Engaging with Colonial Law from a Decolonial Perspective

The importance of acknowledging indigenous perspectives and working with local archives

During EViR’s initial funding phase, several events examined the history of colonial law and the historical regimes of normativity that resulted from European conquest and settlement of overseas territories during the early modern period. A recurring theme was the necessity of approaching these regimes and laws from a decolonial and critical perspective that recognises the teleological and racist assumptions that often underlined them while paving the way for new and exciting avenues of inquiry. In a similar vein, several ‘fellow lectures’ explored the ongoing effects of European imperialism, and participants at the first two annual conferences examined how early modern European normative frameworks adapted to non-European settings, the codification of ‘customary law’ in former colonies and settler colonies, and the challenges of governing religious and culturally diverse societies.

Colonial law emerged as an independent academic discipline approximately a century ago. First proposed by Italian jurists in the 1910s, this field aimed to address the challenges of identifying suitable forms of law and governance for socially diverse non-European societies in a ‘scientific’ manner, whilst considering the impacts that the establishment of specialised statutes and executive forms of government for their colonies had on European legal orders since the 1880s (or, in some instances, half a century earlier).

In practice, once colonial law transitioned to academia, it wielded a powerful ideological influence on European societies. It legitimised settler-colonial land grabs and the extraction of indigenous resources, reinforced the ‘civilising mission’ rhetoric, and contributed to the ‘othering’ of colonial subjects by reifying and systematising their perceived difference.

Two dictums from the influential English jurist Henry Sumner Maine (1822–1888) encapsulate the issues with these past approaches to colonial law. In Ancient Law (1861), Maine famously remarked “The movement of progressive societies has hitherto been a movement from Status to Contract.” While in Village Communities (3rd ed., 1876), he claimed “Except [for] the blind forces of Nature, nothing moves in this world which is not Greek in its origin.”

These two statements, often repeated as historiographical truisms, imply that colonial law facilitated the transition of colonised societies from a static, status-based legal framework to a liberal one – an ‘advance’ supposedly made possible by transplanting or transferring to other continents Judeo-Christian values and revived Roman Law (hence the Greek or ‘Classic’ origin Maine attributed to change in colonial societies). They deny non-European legal imagination and agency in the international sphere, or at least their historical influence and obscure the fact that post-1880s colonial governance relied on the (re)establishment of status-based societies and the reign of the personality principle. This paradox was then justified by a widespread acceptance that African, Asian, and Pacific subjects of the European empires existed in a different timeframe from the citizens of the metropole, with pre-modern laws and paternalistic forms of governance being better suited to them.

A critical re-examination of colonial law thus implies reassessing the transition from the early modern to the modern and contemporary periods, highlighting historical and doctrinal continuities and recognising new historiographic sources and archival materials that provide non-Eurocentric reinterpretations. A decolonial approach further warrants acknowledging and recentering indigenous voices and interpretations as part of the process. In other words, accepting that not all that moves has a ‘Greek’ origin…

These were the explicit aims of three workshops organised at EViR in 2023 and 2024. The first workshop, co-organised by Mariana Amond Dias Paes and João Figueiredo, was entitled ‘Court Cases in African Archives’ and took place on 25 and 26 May 2023. It examined the opportunities provided by African archives for rewriting the history of colonial law ‘from the ground up’ by considering the impact of African normativities and creative legal solutions. Participants primarily focused on archives in Portuguese-speaking African countries, highlighting that the prolonged duration of Portuguese colonialism renders them particularly significant for long-term analyses. There was a focus on how local populations engaged with and contested legal norms and categories, influencing their meanings and shaping the evolution of colonial law and conflict resolution.

Two subsequent workshops, co-organised by Sebastian Spitra and João Figueiredo, explored the history of colonial law from a fresh, underexplored perspective. They foregrounded the history of (international) heritage law and of the violent processes which resulted in items of non-European material culture being transferred to Western museums, suggesting that partnerships with experts in these topics and related fields promise new avenues of interdisciplinary inquiry.

At the first workshop, held on 8 and 9 February 2024, titled ‘The Forensics of Provenance: Colonial Translocations Through the Lens of Legal Pluralism,’ participants highlighted how material culture is always embedded in local normative systems. By illustrating the role of objects in anchoring and upholding the legal pluralism of colonised societies, attendees reframed European collecting as part of legal unification efforts. They emphasised how removing these cultural artefacts was crucial for codifying ‘uses and customs,’ and imposing colonial law. The workshop ‘Indigenous Law: Plural Pathways to Reclaiming Heritage,’ which took place on 22 and 23 October 2024, advanced this discussion further. Building on recent developments in indigenous legal scholarship in Australia, Canada, and various Pacific Islands, participants argued that the objects viewed in the West as cultural heritage can still inform an indigenous law that diverges from the state-centred laws and codified uses and customs of the past.

By shifting the focus in discussions of the history of colonial law towards indigenous and other local forms of normative knowledge, these events broadened our understanding of local archives and our conceptual vocabulary. In doing so, they once again illustrated that indigenous and colonised people’s legal imagination and agency frequently propelled legal change, advancing EViR’s objectives and the decolonisation of our fields.

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João Figueiredo recently published the results of his research under the title ‘Sorcery and Jurisdiction in Angola. Law and Multinormativity in Early Modern West Central Africa’ in the third volume of the Käte Hamburger Kolleg’s series ‘Einheit & Vielfalt im Recht | Legal Unity & Pluralism’. The publication is available as open access.

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Zitieren als:

João Figueiredo: „Engaging with Colonial Law from a Decolonial Perspective”. EViR Blog, 10.09.2025, https://www.evir.uni-muenster.blog/en/colonial-law/

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​​This work is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License.

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