Esclavos y tierras entre posesión y títulos: La construcción social del derecho de propiedad en Brasil (siglo XIX), [Slaves and lands from possession to title-owning. The social construction of property laws in Brazil (19th century)] by Mariana Armond Dias Paes (Frankfurt am Main: Max Planck Institute for Legal History and Legal Theory, 2021).
Reviewed by João Figueiredo, Nova Law School, Nova University of Lisbon
Esclavos y tierras entre posesión y títulos is a ground-breaking historical account of the early development of liberal property laws in Brazil. In this stimulating volume, Mariana Armond Dias Paes uses data collected from 74 randomly sampled legal proceedings of the Court of Appeals of Rio de Janeiro to ground a bottom-up interpretation of legal change in the Portuguese Atlantic world. Paes’ choice of primary sources and method is relevant since, as she clarifies, during most of the time period she examines (c. 1830 – c. 1890), written laws, as sources of law, were not considered hierarchically superior to doctrinal interpretations, the decisions of judges, and courtroom habits (pp. 3, 160-161). During this historical time, also, the tenets of medieval Portuguese ius commune underwent a turbulent process of re-interpretation, giving rise to innovative social practices that slowly paved the way for the establishment of a liberal legal system (p. 10). Paes’ ability to illustrate this state of flux with numerous quasi-ethnographic vignettes, while never losing sight of underlying structural continuities is the biggest strength of the book. It also makes it accessible to legal anthropologists, cultural studies scholars, and legal historians who are not familiar with the history of Brazil. However, the contribution that each chapter makes to wider transdisciplinary debates is not always made as explicit as it could be. This is unfortunate since Esclavos y tierras entre posesión y títulos is packed with information that is surely of interest to critical race and critical legal theorists, scholars of settler colonialism, and even anthropologists intrigued by the ontological turn.
The first chapter introduces some of the ontological underpinnings of the Portuguese ius commune. It also advances the analytical claim that this form of law was supported by legal categories, such as dominion and possession. As Paes argues, these legal categories were both socially constructed and used by jurists and courts as organizational models of reality (p. 24). To support these claims, she presents evidence of how vernacular interpretations of juridical norms grounded on these categories informed popular actions and legal strategies that were then recognized by judges and other juridical professionals as valid and binding. According to her, the division between people and things was central to this ontology (p. 8). However, this division does not correspond to the ‘modern’ one that Bruno Latour famously analyzed between subjects and objects. In fact, according to Paes, during much of the 19th century, the category ‘things’ not only included land and personal belongings, but also enslaved people and abstract attributes, such as freedom, dependency, social privileges, and rights over other people (p. 6). Furthermore, the relations between people and things were not understood as being mediated by the senses or mental categories, but rather through legal categories, such as dominion or possession. Each of these relations was then modally described by claimants, jurists, judges, and other juridical operators as necessary, desirable, useful or in symmetrical negative terms (p. 7). In her view, this normative architecture prioritized social recognition and the maintenance of the status quo (p. 25), because every established relation of possession or dominion tended to be understood as being useful, and therefore desirable and necessary (p. 7). In other words, this legal system was designed to reify a shared understanding of the world as a divinely ordered and, therefore, inherently just cosmos.
As Paes demonstrates in the first chapter, when operating within such a framework, claimants and juridical operators constantly strove to re-signify the social meaning and scope of legal categories to advance their political and economic interests. As she emphasizes, this tendency slowly led to the development of the more recognizable liberal version of the legal category of possession. This new version assumed that the possessive tie between a subject and an object was created by the extension of the subjective will of an individual over inert matter (p. 8). Consequently, liberal property laws were not concerned with maintaining a balanced cosmos. Rather, they introduced the view that a possessive relation persisted regardless of its pragmatic utility, social desirability, or ontological necessity (p. 9).
Paes’ gradualist understanding of the origins of liberal property laws in Brazil offers a welcome corrective to the less historically grounded analyses of critical legal scholars or ontological turn anthropologists. These scholars often project liberal modes of possession into the early colonial period (p. 14), especially when discussing the expropriation of indigenous or maroon (quilombola) lands (pp. 47-48). Conversely, by clarifying the ontological underpinnings of Portuguese ius commune and showing how its deep structures persisted much longer than previously thought (p. 161), Paes ‘provincializes’ the European normative substratum of modern Brazilian property laws, opening venues for innovative forms of indigenous advocacy and research.
The second and third chapter of Esclavos y tierras entre posesión y títulos drive this point home. Both chapters are dedicated to the gradual introduction of written legal titles in the Rio de Janeiro area (c. 1830 – c. 1890), the third one dealing specifically with forged or falsified documents and abusive forms of possession. The reader who is familiar with the introduction of land registration and land transfer systems such as the Torrens title system would immediately recognize some of the social dynamics she describes. However, since in the Brazilian context, as the author demonstrates, written laws and titles did not have the same normative weight they did in the Anglo-world, a lot of the legal reasoning that underpins the proceedings she analyses will not make sense. Paes guides the reader through this oddness, by demonstrating that such reasoning reveals structural continuities inherited from a previous normative architecture. By drawing attention to this legacy, Esclavos y tierras entre posesión y títulos sheds new light on the processes that stigmatized some indigenous groups as “savages” (pp. 45-53) incapable of possessing land and perpetuated the dependency of married women (pp. 99-105), household wards (pp. 53-72) and emancipated enslaved persons (pp. 152-155).
Overall, the most enticing characteristic of Paes’ history of possession laws in Brazil is that it reads as an open invitation to dialogue. Even the choice of Spanish as a working language seems a deliberate attempt to assure that Esclavos y tierras entre posesión y títulos is accessible to South American scholars. Americanist legal anthropologists, settler-colonial studies scholars, and critical race scholars have much to gain in engaging with Paes’ work and pondering the implications of her findings for their own fields.