LBST 307 Chapter Notes - Chapter 5: Tobin Tax, Orlando Patterson, Ad Valorem Tax

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Jean Allain Readings
The Definition of Slavery in 18th Century Thinking by John W. Cairus
Roman Early Modern and Modern Definitions
Roman jurist Iavolenus Priscus stated that all definitions in law were hazardous, for
there were few that could not be overturned.
Florentinus explained slavery by contrasting it with freedom:
o Feedo is oes atual poe of doig hat oe pleases, sae isofa as it is
ruled out either by coercion or law. Slavery is a product of the ius gentium,
whereby someone against nature is made subject to the ownership of another.
Slaves (servi) are so-called because generals are accustomed not to kill but to sell
their captives and thereby to save (servare) them.
Tryphoninus states as an aside in a discussion of natural obligations and the condictio
indebiti that freedom was found in the natural law and ownership of human beings was
introduced by the ius gentium.
Ius Gentium meant laws that were common to all or most people
Slavery is the only conflict recognized by jurist between Ius Genitum and Ius Naturale
The Romans believed slaves were a fact in which some humans were unfree and subject
to ownership
Ulrich Huber 1636-1694 described slaves as a man who owes unending labor in return
for necessaries.
Andrew McDouall 1685-1760 Wrote
o Slavery was introduced by the law and customs of nations. It is indeed contrary
to the state of nature, by which all men were equal and free; but is not
repugnant to the law of nature, which does not command men to live in their
native freedom, nor forbid the preserving persons, at the expense of their
liberty, whom it was lawful to kill. Now this was the case of captives in a lawful
war, and of hose upon whom deprivation of liberty was inflicted, as a
punishment for their crimes. The parents being slaves, the children behoved to
be of the same condition.
John Gottlieb Heineccius 1681-1741 believed slaves were homo because they were
human but they did not possess a civil persona (civil status of a man) but was a res a
thing lacking family.
Millar Regius Professor 1761-1801 stated
o It is impossible to define the precise degree of subjection which constitutes what
is called Slavery the idea of which is different in different countriesWe shall
therefore consider the state of persons at Rome, called slaves without any
general definition of slavery.
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Smith and Millar considered slavery in the context of the relations of subordination in
families, a traditional approach linking it to the law of persons. But there can be no
doubt that what they saw as distinguishing a slave from a regular servant was that
slavery was a status that rendered one unfree and subject to ownership, whereas a
regular servant was engaged under a contract of service for a specified time for specific
Smith believed the differences between a slave and a servant was that a servant had
soe of the sae piileges as a aste ut the slae didt hae a.
The significance of Roman slavery as a standard by which to judge and to understand
slavery more generally persisted into the next century.
Thomas Cobb 1832-6 otrasted etee pure slaer ad iolutar seritude
Pure Slavery: the slave loses all personality, and is viewed as property
Involuntary Servitude: While treated as a lower class the person possesses various
rights as a person and is treated as a person by the law.
Co also elieed the status of a “lae i the ‘oa la as that the ee a thig
Cobb expressed that the power of the master was unlimited
Cobb feels Roman slavery was Absolute or Near Absolute Slavery
The New World focused on the policing of slaves and slavery
In Roman law slaves had no legal power
B. Eighteenth Century Cases and the Meaning of Slavery
Struggled to understand and deal with Colonial Slavery
E. Understanding the Modern Law on Slavery
Enforced labor was common in the 18th century
Individuals became servants in colonies but were seen as the same as Roman slaves.
Men were forcibly recruited into the Navy
What underpinned slavery was violence through threatening and coercion
Roman Legal tradition had it where slaves were owned or classed as property.
The individual might not be classed as a res, an object of ownership, but the powers
exercised over him or her were such that he or she might as well be.
The Legal Definition of Slavery into the Twenty-First Century by Jean Allain
The defiitio of slae estalished  the League of Natios i  as  the status
or condition of a person over whom any or all of the powers attaching to the rights of
oeship ae eeise
Colonialism and decolonization has allowed the 21st definition to differentiate from the
1926 definition.
As the decolonization process took place the Soviet Union lent support to independent
States with democratic values to bring in a new definition of slavery, which failed
With decolonization running its course at the end of the Cold War produced two
primary streams which joined together to give slavery a new definition.
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The fist as the ealisatio that igatio steaig fo the foe “oiet Uio
had a dark side, which was then addressed by both United Nations and Council of
Europe conventions related to trafficking in persons, which both include provisions
regarding slavery. The second stream was the creation of institutions of international
criminal justice which are manifest in the Yugoslav and Rwanda tribunals, which then
led to the birth of the International Criminal Court; each of these instances established
eslaeet as a ie ude its juisditio. P. 343
The period from 1922-1956 consisted of when the legal parameters of slavery were
drawn against a colonial backdrop.
1966-1989 when decolonization meant a focus away from the legal definition of slavery.
1989 with the Cold War saw the growth of international criminal laws, which provided
for a renewed emphasis on slavery and a consideration of the 1926 definition in light of
the requirements of criminal justice.
1922-1956 Establishing the Legal Regime
In 1922 a request was made to establish a legislative process on slavery, which lead the
League of Nations in 1924 to the Temporary Slavery Commission.
Ethiopia was placed under a mandate in 1922 with France, Italy, and the United
Kigdo, hih as adiisteed  the League of Natios sie the ouldt suppess
the slave trade.
Although Ethiopia was seen as a highly civilized country their joint with the League of
Natios didt suppess the slae tade issue of their state.
The take over of Ethiopia by Italy in 1936 was explained as Italy sought to delegitimize it
as a less than equal state.
While slae as deeed to e uaeptale to iilised atios it should e oted
that forced labor was not. In fact is was deemed essential to the civilizing mission
As Visout Ceil of Chelood, the Bitish Delegate to the League of Natios ad the
person who was most responsible for the language found in the definition of slavery,
oted: I do ot thik that thee is any nation, civilised or uncivilised, which does not
possess powers enabling the Government, for certain purposes and under certain
estitios, to euie foed o opulso laou o the pat of its itizes.
However, forced labour was deemed a true necessity for the colonial Powers so as to
deelop i the iteests of huait, o less, the ihes ad esoues of those Afia
outies plaed ude thei soeeigt. It as i this oloial otet that the 
definition of slavery would eege
The Temporary Slavery Commission realized that there were different forms of
exploitation around the world so they began to establish legal instruments which could
encompass the many forms of exploitation.
Robert Cecil on Sept. 22nd 1925 proposed what would become Article 1 of the 1926
defitio of slae. He epessed that “lae is the status o oditio oe ho
a o all of the poes attahig to the ight of oeship ae eeised.
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