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Race, Law, and Comparative History


What are we comparing when we compare law and race across cultures? This was once an easier question to answer. If we take “races” to be real categories existing in the world, then we can compare “race relations” and “racial classifications” in different legal systems, and measure the impact of different legal systems on the salience of racial distinction and the level of racial hierarchy in a given society. That was the approach of the leading comparativist scholars at mid-century. Frank Tannenbaum and Carl Degler compared race relations in the United States and Latin America, drawing heavily on legal sources regarding racial definition, manumission of slaves, and marriage. They were studying relations between “white people” and “Negroes,” as well as the possibility of an intermediate class of “mulattoes.” But once we understand race itself to be produced by relations of domination, through several powerful discourses of which law is one, we are up against a more formidable challenge. We must compare the interaction of two things—legal processes and ideologies of race—in systems in which neither is likely to have a stable or equivalent meaning. Because “law” is likewise no longer as clear-cut a category as it once was; in addition to the formal law of statute books and common law appellate opinions, we now understand “law” to encompass a broad set of institutions, discourses, and processes produced by a larger cast of characters than solely jurists, legislators, and appellate judges.

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1. Tannenbaum Frank, Slave and Citizen: The Negro in America (New York: Random House, 1946); and Degler Carl, Neither Black Nor White: Slavery and Race Relations in Brazil and the United States (New York: Macmillan, 1971).

2. For discussion of this work, see Gross Ariela, “Beyond Black and White: Cultural Approaches to Race and Slavery,” Columbia Law Review 101 (2001): 640–89. See also Fuente Alejandro de la and Gross Ariela, “Comparative Studies of Law, Race and Slavery in the Americas,” Annual Review of Law and Social Science 6 (2010): 469–85.

3. Gross Ariela J., What Blood Won't Tell: A History of Race on Trial in America (Cambridge: Harvard University Press, 2008).

4. Bsumek Erika, Indian Made: Navajo Culture in the Marketplace, 1868–1940 (Lawrence, KS: University Press of Kansas, 2008); Pascoe Peggy, What Comes Naturally: Miscegenation Law and the Making of Race in America (New York: Oxford University Press, 2009); Guglielmo Thomas A., “‘Red Cross, Double Cross’: Race and America's World War II-Era Blood Donor Service,” Journal of American History 97 (2010): 6390.

5. Gross, What Blood Won't Tell, ch. 8.

6. See Fredrickson George M., The Comparative Imagination: On the History of Racism, Nationalism, and Social Movements (Berkeley: University of California Press, 2000), 4755.

7. For discussions of legal history and comparative law, see Reinhard Zimmermann, “Legal History and Comparative Law,” speech at the University of Lleida on October 25, 2007, at, last accessed December 2, 2010; Comparative Law and Legal History in the United States,” American Journal of Comparative Law 46 (1998):1; and Michele Graziadei, “Comparative Law, Legal History, and the Holistic Approach to Legal Cultures,” // Rivista critica del diritto privato. 1999, Vol. XVII. No. 3. 1–28 / Electronic resource The Cardozo Institutea /

8. See Tannenbaum, Slave and Citizen; and Fuente Alejandro de la, “Slave Law and Claims-Making in Cuba: The Tannenbaum Debate Revisited,” Law and History Review 22 (2004): 339–69

9. Tomlins Christopher, Freedom Bound: Law, Labor, and Civic Identity in English Colonizing America, 1580–1865 (New York: Cambridge University Press, 2010); Sweet James H., “The Iberian Roots of American Racist Thought,” William & Mary Quartery 54 (1997):143–66; Blumenthal Debra, Enemies and Familiars: Slavery and Mastery in Fifteenth-Century Valencia (Ithaca, NY: Cornell University Press, 2009); Alejandro de la Fuente and Ariela Gross, “Race Under Slavery in the Americas” (unpublished paper in possession of the author).

10. Telles Edward E., Race in Another America: The Significance of Skin Color in Brazil (Princeton: Princeton University Press, 2006); Skidmore Thomas, “Racial Ideas and Social Policy in Brazil, 1870–1940,” in The Idea of Race in Latin America, 1870–1940, ed. Graham Richard (Austin: University of Texas Press, 1990), 736; Silva Denise Ferreira da, “Facts of Blackness: Brazil is not (Quite) the United States … And, Racial Politics in Brazil?” in Social Identities 4 (1998): 201234.

11. Scott Rebecca, Degrees of Freedom: Louisiana and Cuba after Slavery (Harvard University Press, 2005).

12. Fredrickson, The Comparative Imagination, 80, 85; and Fredrickson George M., Racism: A Short History (Princeton: Princeton University Press, 2002).

13. Thomas Holt, “The Problem of ‘Race’ in The Twenty-First Century” (The Nathan Huggins Lectures, Cambridge: Harvard University Press, 2008).

14. Fredrickson, Comparative Imagination, 81.

15. Isaac Benjamin H., The Invention of Racism in Classical Antiquity (Princeton: Princeton University Press, 2004).

16. Lape Susan, Race and Citizen Identity in The Classical Athenian Democracy (New York: Cambridge University Press, 2010).

17. In English, see Takezawa Yasuko, “Race Should Be Discussed and Understood Across the Globe,” Anthropology News 47 (2006): 67; and Transcending the Western Paradigm of Race,” Japanese Journal of American Studies 16 (2005): 530.

18. Takezawa, “Transcending the Western Paradigm,” 11.

19. Caldwell Peter C., “When the Complexity of Lived Experience Finds Itself Before a Court of Law,” Law and History Review 29 (2011): 567–72, at 571.

20. Wertheimer John W., Bradshaw Jessica, Cobb Allyson, Addison Harper, Colhoun E. Dudley, Diamant Samuel, Gilbert Andrew, Higgs Jeffrey, and Skipper Nicholas “The law recognizes racial instinct”: Tucker v. Blease and the Black–White Paradigm in the Jim Crow South,” Law and History Review 29 (2011): 471495, at 476. For a discussion of “complexification,” see Gross Ariela, “Beyond Black and White”; Walter Johnson, “Inconsistency, Contradiction, and Complete Confusion: The Everyday Life of the Law of Slavery,” Law and Social Inquiry 22 (1997): 405–33.

21. Caldwell, “When the Complexity of Lived Experience.”

22. Gross Ariela J., “Litigating Whiteness: Trials of Racial Determination in the Nineteenth-Century South,” Yale Law Journal 101 (1998):120.

23. Woodson Carter G., Free Negro Owners of Slaves in the United States in 1830 (Westport, CT: Negro Universities Press, 1924, reprint); and Sharfstein Daniel, “The Secret History of Race in the United States,” Yale Law Journal 112 (2003): 1473.

24. See, for example, the essays collected in Theoretical Inquiries in Law: Legal Histories of Transplantation 10:2 (2009); and Benton Lauren A., Law and Colonial Cultures: Legal Regimes in World History, 1400–1900 (New York: Cambridge University Press, 2002).

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Law and History Review
  • ISSN: 0738-2480
  • EISSN: 1939-9022
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