Slavery and the Law (review)

Drawing on a number of different historical methodologies, the authors demonstrate again and again that legal history at its best is a valuable way of tracing not only the evolution and meaning of doctrine but also of uncovering ideological, cultural, and political phenomena. Indeed, these essays do a great deal to move us away from the by-now somewhat stale debate between “internalists” and “externalists” in legal history, offering a case study in how these approaches can be combined in a sophisticated and enlightening way.

The book is divided into four parts, beginning with Finkelman’s introduction, “The Centrality of Slavery in American Legal Development,” which advances the two premises that drive the essays as a whole. First, slavery was not a wholly aberrational part of the American tradition, but instead was “deeply embedded in the social, political and legal structure of the nation” (4). Second, slavery was nevertheless a “peculiar institution” in American history, a social system that was at odds with the nation’s professed political ideals and its common-law legal heritage. It is this paradoxical quality of American slavery that animates many of the essays gathered here, and much of the book is devoted to exploring how slavery was made to fit within the law, both in theory and in practice, and how the law itself was an important cultural force in providing an ideological defense and framework for slavery.

Part One, “Theories of Democracy and the Law of Slavery,” contains articles by Derrick Bell and William W. Fisher, III that put slavery into its broadest context. Bell examines the profound modern-day legacies of slavery, and Fisher asks how the ideology of slavery fit within a broader nineteenth-century Southern ideology. Both essays provide useful and provocative ways of thinking about American slavery taken as a whole, and offer fresh analytical insight into what slavery meant to contemporary historical actors, and what it still means to us.

Parts Two and Three, “Constitutional Law and Slavery” and Criminal and Civil Law of Slavery,” do the most to show how internal and external legal history can be combined successfully. In particular, Ariela Gross and Thomas D. Morris use evidence drawn from highly technical legal doctrine—Gross on contract law and Morris on the rules of evidence—to make subtle and persuasive arguments about how the agency of African-Americans, slave and free, both shaped the law and revealed the contradictions inherent in a legal system that considered slaves as persons and as property simultaneously. These articles, together with others about the fugitive slave law of 1850 by James Oliver Horton and Lois E. Horton, another about trials for cruelty to slaves in Louisiana by Judith Kelleher Schaffer, and one more about the prevalence of court-ordered slave auctions in South Carolina by Thomas D. Russell, weave seamlessly together law, ideology, and cultural history. Their findings are of interest both for what they reveal about slavery in the antebellum period and for how these authors combine internal and external approaches to write particularly effective legal history.

The two most striking essays in the book are by Sanford Levinson and Jonathan A. Bush. Levinson’s, “Slavery in the Canon of Constitutional Law,” is primarily pedagogical, concerned with the limited attention devoted to slavery in American constitutional-law textbooks. For Levinson, students reading most existing constitutional-law textbooks will “have only dimmest realization that the United States ever included a system of chattel slavery, or, just as importantly, that its implications pervaded every single aspect of constitutional law” (90). Levinson’s article prompts reflection about how constitutional law is taught, and deserves reading by all those interested in debates about pedagogy and the “canon.”

Bush’s chapter, “The British Constitution and the Creation of American Slavery,” goes to the heart of the debate about whether slavery developed because of the common law or in spite of it. Bush makes the provocative argument that slavery developed largely outside of the common law and that the American colonies’ origins as lands...