Excerpted From: José Argueta Funes, The Civilization Canon: Common Law, Legislation, and the Case of Hawaiian Adoption, 71 UCLA Law Review 128 (January, 2024) (336 Footnotes) (Full Document)

JoséArguetaFunesHow do courts in empire read statutes? In empire, as elsewhere, any theory of statutory interpretation must build upon assumptions about a society's legitimate lawmaking institutions and the relationships among them. In the American context, for instance, “statutory legitimacy is closely linked to representative democracy,” and courts generally aim to read statutes in ways that vindicate this connection between lawmaking and representation. But different contexts implicate different visions of legitimacy. Allusions to representative democracy are difficult to maintain in imperial contexts, particularly because a primary goal of imperial rule is the subordination of people often portrayed as racially inferior. Perhaps for this reason, American legal scholarship has largely ignored how empire might shape statutory interpretation. In addressing this question, this Article contributes to our understanding of legislation--and the common law--as phenomena that should be studied in their particular sociohistorical contexts.

First, some context: the events I recount here took place prior to the 1898 annexation of Hawai'i, when the Hawaiian Kingdom remained an independent polity. This, in turn, requires clarification on my use of the terms “empire” and “colonialism.” Hawaiian chiefs in the midcentury period hoped that wide-ranging reform--creating a constitutional monarchy ruled by written laws--could help fend off foreign threats to Hawaiian sovereignty. The statutes I discuss were enacted by a legislature mostly made up of Hawaiian legislators, but in which non-Hawaiian legislators and other state actors held sway. The kingdom was thus transformed under duress, in the shadow of empire. As a white American judge put it in 1872, the Hawaiian chiefs enacted “a code of laws ... radically at variance with former national customs” because their “foreign friends” had led them to believe that doing so would “induce foreign powers to recognize” Hawaiian sovereignty. Or, as the nineteenth-century Hawaiian intellectual Samuel Mnaikalani Kamakau (1815-1876) explained, foreigners believed “that the Hawaiian group has a government prepared to administer laws like other governments and hence it is that they allow Hawaii to remain independent.” In Sally Engle Merry's arresting formulation, Knaka Maoli (Hawaiians) tried to “purchase independence with the coin of civilization.” The structural conditions imperial powers placed on Hawaiian independence thus warrant thinking about the kingdom's legal transformation as part of a history of empire and colonialism, even as the kingdom remained independent throughout the period I discuss here.

I explore how empire can shape standard tools or principles of statutory interpretation by reconstructing a fraught yet underappreciated debate over the meaning of Hawaiian statutes of adoption and descents in the nineteenth century. This debate arose in a series of cases argued before the Hawaiian Kingdom's Supreme Court, in which adopted children claimed rights to inherit the estates of their adoptive parents. The arguments or set pieces that judges and lawyers relied upon in these cases are familiar to modern American legal scholars--for instance, that the legislature has the power to change the common law. But this familiarity is superficial. Underlying these cases were imperial anxieties fed by the desire to civilize Hawaiians by assimilating them to Anglo-American culture. This led judges and lawyers to move familiar set pieces in statutory interpretation in unexpected ways. In other words, the desire to impose civilization on Knaka Maoli shaped the exercise of statutory interpretation.

The arguments around these cases yield two important insights. The first is the surprising potential of the common law to serve as an aid to adopted children's claims. Lawyers in the kingdom relied on a Hawaiian common law to articulate a “fictional continuity” between the times before and after family reform. Because adoption was a crucial kinship relationship in Hawaiian society before reform, it followed that any statutory silences on adopted children's rights should be read without prejudice against them. These cases thus challenge widespread interpretations of common law as a conservative restraint on progressive statutory change. As one Kanaka Maoli lawyer put it, relying on the common law could avoid putting “too much weight” on foreign law when deciding the meaning of adoption in Hawai'i.

This interpretation of the kingdom's statutes lost, however, and its failure offers a second important insight. Superficially, these cases might appear to stand for the commonplace assumption that the legislature has the power to modify the common law. This assumption reflects the belief that the legislature best represents the people. But, as I show in Part III, the resolution of the Hawaiian adoption cases had nothing to do with the legislature's representative competencies. Instead, the triumph of legislation--that is, the judicial choice to read statutes as overriding and even erasing Hawaiian common law--reflected the imperial demand that law operate as an instrument to impose civilization on the Hawaiian people.

I focus on the legal redefinition of family relations in the inheritance context, thus implicating two areas--property rights and family law--where the imperial concern with distinguishing between “civilized” and “uncivilized” practices was particularly acute. But it is important to keep in mind that civilization was an arbitrary and elusive concept. Indeed, one reason why the work of empire in shaping legal argument becomes legible in these cases is because the lawyers and judges who argued them disagreed over whether adoption was a civilized practice or a vestige of Hawaiian ideas about family relationships. As Gail Bederman has argued, “civilization” was “protean in its applications,” such that “the interesting thing about 'civilization’ is not what was meant by the term, but the multiple ways it was used to legitimize different sorts of claims to power.” Lawyers and judges invoked civilization in these cases to preclude bringing Hawaiian customs, beliefs, and worldviews into the process of interpreting the kingdom's laws. This move reinforced the structural constraints on Hawaiian independence by casting Hawaiian proclivities as incompatible with the demands of civilization, thus creating a need for “foreign friends” to guide Hawaiians toward civilization.

It is worth emphasizing, however, that the idea that legislation could or should be used to change a people's custom held a tenuous place in nineteenth-century Anglo-American legal thought. Eighteenth-century jurists thought that some realms of social life could not be reformed through statutes, an idea that resonated with nineteenth-century American legal thinkers. Indeed, the conviction that new laws could easily change Hawaiian conceptions of family represents a stark contrast to the difficulties with reforming family law in nineteenth-century America. These different trajectories were a product of empire, reflecting different attitudes toward American and Hawaiian common law. In the United States, judges beholden to the past often insisted that legislative innovations in family law must be harmonized with American customs as incorporated in the common law. In Hawai'i, Anglo-American lawyers similarly framed Hawaiian customs predating reform as a common law, and argued that it could inform the meaning of the kingdom's statutes. In these adoption cases, however, the Hawaiian Supreme Court came to see Kanaka Maoli customs as obstacles to the project of civilization. Rather than seeing customs as a common law that could inform statutory interpretation, they theorized statutes as tools to uproot Hawaiian practices and worldviews, implying a view of Hawaiians as racialized legal subjects who had to be changed before their worldviews found expression in legislation. There was a biting irony here: to impose civilization on Hawaiians, law had to operate in ways that contravened assumptions about custom, common law, and legislation in America.

In surfacing the role that the civilizational mission played in these arguments, this Article contributes to a growing body of scholarship on the development of American law in empire while also inviting connections with studies of other imperial regimes. Some scholars have argued that we should think of empire as constitutive of, rather than peripheral to, American law. I add to this literature an example not only of how laws have been enacted to carry out imperial policies, but of how reasoning about law itself has been shaped by imperial conditions. This insight also suggests connections with studies of other imperial contexts. A particularly fruitful point of comparison exists between these Hawaiian cases and studies on the development of liberalism in European empires. Liberalism's claims to universality were deeply challenged by encounters with, and rule over, societies beyond Europe. Ideas about civilization, its absence, and what would be required to obtain it, became instrumental in justifying the “radically different political standards for different people implied by imperialism.” Thus a supporter of liberal democracy like John Stuart Mill could nonetheless advocate for “educating Indians but not yet deeming them worthy of autonomy.” In other words, the way in which lawyers and judges imagined Knaka Maoli as subjects who could and should be changed--and the justifications for bringing this change about through law--resonated far beyond Hawai'i.

This Article proceeds in three Parts. Part I provides the background to the Hawaiian adoption cases. Over the course of the nineteenth century, adoption remained a stigmatized form of kinship in America, while in Hawai'i it remained a crucial and flexible form of kinship both before and after the midcentury reforms. I use adoption to frame a question about the kingdom's midcentury transformation: when the Hawaiian legislature enacted statutes regulating adoption and descents, was it importing an American understanding of that relationship or rearticulating Hawaiian practices?

Part II draws on judicial opinions, private correspondence, probate records, court testimony, and lawyers' archival papers to explore two conflicting answers to this question. In one reading, the statutes preserved what they did not explicitly eliminate, leaving in place the centrality of adoption in Hawaiian society. In another reading, the statutes created new family relationships distinct from pre- existing Hawaiian cultural practices. The Hawaiian Supreme Court largely adhered to the latter reading.

Part III analyzes what these cases tell us about the exercise of statutory interpretation. The two possible readings of these statutes recall Karl Llewellyn's challenge to the view that canons of statutory interpretation “provide neutral, predictable legal rules.” Llewellyn argued that for every “thrust”--read the statutes narrowly to preserve Hawaiian worldviews-- there was a “parry”--read the statute broadly to override existing practices. Canons might provide interpretive rules, but the judge must still choose a rule. In the cases I reconstruct here, empire informed what rule judges chose: pick the reading of the statute that advances the goal of civilizing Hawaiians. The pursuit of civilization thus operated to curtail the kinds of materials judges could import into the process of interpretation, functioning as something of a canon of statutory construction. For instance, the most ardent opponent of adopted children's inheritance rights felt “compelled to deny the power of this Court” to rely on “native ideas and usages which prevailed before the establishment of the present system of government.” He invoked civilization--embodied in the laws imported from abroad and legible to imperial powers--as a limit on judicial power to interpret legislation, which is precisely what some advocates of the canons claim they are designed to do. This way of reading statutes also implied a theory of how to bring about legitimate legal change, one which conceived of Knaka Maoli as racialized legal subjects whose legal traditions were not worthy of preservation and who had to be changed in the name of civilization.

[. . .]

Let us return to the Hawaiian chiefs and their responses to the kingdom's nineteenth-century crises. Scholars agree that one of their responses--perhaps the most distinctive one--was to adopt Anglo-American law. The chiefs created an Anglo-American legal system--one that borrowed some aspects of Hawaiian governance, but which cohered into a set of institutions very similar to those of an American jurisdiction. Scholars disagree about how best to understand the rise of this legal system, but they tend to agree that what the chiefs imported and what they created was essentially Anglo-American law.

The Hawaiian adoption cases call this agreement into question. Specifically, these cases suggest a critical difference in judicial attitudes toward the common law between Hawai'i and the United States. This difference, in turn, had important ramifications for the meaning of statutes. The common law was, after all, “an integral mode of governance and public discourse” in nineteenth-century America. It was not only a body of judge-made law. It was also a habit of mind that allowed legal actors to organize social phenomena in ways that imbued them with legal implications: for instance, by portraying adoption as a legislative fiction that threatened to rupture a picture of the family inherited from ancient times. Indeed, so crucial was the common law in American governance and legal thought that Chief Justice Allen would simply assume there to be a distinctly Hawaiian common law, and the Kanaka Maoli lawyer Keohokalole would go so far as to coin a Hawaiian term for the common law--ke knwai mana'o--to anchor his arguments.

As I have shown, Hawaiian common law was defeated by legislation in a way that seems familiar today. But that familiarity is misleading because it conceals the role that empire played in structuring the interpretation of statutes. The statutory elimination of Hawaiian customs and traditions had nothing to do with the representative values Americans generally assign to legislation. It was, instead, a step toward remaking Hawaiian society to comport with the demands of civilization. The refusal to treat Hawaiian customs as a common law--and thus as a legislative backdrop--in these adoption cases thus points to a crucial way in which Hawaiian law differed significantly from Anglo-American law. This difference was rooted in the demands of empire.

At the same time, it would be a mistake to think that the idea of civilization only influenced the interpretation of law in Hawai'i. Worldwide, liberal justifications of empire invoked the concept of civilization to explain why European colonizers could treat colonized subjects in ways that offended liberalism's claims to universality. And the colonial conditions of nineteenth century Hawai'i revealed civilizational anxieties that were ubiquitous in America as well. In the aftermath of the American Revolution, jurists like Chancellor James Kent were anxious to articulate an American common law that recognized American difference while preserving America's connection to European civilization. Ideas about civilization were also embedded in the concept of “liberty” that organized much of late-nineteenth-century American jurisprudence. As Robert Gordon has argued, this form of liberty presupposed an “individual character” that was “a complex social product, the outcome of a long, slow process of historical evolution toward a civilized society peopled with civilized individuals--of inherited traits, inherited institutions, and a thick web of supporting social arrangements and institutions.” Sometimes, the project of imposing civilization invited reading statutory ambiguity against people deemed to lack the requisite character, as in the Hawaiian case. But the idea of civilization could also operate in other ways. Military command, for example, could interpret the laws of war in ways that justified massacring Indian women and children but not white Confederate women and children, for the latter belonged to civilization while the former stood outside it. Ideas about civilization also operated to guard and shape the polity. Federal administrators could interpret federal statutes to deny American citizenship to foreign-born children on the theory that marriage was “an institution of our civilization,” such that birth to parents married under the laws of “uncivilized lands like Samoa” could not support a claim to citizenship.

Indeed, wherever marriage came up, civilization and its strictures were not far away. Recall that, for Hartwell, adoption invited the specter of polygamy, and thus threatened civilization. This same anxiety would reach the U.S. Supreme Court a few years later. When Mormons tried to argue that a federal prohibition against polygamy turned them into “mere colonists” in a way that the U.S. Constitution would not allow, they found a Supreme Court ready to read the Constitution through the lens of “civilization.” Marriage, the Court reasoned, provided “the principles on which the government of the people ... rests,” and the trouble with polygamy was that it led “to the patriarchal principle, ... which, when applied to large communities, fetters the people in stationary despotism.” With democracy and civilization at stake, the U.S. Congress could not be denied the power to enact prohibitions against polygamy in the territories.

All these legal interpreters may not have agreed on what, precisely, civilization required, but it is undeniable that they converged around white supremacy and gender hierarchies. Lawyers, judges, legislators, and administrators, in other words, were not isolated from the powerful social and cultural ideologies used to naturalize domination and power. They brought those ideologies into the interpretation of law. The Hawaiian history sketched here allows us to see this more clearly, to understand how lawyers and judges could articulate a relationship between legislation and common law to wield law as a civilizing instrument. But Hawai'i only reveals a deeper truth--that we cannot fully understand legal interpretation without accounting for how civilizational anxieties have shaped how legal actors understand law itself.

Assistant Professor of Law, UC Berkeley School of Law.