There is, among many students of Australian law, a tendency to regard the establishment of constitutional government in Australia in positivistic terms: as a result of the passage of the New South Wales Act in 1823, or of the Australian Courts Act in 1828, or of the Australian Constitution Acts of 1842 and 1850, or even of the Commonwealth of Australia Constitution Act in 1900. This is understandable, for, as Sir Victor Windeyer once put it, there was in the foundation of European society on these islands no element whatever of a social contract. Rather, the move to populate the Australian territories was a consequence entirely of a prospectively looking determination made by the government in London. And, as Windeyer went on to note, the formal establishment of local government was effected by ceremonies that were by their very essence positivistic in nature. On 26 January 1788, there was first a formal ceremony in which the Union flag was raised and a salute fired. Then, on 7 February, the whole population of the colony was assembled and the royal letters patent were read, which formally instructed Captain Phillip to go about the duty of creating a penal establishment.

Most who study Roman law today do so as historians, not lawyers. History includes doctrine, but Roman legal doctrine is rarely used to solve modern problems. There are exceptions: Roman law helps to solve modern problems in certain jurisdictions and academic writing sometimes gives a Roman solution to a modern problem. But the time is past when Roman sources were routinely put to work in the world of affairs, and most would say codification is the main reason.

Christopher Columbus Langdell (1826–1906) is arguably the most influential figure in the history of legal education in the United States, having shaped the modern law school by introducing a number of significant reforms during his tenure as dean of Harvard Law School (HLS) from 1870 to 1895. Langdell's innovations—including the admission requirement of a bachelor's degree, the graded and sequential curriculum, the hurdle of annual examinations for continuation and graduation, the independent career track for professional faculty, the transformation of the professional library from a textbook repository into a scholarly resource, and the inductive pedagogy of teaching from cases—became the characteristics gradually adopted by university law schools after 1890 and, eventually, schools of other professions. Langdell thus transformed legal education from an undemanding, gentlemanly acculturation into an academic meritocracy.

Scholars of slavery in Latin America are giving renewed attention to the study of the law. Although this literature is not as developed and sophisticated as in the United States, where slavery has been a central concern of legal historians for quite some time, a specialized subfield seems to be in the making. This is a welcome development. After all, every important aspect of slaves' lives in the Iberian colonies, from birth and nourishment to marriage, leisure, punishment, and rest, was regulated in theory by a vast, indeed massive, array of positive laws. Some of these regulations had been part of the traditional statutes of Castile for centuries, others were passed by the Crown or by local organs of administration and power.

After several decades of intellectual labor invested in the Tannenbaum debate—a long and exhausting controversy well summarized in the first part of Alejandro de la Fuente's article—I am wary at the prospect of opening a new round of this “many-headed-hydra” debate. Aside from the conceptual limitations of the (overly ambitious) thesis and the reins it can impose on fresh formulations of research agendas, there are other reasons why it may be wise to put Tannenbaum to rest. His thesis is burdened with a series of charged subtexts that surreptitiously make their way into the discussion and inflect the terms of the debate. Some of these subtexts carry long (and polemical) histories behind them that are difficult to obliterate.

Historians of Latin American slavery will find de la Fuente's article to be a particularly trenchant and learned essay on familiar historiographic controversies. The archival research awakens anticipation for the author's in-depth study of the earlier period of Cuban slavery, much neglected in favor of the heyday of the sugar complex of the late eighteenth and nineteenth centuries. Concentrating on the law and “slaves' claims-making” (341) allows for an important entry into the subject, complementing recent studies of slavery in Spanish America that have focused on how slaves used the institutions of Spanish colonialism to gain freedom or greater autonomy. However, reviving the Tannenbaum thesis, even in the limited form of the law, inspires less enthusiasm. De la Fuente's interpretation of Cuban slavery, through his rereading of Tannenbuam, does not produce misrepresentations in his treatment of historiography or sources; rather, I sense in this work the static conception of New World slavery created by Tannenbaum's dichotomous vision, both among and within particular colonial and national slave societies.

I have come to learn that unless one does it in unabashedly critical terms, including “slavery” and “Tannenbaum” in the same sentence is an intellectual exercise fraught with perils. The sole mention of Tannenbaum elicits images of benevolent Spanish and Portuguese masters in contrast to cruel Anglo-Saxon slaveowners, or of rigid dichotomies between racist North America and racially harmonious Latin America. These images clearly influence the comments of my critics, even though they have limited relevance for the central arguments of my article.

In 1850, William Carpenter, a reform-minded journalist, called the court of Chancery “an instrument of oppression” and noted that “[t]he madhouses, the workhouses, and the gaols, in all parts of the kingdom, have within their walls the melancholy and heart-broken victims of the evil it does.” The image of the nineteenth-century Chancery as a ruinously expensive and slow court is familiar and was given its most famous expression in Charles Dickens's Bleak House. Yet the court was also a prime focus of attention for law reformers throughout the nineteenth century, until its incorporation into the Supreme Court of Judicature in the reforms of 1873–75. The process of reform was slow and complex, driven at different times by different parties, who had often divergent notions of the problems to be addressed.