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Manuel Bastias Saavedra (ed), Norms Beyond Empire: Law-Making and Local Normativities in Iberian Asia, 1500-1800. Leiden: Brill Nijhoff, 2021, xii+355 pp. ISBN 9789004472822

Stuart M. McManus

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1Following the lead of Thomas Duve, one of the themes explored by many of the researchers at the Max Planck Institute for Legal Theory and Legal History is that of “normativity”. This is a “big tent” vision of pre-modern law as a combination of norms (legal, social, moral, religious, etc.) that shaped the expectations and actions of historical actors. These are revealed not necessarily by the reading of normative texts, but through the observation of practices (i.e. how people actually acted, or expected others to act) and then filling in the gaps as best as possible. As the volume’s editor summarizes it, “early modern European law was a complex repository of norms that not only included laws, edicts, and ordinances, but also encompassed a wide range of habits, conventions, customs, values, and moral instructions. The production of norms was not centralized in the hands of political power, and explicitly formulated laws were not the only norms that composed the corpus of law. Instead, law was understood to be spontaneously produced through social life; longstanding traditions, conventions, habits, and other social norms were understood to derive their validity from the mere fact that they were followed” (p. 2).

2In this collection of essays, this particular vision of the historical relationship between law and society is explored within the context of the Iberian presence in Asia, where European norms came into contact with a vast array of Asian laws and customs. Encompassing both Portuguese and Spanish expansion, the volume looks both at parts of Asia where Iberian monarchs asserted some sort of jurisdiction, and areas (“beyond empire”) where they did not. As such, the emphasis is on legal pluralism and the plurality of centers of legal culture within Iberian Asia, a space with indistinct boundaries that was “Iberian” in only a limited sense. The line between Iberian empire and Christian missions is also blurred in this account, a fact not lost on contemporary observers like Hideyoshi who expelled the Jesuits from Japan as agents of empire. As such, the volume focuses not on Iberian legislation or the ius commune (although both appear throughout), but reveals the degree to which Asian norms shaped life in Goa, Nagasaki, Macau, the Philippines and surrounding areas.

3While edited volumes of this sort have an uneven track record of keeping to their stated themes, Norms beyond Empire is unusually consistent in this regard. Following an extensive introduction, the volume opens with a wide-ranging essay by Ângela Barreto Xavier that is representative of the volume as a whole. This examines the normative frameworks at play in the villages of the Goan Old Conquests from the sixteenth to the eighteenth centuries, primarily through a detailed analysis of the composition and reception of the famous Foral dos usos e costumes dos Gancares e Lavradores da Ilha de Goa e outras annexas a ella (1526). This document describes the judicial system of Goan villages and important elements of private law (e.g. property, inheritance, etc.), and has been the subject of various interpretations over the years, from an emblem of an uncorrupted pre-colonial past, to a mixed product of Indian realities and crown imperatives. Building on the previous scholarship, she emphasizes the multinormative nature of village order in Goa, both before and after the advent of the Portuguese. Even while under the Sultanate of Bijapur (1490-1510) the villages had offices and officials with names that suggested that they had been inherited from previous periods, and later integrated into the new imperial order on terms more reminiscent of suzerainty than sovereignty. Longstanding Brahmanical norms were probably also present, although are more difficult to identify.

4This integrative model was also followed by the Portuguese who were interested in codifying local customs as a way to incorporate these existing structures into an expanding colonial state that needed stability and tax revenue as soon as possible. This paralleled processes in late medieval Portugal, where state building necessitated a slow expansion of crown powers that was in many ways similar to “colonial” expansion. Of course, as elsewhere local elites in Goa interacted with this project in selective ways choosing to elide certain facts when it suited them, meaning that the text that has come down to us was both a co-production and a partial picture of the reality. From 1543, the Foral would then be used as a normative text and applied to villages in Salcete and Bardez that had not originally been covered. It was also reinterpreted as Christianity (which brought with it norms that touched on many domains of private law) began to take hold in the Old Conquests. This resulted in a legal pluralism that was fairly vibrant in the first two decades of Portuguese presence, but became increasingly constrained as time went on.

5In the succeeding substantive chapters (which are all slightly shorter than the first), the same themes are addressed in similar ways. One particularly fruitful locus for examining “norms beyond empire” is marriage, which is the focus of chapters 5 and 6. The first of these is the most striking, and treats the reality (as constructed by anthropologists) of indigenous bride price (bugay and bigay-kaya) and the related bride service (servicio personal to the bride’s family) in the Tagalog and Visayan speaking areas of the Philippines. It then shows how these practices were analyzed by missionaries and judges, and finally at least partly stamped out and replaced with a more orthodox post-Tridentine vision of marriage in the course of the seventeenth and eighteenth centuries. This encounter of norms far from the imperial capital was in turn embedded in longstanding traditions of various origins. While Christian theologians were generally hostile to the idea of bride-price, it was far from absent in pre-modern Europe and indeed was reflected in the Hispanic arras, which is occasionally mentioned in texts from the Philippines. Nonetheless, contemporary Spanish observers repeatedly called the bride price a “dowry” (dote) paid to the family of the bride, and criticized it as a de facto purchase. There were also unique issues that arose, such as the potential conflict with the Christian idea of consensual marriage if the wedding was at risk of being called off and there was therefore a financial incentive for the woman’s family to go ahead. This was made more likely because the bride price went to the woman’s family, rather than being put to use in the marriage, as was the case with the Christian dowry. Observers also puzzled over the fact that slaves were very frequently included in the bride price, since manpower, rather than goods or specie, was prized in the labor-poor Philippines and so the most valuable unit of exchange. These and other issues found their way into relatively well-known normative texts by Juan de Paz and others, as well as archival documents of various sorts, that are discussed in the final part of the chapter.

6Chapters 6, 8, 9 and 10 are also notable for their use of non-European language sources, namely Chinese and Japanese, a still all too uncommon feature of scholarship on Iberian Asia despite the excellent model presented by C.R. Boxer. Indeed, the sort of questions that the volume asks cannot be answered without reference to all the available evidence, most of which is unfortunately still largely inaccessible to the average Iberianist. Even relatively limited use of these sources can lead to engaging studies, like Chapter 9 on the “Hat Controversy” at the Canton Conference of 1667-68. This discusses the effects of early modern China’s strict sumptuary norms (with hats varying significantly by social and bureaucratic rank) on the headwear of missionaries and Chinese converts. Realizing their importance, missionaries codified these sumptuary norms and wrote to Rome requesting permission to follow them during the Christian sacraments (e.g. wearing a hat while saying mass, woman receiving confession without wearing a veil). Given the precarious position of missionaries (especially during their house arrest in Guangzhou in 1667-68), they frequently pushed back against the views of central authorities in Europe, creating a set of norms that were hybrid in nature and produced bottom-up (from the perspective of the Church hierarchy at least). This was achieved through provincial councils, and argumentative strategies that highlighted the difference between divine commands and invented human laws (institutio hominum). Even if there was a scriptural admonition to institute a certain practice, it was not always necessary to force it on converts straight away. Norms might tend in a certain direction, but they did not have to crystalize all at once. While couched in terms of the familiar texts of theology and canon law, their arguments can hardly be described as the result of blind obedience to authority, but represent what the author calls “decisional pluralism’.

7In sum, this volume showcases the exciting work currently being undertaken at the Max Planck Institute for Legal Theory and Legal History. While framed as an exploration of a particular theoretical issue (early modern law as a diverse range of normative frameworks embedded in a particular society), the range of responses occasioned by the sources from Iberian Asia collected in the individual chapters provide a myriad of differing visions of the relationship between law and empire that are far from doctrinaire. Indeed, the volume’s greatest strength is that while focused on one particular set of contexts in early modern Asia, it transcends its geographical and chronological limits, and invites the reader to reexamine old orthodoxies regarding the state, law and society, be they in Asia, Europe, or elsewhere.

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Stuart M. McManus, «Manuel Bastias Saavedra (ed), Norms Beyond Empire: Law-Making and Local Normativities in Iberian Asia, 1500-1800. Leiden: Brill Nijhoff, 2021, xii+355 pp. ISBN 9789004472822»Ler História [Online], 81 | 2022, posto online no dia 21 setembro 2022, consultado no dia 13 junho 2024. URL: http://journals.openedition.org/lerhistoria/10884; DOI: https://doi.org/10.4000/lerhistoria.10884

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Stuart M. McManus

Chinese University of Hong Kong

smcmanus@cuhk.edu.hk

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