- 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.