Seeking to Understand the Definition of Slavery, Robin Hickey

Seeking to Understand the Definition of Slavery

Robin Hickey*

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: Article 1(1), 1926 Slavery Convention; Article 1(1), 1925 Draft Convention.

Slavery is a status in which one person exercises a right of property over another: Article 1(2), 1925 British Draft Protocol.

While generally it has been accepted that Article 1 of the 1926 Slavery Convention provides the authoritative definition of slavery in international law, it is equally true that the interpretation of its provisions has been a matter of some controversy.1 The aim of this chapter is to contribute to the resolution of such controversy by returning to the text of Article 1 to offer an explanation of its meaning, and particularly the guiding idea that slavery is constituted and identified by exercise of ‘the powers attaching to the right of ownership’. Whilst this provision may seem cumbersome to the naked eye, or even outmoded given its appeal to ‘ownership’ so far as dealings with people are concerned, when fully understood it contains great explanatory force. Indeed, here we will argue specifically that paying close attention to the text of Article 1 allows us to fix ‘slavery’ with a core settled meaning, which has demonstrable relevance to contemporary practice.

To make this argument we need to unpack the idea of ‘powers attaching’ to ownership and explain the continued relevance of this construction to contemporary slavery. As to the unpacking, here we do this by referring to property law, where jurists old and new have laid emphasis on the powers and privileges associated with ownership (what the owner of something is entitled to have, do or expect in respect of that thing) when seeking to describe ownership as a basic legal relation. We can use these property texts instrumentally to illuminate the meaning of Article 1. Indeed in the first part of this chapter, we suggest that the drafters of the 1926 Convention may have been influenced by such texts when framing the terms of Article 1. Whatever the truth or utility of this contention, the chapter proceeds to elaborate the various powers and privileges associated with ownership and considers their application to slavery situations in order to demonstrate the possibility and value of thinking about slavery in these terms. Having done so, we deal with an objection that would query the continued applicability of theories of ownership to slavery in a world which to a very large extent has abolished the existence of formal property rights in respect of persons. By clarifying the main import of ownership in systems of private property law, the chapter argues that, in the context of persons, the phenomena of ownership might persist notwithstanding such formal abolition, insofar as it remains possible to produce the substantial effects of the exercise of the powers attaching to the right of ownership in respect of a person. This leads us to defend and explain the continued relevance of ownership to modern slavery, and in the final part we return to evaluate the text of the Article 1definition in this light. Our evaluation allows us to fix Article 1 with a core-settled meaning, which identifies slavery according to whether a person is controlled as if she were a thing. Moreover, this core meaning is substantive, not formal, in that it embraces and is aimed at addressing our principal objections to slavery as a social institution, but does not differentiate that objection according to whether or not a legal status of slavery is recognised. Accordingly, Article 1 emerges as a meaningful, practicable definition, with demonstrable relevance to the context of modern slavery.

A. The Drafting Process

In some respects we know very little about how the text of Article 1 was drafted, but we do know that there was broad consensus that concepts of property law could usefully be engaged to explain slavery. This consensus is very clear, though curiously it emerged relatively late in the drafting process. The starting point must be to note that the original draft of the Convention contained no definition of slavery at all.2 That first draft was produced by Sir Frederick Lugard, the British delegate to the Temporary Commission established by the Council of the League of Nations in 1924 to investigate the question of slavery. British Colonial Office papers suggest that Lugard’s draft Convention was entirely his own work, and was not the product of the Temporary Commission.3 Lugard sent the draft to the Viscount Cecil of Chelwood, the British representative on the Sixth Committee of the League of Nations (the League’s political committee), asking ‘if the principles embodied therein would be generally acceptable’.4 In July 1925, Cecil convened an inter-departmental committee of the British government to consider Lugard’s draft, and made radical revisions and alterations,5 later approved by the British Cabinet as a Draft Protocol on the Suppression of Slavery, intended for the signature of all states.6 One revision included a definition of slavery: ‘slavery is a status in which one person exercises a right of property over another’.7

We have no minutes of the discussions of Cecil’s committee, nor any later suggestion as to why it perceived the need for any definition, or arrived at this precise formulation. We know only that Cecil himself thought that the definition was wholly uncontroversial. He presented the British Draft Protocol to the Sixth Committee of the League of Nations at a meeting in September 1925, at which meeting the chairman of the Temporary Slavery Commission, Albrecht Gohr, also presented the findings of that body. In the course of explaining Article 1 of the British Draft Protocol, Cecil is recorded as having indicated that the provision ‘merely defined the Slave Trade and Slavery’, and that ‘to these definitions he did not think any objection would be raised’.8 The Temporary Slavery Commission by this stage agreed that a general definition of slavery would be helpful; indeed the report presented by Gohr on the same occasion notes specifically that:

A legislative text, which, as far as practicable, covers all offences against the liberty of the individual by a single comprehensive sentence seems preferable to one attempting to enumerate all possible forms of slavery.9

With concurrence in this general aim, the text of the proposed definition was further refined, though again we have little archival evidence as to the steps. In his valuable work on the travaux préparatoires, Allain traces the development of the definition by the Drafting Committee.10 The terms of the British Draft Protocol were quickly amplified to embrace exercise of ‘the power attaching to proprietorship’, but the final move to ‘any or all of the powers attaching to the right of ownership’ came again at the proposal of Cecil, and found its way unaltered to the 1925 Draft Convention.11 Allain records evidence of some disagreement on the proposed definition from three states which chose to comment on it.12 Germany wanted to augment the definition by expressly declaring it to refer to the exercise of ownership powers ‘under private law’; South Africa, approving the draft definition, summarised its effect in saying:

a person is a slave if any other person can … claim such property in him as would be claimed if he were an inanimate object.13

These refinements were not adopted, and ultimately Cecil reported the decision of the Drafting Committee to make no changes to the Draft Convention.14 The various positions do at least evidence wholesale agreement on the idea that property law could usefully be employed to explain and define slavery, but beyond this we know little about the origins of Article 1 of the Convention, and we have no clear record of how or why the language of ownership came to be engaged.

It is telling though that in respect of each of these moves (the decision to include any definition of slavery; the formulation and proposal of a definition in the British Draft Protocol; and the subsequent refinements to that proposal which culminated in the text of Article 1 of the Convention), Viscount Cecil was the agitator. Cecil was himself a lawyer, educated at Oxford in the 1880s at a time of great renaissance in legal education. The overriding concern of many of his tutors would have been to explain, with great conceptual clarity, the meanings of basic legal relations.15 As we shall see in a moment, a conceptual description of ownership, in the same terms found in the 1926 Convention, was being developed in the English legal writings of this period. It seems very possible that the definition of ownership he proposed to the Drafting Committee reflects something of Cecil’s own legal education, and the commitment to exegesis of basic legal concepts that would have characterised the legal educators of his day. Whatever the truth or utility of this hunch, it is clear from the travaux préparatoires that the definition in the 1926 Convention was influenced by a property law construct; or at least that understandings and terminologies of rights in respect of things contributed to the decision to formulate the definition in the manner given in the Convention. Accordingly, it appears to be safe to use perspectives from legal history and property theory to cast light on the conceptual structure of the definition of slavery set out in the 1926 Convention.

B. Describing the ‘Incidents of Ownership’

It might be surprising to learn that for much the greater part of its history, the common law did not contain (and common lawyers did not strain to propose) a working definition of ownership.16 Blackstone’s Commentaries, published in the 1700s and so very influential in Anglo-American legal thought, contained a well-known definition of ‘property’ supposing a despotic relation of control between person and thing,17 but they did not define ownership. Indeed, we find no sustained interest in defining ownership as a practical legal relation until the end of the nineteenth century, when common law jurists began to think and write on the substance of legal rights really for the first time. The reasons for this apparent renaissance in legal thought are connected to the legal history of England, which up to the middle of the nineteenth century had seen legal practice dominated by procedurally-driven, formulaic methods.18 The abolition of the ‘forms of action’ in 1852,19 allowed lawyers and judges to plead, argue and decide cases by reference to the substantive rights of the parties, and with this came increased intellectual focus on the substance of those rights, and increased efforts to explore and categorise kinds of legal rights into something more like the terms we know today (contract, tort, property, and so on).20 In this spirit of freed intellectualism, we find express attempts to explain ownership as a legal relation. These explanations began from first principle reflections, or alternatively from reflections on phenomena in decided cases. So Sir William Markby, writing an influential early law textbook for university students, considers a field and supposes the variety of rights that might exist in respect of that field:

There is the right to walk about the field, to till it, to allow others to till it …, to sell it …, to give it away, … and so forth.21

Markby considered that these various rights did not exist as separate legal relations, but rather that each was a manifestation of a general right called ‘ownership’:

The owner of the land has not one right to walk upon it, and another right to till it …, and another right to sell it: all the various rights which an owner has over a thing are conceived as merged in one general right of ownership.22

This distinction between the legal relation ownership and the various powers which it might entail was quickly adopted by other scholars. In 1888 the construction is present in Sir Frederick Pollock’s famous Essay on Possession in the Common Law.23 There, for purposes connected with his general thesis on the meaning of possession, Pollock makes reference to ‘the standard incidents of ownership’ in a way which distinguishes them from the ownership relation itself.24 Salmond’s great work on Jurisprudence also pressed this distinction, though in contrast to Markby he preferred to think of ownership as an aggregate or ‘complex of rights’, such that each of the incidental powers attached to ownership (to walk on the field, till it, sell it) was considered a substantive legal relation in its own right.25

The best known and most influential analysis of ownership in these terms is an essay by Antony Honoré first published in 1961.26 It remains a pre-eminent account of ownership in the common law world. It makes express reference to Markby’s work, and again approaches the meaning of ownership from a first principles reflection. It is clear from the terms of the essay that Honoré was proposing to describe the central or core manifestation of ownership in law. Indeed, elsewhere he has stated expressly that his goal was to apply to ‘the liberal concept of full individual ownership’27 the same methodology of descriptive analysis he made famous with H.L.A. Hart in Causation and the Law.28 Such analysis aims generally to elucidate the ‘incidents of the model case that [a] concept fits and from which defined normative concepts follow’, in order to prompt deeper understanding of lesser or marginal examples where one or some of the incidents are missing.29 Accordingly, Honoré’s account of ownership devotes a great deal of attention to detailed exposition of the incidents of ownership. Whereas the earlier accounts of ownership had merely supposed some distinction between the legal relation ownership and the incidental powers and privileges entailed by that relation, Honoré engaged in sustained analysis and explanation of each of them. He identified eleven incidents in total, supposing that the presence of these incidents ‘may together be sufficient’ to identify the existence of an ownership relation.30 It is useful to dwell on them here for descriptive purposes, as we begin to flesh out our understanding of the kind of ownership construct engaged by Article 1. In this sense we might meaningfully consider Honoré’s list of incidents as indicative of the kinds of liberty in dealing with a resource which characterise the position of an owner.31

The right to possess

Possession in its central sense refers to the factual condition of having physical control or custody of something, and so the ‘right to possess’ is the right to have physical control of something. Often it is seen as the most basic incident of ownership. Honoré calls it ‘the foundation on which the whole superstructure of ownership rests’.32 It is a right which we might say has positive and negative manifestations, insofar as it comprises the right to be put in control of a thing in the first place, and then the correlative claim that others are to be kept from interfering with the control of that thing, at least where they do not have specific permission to do so. Accordingly, the right to possess reveals that exclusion is a characteristic of ownership. An owner will usually have control of her thing to the exclusion of others. Moreover a legal system which recognises a liberal conception of ownership will usually provide a legal procedure to correct interference with that exclusive control, and this would certainly have been the experience of Honoré and others considering ownership from the perspective of the common law tradition.33

Whilst it is easy to identify a central meaning for possession, lawyers have always struggled to be exact about its parameters. Many of us still delight/annoy our undergraduate students with seemingly abstruse questions about whether a fishing net needs to be fully closed before fish can be said to have been taken,34 or whether the captor of a wild fox is rightly the first person to lay pursuit or the first to have it in his grasp.35 In reliance on the texts of Roman law, English lawyers have considered possession generally to be a function of factual control of some asset with a concomitant manifested intent to control it,36 but still we say that what counts as possession in a given case must vary with all the circumstances of that case.37 Thus observing that person X exercises a right to possess person Y is unlikely to lend a great deal of precision to our analysis of the meaning of slavery. Indeed, neither is observing that in fact person Y is in the possession of person X, since possession might embrace everything from actual physical restraint to abstract directive control. We can say, though, that the maintenance of effective control is considered to be hallmarks of ownership, such that when we see it practised in respect of persons, we might say: there is the hallmark of slavery.

The right to use; the right to manage; the right to the income

The next three incidents are interconnected; each being somehow concerned with the practical deployment of an asset by the person entitled to have it. The right to use refers to an owner’s ability to enjoy personally the benefits of something. The right to manage refers to an owner’s ability to make decisions about how a thing is to be used: to specify who should use it, and when, and for what purposes. It also supposes and comprises the powers necessary to bring those objectives to fruition: for example, the power to make agreements or contracts that person X should use resource Y for a given purpose and a given time period.

Characteristically an owner is entitled to any profits derived from the use of her thing (for example, to rent from land granted on a lease) and this is expressed by saying that she has a right to the income generated by her thing. Honoré identifies this right’s close connection with the right to use. It is, he says, ‘a surrogate of use’, meaning that those benefits which an owner derives from the permitted exploitation of her thing by another might be seen as reward or compensation for the owner forgoing her own personal use of the thing. By the same token, we can easily see the relation of management to use and income. An owner might enjoy something herself, or alternatively make decisions about who is to use it, claiming a stipulated profit for herself. Thus we begin to have a picture of the owner as master