Transplanting servitude: the strange history of Hawai'i's U.S.-inspired contract labor law.

• Author: Hu, Christopher D.

In 1850, as a part of a larger program of Western-influenced legal reform, the independent Kingdom of Hawai'i passed a contract labor statute adapted from existing U.S. state laws to meet the perceived need for a reliable plantation labor force. For the next five decades, this statute--the Masters and Servants Act--served as the legal foundation for Hawai'i's rapidly expanding sugar industry, facilitating the arrival of roughly 150,000 immigrants throughout the second half of the nineteenth century.

Within the field of comparative law, the study of legal transplants--legal rules borrowed from one nation and adopted in another--has operated under the assumption that the transfer of those rules necessarily brings the two legal systems closer together. The case study developed in this Note suggests that convergence is not the only possible result: as it turns out, the Masters and Servants Act actually drove divergence between the U.S. and Hawaiian legal systems and conflict between the two nations' governments.

The Act incorporated legal rules that had already become obsolete in their place of origin, and it helped create a plantation labor system that was soon decried by U.S. critics as closely resembling slavery. When Hawai'i was annexed by the United States at the end of the century, repeal of the Masters and Servants Act was among the top U.S. priorities. Considering the Masters and Servants Act, and the legal regime it engendered, through the lens of legal transplantation thus provides an opportunity to rethink how legal transplants work--and what it means for a transplant to be successful

1. LEGAL TRANSPLANTS AS COMPARATIVE LAW II. HAWAI'I'S MASTERS AND SERVANTS ACT A. The Beginnings of the Sugar Industry B. Drafting the Act 1. A Period of Sweeping Legal Change 2. The Act and Its U.S. Origins 3. English and Colonial American Antecedents III. THE CONTRACT LABOR SYSTEM A. General Trends B. Interpretation and Enforcement C. Domestic Resistance and U.S. Criticism CONCLUSION In the latter half of the nineteenth century, hundreds of thousands of people emigrated to Hawai'i, British Guiana, Fiji, Mauritius, South Africa, and other sugar producing locales to work on sugar plantations. These migrants, mostly from South and East Asia, served as replacements for emancipated slaves or as supplements to indigenous populations unable or unwilling to meet the growing demands of the plantations. (1) By and large, these immigrants were governed by labor contracts that bound them to their employer for a fixed term of service, and were enforceable through penal sanctions. (2) In sugar cane fields throughout the tropics, free wage labor was the exception, not the rule. (3)

   The independent Kingdom of Hawai'i (4) occupied a unique position within this worldwide system of contract labor. In 1850, as a part of a larger program of Western-influenced legal reform, the Hawaiian legislature passed a contract labor statute adapted from existing U.S. state laws in order to meet the perceived need for a reliable plantation labor force. For the next five decades, this statute---the Masters and Servants Act--served as the legal foundation for Hawai'i's rapidly expanding plantation labor system. The law remained in force until 1900, when it was overturned as one of the explicit conditions of Hawai'i's full integration as a U.S. territory.

   Read in light of the comparative law scholarship on legal transplants, the fifty-year history of the Masters and Servants Act calls into question one of the major assumptions about how such transplants work: namely, that borrowing is invariably a source of legal convergence. Rather, as this Note demonstrates, legal transplants can actually result in conflict between the source nation and the adopting nation.

1. LEGAL TRANSPLANTS AS COMPARATIVE LAW

   The legal historian Alan Watson has long argued that the study of legal transplants--the transmission of legal rules from one society to another--should lie at the center of comparative legal scholarship. Watson's influential theory asserts that legal transplants are not only extremely common, but in fact represent the most important source of legal development throughout the world. (5) Against what he calls the "Volksgeist theory of law," (6) Watson holds that the content of a nation's legal system is not an expression of that society's unique character. Rather, legal systems are shaped by transplants, whose movements are often determined by "nonlegal historico-political factors ... what a plain lawyer might call sheer chance." (7) Given the importance of transplants to legal change, Watson promotes the notion that comparative law should include not just study of foreign laws, but rather "the study of the influences that have actually taken place between one set of legal rules and another." (8) As a result, he believes, "comparative law must be in large measure a historical discipline." (9)

   In Watson's view, legal transplants are frequent not just between similarly advanced societies, but also occur between nations separated in time and stages of legal development. In the paradigmatic model, developing nations seeking to modernize borrow legal rules from more legally "advanced" countries. (10) In the late nineteenth century, for example, Japan modeled its penal and civil codes after French law, and later reforms to its civil code drew heavily from German contract and property law. (11) Twentieth-century examples of successful borrowing by modernizing nations, according to Watson, include the Swiss-inspired civil code of Turkey and the adoption by Ethiopia of a code heavily inspired by that of France. (12)

   Watson's concept of legal transplants has spawned a large volume of research, but despite his call for historical work, most case studies of legal transplants are concerned with recent or ongoing law reform efforts. Examples of frequently debated topics in the literature include the adoption of Western laws in post-Communist Eastern Europe, (13) the potential convergence of common law and civil law systems, (14) the role of transplant-led legal reform in contemporary economic development, (15) and the adoption of international women's rights and human rights laws. (16) TO be sure, there have been a few excellent historical studies of legal transplants, including some focused on the diffusion of laws governing slavery, indentured servitude, and contract labor. (17) But even those efforts have failed to address legal transplants that survived in the country of adoption after they had fallen out of favor in the source country--or that were already obsolete in the source country when transplanted.

   As a result, the study of legal transplants has operated under the unspoken assumption that the transfer of legal rules from one country to another necessarily brings those two legal systems, and their legal cultures, closer together. Watson's statement that something can always be borrowed from a "highly developed system" (18) is symptomatic of the near universal belief that law reformers always borrow the most "developed" aspects of the source nation's legal system, and that the process of borrowing inevitably drives legal convergence. Typical is the recent debate about the alleged "Americanization" of other nations' legal systems through legal transplantation, which Daphne Barak-Erez and Jayna Kothari describe as the "hegemonic mode of legal transplantation today." (19) There, the underlying assumption is that the adoption of U.S.-inspired laws throughout the world necessarily makes those legal systems more like that of the United States, and that legal reformers in developing countries seek to adopt the most advanced aspects of U.S. law, rather than its obscure, obsolete remnants.

   This blindness to the prospect of transplant-induced legal divergence relates to a larger problem within the legal transplants literature: one-dimensional notions about what it means for a transplant to be successful. Alan Watson's views have been sharply criticized as, for example, insufficiently attentive to the role of national political institutions. (20) But even those critics agree with Watson that it is simple to evaluate the fate of a given legal transplant: one need only look at how long it remains on the books. Similarly, other scholars writing on legal transplants tend to assume that the more firmly such laws take root in the new country, the more successful they are. (21) Consequently, they fail to consider the possibility of post-transplant legal and political conflict between the source nation and the adopting nation that might call into question the success of the transfer.

   This Note seeks to challenge these assumptions through a case study of one of the earliest instances of legal "Americanization": the adoption of U.S.-inspired contract labor laws in nineteenth-century Hawai'i. While it was successful in meeting local needs, at least in the short term, this transplant failed to bring the two nations' legal systems closer together. Adapted from New York and New England state laws governing apprentices and contract laborers, Hawai'i's Masters and Servants Act incorporated legal rules that had already fallen into desuetude in their place of origin, and the Act helped create a plantation labor system that was soon decried by U.S. critics as closely resembling slavery. Considering the Masters and Servants Act, and the legal regime it engendered, through the lens of legal transplantation thus provides an opportunity to rethink how legal transplants work--and further, what it means for a transplant to be successful.

   Part II of this Note explores the origins of the Masters and Servants Act, explaining how and why the transplant occurred. Part III addresses the interpretation and enforcement of the Act as well as the criticism it engendered-both domestic and foreign. These two sections draw on the Act and its likely U.S. sources, opinions from labor-related cases heard...