The last two decades have seen a boom in scholarship on law and empire—a boom that owes much to the work of Lauren Benton, through her books Law and Colonial Cultures (2001) and Search for Sovereignty (2009). Now Benton broadens her lens to look at the longue durée history of law and war across, and even beyond, European empires, in They Called It Peace. Her book is a wonderful survey of the interplay of legal ideas and violence in European empires from the early modern era to the present. Benton focuses our attention on “small wars,” or “violence at the threshold of war and peace” (P. 8), which was “chronic, and repeating” across the world (P. 4). Rather than exceptions to the rule, she argues, small wars were the rule. And while small in scale, they could be both brutal and decisive, even leading to massacres and extermination.
Benton draws on examples from multiple empires—French, British, Portuguese, and Spanish—and different modes of conquest, both seaborne and land-based. We go from the Indian Ocean to Uruguay to the Pacific Northwest to Polynesia to Mexico to the Coromandel coast to Reconquista Spain to Jamaica. And we travel from the early modern period to the 19th century while also entering into conversation with modern dilemmas of violence—questions of “force short of war” like the US War on Terror, or “special military operations” like Russia’s invasion of Ukraine.
In this Jot, I want to pull out three theoretical innovations in Benton’s book that provide useful tools for other legal historians, and legal scholars more broadly. First, she insists that “law, defined broadly, infused all forms of imperial violence” (P. 8). In contrast to some scholars who have seen imperial warfare as falling into a “zone of exception” outside the law, Benton argues that it “was never operating outside the law” (P. 186). But that certainly does not mean that law limited imperial brutality. Instead, Benton “exposes the myth that law worked to contain violence. It structured violence and presented historical actors with possible worlds of acceptable mixes of small and cataclysmic violence” (P. 198). This was true not only for imperial states and agents, but for subjects more broadly, who “usually strained to maintain relations with legitimate sponsors and sought legal cover for their actions” (P. 7). (Students of Benton’s earlier work will hear echoes of the idea of “legal posturing,” or “imperfectly reconstructed legal practices and arguments” (Lauren Benton, Search for Sovereignty (2010), P. 24).)
This set of arguments resonates with other recent work on law and empire, and it should guide historians’ questions going forward. While exposing European imperial hypocrisy is surely valuable, we might also look for how law structured and channeled decisions. This often means moving past an assumption that law’s purpose was to limit suffering or brutality, or to promote justice or human welfare. In imperial wars, and in empire more broadly, law could work to shape individual or state actions without necessarily improving outcomes.
Second, Benton pushes us to put European empires in a broader legal field, and not to privilege their ideas of law. Across the medieval and early modern world, she contends, polities with very different cultural backgrounds shared a rough legal vocabulary. “Nearly everyone recognized a few broad categories of legal action” (P. 12), including jurisdiction, protection, punishment, truces, and plunder. These shared categories created familiar rhythms, like the oscillation between violence and truce and back again that was shared between polities as diverse as the Aztec Empire and the Abbasid Caliphate.
Indeed, while previous work has paired European Christian empires with others who shared similar intellectual traditions (like Middle Eastern Muslim polities), Benton goes further. Her idea of “big law” extends even to the indigenous peoples of the New World. This is a helpful pushback on the common tendency to view international law—for better or worse—as a European innovation. In recent years scholars have shown that non-Europeans had their own ideas about international law, and that they creatively adopted and deployed European rules in the imperial age—but Benton goes further by suggesting a shared set of ideas at the root of everything.
Third and last, Benton bridges the gap between studies that focus on legal intellectuals and their writings, and those that instead emphasize actors such as lawyers, litigants, diplomats, or officials. Like the internet meme, she asks, “why not both?” They Called it Peace moves seamlessly between treatise writers such as Grotius and Vattel, and a wider cast of characters including Royal Navy captains, French agents in India, settlers in New South Wales, and South American Guaraní. Benton escapes from the binary dilemma of whether “texts influenced practices” or “texts followed practices” to argue that “European imperial agents and European legal writers were arriving, in different locales, at similar solutions to related problems” (P. 146). Here again we see a model for legal historians: theory without practice is only philosophy, while practice without theory is only improvisation. European imperial warfare is not the only field where legal historians profit by combining genres; indeed, a “law in action” approach demands nothing less.
