Africana Legal Studies: A New Theoretical Approach to Law & Protocol

Angi Porter December, 2022

Introduction

“African people have produced the same general types of institutions for understanding and ordering their worlds as every other group of human beings. Though this should be obvious, the fact that we must go to great lengths to recognize and then demonstrate it speaks to the potent and invisible effect of the enslavement and colonization of African people over the last 500 years.”

– Greg Carr¹

In 1743, a group of enslaved Africans from various estates in French colonial New Orleans gathered, held a musical ceremony sung in their native language, and discussed the actions and fate of a slaveholder named Corbin.² Earlier, Corbin had threatened to shoot one of the enslaved Africans in this group, and Corbin’s brother then actually shot that person with a gun loaded with salt.³ Now, as the group of Africans gathered, they determined that Corbin had to die.⁴ Two months later, Corbin disappeared and was never found.⁵

If we use a traditional (Western) legal framework to describe this situation, we might say that this group of slaves met, conspired, plotted to murder , and likely did murder Corbin. But if we center the perspective of these enslaved Africans and contemplate that they had their own home cultures with their own systems of justice, brought with them from Africa, we might rephrase: These Africans convened and judged Corbin’s conduct , sentenced him to death , and likely executed him . ⁶

What’s the truth? Did the enslaved Africans who met that day conduct a trial and execute Corbin? Was this vigilantism and revenge? Was it a way of addressing wrongdoing? Were these Africans morally justified in taking Corbin’s life? Did they conspire to commit murder?

The answers depend on your orientation. The way we frame and describe what these Africans did depends on our approach to history and whose perspectives we center. Whether we choose “kill” or “execute” says something about our thinking, specifically our thinking on the thinking of enslaved Africans. Which type of thinking should define justice, particularly in situations where oppression plays a key role—such as circumstances when enslavement exists, or where other conditions of oppression persist? How do we define justice in this U.S. situation, where a Western society includes non-Westerners and non-Western descendants who have inherited cultural survivals from their ancestors, have carried pieces of other, non-Western world-senses⁷ with them, and have developed concerns and questions informed by those non-Western worldsenses? Does Western law and Western thinking about law adequately address their concerns and questions?

If public opinion is any indication, the answer is “no.” There has been, and remains, deep dissatisfaction and detachment felt by many in the Black community with respect to the U.S. legal system. Some feel that the U.S. legal system—like other classically “American” institutions—does not provide justice or even define it appropriately. This may explain why, in the debriefing conversations after decisions in cases about police and vigilante violence against Black people,⁸ many descendants of Africa—myself included—find ourselves, all too often, shaking our heads and saying, “ This system is not for us .”⁹

Indeed, when the U.S. legal system was constructed, it was not made for African people—or their descendants. It was not designed to provide them justice. Instead, that system, birthed out of generations of European thought, was founded on the interests of those capturing and enslaving Africans; it was both imposed on them and used to justify their enslavement and other violent and demeaning acts against them.¹⁰ An important next step after the acknowledgement that “this system is not for us” is to ponder and study the notion, hidden in plain view, that there were once systems that were.

We—African people, continental and diasporic¹¹—had our own systems. They existed in Africa long before enslavement and colonialism.¹² These African systems of thought on rules for social living, dispute resolution, addressing wrongdoing, upholding obligation, and other aspects of governance were, naturally, informed by African world-senses. And, when over 12 million¹³ Africans were forcibly taken from the African continent, those systems of thought did not seep out of their minds into the dank and dark hulls of ships only to dissipate into the misty Atlantic Ocean air. No, enslaved Africans retained their memories, and their thoughts on systems of governance accompanied them to the Western Hemisphere.

Legal scholars, then, should consider the story of Western Law and African people as a story of the interactions between two systems. By using this approach and studying African governance together with Western Law—in the U.S. and beyond, during the enslavement experience and beyond—legal thinkers can begin to fully understand the tensions between the two. In the U.S. context, using this method, legal scholars can develop “new” ways of thinking about U.S. legal history and U.S. law today, so that the legal system might be adjusted to better embrace and exist for its numerous cultural constituencies.

In this Article, I describe and demonstrate this approach to studying the story of Law and African people. The approach is informed by principles drawn from a specific intellectual tradition, Africana Studies.¹⁴ By extending Africana Studies methodology to legal study, this Article envisions a new type of interdisciplinary legal work: Africana Legal Studies. This work centers the humanity and self-defined thoughts and actions of African people while studying the story of Law, offering a new lens to legal scholarship.

This Article proceeds in three parts. Part I describes the core tenets of disciplinary Africana Studies methodology and outlines how to extend them to legal study for an Africana-informed examination of Law and African governance (what I call, in this context, “Protocol”). Part II applies the Africana Legal Studies approach through exploration of one notable example of Protocol and the perspective it offers on U.S. Law: the Protocol of the Bamana people of West Africa, who were enslaved in colonial Louisiana. Part III then highlights the insights that are provided to us by the Bamana perspective, applicable to both our view of the past and our imagining of the future.

I. Lessons from Africana Studies: Law as Social Structure and “Protocol” as Governance

Africana Studies is “the study of Africa and Africans wherever and whenever you find it/them.”¹⁵ In the context of Africana Studies, the meaning conveyed by the term “African” is broad, including Africans on the African continent as well as people of African descent across the African diaspora.¹⁶ This includes African Americans. “Africana” is an even more expansive unit of analysis, encompassing African people, the geography of the African continent as well as “any physical place populated by Africans,” and African culture (“concepts, practices, and materials that Africans have created to live and to interact with themselves, others, and their environments”).¹⁷ The study of Africa and Africans (continental and diasporic) arose as a formal discipline in the Western academy in the 1960s; it is important to note, however, that Africans themselves have studied African people and culture since the origins of human life on the African continent.¹⁸ In the Western academy, one might observe academic units called “Black Studies,” “Afro-American Studies,” “African American Studies” and other names; the choice of the name “Africana Studies” for an academic unit generally indicates an acknowledgment of the breadth of subject matter studied.¹⁹

“Africana” indicates a global consciousness when thinking about the African family, and an Africana approach recognizes that borders,²⁰ Eurolinguistic distinctions,²¹ and cultural hegemony serve as obstacles between African peoples. The obstacles exist because of the Maafa (the “great suffering of our people,” the “disaster,” i.e., enslavement and colonization).²² The key to restoring the African family is surmounting the hurdles that remain as vestiges of the Maafa .²³

A. Africana Studies Methodology

“Africana Studies” is still commonly used as a subject-matter term to adorn university academic units where Africana is studied using the methodologies of other disciplines. As the subject-matter discipline has developed, many scholars have done tremendous work defining disciplinary Africana Studies by distilling a unique Africana Studies methodological approach to its subject matter—i.e., the theoretical and analytical approach that guides, frames, and determines how study in the field is done.²⁴ Put another way, Africana Studies studies Africana, but disciplinary Africana Studies studies Africana in a specific, Africana-Studies way. Of course, as within other disciplines, there are various schools of thought, and scholars differ on what that methodological approach is and should be.²⁵

In this Article, I draw out key methodological approaches, developed by select Africana Studies scholars over the past several decades, that offer helpful insights for legal study of Africana subject matter. These approaches are (1) African-centeredness; (2) the “long view of history,” (3) cultural continuity, and (4) Carr’s Africana Studies Framework.

i. African-centeredness

African-centeredness²⁶ means that the perspectives, stories, thoughts, and audience of African people are prioritized in thinking and discourse.²⁷ In turn, the humanity and agency of African people over space and time are always in focus and in the foreground of study. This is a revitalizing orientation in a reality where “[g]enerations of school kids were poisoned with a propaganda that depicted Black people as content in their oppression and nonparticipants in their freedom.”²⁸

A primary goal of African-centeredness, as an approach, is to unhook Africana intellectual genealogies from Western normative theory and epistemology, a process encapsulated in Jacob Carruthers’s charge to “break the chain that links African ideas to European ideas and listen to the voice of the ancestors without European interpreters.”²⁹ Scholarship adhering to this charge envisions “the decolonization of African memory” and seeks to use African ideas to study Africana (Africa and African people, their history, their culture) and the world.³⁰ Rather than applying theoretical approaches by European thinkers, which arise out of European history and worldviews, African-centered scholars attempt to apply the theoretical frameworks developed by continental and diasporic African thinkers.³¹ This means that African-centeredness rejects tendencies to relate Africana as subject matter back to the West. Africancentered scholars strive to be unburdened by the specter in the mind— the European orientation—and they search for truth based on an African orientation, characterizing the world from that vantage point.

Scholars working from an African-centered orientation do not seek validation from Western institutions or prioritize efforts toward “inclusion” in European-centered spaces. Within this orientation, inclusion projects are flawed, as they themselves center institutions with Europeandefined frameworks, seeking to expand and change those institutions rather than building African-centered institutions from an African foundation. This perspective is often met with hostility and accusation from those operating within a European-centered orientation; the practice of displacing or refusing to honor European culture’s position as the center of discourse feels threatening and offensive to those accustomed and devoted to that norm.³²

In the African-centered orientation, collectivism is an important principle applied to scholarly work, and scholarly work is an extension of community work.³³ Community is paramount as a “collaborative source of—rather than the receiving beneficiaries of—models of inquiry and normative assumptions.”³⁴ Collectivism extends to the African-centered historical narrative, which emphasizes movements of people (not individuals) over time. There is a divorcing from Western historiography and its emphasis on individual heroes of history. The individual, when studied, is placed in context and ideally connected to a genealogy of a family, community, and movements.³⁵

ii. The Long View of History

Another orientation promoted by work in disciplinary Africana Studies is the “long view of African and world history.”³⁶ In this orientation, the history of African descendants in the Western Hemisphere does not begin with enslavement or the Middle Passage; it begins in Africa.³⁷ Contrast this with the popular “from slavery to freedom” approach to the historical narrative, which, for example, pinpoints the origins of African descendants in the United States to the period of enslavement.³⁸ John Henrik Clarke is quoted as saying that “when you start history with enslavement, it makes everything else look like progress.”³⁹ And the notion of progress overlaid on the story of African people is suspect at best. Consider the words of W.E.B. Du Bois:

We have imbibed from the surrounding white world a childish idea of progress. Progress means bigger and better results always and forever. But there is no such rule of life. In six thousand years of human culture, the losses and retrogressions have been enormous.⁴⁰

Du Bois’s words emphasize that, with a long view of history, and from the vantage point of African people, there is no superiority of now. Rather, to many, the current situation of African people in the United States, in the Western Hemisphere, and around the globe, is like a nightmare.⁴¹ The short-cited Slavery to Freedom orientation ignores these points; it ignores the losses Du Bois referenced, and it serves the oppressive society by shifting attention away from the impact of oppression and lessening the danger that the oppressed will attempt to reclaim what they have lost.⁴²

In the Long View orientation, the story of Africana is one of a “glorious African past”⁴³ which was then interrupted, giving way to disorientation, loss, struggle, and resistance. Therefore, “slavery to freedom” does not make sense; the more appropriate frame is a “ Freedom to Slavery to Pseudo -Freedom” orientation, the goal being a return to Freedom.

Using the long view of history formulation, the past holds great value, as it represents a condition unencumbered by the impacts of the Maafa . African traditions offer a “deep well”⁴⁴ from which we may draw insights for today. It is in this vein that Valethia Watkins writes, “A major task of our historiography is to remove the ruin and rubble left in the wake of enslavement, colonization, and the ongoing fallout of white supremacy in order to recoup and relearn our tradition.”⁴⁵

This process of relearning African traditions to derive inspiration and innovation for today is encapsulated in the Akan principle of Sankofa . Sankofa is represented by the symbol of a bird turning its head around to catch a lost egg.⁴⁶ It means “go back and fetch it” and embodies the idea that we must look back and “understand our past in order to move forward.”⁴⁷ Asa Hilliard explained that the principle of Sankofa in the context of intellectual work “does not mean that we should live blindly in the past, but it means that we must use the valuable wisdom that our ancestors left for us.”⁴⁸ Drawing from African systems of thought for inspiration, in line with Sankofa , African people may “look back to move forward by linking our glorious African past to the challenges of the African present.”⁴⁹ Accordingly, scholars using the long view of history may examine the cultures and traditions of African people (from the “Freedom” era) in order to apply useful aspects of those cultures today (in the “Pseudo-Freedom” era).⁵⁰

The value assigned to the African past has drawn criticisms of “romanticization.”⁵¹ But, telling African-positive histories is not romanticization. Looking back at the great expanse of history and focusing on what is positive and useful is not the same as looking back and describing what occurred in an idealistic way to make it more appealing than it actually was. “Romanticization” critiques are hyperreactive and overbroad, capturing and assailing merely African-positive narratives—and often without the deep knowledge of African history required to meaningfully examine specific characterizations.⁵² “Romanticization” critiques rest on false claims of objectivity in Western thought and Western scholarship about Africa. Characterization is a matter of orientation.⁵³ Critics wielding these critiques sometimes do not perceive their own orientation and its operation on their characterizations of Africa; Westocentric scholarship privileges itself as orientation-less, i.e., objective.⁵⁴

Objectivity, particularly as to Africana, is mythical in today’s scholarly reality. Enslavement, colonialism, imperialism, segregation, and their legacies have driven the ideologies, assumptions, and viewpoints of scholars in the Western academy in ways even the attentive and self-aware do not fully understand, the result being an imbalance of knowledge and opinion about Africa.⁵⁵ Consequently, there is far from a dearth of scholarship and media content problematizing African continental and diasporic culture and conditions.⁵⁶ Western thinkers are enculturated to neglect or pathologize African history, hence the prevalence of narratives highlighting Africa’s deficits, defects, problems, and needs. Africana is usually represented as a void needing to be filled by enlightened and innovative non-African problem-solvers.⁵⁷ This imbalance, veiled with the false notion of objectivity, has led many commentators to strictly scrutinize the notion that the vast and diverse expanse of pre- Maafa African history and culture have anything positive and useful to offer us today. At the same time, scholarly (and non-scholarly) discourse routinely celebrates classical and medieval European culture as having transcending relevance for human life in our present era.⁵⁸ So, when scholars with a long view of history do not even suggest that pre- Maafa African cultures are uniformly good or utopian,⁵⁹ their mere shift in focus to the positive aspects of African culture is enough for criticism of “romanticization” to ensue.

Disciplinary Africana Studies—being African-centered and aware of the challenge of studying Africana in the context of deeply-held anti- African biases—largely ignores this criticism and does not allow it to impede its work.⁶⁰ With its community-inclusive posture, Africana Studies both contributes to and is inspired by the global movement by African people to “reclaim” pre- Maafa African traditions, which is alive and well today.⁶¹ African people (continental and diasporic), oppressed by elements of the social structures around them, are seeking to revive African traditions that feel useful and meaningful, that provide a sense of connection to their history. Because the idea of community is so central to disciplinary Africana Studies—and because members of the Africana community have, for generations, been told, shown, and formally taught that Africa has nothing to offer—those working in the discipline understand that it is paramount to show that Africa has beautiful qualities, valuable knowledge, and a “glorious” story.⁶² This is an important aspect of the work that warrants no apology.

iii. Cultural Continuity

There is an ongoing debate among academics about the continuity of African cultures in the Americas.⁶³ Mario Beatty summarizes this debate by describing three broad approaches to interpreting African cultural identity in the diaspora: Emptiness, Hybridity, and Continuity.⁶⁴

In the Emptiness approach, a precedent African culture is considered either non-existent or totally lost during the trauma and fragmentation of enslavement.⁶⁵ The Emptiness approach is the idea that, due to enslavement, Africans lost their history, culture, language—everything.⁶⁶ As a result, this approach views diasporic Africans during early enslavement as culturally empty, i.e., cultureless, historyless “slaves” who originated in Africa. “African” is merely their race—the reason they have black skin—and they have no culture of their own; their culture is based on learning the culture of Western civilization.⁶⁷

The Hybridity approach acknowledges that enslavement resulted in a mixing of cultures but ponders a fundamental severance between diasporic Africans and their continental African experience.⁶⁸ This approach therefore elevates the “newness” of the resultant mix, emphasizing “local cultures as hybrid and creole, diminishing the connection with Africa.”⁶⁹ While this approach contemplates a combination of African and European traditions, a critique is that it overinflates the power of Western hegemony and overlooks the power of African agency to continue engaging in cultural practices and teachings, thereby giving undue primacy to the European side of the hybrid cultural composition.⁷⁰

The final approach, Continuity, maintains that the precedent African cultures informed diasporic culture.⁷¹ This approach emphasizes that African people were not empty vessels moved over space and time, and they did not suffer collective amnesia about their cultural identities.⁷² Instead, they arrived in the Western Hemisphere “with their own worldviews, with their own values, with their own beliefs, with their own customs,” and they were able to use their cultural memory as a “foundation to continue to innovate, to create, to build, and to extend themselves on the American landscape.”⁷³ It recognizes the threat to continuity presented by enslavement, but it emphasizes that severance and subjugation were not complete.⁷⁴ The Continuity approach contemplates a number of factors—including the organizing agency of enslaved Africans in the diaspora, ethnic clustering in the diaspora, interplantational communication and interaction, the independence of maroon communities, and intergenerational transmission of cultural practices⁷⁵—that enabled synthesis and transformation of various African cultures.⁷⁶ These conditions allowed African people to continue engaging in their traditions and, in turn, fostered a reality in which African cultures could persist and combine throughout the diaspora.⁷⁷ Cultural continuity has been studied and seen in many areas, including, but not limited to, African spirituality, aesthetics, language, food, and music.

For example, Sterling Stuckey explains, of African spiritual traditions, that “[f]or decades before and generations following the American Revolution, Africans engaged in religious ceremonies in their quarters and in the woods, unobserved by whites. . . . the possibility that whites might discover the guiding principles of African culture kept blacks on guard and led them, to an astonishing degree, to keep the essentials of their culture from view, thereby making it possible for them to continue to practice values proper to them.”⁷⁸ Cultural continuity was complex and involved simultaneous retention and innovation; as part of the process of adaptation to the condition of enslavement, new aspects of culture emerged alongside African traditional cultural aspects.⁷⁹ While, due to the constraints of enslavement, the precedent African cultures could not be replicated exactly, Michael Gomez asserts, “black folk had to re-create their society, their collective inner life, drawing from any number of ethnic paradigms and informed by the present crisis.”⁸⁰

The Continuity approach takes the position that African human beings did not simply forget the cultures they were raised into; their minds were not wiped clean at some invisible border in the Atlantic.⁸¹ Enslaved Africans talked to each other about their African homelands, raised children and grandchildren and taught them African ways, and those children raised other children and taught them what they knew.⁸² African captives continued to arrive in the Western Hemisphere and join African communities for generations, until 1860 in the United States.⁸³ With each wave of “new” Africans came waves of African cultural memory.⁸⁴ Furthermore, this continuity has implications for the present: because of the “unbroken genealogy,” scholars using this approach “emphasize[] the idea that modalities of African meaning-making are central to the study of contemporary African social, political and cultural life.”⁸⁵ When using the Continuity Approach, disciplinary Africana Studies scholars center the (re)connection between African peoples over space and time.⁸⁶ Accordingly, they seek to trace diasporic African culture and systems of thought back to their continental African origins; and, conversely, trace African culture from the vast expanse of African history to the present⁸⁷—thereby reconstructing the bridges damaged by the Maafa .

iv. Carr’s Africana Studies Conceptual Framework

Greg Carr developed six conceptual categories and accompanying framing questions to form the Africana Studies Framework, a system of inquiry which can be applied to any subject and time period within Africana.⁸⁸ The first three categories from this framework—which are particularly relevant to this project—are Social Structure, Governance, and Ways of Knowing.

The Social Structure category asks, “Who are Africans to other people?” and seeks to identify and understand “the social, economic, political and/or cultural environment that Africans found themselves living under during the period under study.”⁸⁹ The second category, Governance, poses the question, “Who are African people to each other?” and ponders how Africans organized themselves around common goals, made decisions, resolved disputes, etc.⁹⁰ It asks, “what sets of common rules and/or understandings did Africans create to internally regulate their lives in the situation under study?”⁹¹ This second category compels thinkers to consider Africana not at the margins but at the center of their inquiry. It requires us to perceive Africans as actors, not merely acted upon, and contemplate African peoples’ own thoughts about their relationships to one another. Carr defines the third category, Ways of Knowing, as systems African people “develop[ed] to explain their existence” and think about reality.⁹² These can include sacred texts (oral, written, and material), creation stories, ideas about life and death, ways of understanding nature, etc.⁹³ Ways of Knowing are used to “address fundamental issues of living,” and they are often referred to as African “religion” or “spirituality” in Western academic discourse.⁹⁴ Ways of Knowing can represent principles that inform systems of Governance and the other categories: Science and Technology, Movement and Memory, and Cultural Meaning-Making.⁹⁵

Carr’s framework requires thinkers to recognize the presence of two systems—Social Structure and Governance—and shift perspectives from the systems imposed on African people to the systems of African people one to the other, awakening an African-centered orientation. By then continuing to move through the framework to categories like Ways of Knowing, thinkers may deeply explore aspects of Africana culture and thought across time and space. The framework helps us center the humanity and agency of African people, and bring to life entire cultures of peoples too often subjected to narratives that flatten and generalize them.

B. Africana Legal Studies: The Application of Disciplinary

Africana Studies Insights to Legal Study

“Western conceptual schemes and theories have become so widespread that almost all scholarship, even by Africans, utilizes them unquestioningly.” – Oyèrónk(cid:1213) (cid:1171) Oy(cid:268)wùmí ⁹⁶

“Ultimately the liberation of our thought from its colonized condition will require the creation of a new language.” – Marimba Ani⁹⁷

Scholarship has explored the intersection of law and Africana, as subject matter, including work on indigenous African governance.⁹⁸ There is plenty of work being done about “African law,” “African indigenous laws,” and “indigenous African constitutionalism” by international law scholars, customary law scholars, and others.⁹⁹ In the context of enslavement, historians and legal historians have contemplated the “judicial sensibilities” of enslaved Africans, exploring evidence of African cultural continuity with respect to “law.”¹⁰⁰ However, this scholarship, for the most part, does not use the Africana Studies theoretical apparatus; it does not ask its questions while applying the methodological insights of disciplinary Africana Studies discussed above.¹⁰¹ Another approach is needed.¹⁰²

With this Article, I am proposing Africana Legal Studies—the extension of disciplinary Africana Studies methodology to legal study, i.e., the study of Law (Western governance) and Protocol¹⁰³ (Africana governance) guided by the theoretical underpinnings of disciplinary Africana Studies. Africana Legal Studies has a global consciousness, asking questions that extend beyond Maafa -inherited borders, linguistic distinctions, and other divisions. Africana Legal Studies applies the key approaches of disciplinary Africana Studies described above: African-Centeredness, the Long View of History, the Continuity Approach to African diasporic identity, and Carr’s Africana Studies Framework. These tenets mean that legal scholars who see the world through an Africana lens will ask questions and consider concepts that differ from those following models of legal study steeped in Western legal thought.

i. Applying Carr’s Framework: Conceptualizing Law and Protocol

Applying the first two conceptual categories from Carr’s framework, Africana Legal Studies considers “Social Structure” and “Governance,” but with modifications to take on legal subject matter. A subset of Social Structure—which asks about the environment where African people find themselves—is Law. In a legal context, one would interrogate the legal landscape in which African people found themselves living. In Africana Legal Studies, that legal landscape is, invariably, some specific form of (Western) Law. This is because Law is inherently Western; it is a Social Structure constructed by the West and imposed on African people.¹⁰⁴ Law began to interact with African governance on a large scale, as a Social Structure, when the Maafa began. Law is understood as a tool of the West enabling and ushering along the Maafa .

If, in a legal context, Social Structure is Law, the corresponding sub-category within the “Governance” category references the uniquely African systems of “rules and/or understandings” created by Africans to regulate their lives—with particular attention to those systems developed on the African continent before the Maafa and carried in the minds of Africans through the Maafa , including in the minds of Africans who were taken to the Western Hemisphere. These systems could include understandings about dispute resolution, ways of establishing and ensuring adherence to rules for social living, methods of addressing wrongdoing, arrangements for keeping promises, etc.—that exist outside and irrespective of (Western) Law. I call these systems and sets of rules “Protocol.”¹⁰⁵ Readers may, without even realizing it, assume that “Protocol” connotes something lesser than “Law.”¹⁰⁶ Distinct does not mean lesser. Protocol means the body of African systems of governance, rules for social living. Protocol is not Law but something else with which Law interacts. Protocol may or may not overlap with or run parallel to Law.¹⁰⁷ It may, in certain respects, extend beyond or diverge away from what Westerners think of as Law (e.g., it may fully encompass the sacred). This is why Carr’s third category, “Ways of Knowing” has a close relationship with Protocol: to understand the Protocol of an African people, we must first understand their cultural values and principles, i.e., the systems they “develop[ed] to explain their existence” and think about reality.

By applying Carr’s framework to legal study, scholars are compelled to see that Europeans did not gift governance to Africans—Law did not fill a cultural void. Rather, Protocol was there, populating the governance space in the African cultural logic. By examining Law, Protocol, and Ways of Knowing, we appreciate the limits of Law while focusing on and embracing Africana’s unique approaches to governance (Protocol) and the Ways of Knowing that inform them. Legal scholars applying this frame are able to determine what should be done in a world where Law has interacted in various ways with Protocol.

ii. Applying African-Centeredness: The Qualified Law

Orientation and the Importance of Language

Some want to, with good intention, call Protocol “African law.”¹⁰⁸ Or “indigenous African laws,” “tribal law,” “native law,” “folk-law,” “unofficial law,” “traditional law,” or “customary law.”¹⁰⁹ In this formulation, the term “law” is used and modified by another word, suggesting a world where law is universal and each culture or situation has a specific type of law. “Law,” in this usage, has an expansive sense as human rules for social living.¹¹⁰ In this approach, not only is “law” applied to describe the indigenous systems of African societies, but so too are legal constructs and terms of art.¹¹¹ I call the use of “law” to describe all human forms of governance and the inappropriate use of (Western) legal constructs and terms of art to describe non-Western governance systems and systems of thought on governance the “Qualified Law Orientation” or “QLO.” This orientation maintains that law is a human universal, but “qualifies” (limits or modifies) the term “law” to mark deviations from the standard, pure law, which is Western.

The problem with the QLO, which treats “law” as a human universal, is that the term “law” is sharply-defined and weighed down to reference what the West perceives as law—a system of written codes, a profession practiced by lawyers and involving courts and legislatures, a discipline defined by theory and philosophy arising out of a European and European-American intellectual tradition.¹¹² For hundreds of years, Western theorists determined what “law” means, and they continued to do so into an era when Africans were rendered (with the help of Western law) unable to meaningfully contribute to that defining process—if they wanted to.¹¹³ Put another way, what is considered “law” or “legal” is based on “widespread and longstanding agreements among members of the [here, legal] community,” a community in which Western thought had a metaphorical “head start” or “leg up” when it came to outlining those definitional agreements.¹¹⁴

The QLO, thus, illustrates a phenomenon referred to by Carr as “the invisibility of language,”¹¹⁵ the idea that the conceptual influence behind a term is allowed to hide by not being written or spoken in usage of the term. This, in turn, gives the underlying concept power because, in not being named, it presents itself as a norm, evades critical attention, and easily persists as an unrecognized default in our minds. Meanwhile, the term must be qualified when it diverges from the invisible concept. This occurs often with whiteness. For example, in U.S. society, the norm of whiteness is applied to “people” and goes unnamed. Meanwhile, common language usage beckons qualification of “Black people,” “LatinX people,” “Asian people.”¹¹⁶ For many, “white people” as a term is felt as superfluous and used only for emphasis. Because “white” is routinely and automatically invisible, it evades notice. Thus, whiteness’s role evades attention and examination. Because it goes unnamed and unnoticed, it remains nebulous, phantasmic, incomprehensible, lying beyond reach—free to run rampant, never to be wrangled, defined, limited, or constrained.

One might note the invisibility of “white” in front of the term “Santa Clause.”¹¹⁷ White Santa Claus is known as simply “Santa,” while non-white derivatives of Santa Claus are qualified, e.g., “Black Santa.” When we realize there is invisibility of language here, we can more readily ask questions about the whiteness of Santa and whether the default makes sense. “Is Santa normally white?” “Why?” “What makes Santa ‘white’?” Santa Claus is a European character from European folklore, created out of the European imagination. It is understood that original, normal Santa is white. If his whiteness is mentioned, it is mentioned for emphasis, not out of necessity. “Black Santa” emerges only later as a derivative version of Santa. Therefore, the invisibility of “white” in the concept of original Santa makes sense because it is generally understood that Santa is a European (white) folk character and therefore a cultural export to non-white cultures. The invisibility of language makes sense when one culture’s ideas are exported to another culture.

There is invisibility of language occurring with “law.” Law, though not usually expressly qualified as “Western” or “European,” is generally understood by Western audiences to reference distinctly European and European-derived systems and procedures related to written codes, courts, judges, etc.¹¹⁸ “Law” outside of the European context is routinely qualified to reference European-derived systems within non-European cultures: for example, “African law” for the European-derived systems of law that exist in Africa because of colonialism. Qualifying these systems while maintaining invisibility of words like “European” before law makes sense here because—as with Santa—the original construct (law) is a European creation and, in these instances where law is qualified, law is an export to non-European/non-Western cultures. Thus, a reference to “African Law” is really a reference to the story of Western hegemony in Africa, which makes sense in post-colonial, Maafa Africa.

The problem emerges when we use the QLO formulation to reference systems that are not European exports. Like indigenous non- European systems. When the QLO reaches into history to apply the word “law” to pre- Maafa systems, systems that existed before oppressive contact by Europe, it becomes inappropriate. It is an anachronism: it does not make sense to say “indigenous African (European) law.” And when applied to systems that developed before the Maafa and persisted in spite of the Maafa , QLO descriptions are an overreach, an overstatement of European influence on non-European systems, staking conceptual claims for Europe on conceptual grounds that Europe has perhaps trodden but never conquered. In this situation, the QLO inappropriately imports language based on European constructs to non-European cultures, and, by allowing the qualifier “European” to remain invisible, enables the European orientation to clandestinely exist in a situation where it should not, where it goes unnoticed and evades interrogation. The QLO, then, welcomes a European-centered specter in the mind, serving as an inappropriate “European interpreter” of non-European constructs.

Superimposing Western legal constructs onto indigenous African governance is not only a strained exercise requiring conceptual contortion and endless distinguishing, but it is an unjustified exercise, given the significant distinctions between African world-senses and European worldviews.¹¹⁹ The cultures and systems of thought that Africans developed and retained are not one-to-one keyed comparators to the European cultures and systems imposed on them. One example of a significant distinction between African world-senses and Western worldviews is the space they afford governance in their cultural logic.¹²⁰ Law today is thought to occupy a specific space in the Western cultural logic separate from religion,¹²¹ whereas in many indigenous African world-senses, spirituality or religion permeates every facet of the cultural logic, including governance.¹²²

Another way Western worldviews and African world-senses diverge is with respect to the preferred means of preserving the past. In the Western worldview, writing almost invariably enshrines history and therefore memorializes important acts. In the West, we understand that laws, case opinions, and contracts are—most often—written.¹²³ This privileging of the written word over orality, however, is not a human universal.¹²⁴ And it is not an African universal. It is a myth that writing was absent from pre- Maafa Africa; in fact, many African societies have used written scripts since ancient times, with some African societies being virtually obsessed with writing.¹²⁵

However, in many of those same and other African cultures, including cultures in the diaspora,¹²⁶ reality was captured, preserved, and transmitted through oral tradition, and orality represented the height of expression, rendering writing secondary (at least) to orality.¹²⁷ In such cultures, rules for social living, and applications of these rules, are not written; they are spoken or sung.¹²⁸ Still, other important distinctions between Western worldviews and African world-senses exist, such as differences regarding the existence, role, and treatment of the concept of gender in African world-senses, out of which matriarchal governance systems were commonly created, compared to the predominance of gender and patriarchy in Western worldviews.¹²⁹

So then, with such critical distinctions between Western worldviews and African world-senses, on what basis may one simply apply Western constructs to both?¹³⁰ Work from within the QLO seems to be aware of the tension that results from projection of Western legal constructs onto African cultural traditions.¹³¹ However, it tends to resolve that tension by explaining away rather than embracing and centering unique features of the African world-sense.¹³² It distinguishes African governance from Western law, while simultaneously securing the tether. In so doing, the primary effort is spent relating features of Africa governance back to normative legal theory and its originator: the West. While, from a certain perspective, this strained maneuver ensures maintenance of an African place within the Western legal academy and an African voice in Western academic discourse, such an inclusion project is not without its price.

One particularly destructive result of the effort to hook African governance onto Western Law is the reinforcement of Westocentric¹³³ deficit narratives about Africana.¹³⁴ For example, one customary law scholar writes, “Pre-colonial Africa neither had written records nor jurisprudential analysis of its law.”¹³⁵ Another customary law scholar concludes that “there is no general theory of obligations in African native law and the concept of contract in the modern sense is absent.”¹³⁶ When scholars search for Western constructs outside of the West, they either do not find those constructs, or they find representations of those constructs that are “off” in some way—not up to the gold standard of the original Western prototype. The true law is the law that follows the rules that the West created.¹³⁷ Thus, when Western Law is superimposed onto the governance systems of pre- Maafa Africa, and a Westocentric orientation is maintained, deficits emerge. And deficits give rise to the impression that African systems of governance are merely (Western) Law “waiting to happen” or a “deformed” version of (Western) Law.¹³⁸ This orientation ensures that Western Law is maintained as the center, the model, the default comparator next to which every other system is assessed. As Oyèrónk(cid:1213) (cid:1171) Oy(cid:268)wùmí explained, “Whether the discussion focuses on history or historylessness, on having a state or being stateless, it is clear that the West is the norm against which Africans continue to be measured by others and often by themselves.”¹³⁹ So, too, when the discussion focuses on law or lawlessness.

We are left thinking that (Western) Law is a universal and absolute truth to which African governance systems must aspire, against which African governance systems must be measured. Worse yet, such an orientation furthers intellectual subscription to the old and odious Hegelian notion that Africa is an empty, “dark continent” without history and without anything to offer the world, a home to childlike peoples lacking bodies of thought worthy of study—or respect.¹⁴⁰ Such thinking contributes to thoughts that African people (including descendants of Africa) are “lawless”—and lawless people are prone to criminality, lack the capacity to resolve complex issues, and require the intervention of a more enlightened savior of European persuasion.

The fact is, humankind has given rise to a multitude of approaches to governance, many of which, before European intrusion, had absolutely nothing to do with Law.¹⁴¹ There is no basis, then, for the application of Western legal constructs to African governance, other than convenience resulting from the prevalence of Western thought—which is not a valid basis at all.¹⁴² The prevalence of Western thought is ill-gotten pervasiveness—a monopoly on thinking about governance resulting from oppression, atrocities, and acts of subjugation by the West on other peoples.¹⁴³ Simply because (Western) legal ideas have become so ubiquitous does not mean the ubiquity of those ideas should go unquestioned.¹⁴⁴ It does not mean that those ideas are right or best for every community.

It may seem attractive to seek to redefine or expand the concept of “law” to encompass all systems in the universe. It may even seem like a way to restore justice, especially in the face of racist assumptions about pre- Maafa Africa.¹⁴⁵ This effort is, however, a delusion of inclusion, which does not ultimately address the bias that lives in distinction, deficitframing, and other narrative-shaping characterizations. An Africana lens reveals that the true injustice to address is the obscuring, interruption, and misinterpretation of African systems of thought, with the true refuge from racist thought being independent thought. In our “quest for wholeness,”¹⁴⁶ we can address injustice and build independent discourse by carefully studying, naming, and reformulating African systems of governance.

Using an Africana Legal Studies approach, one sees that the QLO, its application of Western constructs to African ideas, and its use of “African law” and other modified “law” terms, can easily serve as a chain linking African systems of governance to Western legal theory, when these two bodies of knowledge are not part of the same intellectual tradition.¹⁴⁷ As Jacob Carruthers told us, we must break that chain.¹⁴⁸ In an exemplary chain-breaking exercise, Carruthers developed the phrase “African Deep Thought” in response to debate about whether “African Philosophy” exists.¹⁴⁹ He explained, “Philosophy is a European discipline—It does not mean that Africans did not have deep thought and deep thinkers.”¹⁵⁰ Carruthers’s point was that searching for equivalents of European disciplines across pre- Maafa Africa is pointless when Africans had ways of knowing and understanding the universe distinct from Europeans.

Carruthers’s thinking can be readily applied to thinking about law. Kenneth Nunn paralleled at the first point of Carruthers’s lesson: he concluded that law is Western, relies on and applies Western constructs, fits a Western worldview, and arises out of Western historical experience.¹⁵¹ The theorists of law are overwhelmingly European and Europeancentered theorists. Legal historiography figures African people into the equation only at the eleventh hour of a very long history extending back to classical Europe and culminating with today, as if to say that African people did not think about governance until a very recent point.¹⁵² We must recognize this and shrink the concept of “Law” to its actual—not inflated—size: Law is the collective system of rules and principles Europeans developed to govern themselves and to govern those people, places, and things Europe colonized, oppressed, and otherwise subjected to the Maafa . It is a particular system with particular constructs and assumptions.

Meanwhile, Africans have a different history; they lived through different shared experiences, learned wisdom from different thinkers, formed different constructs to explain the universe around them, developed different methods to address the opportunities and challenges of life, and created different rules to govern their ways of life. Africans were doing something else. Therefore, following Carruthers before us: Africana Legal Scholars must stop searching for Law across pre- Maafa Africa—and evict the specter in the mind that tells us doing so is a tragedy. Law is a European discipline—it does not mean that Africans did not have their own collective system of governance— Protocol— that was nuanced, varied, complex, profound, and important.

Using “Protocol” rather than “African(a) law” signals this necessary “epistemic rupture” from the QLO.¹⁵³ By shifting language, we may “take command of our own minds”¹⁵⁴ and attempt to study Protocol on its own terms.¹⁵⁵ Releasing European legal constructs and opening our way of thinking allows us to see and fully appreciate the creativity of our African ancestors. And while this attempt is imperfect, given its use of English language to describe African governance,¹⁵⁶ “Protocol” is a mental palate cleanser that helps legal thinkers take an initial conceptual step away from the QLO; it is an intentional shift toward recalibrating our thinking and delinking African ideas about governance from the highlydefined rigidity of Law and Western jurisprudence, with the next steps being exploration and use of African language and constructs.¹⁵⁷ There will always be conceptual gaps in the process of translation between cultures, but the aim should be to minimize those gaps through awareness and intentionality, through particular attention to “the specter in the mind,” if present, and constant interrogation of Westocentric biases, assumptions, and fallacies that permeate our experience.¹⁵⁸

Accordingly, this Article regards Law and Protocol as two types of governance. Throughout this article, I use “Law” and “legal” to reference governance systems of the Western Social Structure being studied. I use “Africana¹⁵⁹ Protocol” to denote the body of indigenous African governance systems, in their pre- Maafa (continental) and Maafa- persisting (continental and diasporic) forms. As with “Law,” the singular sense of “Protocol” is meant as a collective term encompassing many specific cultural governance systems and rules over space and time, and depending on the context, it should be preceded by a broad term like “Africana” or a narrow term, such as “Bamana” to indicate the scope of usage.¹⁶⁰

iii. Applying the Long View of History and Sankofa

Applying the long view of history to legal study means contemplating the vast expanse of African governance over space and time. It means resisting the interpretation that the only governance stories relevant to African people are stories about legal developments since the time of enslavement. Using the long view of history in legal study also means that there is no presumption of “progress” in narratives about law for African descendants, as thoughts on a past when Protocol was unencumbered by Law are ever-present. The long view of history also means that legal scholars studying Africana see their work as contributing to what Ng(cid:458)g(cid:429)(cid:3) wa Thiong’o described as “remembering Africa.”¹⁶¹ Their work enables them to participate in the movement, guided by the principle of sankofa , to reclaim African governance traditions and draw on them for inspiration and innovation.¹⁶²

iv. Applying the Continuity Approach

Applying the Continuity approach to legal study of Africana means considering the persistence of Protocol over space and time. The approach presumes that Africans, just like their captors, brought their ideas about governance with them to the Western Hemisphere; conversely, it rejects the notion that Protocol was totally destroyed or lost. ¹⁶³ Accordingly, scholars applying the Continuity approach will trace the origins of Protocol in the Western Hemisphere backward in time to the African continent—and trace pre- Maafa continental African Protocols forward in time through the engagement of diasporic Africans with their governance traditions, and through the transmission, adaptation, adjustment, improvisation,¹⁶⁴ combination, and synthesis of African culture to the present. They will account for the fact that Protocol is not unchanging, but was and is responsive to the Maafa , with African people deciding how to reformulate and use Protocol as response, combining with other Protocols, and combining with Law, in various legal landscapes and, more broadly, Social Structures.¹⁶⁵ From this it is apparent that one cannot fully understand the thoughts or attitudes of African Americans about U.S. Law without first understanding the unique world-senses and Protocol of their African ancestors.¹⁶⁶ One cannot understand African American movements, including movements that resist, respond to, or are apathetic to U.S. Law, without understanding the origins and evolutions of the orientations informing those movements.

v. Interdisciplinary Nature

We find ourselves in a Social Structure where the Western Academy has set disciplinary boundaries. In this reality, work on Africana Protocol should be done across those boundaries. In the larger discipline of Africana Studies, and in other disciplines, scholars may devote their time and focus to deep learning and thinking about Africana governance systems. At the same time, major contributions can be made to Africana Studies by legally-trained thinkers applying an Africana lens. Legal thinkers are uniquely poised to do this work, as they are attuned to thinking about governance and rules for social living, albeit in a Western way. If these thinkers are careful and alert, their expertise can help them easily see Protocol across Africana.

Legal scholars are able to understand the technical aspects of Law. Equipped with knowledge of Protocol, they can consider how these two forces collided and comment on how Law operated to restrict, constrain, punish, stifle, interrupt, inhibit, exploit, manipulate, or embrace Protocol. Legal thinkers can effectively examine how Protocol found ways to grow through the cracks of Law, change Law, evade Law, or defeat Law. Legal thinkers can also consider the incidental influences between Protocol and Law.¹⁶⁷ Finally, Protocol enables legal thinkers to learn about comparators in governance, thereby expanding their minds to allow for deeper assessment of Law and broader creativity with which to change it. For the benefit of those whom Law has oppressed, legal thinkers may imagine a legal world where Law shifts to make way for the reclamation of Protocol.

II. Case Study: The Bamana in Colonial Louisiana

During enslavement in the Western Hemisphere, about 481,000 of the 12 million enslaved Africans¹⁶⁸ forcibly transported across the Atlantic ultimately arrived in North America (that is approximately 4% of the total).¹⁶⁹ At the peak of the trade (the eighteenth century), the most significant populations of enslaved Africans were found in the “five core colonies” of South Carolina, Virginia, Maryland, Georgia, and Louisiana.¹⁷⁰ The documented French slave trade in Louisiana lasted from 1719 to 1731, and during that period, six thousand African captives arrived there.¹⁷¹ Two-thirds of these captives came from the Senegambia region of West Africa and from a limited number of nations in that region with cultural similarities.¹⁷² Fifteen percent of these Senegambians were likely Bamana people.¹⁷³

The Bamana, or “Bambara”¹⁷⁴ as they are sometimes incorrectly called, are a Mande-speaking people from the far interior of the Senegambia.¹⁷⁵ The powerful Bamana state, Segu, was formed in the early 1600s and was located on the banks of the Niger River in what is now Mali.¹⁷⁶ Segu was an expansive state that was influential in trade and commerce, including during the period of European trade in enslaved Africans.¹⁷⁷ The Bamana notably resisted Islam in Africa, at least until 1861, when the Segu state collapsed.¹⁷⁸ In West Africa today, the Bamana remain a major cultural group.¹⁷⁹ When enslaved in early Louisiana, the Bamana formed a “substantial, well-organized Bambara language community.”¹⁸⁰

Through this Africana Legal Studies exploration, we will examine the Law of the place where the Bamana found themselves living, then consider their Protocol, carried with them from the Senegambia.¹⁸¹

A. Law: Louisiana’s Legal Landscape

The legal landscape that Africans found themselves living in during this period was primarily defined by a legal instrument called the Code Noir (“Black Code”).¹⁸² The eighteenth century was the peak of the European trade and trafficking in African people, and by this time, the French had already been fully participating in enslavement in the Caribbean—namely in the French Antilles—for several decades.¹⁸³ In the early 1680s, King Louis XIV of France instructed two top officials in the Antilles—Jean-Baptiste Patoulet and Comte de Blénac—to draft a legal instrument by incorporating past ordinances and judgments from the islands of Martinique, Guadeloupe, and St. Christophe from the previous 50 years.¹⁸⁴ Patoulet and de Blénac were to infuse the draft with the advice they gathered from jurists in these islands as well as their own views.¹⁸⁵ Louis XIV wrote to Patoulet and de Blénac in 1681, requesting that they draft the “ordinance” regarding “the Blacks . . . in order that His Majesty may lay down the prohibitions, injunctions, and everything touching the conservation, policing, and judging of these people.”¹⁸⁶ In 1685, the Code Noir was promulgated and applied to the French Antilles. Other versions of the Code were enacted in Saint-Domingue, Guiana, and the French Mascarene Islands in the Indian Ocean.¹⁸⁷

Until that point, there had been no royal legislation about enslavement in the French domain.¹⁸⁸ Instead, the local Sovereign Councils (or Conseils ) of each island had been enacting laws on enslavement. These councils served both judicial and legislative functions, and at least some council members were “large slaveowners.”¹⁸⁹ Thus, the community of drafters of the Code Noir included French colonists who participated in enslavement and had an interest in maintaining it for their benefit.

In March 1724, Louis XV issued the Code Noir for the Louisiana colony, which was patterned after the original Code , integrating 51 of the original Code ’s 55 articles.¹⁹⁰ It remained in effect in Louisiana until 1769, after Spain took control of the colony.¹⁹¹ Despite the interruption of Spanish rule, the Code retained relevance in U.S. legal history, as it was resurrected and subsumed into U.S. Law after the Louisiana Purchase in 1803.¹⁹²

i. The Written Code & Enforcement

Law was carried out in the Superior Council, a Louisiana court established in 1712.¹⁹³ In the eighteenth century French civil law system, judges acted as members of the prosecution team and finders of fact, and defendants were considered guilty until proven innocent.¹⁹⁴ Additionally, in Louisiana, defendants were not entitled to legal representation.¹⁹⁵ Interrogation was made and testimony was given verbally in court.¹⁹⁶ A court clerk recorded testimony in writing and read it back to witnesses so that they could confirm the record.¹⁹⁷ Judges made their decisions as factfinders by conducting interrogations, which could include judicial torture.¹⁹⁸

The Code contained several criminal provisions applicable to the enslaved. For example, a prohibition on “marronage,” or escape from the plantation, prescribed harsh punishments.¹⁹⁹ The Code invited the relevant slaveholder to “denounce” the escaped African in court and, after a month of denunciation, the escaped Africans were subject to have their ears cut off and be branded with a fleur-de-lys , the symbol of the colony.²⁰⁰ A second offense warranted a severed hamstring and second brand, and a third offense was punishable by death.²⁰¹

While the Code contemplated several situations in which enslaved Africans could be criminal defendants, it also imposed a number of “civil incapacity” constraints on Africans’ ability to meaningfully participate in the legal system. ²⁰² It barred enslaved Africans from holding public office; acting as “arbitrators”; or acting as witnesses in legal proceedings, “unless they [were] necessary witnesses, and only in the absence of whites, but in no event [could] they serve as witnesses for or against their masters.”²⁰³ Beyond this, enslaved Africans could not be parties in civil matters and could not make contracts, gifts, or devises. ²⁰⁴ Thus, there were no causes of action to sue for freedom in French Louisiana.²⁰⁵

And while the Code also prohibited slaveholders from killing, mutilating, or torturing the enslaved (promoting chaining and flogging instead as the primary modes of punishment), this prohibition was never enforced.²⁰⁶ Meanwhile, the Code enshrined the colony’s ability to officially kill, mutilate, and torture enslaved Africans—by cutting off their ears, branding them, severing their hamstrings, and ending their lives—for violations of Law.²⁰⁷ And the colony indeed inflicted such harms: “[t]he judicial record for the first decade of New Orleans’ history is full of evidence of the most horrific bloodletting by whites in order to achieve mastery.”²⁰⁸

ii. Religion

The Code Noir opens with several provisions establishing Catholicism as the religion of Louisiana.²⁰⁹ The Code prohibited the exercise of any other religion and declared “all assemblies to that end . . . to be secret, illegal, and seditious.”²¹⁰ It required expulsion of “all declared enemies of Christianity” from the colony,²¹¹ and required all enslaved Africans to be “baptized and instructed in the Roman, Catholic, and Apostolic Faith.”²¹² Catholicism also extended to court procedure: Africans who appeared before the Superior Council as witnesses were required to swear an oath to tell the truth in front of a crucifix.²¹³

In accordance with Catholic mandates, Article 5 prohibited enslaved Africans from working on Sundays, and slaveholders could be punished and fined for permitting them to work:

We enjoin all our subjects, of whatever quality and social status they may be, to regularly observe Sundays and the holidays; we forbid them to work or to have the slaves worked, from midnight until the following midnight in the cultivation of the land, and every other type of work, under penalty of a fine and an arbitrary punishment against the masters, and the confiscation of the slaves discovered working by our officers; nevertheless, they may send their slaves to the markets.²¹⁴

This provision created a holiday or “free day” during which Africans could take up other activities.

iii. Protecting Enslavement

The entire Code Noir was meant to preserve the institution of enslavement. Accordingly, several provisions of the Code were intended to prevent rebellion or resistance against enslavement. For example, the Code , in Article 8, prohibited enslaved Africans from assembling:

We likewise forbid slaves belonging to different masters to gather by day or by night, under the pretext of a wedding or any other reason, whether on their master’s property or elsewhere, and still less in the main roads or the out of the way places, on penalty of corporal punishment, which cannot be less than a whipping and [branding] of the fleur de lys ; and in case of frequent repetition and other aggravating circumstances, they may be put to death, which we leave to the decision of judges.²¹⁵

The intent behind this prohibition on gathering was to prevent Africans from revolting.²¹⁶ In the same vein, a later statute, the 1751 New Orleans Police Code, also restricted the movements of enslaved and free Africans and prevented them from assembling.²¹⁷

Related provisions prohibited violence by enslaved Africans against anyone in their respective slaveholding families, or any “free persons” for that matter.²¹⁸ With no associated provisions about self-defense, enslaved Africans could be punished by death for such an offense.²¹⁹ The 1751 New Orleans Police Code also prohibited Africans from being on streets or public roads carrying canes, rods, or sticks.²²⁰ Enslaved or free Africans had to carry passes and could be stopped and questioned “by any white person.”²²¹ Notably, the Code was silent on wrongs that enslaved Africans committed against each other, and the Superior Council was generally uninterested in prosecuting cases where enslaved Africans were the victims.²²²

The Code also contained another provision oft-cited as “protective” toward enslaved Africans: Article 53, which prohibited families from being “sold separately.”²²³ This provision banned the breaking up of husband, wife, and their children “below puberty” during sale or seizure of enslaved Africans.²²⁴ This provision arose out of the infrequency of shipments of Africans directly to Louisiana during the French period and the desire by the French to encourage family life among Africans as both a breeding strategy and an incentive for Africans to remain on the properties of slaveholders rather than seek escape.²²⁵ Eighteenth century Louisiana colonist and plantation manager Antoine Simon Le Page du Pratz explained, in his recommendations “of the Manner of governing the Negroes,” that “[i]t is necessary that the negroes have wives, and you ought to know that nothing attaches them so much to a plantation as children.”²²⁶ So, this “protective” provision ensuring families were kept intact was merely a means to protect the colony’s system of enslavement.

iv. Conducting Business

Article 15 of the Code forbade enslaved Africans from “put[ting] goods on sale at the markets . . . without express permission from their master . . .”²²⁷ This prohibition extended to selling food and clothes.²²⁸ The penalty for this provision was to fine the buyers of the goods, with steeper fines imposed for clothing and merchandise.²²⁹ The Code established patrols of the markets to enforce this provision.²³⁰ The Code declared “all promises and obligations which the slaves may make” as null, “since they are made by persons incapable of disposing or contracting in their own right.”²³¹ The Code also included several anti-theft provisions, punishable by corporal punishment and even death “if the case require[d] it.”²³² One example of such punishment imposed in 1764 was branding on the cheek with the letter “v” for voleur (French for “thief”).²³³

From this glimpse at Louisiana Law, one may conclude that it served as a social structure whereby Africans had virtually no power in judicial process; were required to participate in the religion of the French; were policed as to their movements, gatherings, and associations with one another; were heavily punished for acts threatening the security and safety of enslavement-based colonial society; and were prohibited from building institutions of commerce among themselves.

B. Protocol: Bamana Protocol from Africa to Louisiana

Based on various sources, ²³⁴ we can posit what the Bamana worldsense was like at the time of their arrival in Louisiana in the early eighteenth century, and we can glean their Ways of Knowing.²³⁵ By studying the Bamana Ways of Knowing, we can understand contours of Bamana Protocol.

i. Elders, Family, & Community

Traditional Bamana society was organized in an “agricultural commune controlled by the elders.”²³⁶ The elders—or cèkòròbaw ²³⁷—were key figures in Bamana Protocol, as they were the society’s decision-makers regarding food, marriage, access to knowledge, and other important aspects of life.²³⁸ The elders convened to make significant community decisions, such as choosing leaders.²³⁹

For example, a Bamana jeli ²⁴⁰ (roughly, “historian”) explained a pre- Maafa ²⁴¹ process of selecting leaders among the Bamana, whereby three community members in a row chose the same pieces of indistinguishable, cut straw.²⁴² Because of the element of chance in the process, the leader was “chosen . . . by destiny.”²⁴³ The community was involved: people of varying ages and identities—including women, uncircumcised (younger) boys, and circumcised (older) boys—participated.²⁴⁴ However, the process was overseen by the cèkòròbaw (elders).²⁴⁵

The authority of elders was related to their life experience. They were seen as “those soon to be ancestors.”²⁴⁶ Elders were thus honored and respected, and children were expected to care for their elderly parents.²⁴⁷ It is the elders who had attained doniya duna , or “profound knowledge,”²⁴⁸ by gradually moving through age-classes or age-grades,²⁴⁹ stating at age six, within the Bamana community.²⁵⁰ These age-classes were groups “whose members were born within a few years of each other, passed together through circumcision and other rights [sic] of passage, and maintained a life-long association.”²⁵¹

Relatedly, the Bamana had an expansive definition of family.²⁵² For example, in Bamana language, the word for “uncle” is an “age-grade term, indicating any male of the same generation as one’s father . . . .”²⁵³ Thus, family was a concept that incorporated the functioning Bamana community, complete with its age-grade system of reaching elderhood.

ii. Orality

The Bamana world-sense also prized orality. In the early 1700s, the Bamana had a strong oral tradition, which was kept and told by the jeliw (singular, jeli ) (who are widely known by the French term “griots”).²⁵⁴ There is no single English word that adequately defines the role of the men and women who served as jeliw ; they have been described as culture keepers, historians, musicians, oral traditionists, poets, public speakers, genealogists, negotiators, political counselors, linguists, praise-singers, spokespersons, mediators, entertainers, performers, spiritual guides, and diplomats.²⁵⁵ A large aspect of their role was to preserve the past in the memory of Bamana people.²⁵⁶ Because they knew “the secrets of the past,” they were influential and had power in Bamana society.²⁵⁷

Jeli was a role that one was born into, and jeli families were connected to other “patron” families.²⁵⁸ They would compose their historical narratives as a service to their employers.²⁵⁹ The jeliw in places like Segu could be found assisting with settling disputes between community members or negotiating marriages between families.²⁶⁰ Another important function of the jeliw , specifically a sub-group of jeliw called the jeli-faama , was to accurately convey accounts of the past and invoke the ancestors during times of crisis, so as to strengthen and encourage the community.²⁶¹ Mamadou Kouyaté, a jeli in present-day Mali, explains the obligations of his role:

My word is pure and bare. I tell no lies. I carry my father’s words and the words of my father’s father.

I will give my father’s words the way he gave them to me: the king’s praise singer knows nothing of lies.²⁶²

The jeliw performed narratives called kuma koro (“ancient speech”) in their ancestral language at community rituals (e.g., marriages, funerals, festivals).²⁶³ These narratives were often accompanied by music.²⁶⁴ In these narratives, the jeliw used proverbs and constantly evoked heroic ancestors and their important deeds, so members of the community were aware of specific ancestors from childhood.²⁶⁵ Community members were connected to these ancestors through their jamu or family name, and the connections, which established relationships, were acknowledged in personal greetings.²⁶⁶ Therefore, this jeliw role was integral to establishing Protocol between community members and elders responsible for decision-making:

When elders meet in village council, the ancestral spirits are felt to be present because, according to tradition, it was they who established the relative statuses of everyone present, as well as the administrative protocols to be followed and the values underpinning every decision.²⁶⁷

The jeliw are figures who possess the community’s memory, including its memory related to Protocol, including past promises, transgressions, and disputes. Given the role of the jeliw in preserving the ancestral past, and the role of ancestors in determining the status of present decision-makers, one might conclude that Bamana ancestors are seen as key “participants” in Bamana Protocol. This is consistent with an observation from Hall, who explains that rules of Bamana society (Protocol) were “transmitted from generation to generation within each community, and sanctified by appeals to the heritage of the ancestors.”²⁶⁸

iii. Ways of Knowing

Central to understanding Bamana Ways of Knowing is a notion that is frequently discussed with respect to African cultures, which I will refer to as “permeative principle.” Permeative principle is the idea that Ways of Knowing permeate all other aspects of culture and are therefore inseparable from those other spheres of life.²⁶⁹ This is worth stating, because it runs counter to Western normative notions about law and religion as occupants of distinct spaces within the Western cultural logic.²⁷⁰ Permeative principle was present in the Bamana world-sense: “The symbolism of Bambara [Bamana] cosmology transcends religious life and ceremonies and penetrates all of secular life and daily conduct.”²⁷¹

The Bamana people were decidedly non-Muslim and adherent to their indigenous beliefs, with the rejection of Islam in Africa being a major component of their identity.²⁷² They maintained their traditional Ways of Knowing during the time of the slave trade.²⁷³ In traditional Bamana Ways of Knowing, nature, humans, and the unseen spirit world are closely intertwined, joined by a force called the nyama , a “vital beneficial energy” or “the vital spiritual force,” into which components of humans, animals, and plants transform upon death.²⁷⁴ In Bamana cosmogony, animals, plants, and humans come from the same origin—the first woman.²⁷⁵ Therefore, a certain “reverence” was attached to all living things.²⁷⁶ Consequently, “[b]ecause humans kill animals, plants, and insects for various reasons, the world is filled with hostile nyama .”²⁷⁷ Therefore, for the Bamana, “negotiating with the realm of the unseen” was integral to living peaceably.²⁷⁸

Part of negotiating with the realm of the unseen was carrying and using charms. For example, before doing significant acts, the Bamana consulted with a vase filled with charms known as the canari —which was likely a representation of ancestors or an instrument used to communicate with ancestors.²⁷⁹ Making sacrifices “to appease the nyama of the ancestors” was also necessary, and sacrifices were made on sacred “power objects” called boliw .²⁸⁰ These objects were “the most essential instruments of communication between earthly mortals and the supernatural powers that control nyama .”²⁸¹

Ancestral emphasis is clear in Bamana Ways of Knowing and— because of permeative principle—can be assumed to frame and be part of Bamana Protocol.²⁸² Ancestors were part of the community that legitimized Protocol; thus, a key part of Protocol was consulting with ancestors. For example, oaths were made to the ancestors.²⁸³ These promises committed not only the promisors but all of their descendants as well.²⁸⁴

Additionally, the Bamana had the concept of tiné , a sacred “animal or plant that is regarded as the protector of a particular clan, lineage or branch thereof.”²⁸⁵ A group’s tiné was based on stories about how the animal (e.g., lion) or plant (e.g., a certain tree) played a key role in an ancestor’s life.²⁸⁶ Therefore, that animal or plant was considered sacred, and the ancestor’s descendants were not allowed to kill it.²⁸⁷

iv. Social Organization

Members of Bamana age-classes could also join independent associations or “secret societies”²⁸⁸ to learn profound knowledge “by traveling and working for a reputed master.”²⁸⁹ The Tyi Wara society, for example, taught “the art of agriculture and conducted secret dances in the fields.”²⁹⁰ Other societies convened other groups, such as hunters.²⁹¹

Aside from the secret societies, there were social status groups. One of these groups was the endogamous, occupationally-defined nyamakalaw , sometimes translated as “craftsmen,” though this term is grossly reductive.²⁹² The nyamakalaw included the jeliw , leatherworkers ( garankéw ) metalworkers ( numuw ), and woodworkers ( daliluw ).²⁹³ The nyamakalaw were held in high esteem in the community, and could serve as a check on the cèkòròbaw (elders) when it came to adhering to Protocol, e.g., selecting leaders.²⁹⁴

There was also a societal status group known as Jonw which included what some scholars might refer to as “slaves,” but what is, more accurately, “captive” status.²⁹⁵ It is important, however, to appreciate the distinctions between Jonw status and European enslavement.²⁹⁶ In pre- Maafa African societies generally, the system that some might call “enslavement” “functioned at the edge of society” and was an interaction between “groups of kin,” whereby people served as members of a servant class due to failure to pay debt, commission of a wrongdoing,²⁹⁷ allegations of “sorcery,” seizure in war,²⁹⁸ or as compensation as a remedy for wrong.²⁹⁹ This system was vastly different from the large-scale, agricultural, lineage enslavement that Europeans instituted in the Americas, which was central—not marginal—to European society in the Western Hemisphere.³⁰⁰ Thomas Ingersoll explained that enslaved Africans in the Western Hemisphere

came with some experience of an institution historians call “slavery” in Africa, but it was not like the racial plantation slave regime of North America: it was a transient condition that was not based on race. Those who had been slaves in Africa were far more unfree as slaves in the New World, and, by contrast with Africa, their descendants were required by law to remain in slavery.³⁰¹

Because of these distinctions, Toby Green prefers “dependency” to “slavery” as the term to apply to intra-African servitude.³⁰² The Bamana state, described as an empire by some historians, was expansive and influential, and it was engaged in “chronic imperial warfare” during the eighteenth century, meaning Bamana people often took non-Bamana people as war captives and integrated them into Bamana society as jonw -status dependents.³⁰³

Finally, there were the horonw , or farming people, the guardians of land.³⁰⁴ Cultivating land was not by any means a new concept for Africans—including the Bamana.³⁰⁵ One Bamana proverb says, “The first work of mankind is farming.”³⁰⁶ In Bamana society, farming was considered a significant, “noble” occupation and was seen as “normal and dignified in Segu.”³⁰⁷ Farming was taught by the Tyi Wara society, and rituals called upon the tyi wara —a mythical animal ancestor who taught the Bamana how to farm—to bless the harvest.³⁰⁸

The various roles in Bamana society resulted in a system where people were able to trade. Tayiru Banbera notes, “In early times our trade was done by barter. If you had millet, you took it to someone who had fish.”³⁰⁹

From this survey of the Bamana world-sense, it is evident that Bamana Protocol required the involvement of elders and ancestors; included an expansive, communal definition of family; valued orality; contemplated collective work and safeguarding of information and profound knowledge within age-grades and secret societies; included social organization of various occupational groups, including a class of servitude; and incorporated rituals of communication with the unseen spiritual realm.

C. Persistence of Protocol

“If they brought with them their clothes, their food, and their religion, did they forget their laws? If they knew how to raise their babies, did they forget how to resolve disputes?” – Aderson François³¹⁰

What happened to Protocol? Given the Continuity approach of the Africana Legal Studies orientation, which recognizes the persistence, combination, and evolution of Africana Protocol in the Western Hemisphere, we must conclude that it did not simply die off. Did it survive to today in some way, shape, or form? Did specific systems of Protocol combine into one system or various regional systems of Pan-African Protocol, and then persist into the present? These are questions that ought to be posed but will take years of collective work to answer.³¹¹

But the question of whether specific bodies of Protocol survived in- to the early period of enslavement is more straightforward. Because Africans are human beings with history and culture, the presumption must be that they remembered and engaged in their specific indigenous³¹² systems of Protocol despite the interruption, disruption, and relocation posed by the Maafa . The evidence only affirms this presumption.³¹³

During the French colonial period, Africans did not yet have a Pan- African consciousness.³¹⁴ Indeed, Africans around the world did not yet consider themselves “Africans.”³¹⁵ A Pan-African identity did ultimately arise among enslaved and free Africans,³¹⁶ but forming this collective identity was a challenge, and moving “from ethnicity to race” was not straightforward prior to 1830.³¹⁷ Thus, ethnicity remained relevant for a long time, and “a polycultural African American community” emerged during the enslavement period.³¹⁸

Additionally, and contrary to popular belief,³¹⁹ African people of the same nations were not totally fragmented or separated.³²⁰ Instead, there were ethnic clusters in the Western Hemisphere, including in what is now the United States.³²¹ These ethnic clusters resulted from several factors, including the geographic influences on trade routes,³²² resistance of certain Africans to the slave trade,³²³ and slaveholder preferences for specific skills and knowledge associated with certain ethnicities.³²⁴ Consequently, systems of Protocol belonging to the cultures of specific ethnic identities could persist through the engagement Africans had with their ethnic communities. And that is precisely what happened in Louisiana.

There are key considerations when contemplating the persistence of Bamana Protocol in Louisiana, where some of the best information about African ethnicities during enslavement exists.³²⁵ In Louisiana, Senegambian ethnic clusters (like the Bamana) were retained because of an exclusive trade monopoly held by the Company of the Indies, which organized the trade in both Louisiana and the Senegambia region.³²⁶ Senegambians were known to have expertise in rice cultivation, which drove the preferences of slaveholders in places like Louisiana, where rice was important.³²⁷

While there were not many large plantations in New Orleans in the first half of the eighteenth century, there were many opportunities for community-building and interplantational relations.³²⁸ Time and space existed in Louisiana colony for the Bamana and other Africans to carry on their cultural practices. Enslaved Africans in New Orleans frequently met in groups where some of them were not on their enslavers’ property, including on the weekly “free day” established by Article 5 of the Code Noir .³²⁹

Additionally, existence of the Bamana ethnic cluster can be seen through persistence of language. The Bamana did not suddenly and solely speak French when in the colony. The Bamana language group (Bamanankan)³³⁰ persisted during the French colonial period.³³¹ Notably, a Bamana man named Samba Bambara served as a court interpreter in several Superior Council proceedings involving other enslaved Bamana people.³³²

If the Bamana could remember how to speak their language, did they simply forget how to secure promises between one another? If they could remember how to grow rice, does it make sense that they would forget how to make oaths to their ancestors? Michael Gomez asked and answered a related question: “What is the likelihood that either the Bambara [Bamana] worldview or their warrior-cultivator tradition survived the foreign environment of the lower Mississippi? The informed response is that the likelihood was very high, and indeed, the evidence supports the projection.”³³³ Relying on the work of Gomez and others, we can conclude that the unique Bamana world-sense was brought to Louisiana with the Bamana people, and Bamana Protocol survived, at least during the early period of the colony.³³⁴ Understanding Bamana Protocol and acknowledging its continuation in the venue of enslavement brings new insights to interpreting the actions of the Bamana in violation of the Code Noir . The next Part of this Article explores those insights as well as Bamana Protocol as inspiration for today.

III. What Protocol Tells Us

“History . . . is the ideological tool a people may use for the assessment of their past, the evaluation of their present conditions, and the charting of a course for their collective destiny.” – Anderson Thompson³³⁵

A consciousness of Protocol enables us to do three things: (1) reinterpret the actions of enslaved Africans under law by centering the perspectives of enslaved Africans; (2) posit the African perspectives about Law based on the vantage point of their Protocol; and (3) derive lessons from Protocol that can be applied in today’s legal landscape.

A. Interpreting Actions

Law and Protocol are not in perfect alignment. There are clashes and tension points between them. Because of the dominant traditional framework of Law, we most often interpret these clashes as violations of Law. What we do not tend to do is interpret the clashes as violations of Protocol. The Africana Legal Studies method helps us shift perspectives to the Protocol orientation, reframing actions of enslaved Africans as related to Protocol.

Much to the chagrin of French colonists, despite the mandates and prohibitions of the Code Noir , Africans collectively continued to follow their own agenda. The Bamana, in particular, notably clashed with the Code and were overrepresented among those Africans accused of its crimes. ³³⁶ Early Louisiana legal records indicate that the Bamana frequently interacted with the courts for various legal offenses, including threatening slaveholders, attacking slaveholders, and escaping enslavement by fleeing captivity.³³⁷ Why did the Bamana (and other Africans) flout the Code Noir ? The Code was one way of knowing governance, and it was at odds with the Bamana way.

i. Louisiana Religion and Bamana Ways of Knowing

One tension involves the Code Noir ’s provisions on religion and Bamana Ways of Knowing. Despite outwardly adopting Catholicism, Africans in colonial Louisiana gathered to practice non-Catholicism.³³⁸ This conduct violated the restrictions on exercise of religion outlined in Article 3 of the Code .³³⁹ On the “free day” created by the Code ’s prohibition on Sunday work, Africans convened at various locations around New Orleans, built community, sang, danced, and practiced their various spiritual traditions.

Le Page du Pratz, who lived in New Orleans in the 1720s, observed that 400 Africans (of the approximately 2,000 Africans in the colony at that time) gathered every Sunday on the Company of the Indies’ Plantation (also known as the “King’s Plantation”).³⁴⁰ That plantation, which Le Page du Pratz managed, was located in Algiers across the Mississippi from New Orleans, and was where newly-arrived Africans and those not yet sold were held.³⁴¹ Le Page du Pratz described what he saw during these gatherings:

In a word, nothing is more to be dreaded than to see the negroes assemble together on Sundays, since, under pretence [sic] of Calinda or the dance, they sometimes get together to the number of three or four hundred, and make a kind of Sabbath, which it is always prudent to avoid; for it is in those tumultuous meetings that they sell what they have stolen to one another,³⁴² and commit many crimes. In these likewise they plot their rebellions.³⁴³

Gatherings like these also occurred elsewhere in New Orleans and on other plantations in the colony.³⁴⁴

Because resistance to Islam was a major part of Bamana history and identity, it is likely that the religious mandates of the Code Noir would have been repugnant to them. For the Bamana, the attempt at forced conversion by the French may have felt all too familiar, in the worst way.³⁴⁵ Le Page du Pratz’s observations suggest that the Bamana took advantage of the “free day” (prohibition of Sunday work) created by Article 5 of the Code and gathered together to engage in practices that were part of their Protocol, including Bamana Ways of Knowing and, quite possibly, other elements of Protocol unnoticed by colonists. What the colonists saw as dancing and plotting rebellion could have also included participation in Bamana Protocol associated with decision-making, transmitting histories and knowledge, and organizing into secret societies and other social organizations. The French recognized that there was some spiritual undertone to the conduct at these gatherings. For the Bamana, this likely means they participated in Protocol related to their Ways of Knowing. Their activity at Sunday gatherings was the maintenance of Protocol—hidden in plain view within the space and time authorized by Law.

Second, it is clear from the historical data and observations by the French that the Bamana, specifically, carried charms with them in the colony. Le Page du Pratz explained, “They [enslaved Africans] are very superstitious, and are much attached to their prejudices, and little toys which they call gris , gris . It would be improper therefore to take them from them, or even speak of them to them; for they would believe themselves undone, if they were stripped of those trinkets.”³⁴⁶ Carrying these charms would have technically violated the Code ’s prohibition of the exercise of other religions, though Le Page du Pratz’s statements suggest that the Code was not enforced against enslaved Africans in this way.

Using the Protocol orientation, by carrying charms, the Bamana were simply continuing to employ their Ways of Knowing, which permeated their Protocol. The purpose of the gris-gris charm—missed by Le Page du Pratz—was to cause harm.³⁴⁷ From the Bamana perspective, the gris-gris was a weapon .³⁴⁸ This role of the charm was beyond the contemplation of the French, and, therefore, it was a clandestine weapon that fell outside the purview of the Code . Bamana participation in their Protocol hid in the gaps of Law.

Finally, the Bamana appeared in court in various cases, and in these cases, before giving testimony, they were required to take an oath in front of a crucifix to tell the truth. During a 1748 murder investigation, one witness, Charlot dit Karacou, told French authorities that a man named Pierrot (who identified as “Bambara”) was his accomplice.³⁴⁹ Pierrot denied this.³⁵⁰ But Karacou insisted that Pierrot was a liar, especially because “the Bambara always lie.”³⁵¹ Ultimately, Pierrot confessed and was executed.

A Law orientation might stop here, taking note of the interesting remark by Karacou, but framing this incident as one of perjury and punishment. Using our Protocol lens, we know that the Bamana had an oath-taking Protocol: Bamana oaths were made to Bamana ancestors.³⁵² Considering the Bamana maintained their Ways of Knowing in the colony by carrying charms and participating in gatherings of a spiritual sort, the fact that a Bamana witness, when made to promise to tell the truth before a crucifix—a symbol representing Jesus Christ (not a Bamana ancestor)—was undeterred from breaking that promise and lying to the Superior Council should give us little surprise.³⁵³ For the Bamana, this oath before the crucifix was no oath at all. Considering this and the Bamana’s social organization into secret societies, their Protocol of safeguarding information would not have wavered in the halls of the Superior Council.

ii. Louisiana Enslavement and Bamana Social Organization

In violation of the anti-rebellion, anti-assembly, and anti-violence sections of the Code , Africans in Louisiana indeed assembled to do various things. ³⁵⁴ There were “interplantational relations” among Africans, enslaved and free, and they created communities expanding beyond singular “slaveholding units.”³⁵⁵ And, in 1731, the Bamana would have had to coordinate large-scale gatherings, because in that year, they conspired to kill the French and take over the colony.³⁵⁶ At that time, Africans outnumbered the French in lower Louisiana 3,352 to 1,095, and the Bamana represented fifteen percent of the enslaved population in the colony.³⁵⁷ Over 400 enslaved Bamana were involved in the Conspiracy of 1731; they collaborated with the nearby indigenous nations in a plan to kill the French, free themselves, and “make themselves the masters of” the other enslaved Africans in the colony.³⁵⁸ The participants in this plan were led by none other than Samba Bambara, the aforementioned court interpreter and one of Le Page du Pratz’s commandeurs (overseers) on the King’s Plantation.³⁵⁹

The conspiracy was discovered before steps were taken toward carrying it out. Of course, the very act of gathering and conspiring to rebel violated the Code .³⁶⁰ When Samba Bambara and seven others were arrested and imprisoned for their roles in the Conspiracy of 1731, they were repeatedly tortured, but they refused to confess to the crime or reveal their accomplices.³⁶¹ The known participants of the 1731 Conspiracy were killed—eight were “broke[n] alive on the wheel,” (i.e., tied to a wheel and had their bones broken) and one was hanged.³⁶² The gover- nor admitted that it was not clear whether those executed had formed the conspiracy, but a scapegoat was needed to quell the hysteria of the French colonists.³⁶³

It’s clear that, like all enslaved Africans, the Bamana would have found the system of enslavement under the French to be abhorrent. Resistance to enslavement is not a Bamana particularity; there are countless instances of African resistance to European enslavement. Arguably, most human beings would likely resist such a condition. But the specific contours of why they resisted and how they resisted can be traced back to their Protocol. Knowing something about Bamana Protocol gives us a sense of the particulars of their contempt.

With their Protocol around social organization well in mind, the Bamana would have certainly noticed that French enslavement, unlike Jonw dependency, was not premised on wrongdoing, debt, or war capture. Those key distinctions meant that, to the Bamana, the French system of enslavement was particularly violative of the Protocol for incorporating members into society. Because of this, from the Bamana perspective, the French system of enslavement had to be addressed.

The manner in which the Bamana organized and formed their plan is also consistent with their Protocol. The exclusive nature of the conspiracy tells us something about the strength of Bamana ethnic identity in this period. Understanding Bamana Protocol around secret societies and safeguarding information brings a certain appreciation to the fact that they gathered and organized on a large scale in 1731, safeguarding their plan in a “secret society” of sorts, to address what they considered to be wrongdoing imparted on their community. ³⁶⁴ The Protocol orientation helps us to understand that the Bamana came into forming this plan ready with the skills of social organizing and protecting information, skills that were integral in their own rules for social living.

Finally, knowledge of Bamana Protocol helps us contextualize the narrative describing the Bamana’s plot to “enslave”³⁶⁵ other Africans in the colony. While a Westocentric orientation might attribute their plan to emulation of the French, a Protocol orientation suggests otherwise: the Bamana may have planned to recreate their own jonw system of dependency.³⁶⁶ In their plan, the French would meet death, but other non- Bamana Africans would be converted from war captives to jonw dependents, thus replicating the Bamana method of empire building and integration of the “other” into their society.

iii. Conducting Business in Louisiana and Bamana Social Organization

In 1764, an enslaved African man named “Louis” and others were arrested in New Orleans.³⁶⁷ During interrogation, the man explained that he was named “Louis” by the French, but his real name was “Foy” in his native language.³⁶⁸ He testified that he was of the “Bambara” nation.³⁶⁹ Foy at one point worked in the lead mines of Illinois, escaped from those mines, stole a boat, and went to New Orleans, where he worked as a free person.³⁷⁰ Foy was the leader of “a cooperative network” of Mande speakers around New Orleans, which included enslaved Africans and Africans who had escaped enslavement.³⁷¹ Hall explains, “[w]hen the Africans were asked how they knew each other, they often replied that they were from the same country.”³⁷² Members of the network gathered regularly and made and sold various goods, including clothing and food.³⁷³ The group would “steal” food, cook and eat some, and sell the rest.³⁷⁴ They also sold other various “stolen” items.³⁷⁵

Foy’s conduct, and the conduct of all those involved in the network, would have violated several provisions of the Code , including the articles prohibiting enslaved Africans from assembling, making promises or contracts, and selling goods, such as clothes and food, without permission from slaveholders. Foy did not confess to the crimes until he was brutally tortured with a hammer.³⁷⁶ He was then sentenced to be broken on the wheel.³⁷⁷

Sophie White points out that “the very concept of [enslaved Africans] perpetrating criminal acts is a deeply problematic one, raising questions such as how enslaved persons could be guilty of theft when they themselves were stolen—their time, labor, and even family ties stripped from them.”³⁷⁸ The Africana Legal Studies method compels us to raise those questions by shifting perspectives and contrasting the paradigms of Law and Protocol. From a Protocol perspective, Foy and the collective “network” of Mande people seemed to, at least in part, recreate the social organization that Bamana Protocol dictated. In the traditional social organization of the Bamana, various roles in the community involved specific trades, and people bartered various goods.³⁷⁹ This element of Protocol adds context to the “cooperative network” established by Foy, who was likely recreating the trade and barter system he and his country-people remembered from their lives in the Senegambia.

B. Positing Perspectives

What about Louisiana Law would have been striking to the Bamana? What about Louisiana Law may have made perfect sense to them?

i. Emphasis on Writings

Given the emphasis on orality and central role of the jeliw in Bamana Protocol and given the fact that Bamana Protocol was transmitted over space and time through speech and song rather than through writings, the Bamana were likely struck by the French’s reliance on written codes like the Code Noir as the authoritative encapsulation of governance and their reliance on written transcripts of their court testimony. The grounding of governance in the written word runs counter to the Bamana understanding that history is preserved by culture-keepers who perform the past with words and song. For this reason, the Bamana may have thought of Louisiana Law as backward.

However, they would likely have noticed the spaces within Louisiana legal process that allowed for emphasis on speech. When in court, Bamana people would have given oral testimony, which they probably perceived as being somewhat consonant with Bamana Protocol. Fittingly, when enslaved Africans provided testimony to the Superior Council during the French period, they seemed to do so readily and extensively.³⁸⁰ For the Bamana, many did so in their own language, through the interpreting services provided by Samba Bambara.

ii. “Families” Not Sold Separately

Using a traditional framework from the Law orientation, one might conclude that the Bamana found some comfort in Article 53 of the Code , which prohibited families from being sold separately. From the Protocol orientation, however, one sees more nuance here. Insights from Bamana community Protocol suggest that there still would have been tension between Protocol and Law in this area, as the notion of family set forth in the Code was the Western notion of a nuclear family, while the Bamana world-sense interpreted the idea of family more expansively. Therefore, the Code Noir did not help to retain family in the Bamana sense, where (1) society organized itself around age-grades expanding beyond siblings, (2) children were raised to attribute parenthood to all adults in the same generation, and (3) a group of elders made the important decisions for the community. Using a Protocol orientation reveals that this element of Law, by imposing itself on Bamana social organization and fragmenting the community into smaller units, was actually destructive to the Bamana family, not “protective” (as a Law orientation might suggest).

iii. Otherness

Africans in Louisiana knew about the Code Noir and its enforcement—after all, the Code was enforced against them, so they experienced its implementation and consequences firsthand.³⁸¹ The Bamana likely did not consider Louisiana Law to be legitimate or worthy of respect, merely because of its otherness. In the Africana Legal Studies approach, Law is a Social Structure imposed on African people, while Protocol represents Africans’ systems for themselves. Thus, definitionally, Louisiana Law was not a Bamana creation; it was not theirs , nor was it for them. The drafters of Louisiana Law and decision-makers in the Louisiana legal system had no ties to Bamana social organization. King Louis XIV, King Louis XV, the Code Noir drafters, and the Superior Council jurists were not Bamana elders. They had not gone through Bamana age-grades or joined secret societies. They did not possess doniya duna (profound knowledge). And they had no regard for Bamana ancestors.

Law represented the thoughts of French colonists about the Bamana, not Bamana thoughts about each other. This is a particularly salient fact given the Code Noir did not even contemplate the ability of Africans to seek redress for wrongs committed against them by other Africans—a void that rendered Law inadequate to cover all aspects of African life in the colony, even if Africans wanted it to.

Bamana thoughts about each other are reflected in Bamana Protocol. The Bamana had already created their own system of governance for themselves, in Africa, in the generations before their capture. From their standpoint, Bamana Protocol pre-dated Louisiana Law, and, more importantly, it aligned with the Bamana world-sense, including its Ways of Knowing. Law, in addition to being oppressive and coercive, and therefore morally bankrupt, simply did not align with Bamana Protocol.³⁸² For these reasons, Louisiana Law was not legitimate. In the clash of governance systems, when faced with a choice between a Western Law system and an Africana Protocol system—the choice was simple for the Bamana: Bamana Protocol.

Thus, Bamana resistance, illustrated by the Conspiracy of 1731, meant more than simply fighting back; Bamana resistance was a rejection of Law and a reaffirmation of Protocol. It was a reflection of Bamana beliefs about how things should be, how society should work; it was “a stubborn refusal not to learn a grammar whose rules are contrary to African ideas of” governance.³⁸³ The long view of history and cultural continuity tenets of Africana Legal Studies remind us that resistance has a backstory, and the resistance of enslaved Africans has an African backstory. Resistance not only challenges a thing—it champions another thing.

C. Sankofa: Africana Protocol as Inspiration for Today and

Innovation for Tomorrow

Through enslavement, segregation, intimidation, and harassment, Africans transported to the Western Hemisphere were in many ways chained to the Western way—of solving conflict, of raising complaint, of addressing wrongdoing, of conducting one’s manner in certain circumstances, of securing and asserting ownership, of seeing the past and charting the future. Because of this, the legal systems all Americans (i.e., people of the Western Hemisphere) have inherited lack the full benefit of Protocol insights. By studying Protocol—a different way, an African way—we can imagine beyond permutations of the Western way to other ideas.

With Sankofa in mind (“go back and fetch it”) we may draw upon Africana Protocol not only to ponder the past, but to newly-examine the present and imagine the future. The Africana Legal Studies approach, then, is not about the study of “dead letter” Protocol; it is not a project of nostalgia. Rather, it has the potential to be a viable and rich area of study raising questions and insights from the past that are relevant for us today. For example, we can both consider whether the Protocol of secret societies was ever viable under the regime of U.S. law and whether the U.S. legal system is hostile to African people gathering in an organized and confidential way, even today.

To imagine the future, we can draw from systems of Africana Protocol, which offer potential for disruption and innovation in today’s legal landscape. Legal thinkers and practitioners, through study of Protocol, such as Bamana Protocol, can challenge their imagination, creativity, and ability to critique Law in order to establish pathways within and through it toward a better circumstance for African people and others.³⁸⁴

What can Bamana Protocol offer us today? It will take deeper study for the full answer, but one immediate answer is imagination . Bamana Protocol fundamentally offers us a new set of imaginings that would not otherwise be imagined without the serious inquiry prompted by disciplinary Africana Studies insights. I list these imaginings as part of a dynamic and ongoing litany of musings I have compiled over the years, entitled Imagine a World :³⁸⁵

Imagine a World Where Africana Protocol was not constrained by the machinations of the Maafa, and it developed and freely flourished to create systems of governance today, Where the people who create rules for social living, enforce those rules, and decide disputes are African elders who know me, my family, and our history, Where mediators of my disputes and representatives who negotiate on my behalf are African people with deep knowledge of the history of my family, the history of my people, and the deeds of my ancestors, which they shared with others in the process, Where the destruction of plant and animal life is seen as a spiritual transgression that must be avoided, acknowledged, and addressed, Where venues of rulemaking and dispute resolution are adorned with names and monuments of revered African ancestors, symbols of African thought (e.g., Sankofa), and showcase musical histories of the African cultural community, Where scholars consider the impact of Bamana Protocol on the Protocol of the nineteenth century Black church, similar to how other scholars consider the impact of Roman law on the French Code Noir, Where the discourse about classical Western antecedents of jurisprudential concepts exists alongside equally robust discourse about Africana Ways of Knowing on concepts central to Protocol, Where textbooks explain the detailed history of the development of various systems of Protocol, including what happened to them in the face of European enslavement and colonization, Where scholarly projects about Africana Protocol on the continent and in the diaspora proliferate to such an extent that production studios create shows and films telling Protocol stories, similar to how studios create legal dramas, Where the curriculum at my school, my university, my law school, deeply explores African systems of thought, without apology, without controversy, without question. These are musings that arise out of a very different orientation from

the traditional Western legal orientation. Such a world is so freely imagined with the awareness that many would object to its existence and doubt whether it could exist. But, are there pieces of this imagined world that should exist? Are there spaces in our real world where those pieces could exist? What would American Law be had Africans come to the Western Hemisphere of their own volition, had their ideas about governance—on equal footing with European ideas—influenced the development of American jurisprudence? What would a dispute resolution process sensitive to shared community culture and elderhood look like? How might a restorative justice program that valued permeative principle be designed? What harsh results might be avoided by adjudicative processes that valued orality over written documents?

These questions are not for one person to answer. They are for the collective.

The point is that they have now been asked.

Conclusion

An Africana lens filters our vision of the history of American Law and African people to reveal the cultural continuity, memory, and complexity of African life in the face of a foreign and coercive system—in turn, illuminating the involvement of two systems of governance, Law and Protocol, which clashed in notable ways, giving rise to tension points and resistance. Analyzing the interactions between Law and Protocol systems provides insights and encourages creative ways to think about past, present, and future.

The case study of Bamana Protocol and its interaction with Louisiana Law is but one of many Africana governance stories to be studied and told. There must be continued collective study of various systems of Protocol,³⁸⁶ comparative work on Law and Protocol,³⁸⁷ the story of what happened to Africana Protocol,³⁸⁸ and the implications of that story. Such a discussion will require extensive knowledge of Africana, so there is much of collective work to be done in collaboration with Africana Studies scholars outside the legal academy. The work will require the insight to center and draw from the wealth of available information—written and oral—on Africana. It will also require knowledge of African languages, considering language is the schema for cultural logic and is therefore necessary for studying African peoples and their systems of thought. When viewed with an individual consciousness, the task is overwhelming. When viewed as a collective project, the task is achievable.

It is time that those of us who find ourselves in the legal space seriously dedicate ourselves to studying systems of Africana Protocol and their interactions with Law over space and time. In making this contribution to both legal scholarship and Africana Studies, we may help improve various legal landscapes for the many cultural constituencies living in them. And we may pull closer a reality where systems “not for us” nonetheless work for us.