The Legal Understanding of Slavery: From the Historical to the Contemporary

The Legal Understanding of Slavery: From the Historical to the Contemporary

Language: English

Pages: 395

ISBN: 0199660468

Format: PDF / Kindle (mobi) / ePub

"Slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised."

So reads the legal definition of slavery agreed by the League of Nations in 1926. Further enshrined in law during international negotiations in 1956 and 1998, this definition has been interpreted in different ways by the international courts in the intervening years. What can be considered slavery? Should forced labour be considered slavery? Debt-bondage? Child soldiering? Or forced marriage?

This book explores the limits of how slavery is understood in law. It shows how the definition of slavery in law and the contemporary understanding of slavery has continually evolved and continues to be contentious. It traces the evolution of concepts of slavery, from Roman law through the Middle Ages, the 18th and 19th centuries, up to the modern day manifestations, including manifestations of forced labour and trafficking in persons, and considers how the 1926 definition can distinguish slavery from lesser servitudes.

Together the contributors have put together a set of guidelines intended to clarify the law where slavery is concerned. The Bellagio-Harvard Guidelines on the Legal Parameters of Slavery, reproduced here for the first time, takes their shared understanding of both the past and present to project a consistent interpretation of the legal definition of slavery for the future.

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incrementalism and minimalism. These norms and practices may be laudable in many cases. But they can also lead to a formalism and rigidity that are inadequate to address modern slavery. Two contemporary cases provide examples. Siliadin v France63 involved the case of Siwa-Akofa Siliadin, who was held as an involuntary domestic servant for over four years. Her passport was taken, she was threatened with criminal punishment if she complained about her condition, and she was generally prohibited

order to be clear about why this is so, we need first to be clear about the meaning and import of ownership in systems of private property law (hereafter, ‘private law ownership’). Once we understand the true significance of private law ownership, we can effectively endorse the decision of the High Court of Australia in Tang to continue to employ the language of powers attaching to ownership in determining the existence of slavery.50 For lawyers, the primary significance of recognising that some

defendants contested the instructions to the trial jury concerning the intention and act elements of the crime of slavery.119 The instructions concerning intention, which had followed the judgment of the Victoria Court of Appeal in R v Tang, and therefore were incorrect in light of the subsequent decision of the High Court of Australia, led to the appeal being allowed. The Court of Appeal upheld the instructions concerning the physical element of the crime, but the decision demonstrates the

maxim not necessarily limited to persons of the same social class or even the same status in law. It is by no means certain, of course, that the views of Durantis, Boerius, or any of the other commentators were actually implemented in practice.95 Reasons for thinking that they were overly idealistic certainly do exist. Contemporary accounts often speak of the misery of the peasantry before their lords.96 For purposes of understanding the contribution of the ius commune to the history of the law

led to the benefit of manumission. Much obviously turns on how we are to understand ‘nature’. In what sense was it thought to bind us? It did so at least in regard to what we would now call our inescapable genetic and cultural endowment, our inbuilt drive to survive, propagate, socialise, and to preserve our families and communities. Could it also be regarded as obligatory, a form of law? Perhaps, at least to the extent that we are bound to respect these drives, and the innate capacities of

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