of a larger administrative strategy of indirect rule. As the implementation of custom was largely left in the hands of traditional authorities in native courts, British officials had little control over intra-African legal matters. Indigenous law was subject to the repugnancy clause which provided that native law and custom were to be applied only as far as they did not overstep the boundaries of civilized law, but intervention in native justice was infrequent. British India was initially dominated by indigenous legal authorities but it gradually shifted to a legal order governed by state law that closely reflected English legal sources and procedures. The use of increasingly uniform legal procedures caused the absorption of the indigenous legal system into British law. Yet, this legal unification attempt usually left most areas of substantive law unaffected.
One of the main justifications for the initial assimilation policy in French colonies in Africa and Indochina was that it weakened anti-colonial forces because it spread superior French civilization. But as the burden of colonial administration increased, that policy lost ground to the colonial ideology of indirect rule. Significant divergence existed in French colonial policies. Algeria saw an almost complete destruction of native political and legal institutions, whereas in Tunisia, a protectorate, native courts were maintained. In French West Africa and Equatorial Africa, the bulk of the population remained under precolonial forms of justice. The ordinance of November 10, 1903, set up two different hierarchies of courts: a hierarchy of French courts applying French law to French citizens, and a hierarchy of native courts applying customary law to native subjects. French policy largely maintained the infeasibility of applying the French civil code to the indigenous. The principle that continued to guide French policy was that native courts would apply local customs unless they were not contrary to the principles of French civilization and public order.
The French attempted legal assimilation in Cochin China. By 1881 French tribunals were organized throughout the province, although the natives were left to be governed by their customs in such matters as marriage, divorce, inheritance, and paternity. But the official destruction of native justice only led to the widespread belief among the natives that the new French-style justice system was far less efficient, convenient, and affordable than the previous dual justice system. In other areas, native law and institutions were preserved. The civil codes produced in Tongking (1931) and Annam (1936-29) continued the application of native law to the local population.
In the Netherlands East Indies, the dual legal system was in existence since the Dutch gained control of the interior of Java. In civil matters, Indonesians followed adat law which varied from area to area. The adat law system existed alongside the European statutes based on the Napoleonic Dutch civil and commercial codes. What is interesting in the Dutch case is that the government seriously considered imposing a unified law throughout the colony but its proposal met opposition that legal unification would destroy native culture. The draft of a unified code of civil law published in 1923 broke down, after spirited criticism by adat law scholars led by Cornelis van Vollenhoven at Leiden University. Following the Japanese invasion in 1942, the military administration swiftly replaced the dual court structure with a single three instance hierarchy, apart from Islamic courts.
In order to make colonial rule work with a limited number of colonial administrators, the European imperial powers were compelled to use local sources and forums. Even when unified procedural rules were imposed on both Europeans and the natives, a clear line was drawn between substantive rules of each group. Application of bifurcated laws, administered by separate courts, characterized the European pattern of legal pluralism. In contrast, Japanese colonial customary law functioned within a clearly defined framework of the unified state law.
The Customary Law System in Colonial Korea
The Chosen Ordinance on Civil Matters, promulgated in March 1912, adopted Japan’s principal laws as the general laws in Korea, but declared that certain areas among Koreans, mainly family and succession matters, were to be governed by Korean customary rules. The ethnic Japanese were distinguished from Koreans according to the household registry. Under this system, implementation of custom took place differently from European cases. Japan strongly promoted the homogenization of colonial judicial institutions with those of Japan. The structure, organization, and the procedures of the colonial courts faithfully reproduced those in Japan. There were no native courts. The centralized system of the colonial courts, mostly staffed by Japanese judges, had jurisdiction over both the Japanese and Koreans, and the same judges decided Korean customary law cases alongside Japanese civil law cases.
When questions arose about customs, colonial officials in Africa turned to native chiefs regarded as repositories of local knowledge and upholders of local authority. These local chiefs recreated custom, often in order to further their own economic or political interests. In Japanese colonies the judges, when in doubt of old customs, sent inquiries to the executive authorities of the colonial government, who dispatched their answers in notices or replies. In most cases, these centrally-issued bureaucratic bulletins were regarded as definitive declarations of custom. Opinio necessitatis, a key element for custom to obtain normative force, i.e., conviction among the local population that a certain practice is binding, was satisfied by the resolutions of the government-appointed commissions. The implementation of Korean law and custom by state judges, who naturally abstracted and interpreted native normative rules through the Japanese concepts of legal rights, expedited the transformation of the colonial legal order.
Law, Civilization and Assimilation
The legal designation of the population constituted the heart of segregation in European colonies. Recent studies of French colonialism has shown that starting in the mid-nineteenth century the concept of nationality came to be dissociated from that of citizenship, and that the extralegal concept of race began to take root as a basic framework, replacing the existing citizen/native dichotomy. Race came to be regarded as the main reason why the assimilation policy was not workable. Explicit racialization through which native subjects were denied access to many prerogatives enjoyed by Europeans has been seen as emblematic of a hollowness of the colonial claim of liberalism. The Japanese discourse of inclusion and exclusion of colonial subjects seemed to reveal more complexity than this pattern.
Japan and Korea had long lived in the same civilization zone before one country became the colonizer and the other the subjugated. The existence of substantial cultural sharing and contacts meant that there was no significant distance in the level of civilizational development between the two peoples. Further, Koreans and the Japanese were of the same race. As an Asian imperial power in domination of Asian colonies, Japan was unable to divide population groups according to racial lines on the grounds of physiological anthropology.
To be sure, excluding the natives from the civil and political rights of citizenship was characteristic of all colonial regimes and Japan was not an exception. Distinctive to Japanese policy was that political exclusion took place without openly assigning a separate legal identity to the colonized populace. When the Japanese needed ideological rhetoric to justify their colonial rule, they zeroed in on their mission to bring about assimilation. The supposed virtue of assimilation proved versatile. Culture or ethnicity was not as principled a category in Japanese colonial domination as in the European context. The Japanese did not subscribe to the notion that the legal system was equivalent to the level of civilization deduced from race. The meaning of the perceived differences in cultural level between them and the colonized may have been different from the innate feeling of cultural superiority prevalent in European colonialism. Japan, as a recently “civilized” country, considered legal modernization in terms of a much shorter span, something that could be achieved rather rapidly by a concerted state effort.
For the Europeans, the colonial task of improving native law coexisted with cultural relativism, the kind traceable to Montesquieu. The ideal of the civilizing force of law in the Enlightenment fashion did not mean applying the same law by the same courts to the natives. There were certain cultural sensibilities underlying colonial policies, and also considerations for individual development. Citizenship was offered to the natives who passed the qualifications for assimilation. The issue of assimilation or the inclusion of the natives was discussed as ideological and aspirational rhetoric. In Japan, the issue had more utilitarian, instrumental, and functional dimensions. Assimilation meant assimilation en masse, i.e., assimilation of a people or a nation. In this collective scheme, individual matriculation of the subject people was not an issue. The Japanese mission civilisatrice was devoid of the Enlightenment element of the improvability of an individual. The colonized people as a whole had to become like the Japanese people, not just figuratively but in every possible aspect, in culture, spirit, and loyalty. It had to be all or nothing.
What prompted brutal authoritarianism and exclusion of the subject people from liberal reforms in the Japanese colonies was, then, less racial considerations than the anxiety and concern about maintaining the empire, specifically, preserving public peace and order in the colonies populated by a massive number of non-Japanese ethnic peoples. Discrimination was justified by not so much the low level of civility of colonial subjects as their dismal level of loyalty to the Japanese emperor. This was precisely why Koreans were notoriously excluded from political rights. Koreans were denied the same rights as the Japanese because the Japanese feared that ungrateful Koreans would undermine and eventually destroy colonial domination.
The legal policy of most colonial governments resonated with an evolutionary ideology, tinged with a high moral tone. In European colonialism the official line that the natives should be allowed to settle their disputes by local custom coexisted along with the ideal of a civilizing mission. How to reconcile the apparent contradictions between the goal of civilizing native society and the policy of indirect rule, purporting to respect traditional institutions, inevitably posed a difficult question. Japan also witnessed the liberal intellectual tradition that warned against the wholesale enforcement of its laws on the colonies, but the Japanese scholars’ appreciation of indigenous custom was not necessarily at odds with the colonial campaign to overhaul the native legal system in the model of the “modern” Japanese system.
Postcolonial discourses have been dominated by the efforts to rediscover “authentic” customary law untainted with the colonial past and to hail it as a symbol of the indigenous cultural and legal identity. Yet the demand in formerly colonized countries for a modern and unified law draws attention to the effectiveness, or the lack thereof, of colonial judicial administration. Shrouded by the concepts of custom and tradition which government anthropologists reified, native justice in European colonies was left alone to exist beside the European justice system and, in consequence, customary law constructed in that process may have become stagnant and fossilized. In contrast, customary law in colonial Korea was an unapologetically integral part of the legal modernization scheme concocted by the Japanese state. The colonial government’s controlled grip on customary law seems to have helped palliate a clash between tradition and modernity in Korea. The Japanese improved the judicial system in Korea in a harshly effective way. What Africans demanded during the course of anticolonial movement in the 1950s, such as a unified legal system, integration of customary law and modern law, and a single hierarchy of courts open for all, had already been achieved in Korea during the colonial period. Postcolonial Korea may have been relatively spared of judicial ineffectiveness that hampered the practice of law in many parts of former European colonies.
How each colonial power perceived native customary law and how it operated colonial courts for the indigenous population encapsulate its vision of its colonial enterprise. Just as the courses of European colonialism were propelled by a particular set of historical conditions and dictated by political and administrative expediencies, so was the bumpy path of Japanese colonialism. As shown in this article, the schema of legal pluralism and legal assimilation was far from coherent or clear-cut, and it entailed different institutional structures and ideological commitments. By juxtaposing trajectories of colonial law in Europe and East Asia, one can hope for a more discerning yet encompassing perspective in studying colonialism in world history.
Marie Seong-Hak Kim | résidente au Collegium de Lyon
Professor of History at St. Cloud State University (USA) and Attorney at Law, her research focuses on legal history of Europe and East Asia. Her most recent book, Law and Custom in Korea: Comparative Legal History, Cambridge University Press, is forthcoming in 2012.