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Book Review
| Peter Karsten, Between Law and Custom: "High" and "Low" Legal Cultures in the Lands of the British Diaspora—The United States, Canada, Australia, and New Zealand, 1600–1900, Cambridge: Cambridge University Press, 2002. Pp. xvi + 560. $90.00 (ISBN 0-521-79283-5).
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| As Britons fanned out across the globe during the seventeenth and eighteenth centuries, they carried with them not only the tools of empire and the "benefits" of their Christian civilization, but their laws too. As the jurist William Blackstone noted in the 1760s in his Commentaries on the Laws of England, "it is held, that if an uninhabited country be discovered and planted by English subjects, all the English laws are immediately there in force. For as the law is the birth-right of every subject, so wherever they go they carry their laws with them" (I, 104–5). In the long shadow of the Seven Years War, which witnessed British victories over its traditional and imperial adversary, France, in the Americas, the Caribbean, and the Indian subcontinent, Blackstone qualified this confidence by noting that "in conquered or ceded countries, that have already laws of their own, the king may indeed alter them and change those laws; but, till he does actually change them, the ancient laws of that country remain, unless such as are against the law of God, as in the case of an infidel country" (I, 105). Under these strictures and those offered by John Locke in his chapter "Of Property," in Two Treatises of Government, which seemingly nullified indigenous sovereignty on the assertion that Indians, and later other peoples, possessed neither a sense of property nor political society, Britons saw it as their duty to bring much of the world under their law. These eighteenth-century perspectives ensured that even those imperializing Britons without an intimate knowledge of the common law or statute books, without wigs and robes, or without the rituals and regulations of the Bench at Quarter Sessions or Assizes carried with them the legal culture, the legal mores, and the legal obligations of early modern Britain. Yet without the vestiges of state, the legal institutional apparatus, or the carefully defined structures of authority that delineated social relations and the social order in the old world, they faced the daunting task of replicating that legal framework in the new world. |
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Understanding these complex processes in the lands of the British Diaspora is an equally daunting challenge for modern legal historians. Peter Karsten's Between Law and Custom does much to overcome such a Herculean task. He has produced a provocative work that will be essential reading for not only legal historians of the lands of the British Diaspora (short-hand for the United States, Canada, Australia, and New Zealand) but also those of nations that inherited (or had imposed upon them) the English legal system and culture that William Blackstone rationalized and revered in his Commentaries. Karsten will be known to many readers of this journal as the author of Heart versus Head : Judge-Made Law in Nineteenth-Century America (Chapel Hill, 1997), which challenged standard interpretations—such as those held by L. Freidman and R. Posner—about the emergence and motivation behind "lawyer-driven law" in American courts during the nineteenth century. In Between Law and Custom, Karsten begins by discussing the nature of British diasporic legal formation, which he suggests experienced two phases of development. At the outset of settlement governors, judges, and councils issued ordnances, proclamations, and decisions that reflected British conventions and expectations. As Karsten notes, "at this stage of development ... 'the Center' or 'the Core' set the legal standards for its 'Periphery'" (3). Yet even at this stage, "the ways that ordinary folk actually behaved could be quite different from, sometimes at odds with, the formal law." During the second phase of legal development colonial demands for constitutional powers grew and were eventually realized either through rebellion—as in the American colonies in the 1770s and 1780s—or through the emergence of responsible government—as the British Dominions (Canada, Australia, and New Zealand) during the mid to late nineteenth century. These newly empowered "Diaspora legislatures" emulated the mother of parliaments at Westminster, but also "struck out on their own" and "the 'Periphery' increasingly found its own legislative voice" (4). Karsten breathes new life into this familiar tale by considering "how well or poorly certain statutes, Colonial Office instructions, and English Common-Law rules were applied in the lands of the British Diaspora by both British- and native-born governors and jurists." Added to this impressive assignment, Karsten seeks also to uncover "the norms and rules that ordinary people employed to resolve property and contract disputes, and what happened when these two legal cultures collided" (4). Some legal scholars toiling in the historical field may quibble with some of the conclusions reached for their particular doctrinal or historical patches, but all readers will benefit from the sheer breadth and depth of Karsten's study and his comparative approach, which reaches the compelling conclusion that settler societies underwent similar legal experiences. |
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Drawing upon a vast array of archival and secondary sources and examples from Van Diemen's to Rupert's Land, from Westminster to Waitangi, Karsten offers a detailed examination of laws relating to land (property), agreements (contracts), and accidents (torts). The study reveals that although jurists often sought to replicate metropolitan legal practices in their colonial environs, they increasingly set aside aspects of English Common law to meet the needs of their settler societies. As in the "old world," so too in the "new world," indigenous customary rights were torn asunder and supplanted not so much by judges and lawyers, but by Diaspora settlers who created their own popular common law and "low" legal culture (116–87). This process became even more pronounced once the colonies became "Responsible Governments" unencumbered by the guiding hand of Whitehall. Here Karsten's thesis parallels Lauren Benton's recent work, Law and Colonial Cultures: Legal Regimes in World History, 1400–1900 (Cambridge, 2002), which notes the importance of cultural practices and institutions in the transnational transition from the "multicentric law" of early modern empires to the state-centered law of high colonialism and its subsequent reification in an age of twentieth-century nation states. Legal historians of Europe, the Americas, Africa, and Asia will find much to stimulate debate and further research in Benton's Law and Colonial Cultures and Karsten's Between Law and Custom. |
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Ironically, aspects of the story Karsten tells will also sound familiar to early modern British historians well versed in the findings of such scholars as E. P. Thompson, D. Hay, J. Neeson, B. Manning, K. Wrightson, T. Stretton, and A. Wood. Karsten argues that in the colonies "customs sometimes had the force of law" and that "hunters, fishermen, and miners, indeed, the native inhabitants no less than the Diaspora newcomers, enjoyed vibrant customary property rights. But statutes inspired by those who would benefit from the enclosing of common land (in Britain) or the 'waste' and 'uncultivated Crown demesne' (in the colonies), extinguished many customary rights" (116). Those who succumbed to these processes in early modern and eighteenth-century Britain were its cottagers, commoners, and crofters, while in the colonies and dominions aboriginal peoples were routinely, at times ruthlessly, dispossessed of their lands and customary rights. But property was not the only area of law to experience the tensions between law and custom and between high and low legal cultures. In the British Diaspora the fields of Contract and Tort also witnessed a clash between law and popular norms and were also altered in the process. Specialists interested in such matters as master-servant relations and crown/corporate liability will find it necessary to read Between Law and Custom closely too. |
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Peter Karsten ties together his wide-ranging study by concluding that in the British Diaspora jurists encouraged the English Common law while simultaneously, "ordinary folk developed their own 'common-law' norms and rules of behavior ... [and] ... the resulting 'high' and 'low' legal cultures existed without grave consequences, but they sometimes produced out-and-out confrontations over issues involving land and agreements. The Common Law won some of these contests; the 'common law' of popular norms won others" (498). Those who have inherited the laws, who inhabit the lands, and now people the nations that emerged out of the British Diaspora and its imperial experiences would do well to read Between Law and Custom carefully for they will realize that numerous legal and historic contests—such as indigenous land claims—remain, and as is "customary" they remain to be resolved by yet another generation of innovative, and I fear ahistorical, jurists. |
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| Richard Connors
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| University of Ottawa |
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