Colonizing Hawai'i and Colonizing Elsewhere: Toward a History of U.S. Imperial Law

The colonization of Polynesia is usually placed well toward the end of the broader narrative of European and American overseas conquest and colonization. European contact with many island peoples occurred in the late eighteenth century or after, with formal claims to control of the islands coming later. Japanese and U.S. imperial expansion in the region became important forces in the nineteenth and twentieth centuries. Yet characterizing colonizing in Polynesia as peculiarly sudden can create distortions. The preoccupation with the study of first contact has shifted attention from the important decades leading up to formal colonization. The emphasis also threatens to reproduce early European representations of the islands as sheltered, idyllic havens peopled by colorful innocents. And portraying Polynesian colonizing as unique in timing and pattern has distanced it from the comparative analysis of colonial relations, a tendency that echoes colonizers' representations of Pacific island imperialism as unique in its benevolence-an "empire of love," as contemporary French observers liked to claim.1 The analytic isolation fits comfortably, too, with an idea of U.S. imperialism as a different historical phenomenon from its European counterpart. Sally Merry's Colonizing Hawai'i (1999) is an original and well-crafted book that goes a long way toward correcting these tendencies. The book focuses attention on Hawaiian legal culture in the context of transnational influences, exploring in particular the links between New England legal culture and Hawaiian institutional change. In analyzing the shifts in law during the period leading up to formal annexation, Merry disrupts the narrative of modern Hawaiian history proceeding logically from dramatic first contact, with its famous cultural dissonance, to formal annexation. For Hawaiians, alternatives to annexation were both desirable and possible, and Westernizing legal changes were alternately tolerated and encouraged in an effort to prolong autonomy. Merry divides the transformation of Hawaiian law into two periods: a transition between 1825 and 1844 from law based in Hawaiian sacred authority to the "religious law" supported by Christian missionaries, and a second, more radical transition between 1845 and 1852 toward the establishment of a secular legal order. While in the first transition, some role remained for Hawaiian legal forums and processes, these were essentially eliminated in the legal system adopted at mid-century. By then, the legal institutions and practices required for the development of Hawaiian plantations were securely in place. The missionaries' preoccupation with controlling "uncivilized" behavior through the law had given way to a more systematic disciplinary order that controlled Hawaiians' and immigrants' labor, transformed gender roles, and promoted ideologies of self-control and self-interest. This narrative makes a significant contribution to an emerging history of imperial American law. As Merry points out in the introduction, scholars have paid inadequate attention to U.S. colonial legal policy; there is no single work that attempts an overview of the imposition of U.S. law on colonial territories. The history of legal pluralism in the United States has, in addition, been written largely in the tradition of an entrenched American exceptionalism. What would be the materials of a colonial legal history of the United States, and how can we build on Merry's study to produce one? One of the first steps in constructing an overview of law as an element of U.S. imperialism would be to link the rich literature on the history of Indian law-itself somewhat isolated from mainstream U.S. legal histories-with the study of legal policy in U.S. colonial possessions acquired in the nineteenth and twentieth centuries. Consistent across these experiences was a preoccupation, provoked by colonial expansion, with defining intermediate forms of sovereignty in the law. …