A review of Lincoln’s Code: The Laws of War in American History. By John Fabian Witt. New York, N.Y.: Free Press. 2012. Pp. viii, 248. $32.00.
“The Last Utopia” is a revisionist history of human rights. Samuel Moyn rejects the conventional wisdom that human rights surfaced as a reaction to the horrors of World War II, instead insisting that the movement did not emerge until the 1970s. By arguing that human rights achieved prominence only because other idealistic visions “imploded”, Moyn casts human rights as a romanticized afterthought, a movement that has “done far more to transform the terrain of idealism than . . . the world itself.”
Challenging scholars of both colonial history and globalization, Lauren Benton’s Law and Colonial Cultures argues that state-centered legal orders emerged as a result of the presence of colonial powers, both European and non-European. She describes how the colonial state developed through jurisdictional conflicts between native judicial systems and colonial legal systems. These conflicts led colonial states to assume increased control of important economic transactions. Benton tackles both the scholarly accounts that claim colonizers overran helpless native populations and those that argue only European or Western powers pursued policies aimed toward promoting markets or economic growth. Benton even takes on one of the sacred cows of traditional colonial studies: Chinua Achebe’s Things Fall Apart. In Achebe’s novel, the protagonist, Okonkwo, faces two trials: the first by his fellow villagers and the second by a British colonial tribunal. In Benton’s rendering, Achebe depicts the first as part of a generally well-functioning Nigerian society suddenly ripped apart by the arrival of British colonialists, and the second as an entity almost entirely foreign to Okonkwo. In essence, Benton argues that, as a historical matter, not only would Okonkwo have been aware of the law governing British colonialists, but he would have taken advantage of it if he saw the possibility of a better outcome.
Benton traces, through five episodes in world history, how the colonizer’s law began as one of several legal systems, then gradually expanded to areas of economic concern, such as the enforcement of contracts or the transfer of property, and finally made a place for both indigenous and colonizing litigants. In seventeenth-century North America and Iberia, eighteenth-century Africa and India, and nineteenth-century Uruguay, Benton traces parallels in the historical development of the state-centered order. The reader will find engaging and thorough narratives on the legal history of these regions, but will be left unconvinced that a single phenomenon is at work. Benton is more successful at completing the historical narratives that emphasize the colonial state as resulting from competing European empires or from local processes that developed “national” consciousness in colonies. To this end, she claims that jurisdictional conflict formed a type of regime for this period.