Conklin, William E., “The Legal Culture of Civilisation: Hegel and his Categorization of Indigenous Americans,” in Europe in Its Own Eyes, Europe in the Eyes of the Other, David B MacDonald and Mary-Michelle De Coste (eds), (Waterloo: Wilfred Laurier University Press, 2014), 55-79.
Windsor Law Faculty Author: William E. Conklin
Abstract:
“The Legal Culture of Civilisation: Hegel and his Categorization of Indigenous Americans” in Europe in Its Own Eyes, Europe in the Eyes of the Other , ed by David B MacDonald and Mary-Michelle De Coste (eds), (Waterloo: Wilfred Laurier University Press, 2014), 55-79.
The Notion of ‘civilisation’ in European and post-Enlightenment writings has recently been reassessed. Critics have especially reread the works of Immanuel Kant by highlighting his racial categories. However, this Paper argues that something is missing in this contemporary literature: namely, the role of the European legal culture in the development of a racial and ethnic hierarchy of societies. The clue to this missing element rests in how ‘civilisation’ has been understood. This Paper examines how one of the leading jurists of the 19th and 20th centuries, George W. Hegel (1770-1831), took for granted a sense of a legal culture that excluded indigenous inhabitants of the Americas as legal persons worthy of legal protection.
Such an exclusionary legal culture represented a crucial feature of ‘civilisation’ according to Hegel. This Paper identifies a series of factors which Hegel highlighted as instrumental in constituting a civilised society: Bildung, an ethos, a written legal culture, a self-creative author (the state), territorial knowledge, and a hierarchy of societies. Hegel emphasized the need of jurists to analytically “leap” from a traditional society to a legal culture before the jurist could identify a law. The traditional societies of the Americas, according to Hegel, were considered lawless because they lacked a European sense of a legal culture. Why Hegel characterised traditional communities as lacking a legal culture is then explained. The Paper ends by suggesting that the features of a legal culture that Hegel highlights remain with us today.