Article

Dados vol. 28 n. 1 Rio de Janeiro 1985

Sobre os Silêncios Da Lei: Lei Costumeira e Positiva nas Alforrias de Escravos no Brasil do Século XIX

Cunha, Manuela Carneiro da

Abstract

This article examines the connections between formal and unwritten law in slaveholding Brazil during the 19th century. lt opens with the assertion that the slave's proclaimed right to emancipation through the payment of his own price of sale was not recorded in the legal code, but was rather an historical error sustained in the extensive literature on the subject of "comparative slavery" (Tannenbaum, Elkins, etc.). While enfranchisement for the slave who could pay for his freedom was customary, it was also, of necessity, subject to the master's consent. Despite wide acceptance, this practice was always explicitly prevented from becoming a part of formal law. This seeming paradox exposes the nature of unwritten law and, more generally, its relationship with formal law. The deliberate silence of the written code was consistent with a society which endeavored to control not only its population of slaves, but also its freedmen. Thus, an entire range of practices - with enfranchisement included among them - grew out of personal dependence relationships. The former slave did not emerge as a free agent, but rather as a debtor, a sharecropper, a dependent. The muteness of the law therefore gains significance. Formal law is a discourse, a state's description of itself. But it is not the sole discourse. Its silences, by implication, supply an alternate description of this same society. ln 19th century Brazil, these omissions permitted the elaboration of a social order founded on the private individual and on favor: a duality which mirrored the contradictions of a nation that perceived itself to be liberal, but which was based on relationships of personal dependence.

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