The Civilization Canon


Recently, scholars have uncovered many ways in which our traditional understandings of the U.S. Constitution have failed to grapple with American empire and colonialism. This work has shown that the nation’s history of mistreating Indigenous peoples is constitutive of its legal order. In this Article, I provide evidence of a similar kind of imperialistic effect in the realm of statutory interpretation. To the extent there is a conventional understanding about statutory interpretation, it does not attach special significance to the demands of empire. But much like American constitutional design, statutory interpretation has not been neutral with respect to imperial expansion and colonization.

To illustrate this dynamic, I reconstruct a contentious debate over the laws of adoption and inheritance in nineteenth century Hawai‘i. Judges construed these statutes with the stated aim of imposing civilization on Hawaiians, challenging settled assumptions about the relationship between common law and legislation in America. Empire thus implicated not only an imposed statutory regime, but also interpretive presumptions against relying on Hawaiian customs and practices. In relying on this civilization canon, judges articulated Hawaiians as racialized legal subjects who had to be transformed before courts would presume that the legislature intended to preserve their worldviews and cultural practices in law.

About the Author

Assistant Professor of Law, UC Berkeley School of Law