The Corporation in Conquest: Reflections on the Methodology of Legal History

The inaugural seminar of the Sawyer Seminar on Corporations and International Law took place on Friday, September 22nd with Professor Lauren Benton speaking about her paper “The Legal Logic of Conquest: Political Pluralism, Truces, and Early Modern Colonial Violence.” The discussion was thought-provoking and wide-ranging, covering a variety of topics extending from the legal relationship between war and peace to the multi-faceted discourses of protection and betrayal.

When our class discussed Lauren Benton’s most recent book (A Rage for Order: The British Empire and the Origins of International Law, 1800-1850, co-written with Lisa Ford), we noted her distinct methodology, which focuses on practice as the source of international law as opposed to writings by jurists or scholars, and particularly those legal practices that emerge on the peripheries of empires. This definition of law is noticeably broad and creates space for many different legal actors (and spaces) to be considered as agents in the creation of legal norms. Such a methodology also carries unique implications for Professor Benton’s analysis of imperial law as a whole. While it allows her to make big pronouncements about developments in imperial legal administration, it can become more difficult to create a sense of coherency when analyzing such diverse case studies.

During the seminar, it was really interesting and beneficial to hear Professor Benton reemphasize the value of her methodology, both for her work and for the field of legal history as a whole. She summed up her approach succinctly with the simple question: what are people saying and doing? She also elaborated on how this question had led her to focus more on similarities between different polities within the colonial context. According to Professor Benton, so much of colonial history has focused on the differences between the conquering and the conquered. Instead, if you consider how these people acted when they first encountered each other, what emerges instead are the points of commonality. This approach is evident in Professor Benton’s paper when she discusses how the Native Americans were equally familiar with the notions of tribute and vassalage.[1] I was interested in this emphasis on similarities and how it might or might not connect to another prevalent theme in Professor Benton’s work, the inside/outside boundary of laws, politics, and cultures. How would a focus on similarities be helpful when studying how cultural and legal borders were drawn between two polities? Or are there limits to analyzing similarities when so much of the colonization process was centered on categorizing different groups of people?

The “corporation” didn’t feature explicitly in Professor Benton’s paper and it wasn’t a strong presence during the discussion, but in certain ways Friday’s seminar prepared the groundwork for the following weeks, when our class turns to consider the corporation and its many different forms more fully. Benton herself identified elements of corporatism in the paper, although they weren’t necessarily characteristic of the modern, private corporation. Instead, she saw corporatism as playing a role in Cortès’s conquest of Mexico as it related to the broader conceptions of the corporation in medieval and early modern Europe. In the paper, she describes Spanish claims to the New World as built “more on the symbolic rituals of founding towns and their associated civic institutions”, in contrast to other more violent elements of their conquest.[2] The creation of municipal units, also considered to be corporate entities in the sixteenth century, was a necessary aspect of Cortès’ plan to permanently settle Mexico.

The questions that I came away with regarding corporations and empires were (again) related to Professor Benton’s methodology. Can a methodological focus on practice, not theory, as the source of legal norms be applied to understanding historical conception of the corporation, or the modern corporation as it exists today? Similarly, can the notion of “conquest” as an organizing principle of some kind also be applied to the political, legal, and cultural norms of the corporation, both then and now? As Professor Benton dissects different practices of early modern conquest, can we break down how a corporation enters into a new space or society? In general, what is the best way to go about unearthing corporate norms and governance in order to get to the “heart” of the corporation?

In that sense, I think Professor Benton’s paper and her fascinating reflections posed us nicely for next week’s class. I look forward putting her work in conversation with the other visiting scholars this coming fall.

[1]. Benton, “The Legal Logic of Conquest: Political Pluralism, Truces, and Early Modern Colonial Violence (paper presented at the Sawyer Seminar on Corporations and International Law, Duke University, September 22, 2017).

[2]. Benton, “Legal Logic of Conquest”, 16.

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