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Introduction: “A Crime Against Humanity”: Slavery and The Boundaries of Legality, Past and Present

Published online by Cambridge University Press:  23 November 2016

Ariela Gross
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Extract

Nowhere in legal history has the nexus between past and present received more attention in recent years than in the study of slavery. The memory of slavery has become a field of study in itself, and competing histories of slavery have animated contemporary legal and political debates. Today, new histories of capitalism have further illuminated the central role of slavery and the slave trade in building the modern Atlantic world. Across Europe, the United Kingdom, Africa, the Caribbean, and the United States, new memorials, museums, and commemorations of slavery and abolition have brought new kinds of public engagement to the slave past. In the era of Black Lives Matter, understanding the connections between that past and the present day has never seemed more important, and historians are struggling with the question of how to engage the present in a historically nuanced way. One kind of engagement between past and present, among historians, lawyers, and activists, has been to draw connections between slavery in the past and in the present.

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Forum
Information
Law and History Review , Volume 35 , Issue 1 , February 2017 , pp. 1 - 8
Copyright
Copyright © the American Society for Legal History, Inc. 2016 

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Footnotes

She thanks the participants at the conference held at Stanford University in May, 2015, “A Crime Against Humanity: Slavery and International Law, Past and Present,” especially Deans Elizabeth Magill and Jenny S. Martinez for their generous support, and Rebecca Scott for generous and incisive comments and suggestions, as always.

References

1. See, for example, Araujo, Ana Lucia, The Politics of Memory: Making Slavery Visible in Public Spaces (Routledge, 2012)Google Scholar; Hamilton, Douglas, Hodgson, Kate, and Quirk, Joel, eds., Slavery, Memory and Identity: National Representations and Global Legacies (Routledge, 2012)Google Scholar; and Michel, Johann, Devenir Descendant D'Esclaves: Enquête sur les Régimes Mémoriels [Becoming A Slave Descendant: An Investigation into Memorial Regimes] (Presses Universitaires de Rennes, 2015)Google Scholar. See also the works discussed in Gross, Ariela J., “‘All Born To Freedom’: Comparing the Law and Politics of Race and The Memory of Slavery in the U.S. and France Today,” Southern California Interdisciplinary Law Journal 21 (2012): 523–60Google Scholar; and Gross, Ariela, “The Constitution of History and Memory,” in Law and Humanities: An Introduction, ed. Sarat, Austin, Anderson, Matthew, and Frank, Cathrine O. (Cambridge University Press, 2010)Google Scholar.

2. Recent books include Beckert, Sven, Empire of Cotton: A Global History (New York: Vintage Books, 2014)Google Scholar; Baptist, Edward E., The Half Has Never Been Told: Slavery and The Making of American Capitalism (New York: Basic Books, 2014)Google Scholar; and Beckert, Sven and Rockman, Seth, eds., Slavery's Capitalism: A New History of American Economic Development (University of Pennsylvania Press, 2016)CrossRefGoogle Scholar. These build on classic works by Williams, Eric, Slavery and Capitalism (Chapel Hill, NC: UNC Press, 1944)Google Scholar; and Solow, Barbara J., The Rise of The Atlantic System (Cambridge, UK: Cambridge University Press, 1991)Google Scholar.

3. See, for example, in the United States, the new Whitney Plantation Museum and the Gateway to Freedom International Memorial to the Underground Railroad, as well as university initiatives such as the Emory University Conference on Slavery and the University, and the Brown University Steering Committee on Slavery and Justice; in France, the many activities of the National Committee on the History and Memory of Slavery; in the United Kingdom, the International Slavery Museum in Liverpool and the Bicentenary of the Abolition of the Slave Trade in 2007; in Guadeloupe, the Caribbean Center for the Expression and Memory of the Slave Trade and Slavery; and in Ghana, the Cape Coast Castle.

4. See Grossman, James, “Again and Again: Historians, Politics, and Public Culture,” Perspectives On History (Spring 2016)Google Scholar https://www.historians.org/publications-and-directories/perspectives-on-history/may-2016/again-and-again-historians-politics-and-public-culture (last accessed November 8, 2016).

5. Perhaps the leading organization in this effort is Historians Against Slavery, www.historiansagainstslavery.org.

6. Martinez, Jenny S., The Slave Trade and The Origins of International Human Rights Law (New York, NY: Oxford University Press, 2011)Google Scholar.

7. Scott, Rebecca J., “Under Color of Law: Siliadin v. France and the Dynamics of Enslavement in Historical Perspective,” in The Legal Understanding of Slavery: From the Historical to The Contemporary, ed. Allain, Jean (Oxford, UK: Oxford University Press, 2012), 152–64Google Scholar; Scott, –Rebecca J., “‘She … Refuses To Deliver Up Herself as the Slave of Your Petitioner’: Émigrés, Enslavement, and the 1808 Louisiana Digest of the Civil Laws,” Tulane European and Civil Law Forum 24 (2009): 115–36Google Scholar; Scott, Rebecca J., “Paper Thin: Freedom and Re-enslavement in the Diaspora of the Haitian Revolution,” Law and History Review 29 (2011): 1061–87Google Scholar; and her article in this issue.

8. See, for example, Chalhoub, Sidney, A Força da Escrividao: Ilegalidade e costume no Brasil oitocentista [The Force of Slavery: Illegality and Custom in Brazil in the Nineteenth Century] (Lisbon, Portugal: Companhia das Letras, 2012)Google Scholar; Chalhoub, Sidney, “Illegal Enslavement and the Precariousness of Freedom in Nineteenth-Century Brazil,” in Assumed Identities: The Meanings of Race in the Atlantic World, ed. Garrigus, John D. and Morris, Christopher (College Station, TX: Texas A&M University Press, 2010): 88–115 Google Scholar; Keila Grinberg, “Re-enslavement, Rights and Justice in Nineteenth-Century Brazil,” in Mark Lambert, Translating The Americas 1 (2013), https://doi.org/10.3998/lacs.12338892.0001.006 (last accessed November 8, 2016); Grinberg, Keila, “Re-escravização, direitos e justiças no Brasil do século XIX,” in Direitos e justiças: ensaios de história social, ed. Lara, Silvia and Mendonça, Joseli (Campinas: Editora da Unicamp, 2006): 101–28Google Scholar; Mamigonian, Beatriz, “Conflicts over the meanings of freedom: The liberated Africans' struggle for emancipation in Brazil (1840s–1860s),” in Paths to Freedom: Manumission in the Atlantic World, ed. Brana-Shute, Rosemary and Sparks, Randy J. (Columbia: University of South Carolina Press, 2009), 235–64Google Scholar.

9. Traditionally, historians downplayed the importance of the 1831 law in Brazil, arguing that 1850 was the relevant date; more recent research has shown the importance of the 1831 law outlawing the trade. See Mamigonian, Beatriz and Grinberg, Keila, “Para inglês ver? Revisitando a lei de 1831 [Just for Show? Revisiting the Law of 1831],” in Dossiê da revista Estudos Afro-Asiáticos [Dossier of the Afro-Asian Studies Journal] (2007): n. 1–3 Google Scholar . None of these dates are without controversy save perhaps the one related to the United States.

10. David Eltis, “The Economics of the Illegal Slave Trade” abolition.nypl.org/essays/illegal_slave_trade (last accessed November 8, 2016). Eltis uses the 1831 date for Brazil.

11. See note 8.

12. Mamigonian, “Conflicts.”

13. Chalhoub, “Illegal Enslavement,” 88.

14. Grinberg, “Re-enslavement.”

15. See, generally, Grinberg, “Re-enslavement”; and Mamigonian, “Conflicts,” 236.

16. See Fett, Sharla M., “Middle Passages and Forced Migrations: Liberated Africans in Nineteenth-Century US Camps and Ships,” Slavery and Abolition 31 (2010):75–98 Google Scholar; Fett, Sharla M., Recaptured Africans: Surviving Slave Ships, Detention, and Disclocation in the Final Years of the Slave Trade (Chapel Hill, NC: University of North Carolina Press, 2017)Google Scholar; Noonan, John T. Jr., The Antelope: The Ordeal of The Recaptured Africans in the Administrations of James Monroe and John Quincy Adams (Berkeley, CA: University of California Press, 1990)Google Scholar; and Bryant, Jonathan M., Dark Places of the Earth: The Voyage of the Slave Ship Antelope (New York: W.W. Norton & Co., 2015)Google Scholar.

17. Scott, “Under Color of Law,” 152–64. See also Scott, “Paper Thin”; Scott, “She…Refuses to Deliver Up Herself”; and Allain, Jean and Hickey, Robin, “Property and The Definition of Slavery,” International and Comparative Law Quarterly 61 (2012): 915–38Google Scholar.

18. Martinez, Jenny S., The Slave Trade and The Origins of International Human Rights Law (Oxford University Press, 2012)Google Scholar. Keila Grinberg discusses the Rio de Janeiro Mixed Commission Court in “Re-enslavement.”

19. For the objections, see Kontorovich, Eugene, “The Constitutionality of International Courts: The Forgotten Precedent of Slave-Trade Tribunals,” University of Pennsylvania Law Review 158 (2009): 75–81 Google Scholar; for Martinez's response, see Martinez, Jenny S., “International Courts and The U.S. Constitution: Reexamining The History,” University of Pennsylvania Law Review 159 (2011): 1069–134Google Scholar.

20. Allain and Hickey, “Property and The Definition of Slavery,”; Leonardo Barbosa, “Behind the Definition of Contemporary Slavery in Brazil: Concepts of Freedom, Dignity, and Constitutional Rights,” Brésil/s (forthcoming, 2017). Pixao, Cristina and Barbosa, Leonardo, “Perspectives on Human Dignity (On Judicial Rulings Regarding Contemporary Slavery in Brazil),” Quaderni Fiorentini 44 (2015): 1167–84Google Scholar; and Kyriazi, Tenia, “Trafficking and Slavery, The Emerging Legal Framework on Trafficking in Human Beings—Case-law of the European Court of Human Rights in Perspective,” International Human Rights Law Review 4 (2015): 33–52 Google Scholar; Carr, Bridgette, Milgram, Anne, Kim, Kathleen, and Warnath, Stephen, Human Trafficking Law and Policy (Durham, NC: LexisNexis 2014)Google Scholar.