The Decategorization of Conquest

Lauren Benton’s career has spanned an impressive range of disciplines—and it is that diversity which makes her paper uniquely valuable in the inaugural Sawyer Seminar. As a legal historian with training in anthropology and economics, Benton’s paper, “The Legal Logic of Conquest: Political Pluralism, Truces, and Early Modern Colonial Violence”, focuses on the commonalities of action and reaction across time and space, from Roman raids, to the wars on the Iberian Peninsula, to the Spanish conquest of Mesoamerica.

Legal academics and practitioners often turn to collections of written jurisprudence to understand legal history. Benton’s methodology reminds us of the value of examining what was done, rather than what was written. The traditional school on how to write about international legal history focuses on mining the work of European scholars during the formative years post-Westphalia. In contrast, Benton’s current piece, centered around the legal and social dynamics of “small wars” and colonial “violence”, draws on the theme of “common practice”. In her understanding of interpolity relations—the “law before international law”[1]—we must envision that the ordering of interpolity relations was not understood by even the players. This makes a critical point in the philosophical debates of law and law’s formation. In short: find practice, first. Then, turn to the jurists’ lens.

The discussion of Benton’s paper yielded definitional questions of international law specifically. In Benton’s discussion, law was loosely defined as practice melded somehow with expectation between parties. She noted that she wanted readers to move away from the idea of law as norms, but rather think of law as sets of practices and expectations. Benton asked readers to consider the “audience of law-making” during the time period. Spanish conquistadors wrote down their rationales for violence, and sent these letters off to the Spanish crown. At the same time, conquistadors packaged their message of truce and betrayal to the natives. Arguably, two separate audiences yielded two sets of “expectation” and “practice”. This, perhaps, contributed to the pluri-political, or the pluri-legal nature of colonial empire.

Benton’s ability to draw common threads through historical practices is food for thought today. We now live in an era where conflicts are defined differently depending on the types or territorial aspects of violence. Legal pronouncements and classifications of wars-that-were-not-quite-wars were present in the past as well. As noted by Professor Ralph Michaels, Benton implicitly rebukes categorization: war and peace, conqueror and conquered, enemy and vassal—these concepts had murky roots since the beginning of international legal consciousness.

The common human patterns of truce-making, raids, and betrayals persisted across time and space, noted Benton. Other scholars at our inaugural session added that the trope may be common in all dominant-subordinate relationships, which yielded “transactional commonalities” in patterns of violence and protection. This offered perspectives on expanding Benton’s piece, or adding additional case studies for comparison.

Finally, a crucial element of this class’ broader theme, corporations both in history and modern international law, found points of commonality to the theme for this week. Benton’s concept of pluralist arrangements, as in the colonial empire, pertains to the corporate form. The conquistador Cortes, for example, set himself up as the “head of town”, claiming jurisdiction over land in dispute with the natives. The strength of his jurisdictional claim is in question, but so is his ability to manage his small town in a vast empire, like the CEO of a branch of a larger corporate entity.

[1] Laura Benton, The Legal Logic of Conquest: Political Pluralism, Truces, and Early Modern Colonial Violence (2017) 25.

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