Universalizing the Province Europe in Early German Legal Anthropology
by Ulrike Schaper
Part of Chakrabarty’s project of provincializing Europe is to trace how Europe’s modernity became universalized and to challenge the categories and narratives that followed from this process. Taking up his impetus to reflect on genealogies of research concepts and methodologies, I examine a certain moment in the formation of legal anthropology. I concentrate on attempts that emerged around 1900 to collect non-European laws in the German colonies, which contributed to the emergence of legal anthropology as a discipline. I use early legal anthropology to trace the universalizing of the province Europe within the development of Western research practices:
- In view of imperialism’s central role in the global and violent history of Europe’s self-fashioning as modern, I will show how the endeavour to collect non-European law was embedded in the colonial project and thereby trace the inscription of European imperialist “modernity” into Western academic archives. 2. Building on Chakrabarty’s critique of the application of Eurocentric terms and narratives, I delineate how attempts to research non-European law were based on an evolutionist narrative built around the idea of deficit in terms of backwardness, as well as on legal categories and theories of legal development that were created in and modelled on the province Europe, but were used as universal categories.
- With regard to methodological debates concerning interviews that evolved in the context of the research on non-European law, I demonstrate how indigenous contributions to these research endeavours were downplayed and eluded in order to reflect the neglect of local knowledge and asymmetries in knowledge production.
I argue that underlying colonial hierarchies and images deeply influenced methodology and the findings of the endeavour to investigate non-European law, which I will demonstrate mainly in reference to the exclusion of indigenous informants. This is but one example of how stereotypes of the colonized population, as well as the necessity to uphold colonial hierarchies of the knowing colonizer and the ignorant subject, structured the process of knowledge production. Critically analysing these roots of legal anthropology can contribute to the project of provincializing epistemologies, as it makes apparent colonial genealogies and universalistic implications. It can expose the particularity of categories and premises by critically examining a formative moment in which their epistemic authority was established.
Legal scholars had already been involved in thinking about non-European law before the German colonial expansion. After Germany became a colonial power in 1884, however, the context of this kind of research changed, not least because data on the populations in the colonies was more accessible, as it was produced within the colonial administration or with its help. Scholars sought to collect the law of what they thought were static primordial cultures that were exposed to change and in danger of disappearing through contact with Europeans. Two arguments were brought forward that focused on practical benefits: firstly, knowledge was necessary because officials had to decide legal cases on the basis of the respective local law. Secondly, a familiarity with the local laws could teach the colonial authorities about the thoughts and actions of the colonised population and enable them to design effective political instruments.
From 1891 onwards, people and institutions interested in the investigation of non-European law approached the colonial administration for support, primarily by sending questionnaires to collect “legal traditions” of non-European people in the colonies and make the colonial officials on site answer them. At that time, questionnaires played an important role in anthropology. They were part of an academic culture of armchair scholars that relied on the supply of “data” from people on the ground. In accordance with a positivist understanding of science, the collection of non-European law was seen as a pre-scientific, merely technical activity that produced objective data. The questionnaires were meant to help the people on the ground, who most often had no training in law or anthropology, to systematically gather information and thus improve the quality of the data. In a second step, scholars in Europe were to process and analyse this “raw material” and draw conclusions.
Since the colonial department hoped to benefit from the findings of such research attempts, it occasionally helped distribute such questionnaires in the colonies. But it was concerned that it not be used for the interests and personal projects of researchers. In 1895, it commissioned Joseph Kohler, a law professor with an interest in legal philosophy, legal history and comparative law, to create its own questionnaire for legal research in the colonies. When in 1907 Felix Meyer, chairman of the International Association for Comparative Legal Studies and Economics, attempted to cooperate with the Colonial Department, officials reacted reluctantly. Meyer proposed a shared research project that was to take place in the institutional framework of a central research unit attached to the Colonial Department, which Meyer himself planned to direct. Meyer spread his lobbying efforts and arranged for the Freisinnige Partei to introduce to the Reichstag a petition that demanded legal research in the colonies.
The Reichstag voted in favour of the petition, and the Bernhard Dernburg, head of the meanwhile reorganized Colonial Department renamed Imperial Colonial Office, appointed a parliamentary commission for legal research in the colonies; however, Josef Kohler was voted chairman instead of Felix Meyer. The commission attempted to assess all the existing data on law in the colonies and in addition designed another questionnaire, which was sent to the colonies in 1908. With the on-going institutionalization of colonial rule, state institutions increasingly engaged in research on non-European law. At the same time, researchers and scientific societies tried to use the colonial administrative infrastructure for their projects. However, on the whole, the efforts to collect non-European law in the colonies were not very successful, even on their own terms. Facing several extensive questionnaires, colonial officials rarely found the time to fill them out, and some of the answers were given by people not involved with the law of the colonized people at all. In addition, political events outran the slow workings of the bureaucracy and of academic knowledge production: the findings of the commission were, for example, not published before 1929 – when Germany had long since ceased to be a formal colonial power (Schulze-Ewerth/Adam 1929). Despite the limited output of such research attempts, Germany’s rise to a colonial power had a deep impact on the development of early legal anthropology in Germany. The efforts to collect non-European law with the help of questionnaires in the German colonies were among the first attempts to empirically research non-European law. They can hardly be separated from the framework of colonial rule. The potential availability of colonial infrastructure influenced the method of data collection as well as the regional foci of the research.
Despite this growing official engagement, knowledge production on non-European law was based on the universalization of European categories and conceptions. Scholars interested in the research on non-European law mainly worked in the area of comparative law and ethnological jurisprudence – a German encyclopaedic approach within early legal anthropology. Ethnological jurisprudence aimed at collecting the rules of different societies, in order to decode principles of a universal legal development that applied to and united all humankind. Evolutionary thought had gained ground in legal theory around 1900. In this evolutionist perspective, the law of the colonized population was seen as an earlier stage of human development. With this interpretative move, the non-European other was denied coevalness and cultural variability was transformed into chronology (Fabian 1983). Collecting non-European law was therefore understood as part of taking an inventory of all different stages of legal development. Europeans could understand this law as part of their own past. The colonies were thus not perceived as a cultural space with their own histories, but, as humankind’s past, were fitted into the history of Europe, which was perceived as the template for development and progress.
Europe was constructed as the only legitimate location of knowledge production. Scholars searched for abstract rules that determined legal relations in non-European societies but were thought to remain unknown to the members of the respective societies themselves. Since law was understood as a set of potentially codifiable rules, legal scholars claimed that legal training was a prerequisite to enable a person to discover the mechanics and principles of universal legal evolution. Legal training meant training in European law. Thus, the necessity of legal training, in fact, made the ability to truly understand non-European law a European prerogative.
The ethnographic distance of the jurist experts also affected the content and structure of the questionnaires, which were based on anthropological models of social development created in the West, rather than familiarity with the context under examination. None of the authors had ever lived in the colonies.
The questions were based on a binary juxtaposition of images of primitiveness and barbarity that dominated colonial discourse and helped foreground the European historical development as the only measure of civilization. The questionnaires were informed by an understanding of the colonizers as civilized, deduced from the fact that rational and binding rules provided legal security and that state institutions enforced these rules. Based on the notion that the colonized societies were characterized by a predisposition to violence and cruelty, the questionnaires asked about blood feuds, ordeals, and punishments.
However, the questions were also grounded in the structure of European or German law and projected its legal terms and institutions into the contexts that were to be investigated. They employed culture-specific terms from the European legal context (such as out-of-court settlements, self-defence, abetment, or incitement) that depended on several far-reaching presuppositions, and thus pre-structured potential findings. The questionnaires reflected the European legal order, for instance when building upon the distinction between criminal and civil law. The organisation of the questionnaire made it difficult to understand the socio-economic function of various legal practices. For example, so-called marriage by purchase was considered in the family law section. In the property law section, questions addressed the creditor’s rights to women and in the criminal law section punishments for adultery. Tearing apart the different aspects of marital relations institutions in accordance with the European legal order prevented an analysis of gender relations and their socio-economic implications in terms of their own logic and made it difficult to understand how non-European legal practices were embedded in the respective social and religious orders.
The extent to which the colonized should participate in the research was discussed only in view of the problems accompanying their inquiry. Legal scholars warned against the difficulties of intercultural communication. Kurt Perels, professor for colonial law at the Colonial Institute in Hamburg, voiced his concern that an inquiry of “natives” would lead to incorrect ideas about “native law”. He warned: “The first source of errors lies in the native way of thinking, which relies on the sensually observable. When they answer abstract questions, misunderstandings will therefore be very probable. The second source of errors lies in the personal motives that influence the native’s answers: these are the disposition to give an answer he thinks the European would like to hear, the calculation of personal benefits and disadvantages that he thinks could follow from an answer, the effort to give no or only misleading information about tribal secrets. Given all that, it is not even guaranteed that the interviewer will understand or interpret the answer correctly” (Perels 1912, 10). Although tainted by racist stereotypes that are most obvious in his first assessment of “native thinking”, Perels addresses fundamental problems of field study and interviews, such as the effects of expectations, the interests of indigenous informants and problems of insufficient language skills. Being aware of the dangers of projection, however, made scholars identify the indigenous dialogue partners as the problem. They concluded that interviews were an unreliable method of data collection. Strangely enough, the problem of the projection of European legal concepts was thus transferred to the alleged incapability of non-European informants. Projections were to be omitted by excluding them from the research process and relying on indirect methods like observation. Regarding this assessment of interviews and indigenous informants, the questionnaires can also be understood as a means to evade indigenous informants and distance the researcher from the object. Despite the notion that knowledge about the law of the colonized could serve as an access to their behaviour and way of thinking, legal experts hardly sought to encounter the people they examined.
With a similar impetus, contributions of non-Europeans to the research process were obscured. This resulted from a dichotomous concept of European knowledge versus native ignorance. Knowledge of the colonized population was perceived as a means of control. By understanding its “nature”, colonial authorities hoped to take possession of the colonial other. In this process of usurpation, there was no space for dialogue. The colonized were seen as objects of study; they were not encouraged or even allowed to shape the research process.
Knowledge production of non-European law drew heavily on colonial infrastructure, institutions and stereotypes. It was embedded in Germany’s colonial undertaking and thus part of the violent history of universalizing Europe’s modernity. It gained importance because the colonial administration regarded such research as promising: it hoped the findings could have practical use when applied in colonial jurisdiction and they hoped that knowledge of law could serve as a “key to understanding their inner life” (Meyer, 1907, 847) and could help to avoid conflicts and prevent resistance.
Ethnological jurisprudence took the idea of universal progress as a starting point and explicitly positioned non-European societies in the past when it constructed them as early stages of human evolution. Research on non-European law was thus integrated into a broader colonial discourse that was primarily structured around the distinction between “primitive” and “civilized” societies. This distinction resonates in the European disciplinary organization in social science, political science and history, on the one hand, and anthropology and area studies, on the other hand. For a long time, this division was merely based on a cultural-regional distinction between European and non-European societies (Randeria 1999, 375-376).
This distinction also shaped the relation of research on different laws: a primary measure of the civility of law was seen in the extent to which law was bound to and its authority secured by a state. It is an incisive example of how categories that emerged from the European context organized the different laws into a hierarchy. Research on non-European law belonged and belongs until today to a different sub-discipline than research on European contemporary law. Quite often it is not even located in the legal studies departments (which in Germany are organized as professional training and therefore focused very much on the dogmatics of German law), but are organized as a sub-discipline of anthropology/ethnology.
The term scientific colonialism has been coined to express a relationship of exploitation in the area of research that is similar to the exploitive relation under colonial rule: data is extracted without limit from the colonial territories, knowledge of the indigenous communities transferred to the metropole, in order to use non-European societies as a resource in scientific production (Chilisa 2009, 409). These activities are accompanied by the demand to determine the manner in which knowledge about the colonized is to be produced and with a distribution of a European model of science. Research on non-European law in the German colonies is a distinct case of scientific colonialism. Chakrabarty’s project of provincializing Europe is a demand to overcome such scientific colonialisms. Analysing the mechanisms, presumptions and projections of scientific colonialism at the formative moment of the discipline is a useful step toward overcoming their revenants. Dealing with the genealogies of legal anthropology thus contributes to tracing the colonial heritage of European knowledge order and research practices.
Perels, Kurt (1912), Eingeborenenrecht in den deutschen Kolonien, In: Die Grenzboten 71, 5-12.
Meyer, Felix (1907): Die Erforschung und Kodifikation des Eingeborenenrechts. In: Zeitschrift für Kolonialpolitik 9 (11), 847–869.
Schultz-Ewerth, Erich, Adam, Leonhard (eds.) (1929): Das Eingeborenenrecht. Sitten und Gewohnheiten der Eingeborenen der ehemaligen deutschen Kolonien in Afrika und in der Südsee, 2 vol. Stuttgart.
Chilisa, Bagele (2009): Indigenous African-Centered Ethics. Contesting and Complementing Dominant Models. In: Donna M. Mertens et al. (eds.): The handbook of social research ethics, Los Angeles et al., 407–425.
Fabian, Johannes (1983): Time and the Other. How Anthropology Makes its Objects, New York.
ULRIKE SCHAPER (Ph.D. Freie Universität, Berlin 2010) is an Associate Professor of Nineteenth- and Twentieth-Century History at the Freie Universität Berlin. She has worked on German colonial history in Cameroon with a focus on law and jurisdiction and is currently looking at West German sex tourism between 1965 and 1990 to examine intersections of globalization and sexuality. Her publications include Koloniale Verhandlungen: Gerichtsbarkeit, Verwaltung und Herrschaft in Kamerun 1884-1916 (2012) and Ordering the Colonial World around the Turn of the 20th Century: Global and Comparative Perspectives (special issue of Comparativ, co-ed.) (2009).