Colonial Law and Its Uncertainties

• Published in: Law and history review 2010-11, Vol.28 (4), p.1067-1071
• Main Author: Merry, Sally Engle
• Format: Article
• Language: English
• Subjects: British colonies; Colonial law; Colonialism; Colonies; Communities; Conversion; Cultural customs; FORUM: COMMENT; Human rights; International human rights law; Jurisdiction; Law and legislation; Legal systems; Population control; Religious aspects; Religious laws; Social conditions; Uncertainty; Women
• ISSN: 0738-2480; 1939-9022
• DOI: 10.1017/S0738248010000775

Colonialism was always an uncertain process. Even the imposition of colonial law was fraught with incomplete application, resistance, and the reinterpretation of European categories in indigenous terms. Magistrates often operated with fragmentary and inaccurate understandings of local cultural practices and rules, seeking to rectify this disadvantage by relying on local experts yet unable to adjust their decisions according to the class and kin interests of these experts. Staffing was often limited, local linguistic knowledge lacking, and a sociological understanding of how custom operated according to social status and shared knowledge of individuals often missing. Colonial officials faced the problem of limited capacity and large populations to manage and govern. Indeed, recognition of distinct regimes of personal law was one solution to the dilemma of the need to control populations at the lowest possible cost. Even though retrospective histories tend to emphasize the transformative power of colonial law, as this collection shows so well, at the time the practices were far more ambiguously linked to the power to change. Instead, they created spaces for contestation and agency. However, these wonderfully detailed and careful studies also show that despite creative uses of the courts, women often did not succeed in legally challenging the marriages that bound them.