Law and Slavery

by

Sally Hadden

• LAST REVIEWED: 24 July 2013
• LAST MODIFIED: 24 July 2013
• DOI: 10.1093/obo/9780199730414-0153

Introduction

Enslavement has existed in world history dating back to the earliest records we have, and its lengthy existence has generated a considerable variety of laws. Its use rested upon various forms of domination (e.g., economic, military, cultural) and was routinely justified by reference to higher authority, such as religion or law. While voluntary enslavement was not unheard of—and could result in financial, social, or religious advancement for the slave—in most cases, slavery was detrimental and involuntary. Whether voluntary or involuntary, a commonly accepted definition of slavery is that the slave experienced “social death” vis-à-vis all other individuals in the society. This included significant, if not complete, legal incapacity; often, a slave was accorded no legal rights or legal protections as a result of his or her diminished legal status. The degree to which a slave was legally protected depended upon a particular culture’s justice system, which varied widely across the Atlantic world. Variations existed in part because of the different legal traditions out of which slave law evolved. European nations that based their own legal systems upon the Roman law (often referred to as civil or civilian legal systems) each had their own cultural variants and emphases, such that France and Spain—both followers of civil law—did not have identical provisions in their laws regarding slaves. England, which followed a legal tradition known as common law, largely left the creation of slave law to each of its colonies, so colonies developed separate slave laws (although some, like Barbados, heavily influenced the development of those colonies in proximity to it). In Puritan New England, the recorded practice of slavery in the Bible influenced local lawmakers, just as Muslim and tribal ideas about slavery affected how Africans expected slavery to be. This variety and geographic range also inclines scholarship to cluster behind language barriers, rather than work comparatively across them. Old World laws experienced important New World modifications. Large numbers of slaves, often working in remote locations far from any oversight except their owners, might have had only fleeting legal protections: masters did not always know the law, and might not have always respected its contents. Poor circulation of legal texts, inadequate printing of colonial laws, and illiteracy could also impair the uniform application of law throughout a slave colony. This gap between the theoretical and applied nature of slave law meant that every law on the books was not applied with equal force to all slaves.

General Overviews

The technical language of law, combined with the multiple languages (Spanish, Portuguese, French, Dutch, Arabic) in which slave law appeared, has prevented many general works from being published covering the entirety of law and slavery in the Atlantic world. Two essays provide strong starting points for all research: Hadden 2008 and Peabody 2011 offer synthetic overviews about slave law in the New World context, paying attention to preliterate as well as literate cultures and providing lengthy bibliographic references to important works. Falola and Lovejoy 1994 describes the use of slave pawnship and debt bondage in multiple African contexts. Hunwick and Powell 2002 intersperses translations of primary Islamic texts on slavery with commentary and interpretive aids designed to help the beginning reader. Diakho 2004 reviews both Islamic theology as well as the development through time of Muslim slave law. Watson 1989 offers strong support for the continuity of Roman law in all slave law of the Americas. Adopting a broad canvas, Janis 2010 explores the links between the field of international law and abolitionism through the 19th century, as does Martinez 2012, who emphasizes the cooperation that existed between nations.

• Diakho, Abu Ilyass Muhammad. L’esclavage en Islam: Entre les traditions arabes et les principes de l’Islam. Beirut, Lebanon: Albouraq, 2004.

  Reviews the multiple sources of slave law in Islam, describes the various Islamic schools of jurisprudence, and interweaves the effects of local custom upon that law. Discusses not only the Qur’ān but also the Sunnas as they relate to slavery. In French.

• Falola, Toyin, and Paul E. Lovejoy, eds. Pawnship in Africa: Debt Bondage in Historical Perspective. Boulder, CO: Westview, 1994.

  Explains the basics of pawnship as a legal act in an introductory essay by Falola and Lovejoy. Essays on multiple African settings by leading historians such as Robin Law, Gareth Austin, and Beverly Grier. Covers both pre- and postcolonial Africa, including the Slave Coast, the Bight of Benin, and Ghana.

• Hadden, Sally. “The Fragmented Laws of Slavery in the Colonial and Revolutionary Eras.” In The Cambridge History of Law in America. Vol. 1, Early America (1580–1815). Edited by Michael Grossberg and Christopher Tomlins, 253–287, 646–657. Cambridge, UK: Cambridge University Press, 2008.

  Highlights English and Spanish North American context, with attention to European legal background. Contrasts variety of English colonial slave law, downplays importance of legal codes, and discusses the impact of the American Revolution upon the law of slavery. Bibliographic essay published separately from chapter essay, at 646–657.

• Hunwick, John, and Eve Powell. The African Diaspora in the Mediterranean Lands of Islam. Princeton, NJ: Markus Wiener, 2002.

  Two introductory essays set the stage for understanding Muslim slavery and the dearth of scholarship on this topic. Fifteen chapters then provide excerpted, translated texts on slavery, capture and enslavement, markets, religion, and abolition. Chapters 1–3 offer the most specifically helpful texts for undergraduates (pp. 1–33).

• Janis, Mark. America and the Law of Nations, 1776–1939. New York: Oxford University Press, 2010.

  DOI: 10.1093/acprof:oso/9780199579341.001.0001

  Excellent overview of major authors and key debates in the field of international law, particularly as it related to slavery and emancipation. Begins with Grotius, Blackstone, and Bentham and progresses through the development of “scientific” international law, with slave law as a recurring theme.

• Martinez, Jenny. The Slave Trade and the Origins of International Human Rights Law. New York: Oxford University Press, 2012.

  Focused on the 19th century, Martinez describes how nations used treaties to suppress the international slave trade, laying the foundation of both international law as well as human rights law.

• Peabody, Sue. “Slavery, Freedom, and the Law in the Atlantic World, 1420–1807.” In The Cambridge World History of Slavery. Vol. 3, AD 1420–AD 1804. Edited by David Eltis and Stanley L. Engerman, 594–630. Cambridge, UK: Cambridge University Press, 2011.

  DOI: 10.1017/CHOL9780521840682

  Emphasis on the Caribbean and Latin American slave regimes. Offers important coverage of Dutch and French slave law that is frequently omitted from other resources; author’s expertise in French slave law is apparent.

• Watson, Alan. Slave Law in the Americas. Athens, GA: University of Georgia Press, 1989.

  Considers Western Hemisphere slave law in a comparative context. Downplays contributions of specific cultural settings—French, Spanish, English—to emphasize shared legacy of Roman law. Some technical provisions in Roman law discussed. For a contrary view, see Palmer 1997 (cited under Empires and Transnational Studies: French).