After several decades of intellectual labor invested in the Tannenbaum debate—a long and exhausting controversy well summarized in the first part of Alejandro de la Fuente’s article—I am wary at the prospect of opening a new round of this “many-headed-hydra” debate. Aside from the conceptual limitations of the (overly ambitious) thesis and the reins it can impose on fresh formulations of research agendas, there are other reasons why it may be wise to put Tannenbaum to rest. His thesis is burdened with a series of charged subtexts that surreptitiously make their way into the discussion and inflect the terms of the debate. Some of these subtexts carry long (and polemical) histories behind them that are difficult to obliterate.
To be sure, the debate around Tannenbaum’s thesis is still enacted in historiography survey courses as an exercise—or ritual—in keeping alive the memory of the discipline’s concerns and conversations in the past, but its utility to structure present and future research is highly questionable. The all too common trend has been to recycle arguments along predictable lines—or with endless qualifications—plugging in ever new (or not so new) localities and case studies. De la Fuente’s (hereafter DLF) article tends to fall into this pattern. While tantalizing us with the prospect of an in-depth examination of slaves’ claims-making and their access to colonial legal culture, a promising new topic rich in possibilities of its own, the article fails to pursue in any sustained way this engaging venue of inquiry. I found only a handful of references to slaves’ use of the law and the judicial system to negotiate claims and, for the most part, these cases are simply deployed to prove that “some” slaves did make use of the judicial system. Instead, by inscribing his work within the Tannenbaum paradigm, the author feels compelled to follow Tannenbaum’s protocols of argumentation and spends most of the empirical section in the article falling back into standard questions and deploying the usual kind of evidence on behalf of Tannenbaum’s scholarly cause. Did ancient peninsular slave law apply to colonial Cuba? Did slaves partake of the sacraments in this locality? Were they baptized? Did they marry by the Church? Did manumissions take place in Cuba (or in some main urban regions)? What kind of manumissions were they? I want to avoid the trap of critiquing the article by engaging in the usual terms of the debate, as the empirical evidence applies to the “Cuban case” or a particular geographic and chronological location therein. (Even if I tried to refute any empirical point or, more important, the claims made regarding its significance, there would always be yet another piece of evidence to make the case for the thesis or a new qualification to save it.) In my own recent work on royal slavery in early colonial Cuba I avoided this and other quagmires related to the Tannenbaum paradigm by working outside its (confining) framework even though my case study provided a classic occasion to engage or “test” the thesis (yet once more).
Frank Tannenbaum was trained as a sociologist in a period when that discipline’s theoretical concerns and main lines of inquiry were informed by institutional, including legal, questions. He was also among the earliest practitioners of Latin American studies in North American academia at a time when these regional studies were only beginning to consolidate as a field. Although his primary professional (and political) interest was modern Mexico, he ventured into the Black Americas via his political concern with race relations in the U.S. As a sociologist of his time and progressive liberal himself, he may have been drawn to intellectual issues dealing with the rule of law and its autonomous capacity—or power—to shape social life. Tannenbaum opened his book Slave and Citizen (1946) with a critique of current race relations in the U.S. and sought “elsewhere” an idealized vision of an alternative social model against which the defects of modern North American society could be judged. He found that “elsewhere” in the general region where his academic interests lay. He contrasted the grim segregationist North American scenario of the 1940s to an allegedly (and subsequently revised) positive model of race relations—the so-called racial democracy model—in Latin America. Tannenbaum then attempted to explain those present regional differences “historically” by turning to the past, in effect by foregrounding antithetical (mostly) de jure differences in the institution of slavery in these two locations. Whatever its merits or defects, this link between past and present with regard to the contrasting regimes in question constituted the main innovation of Tannenbaum’s thesis. To be sure, DLF acknowledges some of the critiques that have been made to the quasi historical and causal connection as well as to the characterizations of race relations that allegedly resulted from it. Although he rightfully distances himself from those central aspects of Tannebaum’s argument, he, and other scholars, still hold on to the last remnant of the thesis, the (for the most part recycled) historical part regarding the relationship of legal principles and traditions to the character of slave regimes. To what effect?
One reason DLF may see the utility of revisiting the Tannenbaum thesis is to provide some theoretical justification for the study of slave law in slave societies of the New World and, in particular, to legitimize the emerging specialized field of such legally oriented studies in Latin American societies. The author rightfully decries that “some scholars [have gone] so far as to claim that the study of the law had little to contribute to our understanding of the slave experience in Latin America.” But one need not turn back to Tannenbaum to oppose (strict “materialist”) scholars who see little or no use for this kind of pursuit. Too often Tannenbaum’s thesis tends to become a short hand for any kind of scholarly interrogation of the legal sphere in slave societies, particularly in the field of Latin American history. But his somewhat static, anachronistic, and even reductionistic approach to the realm of the law may obstruct the formulation of more sophisticated and challenging questions along new lines in this field.
The most resilient (and problematic) subtext in this “historical” part of the thesis—albeit a central and explicit one in Tannenbaum’s own text—is that related to the “humanitarian” (legal and religious) character of the legacy that shaped slavery in the Iberian colonial world. This assertion subtly tends to mutate into the claim that slavery in the Spanish and Portuguese Americas was milder, more humane, and more liberal than in the Anglo-American world where its antipode—a harsh, brutal, and cruel form of bondage took root. Tannenbaum’s thesis thrived on explicit and implicit constructions of alterities of this sort. The comparative paradigm in this case tended to foreground the differences of slavery (in this case in the two selected regions) rather than the institution’s common core. But the emphasis on difference—and herein lies an important move—too often glided into extreme and antithetical images, one-dimensional and monolithic representations of a “good” and a “bad” form of slavery. That is, Tannenbaum’s comparative framework not only tended to discursively produce its own set of fixed antithetical categories from which it was very difficult to escape when working within that paradigm, but these yoked oppositions often carried with them Manichean undertones that became particularly unsettling after the 1960s. Too often the terms of the discussion seemed to echo in a disturbing way the very discourse of contemporaries of slavery in the past.
The discourse of comparative de facto and de jure forms of slavery and, above all, the humanitarian/brutal, good/bad, slave regime dichotomies found in the historical part of Tannenbaum’s argument were in fact not even his creation. This kind of discourse had a much longer history although it had once seen a wider comparative range. If anything, Tannenbaum simplified it and reduced it to the binary Anglo-American/ Ibero-American opposition (perhaps to suit his U.S./L.A. race relations dichotomy). In the eighteenth and nineteenth centuries, the range of the slavery comparative discourse included as well “the French” and “the Dutch,” with the latter usually holding the role of the main villain and the Spanish that of the most gentle and humane. Comparisons of national or colonial legal traditions and treatment practices were not unusual among planters, politicians, and public intellectuals in the Atlantic world who politicized this kind of discourse in historically specific ways. For instance, the comparisons were used to argue for the opening of the slave trade in Cuba by proslavery interests and later for its prohibition; in support of slavery by planters as well as for its amelioration by reformers and even gradual abolitionists. That long history of shifting political appropriations of the discourse of comparative slavery among colonial powers is a charged subtext that haunts the Tannenbaum debate to this day and seems to taint it with a particularly polemical edge.
One could further follow the history of that comparative slavery discourse into the twentieth century by tracing the moments and contexts where it resurfaces or is rerouted into other scenarios and issues. That discourse, for instance, underwent an important intervention in the 1940s when Tannenbaum linked it to his reform-oriented critique of present day race relations in the U.S. The swerve into a new context endowed the old comparative national and colonial slavery discourse with a new-found relevance and resiliency in what thereafter became known as the Tannenbaum thesis. One new presentist spin that emerged in this mid-century political and academic context was, for example, that the ancient Iberian humanitarian legal tradition and the simple abstract principles that informed it could offer great lessons for guidance of North American life in the present. In effect, that North American liberals could find in the Iberian/Latin American case, particularly in the highlighted humanitarian legal order, the ideal solution for the intractable racial evils in the U.S. Spanish law became the idealized (and anachronistic) stand-in for liberal faith in legal reform and (republican) citizenship rights. This kind of subtextual ideological proposition also muddled more fine-tuned formulations and historically sensitive understandings of Spanish jurisprudence.
Moreover, in using Iberian legal institutions to counter the failures of those in the U.S., Tannenbaum, the sociologist of Latin America, was also engaging another polemical issue with a long history behind it. He was implicitly rescuing the fallen and discredited image of Spain as a nation dominated by “irrational” institutions of the past such as absolute monarchy and the Inquisition and their legacies in the present, a depiction current in North American and Northern European circles at the time. The infamous image of Spain and the Iberian tradition had an even longer history in the Black Legend of Spanish Conquest and colonization. Although the Spanish friar Bartolomé de Las Casas’s internal denunciation of Spanish atrocities against the Native American population fueled it, the Black Legend took its dark “legendary” character in the hands of Dutch and British Protestant writers in the sixteenth century. In this early version of the legend, Spaniards were barbarian Catholic zealots and unscrupulous fortune seekers driven to exploit Native Americans for immediate profit and gold. The Black Legend was countered in Spanish (and Spanish-American) historiography with what became known as the “white” legend of Spain’s humanitarian and civilizing colonial institutions. Tannenbaum effectively brought that ideological debate to bear on the sphere of comparative slavery. His intervention consisted of a double operation whereby he displaced the Black Legend of Spanish cruelty, mistreatment, and barbarity into the Anglo-American sphere of slavery while turning the Spanish record of enslavement and colonization into a positive, humanitarian, and civilized one. Echoes of long standing Manichean forms of alterity between Northern European and Iberian nations and legacies of colonization (including Protestant and Catholic forms of Christianity) could be heard in Tannenbaum’s thesis. And they unwittingly inflected and charged the debate in untoward ways.
Whether DLF’s article succeeds in blocking some of these subtexts is a question I do not have the space here to engage, but I claim that it doesn’t—or rather, that it can’t. For remaining within Tannenbaum’s paradigm (or a part thereof) presupposes working with some of its rigid antithetical categories and unintentionally conjuring some of the charged ideological discourses that haunt this thesis and its debate. That may be yet another reason why instead of trying to save the Tannenbaum thesis, we should move beyond it, however alluring its call may seem.
1. See Alejandro de la Fuente, “Slave Law and Claims-Making in Cuba: The Tannenbaum Debate Revisited,”Law and History Review 22 (2004): 339–69.
2. For a succinct critical historical overview of multidisciplinary theoretical debates about race (and ethnicity) in Latin America including the latest trends, see Peter Wade, Race and Ethnicity in Latin America (London: Pluto Press, 1997).
3. See Francisco Arango y Parreño, “Representación hecha a S.M. con motivo de la sub-levación de esclavos en los dominios franceses …,” 1792; and “Memoria sobre la esclavitud en las colonias europeas y particularmente en las francesas …,” included in Arango’s “Representación al Rey sobre extinción del tráfico de negros,” 1832. Both in Arango’s Obras (Havana, 1952).
4. In his book Peace by Revolution: An Interpretation of Mexico (NY: Columbia University Press, 1933), Tannenbaum at times depicted the Spanish colonial experience with Native Americans along a similar (almost naively idealized) model: “The Indian was taken as a wife by the conqueror, their children given a place within the household…. A community, a church, a law, a body of rights—all were given to him largely because he was considered a human being possessed by a soul and capable of redemption….” He qualified this statement by adding that it was “men like Las Casas … [who] labored, fought and defended the Indian against the rapacity of the white man …” (36–37) at least introducing an element of contention into this story. The passage was quoted in Lewis Hanke’s The Spanish Struggle for Justice in the Conquest of America (Philadelphia: University of Pennsylvania Press, 1949), 176. Hanke’s study, roughly contemporaneous to Tannenbaum’s on slavery, developed more successfully the contentious dimension of the enactment and subsequent implementation of colonial legislation in relation to Native Americans while explicitly seeking to refute—or at least problematize—the old discourse of the Black Legend.
By María Elena Díaz