Round Table 7

 

Encounters and confrontations between European and non-European legal systems

 

European expansion after 1500 has led to the transplant of European law to the rest of the world. The result of this transplant was and is a situation of legal pluralism, the co-existence of European and non-European legal systems outside Europe. How this legal pluralism came to be, how it functioned, and functions, still remains largely unstudied. A researcher will find only a few general books about this subject. Consequently, even the basics are still being discussed, e.g. the question of what can be seen as law in a non-European society (is a custom law?). A generally accepted methodology is lacking. Everyone approaches the subject from his angle, be it anthropological, historical or legal. Moreover, even the most objective of researchers most often fail to escape the framework of their own law, culture or studies. Adding to the lack of clarity, are some practical problems. It is impossible to have even a superficial knowledge of all the cases of confrontation between European and non-European legal systems; to read all the sources in the original language, provided one has written sources; to interpret them in their context, and so on. So far, and probably for some time to come, case studies, and not general overviews, will remain the norm.

Yet, some general elements can be deduced from the existing literature. The most important one is that to see everything in terms of Europe vs. the rest of the world is too simple. The reality was, of course, much more complex. European law was not monolithic and neither was non-European law. Both were the products of many older legal transplants. Moreover, they were not the only players in this game. European and non-European law are generally understood to be foreign law, imposed by or received from Europe, and indigenous law. This discounts third parties, like non-European immigrants, e.g. African slaves in the Americas. Thus, non-European law is not always indigenous law. Neither is 'European' law always 'European'. For various reasons, European laws were frequently transplanted with modifications. Sometimes, the colonizer expressly created a new body of law.

European law outside Europe can be seen as a law from legislators, judges, and professors, whereas non-European law was generally customary. Studies from all over the world show that customary law was anything but traditional law. Nothing is more transient than custom, yet customs derive their authority, their respectability from their old age. Therefore it is easy to be misled, and assume that a custom is centuries old, dating from long before the Europeans came, whereas, in reality, it may be that a certain custom was already the result of European influences. For example, like European law, 'indigenous' customary law was one of the chief instruments of colonial power. Whatever was claimed in theory, all European powers had to resort to indirect rule. This implied working through local chiefs and local law, which was adapted to the interests of the colonizer and his local collaborators. As a result, customary law does not always give expression to local traditions. However, it is sometimes hard to find what these traditions were as sources are lacking.
In this, and in many other aspects, the confrontation between European and non-European law resembles the confrontation between roman and romano-canonic learned law and customary Germanic law in Europe during the Middle Ages and the Early Modern Period. Scholars who study the one could learn from scholars who study the other, and vice versa. One should also not disregard the fact that, because of the antagonism between Roman and Germanic law, Europeans had experienced legal pluralism at home. They had already developed rules for dealing with it and these rules shaped their policies outside Europe.

One should not forget that the confrontation between European and non-European law is still going on. European, or rather Western, and more specifically American law, is still promoted in the rest of the world for various reasons, e.g. because, according to some, it can lead to more development. On the other hand, indigenous peoples are, not always without success, reclaiming their heritage, and, in general, non-Western countries have become more conscious of their own achievements in the field of law. The latter does not always mean a return to pre-colonial law. Many countries see one national legal system, European in origin or not, as preferable to a return to the diversity of customary law. Even if one wants to promote indigenous law, this is not always easy. In most countries much is still unknown about the old law. Therefore, a study of pre-colonial and colonial legal history is even more needed than in the past. In Europe itself the confrontation between European and non-European law has become more important than ever. The process of European integration has led to a greater awareness of the similarities between European legal systems and their differences with other legal systems. Another factor is immigration, which has brought non-European legal concepts into Europe itself.
Research into the confrontation between European and non-European law is not only interesting for historians, but also for today's lawyers, judges and legislators. This burdens the researcher with a greater responsibility. It may happen that a scholar tries to reconstruct the traditions of a legal system and that some years later law practitioners will not refer to their traditions, but to his publications. Thus, a legal tradition is 'created' by the researcher and later historians may have to devote more attention to what he did, than to what he studied, as happened to the Dutch scholar Van Vollenhoven and Indonesian adat.