Constructions of Race in Colonial Laws and the Transatlantic Slave Trade

Both CLR James, in The Black Jacobins, and Antony Anghie in his paper entitled “Francisco de Vitoria and the Colonial Origins of International Law”, outline some of the ways ideas about race and social hierarchy were born through colonial encounters

The Black Jacobins is concerned with the comprehensive analysis of the society of San Domingo/Sainte Domingue leading up to the years of the Haitian Revolution. In the section entitled “The Owners” he describes the hierarchy and expectations from colonial society held by the majority white ruling classes of San Domingo. While revolutionary views were eroding what was left of the lifestyle of the French aristocracy, many could still afford it in the colonies of France, such as San Domingo. This led to a particularly licentious and frivolous lifestyle for many, which was entirely dependent on slave labour. While the mixed-race population in San Domingo increasingly wielded more social, economic and political power, laws were enacted so as to prevent them reaching the same status as whites. Moreover, 128 categories of racial division were created to describe the mixed-race individual dependent on what proportion of white and black genealogy they embody. It was stated that even an individual with 1 part black and 127 part white background would be considered a person of colour, and thus will not be able to hold any political office within the colony of San Domingo. However, this did not stop the mixed-race population from holding very large and important influence over the enslaved black population of San Domingo, often more so than any person that was considered white. As such, the mixed-race free people became a key population in engaging with both free and enslaved black people of the island in their preparation for what was to become the Haitian Revolution. The somewhat privileged status of free mixed-race populations would enable access to a variety of social, political and technical education to the enslaved and free black populations that they would otherwise not be able to gain. Thus, despite measures to curb the influence of the people of colour, free or enslaved, in the island of San Domingo, just because of sheer numbers and social influence, they were able to orchestrate the Haitian Revolution.

Antony Anghie talks about the ways in which what we now know as international law found its roots in colonial encounters between the Spanish and the natives of North America (henceforth, referred to as “Indians”). The key figure Anghie discusses with respect to the formation of international law is the Spanish theologian Jurist Francisco de Vitoria. Vitoria is well-known for his contributions to international law, namely laws of war, and the rights of “dependent peoples”, which were largely based on his analysis of the encounter of the Spanish and the Indians in the New World. First and foremost, Vitoria rejected universal divine law as the primary tool to understand the roles and responsibilities of the parties in the Spanish-Indian contact. He replaced it instead with the application of a secular natural law, jus gentium, which can be applied to any race of humans assessed to embody faculties of reason. In his assessment of Indian culture, he did see them as possessing institutions of governance and propriety, which though were different in form from what was found in Europe at the time, were nonetheless demonstrative of the Indian’s capacity for reason. As such, they could enter into a relationship with the Spanish by the law of jus gentium as equals. However, even within this new context of secular law, Vitoria found Indians to be non-sovereign on account of their pagan beliefs, and they were therefore bound to defer to European norms of social and political contact. This entailed that if the Indians resisted any Spanish attempts to introduce Christianity, they would be considered ‘at fault’, and the Spanish would have all the rights to wage war against them.

In both the cases of the mixed-race and black populations of San Domingo and the assessment of Indians as non-sovereign by Vitoria, we see how race becomes instrumental in curbing political freedoms and agency of particular groups. It can be argued that these systems of law and social attitudes that were first formally established in colonial realms have built the foundations for the modern definitions of race as well as the systemic racism that can still be found in a lot of social establishments.

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