The ‘Code noir’, drawn up on the islands of îles de France and Bourbon in 1723, at the start of the reign of Louis XV, was the legal expression of an economic and social system notably dedicated to the growing of sugar cane, an agricultural resource considered at the time as having high development potential. Research has established that an autonomous trading system was established in 1455, on the initiative of the Portuguese on the island of Sao Tomé : “where was celebrated the ‘marriage’ between sugar cane and the African man and appeared the accomplished model of a society based on slavery.”. This triangular system, holding many promises, was the object of successive transformations and geographical movements, in Brazil and in the Caribbean, before being applied in the Indian Ocean.
In the Indian Ocean, we can say that it also represented a ‘total fact of society’, as understood by Emile Durkheim, consisting of multiple dimensions: economic, social, political, religious and also legal. In France, while the analysis of the legal texts may appear to have been neglected, it has been the object of remarkable interest shown by contemporary doctoral students, such as Jean-François Niort or Louis Sala-Mollins, respectively legal historian and philosopher.
Legal analysis is a way of understanding slavery, due to the importance of the rule of law in social relations. Many modern states gave slavery a legal status, thus demonstrating the initial change in the economic model, with the common basis being the forced seizure of the slave’s work capacity. The civil code of Louisiana, drawn up in 1808 and revised in 1825, clearly set out this element, its article 155 explicitly differentiating between two types of servants: the free men and the slaves. However, by definition, slavery was far more than a reduction of the person to his work capacity, imposed on him or her by a third person. While forced labour was its expression, slavery represented, more essentially, the condition of the person, reduced to an object, through the application of the rule of law.
In the strict sense of the term, the Code noir was limited to the 1723 text, referred to by the term ‘Letters Patent’. In its wider sense, it is appropriate to retain the main legal provisions concerning slavery in the Indian Ocean, which enabled the application of this system which, between 1723 and 1848, turned human beings into things (the reification of human beings). The common classification differentiates between the Code noir and the Nouveau Code noir: New Code noir (CN and NCN). The normalisation through these texts, an element of their legal character or constraining characteristic, will be discussed before an analysis is made of their fundamental provisions. Historically, we can observe four important stages in the colonial legislation relating to slavery: the 1723 text set out the legal domination of the master over the slave; the 1805 colonial Civil Code introduced the duality of liberty, while maintaining slavery; royal legislation of the 1840s granted increased protection for the slave and the possibility of mediation of relations between the master and the slave; legislation following the abolition of slavery, in application of the decree dated 27th April 1848, granted compensation to the dispossessed masters. The criminal Code noir, which reserved a specific and complete repressive treatment and completed the common Code noir, reflected the legal complexity of the system of slavery.
A reading of the Code noir and the Nouveau Code noir enables us to apprehend without any ambiguity the legal character of their provisions, or their capacity to determine relations between masters and their slaves in a coherent manner, their capacity to differentiate between the objects of rights and obligations and their attempt to punish any breach of these rights and obligations. There is no doubt that in 1723 the intention of the legislator was to organise a society openly based on racist considerations, ensuring the domination of the white man over the black man, through the rule of law. While the texts issued by the July Monarchy (1840-1848) somewhat eased the legal condition of the slave, they nevertheless maintained its legal institution. The clear evolution of the legal condition of the slave between 1723 and 1840 was, notably, characterised by increased technicality and precision, with a tendency to protect the slave from the arbitrary decisions taken by the master. The desire to protect was also expressed in the 1723 text. These texts form what would be considered today as a positive law, or a law applicable in a given territorial space, the expression of an act of sovereignty of the State. However, while the formal and technical aspect of the law of slavery is indisputable, it is also indisputably one of the clearest expressions of the phenomenon of anti-law, or a perverse and freedom-destroying law.
The anti-Jewish legislation of the Nazi State can also be qualified as anti-law, as can that of the Apartheid regime. It is true that we cannot compare the status of the Jews and that of slaves, without taking precautions. Hannah Arendt, however, demonstrated that the removal of common rights from the Jews (political rights, property rights) was the first step towards their exclusion, initially legal and then leading to their extermination, declared as being ‘final’. The work carried out by Danièle Lochak concerning the law of the Vichy government prolonged the issue of the anti-law. She demonstrated, at best, the culpable indifference of French legal doctrine regarding legal documents issued in the years between 1940 and 1944. Indeed, the laws and comments concerning the latter are not neutral. The declared absence of complicity and the indifference of the positivistic doctrine of anti-law hardly appear convincing. We may refer to the notion that: “only the law, which has the capacity to separate reality according to an a priori logic, could have given birth to such a monster,” however with one reserve: it was not the law in itself that created the monstrosity, but the political force behind it. The law ‘simply’ formalised it legally and gives it legitimacy. A contemporary legal analysis of the Code noir is open to conflicts of interpretation, opposing those radically declaring it to be inadmissible and those who, despite this inadmissible character, wish to apply a legal analysis of a scientific nature.
The Letters Patent (LP) did not provide a legal definition of slaves, in the sense of initial criteria of identification. To a certain extent, we can coldly consider that there was a breach in the coherence of reasoning in the law drawn up at the time, since legal logic was not respected: how was it possible to apply laws if the identity of the persons they were to be applied to was unknown? The status of the slave was, however, recognised through a number of secondary hypotheses.
Neither the Letters Patent, nor the legislation issued under the July Monarchy set out the criteria defining the slave. In any case, no provision defined the slave as regards his or her racial appearance, unlike the way in which South African law proceeded under the 1950 Population Registration Act, the law classifying the population. According to the Code noir, the black man was not necessarily a slave: he may have been emancipated or born free. The text thus simply declared the condition of the slave, as though the question of defining who was or who was not a slave was, at that time, obvious, or, at any case, not legally necessary. Since the Code noir set out to ensure domination by the white man, the slave was a priori black, without excluding the possibility of his being of mixed race, through inter-racial relations, even though these were prohibited. Finally, as the text did not provide that a person considered to be a slave might be emancipated due to the fact that he or she appeared white, it was impossible to exclude, theoretically, the hypothesis of a white or almost white slave. In practice, all slaves were registered and their appearance was described in the mention ‘cast’. Some were considered as African, Madagascan, Creole or Red. Certain were described as ‘light black’. Finally, the Code noir endorsed the legal condition of the slave, without creating it. Exceptionally, concerning a certain number of hypotheses, the Letters Patent determined the condition of the slave. Thus, article V contained two sets of indications. Children born of a forbidden union would always be considered as slaves, without it being possible to emancipate them. In addition, a black man, freed or free, who married his slave and freed her, freed the children, already born or to be born. Article VIII set out that slave parents gave birth to children who were slaves. In accordance with Article XI, a person’s legal situation was matrilineal. A slave mother gave birth to slave children and, by symmetry, a free mother gave birth to free children.
On the other hand, the 1825 Louisiana Code Noir defined the slave and his or her condition: “A slave is a person who is under the power of a master and who belongs to him: consequently, the master may sell him and dispose of his person, his industry and his labour and he may not make, possess or acquire anything not belonging to his master.” (article 35). Since slavery remains a contemporary issue, the international Convention regarding slavery, drawn up in Geneva in 1926, defines the slave as being: « the state or condition of an individual over whom the attributes of the law of property or certain of these, are exercised” (article 1, paragraph 1). As regards the European Court of Justice, in the case Siliadin v. France, of 26th July 2005, the court had to define the respective notions of forced or compulsory labour, servitude and slavery…
In actual fact, slavery consisted in removing from a person his or her free will to act, destroying, as far as possible, his or her freedom of thought, subordinating him or her to the exclusive will of his or her master, turning him or her into an inferior human being. The abominable system of slavery became even more serious when based on racial considerations. Not only did the legal system partly appropriate these facts, since it organised, for the benefit of the master, the means of achieving this domination, but it went still further, in that it made use of the legal structure to dissociate the person from his or her subjective rights. In other words, the slave was a person with no rights, without a legal personality. One of the great victories scored by the philosophers of the Enlightenment consisted in associating all persons with their rights and recognising equal rights for all persons. For Kant, no form of liberty, in the sense of the subject’s free will, may prevail without equal rights. However, between the proclamation of 1789 and 1848, many forms of resistance were applied, aimed at delaying the application of the new political order in the French colonies. In the 1723 text, in principle and in essence, the slave was a legal object. Very logically, the slave had no civil status: physical birth was dissociated from legal existence. It was in 1848 that the commissioner Sarda Garriga associated reality and law, by giving civil status a universal character. in 1948, a whole century later, the Declaration of Human Rights made civil status fully part of human rights: “Each person in all places has the right for his legal person to be recognised.” (article 6).
The exercise of rights of which the slave might be the object concerned the owner, who exercised obligations in this respect. By exception and as an indication of his servitude, the slave was a subject at law. Article XLVIII of the Code was extremely significant. In the specific case of absence of the owner, it assimilated the situation of the slave to an object kept by a substitute owner (depository or other), responsible for managing the object “with due diligence” and solely responsible for damages due to poor management.
To exacerbate this ‘reification’ (considering the person as a thing), article XXXIX indicated that the slave was a movable belonging, that is to say an object of law: “Slaves are reputed movable”. The past participle ‘reputed’, taken here as meaning are held to be, means that the authors of the Code Noir were absolutely aware of the necessity of being dependent on a legal fiction, as an instrument of legal construction that all the rest (the legal condition) was based on. The use of a legal fiction, a very common legal technique, also meant that there existed no factual proof that a person must be considered to be a movable belonging. It was through this totally legal fiction that the legality and the legitimacy of slavery were constructed.
Exceptionally, the slave was considered to be a non-movable object, notably in the event of sale of the property to which he or she was attached (articles XLIII, XLIV and XLV). What followed was a legal status leading on from a certain rigorous logic. The slave was submitted to common law like movable belongings (Ordonnance et Coutume de Paris: article XL). The slave could be sold, but the wife, the husband and children before reaching puberty could not be separated (article XLII). In the event of notification of the loss of a slave, the master had the right to claim compensation (article XXXV). An object, not a legal subject, the slave could not own property on his person, his children or his work, which de jure belonged to his master. According to article XXI, he found himself unable to own and unable to take advantage of property, which was fairly logical, since these are legal prerogatives recognised for owners. He could not be held liable in civil law for acts committed under the orders of his master.
It is true that there existed protection for the slave. It is one of the central points that are the object of debate: is it possible to speak of a document playing the role of ‘intermediary’ between the master and his thing, without granting him, as a result, a retrospective legitimacy? The discourse must be measured, since it remains common, in Reunion, as well as in Mauritius, to hear the opinion that slavery was not so tough, that the majority of owners were themselves poor and needed to rent out their slaves in order to survive. Such declarations deserve to be taken cautiously and open the way to research, so far uncommon, on the double alienation, that of the master as well as that of the slave, as being the effects of the policy of the colonial development of the royal State.
Whatever the extent of these means of protection, they could never transform the slave into a legal subject, but served as a reminder of his status as specific thing to be taken care of, in the same was as of an animal or a house, in order to preserve it. Proof is that the slave was incapable of claiming his rights himself: he was a creditor with no legal personality. These rights notably concerned religious instruction (Articles I and following). But were these rights or obligations, a means of extending the power of the Catholic church throughout the world? They also concerned the responsibility for slaves in the event of old age, sickness or other incapacity, as well as the obligation to pay an amount to the closest hospital (article XX). Rest during festival days was also implemented (article IV). In all cases, these rights depended on the diligence of the master, against whom the salve could not testify (article XXII). The only form of action the slave could take was the faculty of transmitting his or her ‘brief’ to the public prosecutor, in the event of failure to apply the obligation of care (article XIX). This procedure consisted in notifying the prosecutor, but its force was secondary, since, logically, it could not represent the equivalent of a testimony. Finally, article XXXVIII provided repressive measures for the master who had mutilated or killed his slave. However, the master could be granted a pardon following a simplified procedure.
The only section of the Code that recognised the slave as a subject in actual fact aimed at confirming his condition of servitude. According to article XXV, in criminal law, he could be pursued in application of the same formalities as free persons. As regards marriage and emancipation, these depended on the master. In these conditions, how can we fail to note the clearly dehumanising effect of the legal standard, as an expression of the relations of domination that the colonial society was satisfied with?
Alas, history does not teach us, or teaches us very little. There still exist so many contemporary examples of exclusion that it is difficult to treat them. Even modern societies that are proud of their tolerant attitudes, including France, on the foundation of the glory of the country’s revolutionary experience and based on the discovery of a universal paradigm of human rights, have their contradictions, limits and exclusions: the migrants, the poor, the disabled. It is true that things have changed. What has been acquired is that slavery is forbidden. Thus, the 1948 universal declaration of human rights provides that slavery, as well as inhuman and degrading treatments are forbidden. The status of the international court of human rights of 1998 is supreme. National criminal codes follow and punish these practices. It is true that the legislation concerning slavery is no longer applicable and it is no longer possible to establish that a person is also a thing, belonging to another person.
The contribution, in retrospect, of an analysis of the Code noir must not be neglected in the attempts to understand contemporary slavery, the recurrence of which is clear and which, notably, takes on the forms of sexual slavery, prostitution and pornography.. These forms, which it would be wrong to declare as being new, are also, nevertheless, facilitated by practices of predation and the globalisation of exchanges.