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Colonialism

Colonialism refers to one state controlling a dependent geographic area or group of people. Traditionally, the term referred to the European expansion beginning in the sixteenth century and its economic, political, and cultural domination over Asian, African, American, and Pacific territories. This relationship began to end with the American Revolution in North America in 1776, but independence became common only with the decolonization era of the second half of the twentieth century.

Law and Colonialism

Since the 1980s, sociolegal scholars have studied colonialism as a dimension of legal pluralism. Law played a central role in the European colonial system itself, for the imposition of European legislation and jurisdiction as well as for upholding certain native or “customary” jurisdiction. European legal institutions, such as courts and police, were the mechanisms through which Europeans implemented their domination over native populations. They also created special rules for landholding, which facilitated the dispossession of “tribes” over their indigenous lands.

However, while law constituted a powerful instrument for colonial oppression and discrimination, it also constrained colonial powers by limiting the scope of their intervention in colonial territories. European policies had to conform to legal principles enacted in the home country. Colonial leaders considered law, and more often the rule of law, an effective legitimizing tool. They targeted legitimization toward metropolitan public opinion much more than toward the colonized peoples. Moreover, they justified European imperialism by the superiority of Western law over the native civilization represented in customary law, which they considered primitive.

Law in the colonial setting constituted an arena in which both colonizers and colonized populations engaged with each other. Law was an object of contest for the natives, either because they fought to keep their traditional jurisdictions or because they used the opportunities and gaps in colonial law to ensure their own individual or collective rights.

Law in the Colonial State

Recent sociolegal studies, especially those in anthropology and history, have focused on colonialism. They stress the dynamic interactions between colonizer and colonized societies as well as the legacy of colonialism on both the postcolonial territories and the home countries themselves. For instance, the racially based organization of law, common in all European colonies, interfered with the traditional academic legal distinction between citizenship based on blood inheritance (jus sanguinis) used in Germany and the French model of territorial-centered citizenship (jus soli).

Colonial systems categorized individuals by law in various ways to determine the beneficiaries of certain rights. Officials made distinctions based on nationality, race, or degree of “civilization” between European inhabitants and the native population, which they often subdivided again by race (as in French colonial Algeria, between Arabs and Kabyles). Some scholars adopted Michel Foucault's (1926–1984) concept of “governmentality” and demonstrated that Europeans developed a complete state apparatus in the colonies to identify and control native populations, for example, through the implementation of public records offices and the use of censuses. Officials assigned inhabitants a certain legal status, based on their identification within the colonial categories. This permitted or restrained civil rights within a specific system of jurisdictions together, in most colonies, with special repressive criminal law for the indigenous population.

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