A 19th century Swedish revivalist Protestant Rule of Law approach meets with precolonial Bakongo kinship-based administration of justice
Drawing on a unique Swedish archival material, hitherto unavailable to an English language audience, our project turns to history to better understand challenges to law and order in our present time (cf. Arvidsson & McKenna 2020; Craven 2016; Orford 2013; 2020). Our empirical inquiry centers on the present-day fragmented and ‘failed state’ of the Democratic Republic of the Congo (DRC), often described as lacking in terms of the Rule of Law and adequate legal institutions – a space of international legal and humanitarian interventions (Koddenbrock 2013; Sjöstedt 2016b). Western-modelled laws, or an ever-more intensified international humanitarian interventionism, are often understood as solutions to contemporary crises of ‘law and disorder’ (violence, warfare and, civil unrest) in the postcolonial African context (Arvidsson & McKenna 2020; Comaroff & Comaroff 2006a).
Our central question is how historical legal norms, institutions, and judicial practices emerged in the Congolese context through encounters in the precolonial and colonial era (cf. Eslava & Pahuja 2012). The study is based on a close reading of the encounter between Swedish missionaries of the Mission Covenant Church of Sweden (Svenska Missionsförbundet: a Swedish revivalist protestant church) active in lower Congo 1881–1961, and the local traditional social orders and norms at the time (Larsson 2016; 2017; 2018) in the precolonial and colonial setting. As demonstrated by Larsson (2016) the Swedish missionaries explicitly involved themselves in changing local precolonial principles for administration of justices by arranging trails at the mission station and by collaborating with the colonial government.
We focus on encounters between a nominally non-colonial, non-state, and non-legal actor (the Swedish missionaries) and existing African precolonial social and normative orders before and during the Belgian colonization (État indépendant du Congo, and Congo Belge). We aim to unsettle a predominant legal historical account of eradication of older kinship-based normative systems in the DRC that was supplanted with Western legal concepts and imaginations. A more nuanced legal history will explain the causes of – and the possibilities of cures to – the fragmented and war-torn contemporary Congolese justice system with multiple actors and collapsed state. institutions.
Besides national state actors with police enforcements, courts etc., the contemporary justice system in the DRC is governed through customary authorities, traditional religious chiefs, and to some extent, foreign actors involved in justice processes. The state-based legal system is a result of the colonial state’s (and later of the postcolonial state’s) desire to build a Congolese state which aligns with Western Rule of Law objectives (at least in theory), something which has marginalized traditional customary community-based legal systems. These systems have been undermined by factors such as Western-style education, a decline in the dependence of local economy and resources, changes in religion, and weakening of existing social norms as well as by violence and dislocations during colonial and postcolonial times. However, the state-based system is not fully internalised to this day, and its reliance on state organs for enforcement prevents it from functioning in large parts of the country (Cuvelier 2004). Meaning that traditional justice systems have existed parallel to the state-based justice system in DRC, although not without change since the precolonial era, in rural areas which lack access to formal justice (Alie 2010).
Traditional community-based, as well as religious justice systems, remain important in the Congolese legal sphere. In the DRC, as in many African countries, changes brought about by successive regimes have often led to an increase in parallel systems, and rather than increasing coherence has instead led to conflicting rule systems and a breakdown of social order. It is therefore vital to understand the historical context in which the legal system of the DRC has developed in order to understand both its functioning and the differing power dynamics at play (Chirayath 2005). Also, the lack of enforcement power and failure to provide justice and security to its citizens justifies and enables international interventions, which also brings in additional sets of legal and social norms to be incorporated in state-building activities (Koddenbrock 2013). Given this background, our project seeks to develop a substantiated approach to contemporary violence and legal fragmentation in the DRC. It will do so by recovering both older kinship-based social and normative orders as well as Swedish protestant theology and Rule of Law imaginary, to seek to understand how the legal order was negotiated in the precolonial and colonial era.
Purpose and aims of our project: A turn to history for the present
The overall aim of our project is to turn to history to better understand challenges to law and order in our present time, such as several successful research projects in the so-called ‘turn to history’ have recently done (cf., Arvidsson & McKenna 2020; Craven 2016; Orford 2013; 2020). Specifically, we take cue from Anne Orford and her project ‘Civil War, Intervention, and the Transformation of International Law’, in which she engages with the history of the laws of war to recover approaches to violence, disorder, and interventions for contemporary purposes (http://www.lpil.org/). Drawing on her claim that many of the challenges in terms of war, international interventions, and disorder of the present time finds parallels in history – also in terms of legal responses – we aim to develop a substantiated holistic approach to legal fragmentation and state building initiatives in the contemporary DRC by looking to how the contemporary legal (dis)order emerged in the precolonial and colonial era in then BasKongo/ Congo.
Our project is organized in three separate but interrelated Work Packages in which we ask the following questions with the following specific aims:
(WP1) is entitled ‘A pluralism of legal norms, legal actors and jurisdictions in Colonial Congo’. It asks which legal norms, institutions, and judicial practices existed in the precolonial society and what legal norms, institutions, and judicial practices emerged as a result of the colonial state and the Swedish missionaries’ activities in Congo. And how the individuals navigated in a legal pluralism of parallel and competing systems of rights and obligations. Aim: establishing empirical evidence of precolonial legal norms and praxis, and what norms and praxis were introduced through the Swedish missionary activities in the DRC 1881–1961.
(WP2) is entitled ‘Divine authority and a secular Rule of Law: The emergence of jurisprudence in lower Congo through Swedish missionary activities 1881–1961’. It asks about how a jurisprudence of legal subjects, forensic evidence, and judicial procedure developed how divine authority and a secular rule of law were mediated and expressed in procedural and material norms and practices; and how a precolonial kinship-based general jurisprudence can be recovered through the documentation made by the Swedish missionaries. Aim: developing, based on findings co-developed in WP1, a nuanced and evidence-based historical account of the jurisprudence emerging from the encounter between precolonial kinship-based normative systems and social orders and Christian and secular rule of law norms in lower Congo and the Swedish Protestant missionaries within a colonial context.
(WP3) is entitled ‘Past to present: A new approach to legal fragmentation and statebuilding initiatives in the contemporary DRC’. It asks how a substantiated holistic approach to contemporary legal fragmentation and humanitarian initiatives in the DRC can be developed in the light of a reconsidered legal history inclusive of older kinship-based normative systems. Aim: recover possibilities that have previously been overlooked, and to develop a substantiated holistic approach to legal fragmentation and state-building initiatives in the contemporary DRC based on the findings of WP1 and WP2.
The ‘turn to history’ in legal scholarship, legal fragmentation, and state building in the DRC
By placing our study within the ‘turn to history’ in international and global legal studies (Cane & Kritzer 2012; Craven 2016; Orford 2013; 2020), as well as that of social and legal anthropology of Christian missionary work in Africa (Comaroff & Comarrof 1991; 1997; 2018; Larsson 2016; Irvine 1978), we bring the two fields into conversation with scholarship on precolonial Congolese/Bakongo society (Ekholm-Friedman 1991; Janzen 1972; MacGaffey 1983; 1986) and studies of legal fragmentation and state-building in contemporary DRC (Autesserre 2010; Cuvelier 2004). The turn to history in recent legal scholarship has been prompted by a ‘crisis’ in which contemporary law’s response to violence, catastrophes and disorder is deemed inadequate (Arvidsson & McKenna 2020; Orford 2020). In forgotten, marginalized and bypassed histories of law (Lorca 2012; Natarajan et al. 2018; Nesiah 2018), the trajectories of law’s past can reveal how the turmoil of the contemporary world can be better analysed and approached. The historically oriented approach enables the identification of entry points through which a particular kind of violence, order and disorder arrived in history. Within this scholarship, the emergence of legal norms through Christian theology in colonial and imperial contexts is well established (Beard 2007; Kronke 2016; Slotte & Haskell 2020). However, much of the research focus on the Catholic church and central catholic theologians (inter alias Koskenniemi 2011), resulting in the marginalization of ‘minor’ protestant non-state actors as well as precolonial African contributions to African legal history (Geshiere 2006); this is a knowledge-gap our project intends to fill.
A unique Swedish archival material is brought to bear on contemporary issues of law, violence and state building in the DRC
While the social and anthropological history of the Swedish missionaries in the lower Congo has been brought to scholarly attention (Axelsson 1971; Lagergren 1971; Larsson 2016; Lundqvist 2018), the legal character and implications of the missionary activities remain unexplored. The extensive Swedish mission archives (exceeding one kilometers of documents) is a relevant source not only in order to understand the Swedes’ missionary work but it is considered the most comprehensive existing archive offering documentation of precolonial Bakongo society. In particular, the files stored in the Swedish National Archives (RA) include letters, administrative diaries, ethnographic scientific studies on precolonial practices, journal articles and other forms of documentation authored by the Swedish missionaries. The Swedes meticulously described their own and the colonial state’s administration, and the execution of justice in everyday life as well as through organised forms of the implementation of the Rule of Law. Documents describing the precolonial society in regard to administration of justice as well as documents describing the missionaries as rule of law actors will be of interest to this study. The Swedish archives are unique, and their exploration and availing to an English language audience are acutely relevant (Ekholm-Friedman 1991; MacGaffey 1986). Being able to work with one of the best documentations of the early colonial phase in Congo (Janzen 1972), our project moves the research frontier by merely basing our finding on hitherto unexplored sources for contemporary and historical legal analysis.
By availing a historically significant and empirically rich analysis to an international audience – relevant in a Congolese as well as a Swedish and Global legal context – our project is placed at the research frontier in terms of colonial and global legal history and ‘the turn to history’ in legal studies. Turning to a key archive that few lawyers would even find (a missionary archive) or consider relevant in terms of past and present law and order, and by placing nominally ‘minor actors’ (the Swedish missionaries) in the center of analysis, the project combines a ‘turn to history’ in legal studies with the scholarship on law and state-building in the contemporary DRC and beyond. The analysis of this historically important and rich material for contemporary state-building capacity has potential significance in both the short and long term. In particular, our project will contribute to new knowledge of precolonial African legal practices and legacies of protestant – Swedish – theology as part of the emergence of the Rule of Law framework in the DRC.
By studying the administration of justice at the mission-station, the study will provide a historical and theoretical informed understanding of the colonial state (cf. Kalpagam 2000; 2002). In particular, the colonial state’s Rule of Law and actors can be investigated through overlapping roles and responsibilities, jurisdictions and forensic evidence. Similarly, it will innovate the research frontier on legal fragmentation, violence, and state-building through international humanitarian initiatives in contemporary DRC by a focus on the historical emergence of the Rule of Law as key to address disorder in the present.
Preliminary findings and ongoing research
The current project builds on our previous individual and collaborative research. In WP1, drawing on Sjöstedt’s previous research on legal fragmentation in contemporary DRC (Sjöstedt 2016a;b) and Arvidsson’s on the relation between law and Christian theology (Arvidsson 2016). Larsson builds his part of the project (WP1) on his previous research in social anthropology of the Swedish missionary work in lower Congo (Larsson 2016; 2017; 2018). This work has touched upon the legal norms, institutions and judicial practices that emerged through the encounter between precolonial Congolese social and normative orders and the Swedish missionaries with a focus on social impacts. Within this work package, we expect to be able to build on previous findings on law and order in depth.
In WP 2 Arvidsson builds on Larsson’s previous (2016) empirical historiographic evidence, focusing on specific forms of theological structures of subjecthood: the introduction of individualism and individual theological and legal accountability, negotiated legal procedures mixing precolonial African and Swedish imaginaries of order and disorder, and particular forensic evidence (inter alia witchcraft, poison-oracle, and divine testimony). Drawing on Arvidsson’s previous research of the Christian theological figurations of law and legal subjects (Arvidsson 2016; 2017) and the ‘the turn to history’ in contemporary legal scholarship (Arvidsson & McKenna 2020), we expect to be able to demonstrate that the Swedes’ missionary work in the DRC is intimately related to an establishment of a particular Swedish theological flavour to the Rule of Law; that mission archives can provide insight into understanding the introduction of particular (Western) legal principles among the Congolese society in the past as well as in the present; and insight into how different legal principles, jurisdictions, and actors coexists and create a heterodox legal framework (legal plurality) that people had to navigate in then as well as now.
By turning to the present in WP3 Sjöstedt integrates previous research (Arvidsson 2016; Larsson 2016; 2017; 2018), the findings emerging through WP1 and 2, as well as building on her previous findings of legal fragmentation in contemporary DRC (Sjöstedt 2016b). Her intimate knowledge of contemporary Congolese legal landscape (where she has been conducting substantial field studies) – including the current state and scholarship on state-building and international humanitarian initiatives in the DRC – has been pivotal in designing this study. Through her preliminary identification of a lack of knowledge of precolonial Congolese and nonstate Rule of Law legal actors (such as the Swedish missionaries) as well for existing traditional customary systems in the contemporary scholarship and practice of state-building in the DRC we expect to be able to build a strong case in this work package for a new, and historically attuned, substantiated holistic approach to contemporary legal fragmentation and state-building in the DRC.
How we do it, and what we base our analysis on
Following the ‘turn to history’ (Arvidsson & McKenna 2020; Orford 2013; 2020) we conceive of the present as configured through the past, emphasising that what is often perceived of as a ‘crisis’ in terms of international as well as global law and policy, ‘lawlessness’, or ‘disorder’ is more often than not an articulation of how global legal encounters have been established and continue to unfold in our present times. As Walter Benjamin has shown, the law is founded on violence and thus paradoxically invokes both order and disorder (Benjamin 2004 ). In the theoretical foundation to our study we link the ‘turn to history’ to the work done by Comaroff & Comaroff (2006a) in their elaboration of Benjamin’s thesis on law and violence, identifying ‘disorder’ in the contemporary ‘postcolony’ as flowing from how the introduction of law and order took place in the broader colonial context. Understanding the present state of order and disorder – and in particular legal fragmentation in the DRC (Autesserre 2010; Chirayath 2005) – thus necessitates turning. minute attention to how legal concepts emerged and fused with precolonial normative structures of order and kinship in the past.
Furthermore, we take a cue from the early work by Comaroff & Comaroff on British missionaries in South Africa (Comaroff & Comaroff 1986; 1991; 1997), when finding missionaries as central actors in the formation of the Rule of Law and emergence of legal norms in precolonial Africa. When approaching problems inherent to legal fragmentation, violence, and international statebuilding initiatives in contemporary DRC through the ‘turn to history’ scholarship for identifying the structures of precolonial legal history as foundational for the Rule of Law introduced and upheld by the arriving Swedish missionaries, we owe theoretical and methodological orientation to historiographical global legal scholarship (Arvidsson & McKenna 2020; Cane & Kritzer 2012; Craven 2016), and in particular, that of Anne Orford (2013; 2020).
The methodological consideration of norms as emerging from the encounters and acts of individuals and institutions is grounded in the ‘turn to history’ theoretical approach. Our three work packages employ slightly different methodologies, designed to correspond to the needs of mapping the relations between past and present, order and disorder in both legal and anthropological terms. As a result, all three WP:s include components of literature review, legal analysis (legal historiographic, legal mapping), archival methods and source criticism. In WP1 historical anthropological method is key (Boholm 1996; Brettell 2000; Comaroff &Comaroff 1992; Hulme 2006), in WP2 historiographic legal method (Arvidsson & McKenna 2020; Orford 2013; 2020) is employed alongside that of ‘political theology’ (Arvidsson 2016), and WP3 works with the methodological employment of history as an inherent part of contemporary international legal method (Orford 2013; 2020). In developing a new substantiated approach to legal fragmentation and state-building initiatives in the contemporary DRC, a legal mapping (Orford 2012) of the Rule of Law and state-building in the DRC will also be part of the methodological framework.
Archival work is part of this exercise (Stoler 2002). We will study two archives, with an emphasis on the first: (1) the Svenska Missionsförbundets arkiv (RA): The Royal Swedish Archives, Stockholm, Sweden; and (2), the Belgian Colonial Archives: the ‘Africa archive’ in Brussels. The latter archive serves to contextualize the findings of the first. When considering archival material relevant for the study we are in particular looking at actors and institutions present in the archival material: state/sovereign as well as pre-state/pre-sovereign institutions and actors; customary/traditional/local authorities; church actors and institutions; commercial actors and institutions. In finding relevant sources for the analysis we will consider information in a variety of documents including, logbooks from the mission stations, journalistic texts, bulletins, photographs, reports, tax reports, personal diaries, as well as correspondence between Swedish missionaries, between missionaries and the church board in Sweden as well as correspondence between Swedish missionaries and the colonial state. In particular we will seek out information on the infrastructure and procedural as well as material norms of: (i) administration and adjudication of dispute settlements primarily concerning exchange of values (e.g., money, prestige goods), (ii) adjudication of dispute settlements primarily concerning family arrangements such as marriage, birth, and death, (as well as information that might unsettles category 1 and 2 – such as trade with slaves that in the local context was considered both family and money) (iii) adjudication of dispute settlements primarily concerning issues of faith and morals (traditionally seen, in Christendom, as part of the pastoral care and divine jurisdiction, (iv) criminal investigations (including investigations into witchcraft), (v) administration of issues of jurisdiction, including attribution and distribution of sovereign arrangements in the local setting – including the colonial state, the congregation, the households of the missionaries/proselytes, villages or chiefdoms, and the interrelations between these, and (vi) forms of evidence referred to in the co-existing legal systems (i.e. testimonies, oracles).
To carry out the ambitions of this project, we will first need to comprehensively map the actors, legal regimes and practices, as well as overlapping jurisdictions found in the DRC during the time the Swedish missionaries were present, 1881–1961, and up until today, with an emphasis on historical findings emerging from the Swedish missionary archive of Svenska Missionsförbundet, as they relate to state of the art in contemporary DRC. To this end, we will employ a method for analysing the legal significance of historical data Orford simply calls ‘description’, by which she means ‘putting patterns into relief by bringing together, arranging, connecting and systematizing empirical observations’ (Orford 2012) through legal archival historiographical work (Orford 2013; 2020). We link Orford’s method to the historic anthropological method of analysing historical material synchronically in its ethnographic context, ‘bracketing particular questions of historical accuracy and reliability to see the text whole, to gauge the structure of its narrative, and chart the. interplay of its linguistic register and rhetorical modalities’ (Hulme 2006, 326), and we will bring Orford’s emphasis on the persistence of history as part of contemporary law to methodologically bear on our development of a new substantiated approach to legal fragmentation and statebuilding initiatives in the contemporary DRC.
Matilda Arvidsson (University of Gothenburg) acts as head of research (Principal Investigator). She has extensive experience in interdisciplinary research activities and heading research projects in international law and legal history. Arvidsson brings excellence to the project in terms of international law and history, law and gender analysis, jurisprudence and Christianity, as well as legal ethnography. She has recently published an article, co-authored with Miriam Bak McKenna, on ‘the turn to history’ in international and global legal studies (Arvidsson & McKenna 2020). She has been awarded the highly competitive Bernadotte stipend for 2019, from the Swedish Royal Academy of Letters, History and Antiquities, in support of her interdisciplinary and innovative research. In 2017 she was a Kathleen Fitzpatrick Visiting Fellows in professor Anne Orford’s Laureate Program in International Law and History, at the Melbourne Law School, Australia.
Arvidsson’s part of the research project (WP2) focuses on the emergence of jurisprudence and gender of legal subjects, forensic evidence, and judicial procedure and will be conducted in close collaboration with Larsson (WP1) and Sjöstedt (WP3). Specifically, and based on the study of the Swedish archives, she considers the introduction of the gendered individual as a legal construction, the legal construction of individual legal accountability and its function in a pluralist legal framework of existing precolonial Bakongo notions of accountability and social-legal order. Moreover, she traces the emergence of jurisprudence of forensic evidence as the Swedish missionaries developed a practice of pluralistic legal procedural principles of evidence: at times drawing on existing precolonial rules of evidence and at times moral and legal forensic theories of evidence. Focusing on the role of procedural practice Arvidsson will also map the institutional framework established by the Swedes in lower Congo. The analysis is guided by the historically oriented global legal scholarship within the ‘turn to history’.
Simon Larsson (University of Gothenburg) is a research partner and a researcher affiliated with Gothenburg Research Institute (GRI). He contributes to the project through his substantial knowledge of Christian mission in colonial Congo through his previous research, experience in historical methodology and knowledge on colonial and postcolonial theory. Larsson has experience of working in trans-disciplinary research projects – and have substantial experience in popularizing research. He has been awarded the highly competitive Bernadotte stipend for 2020, from the Swedish Royal Academy of Letters, History and Antiquities, in support of his interdisciplinary and innovative research.
Larsson will conduct the substantial part of the data collection through archival work. Furthermore, Larsson will be responsible for project (WP1) focuses on the precolonial social and legal principles as well as the dispute resolutions and court proceedings conducted by the missionaries. Primarily, he will study how these were motivated and performed, and what legal and theological principles and evidence they employed. He will further explore the church discipline as this was understood by the missionaries to foster a sense of right and wrong as well as an individualized responsibility among the Congolese proselytes. Based on the empirical sources, he will trace how individuals – the Swedish missionaries as well as the Congolese proselytes – navigated in a legal pluralism of parallel and competing systems of rights and obligations. His analysis will depart from a legal anthropological perspective, focusing on how legal principles, laws, and sanctions in colonial Congo was entangled in a broader social organization, (religious) beliefs, kinship, and economy, to demonstrate how different legal principles can be negotiated and utilized to certain ends in colonial/postcolonial settings.
Britta Sjöstedt (Lund University) is a research partner. She brings excellence to the project in terms international legal method, empirically based legal research in contemporary DRC, legal fragmentation theory and state-building in the DRC, in fragile states including the DRC and Colombia, the role of external international actors and interventions and legal pluralism.
Through literature studies, legal mapping and archival studies in Brussels her project (WP3) develops a new substantiated approach to contemporary legal fragmentation in the DRC through close collaboration with WP1 and 2, recovering both older kinship-based social and normative orders and its link to Swedish protestant revivalist theology and Rule of Law imaginary. The aim is to complement the analysis informed by historical past by including a contextualized mapping of legal norms and actors in the contemporary justice system in which West-European and local Congolese customary law still meet and adapt. The proposed approach intends to bring the various layers of justice dimensions closer to each other as complementing rather than conflicting.
International partners and partnership organizations: Our international networks
For the purpose of conducting this project we have a liaison with the University of Kinshasa (principle researcher: Dr. José Bazonzi, University of Kinshasa). In concrete terms, this means that parts of our project will be coordinated with an aim to exchange scholarly experience and findings with Congolese scholars based at the University of Kinshasa.
Within our project we work with four external expert reference groups, reflecting the areas of scholarship and practice that our project aims to bring into conversation and to contribute to. These experts are part of the project members’ international networks. They act as reference groups (guaranteeing the excellence of scholarship coming out of the project) and will be invited to attend the project’s workshops (external funding will cover the expenses of the workshops, and the main workshop intended for full participation of the external experts is the final one: workshop 2):
(1) External reference group on scholarship on Congo
Professor Nathalie Tousignant, Université Saint-Louis – Bruxelles, Belgium
Dr. José Bazonzi, University of Kinshasa, DRC
Dr. Aloys Tegerea, Pole Institute, Goma, DRC
(2) Historiographical global legal scholarship external reference group
Professor Anne Orford, Melbourne Law School, Australia
Dr. Luis Eslava, Kent Law School/Universidad de los Andes, Bogotá, Colombia
(3) Missionary history scholarship external reference group
Dr. Karina Hestad Skeie, Førsteamanuensis, Interkulturelle studier, NLA Høgskolen Bergen
Professor Stefan Helgesson, Professor in English Literature, Stockholm University
Dr. Maria Småberg, Dr of History and Missionary studies, Lund University
(4) State building in the DRC external reference group
Professor Kennedy Kihangi Bindu, Université Libre des Pays des Grands Lacs, Goma, DRC
Professor Phoebe Okowa, Queen Mary University of London, United Kingdom
Professor Carsten Stahn, Leiden University, The Netherlands
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