Justice in the New World: An Interview with Brian Owensby and Richard Ross
How intelligible were colonial legal norms to indigenous Americans and how intelligible were indigenous legal norms to settlers? Responding to a historiography that describes either a dynamic of gradual understanding or a dynamic of continuing incomprehension, legal historians Professors Brian Owensby and Richard Ross have crafted the prodigious edited volume Justice in a New World. Resting on nuanced comparison, the volume argues for a less homogenizing view, and highlights instead the degree to which various indigenous communities were integrated into different early modern empires.
In our conversation, we discuss the genesis of their work and its key concepts. We also explore the different comparative axes along which we may examine both indigenous and settler notions of intelligibility.
— Nicholas Sy (University of the Philippines Diliman)
SY: What inspired you to write your book?
ROSS: Brian and I realized that we've both been musing about a series of questions about the British and Iberian New World Empires. In what ways did both settlers and Indians understand or partly understand or misunderstand the other side’s legal commitments while learning about them? In 2014 we organized a symposium around this question, and at the end of it we decided to put together an edited volume.
The volume was organized around two sets of comparisons: one between settlers and natives, and the other between a British and Iberian America. Intelligibility is our key notion. It doesn't simply mean understanding in a linguistic sense. Rather intelligibility means that a historical actor begins to appreciate the values and history behind a legal idea, the way it’s used in a culture, its limitations, and the meanings attributed to it by different groups. Before settlers and natives could try to deploy legal ideas against one another, or negotiate, or explain them, they first had to grasp something of their interlocutor's legal notions. At least some measure of intelligibility is a precondition for what historians call jurisdictional politics, or legal resistance, or popular justice, or strategic engagement with the law.
OWENSBY: One point I want to reinforce from what Richard said was that intelligibility is not something that is achieved all at once. Part of what we were trying to get at by framing the essays in terms of the sixteenth century and the eighteenth century was to convey that intelligibility is an ongoing problematic. This is generally characteristic of legal systems, because legal systems are constantly changing, and so there always has to be a process of trying to make a legal system intelligible, even to the people who are most used to it. People encountering each other across cultures just makes that process much more difficult.
SY: Speaking about intelligibility, how did you come to realize that this overarching concept was necessary?
ROSS: You know I don't think there was a single eureka moment. This term occurred to us as a way to organize a lot of disparate material. Then, as we thought about it, we realized that there were more and more elements to intelligibility.
First, a settler and native could grasp the literal words used by an interlocutor but not understand the larger values and history behind an idea or practice conveyed by those words. Second, an idea or practice might be intelligible in respect to a given conflict but less so in respect to a different conflict. A Mohawk Indian might over time come to understand how a jury worked in a murder trial only to be confused when there was some other sort of jury that seemed to present people to the English judge for a trial and conviction. Third, how do you move from some measure of understanding to some measure of strategic deployment? What are the limits of those deployments? Finally, there are very many different English colonies and there are very many different native nations. How understanding and deployment worked in one might be a poor guide to how it worked in another.
OWENSBY: There's this very interesting quote—that alas I didn't remember when we were preparing the introduction to the volume—but which seems appropriate now. It occurs towards the end of the sixteenth century when Alonso Pomar Zurita, one of the legalists of the period in Mexico, interviews indigenous people. By 1580, the indigenous people come to be known as fierce litigators. At one point, Pomar Zurita confronts one of his indigenous informants and asks, Why are you so litigious? Why do you keep going to court? And this indigenous person's answer is because you do not understand us nor do we understand you or know what you want—porque no nos entienden y no les entendemos ni sabemos lo que quieren. Even while they are engaging in this intense litigation over several decades, it’s not clear that the indigenous fully understood what the Spaniards wanted.
SY: Your book has a three-way division, with section three presenting a challenge against sections one and two. Could you explain the structuring historical concepts and historiographical goals of your book?
OWENSBY: The essays in part one enabled us to see how Europeans and indigenous people faced the challenges of confronting each other through the law as a means of communication. Law is not just a language, it is a specific kind of language in that it is a way of talking when human beings are engaged in conflict. Of course, there was lots of conflict in colonial situations. How, wittingly and unwittingly, did the actors adjust to the absence of an agreed upon frame of reference for those legal encounters?
Part two then moves beyond the descriptive exercise to one that looked to the norms underlying law’s operation. Law was not only a means of communication but also a resource in signification. Meaning in this sense is linked to specific contexts. Europeans and indigenous people before their civilizational encounter had some basic but always incomplete, understandings of their own contexts. But what happens in an emergent context—one for which there is no agreed upon frame of reference for making meaning? When the accepted frames of each side do not map onto one another neatly, meaning itself becomes a problem. It creates a boundary condition, one defined by a certain indeterminacy. The problem of intelligibility thus hangs over all of these encounters and affects all strategic and instrumental reasoning toward an outcome (which is precisely what people are doing in legal encounter).
That doesn’t mean that other things aren’t going on. To a certain extent that's the bit that our commenters at the end chose not to grasp. The third section of the book is the tricky part. It’s the effort to deal with these tensions. Our goal was always to spark debate not to settle things once and for all. We don’t take such interventions amiss, and several reviews have pointed positively to our willingness to engage this tension. Thus, we decided not to include an afterword responding to them directly. But if you go back and reread the last two or three pages of the introduction, you'll see that there was an effort to foreshadow their concerns.
ROSS: We think that Daniel Richter's category of incommensurability, Lauren Benton's category of strategic manipulation, and our notion of intelligibility are not competing interpretations—where you must accept one and reject the others, or need to put them into any sort of rank order. The extent to which historical actors recognized incommensurability and engaged in strategic manipulation depended to some extent on the underlying degree and patterns of intelligibility. Intelligibility varied widely among different people in a community, and between communities, and according to problems presented. Intelligibility therefore is always a historical variable worthy of study, and I don’t think it recedes behind incommensurability.
SY: One concept that often came up in the book was the Republica de indios. I more or less understood it as this pluralist incorporation of indios as one of several autonomous communities under the same crown. What might be a useful way of describing this system to students?
OWENSBY: The Republica de indios in Spanish America was in many ways unique, even for its time. It was predicated on the idea that people could be equally vassals of the king even as their stations implied differential rights and obligations. That was something that really did set the Spanish imperial regime apart from the English one, and thus the Spanish colonies from the English colonies. One way to respond to the question is to think about how the comparison can make sense of certain contemporary debates about identities and inequality.
Liberal theory’s notions of uninflected, individual, rights-bearing, and equal human beings cannot easily acknowledge inequality, because doing so would demand a baseline inequality of station, and therefore of power. If you don’t have that kind of baseline equality, then the whole proposition of liberal theory falls apart. But anyone who lives in a liberal society knows that people are in fact not treated equally even in the context of an ideological commitment to equality.
We know that this view assumes that differences of wealth, of social status, cultural capital, and connections really don’t matter when it comes to baseline equality. Yet all of those things matter, and matter profoundly. Liberal theory really can't make much of this as a problem. It would have to admit its own internal contradictions—very few theories are prepared to do that. The only way in which it squares with this problem is to continually strive for an equality that seems always to be deferred. Okay that's the background for all of this.
Now I can finally get back to the Sistema de la Republica de Indios and Españoles. The republic system was premised on recognizing that Spaniards had greater power than most Indians and, moreover, that they were inclined to abuse it. Of course, they wanted to exploit the indigenous people but they also needed to protect them from being over-exploited, or there would be no one to exploit—not to be too crass about it. This was possible in the Spanish American context because theology had a clear theory to explain it (man’s sinfulness). You could explain why powerful people would do bad things and abuse their power. There was no fundamental assumption that somehow or other people should be or were socially and politically equal, and so there was no reason substantive equality had to be defended. Fundamental power differentials could be recognized for what they were and then addressed. It was the king's obligation to make sure that power didn’t get out of hand. Indeed, acknowledging power differentials and in principle redressing them (and this was always the tricky part) was essential to preserving the idea that ultimately everyone was equally a vassal of the king even though they were quite differently placed in the social order. The República system was the institutional and ideological expression of this idea, a response to the specific problems of the New World.
Identity politics in our time is a kind of work-around solution to what liberal theory cannot face frontally—the reality of power differentials. I’m not suggesting that we need to return to a monarchical hierarchical social order that happens to be able to take account of power relations. But the comparison at least allows us to expose one of the important political issues of our time. We really need to begin thinking about the relationship between what seems to be persistent inequality and the higher aspirations of the political theory. Why does persistent inequality seem to be such a problem for these aspirations?
SY: I guess that comes up in Marcela Echeverri's chapter in your volume, when the natives are being given equal rights, and they refuse it.
OWENSBY: Right. And her chapter is the one that sits right at that moment of transition when the indigenous people's earlier understandings—which are actually rooted in Hapsburg notions of justice, and not the Bourbon’s—come into direct conflict with the emerging constitutionalism of the independent republics.
Identity politics in our time is a kind of work-around solution to what liberal theory cannot face frontally—the reality of power differentials. I’m not suggesting that we need to return to a monarchical hierarchical social order that happens to be able to take account of power relations. But the comparison at least allows us to expose one of the important political issues of our time. We really need to begin thinking about the relationship between what seems to be persistent inequality and the higher aspirations of the political theory. Why does persistent inequality seem to be such a problem for these aspirations?
SY: Did the global economic structure that these economies were part of shape how indios were legally integrated into the colonial order?
OWENSBY: The short answer is yes. Silver bullion ultimately enabled Europe to shift the world's economic center of gravity from east to west. But if that were all that was at stake, we might have expected that Spain would simply have decided to enslave all the indigenous people outright, which it didn't do.
Indian labor remained paramount throughout the vice regal period, and at times, frankly, it was indistinguishable from the conditions of slavery. But it wasn't slavery. And the Indians made much of the fact that they knew it wasn’t slavery in their legal contests. Over and over, they insisted that they were not slaves. Even when they couldn't put an end to things like the mita in Potosí, where the silver was coming from, that didn't stop them from litigating over it. It’s, as you would put it, a less homogenous answer than we might otherwise end up with if we weren’t concerned with these kinds of issues.
In Mexico something different happened. In Zacatecas the mines had their share of more or less forced labor; but, it’s also the case that in the de-structuration of indigenous lives in that region a lot of people ended up having an incentive to migrate to the mines in search of work and income. They too understood they were not slaves, even if often their treatment was indistinguishable from that of people who were slaves. The law remained adamant that they were not and so did indigenous workers—We are being treated as though we were slaves, they would often say.
SY: The comparative aspect of the book interested me. Could you tell me a little bit more about how new empires set up their legal regimes in light of the regimes of other empires?
ROSS: I don't recall the connection often being made by seventeenth century settlers themselves. Occasionally a British source would say the Spanish have developed fairly impressive institutions of justice, which are open to the Indians. But such statements are overwhelmed by the black legend, and they were also overwhelmed by the use of Spanish America as a political antimodel. Spanish America is caricatured as absolutist, priest-ridden, papist, obscurantist, and that is a foil for how the British want to define themselves as a society of liberty, of reason, and so forth.
OWENSBY: One exception to this that I can think of is with regard to the Jesuit missions in Paraguay, South America. For all that, Jesuits were frequently accused of being “the worst of the papists and the obscurantists,” by English observers, there were also those who admired the missions. In fact there are some in the Anglo-American context who looked to the missions and thought they might speak to the “Indian problem” in the American colonies. I’m just trying to think of the date. I'm guessing this was in the latter half of the eighteenth century.
ROSS: Right.
OWENSBY: It was not the Spanish regime writ large—but that this one place, this one marvelous place, could be an example if only the British would take note. But those kinds of examples are few and far between.
ROSS: I agree with your sense of timing. A more responsible, less lurid, portrait of the Spanish Empire is popularized in the colonies by the Scottish four stage theorists, by historians like William Robertson. These folks are writing in the late eighteenth century and were losing that dark caricature of the Spanish Empire.
SY: Did the Spanish reference the English?
OWENSBY: Not in the sixteenth and seventeenth centuries, but certainly in the eighteenth century in the context of the Bourbon reforms that take off from around 1750. From that period forward, there are lots of invidious comparisons to the English. In fact, they probably date back to the late seventeenth century and the early eighteenth, when the arbitristas begin to talk in woeful terms about the state of the Spanish Empire. One of the things they say is that we need to be more like the British. They'll say things like the British have many factories and few Indians. We have many Indians and few factories and We need to do something about this. We need to make our Indians useful. In the eighteenth century there is a pivot, and the Spaniards begin to talk about their own problems through the prism of what they take to be the far more ideal English experience in the New World, at that point.
SY: Does your book's observations on legal intelligibility apply to indigenous and settler agents facing the norms of religious institutions?
OWENSBY: This was a really interesting question in part because of the different ways in which the historiography on these two topics has evolved. It raises an interesting point regarding intelligibility and the criticism of it. The most probing literature on religious conversion and religious encounters—people like Inga Clendinnen, Louise Burkhart, Sabine MacCormack, and others—seems to have no problem taking for granted that both parties in conversion encounters were engaged in a struggle for intelligibility. Intelligibility doesn't seem to be threatening in the religious context; whereas we seem far less willing to apply it in law.
Why that it is so is a big question. I speculate that it may have to do with some of the points that we've touched on before, which is that religion, frankly, in the academy, is not seen as inherently tied up with instrumental reason. Whereas law, among scholars at least, is generally thought of as belonging to the domain of instrumental reason. Scholars who deal with law are much less willing to engage in this kind of “fluffy stuff” whereas people who are working on religion have no problem with it at all. That's a speculation.
ROSS: Yes, what the question also suggests is another very interesting comparative axis. In our book, we have two sets of comparisons: one between settlers and natives and another between British and Iberian America. But one can also run a comparative study—picking up on what Brian said—looking at the problem of intelligibility within law, as against within religion, while keeping in mind the very different purposes, institutions, and meanings of those two huge domains of life.
OWENSBY: I'm only just thinking of it now, but in some ways if you think about the eighteenth century, religion was becoming less intelligible from the perspective of law. In other words, as law was becoming more instrumental it partook less of theology, less of religious assumptions. This would be something to explore—a kind of de-intelligibility of religion in the context of law, even though it always remains in the background swearing on bibles and taking oaths, these are the trappings of religion. But my sense is that it’s not nearly as central by the end of the eighteenth century as for instance it would have been in sixteenth century in Spanish America, where law and theology were so deeply intertwined that there was simply no pulling them apart.
ROSS: The story you're telling was perhaps more present in the Spanish case than in the British case, just because the British law in the seventeenth century—and that applied to the colonies—was less invested with theology, particularly with high level theological speculation. The British in the seventeenth century would argue that the positive norms by which they lived had to be at least not inconsistent with natural and divine law. But that is a very easy test to satisfy, and it could be left safely in the background.
SY: Is this the topic of an upcoming symposium on legal history that you are organizing?
OWENSBY: To a certain extent this issue leads into a symposium that we're planning for 2021. The idea there is to explore the nexus of economy, law, theology, and moral regulation in a broad transatlantic frame with the hope that we might raise some new questions that would help us to (to piggy-back on your word) de-homogenize our accounts of economic development from the early modern to the modern periods.
SY: Thank you very much for this interview. To close, would you tell me a little bit about your future projects that we may look forward to?
OWENSBY: I have a book manuscript in the works at Stanford. It asks the question: What happens when people who have not organized their lives according to notions of individual gain but according to notions of gift and reciprocity, begin to think of the world and of the people in it as fodder for the individual pursuit of gain? In this case it’s the Guarani people of South America, who come into direct contact with Europeans who are tentatively and fitfully beginning to think about the world and the people in it as available to their pursuit of individual economic gain. The question Did human beings pursue economic gain at the expense of others? has for the last couple of centuries been taken for granted. It’s the basis of modern economic thinking, what Karl Polanyi called the economistic fallacy. Yet, precisely because the motive of gain has been chalked up to human nature, it rarely occurs to us to ask whether it is the only way of organizing social relations. Where the focus of the book is on the indigenous people, the Guarani, the focus of the symposium Richard and I are working on is squarely on European conceptualizations of economy and moral regulation. Both sides of this equation are necessary in order to begin to elaborate what I've begun to think about as a kind of global history of moral economy a la E.P. Thompson.
ROSS: As to my future projects: with Steven Wilf from the University of Connecticut Law School I'm writing a book tentatively called The American rule of law: A comparative history, under contract with Yale University press. In 1800, the newly born United States came to see itself as a particularly law-centered society—one committed to the rule of law more profoundly than other nations. In 1700, a century before, such a claim would have been strange and unpersuasive. The book asks: what were the interlinked institutional, social, and intellectual changes over the course of the colonial, revolutionary, and early national periods that enabled the United States to see itself as this law-centric society? Steven and I want to explore this question in a comparative framework with one eye toward a relatively well-developed New World empire that is not English—that's Spanish America—and then one toward a British zone that is not in the New World—that would be Ireland.
I also want to mention an article in progress with Jane Ohlmeyer of Trinity College Dublin and with Philip Stern of Duke. Historians have long written about anglicization, the convergence of England’s overseas empire towards English metropolitan legal norms. But the discussions of British America, Ireland, and India have largely gone on in isolation. We try to open up a comparative discussion of anglicization that can yield generalizations about the extended British Empire.