Contemporary Slave Labor and the Uses of History

Abstract

The use of the word “slavery” to describe various contemporary forms of exploitation raises questions of legal definition. Slavery in the Americas in the nineteenth century was rooted in the claim to property in persons, so using the term to describe modern abuses, when no state recognizes property in persons any longer, risks being anachronistic. In recent parliamentary debates in both France and Brazil, the charge of anachronism has been made by opponents of legal recognition of the crime of enslavement. Historical evidence shows, however, that the exercise of the powers inherent in property rights does not necessarily derive from a prior legal right to property. Control over persons, equivalent to possession, could occur outside the law and yet be recognized as legal property after the fact. By juxtaposing an 1810 case from New Orleans, Louisiana, with the situation that gave rise to the European Court of Human Rights’ decision in Siliadin v. France, this article examines the parallels in the circumstances of urban slavery and the mechanisms through which the “powers inherent in the right of property” were exercised, independent of any actual rights. The argument supports both the reform of the French penal code to make the crime of enslavement explicit, and the proposed amendment to the Brazilian Constitution that would increase the penalties for the use of slave labor.