In the summer of 2020, tens of thousands of people took to streets and squares around the Netherlands under the banner of the Black Lives Matter (BLM) movement. Though initially characterized as demonstrations of solidarity with BLM protesters in the United States, participants quickly made clear that their grievances were rooted firmly in Dutch soil. Signs bore the names of unarmed men of colour who died in police custody, chants urged municipalities to ‘Kick Out Black Piet’ by ending public displays of blackface during annual holiday celebrations, and many speakers called for Dutch institutions to ‘decolonize’ by reckoning with their own colonial history and racialized legacies. In the weeks following the demonstrations, many such institutions – universities,1 museums, corporations, major political parties and parliament – all made statements against racism that at least included references to structural or institutional change.
Defining institutional or structural racism, or other kinds of structural injustice, and by extension identifying the parties responsible for addressing it, can be difficult.2 Philosopher Iris Marion Young dedicates an entire book, Responsibility for Justice, to the subject. She defines structural injustice as existing ‘when social processes put large groups of persons under systematic threat of domination or deprivation’.3 Institutional racism, then, is the combination of social processes which link domination, and its material advantages, to the group of people deemed white, and oppression, and its material deprivation, to those deemed non-white.4 Whiteness, like all other racial categories, is of course a social construction, not a biological characteristic. To call something socially constructed, however, is not the same as saying it does not make significant, material differences in people’s lives, or that these differences are not ‘produced and sustained by law’.5
Law schools are particularly interesting places to address both demands to address institutional racism and to decolonize institutions in any given nation, because legal education is both ‘profoundly national’ and ‘unabashedly normative’; it is national because the bulk of legal doctrine taught comes from domestic law, normative because cases are studied not only as the ‘official record’ of historical events, but also held up as examples of how similar conflicts should be solved in the future.6 Legal teaching also impacts society because only law students may become lawyers or judges. They apply what they have learned, make new case law, and the cycle repeats.
Because of their important societal role, addressing institutional racism (along with sexism, heteronormativity, ableism etc.) at law faculties should be a multi-layered process. Recruitment and retention of underrepresented groups of students and staff, teaching practices and research priorities must all be considered, in addition to curricular choices.7 Law faculties face the additional complexity of having to harmonize their curriculum with the bodies that regulate the legal profession. Institutional change may be slow. Those of us teaching at Dutch law schools, however, do not have to wait for commissions to be formed, reports to be revised, or research grants to be distributed. By incorporating two theoretical approaches and existing historical research on race and colonialism in the Netherlands, Dutch law school teachers can begin addressing structural racism and colonial legacies as soon as the next teaching term.
Section 2 describes three theoretical approaches – decoloniality, Third World Approaches to International Law (TWAIL) and Critical Race Theory (CRT) – which can help challenge colonial and racialized assumptions in how we teach. Section 3 provides several cases and examples of these assumptions and practices from Dutch legal history that could serve as jumping off points for what we teach in several core, doctrinal law school courses.
2. Decolonial and Critical Approaches to Legal Teaching
One challenge inherent to legal teaching is that it sits at the crossroads of academic education and practical training.8 In Dutch these different concepts are embodied by the terms onderwijs as opposed to opleiding. We want our students to analyse and evaluate sources critically and to think creatively (onderwijs), but we also want them to learn relevant laws and apply them correctly (opleiding). Most Dutch law schools, like their counterparts in other parts of the world, include a first-year course that teaches students that learning to ‘think like a lawyer’ is the first step of their education.9 Many schools teach some version of the IRAC method, instructing students that legal problems should be solved by identifying the legal issue (I) and corresponding rule (R), statute or precedent, applying or analysing (A) the rule to the facts of the situation and reaching a correct conclusion (C).
A problem with these courses, as identified by Professor Bal Sokhi-Buley, is that this ‘thinking like a lawyer’ means thinking, often exclusively, like a legal positivist.10 The emphasis on positive law as being the only legitimate rule (R) applicable to any given question, assumes the legitimacy of that law and the state that enforces it, and deems questions of equity or fairness irrelevant to solving legal problems.11 If positive law itself reflects historical (often colonial) power dynamics, then students risk reproducing those dynamics under the guise of neutrality, objectivity and legitimacy.
To be sure, many law teachers in the Netherlands incorporate social context into their courses, and attempt to stimulate critical thinking among their students. They often portray themselves and their practices, however, as being outside the mainstream.12 This self-identification as different is not limited to the Netherlands, but is echoed in publications about legal pedagogy from various parts of the world.13 Once the idea that positivist thinking is legal thinking takes hold, often early in the first year, it is very hard to dislodge.14 Students learn that non-positivist arguments, sometimes called policy considerations, do not matter for ‘real lawyering’; when teachers try to insert critical or contextual discussions into doctrinal courses, they are asked if the material will be required on the exam. Courses such as those on migration law or human rights, which may address questions of policy or equity, are often offered only as electives or in later years, when students may avoid them altogether.
Treating legal positivism as one of several theories about law and lawyering, and exposing students to a variety of those other theories, is one way to begin decolonizing legal education.15 ‘Decolonizing’ a university discipline remains a contradictory idea, since core ideas of decoloniality include breaking down disciplinary boundaries and hierarchical knowledge production.16 What law teachers can do, however, is provide students with tools to identify colonial power dynamics operating within the discipline, and enable them to be both more critical and creative in doing law to create a more just world.17 In the Dutch context, where learning about colonial and racialized history in elementary and secondary education remains marginal,18 higher education must fill in factual as well as methodological gaps.
Two theories that can help students learn critical thinking skills, as well as address issues of race and coloniality in law, are Third World Approaches to International Law (TWAIL) and Critical Race Theory (CRT). Either would be an appropriate topic for a legal theory course, but could also be interesting as frameworks through which to approach questions of Dutch law.
2.1 Third World Approaches to International Law
TWAIL’s central premise is that international law has its origins in global colonialism, when concepts like territorial sovereignty and mutual respect for borders were inherently racialized and reserved ‘for white First World states’.19 Beginning in the seventeenth century, European countries engaged in ‘reciprocal recognition’ of each other’s rights to territorial control and self-determination, while simultaneously denying such recognition to people in Africa, Asia or the Americas.20 These initial treaties made possible the subsequent racialized enterprises of chattel slavery and colonialism, which were in turn created, regulated, financed and enforced by combinations of domestic and international property, commercial, contract and criminal laws.21 As international law continued to develop, following formal independence of former colonies in the mid-twentieth century, ‘[i]nternational legal equity, heavy on formality but grossly lacking in substance, proved to be rather meaningless, for the acquisition of political freedom was negated by the continued economic fealty of former colonies’.22 Rather than combating colonial power dynamics, TWAIL argues, the stated neutrality of international law only masks the problem. While TWAIL fits most naturally into questions of international law, its approach would be useful in any class that assumes the legitimacy of the nation state or its laws.23
2.2 Critical Race Theory
CRT has its roots in legal realism and Critical Legal Studies (CLS), both of which reject as myth the idea ‘that legal institutions employ a rational, apolitical, and neutral discourse with which to mediate the exercise of social power’.24 This myth is especially strong in European legal scholarship, which maintains that it was precisely law’s ‘neutrality’ and ‘truth’ that allowed it to prevail despite a history of changing kings, governments and borders.25 CRT like CLS argues, however, that law can be and has always been deployed by those in power to maintain or expand that power. Likewise, CRT and CLS both see knowledge and power as ‘inevitably intertwined’ and thus agree that legal discourse is, as such, an area where power asserts itself.26 Under this rationale, legal scholarship and, by extension, legal education are inherently political.
CRT departs from CLS when it comes to the relevance of both race and law to each other. While CLS has the tendency to deconstruct law to the point of irrelevance and thus discount its use for social change, CRT recognizes the material significance of legal victories in the US, like expanded access to education and voting, as well as the power of visibility gained through such efforts by and for non-white people.27 Likewise, while some CLS scholars call for discontinuing the terminology of race in general, CRT scholars, like their TWAIL counterparts, reject this development as counter-productive, leading instead to continued racism without the terminology to address it.28 What CRT scholars emphasize above all is ‘the absolute centrality of history and context in any attempt to theorize the relationship between race and legal discourse’.29
The inquiry at the heart of CRT, which could be adapted as a methodology for evaluating Dutch legal history and practice, is how law constructs race.30 To provide answers, CRT scholars often use the ‘critical historical method’, examining the facts and impacts of specific cases, or chains of cases, in which ‘neutral’ principles of law were deployed to obtain the opposite effect.31 Studying seminal cases in tandem with other historical evidence shows that current legal meanings of equality and fairness are neither natural nor inevitable ‘but, instead, a collection of strategies and discourses born of and deployed in particular political, cultural and institutional conflicts and negotiations’.32 While the critical historical method may come more naturally to common law scholars, who trace legal principles and precedents forwards and backwards in time through case law as part of their regular practice, it is no less relevant in the context of Dutch legal teaching, where seminal cases are routinely used to illustrate core concepts.
An early CRT article which exemplifies the critical historical method, as well as the material impact of legal constructions of race, and that could serve as a good model for evaluating and teaching Dutch legal constructions of race, is Cheryl Harris’s 1993 article ‘Whiteness as Property’.33 Harris traces an unbroken line through United States legislation and jurisprudence, in which whiteness evolves from an aspect of identity into a vested interest, constructed and protected by law just like any other form of property.34 Like all forms of property, whiteness derives much of its value from the right to exclude non-holders from its benefits.35 Harris identifies two US legal institutions which form the basis of whiteness as property: private ownership of land premised on abrogating the property rights of indigenous people, and chattel slavery imposed on enslaved Africans.36 Since its publication nearly 30 years ago, Harris’s concept has been applied to other settler-colony states like Canada, Australia and Israel.37 There is no reason to think it would not also serve as an interesting template against which to evaluate Dutch law concepts of property and personhood, since the acquisition of property through colonial expansion and chattel slavery were also significant projects of Dutch legal institutions.
This paper in no way suggests that applying CRT or TWAIL in the Netherlands is new. Betty de Hart, for example, has written extensively on the legal regulation of ‘racialized mixture’ both in Dutch colonies and the metropole, and currently leads the Euromix Project at the Free University of Amsterdam (VU) conducting similar research throughout Europe.38 Guno Jones, cited extensively below, has researched the intersection of law, race and citizenship for people from former Dutch colonies.39 Thomas Spijkerboer studies race and migration, and recently has published with Karin de Vries an article about race and EU migration law.40 Barbara Oomen has written about teaching TWAIL concepts in the liberal arts context of a University College.41 It is telling, however, that only one of the above scholars (De Vries) is regularly engaged in teaching required, doctrinal courses like constitutional or administrative law.
3. Cases and Context from Dutch Legal History
Fortunately for law teachers, Dutch historians have rushed in where lawyers fear to tread. Law teachers can use cases highlighted by these historians to teach both CRT and TWAIL methodologies to their students, imparting valuable legal skills and perspective to the Dutch law curriculum. What follows is not a comprehensive literature review of all current historical scholarship on issues related to colonialism, race and law; such a review is nearly impossible given the explosion of research on these topics at the moment.42 Rather, it is a suggestion of several seminal cases or themes that could be adapted for discussion in a variety of legal courses and subjects, broadly following Harris’s emphasis on the institutions of colonial property and slavery.
3.1.1 Slavery and sovereignty
Historians of race argue that, while the practice of enslavement itself had a long tradition in Europe, racialized slavery based on notions of white supremacy took hold in western Europe around the mid-fifteenth century to justify Portuguese enslavement and commodification of people captured from Africa.43 For centuries before, Vikings raided the British Isles and forced captives to work; Greeks and Romans did the same to prisoners of war. People from Italy and Spain captured and traded so many ‘Slavic’ people that the term became synonymous with the status.44 However, while many European enslavers also raided and enslaved African people, the Portuguese were the first Europeans to do so exclusively. It was not a choice; they had been excluded from the Eastern European trade by their more powerful neighbours, but the Portuguese turned their exclusion into a public relations opportunity. They portrayed their exclusive traffic in enslaved African people as a Christian mission to save ‘those souls that before were lost’, in contrast to the immoral traffic of their competitors.45 Gomes Eanes de Zurara spread this message in his biography of Portuguese Prince Henry the Navigator, which ‘became the primary source of knowledge on unknown Africa and African people for the original slave-traders and enslavers in Spain, Holland, France and England’.46 The Spanish and English adopted and expanded this moral and religious justification for the Americas, where they also used it to justify taking land from the non-Christian, non-white people they found there.47
In The Dutch Atlantic, Kwame Nimako and Glen Willemsen argue that religious and moral justifications for racialized slavery and conquest left an absence of legal clarity in pre-colonial Europe, an ‘age of banditry’ and war between European kingdoms.48 The treaties that ended those wars also established the first international laws regulating overseas expansion. Foundational amongst these treaties was the Peace of Westphalia, signed in 1648 by entities that became Germany, Spain, France, Sweden and the Netherlands. It not only ended the 80 Years War for Dutch independence from Spain, and established the Catholic and Protestant alignment that would define early Western Europe, it also ‘set the parameters for competition and cooperation within European statecraft … [which] formed the basis of European sovereign states and the related interstate systems’.49 The signatories recognized each other’s rights to territorial control and self-determination within their borders, at least temporarily; doing so, however, amounted to non-recognition, not only of the territorial sovereignty of those outside the treaty, but also of their humanity. More explicit in its legal construction of race was the Treaty of Utrecht which, in 1713, included the ‘asiento de negros,’ a licence awarding the exclusive right to provide enslaved Africans to the Spanish colonies in the Americas, to a British company.50
Historians Dienke Hondius, Karwan Fatah-Black and Matthias van Rossum all observe that many labourers in early modern Europe were ‘unfree’, but that even ‘the lowliest white peasant, literally the serfs, could not be sold, while enslaved people could’.51 Hondius explains, ‘the terminology of legal status of Africans became entangled with the terminology of color’ by borrowing vocabulary from the Portuguese; terms like negro had no independent meaning in Dutch and were borrowed to describe the appearance of Black Africans but ‘at some point during the 16th century … took on a second meaning of slave’.52 Hondius observes that people were referred to by their skin colour so long as that colour remained remarkable. Once race denoted by skin colour was considered normal, references to skin colour end; there would be no need to specify ‘Black slaves’ or ‘African slaves’, Hondius explains, because an expected precondition of being enslaved was to be both Black and African.53 This disappearance of racial terminology from the archive in cases where race clearly played a role is evidence of what some scholars call racial aphasia, the deliberate obscuring of the role of race, white supremacy and colonial power relations from cases in which it clearly plays a role,54 also a practice present throughout Dutch legal history.55
3.1.2 Slavery and criminal law
In the 15 years during which I practised or taught criminal law, the metaphor I heard most was that of the sword and the shield: criminal law gives the state a sword, a monopoly on violence within its territory; in exchange it shields subjects from violence, from each other and the state, unless they are convicted by due process. ‘What about prison?’ someone would always say, ‘that’s not violent’. ‘It is if you try to leave’, I would reply. Deprivation of liberty always involves violence and, in this way, slavery is intrinsically bound to criminal law. Enslavement, however, was always the sword, rarely the shield. Pointing out the racialized inconsistency in legal lore like the sword and shield is a step, not only towards acknowledging unjust violence enacted by law historically, but also in getting students to remain vigilantly critical about how state violence may be deployed today.
Historian Nathalie Zemon Davis explains that, unlike their French or English counterparts, the Dutch Staten-Generaal did not issue any regulations regarding the treatment of enslaved people in the Atlantic colonies. Instead, they relied on Roman law defining ‘domestic jurisdiction’ over property, and allowed colonial administrators or chartered societies to formulate guidelines regulating the use of violence against the enslaved.56 ‘Domestic jurisdiction’ did not mean, however, that the state was not involved in the violence of Dutch slavery. In the first place, enslavers were rarely if ever sanctioned for violating ‘guidelines’ regarding corporal punishment. Further, the state characterized resistance by enslaved people as criminal; attempts to escape or assist others in doing so was theft of property, as opposed to justified self-defence of one’s own body. Resistance by enslaved people was nearly constant, as were the heinous punishments, often state-administered, designed to deter others from similar action.57 When resistance by enslaved people escalated into all-out war, the Dutch military became involved, sometimes even receiving support from its European allies in the Caribbean, and broadening the issue from domestic criminal law to international policy.58
While many descriptions of the violence of Dutch slavery focus on the western colonies, race, violence and criminal law were similarly constructed in the Dutch East Indies. In ‘Slavery in a Slave-Free Enclave’, Karwan Fatah-Black and Matthias van Rossum observe that, although Dutch practices in the East Indies did not include the large-scale trade in enslaved people like that in the Atlantic colonies, there was nevertheless an extensive use of ‘unfree [racialized] labor’, both tolerated and supported by the state.59 This status was enforced by European plantation managers exercising extreme violence toward labourers, and experiencing little or no legal sanction for doing so.60
One factor that does distinguish the use of violence in the Dutch East Indies from that in the western colonies was how much longer it was legally sanctioned. While slavery in Suriname and the Dutch Caribbean was phased out between 1863 and 1873 (more on this in section 3.1.3), a report by public prosecutor JTL Rhemrev detailed excessive violence used against ‘native’ workers in the Dutch East Indies in the early 1900s, and autobiographies published in the Netherlands in the 1950s often blamed Europeans’ ‘inability to stifle sadistic impulses’ against ‘native’ people on tropical madness.61 These incidents can, and should, be evaluated not as individual excesses, but consistent legal constructions of race and personhood enforced by racialised applications of the sword or shield of criminal punishment or protection. The Rhemrev report’s own history illustrates this point: instead of resulting in prosecutions of plantation managers or increased protection for workers, it was buried in a file until sociologist Jan Breman found and published it in 1987.62
In Suriname, the use of state-sanctioned violence to regulate the behaviour of enslaved people did not end with the abolition of slavery, but merely evolved into a process which Nimako and Willemsen call ‘progressive control’.63 To this end, almost every discussion of the end of slavery in the Dutch colonies was paired with discussions of how to maintain control over the non-white. Even those few parliamentarians who concluded that slavery was unjust, cautioned against ‘too hasty’ abolition for fear that white people in Dutch colonies would experience the same violent reprisals as those in Haiti.64 Abolition was a legally protracted process in the Netherlands, involving an increasing, not decreasing, role of state control in the lives of formerly enslaved people. While enslavement by private owners officially ended in 1863, it was followed by a ten-year period of ‘staatstoezicht’ often translated into English as ‘apprenticeship’ but literally meaning ‘state supervision’. In this case, it was the state exercising one-sided control over non-white people, controlling their movements and able to impose criminal punishment for failure to comply.65
3.1.3 Slavery and property
Another delay in the abolition process came from debates over how to compensate former enslavers for the value of their ‘lost property’. White ‘owners’ were compensated handsomely, at 300 guilders for each individual freed in 1863, or 30 guilders if this person was already entitled to manumission.66 The formerly enslaved, however, were given nothing for their years of labour before 1863. The injustice of this arrangement (or at least the risk that the non-white population would consider it so) was not lost on the white government of the time, which publicized information about compensation in Dutch, but not in languages which enslaved people spoke widely.67
The compensation issue also provides an illustration of how Harris’s concept of whiteness as property applies in the Dutch context. Harris uses the appropriation of indigenous land to reveal the white supremacy inherent in John Locke’s idea of private property and its relevance to American jurisprudence; in Dutch legal history the issue of unequal compensation may serve a similar role.68 In this case, the whiteness of the former enslavers was a prerequisite to compensation for ‘lost property’. The formerly enslaved did not have this prerequisite and were denied property rights in both their own bodies and their labour.
3.1.4 Slavery, ‘free soil’ and border control
Recently, a court in The Hague decided that ‘ethnicity may be an objective indication of nationality’; specifically ruling that it was not discriminatory to stop Mpanzu Bamenga, a Dutch citizen travelling through the Eindhoven airport, solely because he was not white.69 Again, the use of ‘white’ as the descriptor here is deliberate, because implicit in the court’s decision is that whiteness would be the ‘objective indication’ of Dutch nationality, whereas non-whiteness indicates not being Dutch.70 The practice of using law to keep the European territory of the Netherlands (the metropole) white, has deep historic roots. While racialized slavery and violence was prevalent throughout the Dutch colonies, the practice was banned from ‘Dutch soil’ in Europe. Rather than representing a principled stand against enslavement, however, details of ‘free soil’ cases indicate that the purpose of the doctrine was more likely the systematic exclusion of non-white people from European soil.71
Many historians highlight the case of a ship which arrived in the Zeeland port of Middelburg in 1596 with a cargo of 130 enslaved Africans.72 The ship’s captain hoped to sell the men, women and children in Zeeland. However, because the captured people were ‘all baptized (christened) Christians’, the local authorities ordered them to be freed.73 Unhappy with this deprivation of his ‘property’, the captain appealed the decision to the Staten-Generaal in The Hague. While denying his request at first, upon a ‘second request of [Captain] Van der Hagen it was decided on 28 November that he could do with the Moors “as he sees fit”’.74 In this case, Hondius argues, since there are no records whatsoever of any presence of a such a large number of Africans in the Zeeland area following this decision, despite her searching birth, death, church and military archives, what the captain most likely saw fit was to depart with the prisoners and sell them in a more profitable port.75
Dutch courses on legal history often highlight the ongoing importance of Roman law to fundamental concepts like codification and private law.76 It also seems important to discuss, then, how Roman law enabled successive Dutch governments to maintain a formal legal distance from slavery as a state practice. As mentioned above, Roman law provided the state with a means of delegating corporal punishment to private owners.77 However, Roman law also regulated manumission, the legal process by which the ‘owner’ of an enslaved person could set that person free. Unlike total freedom, however, manumission carried many obligations for formerly enslaved people.78 For example, manumitted individuals were required to ‘show respect’ to their former ‘owners’ and those owners’ descendants, and to ‘support’ them if they fell on hard times.79 Specifically, formerly enslaved people could be required to give money to their former owners if the owners needed it, and even at death were required to leave a portion of their estate to their former owners.80 In practice, this meant that manumission remained a less-than-free status under which the formerly enslaved were still obligated and bound to their former owners. While mostly relevant in the colonies, where the vast majority of manumitted people lived, manumission and its legal consequences triggered the most significant free-soil case of the eighteenth century.
Andries was an enslaved man who travelled twice to the ‘free soil’ of the Dutch Republic, first in 1768 with his putative owner, Danielle Buttner and in 1771 with Buttner’s widow, Maria Anna.81 In 1774 Andries was working in Paramaribo and was expected to deliver three schellingen per day to Maria Anna Buttner. He failed to do so for 12 weeks and ended up in government custody until the case could be settled.82 Andries’s time on ‘free soil’ was relevant to several aspects of the case. First, did Andries’s time on free soil render him free in Suriname? If not, he was still Buttner’s property and required to turn over his wages to her. Second, if travelling to the Republic had rendered Andries ‘free’, was it then a freedom akin to manumission which would still require him to assist Maria Anna financially? Or was Andries’s status total freedom?83 The case travelled from the Raad van Politie in Suriname, back to the Sociëteit van Suriname in Amsterdam and ultimately to the Staten-Generaal which took the opportunity both to clarify and to limit the legal significance of Dutch free soil. On 23 May 1776, the Staten-Generaal issued the following order on: ‘The freedom of Negro and other slaves, brought here from the State’s colonies to these lands’:
[I]t is an undeniable truth that the distinction between FREE and UNFREE people has been discontinued for centuries, and slavery has ended [in the Republic].’ [However] ‘this truth can not (sic) be deemed applicable to the Negro- and other slaves brought here from the colonies [because]… the Owners of Slaves brought to the Netherlands would be deprived from Goods that are lawfully theirs. This would be a far graver affront against the birthright and immediate freedom of the inhabitants of this Republic, than that the application of such righteous ideas of Homeland Freedom would bring.84
3.1.5 Slavery and constitutional law
The significance of slavery to Dutch legal history is also conspicuous in its absence from significant legal documents at the time, an example of the previously mentioned ‘racial aphasia’ in law.85 Arend Huussen describes the first written constitution of the Batavian Republic, begun in 1796 and finalized in 1798. Despite contemporaneous legal debate on the subject, as evidenced by the case of Andries, the document itself makes no mention of slavery.86 This was far from an oversight, for Huussen details a lengthy process involving several studies by groups of experts, extensive drafting, and debates closed to the public, before drafters decided that the constitution would make ‘no mention of the institution of slavery at all’.87 Much like the rationale given by the Staten-Generaal in the case of Andries, Huussen cites the constitutional framers’ beliefs that banning slavery would have been ‘more against the traditional freedom inherent to the Dutch if the legal property rights of the masters over their goods were violated against their will than if the just ideas of national liberties were to be applied to uphold the principle of property rights on slaves’.88
3.2 Colonialism and legal constructions of race
As mentioned above, most CRT scholarship focuses on settler-colonial nations, where foundational ideas of the rights of white, European settlers to ‘own’ colonized territories were based on denying the humanity and rights of indigenous people already living there.89 Dutch colonialism, by contrast, was primarily geared towards extracting resources (using local and/or enslaved people to do so) as opposed to resettling large numbers of its European population. While the ends may have been different, the means were fundamentally similar – racialized categorization and control of local populations, created and enforced by law, as a means to obtain property (real or movable) for the benefit of the colonizing entity.
3.2.1 Formal racial segregation in the Dutch East Indies
In the Dutch Atlantic, legal categories like free, enslaved, manumitted, and contract-labourer were implicitly racialized. By contrast, explicit racial-legal categories regulated nearly every aspect of colonial society in the Dutch East Indies.90 People declared legal ‘natives’ of the Indies (Inlanders), those born in the Indies to fathers also born there, were subject to a different set of laws and presided over in different courts from those declared legally European. ‘Foreign Orientals’ (Vreemde Oosterlingen), a group which included everyone not already deemed European or native, but in practice mostly included people whose families originally came from China, were subject to the same laws as ‘natives’. Racialized legal status was passed generationally, such that ‘European’ parents had ‘European’ children regardless of where they themselves were born. The legal status of people with parents from different legal-racial categories was largely determined by the status of their father. European fathers could pass their European status to children regardless of the mother’s legal status, by recognizing the children as their own, a privilege not granted to European mothers.91
Some Dutch legal scholars and historians use the term ‘legal pluralism’ to refer to the system in the Dutch East Indies under which Europeans were subject to one set of laws, while non-Europeans were not.92 More telling is the terminology of the time, which called this system Intergentiel Recht, often translated as Interracial Law, and taught at Dutch law schools into the 1960s.93 People with two parents born in Europe were legally European, subject to European laws, and presided over in court by European judges.94 These different sets of laws dramatically impacted people’s lives in terms of their rights to own property,95 raise their children and, in criminal cases, be subject to the death penalty, which remained legal for ‘natives’ in the Dutch East Indies until independence, but was prohibited under European criminal law.
Evidence of the relevance of race and law to practices in the Dutch East Indies can be found in the sheer number of pages devoted to the subject. Tasked with advising the colonial government on the importance of racial segregation to democratic reforms in 1940, jurist Wim Wertheim submitted so many pages that his report had to be published as a separate volume.96 His assessment was critical and controversial, asserting that the system was not natural, but rather the result of political and economic choices.97 Wertheim gave up law following Indonesian independence and became a sociology professor at the University of Amsterdam, but he continued his critical writings on race and colonialism throughout his career.98 His professional transition is a metaphor for the exit of discussions of race and law within Dutch legal academia, because prior to 1949 Dutch law schools were intimately involved in the colonial project. Beginning in the nineteenth century, ‘native’ elites would send their sons to study law in Leiden.99 While the idea was that they would learn European ways and return to assist the colonial government, some of these students went on to lead the movement for independence, and were even prosecuted for their actions in the 1920s.100 The civilizing mission of Dutch legal education also took place within the Dutch East Indies, beginning with secondary education and eventually the opening of a university of applied science (Hogeschool) in Batavia.101 This civilizing mission had its limits, however, and stopped short of the idea that ‘natives’ would ever be fit to judge European citizens in European courts.102
Historian Bart Luttikhuis and others challenge the notion that ‘European’ in the Dutch colonial context was synonymous with whiteness.103 He cites legal cases in the Dutch East Indies where people challenged their status, courts considered evidence such as language, religion and comfort with European culture as well as skin colour, and where people were sometimes granted European legal status without having white skin. However, legal and social constructions of race have never been limited to merely skin colour, and almost always include elements of ‘culture’ or behaviour.104 While the legal category ‘European’ may have been more expansive than the racial category ‘white’ within the Dutch East Indies, the importance of whiteness, and/or proximity to it, revealed itself when non-white Europeans tried to enter the metropole following Indonesian independence.
3.2.2 Colonial constructions of race and citizenship in the metropole
Legal scholar Guno Jones describes the transition of race from an explicit practice of colonial governance to an unspoken social factor in the metropole through analysis of Dutch parliamentary debates on immigration from both the former Dutch East Indies and Suriname. Happening about 20 years apart, the debates reflect the shifting nature of racial discourse in the Netherlands, which becomes less explicitly racist, while nevertheless maintaining whiteness as ‘one of the essential conditions of “real” Dutchness’.105 Historian Esther Captain also highlights conceptions of race and citizenship evidenced in diaries and memoires of Indo-European people settling in the Netherlands following Indonesian independence.106
Despite the fact that the numbers of migrants from the former colonies remained relatively small compared with the total Dutch population – 315,000 Dutch nationals from Indonesia between 1946 and 1968 and only 130,000 Dutch nationals from Suriname between 1973 and 1980, compared with a Dutch population of approximately 10 million – rhetoric frequently referred to a flood of immigrants.107 Both Jones and Captain observe Dutch politicians’ consistent portrayal of non-white citizens of the former colonies as unprepared and even unfit for Dutch citizenship. Even when eventually granted citizenship, non-white Dutch citizens from former colonies and their offspring were seen as ‘aliens within the borders’.108
Racial constructions were not merely rhetorical; they conferred material benefits and burdens on the groups of people in question. For example, the government gave ‘Europeans’ coming from Indonesia loans to cover their moving expenses to the Netherlands; ‘Eurasians’ of mixed parentage were granted Dutch citizenship, but denied financial assistance until 1956. Captain highlights the role of law professor William Lemaire in debates; as member of parliament for the conservative Catholic People’s Party (KVP), he argued that Indo-European Dutch people should be allowed to make their own decisions about where their ‘roots’ lay.109 While Captain does not use the term race, she makes the connection between ‘concerns’ about Indo-European’s’ ability to integrate into ‘Dutch’ society and de facto racism when she recognizes that no ability of cultural assimilation could overcome the fact that Indo-European Dutch people ‘did not comply with the exterior characteristics required for the human body to be considered Dutch’, or as one of her interviewees more concisely put it, they were ‘Brown and stuff, you know’.110
Even more extreme were the conditions of people coming from the Moluccan Islands. They had fought on the Dutch side during the war for Indonesian independence, and were reluctant to disarm and live under the new Indonesian government. Instead of working towards a long-term solution, the Dutch military ordered the Moluccan soldiers and their families to the Netherlands in 1951, discharging them from military service on the way. Having been ‘natives’ under colonial rule, Moluccans were neither entitled to, nor did they necessarily want, Dutch citizenship. Instead, the Dutch government considered their presence in the Netherlands temporary, forced them to live in former concentration camps, and denied them access to work permits. After 25 years of statelessness, intense political mobilization and eventually political violence, Moluccans were finally granted a legal status equivalent to Dutch citizenship in 1976.111
By the time of Suriname’s independence in the 1970s, parliamentarians in the Netherlands failed to pass legal restrictions on immigration from Suriname. Instead, they ‘encouraged’ Dutch citizens of West Indian origin to return ‘home’ when their work contracts ended. Parliamentarians lamented that these migrants ‘association with the Netherlands’ had resulted in ‘cultural isolation and little contact with their own country’.112 Others went on to observe that people from ‘Suriname and the Dutch Antilles will need to find their place in that part of the world where they happen to be placed, on the edge of the Caribbean and the northern part of South America’.113 This discourse indicates, at best, a lack of awareness that it was Dutch colonialism that happened to place Surinamers of African and Asian descent in the Caribbean; at worst it reveals a wilful denial of the ongoing impacts of that history, and an affirmative effort to keep its legacy outside European borders.114
Contingent citizenship is not just a historical legal artefact. In 2012, the Dutch parliament debated applying different rules for Dutch citizens migrating from the Antilles to the metropole.115 The bill was ultimately defeated because of arguments that its distinction based on national origin would violate international law.116 Jones observes that portraying all non-white Dutch citizens as coming from somewhere else results in ‘conditional citizenship … whose meaning is contingent upon variable forces in a given place and time [and] always on the verge of being compromised’.117
Recent events only bolster Jones’s point. Whether legitimizing racial profiling at borders,118 systematically selecting and accusing parents with ‘non-Dutch’ last names or dual nationalities of fraud related to childcare subsidies,119 Dutch law, lawyers and judges play a continual role in constructing whiteness as a prerequisite for full exercise of citizenship in the Netherlands. If a significant goal of Dutch law faculties is preparing future lawyers and jurists to do justice in an increasingly and diverse national community, then history and context matter; this is the conclusion of experts in higher education pedagogy as well as advocates for race and social justice.120 To date, efforts to improve the performance of ‘non-western’ students at Dutch universities have problematized the students themselves, as opposed to examining how the institutions themselves may need to change or adapt.121 This article represents my own ongoing efforts to educate myself and enrich my teaching. I hope it encourages fellow teachers to seek out material relevant to their own courses. Including historic cases and critical inquiries in the curriculum is in no way sufficient to decolonize or eliminate institutional racism within law faculties; it is a small but necessary first step.