Walburn, Benton and the Legal Logic of Conquest

In her recent article, “The legal Logic of Conquest: Political Pluralism, Truces, and Early Modern Colonial Violence,” Lauren Benton reworks our understandings of conquest, and revises modern legal historiography, arguing that “the history of the early modern world can be styled as a history of invasion, occupation, and the sweeping cultural and institutional consequences of both.” Her contribution is to complicate the understanding of conquest by blurring the distinction between war and peace, inside and outside, public and private, conqueror and conquered, enemy and vassal, etc. From the beginning, Benton asserted that this paper is a work in progress, even so, this work has far reaching implications about how we understand international law. In the paper, Benton is concerned with the similarities of comparative international legal history, not the differences. In exploring these similarities, Benton constructs the idea of the “vernacular jurisprudence” that defined the interactions between the conqueror and conquered; arguing that the truces, raiding, and continuous violence of colonial regimes was legal by nature. When asked what makes the things she describes “law,” Benton stated, “If you regard repeated actions with expectations as so widely occurring that they take on an institutional nature, that’s good enough.” Therefore, Benton characterizes the negotiations of truces, the continued use of pillaging, and justifications of violence as retaliation (by use of the narrative of betrayal) as “law.” As such, it seems that Benton points to inter-polity “law” and the “law” of early modern—in fact ancient—warfare dating back to the Roman empire as the source of (or, at least, the early origins of) international law. However, she argued that the field of international law in the late nineteenth century was very “self conscious,” in its creation, and therefore the term cannot “travel back in time” to describe the interactions she explored in this paper. Finally, she explained her use of the term “pluralism,” arguing that “in interpolity law, everyone gets jurisdiction.” Most compelling was her understanding of truces and alliances as proof that the authority to sign a truce or engage in treaty-making implies a legally pluralistic form of conquest which recognizes the legal autonomy of (semi)conquered polities. Benton argued that the implications of such agreements meant that conquered polities were both inside and outside of empire, both autonomous and subordinate. In fact, she argued against the use of “overlapping jurisdiction,” citing the pluri-political nature of conquest in the Spanish “New World,” and pointed out the “truly open ended” nature of what these (conquered) polities would become. In my initial reading of the article I was skeptical of Benton’s reliance on the writings of Cortés, but, after hearing her speak, I am less prone to disregard this study as “top-down.” However, she accounted for the probable bias of Cortés as “post facto” narration, and explained how his letters lend credibility to her thesis, while simultaneously and self-consciously skewing history. In the end, Lauren Benton challenges our understanding of imperialism and the relationship between the conqueror and conquered. Her paper and talk deconstructed the traditional historical narrative of war and peace, conqueror and conquered, etc., and allows us to understand the history of international law and imperial expansion as a “legal logic of conquest.”

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