When in doubt, slave! Imprisonment of free men and women through presumption of slavery. An analysis of the applied dispositive of abandoned slave according to the Free Womb Law

Abstract

Slavery as the main topic of the XIX century in Brazil presented profound paradoxes in the field of Law: faced in form through the promulgation of norms that could be read as pavers of a path of progressive abolition, in practice, it is possible to observe institutional mechanisms that worked to preserve it. Such procedures happened most of the times through legal action that sought to distort and deviate what was laid in the field of formal legality. This set of practices hit free women and men, destabilizing their rights and making more and more precarious their expectations of freedom. In this analysis between law and its reverse – between the positivation of a formal legality and the practice of its concrete meaning in social reality, the following article seeks to analyze, through a focus of law as linguistic practice, part of said discrepancies through the example of the abandoned slave. Looking at the dispositives of the Free Womb Law of 1871 on this institute, these brief remarks seek to show the existence of usages and performances that formed what could be known as presumption of slavery in order to preserve it as an institution, and that was aided by the consolidation of a legal practice through illegality.