In this article I explore the mimesis of indigenous “customs and law” as a theory and strategy of colonial governance in the Portuguese colony of Timor. By looking at the judicial theories and practice of Portuguese colonial governors, judges, and officers, I propose that a mimetic form of governmentality emerged there in the late-nineteenth and early-twentieth centuries. I pay particular attention to the role played by scientific and juridical doctrines, pragmatic considerations, and imageries of human difference in its establishment as a rationale for the colonial state. As such, this essay analyzes the productive character of mimesis within colonial government activity. In anthropology and post-colonial studies, the theme of indigenous subversion of, or resistance and opposition to colonialism bears dominantly on approaches to mimicry and mimesis in colonial interactions.Footnote 1 Here I will examine alternative routes, investigating how mimesis could play in favor of rather than against colonial power. I delve into how, during the heyday of imperialism, European colonial rulers fleshed out a theory of mimesis of the indigenous world as a rationale of colonial government praxis. In the remote Portuguese colony of Timor, governors and officials maintained that in order to efficiently govern the “natives” and exercise colonial justice Europeans had to release themselves from European principles and embrace indigenous customs.
MIMESIS AS AN ART OF GOVERNMENT
Following Walter Benjamin, anthropologist Michael Taussig described the “mimetic faculty” as the ability to “explore difference, yield into and become Other.”Footnote 2 Taussig understands this process as integral to the history of modern Western colonialism. For Taussig, mimesis is a magical art of reproducing from a model so that, through the mediation of copies, the imitators, like magicians, capture the powers and substance of the original. In Colombian rubber stations, Taussig argued, the colonizers' violence inflicted upon Indian bodies actually mirrored, as “mimesis of mimesis,” those images of the “Indian as wild man” that crowded white settlers' fears, fantasies, and stories along the colonial frontier.Footnote 3 Thus the violence of modern Euro-American colonialism, Taussig implies, is inconceivable without a “net of passionate images spun for several centuries by the colonial trade with wildness that ensures civilization its savagery.”Footnote 4
In Western thought, mimesis has since Plato's and Aristotle's classical formulations had a long and rich history as a complex concept of flexible and sometimes contradictory meanings.Footnote 5 I here look at mimesis as a heuristic device that can shed distinctive light on the movements between similarity and difference, proximity and distance, that underlie the colonial modes of relating—symbolically, politically, and materially—to indigenous societies as a second world. “Mimesis in reference to others,” Gebauer and Wulf observed, “represents a productive intervention into modes of thinking and speaking that are other than one's own.”Footnote 6 In particular, I would like to extend Taussig's insights into colonialism beyond the seemingly irrational extremes of terror and violence, to consider colonial mimesis as a productive set of ideas, political technologies, and knowledge forms for governing (rather than destroying) others—the “native,” the “primitive,” the “savage.” I approach mimesis as an art of government—the art of becoming something else, of becoming Other in the service of colonial administration.
In so doing, I consider the mimetic faculty as a reflexively elaborated, discursively articulated, and politically structured manifestation of colonial governmentality, to borrow Michel Foucault's famous term. He conceptualized it to refer widely to the emergence of a modern “art of government,” the “government of the living” (gouvernement des vivants), expressed in the development of complex and multifarious political technologies and knowledge forms aimed at the punishment, surveillance, and discipline of human souls, bodies, lives, and populations.Footnote 7 In keeping with the spirit of this insight, mimetic governmentality constitutes a mode of slipping into indigenous otherness as a technique and strategy of colonial government. The idea of mimetic governmentality refers to the theories, techniques, and tactics concerned with the “government of others” whose underlying principle of action is the incorporation and reproduction of the perceived otherness of so-called “native” or “primitive” populations, with a view to rule and conduct their existence. It refers to a strategic mode of controlling, punishing, and managing the behavior of other peoples through gestures of inclusion, selective copying, and replication of customs, beliefs, and institutions that are imagined as belonging to societies viewed as both distinct and inferior. As such, it is a power strategy that requires the subject rulers to lose or suspend (however temporarily and partially) their own self-assurances; it is an attempt to govern others by seeking to take the place, and capture the perspective, of the “native” Other. This form of government seems to express a colonizers' fantasy of penetrating indigenous fantasies, thought processes, and cultural manifestations as a means to power.
My focus, then, is on the rationale for the making of colonial replications—imagined or concrete, partial or integral, false or real—of “native law and justice” in an effort to generate powers of colonization. Just like in sympathetic magic, the powers unleashed by such colonial replications of “indigenous customs” do not require that they are absolutely realistic representations of the original model; contact with, and mere inclusion of bits and fragments of the original may suffice to generate the continuities of substance that empower the mimetic object as regards its original version.Footnote 8 For, in the colonial experimentations with mimetic government, as in imitative magic, what matters is less the false or fictional character of the (colonial) image than the powers that such images or copies are expected to unleash, and the colonial actions they induce to bear influence upon concrete indigenous life. In this light, this essay might contribute, and offer an alternative point of entry, to debates about the “invented” character of customary law.Footnote 9
The administration of justice and the rule of law are at the heart of ideas of government, and they were also at the heart of the colonial enterprise. Encounters between European and non-European regimes of law, or so-called “customary law,” have been a fertile territory for studying the dynamics of colonialism. Historians of law have been questioning simplistic visions of European legal imperialism as functioning merely through the unilateral “modernizing” enforcement of European institutions. Alternatives offered have included nuanced accounts of the political diversity, territorial flexibility, and cross-cultural nature of juridical transactions.Footnote 10 This essay builds upon this critical literature. My purpose, however, is not so much to offer a legal history in the strict sense, but rather to use the colonial engagements with customary law to illuminate broader issues about the shared histories of mimesis, government, and colonialism.
COLONIAL RULE AND CUSTOMARY LAW IN EAST TIMOR
I will examine this hypothesis in relation to a specific case and historical context: the theories and techniques that Portuguese Colonial Governor José Celestino da Silva and his associate judge, Albano de Magalhães, put forward to exercise justice in East Timor according to usos e costumes (uses and customs), or so-called Timorese customary law, in the late nineteenth- and early twentieth-centuries. A remnant of the Portuguese Empire in Asia from the sixteenth-century Age of Discoveries, the eastern half of Timor was then but a small, forgotten, and remote possession.Footnote 11 The white community, comprising officials, army officers, missionaries, and deportees, was numerically insignificant and ordinarily limited to the capital city of Dili and its immediate surroundings. The administration suffered from chronic financial debt, difficulties of communication with Lisbon and Macau, lack of a regular army, frequent conflicts, and wars with Timorese authorities. Under these conditions, the Portuguese presence in Timor came to be founded largely on the pragmatic acceptance and management of its local and indigenous connections.Footnote 12
This feeble imperial presence offered the conditions for mimetic strategies and gestures to emerge and prosper in Portuguese ruling practices. Timor's specific colonial predicaments—which in many ways resemble those of other remote imperial borderlands of the European expansion—are important but cannot by themselves explain the emergence and visibility of mimesis as a form of colonial governmentality in this historical context. I will argue that the history of this small colony also elucidates the wider significance of mimesis as an underlying theme in European understandings of colonial government of the indigenous world during this period. We need to consider the positive value that Portuguese authorities granted to administering colonial justice in accordance with indigenous ways in relation to the broader significance of “specialization” doctrines that flourished in late nineteenth-century Europe.
The Portuguese engagement with customary law in late nineteenth-century Timor is an excellent example of mimetic governmentality. In this colonial setting, the administration of justice with regard to indigenous peoples was calculated in the context of a government strategy founded above all upon doctrines and pragmatics of differentiation, preservation, and repetition rather than ideals of assimilation. The Portuguese proposals for the administration of justice in Timor were embedded in a mode of government built on a double principle: maximal replication and minimal transformation of the local judicial traditions, which were perceived to be “indigenous” in character and origin. Strategic changes and adaptations, as we will see, could also be considered within these colonial theories, thus accommodating gestures of including barbarian others to Western visions of progress and civilization. In fact, this government rationale seems to have been traversed by a tensional compromise between, on one hand, the drive to copy, record and incorporate what was thought to be “traditional” and “native” into European judicial practice and codes, and on the other, the desire to change or “civilize” these traditions. There was a will to transform while preserving a sense of difference. This was expressed in the often-explicit aspiration to adopt “native law” selectively whilst also gradually banishing from the resulting European replicas any “abhorrent” traditions that contravened European or Christian principles, customs, and morals. Mimesis of native law could also aim, however minimally, at destabilizing, distorting, and changing the indigenous model as a means to enhance colonial power. In this way, this form of colonial governmentality, trapped in the tensions between similarity and difference, carried, like other forms of mimesis, a potential to transform and even subvert the original.
The case of Timor should not be read as exceptional. The comparative history of the European colonial expansion provides a rich field for considering the wider emergence of mimetic forms of governmentality. The colonizers' approach to Timor's justiças from the 1860s into the 1900s finds parallels elsewhere in Portuguese Africa and Asia. Examples are the contemporary recognition granted to the so-called milandos in Mozambique and to the mucanos and ouvidas in Angola. These apparently involved trials and judicial questions that, like justiças, Portuguese officials had resolved by reference to indigenous law.Footnote 13
Comparatively, the hypotheses I propose here may illuminate modern colonialism beyond the Portuguese Empire. Firstly, it may be that mimetic government attitudes and gestures toward indigenous customs and laws thrived more conspicuously during the early modern period, and were more apt to develop in frontier and backwater settings. In the latter, both during and after the early modern era, the state lacked formal authority or it was especially fragile, competing and private judicial authorities could emerge, and boundaries between indigenous and European praxis were more fluid.Footnote 14 Secondly, in early twentieth-century Europe and America a variety of theories of imitation were highly influential in the emergence of the human and social sciences, including colonial sciences and literature.Footnote 15 This suggests that mimetic understandings of colonization had a fertile intellectual field within which to develop. Furthermore, French historian Pierre Singaravélou has recently revealed how the successful rise of sciences coloniales—including “colonial law”—in Europe between 1880 and 1930 called for an “epistemological decentering” toward the indigenous world, and further reinforced experimental political strategies in the government of colonial territories.Footnote 16
In this light, the rise of mimetic governmentality may be seen as an instance of such experimental decentering, a move toward governing others through capturing those very others' perspectives. A hardening of European perceptions of difference further prompted this move. Given the diffusion of colonial law sciences at the century's turn, mimetic government theories may have been behind other, advancing colonial attempts to encompass indigenous customary law. Contemporary examples included British applications of indirect rule in their colonies, the Dutch institutionalization of adat law, and French association policies. It is suggestive that Portuguese advocates of “specialization” policies often asserted the “modernity” and significance of their approaches within a comparative frame, pointing to similar strategies being employed throughout the British, Dutch, and French empires.Footnote 17
The essay covers the period from the influential governorship of Afonso de Castro (1859–1861), who first reformed Timor's military administrative model and reestablished officers' judicial authority, to the demise of Governor José Celestino da Silva's power in 1908.Footnote 18 It deals particularly, though not exclusively, with the tenure of the later since, as I will show, it was crucial to this form of governmentality's establishment as official policy. Celestino da Silva (see figure 1) left a strong, and controversial, mark in Timor's colonial history. He held the post for fourteen years, starting in 1894. This was unusual, since Timor's recent past had been characterized by a series of short-term governors. His numerous and brutal campaigns of “pacification” against “rebel” Timorese chiefdoms earned him posthumous glory in Portuguese nationalist historiography, as creator of modern colonial Timor.Footnote 19 Celestino da Silva endorsed racist and evolutionist views and did not hesitate to assert the supremacy of Portuguese forms of law and society over Timorese “savagery.” “The rush of the higher races,” he wrote in correspondence to Lisbon in 1901, “explains the disappearance of many peoples, who might have gone far, if we, the ‘Aryans,’ the privileged of mankind, would have just provided them assistance in their slow form of progress. We, and the laws we want abruptly to impose on them, do not allow them to undergo what we have undergone. We do not concede them the slow pace of their social development, the same slow pace that, after centuries and centuries, made us what we are today.”Footnote 20
Colonel José Celestino da Silva, governor of Timor, 1896. From the cover of O Recreio: Revista Semanal, Litteraria e Charadistica, 18, 21ª serie, 30 Nov. 1896.
To impose European law on “racially inferior” societies such as the Timorese was viciously disruptive of their social evolution, and an alternative colonial strategy ought to be followed. On these premises, Celestino da Silva argued that the administration of colonial justice should be based on the adoption and repetition of what the Portuguese perceived to be Timorese manners and customs. Critical to his government action from the outset was a mimetic style of administration, a method of administering colonial justice and law that required the strategic embodiment of indigenous cultural codes and social customs.
In the following I will explore Celestino da Silva's program, relying heavily on extensive materials from the Portuguese colonial archives, especially official correspondence exchanged between administrators, judges, and governors in Dili, and their superiors in Lisbon and Macau. Here we find evidence of conceptions of mimetic governmentality in narratives, legislation, and policy programs put forward by Portuguese administrators. We find it also in theories about how the officers' justiças functioned, how colonial justice ought to be organized and performed with reference to indigenous traditions, and how such principles should be applied in the future by officers in the hinterland.Footnote 21
A COLONIAL REGIME OF MILITARY ADMINISTRATION
When Celestino da Silva arrived in Timor he had served as a high-ranking army officer in the metropole, and been a member of the entourage of the King of Portugal, then Don Carlos I. He had no overseas administrative or military experience when he began his appointment in 1894. He may have been promoted to governor of Timor to reward good service to the King, who thought highly of him as a military officer and a man of honor. Celestino sought in haste to familiarize himself with the modern colonial theories of government, and before leaving Europe read what he could about colonial administration.Footnote 22 He was also a keen observer. Very soon after arriving in Dili he developed strong views about how best to govern, colonize and “civilize” the district. His vision of colonial administration was grounded in the development of comandos militares, military commands or districts, headed by Portuguese army officers who bore the title of “military commandants” (figure 2). To these officers he entrusted the exercise of Portuguese authority and generally the representation of the governor's command over jural affairs—that is, the conduct of war and management of justice among the indigenes—outside of Dili.
Portuguese army officers inside the garrison at the Comando Militar de Aipelo (Military Command of Aipelo), one of Timor's most infamous prisons, ca. 1900. From the photograph album of Lieutenant Carlos Leitão Bandeira. Courtesy of António Leitão Bandeira.
Each military commandant, backed up by five or six soldiers, was responsible for representing the Dili government while pursuing a multitude of tasks: he would supervise commerce, collect taxes, develop coffee plantations, and oversee the actions of the government-appointed Timorese traditional authorities (who the Portuguese acknowledged as colonels and kings). Finally, commandants were to act as primary executives of the governor's law throughout the many and diverse indigenous reinos (kingdoms) of East Timor. Far from Dili, they were the executives of justice and the bearers of the governor's words and powers. “For them [Timorese] the military commandant is the realization of all authorities,” Celestino da Silva later remarked, “they do not consider justice good, other than the justice practiced by the commandant.”Footnote 23
This approach to the administration of indigenous peoples called for the embodiment of native juridical customs and their subsequent use in colonial activity. The agents of this approach were to be the governors and especially the army officers. Establishing a network of officers and commandants, entrusted with wide judicial powers, was central to Celestino's colonizing project and his plans for developing a state-controlled system of coffee plantations. He argued that military commandants had long been the actual providers of Portuguese justice in the Timorese interior and the indigenous people acknowledged and respected their authority. Their courts were pragmatic, efficacious, and economic, and mitigated the great distances separating most kingdoms from Dili's court.
Just two months after his arrival, in 1894, Celestino wrote to Lisbon: “Far from opposing the creation of military commands, the natives long for their creation, and some kingdoms have requested them, because they understand that the officers avoid wars, and guarantee to some degree their welfare, as they idealize and understand it, that [the officers] act as their judges of peace in their very frequent conflicts and save natives the work of having to come to this secretary [in Dili], where things are understood a bit more from above and where the sentences cannot always be taken in harmony with the Timorese uses and customs.”Footnote 24 In other words, it was in the military commands, through the officers' judicial actions, that the law could harmonize with Timorese “uses and customs.”
MAP 1 Map of Military Commands or Districts (Comandos Militares) in Portuguese Timor (1860–1910). Author's map.
The Foundations of Military Districts
Celestino's program expanded on preceding administrative structures that had placed army officers at the center of the judicial system. The template was a territorial reform instituted in 1859–1863 by his illustrious predecessor Governor Captain Afonso de Castro. In 1860 Castro divided the country into military districts, each including multiple kingdoms and headed by an army officer titled a “district commandant.”Footnote 25 This replaced a former, more ancient system in which army officers—called Comandantes dos Reinos, or kingdom commandants—as government delegates, had held similar powers, including significant freedom to settle disputes and settle cases on the governor's behalf.Footnote 26 In 1860, Castro authorized the officers posted in the kingdoms to hear lesser judicial cases that involved indigenous people, declaring, “The Commandant will do justice as he pleases, afterwards communicating the events to the governor.”Footnote 27 Only more important cases, from which wars and conflicts could be foreseen, had to be reported directly to the governor. The governor, not a formally appointed judge, held supreme authority in judicial matters that involved indigenous people. Later, in 1892–1893, Celestino's immediate predecessor, Governor Cipriano Forjaz, submitted to Lisbon a proposal to organize Timor as an “Autonomous Military District.” He intended to reinforce the powers of military officers, who would continue to “judge and punish according to the uses of the country.”Footnote 28 Thus officers, who were usually geographically isolated, enjoyed great discretion in exercising their judicial powers, and the highest government authorities had granted them the power to do so since at least 1860.
This scheme of placing the military at the center of administrative affairs articulated with a diffuse local understanding that army officers were executive delegates of the Portuguese governor and, as such, held powers of war and justice in the interior. This understanding partly expressed the indigenous incorporation of the governors and officers into Timorese conceptions of power and authority. In these conceptions, power was diarchical, expressed in sets of dual and complementary oppositions such as “ritual” and “jural” power, with the later encompassing the affairs of justice and war. For indigenous peoples, Portuguese governors and officers came to embody the sorts of jural powers held by Timorese jural chiefs, called liurai (a Tetum-language term meaning “lord of the land”).
The Portuguese military had been a regular presence in Timor since the sixteenth and seventeenth centuries and over time Timorese had come to see them as mythically legitimated holders of politico-jural authority, portrayed as autochthonous returning “younger-brothers.”Footnote 29 Accordingly, throughout the second-half of the nineteenth century, Timorese envoys approached the Portuguese governor in Dili with requests that he mediate disputes and wars involving indigenous aristocracy and royalty. Sometimes the governor was asked to carry out pacifying measures or punitive interventions.Footnote 30 In 1905 Celestino da Silva claimed the Timorese referred to the governor as “great justice maker” (grande justiceiro).Footnote 31 One account of 1860 claimed the governor was the only European judicial authority acknowledged as such by the Timorese liurai, who the colonial government had also given the title of reis (kings): “The Timorese kings do not understand the authority of the judge [of law]; they understand only that of the governor….”Footnote 32
Codification and Praxis
By the 1890s, officers' enduring role as the governor's delegates amidst the Timorese kingdoms was formally acknowledged by local regulations. Army officers exerted important influence in judicial affairs inland, juxtaposed and sometimes in competition with traditional Timorese authorities. Though their presence was episodic and uneven across the territory, it had since at least the mid-nineteenth century been one of the few administrative bonds between Dili and the many Timorese polities. In 1894, however, the commands were more or less miserable garrisons, and many had gone for many years with no officer in charge. Celestino da Silva thought the system needed reform, and a new policy that would bolster officers' authority, as agents of a mode of colonial law that conformed to the uses and customs of each kingdom. A key element of the Portuguese strategy of justice in Timor was the reproduction and inclusion of what was perceived to be a separate, different world of Timorese uses and customs. Colonial officers were to systematically learn these uses and customs and accurately reproduce them in their judicial practices. In a wishful future, they would be codified into Portuguese legislation.
It is in this light that one should read Celestino da Silva's insistent call for ethnographic studies of Timorese uses and customs, and his corresponding elaborations on the workings of jural administration. The production of ethnographic knowledge about Timorese cultures was understood in relation to a formal policy that officers would deliver a colonial justice to the indigenous population that was informed by Timorese customs. Celestino da Silva prided himself on speaking several indigenous languages, knowing distinct local customs, and “administering justice according to the Timorese estilos [customary law].” He thought that Timor's governance should be based, above all else, on a policy of preserving old customs and indigenous organizations. Indeed, the goal of “civilization of the peoples” would have to be put aside, at least temporarily.Footnote 33
The officers in charge of the districts were the best positioned to acquire knowledge about the particular uses and customs of the kingdoms under their jurisdiction. Their first duty and responsibility was to know by heart the indigenous laws and manners of justice, for they had to take these into account in trials.Footnote 34 The “Instructions to the military commandants” issued by this governor in 1896 further encouraged the officers to apply “impartial and gratuitous justice” to the “natives” on their own terms, in the light of their customs, preferably with the assistance of a committee of indigenous authorities. This was so even though they were, in principle, to avoid contact with, and practically tolerate, certain Timorese “barbaric” customs, such as witchcraft trials and headhunting rites, which were promoted by liurais.Footnote 35 When dealing with indigenous traditions, officers were to consider local circumstances and use their good judgment to determine the appropriate judicial actions to take, and the proper balance between contact and distance, similitude and difference.
In sum, Celestino da Silva idealized the officers, and himself, as faithful but discerning reproducers of the indigenous world. It was an officers' duty to employ methodical contact and study, to learn indigenous law and incorporate it into their activities; in this way “uses and customs” would become a grammar for colonial judicial practice. The norms, customs, and laws that prevailed in the kingdoms were expected, under the officers' command, to become praxis, a process disciplined by contact and observation. If every Portuguese officer excelled in understanding and adopting Timorese customs in the trials he conducted, then the colony could develop agriculture and wars would be avoided: “It is necessary to study the consuetudinary law of the peoples,” stated Governor Celestino, “their regime of land property; in short, the uses and customs, and promulgate for them special laws.”Footnote 36 Mimetic government required forms of ethnographic representation and imagination of the indigenous world through which colonial agents could appropriate and gain power over that which was represented and, ultimately, imitated. In this context, the ethnographic knowledge of uses and customs stood for the idealized techniques through which otherness could be accurately known, thereby providing the materials for the practical reproduction of native life.Footnote 37
For Celestino, this knowledge was to be generated and acquired in a practical rather than academic manner. Prior anthropological training and standardized data gathering were, in this period, not required. Later, his successor would launch the first questionnaires for officers to use to collect data, in a vain attempt to codify “Timorese law.” The codification of uses and customs was a fashionable project of colonial administrations in the second half of the nineteenth century, and it was also a common trope in Portuguese juridical doctrine. It was hoped that officers' practical study and incorporation of local customs would lead to a formal written code of native law, in emulation of projects carried out in other Portuguese colonial territories in Asia and Africa.Footnote 38
In the end, Timorese uses and customs were never codified, and Celestino da Silva seems to have exerted little effort toward this goal. In 1902, he issued juridical forms for standardizing the procedures to be followed by military commandants in their trials, but that did not require codification.Footnote 39 In 1909–1910, with a view to supporting judicial administration and eventual codification, Judge Alberto Osório de Castro prepared an ethnographic survey, which Celestino's successor, Governor Eduardo Marques, required officers to conduct.Footnote 40 In 1916, some responses to this survey were published in the government bulletin,Footnote 41 but these efforts produced no written code and the system relied instead on officers applying their practical knowledge.
A “respect” for local uses and an acquaintance with Timorese customs became a valued dimension of the officers' ethos, and a practical requirement for a commandant's ability to carry out his everyday duties. In this way the principles of mimesis in colonial justice became a grammar available to officers in performing their duties. It evolved into a mode of “internalized mimesis” followed by Europeans acting as de facto judges and commanding warriors.Footnote 42 This probably developed mostly as ad hoc procedure, varying according to the circumstances and idiosyncrasies of each officer. Captain Simões Martinho, an experienced colonial officer, wrote in 1943, “In Timor the codification of the local uses and customs was never seriously considered. Thus the difficulty many [officers] faced in resolving issues between kingdoms, villages, and families in imposing sentences that—in order to be fair—should respect the tradition, the basis of the equilibrium of native society.”Footnote 43 The government would continue to portray the codification of Timorese customary law as a desired goal of its judicial policy, but for the time being the practice of the military commandants would be based on mimesis. In the event, mimesis turned out to be the endpoint.
PLURALISM AND SPECIALIZATION IN JURIDICAL DOCTRINES
This judicial regime, within which Timorese principles tended to remain either above or beyond European legality, seems to contradict unidirectional visions of the mission civilisatrice. In these visions, indigenous societies should transform by assimilating European standards, not the other way around. From this perspective, the importance the regime granted to officers' discretion and the indigenous connotations of justice in Timor could be a source of unease for those who defended the universal application of Portuguese law. In 1882, the provincial governor in Macau—to whom the Timor government was subordinated until 1896—complained, “There is no regular justice [in Timor], nor is the Public Ministry regularly represented.”Footnote 44 And Governor Lacerda wrote with regret in 1877, “Judicial functions were given away to the vassal kingdoms due to ancient uses and perhaps for the convenience of the judges,” whose judicial actions were therefore “much reduced.”Footnote 45 Justice bore no resemblance to European courts outside of Dili.
The very limited scope of the Portuguese judge contrasted with the practical importance of the officers and the liurais in the administration of justice inland. The Dili Judicial District was created in the 1860s, and accordingly a European judge was to be nominated to oversee the implementation of Portuguese legality throughout the territory. But beyond Dili he had little effective authority. When it came to affairs of the indigenous population, the Portuguese judge (when a judge existedFootnote 46) had to either actively observe or passively concede to norms and traditions that the Timorese in their kingdoms saw to be lawful. When a Timorese was brought to court in Dili, the trial, though run by the Portuguese judge, could end up following Timorese customary law rather than the metropolitan regulations. This was true even in criminal cases and probably even if Europeans saw the wrong as abhorrent. “Civil and criminal legislation should be in force in Timor,” Governor Afonso de Castro observed in 1867, “and the judge follows it in his trials, but at every step he stumbles at the Timorese estylos [customary law]. Thus the inhabitants in the kingdoms, who by law should be subject to our laws, are in fact beyond their influence, and many crimes they commit remain unpunished, and many of their actions that violate the law cannot be punished, because among these islanders such actions are innocent uses.”Footnote 47
The freedom of action that nineteenth-century Timor governors granted to army officers in judicial affairs should be understood against the backdrop of an early modern tradition of feeble and limited legal authority of the Portuguese crown across the imperial space, especially in hinterland areas far from coastal trading posts.Footnote 48 There, Portuguese traders, officers, officials, or privateers were often given a free hand to administer justice quite autonomous from official clearance or royal legality.Footnote 49 Judicial practices in distant regions in the empire often escaped the formal rule of law and instead followed “opportunistic, casuistic, and experimental criteria,” observed historian António Hespanha. “Only the judgment and will of their [colonial officials in the interior] constituted the law.”Footnote 50
Thus it may be, as Celestino da Silva claimed in the 1890s, that the officers' entanglements with indigenous jural affairs were rooted in local practices to which both colonial and imperial authorities had given at least tacit approval. Timor's situation was further supported by a pluralist juridical tradition that had borne strongly on Portugal's Asian empire since the early modern period. In this tradition, based on Classical European law, the exercise of law in the colonies implied “respect” toward indigenous organizations and laws, which were accorded a status separate from the European or Christian laws. Local norms established by custom (the estilos) were also given priority in legal and judicial procedures. In the affairs of non-Christian peoples, this approach required the rightful management of the “manners and customs” specific to each community.Footnote 51 Accordingly, the existence of separate indigenous law systems was legitimized by a pluralist doctrine of law that Portuguese codes for overseas territories continued to refer to throughout the nineteenth century.Footnote 52 Moreover, metropolitan law, despite assertions that it would be applied universally, had little force in practice, particularly in the empire's remoter areas. In the name of a “pragmatic politics” of tolerance for indigenous customs, many local systems retained respect and continued to operate independently.
In the face of such pluralism and pragmatism, nineteenth-century Portuguese legislators usually reserved a special clause for the rule of law in the district of Timor, and for indigenous uses and customs in the colonies generally. The civil code of 1867, enforced by a decree of 1869, extended metropolitan civil law to the overseas territories, and both remained in force in Portuguese colonies well into the twentieth century.Footnote 53 They nonetheless also acknowledged the existence of juridical traditions in the colonies, including some hybrid judicial forms and the separate condition of indigenous customary laws, and metropolitan law was not to be applied over the latter. Accordingly, the 1869 decree acknowledged “native law systems” as a basis for colonial justice in a number of Portuguese colonies, including Goa, Macau, Guinea, Mozambique, and Timor. In Timor, application of indigenous customary law was acceptable in trials involving only Timorese people (“disputes between themselves, unless they are opposed to moral and public order”), but if any parties in the case were European then metropolitan law was to be used instead.Footnote 54
By law, then, Portuguese compliance with uses and customs was acceptable, but colonial officials were supposed to remain cognizant of moral limits that would prevent their permitting or applying “absolutely repugnant” anti-Christian laws and customs. In Timor, however, these moral limits were very difficult to observe in legal practice. There were episodes of confrontation when Europeans did try to regulate the most “immoral” aspects of the Timorese jural order, as in 1878–1881, when Governor Hugo de Lacerda and Catholic missionaries launched a violent and ultimately failed crusade to punish a liurai for the killing of women accused of witchcraft. Footnote 55 But great difficulties awaited those who tried to strictly apply European legal and moral standards to Timorese affairs. In practice, the government's entanglement with indigenous customs, including headhunting rites, could be visible and intense.Footnote 56 For, even if governors and officers sometimes opposed this in principle, their abstract ideals often lost out to the pragmatics of local circumstances. One could also see it as Governor Celestino did, that surrendering to the force of local circumstances could well serve the aims of the colonial government.
The Science of Colonial Law and the Critique of “Assimilation”
For Governor Celestino da Silva, army officers' inclusion of Timorese traditions and rules was a pillar of effective colonization, a positive and productive principle in the government of the natives. To reverse the direction of “assimilation” in this way was not a problem of government, but rather a strategic solution to core problems of colonial rule. In 1897, in a report to Lisbon published under the auspices of the Portuguese Ministry of Overseas, Celestino argued vigorously against what we called the “assimilationist” doctrine. To those who framed the judicial situation in Timor negatively—in terms of the absence of judges of law, or deviance from metropolitan legislation—he responded that just because European law was not applied in Timor did not mean that the colony was lawless. On the contrary, Timor was a country under the rule of Portuguese law because Portuguese officers carried out justice in the image of Timorese law. The army officers, he claimed, were by tradition legitimate practitioners of justice, holders of jural powers in the face of custom in Timorese kingdoms: “But don't say the natives do not bring their cases to the [Portuguese] court of law because their habit is to take up arms. This is untrue, because they do abide by the sentences of a military commandant, whom they generally respect, because they see him as a judge of peace, who decides cases according to their customary laws and to whom they pay no [fees]; they only take up arms when [their cases] are not attended to or when the officer does not devote himself to the study of their customs….”Footnote 57
In the governor's opinion, the Timorese heartily accepted military commands because the European commandants applied colonial justice via local custom. Colonial justice in this way mirrored what they considered to be the Timorese estilos, however “primitive” these might appear to Portuguese eyes. The colonial justice of the commandants was good for Portuguese colonialism in Timor because it was made in the image of the indigenous law, because it was, and ought to be, a faithful copy, a facsimile as it were, of Timorese justice. In the final analysis, the incorporation of indigenous rules into colonial justice would increase Portuguese power.
Moreover, this was perceived as a productive colonial moment that would benefit the “evolution” of indigenous societies; this would be one phase in their very gradual path to “progress.” The inclusion of Timorese juridical Otherness into Portuguese government praxis did not contradict European civilizing goals. The imitation of “Timorese uses and customs” did not oppose or contradict the process of civilizing the Timorese. Rather, imitative movements were a required, if provisional step to be taken in the present, with a view to the slow realization of civilization in the future. Mimetic governmentality was presented as a necessary premise of the colonial civilizing process.
In articulating these ideas, the governor was echoing European theories of colonization of his day, and to some extent he was being surprisingly “modern.” The conjunction of colonization policy and mimetic principles was inspired by critiques of so-called “liberal” and “assimilationist doctrines” of legal colonization that dominated the juridical sciences in late nineteenth-century France, and even Europe as a whole.Footnote 58 The science of “colonial law” gained momentum in the French academy as a part of the disciplinary galaxy of the sciences coloniales (colonial sciences), or “sciences of colonization,” that were institutionalized in French higher education system during the period from 1880–1900. Its instrumental purpose was to support a rational form of colonial administration founded on understanding the specificity of colonial vis-à-vis metropolitan societies. That is, administrations of justice and law had to be designed or adjusted to the particularities of each colony and indigenous society. This was the basic principle for a new generation of juridical theories that emerged from the science of colonial law, associated with a set of understandings about colonization that were called “doctrines of specialization.”Footnote 59
The ideas of “specialization” were presented in opposition to the older ideas of “assimilation,” which were declared “out of fashion” by Arthur Girault, the doyen of the science of colonial law in France and himself a former assimilationist.Footnote 60 The specialization critiques accused “liberal assimilationism” of forcing “primitive” societies to receive what they were not yet ready to understand: the higher, complex, more civilized, European law and institutions.Footnote 61 Assimilationism was charged with disregarding the scientific social and natural laws of race and social evolution according to which evolution was a very slow historical process that developed “naturally.” Because “savage” societies were utterly different from “civilized” (European) societies, they could not be forced to evolve abruptly by “violently” imposing European legislation. Sudden and artificial changes would lead only to turmoil, and instead slow and measured corrective changes to native laws and customs should be introduced. The idea of specialization, therefore, was premised upon an ultimate difference and inferiority of indigenous societies vis-à-vis European ones, upon the conception of the colonial regime as a regime of exception.Footnote 62 The specialization argument called for laws that were both specific and exceptional, that were in agreement with the specific racial condition and social evolution of each native society. The science of colonial law thus recommended proceeding patiently, first caring for and preserving indigenous organizations and traditions, coming to their aid but only through minor and subtle interventions, and along the way compiling a “code” of the “native uses and customs.” This, a Portuguese colonial theorist wrote in 1912, was how “intelligent colonizers” should proceed.Footnote 63
As often happened with so-called “modern” developments in French intellectual and scientific life, Portugal tagged along. In the 1890s–1900s, specialization was the main framework of Portuguese scientific doctrines about colonization and juridical action, and it dominated juridical policies and political administration for at least two decades. Specialization was the doxa of the emergent field of colonial sciences and law at the main Portuguese universities, most notably at University of Coimbra. Its advocates played a leading political role in re-launching colonial policy and administration in the Third Portuguese Empire.Footnote 64 Their views dominated the Colonial National Congress held in Lisbon in 1901, and when the Higher Colonial School (Escola Superior Colonial) was founded in Lisbon in 1906, it adopted the specialization paradigm as its framework for teaching colonial officials. Such doctrines were also being welcomed in the remote district of Timor.
SIMPLIFICATION AND ADAPTATION IN THE ORGANIZATION OF JUSTIÇAS
The governor's understandings of law and justice in Timor partially articulated these European juridical theories of colonization. The metropolitan political climate offered another reason for his reading of the situation of colonial justice in Timor: overseas justice systems required legislative changes. In February of 1894 the Lisbon government issued a new Ordinance for the Administration of Justice Overseas (hereafter Ordinance), which was to replace previous imperial regulations.Footnote 65 It established a new territorial organization of colonial justice overseas with an intricate bureaucratic structure of districts and courts run by European clerks, magistrates, and other bureaucrats with law degrees, whose function was to enforce application of Portuguese law. This structure was to be applied uniformly to all colonies. However, in line with pluralist principles and the “specialization” of colonial law, the Ordinance allowed exceptions. These included the local “civil or military administrative chief” playing “transitionally” the role of municipal judge; and also special European courts held for the “natives” according to indigenous law in Mozambique, the so-called milandos. These eventually became an African equivalent to the justiças trials Portuguese officers conducted in Timor, but the Ordinance made no reference to those.Footnote 66
Governors in the Portuguese colonies were expected to reorder their judicial administrations in response to the 1894 Ordinance, but they were given considerable leeway to make adjustments. In December 1896, in reaction to concerns raised by the governor of Mozambique about the Ordinance's application, the Overseas Board in Lisbon issued an official recommendation (circular) to all colonial governors. It instructed them to make adaptations to the 1894 Ordinance—including both the penal and civil codes—according to each colony's particular condition: “adapted to the circumstances, and attending to the diverse degree and civilization, race, and other conditions of individuals subject to penal sanction.”Footnote 67 This prompted local attempts to adjust the metropolitan instructions to the colonies' specific “racial” and judicial worlds.
Reactions comparable to those in Timor occurred in Macau, for example, where the governor was quick to command that the Ordinance be adapted with a view to accommodating Chinese uses and customs within local judicial practices.Footnote 68 In Timor, yet another legislative adjustment prompted district authorities to respond in similar ways. Timor was granted administrative independence from the governorship of Macau, to which it had been subordinated since 1844. In creating the Autonomous District of Timor, the imperial government in the decree of 21 October 1896 instructed Celestino da Silva to reorganize the administration and issue convenient regulations. Unsurprisingly, the governor was told to place reorganization of the justice system atop his list of legislative priorities.
Adaptation and the Merge with Otherness
The 1894 Ordinance, the 1896 circular, and the royal decree all gave the governor and his staff in Timor a means to legitimate their approach. It provided an opportunity to articulate, in concrete proposals and regulations, a theory of colonial government that privileged the colony's singularity, and adapted the recent metropolitan instruction to the “special” realities of justice in Timor. The principal outcome was a long and thoughtfully argued document entitled “Project for the Adaptation of the Ordinance of Justice and Simplification of the [Judicial] Processes in Timor” (hereafter “Project”) that the governor of Timor submitted in January 1897 to the Ministry of Navy and Overseas Affairs with a request for “urgent” approval. It argued for the advantages of granting legal recognition to the de facto efficacy of the age-old officers' judicial authority and their courts in the interior. These were the so-called justiças trials Portuguese officers conducted among the Timorese people in the interior, whose workings allegedly conformed to indigenous traditions. The project was welcomed in Lisbon, where a council appointed by the Overseas General Board analyzed the proposal over the course of 1897. Sensitive to the arguments for adaptation and simplification, the legislators decided to adopt the organization of justice proposed. A few minor legislative points were suppressed and some modifications in the final language were made, but in substance as well as in much of its form the proposal was maintained. In consideration, the final decree stated, of the “peculiar circumstances of the colony,” the king of Portugal approved the new administration of justice in Timor as law on 30 December 1897.Footnote 69
Judge Albano de Magalhães and the Project's Mimetic Rationale
In Timor, a specially appointed committee presided over by Governor Celestino discussed and prepared the Project. But in the final text and its juridical theorizing (probably written by the author of its gracefully argued preamble) one can read the authorial voice of Albano de Magalhães (figure 3), the young Portuguese judge in Dili since June 1895, and arguably Celestino da Silva's fellow in redesigning judicial administration. Magalhães's vision helped shape the governor's perspectives. In a letter of July 1895, the judge had presented extensively his thoughts about colonial justice in Timor in terms that strikingly convey the later opinions of Celestino, including his mimetic rationale.Footnote 70 Magalhães was a law graduate from Coimbra University and a fierce anti-assimilationist and advocate of specialization doctrines in colonial law. He elaborated on both topics in a 1907 book that compiled his juridical thought and work in the colonies.Footnote 71 His book eventually became a reference for up and coming Portuguese scholars of colonial law and advocates of specialization. Magalhães had already served in Goa and Macau and was on the path to a successful career as a colonial judge overseas.Footnote 72 In 1898, just after his appointment in Timor, he returned to Macau to become a judge, and there he was actively involved in the “adaptation” of the Ordinance to the specificities of the Macanese judicial order, and particularly to the Chinese uses and customs that Magalhães's intended to study and codify.Footnote 73
Judge Albano de Magalhães in Macau, 1900. Courtesy of Teresa Ramalhão and Museum Pio XII, Braga, reference MPXII.C.O.F.001.
The Project's preamble set out the two basic tenets for the proposed regulation: adaptation and simplification. The terms “adaptation” and “simplification” in the project title are pivotal to understanding the grounds upon which the proposal was argued, and the mimetic praxis of colonial justice in the military districts that it theorized and defended. Adaptation articulated the sociological-juridical arguments for specialization—it argued for separation between European and indigenous law systems, and for the need to adapt legal regimes to the “primitive” stage of indigenous social evolution found in the colonies. The indigenous world was to be ruled by European colonizers, but in obedience to legal codes based on indigenous traditions—the uses and customs.
The Project premise was that metropolitan law, and the laws in force in Portugal's African colonies, were inappropriate to the administration of justice for the Timorese because they were sociologically and evolutionarily inadequate. Colonial justice should instead reflect Timor's different and very specific local situations. “To administer justice in Portugal is not the same as administering it in China or in Africa!” stated Magalhães.Footnote 74 “It is a grave error,” Celestino later added, “to believe that the laws that ruled us and rule us still in the kingdom can be applied to black Africans, Indians, and the Timorese.”Footnote 75 Rather than importing and imposing exogenous rules on Timor, it was necessary to create a special set of laws and judicial praxis in harmony with the local conditions. It was necessary to adapt, and to put metropolitan law aside. The adaptation being called for had a double meaning: the need both to adapt European law and justice to indigenous institutions, and to adopt, as faithfully as possible, the Timorese uses and customs in colonial practice.
Such a “special” world of colonial law, it was argued, ought to spring from local ways and indigenous traditions. To organize colonial justice, Timorese judicial norms had to be taken on, selectively and correctively, with the expectation that the natural law of evolution would follow its logical course. In order “to legislate for [the natives],” Celestino observed, one should “make use of what is usable in their habits, their customary law, and their social mode of being, while correcting all that is bad for progress.”Footnote 76 However, the Project made no direct reference to moral limits and corrections. Instead, it conveyed the image of an almost unlimited merging with indigenous justice, guided by a government approach oriented by empathy toward indigenous customs, however barbaric and “repugnant” they might seem to Europeans. “In order to govern these peoples,” stated Magalhães in 1907, “requires an enormous effort of understanding of their social world … and through an abstraction of the spirit, we have to transport ourselves to remote ages of history.”Footnote 77 Consequently, Magalhães made the radical recommendation that the Portuguese suspend their abhorrence of savagery, and “accept and respect” even the most seemingly barbaric Timorese customary justice, such as trials and executions of those who the liurais accused of being suangues (witches).Footnote 78 The colonizers were called on to adapt to the local environment to the point of putting aside their European self and yielding to the laws and manners of the colonized. Here the rhetorics of adaptation can be read as a colonial attempt to master the indigenous world by becoming similar to it, as an expression of the exercise of the mimetic faculty, what Walter Benjamin called that “powerful compulsion to become and behave like something else.”Footnote 79
The Project's preamble of 1897 eloquently displayed the crucial conjunction of adaptation, evolution, and mimesis. Further, it prioritized a rationale of surrendering to the otherness of the indigenous social world: “To force them to accept and respect the present [Portuguese] institutions is to delay their becoming accustomed with our way of judging. We must merge them with our social manner, but for that we must first merge ourselves with their social manner. The change will be gradual, imperceptible almost so as to cause no constraints and agitation in the fearful spirit of the natives. It is necessary to impose norms and principles of justice, but through a phased development of the judicial institutions, progressing toward the present state through harmonious steps molded from their own development.”Footnote 80
Again, the rules set out in the Project applied only to justice that concerned non-European people in Timor. The army officers' jurisdiction was formally limited to the administration of indigenous justice. Officers could not try cases involving “someone who is not a native from Timor, a Chinese, a Malayan, or an African or an equivalent to these.”Footnote 81 The legitimacy of the officers' juridical authority stopped at an imaginary ethno-racial boundary. Trials of “civilized persons” were to follow “civilized” law, and such trials would be the preserve of the law magistrate in Dili. Nevertheless, in praxis and even in theory the boundary of this dualism was sometimes ambiguous, and Europeans, too, could seem to be subject to indigenous law and authorities.
A few years earlier, in 1892, Governor Cipriano Forjaz had likewise advocated the sovereignty of his officers' judicial powers, according to local uses and customs. However, the ethno-racial scope of the officers' authority and their indigenous-style justiças courts was apparently broader, and Forjaz defined justiças as trials that encompassed “questions among natives” and “also between [natives] and Europeans.” In both instances, he said, the officer should arrive at his decisions with the aid of Timorese kings and nobles “according to the uses and customs of the country.”Footnote 82 From this view, Europeans could be the objects of the European judicial activities that replicated the indigenous system. They could be taken to the officers' justiças and, apparently, be judged there just like any Timorese, according to uses and customs, before army officers and their Timorese authoritative auxiliaries.
The Pragmatics of Simplification and Accommodation
The case for simplification implied a pragmatic justification, and it also fit within the precinct of specialization doctrines: simplification was an adjustment that attempted to make judicial organization conform to both the practical circumstances of colonial administration and the imagined primitive social and mental levels of indigenous peoples.Footnote 83 In order to set up a system that was “stable,” “economic,” efficient and “respectful of the traditional uses” preservation rather than innovation had to be privileged, allowing only for minimal changes in existent judicial structures. Economic and pragmatic reasons were also evoked—Timor's poor finances could not afford drastic changes, and most military command houses in the interior were too far away to allow for the expensive and intricate requirements of bringing witnesses to testify in Dili's courts. Simplification of the justice system was further advocated on racialist grounds, because it was the best fit for the “simple” and “primitive” natures of the Timorese mind and society. Against complex European procedures, the Timorese preferred “cheap, quick, and simple justice.”Footnote 84
The Project claimed that economic and practical efficiency could be already found in Timor's former institutions, the justiças. “The military commandant in this country,” it was explained, “must be a factotum by force of circumstances.”Footnote 85 The officers and their justiças were an ancient and effective Portuguese colonial custom of justice that should be preserved for the benefit of colonial rule. Accordingly, the Project proposed to substitute the idealized territorial model of the Ordinance—a cascade of petty judges, clerks, and law graduates that had never existed in Timor—with a system based on the existing network of military commands, under a vague and “moderate supervision” of the judge in Dili. Commandants took on the title and attributions of territorial judges (juízes territoriais) and freely dispensed a type of summary justice in their districts. They were expected to try civil cases and exercise conciliatory and punitive justice, and were also invested with the power to mete out punitive sentences in the form of fines (multas), prison terms, and forced labor. Cases were to be decided in accordance with the uses and customs of each different Timorese kingdom, and officers were told to employ simple methods—proceedings were to be summary, quick, and verbal, avoiding bureaucratic complexities of length or documentation. No fees were to be charged. Thus in conducting their justiças officers had considerable independence and exercised justice “without subjection to other precepts than those which the laws impose and the consciousness inspires.”Footnote 86 “Laws” here were the customary rules and punishments that “the Timorese” felt bound to accept.
Granting legal status to the justiças and to officers' authority in 1897 was simply a matter of putting on paper a de facto arrangement, a “tradition” that had proved of great practical success. “This is not an innovation,” Magalhães claimed, “because this is what is done today throughout the whole district, where the military commandants are the true judges.”Footnote 87 “My proposal,” Celestino da Silva observed, “aims just at making legal what is done already for the peoples' satisfaction, and it is indispensable that it continue.”Footnote 88 The commandants' style of justice was already “a custom consecrated by the uses and customs since long ago,” and as such was it accepted “spontaneously” across the Timorese kingdoms.Footnote 89 The good results long since achieved in the governance of the indigenous sufficed as proof of their importance and utility. The practice of justice in the image of Timorese customs needed to continue for the sake of colonial rule. Celestino da Silva reinstated the point:
The commandants have performed the so-called justiças since ancient times, and they decide on questions of even greater importance than do judges of first instance, and their sentences are in accordance not with the [Portuguese] Civil Code, but with the peoples' uses and customs.… [The people] are happy with their sentences which, also according to their uses and customs, are written down in the presence of witnesses and signed by them and by the contestants. All military commandants devote one weekday to these justiças, and very tiresome they are, because one “audience” generally lasts from morning until evening.Footnote 90
Critical to this pragmatic argument was the idea that the justice the officers' delivered was effective because it was a repetition of indigenous justice, because it was in the image of the trials and judicial courts of the traditional Timorese jural authorities. In July 1895, Magalhães emphasized this point in a letter to Governor Celestino. The Timorese accepted the officers' authority in their judicial matters, he argued, because the European way of administering justice—the justiças—was “a perfect reproduction” of indigenous customary justice: “Simple, easy, straightforward formulas should be adopted, because formulaic requirements and [imposition of] strict norms and customs will, in these cases, make justice difficult. Also, the peoples of Timor have so easily accepted justiças because they are a perfect reproduction of what they have conceived as justice since time immemorial, and because of the swiftness of solutions … through which the commandant exercises justice. [Yet it is delivered] free, as the justice done for savage peoples must always be, for they are always poor, extraordinarily poor!”Footnote 91
It was claimed that the military commands had legitimate authority and the justice they dispensed was accepted because the Timorese did not see Portuguese justice to be invasive, strange, distinct, “European,” or colonial. The capacity to exert colonial authority in jural affairs equaled the capacity to become the other by methodical imitation, to reproduce “perfectly” the Timorese traditional world. The Project of 1897, in sum, proposed to institutionalize a system that reproduced an imagined juridical alterity, thought to be as ancient as Timorese juridical traditions themselves.
From this perspective, justiças were age-old courts run by Europeans in an indigenous way, systematic, calculated replicas of indigenous justice considered lawful by force of (Timorese) custom and tradition. Yet some accounts did suggest that these courts were in fact composites, developed through complex mutual transactions between the colonial and indigenous cultures. One example is an account by Magalhães himself, who presumably attended to such courts.Footnote 92 In 1895, he described a typical justiça: “during successive days,” the officer called and heard a number of witnesses, listened to opposite arguments, and then pronounced a sentence “after consulting, sometimes, the maiorais [Timorese noblemen].” Finally the sentence was rendered “sacred” through indigenous rites such as the “sacrificial” killing of buffaloes.Footnote 93 This description suggests how customary law and justice, in Timor as elsewhere, was a fluid and complex field of interactions in which both Portuguese and Timorese actively participated through authoritative rites, norms, and objects.Footnote 94
In fact, traditions such as the justiças developed over the years as combined European-Indigenous constructions, built from innumerable cross-cultural transactions. Since the early years of the Portuguese presence, in the seventeenth century, institutions relating to war, politics, and justice had been blending into a complex interlaced world. By the 1890s, it was difficult to say any were purely Portuguese or Timorese.Footnote 95 Thus at least some of the so-called “native customs and laws” that the governor and the judge viewed, and expected to reproduce, as pure expressions of the indigenous world were at least partly foreign in origin, partly expressions of the Portuguese self. This being the case, the Portuguese governors and officers who reproduced “Timorese law” in the 1890s were imitating also their colonial predecessors. In endorsing mimetic government they succumbed to the otherness of not just the indigenous world but also that of their European ancestors who had worked on the island across the decades.
CONCLUSION
In this essay, I have examined mimesis as a theory of and strategy for the administration of colonial justice. I have extended and revised Taussig's insights into the colonial magic of mimesis to help us understand the productiveness of mimesis as a rationalized form of the colonial governance of indigenous populations. I have advanced the concept of mimetic governmentality to account for historical processes in which mimesis was rationally theorized and organized into political technologies and forms of knowledge. These were applied to “governing others” through descriptions, embodiments and reproductions of the perceived otherness of the governed. A net of mimetic practices, theories, and images of the indigenous world, manufactured over time, laid the groundwork for the magic of mimetic government. This is magic that springs from the colonizers' belief that colonial copies of indigenous customs could unleash a startling force of governance, one that came from surrendering to and acquiring the character of the Other.
Europeans took indigenous law, as they understood it to exist, and made it their own, incorporating into colonial justice social and cultural forms believed to be indigenous. In East Timor the Portuguese governor and judge evoked pragmatic arguments and contemporary theories of law and colonization to devise a legal system based upon officers' systematic inclusion and replication of juridical otherness. This constituted a theory of mimetic government set forth as both an interpretive scheme for describing existent structures and past procedures and an administrative directive for the future. This was a colonial strategy and a normative framework meant to provide officers in the military commands with guiding principles for good governance. Timorese uses and customs were to be extracted and copied in the officers' courts and then applied to Timorese peoples in the form of colonial justice.
This case study shows how, at the apex of European imperialism and claims to be pursuing the “civilizing mission” conditions were ripe for the development and organization of mimetic approaches to governance. During this period of late imperialism, the mimesis of the indigenous in European colonial imagery transcended pejorative visions of “primitive natives” aping their “racial superiors” and fears of European whites falling into savagery by “going native.” The trope of imitation could, as in the present case, be put into play as a form of administrative rationality. It could productively convey a rational theory for colonial action, a particular art of government, and an industrious European faculty for colonization. It can be analyzed comparatively as a form of governing others that manifests a general principle of surrendering and adapting to the indigenous and the local. This same principle can be seen to have been at work in other institutional settings and colonizing projects, and not only in arenas of law and justice. The concept of mimetic governmentality can be used to investigate how European colonial administrations succeeded only by working to adopt, model, or fashion themselves on received local and indigenous structures, as they understood them.Footnote 96 Colonialism often required indigenous foundations, and such foundations could be laid through processes of mimesis.
