Hawaiian Common Law: Adoption, Legal Change, and Cultural Difference, 1840-1940

Abstract

The common law in Hawai‘i was not only a body of law articulated by English and American courts; it was also a lawyerly habit of mind. Following this habit, lawyers argued that the legislative innovations that remade the Hawaiian Kingdom in the middle of the nineteenth century took place against preexisting Hawaiian customs. While these customs were highly informative in the realm of property law, they could also be perceived as troublesome. Litigation over the inheritance rights of adopted children highlights a fear that these customs opened Hawaiian law to the influence of Hawaiian culture, and thus threatened the project of “civilizing” the Islands.These inheritance suits reveal the common law to be a much more flexible mode of lawmaking than previously understood. They shed new light on a long strand of scholarship concerned with the peculiar way in which Anglo-American lawyers and judges framed debates over legal change: that is, as contests over the relationship between common law and legislation. This scholarship has emphasized the role of the people’s customs in legitimizing different readings of legal change. In Hawai‘i, however, the enduring appeal of the people’s customs met racialized views of Hawaiians, which influenced how lawyers conceptualized the authority of different legal institutions. These cases also reveal the common law as a site of contestation over the problem of cultural difference in empire. In other imperial regimes, cultural difference was managed and mediated through jurisdictional politics. Hawai‘i does not fit this framework, but these inheritance disputes allow us to consider a different kind of politics, over whether Hawaiian customs could or could not inform the course of Hawaiian legal development. These Hawaiian cases invite us to explore other ways in which the problem of cultural difference might manifest itself in imperial regimes. Indeed, by exploring analogous inheritance disputes in Oregon and Oklahoma, I demonstrate the importance of the common law for how lawyers understood the many legalities across America’s landscape well into the twentieth century.