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.
(Online publication May 09 2011)
Ariela J. Gross is John B. and Alice R. Sharp Professor of Law and History, University of Southern California <[email protected]>. This essay is dedicated to the memory of George M. Fredrickson, a pioneer in the comparative history of race, and a beloved teacher, mentor, and friend. I give many thanks to Alejandro de la Fuente, Jean Hébrard, Martha Jones, Claudia Moatti, Rebecca Scott, and Yasuko Takezawa, and to participants in the University of Michigan Legal History Colloquium, the Université de Paris VIII Seminar on Law and Race in Comparative Perspective, the Kyoto University Institute for Research in the Humanities Seminar on Comparative Race, and the University of Southern California Seminar on Law and Slavery from Ancient to Modern Times, for teaching me so much about race, law, and comparative history.