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Shells and Order: Questionnaires on Indigenous Law in German New Guinea

Author:

Anna Echterhölter

University of Vienna, AT
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Abstract

This article examines the short-lived colony of German New Guinea (1884–1914) to reflect on divergent frames of bureaucratic and academic knowledge production. Scholars of law at German universities from this period showed an avid interest in the legal customs of people presumed to be colonized, while readily admitting that bureaucrats knew more about this important emerging field and knew it first. In order to understand the unfolding dynamic of a crucial component of colonial rule, this article examines indigenous law as an entangled epistemic object. It traces specific formats of Western writing about indigenous law through different settings, ranging from questions asked in the field to debates in parliament. The argument is based on two main types of quantified, data-based, and standardized material: (1) a statistical survey on indigenous law, and (2) the shell money diwara, which was used to levy fines and punishments. The article shows how both the standardized rules and the medium of exchange were crucial to enforcing order. It demonstrates that liberal colonial politics from 1907 onwards had to be based on existing systems of license and valuation. Knowledge of local customs and institutions was indispensable to govern by means of forces already at play in German New Guinea. Slowly, the German bureaucracy translated these local customs into its own metrics. This article is a contribution to the history of bureaucratic knowledge, drawing on the history of law, colonial statistics, and the political epistemology of quantification.

 

This article is part of a special issue entitled “Histories of Bureaucratic Knowledge,” edited by Sebastian Felten and Christine von Oertzen.

How to Cite: Echterhölter, Anna. 2020. “Shells and Order: Questionnaires on Indigenous Law in German New Guinea”. Journal for the History of Knowledge 1 (1): 17. DOI: http://doi.org/10.5334/jhk.21
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  Published on 17 Dec 2020
 Accepted on 05 Aug 2020            Submitted on 15 Apr 2020

In 1900, Hans Blum portrayed the colonial administration of the New Guinea Company with the clarity and mordacity of a disillusioned former employee. He was arguably one of the colony’s first bureaucrats and hence experienced its local impact and took pride in the publication of the first statistical numbers on the region. To his mind, the young German government in the Pacific was characterized by an organized form of ignorance, which created a divide between bureaucratic procedures and the behavior of the people. He illustrated this rift, which he considered to be deplorable, by recounting the following paraphrased anecdote:

A Tamul boy from Bogadjim in Astrolabe Bay on the northern coast of today’s Papua New Guinea was caught stealing a piece of cloth and reported to the local colonial government. A newly appointed German judge issued an arrest warrant in his best “officialese” (Kanzleistil). A Javanese bailiff delivered the warrant to the village. (Blum depicted him as slightly amused in anticipation of the effects of his mission.) When the villagers received the paper they could not read, with seals they could not decipher, mandating laws they did not know, it caused a considerable stir. But it did not prompt them to hand over the supposed thief. On the contrary, the entire community of Bogadjim packed up and abandoned the village by nighttime.1

Blum’s story of miscommunication points to a lack of knowledge about ceremonial gestures, communicative formats, and rules that both the colonized and the colonizers recognized as valid authority. German bureaucrats had been perfecting their official procedures since the Middle Ages, relying on seals, formulae, stamps, and titles, all of which became prerequisites for the non-charismatic and non-traditional power of bureaucracy. Standardized formats were invested with the authority to govern.2 However, these formats failed to produce the desired effects among the inhabitants of German New Guinea. How, in this situation, did German bureaucrats create a space in which they could gain leverage over the inhabitants of the colony?

Blum proposed colonial statistics as a remedy. And, indeed, the German state carried out a variety of data collections, among them an unusual attempt to survey indigenous law using empirical methods. This followed a series of parallel developments. As early as the Congo Conference in 1884, Reich Chancellor Bismarck had requested reports on existing legal practices implemented by other colonial powers from German representatives abroad. The subsequent draft of a German Protectorate Law (Schutzgebietsgesetz) turned administrative officials into the first practitioners of comparative law in Germany.3 Around 1900, comparisons began to include local understandings of unwritten legal customs obtained through surveys and questionnaires. Hence, bureaucrats generated and applied knowledge of international and indigenous law, while academic scholars at German universities only had limited access to this important material on what would today be considered common law of the Pacific.4 For once, bureaucrats were recognized to be at the forefront of knowledge making.

For these and other reasons, the field of indigenous law that emerged over the course of the nineteenth century can benefit from the perspective of the history of knowledge. A history of science approach would focus mainly on academics and the impact of their publications, and hence cover a mere fraction of the knowledge of legal customs as they were practiced in the field, shaped by informants, and influenced by missionaries and colonial administrators. In addition to adopting this wider perspective, this article examines indigenous law as an entangled object.5 This approach focuses on one point of comparison to enable the investigation of diverging frameworks of meaning for the different parties involved. Whereas earlier entangled histories focused on material objects, more recent studies, such as those by Thomas Duve and Jacob Zollmann, have introduced the entangled approach to the history of law.6 From this perspective, rules take the place of material objects as a point of comparison, but the aim is still to see all sides, to investigate the divergent meanings in which a rule may have been embedded. Entangled approaches can have shortcomings, however. With their particular concern for “the other side” in colonial encounters, they risk glossing violent oppression as benign co-production. They also easily run into gaps of documentation when all the divergent meanings cannot be reconstructed because of missing archives and language problems. But if these risks can be contained in a particular field, entangled approaches may be productive for the history of knowledge more generally.

The task at hand in this article is to delineate the different epistemological horizons of legal scholars and colonial bureaucrats. A focus on divergent frames of meaning can also be used to examine other types of non-academic knowledge. It can facilitate the inclusion of weak forms of knowledge that were never written down as well as encourage us to reflect on knowledge hierarchies and to recognize the invisible boundary work that immunized or politicized a particular field of knowledge at a particular time.7

Focusing on bureaucratic knowledge production and taking legal customs as an entangled epistemic object, the sections of this essay move through five frames of reference: (1) Indigenous law was the reason for installing indigenous judges as members of the Prussian colonial bureaucracy; (2) it was the object of a vast bureaucratic questionnaire-based survey; (3) it provided the impulse to form an academic discipline at German faculties of law (namely, comparative law, which at the time included legal anthropology); (4) it prompted a heated debate in the German Parliament (Reichstag); and (5) it was the reason German bureaucrats in the western Pacific appropriated yet another Melanesian institution, the shell money diwara, which was used to enforce the law (Figures 2, 3, 4). Diwara and statistical questionnaires are the two types of material that are central to my investigation throughout these frames of reference. Both are quantified, data-based, and standardized. Diwara was used to express the value of fines during colonial rule. But in pre-colonial times, it had already been connected to punishment, as the currency had served as reparation payment to relatives in the event a person was hurt, harmed, or killed.8 Diwara and the questionnaires are thus revealing of the strategies of the German colonial administration. But the materials are not entirely silent about the colonized people either. Firstly, the responses to the questionnaires are the best surviving approximation of pre-colonial legal institutions according to contemporary anthropologists of law.9 Secondly, natural currencies must be trusted, used, and accepted by the people; they cannot be installed and prescribed by the colonizers. This co-constitution of rules through colonial administration and indigenous institutions, however asymmetrical, will be crucial in the discussion to follow.

Analyzing indigenous law as an entangled epistemic object requires us to draw on several fields. One crucial body of research that informs my questions is the history of quantification and statistics. As recent work on data practices has shown, quantified formats constitute the languages of administration.10 Statistics enhance the legibility of the citizenry. This is especially true in colonial settings, where vital statistics, cadastral surveying, anthropometric gauging, and metric and monetary standardization played a crucial, and sometimes imaginary, part in establishing any newly instituted administrative rule.11 A second relevant area of research is the history of law, particularly in view of recent discussions on legal pluralism.12 Historians of law have examined both the formats of “mixed law” (gemischtes Recht) in German New Guinea and the survey on indigenous law.13 But with the notable exception of Daniel Midena’s work, there has been no attempt at a detailed reading of the contents of the surviving questionnaires.14 Also, the decisive contribution of bureaucrats to the formation of this European discourse on indigenous law has never before been acknowledged. My analysis is further informed by perspectives that go beyond these administrative and legal domains, such as the history of scientific expeditions and indigenous knowledge making in the Pacific.15 Finally, this essay complements research into types of colonial violence and argues that alongside missionary and military influences, there was a bureaucratic way of manipulating, and ultimately destroying, existing institutions. Chandra Mukerji has pointed to the ability of bureaucracies to build infrastructures and to mobilize the natural world in an attempt to exercise impersonal forms of government. She calls this “logistical power.”16 Extending this argument, I suggest that the public space was almost imperceptibly restructured in German New Guinea through two highly standardized realms, namely, law and money. Manipulating these two interrelated indigenous institutions was a privilege of the state and probably one of the most effective applications of administrative knowing. The focus of this article is on data-related, rule-based, and serialized types of information, which, akin to a physical infrastructure, provided points of orientation for behavior in the colony. Hence, my perspective on the history of bureaucratic knowledge accentuates procedures of standardization and data collection to contribute to the political epistemology of quantification.

Ruling by Unknown Rules: The Luluai System of Administration

The political entity of German New Guinea was an artificial construct covering a vast region famous for the heterogeneity of its economic institutions, political systems, and languages. This complicated any attempt to establish a new bureaucracy after 1884. While indigenous laws were encountered in all seven German colonies, two of them stand out for the systematic use of foreign rules. Togoland in West Africa endeavored to codify indigenous legal customs in a handbook for German regional officials.17 The approach in German New Guinea was different. Here the luluai system of administration was at times established and at times co-opted through the inclusion of indigenous legal experts in the bureaucracy.

Due to thirty years of German presence in the region, the mountain ranges and coastlines in the western Pacific carried the names of German potentates, their relatives, and explorers. The north east mainland of today’s Papua New Guinea was known as Kaiser-Wilhelmsland. The waters of the Kaiserin-Augusta River poured downhill towards the Bismarck Sea. Off the coast lay the Bismarck Archipelago with its large volcanic islands: New Hannover, New Lauenburg, New Mecklenburg, and New Pomerania. The latter extended to the Gazelle Peninsula, christened after the German warship SMS Gazelle. The peninsula became the main seat of the German administration after the malaria-ridden harbor town of Finschhafen had to be abandoned in 1891. The coasts of the Gazelle Peninsula were inhabited by a group of people who lived in settlements that were associated with each other and shared networks of trade, to whom the ethnicizing name “Tolai” was given only later.18 Other parts of the colony could only be reached by sailing for several days across the open sea, namely, the scattered Micronesian islands of Yap and the Mariana, Caroline, and Marshall Islands. The political entity of German New Guinea thus comprised a mere fraction of today’s Papua New Guinea but extended to numerous Pacific islands in Melanesia and Micronesia.

By the mid-nineteenth century, Hanseatic trading companies had appropriated this part of the Pacific. They had established a dense web of trading posts and plantations and taken control of financial services. This purely economic influence in the Pacific existed before any formal claims to sovereignty over the area were asserted, and it predated the recognized history of German colonialism in the Pacific. From 1884/85–1898/99, the region was administered by the chartered New Guinea Company (Neuguinea-Compagnie). In what one might describe as an ideal-typical bureau-cracy, the area was governed from a single desk in a private villa in Berlin where the banker Adolph von Hansemann completed all associated paperwork before breakfast. For the rest of the day, he was occupied by his work in a leading bank, or so his critics contended. In Blum’s view, this resulted in “an incessant mindboggling array of order-counterorder-disorder” between Berlin and Finschhafen.19

In 1898/99, the German state bought back its sovereign rights from the chartered company and subsequently ruled the area until its annexation by the British during the early stages of World War I. The second annual report issued by this still rudimentary administration mentions a remarkable addition to its list of employees:

In order to facilitate the administration of justice, chiefs [luluai] have been appointed as magistrates in a considerable number of localities in the Gazelle Peninsula and in the New Lauenburg Group. … These chiefs have been given authority to decide minor legal disputes.20

Instead of acquiring knowledge of indigenous law, the administration simply availed itself of indigenous experts who administered justice according to local understanding in the name of the German emperor. The term “administrative chiefs” (Regierungshäuptlinge) became common for these magistrates, and the governor, Albert Hahl, even spoke of the “native administration” (Eingeborenenverwaltung).21

In contemporary ethnography, Melanesia is renowned for its highly competitive political cultures in which authority lay with “big men.” These ruling figures constantly had to assert their power through demonstrations of their strength, cunning, or wealth.22 Faced with these fickle political structures, German colonial officers sometimes simply appointed the most cooperative individuals. These chiefs were given a staff and a police cap to show that authority was vested in them by the colonial state; later on they were issued badges (Figure 1). As one report noted: “Considerable difficulty was experienced in finding suitable persons whose standing in their community was sufficiently high to guarantee their authority in the exercise of their magisterial powers.”23 In some villages Hahl took the honor of being appointed as luluai upon himself.

Figure 1 

The luluai system was considered a huge success by the colonizers, and, as such, it remained intact after the British/Australian administration took over the colony from Germany in 1914. The luluai badges issued by the Australian colonial government show traces of frequent use, which testify to the meaning attached to them well into this later period. Worn surfaces, punched numbers on the back, and additional drilled holes attest to extensive use. Mira, From Cowrie to Kina, 162.

Figure 2 

The broken line indicates the large area in which the shell money diwara (Muschelscheibchengeld) was in use around 1930. Pictograms indicate more locally used media of exchange like teeth, woven mats, stone disks, or feathers. Petri, “Die Geldformen,” 191.

Figure 3 

Diwara or tambu was just one variety among many natural currencies in a region in which one village’s money was considered jewelry by the next. This image shows different types of shell money from German New Guinea according to explorer Otto Finsch. Items 1-11, 19, 35 depict the species used to produce shell money. Items 1 & 2 show the species Nassa camelus (different ages), used for diwara in Blanche-Bucht, Neu-Pommern, and Deutsch-Neuguinea. Items 3, 4, 5 are Nassa bimaculosa (old, younger, young), used in the South Seas; Item 6 is Nassa callosa; and item 7, Nassa callospira. Items 15-60 depict the finished product. For example: item 43 is “tapsoka,” the best variety of shell money in Neu-Mecklenburg; items 44, 45 are “arangit,” a second variety of shell money in Neu-Mecklenburg; item 46 is “kokonon luluai,” the cheapest variety used in Nusa and Neu-Mecklenburg. The paintings are by Anna Strohmeyer from Finsch, Südseearbeiten, plate I, figs. 1–66.

Figure 4 

Various examples of shell money and jewelry from German New Guinea. The labels show intensive classification and correspond to Finsch, Südseearbeiten, 1914. Collection Otto Finsch, Weltmuseum Wien/Austria (Nos. 8–12, 68, 69, 149).

Prior to colonization, the function of luluai existed, but neither the position nor the title appears to have been stable across the region. Richard Thurnwald, a lawyer and early proponent of field ethnography, provided additional details about this indigenous institution. A luluai, he claimed, was not necessarily a political leader but often served as a banker for the extended family (Sippenbankier).24 Such men commanded considerable private funds, he noted, but they were also supposed to store value, expressed in shell money, for the community. The luluai’s function as the keeper of wealth was only possible if he had “freed himself of the duty to deliver the latter to the family head (a gala).”25 While the head of a family demanded tribute and provided shell money for marriages and war, a luluai did not partake in this circulation of wealth. Instead, Thurnwald argued, his authority in the community enabled him to obtain private property and give protection to other family members. Moreover, in another part of the Gazelle Peninsula, Thurnwald identified three types of leaders: the rich chief (a gala), the banker (uviana), and the luluai, a warrior who could, but did not necessarily have to, be the eldest family member. Even foreigners could sometimes become luluai if they had acquired prestige and wore splendid decorations.26 Based on Thurnwald’s account, then, we can say that the luluai was a powerful person with exceptionally weak ties to the community; and that in appointing local magistrates, the German administration appears to have chosen not the political leaders of the people but the most detached, individualistic, and wealthy men in a community.

Although the luluai system drew upon these existing local institutions, Hahl, who had come to the colony as a German judge in 1896, considered himself to be its principal architect. This claim notwithstanding, it is more than likely that his ideas about governance were prompted by his indigenous wife as well as Pero ToKinkin, a close friend and advisor who was a prominent Tolai.27 Moreover, similarities to the British tradition of “indirect rule” are undeniable.28

The “native administration,” on which the Prussian bureaucracy in the region came to rely heavily, had to align two legal systems: “The cases are decided in accordance with native law, insofar as this is not incompatible with German law.”29 In effect, however, the luluai system of administration created two separate spheres of law. The luluai’s jurisdiction did not extend to white Europeans, and indigenous inhabitants had no access to European law. Just as the introduction of taxes affected gender relations because it was levied per male head, the inclusion of indigenous law had an unsavory flipside.30 The government reports used the term mixed law (gemischtes Recht) in these circumstances. European citizens of color reveal the mechanics of this racist regime: is a black wife of a white British citizen who married prior to the inauguration of the German colony to be treated as “white”?31 This example underscores the problems of any legal pluralism that categorizes people into different systems of law. The benefits of pluralistic legal spaces emerge only when an element of choice also exists for citizens, not just for judges.32

While mixed law was detrimental to both legal cultures, the luluai system had advantages for the colonial bureaucracy. It could bridge the gap between the imposed colonial order and local custom, and it could help to remedy the rift noted above between the futile paper practices of bureaucrats and the conduct of the colonized. The appointment of native bureaucrats resulted in the importation of knowledge about indigenous law into the colonial administration. To further explore this knowledge transfer, I will now discuss a large-scale bureaucratic research project on indigenous law.

Chinese Whispers: Bureaucratic Data Collection in the Field

Georg Fritz had just arrived on Ponape (today known as Pohnpei) when he received a letter from the colonial office in Berlin. He was an experienced local official (Bezirksamtmann) with a long service record on other islands in this western most region of the German colony. The letter contained questions about indigenous law, and he was asked to fill in the blanks.33 According to his own testimony, he simply did not know what answers to give so soon after his arrival. Instead, the rules he reported back to Berlin were volunteered by the colonial physician Max Girschner, who most likely had conveyed to Fritz what he had learned from friends and informants among the islanders. The results of the questionnaire on indigenous law in Ponape thus resembled a game of Chinese Whispers. It was one of four hundred such questionnaires that the colonial office sent to bureaucrats in the remotest areas of the German administration, and most of them provoked similar problems of translation and understanding.

Yet, the emphasis with which Fritz transmitted the requested knowledge concerning legal matters and customs, such as inheritance, land tenure, or penal law, is of interest. Since his answers have been preserved, we know that he outright denied the validity of the procedure.34 He criticized the “anemic” tone of the questions and warned strongly against any attempt to codify a general law based on the material provided.35 Nowhere within the survey did Fritz find space to paint a picture of the complex ecology of disaster that had struck the island in recent years, so he described it in a preface to his answers with a sense of urgency. The islands themselves were slowly sinking into the ocean. They were periodically hit by typhoons that not only claimed many lives but also destroyed a considerable amount of the vegetation for years to come. But the most dramatic decay on Ponape described by Fritz concerned the realm of law itself.36 Laws and customs were losing their binding character, owing to colonization and the new norms that came with it. Answers to the questionnaire from other parts of the German colonial empire echoed this diagnosis. Crucially, however, Fritz added that he had not discerned the emergence of new rules, be they German, hybrid, or indigenous. Nothing had replaced the old order. Thus, the social fiber of the island society of Ponape, he argued, had been and remained shattered, and for this reason he objected against any form of codification of the old laws on the basis of the survey.

Fritz’s strong resistance can be read as the anger of an experienced colonial patriarch. I argue it is also telling in other ways. His protest reveals a bureaucratic orientation towards practical goals. From this vantage point, any collection of theoretical rules on paper that had little or no effect in practice was futile. In addition, this type of encyclopedic knowledge production might further distract the colonial office in Berlin from taking responsibility for a region experiencing rapid deterioration. The very institution responsible for averting a general decline should not embark on theoretical knowledge production, Fritz was suggesting, but should intervene. His answers are highly significant for the history of bureaucratic knowledge since his opposition discloses two divergent frames in which indigenous law could be judged and handled. He feared a decoupling and further standardization of rules devoid of practical meaning and local impact.

One fact that supports my argument is that Fritz was never dismissive of local traditions in general. Rather, his publications on the region reveal the inclinations of an antiquarian.37 His desire to preserve and protect customs make his approach a prime example of what George Steinmetz has described as “salvage colonialism.”38 Similar to the ethnographic period of “salvage ethnography,” which led to the amassing of enormous museum collections, this protective kind of administration spoke up for the customs it weakened.

The suspicion that Fritz supported the implementation of general European law can be set aside as well. His inclinations were very much to the detriment of European standards of law and the separation of powers that modern bureaucracies were meant to guarantee. To better cope with plural, unclear, or diverging rules, he insisted on considerable leeway for himself in governing the local people. He clearly demanded less codified law in all dimensions. His answers to the questionnaire projected the personage of the bureaucrat as judge and benevolent patriarch, not bound by rules but guided by his conscience alone, not unlike a village chief.39 His call for the abolishment of legal frameworks attests to the ease with which the educated elites of his time veered into anti-humanism.40

Many other responses that arrived in Berlin found fault with the survey of indigenous law for other reasons. Yet material was gathered. The survey is a good example of the “aptitude” of bureaucracies for empirical data collection. One cannot stress enough how often statistical modes of knowledge production emanated from large administrations, especially churches and empires. In the case of the questionnaires on indigenous law, inevitably, the answers sent back to Berlin transgressed the borders of immediate practical applicability and entered into more academic discussions.

Universal Horizons: Indigenous Law as an Academic Discipline

The sub-discipline of comparative law at German universities took shape around 1880 and predates German colonialism and the questionnaire surveys. Its proponents were mostly legal scholars based in faculties of law who had few ties with sociology or ethnology, although legal anthropology was clearly central to their interests. Their penchant for indigenous law, which was largely unwritten, was not motivated by practical application or gaining leverage over colonized people. Knowledge production was driven by an ambition to establish and defend the universality of legal knowledge.

The first issue of the Zeitschrift für vergleichende Rechtswissenschaft einschliesslich der ethnologischen Rechtsforschung (Journal for Comparative Law including Ethnographic Legal Studies) was launched in 1878. The dominant academic school at the time in German-speaking countries, the historical school of law, had been focused on historical investigation. It sought to find forgotten ancient codifications. Historical documents on Germanic and Roman law had been its main discoveries. Within this dynamic that favored the identification of new source material, the first issue of the journal called on scholars to venture beyond Germanic and Roman legal sources.41 Its followers investigated Muslim, Scandinavian, Mesopotamian, and Serbian texts. The step towards non-codified systems of legal practice in Africa and Oceania ensued from the same dynamic.

At the same time, the step from textual to oral tradition was by no means minor. Rather, it was characterized by methodological inclusivity. Protagonists of legal anthropology, such as Franz Bernhöft, granted the status of law to oral cultures and norms transmitted through practice. Josef Kohler, another early proponent of comparative law, maintained that no communities existed without law, even in the absence of juridical institutions, courts, and state administration. “A human being can never be non-human,” he argued.42 Kohler and his colleagues worked within a research paradigm of Universalrechtsgeschichte, or the universal history of law. Advocates of this approach were convinced that the order of society resided in the customs and habits of the people, not in mere written words. This attempt to situate law in behavior, not writing, was not unique to legal anthropology. Carl von Savigny, one of the initiators of the historical school of law, famously opposed codification and considered the normalized comportment of the people the “grammar of law.”43 In another strand of this decentralized approach, the sociologist of law Eugen Ehrlich founded a Seminar for Living Law to recognize the role of minorities’ legal assumptions in the multiethnic environment of the Bukovina.44

Over time, surveys became the method of choice for understanding legal cultures without a codified, written tradition of law. Such empirical or even statistical endeavors were very typical of the way bureaucracies generated knowledge. Besides the legal scholar Albert Post’s (1894), the questionnaire formulated by Josef Kohler was the one most widely circulated through administrations (1897, 1907).45 But this mode of data collection, which focused on rules and norms, was not without critics. Max Schmidt, himself an early legal anthropologist, was among those who disapproved of this empirical approach.46 He did not, however, have misgivings about the process of data collection by bureaucrats. He found fault with the questions. To his mind, they clearly betrayed European interests, and he regarded the attempt to force foreign customs into the frame of European legal notions as futile—akin to trying to capture non-Western harmonies with European musical notation.47

Many questions did not in fact harmonize with the conditions encountered in the field. They were molded after European social structures and imbued with theoretical notions arising from industrialization and private property. One item in Kohler’s questionnaire asked whether any communist patterns could be observed.48 On the ground in Ponape, Fritz sneered at the suggestion that such a pattern could be found among Micronesians, responding with a curt “no!” Be that as it may, questions about shared property regimes were common in European legal discussions during the late nineteenth century. Lawyers such as Lewis Henry Morgan, whose works Marx read avidly, claimed to have observed the original communal society among the North American Iroquois. Likewise, Johann Jakob Bachofen investigated Lycian hereditary practices in antiquity and concluded that the first period of society was characterized by a matriarchy (Gynaikokratia).49 Such concerns made sense in Micronesia where matrilineality was widespread. But one should not forget that theories of collective property, the commons, and women’s different economic positions originated in legal history in the mid-nineteenth century. These topics reverberated throughout the historical school of law and acted as a medium for articulating political theory.50 Fritz’s answers to such questions show that he did not harbor any such hopes for German society, and while he recognized some of these patterns in the island society, he deemed inheritance along female relatives and the polyandry of women of high status as atavistic remnants of a more primitive stage of society.

Another, more sinister, discussion reflected in the questionnaires evolved from nineteenth-century notions of medieval law. The Germanists, one faction within the historical school of law, were dedicated to ancient Germanic legal sources. Focusing on medieval legislation, they distilled heroic nationalist views from the nation’s legal past. To their minds, old Germanic legal practice emphasized cruelty in punishment, blood feud, and justice delivered by ordeal. Rebekka Habermas has outlined how indigenous societies in the German colonies were investigated though the lens of this particular archaism.51 It is not without irony that this Germanophile idealization of national roots was projected around the world in order to produce differences and superiority over the peoples of the Pacific.

As a strand of discussion within academic legal scholarship, indigenous law played a surprisingly crucial role. Implicitly, it provided a testing ground for social change and European political theory, and it sustained conceptions such as communism or German nationalism. Driven by a dynamic that favored the procurement of more detail about indigenous law, legal scholars turned to the colonial administration as soon as it was established in 1884/85. However, the first generation of comparative law in Germany posed questions that presupposed European concerns and legal structures.52 Bureaucrats provided the information but protested against unreasonable demands to produce universally valid knowledge devoid of ties to the solution of the pressing problems at hand. Schmidt criticized the questions for exactly this reason. The questionnaire on indigenous law betrayed a misdirected self-interest of European legal scholars to anchor their political claims in new material. At the same time, the political potential of indigenous law stirred heated debate in parliament. Politicians in 1907 had very imminent reasons for advocating knowledge collection about legal customs.

Enquêtes and the German Public: The Parliamentary Debate on Indigenous Rights

During the forty-fifth session of the Reichstag, the Parliament of the German Empire, several political parties advocated funding a bureaucratic research project on indigenous law. August Bebel, the leading Socialist politician of the day and one of the most fervent critics of German colonialism, spoke in favor of the motion. In the political context of 1907, the distribution of four hundred printed questionnaires promised nothing less than a new way of dealing with the colonies. The plenum and the public were still shaken by the first genocide of the twentieth century committed by German troops on the Herero and the Nama in Namibia and then on the colony of German South West Africa. The ensuing public scandal had dominated the elections earlier that year. The discussion was also influenced by the Maji-Maji Revolt in German East Africa.53

Progressive voices in the parliament pushed for the project, linking the collection of data about indigenous law with “more rights for indigenous people.”54 They regarded the adverse effects created by the legal double standard in the colonies as an avoidable complication. The left leaning liberal democrats (Freisinnige Volkspartei) called upon the newly appointed leader of the colonial office, the banker Bernhard Dernburg, to fulfill his promise of liberal governance. Dernburg had pledged to rule the protectorates by the peaceful means of preservation (Erhaltungsmittel) rather than by means of destruction (Zerstörungsmittel).55 He was not opposed to the project, but he nevertheless ridiculed the questionnaire his opponents had put forward during the debate: answering the sixteen thousand sub-questions in the set of forms, he pointed out, would require each local colonial official to toil for five years. Proponents of the project countered this concern by pointing out that the completed survey by the British Native Laws and Customs Commission had contained a stunning 8,996 questions.56 Their reference to a more experienced colonial power makes clear that the Reichstag did not invent bureaucratic research on indigenous law. Scientific societies dedicated to this question had been formed in several European countries and were quoted during the debate via pertinent publications.57 And, indeed, even in Germany a series of responses to a questionnaire on indigenous law had already been published in 1903, after less extensive circulation through the bureaucracy, though oddly enough, Post’s publications do not figure as a model in the German parliamentary debate.58 Eventually, the parliament approved funding for the research project.59 Yet, notable changes from the initial proposal are apparent. A simpler questionnaire was chosen, and the name of the International Society for Comparative Law and Political Economy was taken out of the resolution, probably to avoid any association with the name of the critical economist Gustav Schmoller.60

That the Reichstag funded a statistical format to collect information on foreign rules is unsurprising.61 Over the course of the nineteenth century, European parliaments increasingly resorted to data collection by means of questionnaires when a political challenge arose. Typically, inquiry boards would be tasked with conducting an enquête, and the knowledge it generated through surveys, which addressed matters of public concern. Thus, the enquête on indigenous law was a means of communication with a German electorate that was still scandalized by the genocides and the cost of several wars against the colonized.62 This instrument of statistical communication was geared towards matters of public concern. By promoting bureaucratic research on indigenous law, the social democrats positioned themselves as providers and creators of civic spaces. In this way, legal custom became imbued with high-minded notions of better colonial rule and future human rights. Indigenous law thus became a hallmark of a new style of colonial rule connected with the Dernburg administration. The knowledge about indigenous law delivered by the survey was important for the bureaucracy precisely because it facilitated a form of governance through interests that replaced the expensive, cruel, and publicly compromising option of taking military action. In hindsight, however, the survey is more readily understood as a measure that only sharpened the tools of empire.63

Shells and Order: Rules and Payments to the State

Neither the mixed law of colonial rule, nor the indigenous law prior to colonization, can be fully understood without considering the mechanisms required for putting it into effect. One of the most striking examples of this is how the colonial administration imposed indigenous law via an indigenous currency. The investigation in this last section focuses not on statistics, but on monetary quantification. Here knowledge of indigenous law had the strongest practical impact.

Before the introduction of taxes, one of the first functions of the luluai was the issuing of fines. These were mandated largely according to local rules and expressed in a local unit of value, such as diwara (Figures 2, 3, 4). This legal mechanism built on precolonial customs of paying weregild in this natural currency, a monetary remuneration to an aggrieved family for bodily harm or unnatural death, payable by the family of the offender. To curb the authority of local judges, however, the colonial administration set a limit on the value of property and fines under the luluai’s purview. Luluai were allowed to decide disputes “involving property up to the value of 25 marks or ten strings of tabu shell money called diwara in the Neu Lauenburg Group.”64 Shell money was an integral part of law making both prior and during German colonization.

German media of exchange (for example, the German colonial currency Neuguinea Mark) were met with unwavering reserve by the native population: this money was not recognized by the people. Current work in the ethnography of money acknowledges that colonization and cultural contact may have a strengthening effect on natural currencies, and the history of diwara is a case in point.65 But, curiously, in German New Guinea the very currency used to issue fines was also recast as a political form of money by the governor. Hahl even banned the use of diwara from the general market. Understanding how this happened and with what consequences offers unique insight into how the colonial administration succeeded in mediating between various groups and interests in the colony.

Naturally, diwara had shifting meanings. When Richard Thurnwald sifted through the answers in the questionnaires, he discovered alternating conceptions of exchange. He stressed “reciprocity” as the main element and argued that there was thought to be a fluidum, or potency, that persons conveyed to their products or even the plants they grew.66 To their minds, if someone gave away an object, it was invested with their special productive energy, a relation that could be attached to plants and things alike. Exchange, in this paradigm, was giving back something produced by one’s own fluidum.67 The subsistence economy emphasized the need to keep values, energies, and goods in circulation.

Participating in these exchanges was not easy. In the early 1880s, no foreigner could obtain a string of the shell money from the Tolai on the Gazelle Peninsula. The raw material, that is the shells (Nassa camelus), had to be transported from Nakanai over 300 kilometers away.68 With scant availability of European legal tender, diwara gradually grew into an important regional currency.

When Hahl took office as vice-governor in 1900, one of the first measures he decreed was to prohibit the use of diwara by colonialists, traders, and planters. He then banned any meddling with the local production of shell money and subsequently forbade all payments in shell money by persons he categorized as “white” or “non-indigenous non-white” (i.e., Malay, Japanese traders, or members of the Chinese foreign workforce).69 This amounted to banning the currency’s use in trading with foreigners. Only the Tolai were permitted to use diwara among themselves and in their communications with the administration.

Some suspect that Hahl wanted to prevent the inflation of the shell currency.70 It would have indeed been costly for the governor had the system collapsed. Not only were fines under the new order still measured and paid in this currency, but the reproduction of Tolai society depended on its use in ceremonial payments. For example, diwara conferred a different meaning to the making of profits. The single strings offered by most family members to the family heads could be secured with banana leaves and bundled into large rings (loloi). In this form, the collective savings would last and fulfill the function of a security fund. Ideally, when a leader died, many loloi would be exhibited and transformed into political prestige by way of a festive redistribution at the funeral. This use of loloi is a rare example of a natural currency used as a store of value and the insurance functions aligned with it. At the same time, the loloi served a political function by measuring the strength and wealth of a family.71 Diwara had fulfilled several political functions before it became an important political consideration for the German administration.

In a report sent to Berlin, Hahl mentioned an inconvenient imbalance: “It was often very difficult for European firms to obtain the shell money required to purchase copra, etc. In this respect they were completely dependent on the natives, and at times the exchange rate for shell money was forced up absurdly high.”72 Apparently, the shells had become a considerable source of power for the Tolai, and their use was then stopped through bureaucratic decrees. Against nearly everyone’s interests and in an artificial manner, Hahl separated the various spheres of exchange within the colony.73 Rich traders could no longer access indigenous markets through shell money. Thus, he refashioned the indigenous institution of diwara. It became less useful for trade and was instead reserved for legal matters, such as fines and taxes, just as in pre-colonial times when diwara helped to lift a curse, seal a marriage, or end a war.

However, this use of diwara as “political money,” reserved exclusively for payments to the state, may have led to the acceptance and ascent of diwara to the status of a regional currency. A map from 1930 shows the paramount importance of diwara in the region thirty years after the first regulations were instituted (Figure 2). The extended range of its validity was the result of an asymmetric coproduction by the Tolai and the German bureaucrats. The monetary policy proved effective, particularly because shell money was readily translated into the social relations of war and peace.

Rival groups would use diwara to settle disputes. Yet, the cabins where shell money was stashed in the form of loloi were traditionally spared during conflict, as Hahl acknowledged. But he had no qualms about breaking this particular rule. In fact, it helped him crush one of the most determined defenders of the Gazelle Peninsula, chief Towakira:

Without engaging in any fighting there I found the shell-money hoard of the tribe in a hut. This placed Towakira in my power. I promised him safe passage and hoped, by means of a personal exchange, to persuade him to join the new order. Towakira appeared to agree to all the proposals made to him and even exchanged gifts as tokens of his friendship towards me. However, a few days later I received word from the Mission in Vunapope that my escorts and guides had taken some shell-money [from the stash to be returned]. Although I took steps to see that the sum stolen was immediately returned to Towakira, our friendship was at an end.74

Still, without the stash, Towakira’s political power was shaken. It was not military might, but a shell money that proved decisive in establishing German law and order in the protectorate.

Conclusion

One point stands out in my analysis: the “aptitude” of bureaucracies to collect vast amounts of empirical data. Other contributions to this special issue on bureaucratic knowledge have shown the extent to which administrations were involved in statistical knowledge production—be it in the form of a questionnaire or survey; an enquête, inquisition, or indaganda; or through relaciones. The questionnaire imposed the quantifiable, authorless, and datafied formats that large administrations thrived upon to cope with “the population.” As the case of German New Guinea shows, even elusive practices, such as local customs of law making, could be transposed into writing by sending questionnaires down the chain of command and into the vast network of the colonial, local, and regional offices.

Administrative rule in German New Guinea depended on indigenous institutions, such as the unwritten common law. The officials in Berlin who produced the questionnaires on the legal customs in the colony relied on comparative law, which found its telos at the stratospheric heights of humanism and universal rights. In contrast, the bureaucrats on the ground in the various communities had more practical concerns which revolved around the immediate future. Likewise, the political debates in parliament, which feigned responsibility for indigenous rights while worshipping party politics and public opinion, diverged sharply from the administrative knowledge collected in the colony, which bore the mark of the feasible. Georg Fritz’s protest against the questionnaire rendered the conflict of interest clearly visible: academics and bureaucrats in the field adhered to a different type of knowledge. And they produced and deployed it in different frameworks.

The legally binding rules and the media of exchange that existed prior to colonization allowed the colonial government to bridge the gap between its administration and the people newly subjected to its rule. The Prussian bureaucracy would have remained entirely ineffective had it not embraced, appropriated, and finally devalued local practices alongside appointing native bureaucrats in the luluai system. The gathering and incorporation of knowledge about existing institutions is a hallmark of the liberal type of government associated with the Dernburg administration. The shell money diwara was especially important in making it possible to tap into the existing systems of rule and valuation and to act upon such knowledge. The colonial authorities used diwara as a quantitative format to synchronize incongruent legal cultures. Standardized rules and measures of value played a key role in the violent creation of an administrative space and in projecting the language of bureaucracy. For the administration, fines were the operational arm that realized the rules beyond their paper trail. Arguably, the construction of an invisible space of accountability and seamless rational calculation was never completed in the short-lived German colony. But the shells paved the way towards such an order. In doing so, they were key to the making or breaking of indigenous law in German New Guinea.

Notes

1From Blum, Neu Guinea, 46. 

2Vismann, Files. 

3Zollmann points to this important practical need to explain the emergence of international perspectives on law. At the time, this emerging knowledge included what is nowadays treated as the independent field of anthropology of law. He emphasizes the reduced legitimacy of German colonial law since the legislative process the bureaucrats established, namely, the Orders of Council (Regierungsverordnungen), gave Bismarck and his colonial bureaucrats extraordinary power. Zollmann, “German Colonial Law,” 260–62. 

4Sippel, “Deutsche Reichstag,” 716. 

5Thomas, Entangled Objects. 

6Duve, Entanglements in Legal History; Zollmann, “German Colonial Law.” They draw on transnational and entangled histories such as Mintz, Sweetness and Power; Randeria, “Legal Pluralism.” 

7On Gieryn’s concept of boundary work, see Dupré and Somsen, “History of Knowledge”; See also Jacob, “Lieux de savoir”; Epple et al., Weak Knowledge. 

8There are several spellings and versions of this shell money (dewarra, pele, tabu, or tambu, etc.), depending on the particular island or time (see figure 2). For consistency, I use the term that the German bureaucracy favored. The earliest source for the weregild-like nature of diwara in pre-colonial legal practice is Danks, “Shell-Money,” 310–14. 

9Lyall, “Albert Hermann Post,” 124; Redemayne, “Research on Customary Law,” 32; See the published material in Steinmetz, Rechtsverhältnisse. 

10Von Oertzen, “Machineries of Data Power”; Scott, Seeing like a State; Porter, Rise of Statistical Thinking; Vec, Recht und Normierung; Vera, “Counting Measures,” 121–40; Mukerji, “Jurisdiction, Inscription,” 223–45; Mitchell, Rule of Experts. 

11Appadurai, “Colonial Imaginaire”; Mak, “Touch in Anthropometry”; Akin, “Cash and Shell Money,” 103–30; Bollard, “Financial Adventures,” 19; Firth, “German Firms,” 10–28; Schmidt and Ross, Money Counts; Mira, Cowrie to Kina; Petri, “Geldformen”; Hogendorn and Johnson, Shell Money. 

12Ehrlich, Soziologie des Rechts; Teubner, “Globale Bukowina”; Duve, Entanglements in Legal History; Schott, “German Ethnological Jurisprudence”; Zollmann, “German Colonial Law”; Griffiths, “What is Legal Pluralism?”; Benton and Ross, Legal pluralism and Empires; Bambridge, Rahui. 

13Sippel, “Deutsche Reichstag”; Lyall, “Early German Legal Anthropology”; Habermas, “Großforschungsprojekte zum ‘Eingeborenenrecht’”; Schaper, Koloniale Verhandlungen. 

14Midena, “German Legal Anthropology.” 

15Schaffer et al., Brokered World; Sivasundaram, Nature and Godly Empire; Morrison et al., Pacific Island Peoples; Sack, Land between Two Laws; Turnbull, World in the Mind; Mückler, Kulturgeschichte Ozeaniens. 

16Cf. Olesko, “Indaganda Survey,” in this issue; Mukerji, “Territorial State,” 403–24. 

17Rudolf Asmis, a jurist by training, ventured early on to codify local juridical customs to provide a handbook for regional officials: The Law for the Regional Official (Bezirksleiterrecht). Knoll, German Colonial Experience, 137. 

18Neumann, “Tradition and Identity,” 295. 

19Blum, Neu Guinea, 42. 

20Annual Report,” 195; Nübel, “Albert Hahl,” 30–54; Buschmann, “Colonizing Anthropology,” 230–56. Appointments included forty-four chiefs on the Gazelle Peninsula and twenty-three chiefs in the New Lauenburg Group. 

21Hahl, Governor in New Guinea, 18. 

22Epstein and Firth, Capitalism, Primitive and Modern; Godelier and Strathern, Big Men and Great Men; Blum, Neu Guinea, 23. Yet the archaeological record was recently invoked to prove that the social structure was much more stable before cultural contact with the West established more fluctuant and competitive types of rule. See Spriggs, “Ethnographic parallels,” 544–46. 

23Annual Report,” 197. 

24Thurnwald, “Melanesisches Gebiet,” 625. Much of the information Thurnwald provides is drawn from the survey on indigenous law described in this article. 

25Ibid. 

26Ibid., 567. 

27Hahl, Governor in New Guinea, 18. For the contributions of Pero ToKinkin, see Neumann, “Tradition and Identity”; Tateyama, Tubuan. 

28A number of peculiarities set the luluai system apart: First, it appointed and created positions rather than use existing political powers. Second, the luluai system was concerned with the law at a basic level, not political rule by the old elites, and was confined to cases of minor gravity. Third, Europeans were not able to counsel the luluai because they did not know the rules. 

29Annual Report,” 195. 

30Zollmann, “German Colonial Law,” 266–69. 

31Ibid., 266. 

32Teubner, “Globale Bukowina,” 253–55; Duve, Entanglements in Legal History, 3–25. 

33Colleagues on a neighboring island had summoned an ad-hoc parliament of informants, but still found it difficult to distill rules that everyone consented to: BArch R 1001/5010, folder 15, Bericht des Bezirksamtsmanns Arno Senfft, 1–72. 

34The Bundesarchiv holds thirteen replies from German New Guinea. The original turnout was higher: Sippel, “Deutsche Reichstag,” 726. 

35BArch R 1001/5010 (Rechtsgewohnheiten der Eingeborenen auf den Karolinen-Inseln 1905–1910), folder 17: Bericht des Bezirksamtsmanns Georg Fritz, 50. 

36Ibid., 49. 

37Spennemann, “Combining Curiosity,” 495–504. 

38Steinmetz, Devil’s Handwriting. 

39BArch, Bericht Fritz, 50. 

40Zimmerman, Anthropology and Antihumanism. 

41Bernhöft, “Ueber Zweck und Mittel,” 2. 

42Kohler, “Recht,” 324. 

43Savigny, Vom Beruf unserer Zeit, 10. His expression is “förmliche Handlungen.” 

44Ehrlich, Soziologie des Rechts. Ehrlich was concerned with minority rights in the multiethnic environment of Chernivtsi, the capital of the Bukovina region in present-day Ukraine in 1909/10. See Teubner, “Globale Bukowina.” 

45Post, “Fragebogen.” An English translation is annexed in Lyall, “Early German Legal Anthropology.” Kohler, “Fragebogen.” An English translation is in Kohler, “Questionnaire.” 

46Schmidt, “Rechtsverhältnisse,” 676. This is a review of a volume of published answers to the Post questionnaire edited by Sebald Rudolf Steinmetz in 1903. 

47Apparently, the problems of translation of musical harmonies were central to the liturgical concerns of the Christian missionaries in New Guinea as well: Midena, “Ethnomusicology of Emotions,” 73–95. 

48Kohler, “Questionnaire,” 433. 

49Morgan, Ancient Society; Bachofen, Mutterrecht. 

50Kuper, Reinvention of Primitive Society. 

51Habermas, “Großforschungsprojekte zum ‘Eingeborenenrecht,’” 150–82. 

52The first generation included legal scholars such as Franz Bernhöft, Josef Kohler, Albert Post, Lorenz von Stein, Felix Meyer, Georg Cohn, and Eduard Gans. 

53Lyall, “Early German Legal Anthropology,” 121. 

54Reichstagsprotokolle, 1382, 1385. 

55Ibid., 1365. 

56Barry, Cape of Good Hope. For the tradition of enquête, see Stieda, “Enqueten”; Fallati, “Einige Mitteilungen”; Bulmer et al., Social Survey; Hunt, “Measuring Morals,” 171–94; Walzer, “Interview”; Midena, “German Legal Anthropology.” 

57Dr. Müller, from the city of Meiningen, even brought these volumes to the debate: Reichstagsprotokolle, 1382. The publications mentioned in the debate included, e.g., Clozel and Villamur, Coutumes indigènes. 

58Post, “Fragebogen,” 1–13; Post, Afrikanische Jurisprudenz. 

59The results were published as Schultz-Ewerth et al., Eingeborenenrecht. The two volumes appeared in 1929 and 1930. 

60Kohler, “Fragebogen,” 427; English translation: Kohler, “Questionnaire,” 28–36; Zollmann, “German Colonial Law,” 380. 

61Bulmer et al., Social Survey; Hunt, “Measuring Morals,” 171–94; Walzer, “Interview”; For an extensive discussion of the tradition of anthropological questionnaires with regard to the enquête on indigenous law, see Midena, “German Legal Anthropology.” 

62Stieda, “Enqueten”; Fallati, “Einige Mitteilungen.” Both authors see the difference of the enquête from simple vital statistics in the focus on matters of public concern. 

63Habermas, “Großforschungsprojekte zum ‘Eingeborenenrecht.’” 

64Annual Report,” 195; Solyga, Tabu; Simet, Tabu. 

65Akin, “Cash and Shell Money,” 103–30; Schmidt and Ross, Money Counts; Solyga, Tabu; Simet, Tabu. 

66Thurnwald, “Melanesisches Gebiet,” 617. 

67Ibid., 616; See Thurnwald, “Ermittlungen über Eingeborenenrechte,” 309–64. 

68Solyga, Tabu, 38. Riebow et al., Kolonialgesetzgebung, 260. Finsch, Südseearbeiten, 14. 

69Riebow et al., Kolonialgesetzgebung, 260. 

70Meinhardt, Geldgeschichte, 31. 

71Owens et al., History of Number, 229. 

72Annual Report,” 220. 

73Bohannan, “Impact of Money,” 491–503. The latter are a common occurrence in non-industrialized economies. Subsistence goods are rendered incommensurable with luxury goods, meaning that no amount of taro roots can ever buy a canoe. 

74Hahl, Governor in New Guinea, 86. 

Competing Interests

The author has no competing interests to declare.

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