imperialism and colonialism Flashcards
types of european colonial rule
- Consular jurisdiction and extraterritoriality
- Trading posts
- Settler colonies
- Colonies of domination
doctrine of terra nullius
- Acquisition of unoccupied land is legitimated on the grounds of natural law
- In the 19th century, this idea is merged with modern ideas on sovereignty → no longer just uninhabited or unused land, but all land that does not belong to a state
- African tribes are not recognised as “states” by the Europeans
doctrine of discovery
= right to claim sovereignty over lands that were “discovered” by explorers. It was rooted in the 15th century Papal Bulls (religious decrees) issued by the Catholic Church.
→ Treaty of Tordesillas (1494)
→ Treaty of Zaragoza (1529)
The Berlin Conference (1884-85)
- Multilateral conference with the aim to channel the “scramble” for Africa between the Western powers peacefully
- Concerned mainly with regulating free trade and free navigation in the rivers Congo and Niger
- Setting up rules for the occupation of territory
- regulation of the protection of the native peoples and the suppression of slave trade
rules for occupation of a territory
- Effective occupation
- Notification to the other powers about the occupation
legitimation by the Berlin Conference
- improvement of the conditions of their moral and material well-being of indigenous people
- suppressing slavery and slave trade
- “civilising mission”
law in the colonies
Colonial law is often based on legal pluralism, i.e. different and partly overlapping law for different groups and contexts
- Metropolitan law for colonial officials and settlers
- Local customary law for conflicts between the indigenous population, often with local adjudication
- Colonial law distinct from metropolitan law for controlling the indigenous population – colonies often serving as laboratories
expansion of European law
- Codifications as symbols for legal progress and modernity and civilisation
- European codifications are translated, adapted and “further processed”
- Acquired also in countries that were not colonised in the late 19th and early 20th century
- also the cultural practice (e.g. writing styles of statutory law and judgments, court dresses and court architecture)
- Often unconscious or subtle re-interpretations → Western legal knowledge is transformed in translation processes, no full homogenisation!
Treaties of Amity and Commerce
= to regulate trade relations and establish diplomatic ties, granted the colonial powers favorable terms for trading goods and expand their influence, while often undermining the political and economic autonomy of the colonized territories.
Opium War
- 1839-42
- after China’s effort to suppress illegal opium trade
- Treaty of Nanking: forced China to cede Hong Kong to Britain and open several ports to foreign trade
reform movement in Japan
- forced opening of ports in 1859
- Meiji Restoration in 1868: Decision for building up a new legal order that would meet Western standards
- Sending students to Europe, building up new law schools, a new court infrastructure, establishing a new legal terminology and creating new laws
Japanese codification of private law
- 1870s - first draft is largely a translation of the Code Civil
- 1880s - a commission chaired by the French legal adviser Gustave Émile Boissonade prepares a draft → Criticised as too liberal, especially in family law
- 1890s - a purely Japanese commission is set up → The Japanese Civil Code comes into force in 1896/98
principle of non-repugnancy
— need to adapt law into local circumstances: colonial statues in response to specific situation
— colonial statues were only valid if they weren’t repugnant to the laws of the home country until the Colonial Laws Validity Act (1865) → it recognised the validity and only declared the parts that conflicted with British law invalid (principle of non-repugnancy)
— Statue of Westminster 1931: validity to all law passed in dominion parliament, but it was not applied to British Crown colonial holdings.
law in trading posts
— consular law: local sovereigns recognised the right of foreign merchants to live under their own legal system
— eg. British East India Company: extended power to cases between Europeans and indigenous cases and even indigenous cases
law in settler colonies
— English common law and statutory law the one and only law of the new colonies
— privilege reserved for the white settler population
— Governor and Council as highest legal authority → issuing ‘temporary’ laws
— in North America: regulating slave-master relations
— in Australia: terra nullius doctrine
— rarely produced legal pluralism
— did not override principle of non-repugnancy: only with Statue of Westminster did the six dominions achieve full legal authority
law in India and other dominions
— second half of 19th century: interfering with untouched indigenous legal systems
— most fields of commercial, criminal and procedural law has been fully codified
— legal pluralism only remained in Hindu and Muslim personal law
— indirect rule: making use of indigenous elites to administer law in African colonies, thus keeping up a from of legal pluralism, but most local laws only survived as subsidiaries to British state law
colonial system of the French Empire
— after Revolution, French law should have applied equally to all French territories, but this was not the case in practice
—combination of different legal regulations: formal laws, decres issued from Paris, executive orders and local customs
— rivalry between French army and civil administration
— executive orders issued by two ministries (Interior and Colonial Office) and government
— mainly under direct rule, but also establishment of protectorates (eg. Morocco)
— tried no to interfere in civil and religious matters, but the indigenous courts were still under control of the French administration
— conflict between supporters of assimilation based on equality of all subject and opponents on the pretext of respecting local customs
