This chapter analyzes how the relationship between Catholics and non-Christians was intended to be governed by the Church and the Portuguese Crown in the Archbishopric of Goa. By analyzing the decrees of the Provincial Councils of Goa, as well as some specific regulations utilized in the Estado da Índia, the actions aimed at promoting the conversion of local populations and eradicating non-Christian beliefs can be examined. The purpose here is to analyze the complex and dynamic process of production of norms in the Archbishopric of Goa by emphasizing how the decrees of the Provincial Councils of Goa—and other laws of the Estado da Índia—dealt with the issue of guardianship of orphans of Gentile parents, one of the means adopted to stimulate the conversion of native populations. The controversies surrounding the laws aimed at the conversion of these orphans and their relatives also allow for the analysis of rulemaking in the Estado da Índia, considering the role of different local agents (judges, the Pai dos Cristãos, viceroys, Gentile families) in the construction of norms.
The Iberian empires in Asia set in motion a profound process of normative production and change. Whether it was in defining the relations between imperial polities, regulating social and religious life, establishing commercial treaties, organizing imperial or interstitial jurisdictions, or defining how inhabitants would be ruled, the presence of the Crowns of Portugal and Castile in Asia triggered an immediate need for regulation, provoking shifts in such rules as the balance of power changed over time. This chapter proposes looking at this process by moving beyond empire—to highlight the ways in which law-making and local normativities operated beyond colonial rule—and by focusing on norms as a means of escaping the often too narrow concept of law—to highlight the manifold underlying assumptions, deep-seated convictions, and cultural paradigms that shaped the way people governed, worshiped, and organized collective life. This chapter also lays out the historiographical debates about empire and law which shape this discussion and suggests that legal-historical research has reached a point where it should move toward a decentered history of law that focuses on local law-making and local normativities.
This chapter studies the production of normativities by European missionaries in China at the end of the 17th century. In January 1665, when Christianity was banned, most missionaries working in the missions were taken to Guangzhou to remain under house arrest. This contribution analyzes the debates about the use of hats that missionaries undertook during this confinement. This aspect, part of the so-called “Canton Conference”, facilitates an understanding of how missionaries discussed new regulations for the missions and how European norms were transformed due to the need of adaptation to local customs. The information provided by the study of unpublished sources of the Archivo de la Provincia del Santo Rosario (Avila, Spain) is explored to analyze the rationale behind those new norms which were influenced by the local conditions, the characteristic early modern jurisdictional pluralism, and the limits in the dialogue between both the European and the Chinese traditions.
Drawing together Japanese and European sources while exploring the Christian Century in Japan, this paper presents a legal historical analysis of Christian and Japanese understandings of marriage among Japanese people in early modernity. To do so, it first discusses how the missionaries tried to mold the practice of Japanese marriage according to the law of nature and canon law. Second, it proposes a systematic analysis of marriage in Japan following the Taika reforms, connecting this period to the arrival of the Christians by studying changes in household norms, kinship ties, family structures, inheritance practices, lineage patterns, and divorce throughout Japanese historical periods. Third, this paper argues that missionaries did not have a complex and systematic view of the legal tradition behind their descriptions of Japanese marriage through the analysis of four topics that can be highlighted in sources from both missionaries and the Japanese: the ceremonies and formalities for celebrating marriage that mark the beginning of the act, the number of wives a man could have, the duration of the relationships or the willingness to stay together forever, and the connection between repudiation and divorce.
From the 1620s on, inquisitors in Goa referred ever more frequently to ‘gentilidade’ to name a type of religious offence perpetrated by local Christians in the Estado da Índia. This contribution proposes that the notion of ‘gentilidade’ employed by the inquisitors was a consequence of the overwhelming judicial activity of the Holy Office of Goa against religious offences originating in local customs, which resulted in singling out one that specifically suggested heresy and apostasy—which they named ‘gentilidade’. This chapter analyses how this identification can be established and whether it represented a specificity in the Portuguese Inquisition by comparing such cases to the Santidade movement in Brazil.
This paper traces the role of political principles in the development and management of justice in the early colonial Philippines by tracking how the Spanish Crown incorporated Philippine natives as vassals, administered justice over them, and acknowledged indigenous nobility as local judges. The first section introduces the origins of the contractual relationship between the Spanish King and Philippine natives. The second section analyzes how the colonial authorities organized the jurisdictions in the Philippines in line with the governor’s authority and Spanish settlement patterns. The third section explores the recognition of native elites as judges resulting from the lobbying for and formation of local customary law by ecclesiastical actors. Due to the lack of testimonies from indigenous actors, this research draws upon imperial legislation and official correspondence, juxtaposing the developments in the archipelago with the Spanish American experience. Having few indigenous testimonies to analyze, previous research has overlooked the role of the native elites in the exercise of justice. This paper proposes that, in line with the ideological background of Spanish legal culture, the Philippine native elites wielded indigenous jurisdiction, which involved the ability to mete out justice among native subjects concerning minor crimes within their communities.
In the normative discourse and legislation of the 17th- and 18th-century colonial Philippines, bridewealth and brideservice were interpreted mainly in terms of commodification vis-à-vis the European notions and practices of dowry and arrhae as well as the freedom of marriage so staunchly defended by the Catholic Church. This chapter discusses two main questions: against the backdrop of ethnographic descriptions of those customs and Castilian and canon law on marriage, first, it examines the conceptual translation of those practices and, second, it traces the ecclesiastical and secular laws promulgated to minimize, if not to eliminate, those customs as well as analyzes their juridical and moral bases. These normative measures were deemed critical to making indigenous marriage adhere more closely to Tridentine doctrine and praxis. The indigenous response to these efforts at transformation, as drawn from normative literature and judicial proceedings, was one of persistence. This historical continuity raises questions of efficacy of the law, on the one hand, and the level of compromise and understanding on the other, based on the recognition of the sociocultural meaning and value of those marriage institutions.
During the first decades of the persecution against Christians and missionaries in early 17th-century Japan, priests and friars faced a new array of moral challenges. In the late 1610s, Japanese authorities forced residents of Nagasaki to sign an oath stating that they would deny shelter to missionaries, meaning that the mere presence of Jesuits and Dominicans in the house of the faithful represented a risk to the lives of their protectors. In addition to other difficulties, this resulted in two consultations being sent to the superiors of the Society of Jesus in Macau and to the rector of the Dominican college in Manila. This chapter analyzes how moral theology and casuistry was used by both orders when discussing the problems faced by Christians in sheltering missionaries. It thus explores the uses of so-called missionary casuistry, a normative practice informed by both written theological authoritative texts, contextual circumstances, and personal experience.
By viewing time as a norm, this chapter explores the ritual dimensions of calendar books mainly produced by European missionaries in late imperial China. First, it revisits the calendrical controversies Chinese Chouren and European missionaries during the late Ming and early Qing dynasties to argue that the calendar book is a manual of rituals containing normative knowledge. Second, it illustrates how the imperial rulers constructed multiple orders, ranging from the natural to the imperial to the everyday, by means of performing rituals as declared in the officially issued calendar books. Third, through the lens of regimes of temporality, it argues that the people, who celebrate rituals according to the rhythms and cycles of the calendar, constitute an identifiable communion of time, especially during China’s encounter with Christianity. Finally, it is in this sense that an alternative understanding of global legal history is proposed as a process of translating normative knowledge between multi-temporalities.
This chapter discusses the transition from a period when multinormativity operated in Goa under Portuguese rule to one in which the attempts to homogenize it became standard. In the first period, the role of local normativities was relevant to the making of the Portuguese imperial order; in the second, in contrast, there was an increasing tendency to exclude these normativities. Through examining the Foral dos usos e costumes dos Gancares e Lavradores da Ilha de Goa […] of 1526, better known as Foral de Mexia, this process is discussed from the perspective of its production, life, and use by the Portuguese agents and local people. The Foral assembled norms, uses, and customs operating in the Goan villages in the third decade of the 16th century. However, its uses over the next decades and centuries bear witness structural changes in the Portuguese Crown’s relationship with Goan territories and people. Contrary to what historiography has assumed, the process of systematic Christianization of Goan society from 1530 onwards implied, at least theoretically, the end of multinormativity that inspired the Foral, due to the gradual submission of Goans to Portuguese law in private and public matters.