Imperial Law's Ambiguity
by Matthias Goldmann
Panel: Law versus Justice? An Intercultural Approach to the Problem of European Collections of Colonial Provenance Wednesday, 23 June, 11:15 a.m. - 12:45 p.m. (CET)
In the course of the past decades, numerous states and communities in the Global South have raised claims for restitution and reparation against former imperial powers. According to a popular view, many of these claims are ill-founded from a legal perspective. According to the principle of intertemporal law, reference is to be made to the law of the imperial past, and it is believed that reparation and restitution claims find no basis in it. This conventional view of imperial law has been criticized, notably by critical theories of law, for entrenching imperial injustice. Surprisingly though, it has rarely been seriously questioned. Many advocates of the conventional view and many of their critics consider imperial law as a monolithic, unequivocal, and impervious means for the defense of imperial interests.
This paper challenges both views. On the basis of insights from postcolonial theory, it argues that imperial law of the 19th century is fundamentally ambiguous. In that sense, imperial law reflects the contradictions pervading imperial projects and the irritations caused by imperial encounters. Imperial law served as a means to justify an imperial expansion that was met with different feelings from an increasingly democratic domestic audience, ranging from enthusiastic endorsement, via benign ignorance, to, although rarely, outright skepticism. It also had to navigate complex patterns of diverging interests in the territories subject to European expansion, taking into account the constraints imposed by limited resources.
The conventional view eclipses the resulting ambiguity by oscillating between the normative and the factual, by taking the brutality of imperial power as evidence of legality. Far from exculpating imperial law from its instrumental role in facilitating the European expansion, the paper calls for recognizing the ambiguity of imperial law and for investigating the fuzziness, gaps, and contradictions in legal arguments establishing title to imperial artefacts in Western states, or the rejection of restitution claims. Drawing on a few examples of imperial artefacts situated in Germany, it demonstrates how the mentioned ambiguities undermine legal title.
This has repercussions for the role assigned to law in debates and negotiations about the restitution of imperial artefacts. It raises the question whether legal provenance research might help to rebalance structurally asymmetric negotiations.
Matthias Goldmann is Junior Professor of Public International Law and Financial Law at Goethe University Frankfurt am Main, Senior Research Affiliate at the Max Planck Institute for Comparative Public Law and International Law, Associate Member of the Cluster of Excellence "Formation of Normative Orders", Goethe University Frankfurt am Main, and Co-Editor-in-Chief, German Law Journal.
Since 2018: Senior Research Fellow at the Institute (part time) (post-doc project)
Since 2016: Junior Professor of International Public Law and Financial Law at Goethe University Frankfurt (full time). On parental leave for 6 months in 2017
2016: Visiting fellow, Law Department, London School of Economcis and Political Science (6 months)
2013-2016: Coordinator of the research group "The Exercise of International Public Authority", Cluster of Excellence "Formation of Normative Orders", Goethe University Frankfurt
2013: Dr. iur., Heidelberg University, Faculty of Law (thesis)
2011-2016: Senior Research Fellow at the Institute
2011: New York University School of Law, LL.M. in Legal Theory (Hans Kelsen Scholar)
2010: Second State Exam in Law (Land of Hesse)
2008-2009: Visiting fellowships at the European University Institute, Florence, and the Lauterpacht Centre for International Law, Cambridge University
2004-2011: Research Fellow at the Max Planck Institute (with Armin von Bogdandy)
2004: Legal Intern at the International Criminal Tribunal for Rwanda (Arusha, Tanzania)
2004: First State Exam in Law (Free State of Bavaria); Diploma in European Law (University of Würzburg)
1998-2004: Studies in Law in Würzburg (Germany) and Fribourg (Switzerland)
Goethe-Universität Frankfurt am Main
Max Planck Institute for Comparative Public Law and International Law