The centrality of slavery in the modern world has been such that several ideas like property, ownership and freedom developed as the necessity to define slavery increased. For long, slavery was limited to its property definition, but Orlando Patterson’s pivotal work Slavery and Social Death focused on the need to look beyond property conception of slavery. What follows is an attempt to understand the legal definition of slavery and to enumerate the various pros and cons of defining slavery in property rights.
In the ancient world, slavery was defined in terms of property and ownership for the first time by Romans and their ideas are generally accepted in the contemporary world. In the modern world, the definition of slavery based on property was given by the 1926 Slavery Convention of the league of nations. Article 1 says-‘Slavery is the status or condition of a person over whom any or all powers attaching to the right of ownership are exercised’.
Over the years, the legal definition was interpreted differently, often to suit vested interests. The definition was misinterpreted several times to the extent that traditional forms of labor, particularly in Africa, were misconstrued as slavery. Questions were raised regarding 'slavery-like practices' like serfdom, forced labor, debt bondage, human & sex trafficking, child pornography, child soldiering, and forced marriages. With growing globalization, slavery has become more sophisticated. Inevitably, many of the propositions could not withstand legal reasoning, leading to interpretative deadlocks while leaving no concise answers on what slavery is.
Kevin Bales has given three main criteria for defining slavery: there is complete control of one person by another, through violence, both physical and psychological; hard labor for little to no pay; economic exploitation making a profit for slaveholders. Jean Allain has highlighted that the 1926 definition is still a valuable tool for identifying and prosecuting cases of modern-day slavery, as shown by the Teng Judgement in Australia and advocates the criteria set by Kevin bales. However, there is no clarity in international law as to the definition of slavery.
Property and ownership
In layman's terms, property rights constitute absolute rights for indefinite possession, usage, and management of property, non-interference in the exercise of property rights, right to income from the property. However, the definition of property has been very society specific.
Traditionally slavery is defined in terms of property. The slave was an article of property (the object of relationship) held in ownership (the relationship itself) by his or her master (the subject). The subjectivity of the slave is taken away, and he is treated as an object repeatedly. Patterson summarizes E. Adamson Hoebel- property includes a ‘web of social relations’ that establish a limiting and defined relationship between persons concerning the object, even if the object is a human being. It is generally accepted that the rights and duties are irrelevant to property. Several other scholars have made property central to defining slavery and distinguish it from other forms of involuntary labor as these do not have the property element.
The fiction of absolute ownership, or doctrine of dominium, developed during the Roman empire due to problems posed by large-scale slavery, as Rome was a 'Genuine slave society' where slaves were crucial to wealth. The scale of dependence on slaves was such that it was necessary to settle the status of chattel immediately, or it would have led to social havoc.
The Romans would have realized that property referred to a set of relationships between persons. They then created a difference between owner and thing by differentiating between corporeal and incorporeal things, where an object could only be a tangible thing. Property became a relation between a person and thing, rather than a set of relations as it was before. The slave was stripped of his subjectivity and turned into an object, making slave the only human object and property over which the master could claim absolute rights. The dominium element included the owner having psychological control over a thing. The romans very slyly created the legal fiction that property was a set of relations between a person and a thing, rather than a set of relations between people, as it was thought to be before.
Orlando Patterson’s critique
There are limits to legal reasoning because several aspects of slavery are not confined to property relations because slavery served social and psychological functions, not merely economic functions. Orlando Patterson has been one of the leading scholars to advocate a different understanding of slavery that is not confined merely to its modern, capitalistic, property implications that is so central to the western approach. "Slavery is the permanent, violent domination of natally alienated and generally dishonored persons." The property element is secondary to Patterson.
Patterson says that defining slavery only in propertyterms is incorrect because any person can be a part of property relations between people, and slaves are no different. For example, an American wife 'owns' her husband and thus, is entitled to her husband's earnings in case of a divorce. Although the semantics feel impolite, it withstands legal reasoning. Moreover, slavery needs no politeness. The idea that a slave is someone without a legal personality is fictional, because in large-scale slaveholding societies, slaves were considered as persons and it was immoral to sell a second and third generation slave, because they were intertwined with the master’s family in the most intimate ways.
Modern day athletes are auctioned to teams, yet they are not considered slaves, even though their labor, and by extension their bodies are bought by teams. Thus, the property definitions repeatedly fall short of defining slavery. This is because of relative power, meaning that the non-slaves, have some claims when dealing with their proprietors. Additionally, the proprietors' power is limited to some activities. However, the master's control over the slave was total and not limited merely to his labor but extended to all aspects of his life because slavery was an alternative to death. David Brion Davis highlights that an attempt was made to reduce slave into a thing, but contrarily, law describes slaves as runaway, rebel, murder, rapist, etc.
Power or powerlessness is the base of all human interactions, and enslavement at its core has dynamics of the absolute power of the master vis-à-vis the complete powerlessness of the slave. There are three aspects to this dynamic, social- threat or use of violence, psychological- to manipulate a person in changing his idea of what is in his best interests, and culture- which helps turn force into right and obedience into duty, thus ensuring a continuation of master's authority (Rosseau).
Slavery was a substitute for death in war granting absolute control of the personhood of the slave to the master. So long as the slave accepted his powerlessness and masters absolute power, he was allowed to live as a social nonperson. He was only alive in the master's world and was socially dead to everyone else, because the slaves’ personhood was not recognized by the society. The masters' authority also existed because he was a conduit between the slave and the society. The slave accepted master’s authority because the master allowed him to live as a quasi-person. The Anglo-Saxon text Beowulf, the slave is not even considered a person, but because of his existence on boundaries of life and death, he is the guide to travelers. Gerda Lerner has highlighted , females were the enslaved first because they were perceived as docile and ancient societies wanted to harness their reproductive capacities, while males were slaughtered. Women’s enslavement has always had a sexual aspect to it.
The slave faced natal alienation and had no rights by birth. Socio- cultural isolation and a lack of heritage meant slaves' understanding of the world was severely limited, implying he was socially dead. Due to this, slaves were disposable, and could be used in ways not possible for even the lowest forms of labor. Though the enslaved had informal social relations, these relations were impermanent and could be uprooted by the master. The threat of separation was used time and again to make slaves submissive. Marriages did not exist in the traditional sense because the females had to be sexually available for the master, while parental authority was tenuous as their children could be sold anytime the master pleased because the slave status remained hereditary.
The slaves were generally dishonored because power and honor were intertwined, as Hobbes in Leviathan argues that obeying is to honor and disobey dishonor. The dishonor of the slave played a crucial role in increasing the honor, prestige, and superior identity of the master; therefore, we see slavery in case of Islam was not necessarily economically productive. Most slaves were economically draining but were central to enhancing the honor and prestige of the master. Psychologically, self-blame by the slave gets entrenched and they are brainwashed to believe that 'slaves get the masters they deserve'.
Davis Brion Davis makes one addition to Patterson's definition of slavery by pointing out the 'beastialization' of the slave. Viewing slaves as 'human animals' is a sign of the later race and social Darwinism theories. According to Plato, the slave was a human body while the soul resided in the master. Aristotle's idea of a 'natural slave' led to the sambo stereotype, and racialized slavery. A slave’s liminal status was clear because, even the most privileged slaves could be sold, stripped, whipped, raped, and killed. For instance, a Mamluk slave could become a military general, but was still disposable, thus he had no right to a future or a past.
The 'we-they' distinction was initially religious; later, racial. This enabled a 'mental margin' to normalize the enslavement of those different. The slaves posed a spiritual and physical threat to the master, and the master had to establish his authority for the threat to be neutralized. Several violent, religious, symbolic, ritual and methods denied the slave's humanity and manipulate him into protecting his master. The slave rejected his religion and followed the master’s religion. However, he was not allowed to take part in Greek and Roman cults having political significance. Manumission was earned by sale to God. Christianity later corroborated the existence of slavery by equating slavery as a result of the original sin.
Several ceremonial symbols were formalized. These rituals marked a rejection of the slaves' past. Secondly, slaves' names were changed. Name was a signifier of individual identity, and it’s taking away meant a loss of old identity. There was a visible mark of slave status. Either they were forbidden to wear something, or forced to wear an ornament. In extreme cases, slaves were branded as a punishment. In some cultures, the head was shorn or they were forced to maintain their Afro hair.
Rituals were humiliating in nature and emphasized the social death of the slave. Quasi filial fictive kin ties were established between the master and the slave, where the authority of the master was reiterated, but no rights or claims were given to slaves, thus a psychological manipulation is evident. A slave in this kin-based society zeroed in on the explanation that his slave status results from something very innate to him.
The notion of not belonging and belonging helped perpetuate the importance and unity of the clan because the slave suffered as he was clan less. There were two kinds of slavery, intrusive and extrusive- in intrusive slavery, where slaves were foreigners thus were the 'domestic enemy' because he belonged to an alien culture and no ancestry to trace back to or a future to look forward to, like Roman, Mesopotamian, Greek, Islamic slavery. However, some were locally recruited into slavery, which Patterson calls extrusive slavery, for example, Korean and Russian slaves. The slave was generally a fallen insider who failed to meet specific socioeconomic standards which implied their incompetence that justified their enslavement.
Even then, slaves were not outcastes or belonging to any caste for that matter. This was because slavery was personal domination and illustrated a perverse intimacy between the master and the slave, meaning that social segregation would have disabled the masters from using the slaves intimately. They were non-polluting, and in societies where ritual purity was valued, maintaining the purity of slaves was crucial to masters.
Igor Kopytoff counters Patterson’s claims of natal alienation because, in some societies, a slave-kin continuum where the outsider becomes assimilated in the kin network is seen. This implies that slavery was a process in which the outsider turns into an insider. Patterson highlights the Hegelian idea that slavery is contradictory in that unlimited power on one's slave can lead to complete dependence, and complete powerlessness can be a veiled bargaining chip in the hands of the slave.
Bales and Patterson have highlighted ‘slavery-like practices’ such as sex trafficking and debt bondage. Apart from the economic benefits, these practices have elements of slavery in them. Patterson critiqued Bales’ theory of ‘old’ and ‘new’ slavery and says that globalization has merely changed the ways in which slavery is practiced, but slavery-like practices are prevalent. While Bales highlights general trends in slavery, equating new world slavery to that prevalent in US South, Patterson takes a more historical approach and highlights that people who are sex trafficked face natal alienation, general dishonor, absolute degradation, personal domination. They are socially dead. Sex trafficking, like slavery has been highly gendered and racialized with women and children being exploited the most. Patterson says that bondsmen face violence but refutes that debt bondage is slavery as it lacks elements of alienation and personal domination. Bales argues that the lived experiences of those under debt bondage indicates otherwise. Moreover, debt bondage is also hereditary and has elements of sexual violence.
To conclude, the property definition of slavery has more cons to it than pros, because it is severely limited in its definition and takes a partial western approach ignoring the diverse traditions of voluntary servitude that people in different cultures have had. Crucial aspects of natal alienation, personal domination, general dishonor, dehumanizing violence remain absent from the property definition of slavery and accounting these factors will help in achieving a wholesome definition. To come up with a concrete idea of slavery that finds resonance in diverse cultures is a difficult task , but the limitations of the property definition are many.
References
Allain, Jean. "The Legal undersatnding of slavery into the Twenty-first century." Allain, Jean. The legal understanding of slavery from Historical to the contemporary. Oxford: Oxford University Press, 2012. 211- 231. PDF.
Bales, Kevin. "Professor Kevin Bales's response to Professor Orlando Patterson." Allain, Jean. The legal understanding of slavery from the historical to the contemporary times. Oxford: Oxford University Press, 2012. 372-387. PDF.
Bales, Kevin. "Slavery in its contemporary Manifestations ." Allain, Jean. The legal understanding of slavery from the historical to the contemporary . Oxford: Oxford University Press, 2012. 292- 314 . PDF.
Davis, David Brion. "The Ancient Foundations of Modern Slavery ." Davis, David Brion. Inhuman Bondage . New York : Oxford University Press, 2006. Chapter 2 . MOBI.
Patterson, Orland. "Rejoinder: Professor Orlando Patterson's Response to Professor Kevin Bales ." Allain, Jean. Legal Understanding of Slavery from the Historical to the Contemporary times . Oxford: Oxford University Press , 2012. 386-387. PDF.
Patterson, Orlando. "Preface; Introduction; The Idiom of Power; Authority, Alienation, and Social Death ." Patterson, Orlando. Slavery and Social Death . Massachusetts : Harvard University Press, 1982. 1-76. PDF.
Patterson, Orlando. "Trafficking, Gender and Slavery: Past and Present." Allain, Jean. The legal understanding of slavery from the historical to contemporary times. Oxford: Oxford University Press, 2012. 333-371. PDF.
Jean Allain and Robin Hickey (2012). PROPERTY AND THE DEFINITION OF SLAVERY. International and Comparative Law Quarterly, 61, pp 915-938 doi:10.1017/ S0020589312000450
Kopytoff, Igor. “Slavery.” Annual Review of Anthropology, vol. 11, Annual Reviews, 1982, pp. 207–30, http://www.jstor.org/stable/2155781
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