Ruling Overseas: Connected Practices of Governance of Law
How Were Dutch Overseas Legal Practices Implemented, Adapted and Negotiated to Govern Diversity in the Colonial Empire?
Leiden: Prof Cátia Antunes and Dr Karwan Fatah Black
IISG: Prof Ulbe Bosma and Dr Matthias van Rossum
Although race was not a legal category in the Dutch Republic, governing councils and courts overseas contentiously included racial differences in local bylaws and when administering justice (Jones 2010; Jordaan 2010). This postdoctoral project will identify the normative principles that guided the issuing of metropolitan laws concerning the colonies, and how these laws were implemented, adapted and negotiated locally. It will also explore the conflicting frameworks (loopholes and contradictions) governing colonial spaces and peoples, and that were caused by differences between metropolitan laws and local bylaws.
The founding of the East- and West India Companies (1602 and 1621 respectively) created a situation in which rights and obligations to adjudicate civil and criminal cases were bestowed upon these chartered companies. Overseas, colonial officials faced greatly varying situations. In Colombo and Cochin in Asia, as well as in Elmina and Brazil in the Atlantic, the Dutch were confronted with well-established institutions and practices. In those cases, a process of adaptation to pre-existing norms and practices was initiated after conquest. The strategies of these four conquests had mixed results regarding the resilience of diversity and its governance. The situation in places such as Batavia and Cape of Good Hope in the Asia sphere, and Curaçao and Paramaribo in the Atlantic, was, however, quite different. There, the creation of entirely new settlements, without any previous European presence, meant that officials initially mimicked shipboard practices. Later, however, with the growth of local populations, jurisdictions were delegated to lower (local and representative) courts, a decision that created inequality before the law. Lower courts became the negotiating social arenas for issues related to daily control and governance of diverse colonial societies. When the need for more complex legal systems arose in those settlements, including differentiation based on status, religion, origin and gender, these systems were established responsively and effectively.
The complex process of negotiation between the representatives of the companies, locally established legal practices and community institutions was conducive to a multiplicity of diversity management strategies across the empire. This subproject questions whether these strategies are comparable to what has been conceptualized as ‘legal pluralism’ (Benton 2015; Herzog 2015).
We hypothesize thus that in those cases where the Dutch were able to build their legal practices from scratch, ad tabula rasa, diversity was more resilient, resulting in a more governable, albeit more unequal, local population. Legal scholars have made great headway in compiling the collections of ordinances and bylaws passed by local courts in the settlements of the Dutch empire. There has not, however, been any attempt to understand the developments in the various colonies in a comparative perspective, or through the lens of communitarian autonomy and diversities in status among inhabitants of these Dutch settlements. Correspondence between metropolitan governing bodies, chambers of the various companies, suggests there was an exchange between the various settlements of the empire on legal questions arising within them. From a legal perspective, the practices of legal plurality will inform the creation of one of the most resilient aspects of diversity in Dutch overseas settlements in both the East and the West. The source materials for this study are the Plakaatboeken of the settlements under Dutch rule, as well as the data collected on the practice of the law, as they were enacted in local courts.