Law Professors and Laws of Slavery 10

I would, first of all, like to applaud all the contributors for the renewed activity on this fine blog, and second of all to extend my welcome to Mark D. White.  Welcome, Mark!  Glad to have you at the table.  I missed you at the Association for the Study of Law, Culture & Humanities conference, but I hear that you did a great job. 

My post today is something of a brief historiographical essay that ends by posing some critical questions for legal academics.

Kenneth Stamp published his landmark study The Peculiar Institution (New York: Alfred A. Knopf) in 1956, thus inaugurating the institutionalized and concerted efforts of scholars to examine the history of slavery in America with greater detail.  Research and study of the history of slavery then gained momentum in the 1960s.  One of the seminal texts from this period was David Brion Davis’s The Problem of Slavery in Western Culture (Cornell University Press, 1966), winner of the 1967 Pulitzer Prize for General Non-Fiction.  An ambitious undertaking, this book seeks to demonstrate the continuity of slavery through various times and places in Western Civilization.  A legitimizing narrative or logic always accompanies the institution of slavery, Davis suggests, but such narrative or logic—or narrative logic—is fraught with paradoxes threatening to undermine the institution altogether.  How, for instance, does one reconcile the ideals of freedom and equality, so celebrated by American Revolutionaries, with the pervasive reality of human bondage?  How does one make sense of a Christianity that both condemns and justifies slavery?  How can slaves be humans—rational agents with free will—and chattel property at once?  How does ending the slave trade worsen conditions for the enslaved?  If enslaving infidels, and only infidels, is valid by law and church teaching, then how do European colonists validate the enslavement of converted Africans?  How can colonists rely heavily upon an institution that they fear?  How can one of the earliest American colonies to oppose slavery (Georgia) become a hotbed for slavery?  If, according to law and church teaching, only pagans can be enslaved, why are not Natives enslaved as frequently or as much as Africans?  For that matter, why do early objections to slavery focus on Natives, who are less likely to become slaves than blacks?  Why do colonists insist on Christianizing slaves yet fear converted slaves?  How does the antislavery movement develop out of the very ideology sustaining slavery?  How do notions of sin both justify and subvert the institution of slavery?  Why does the Age of Enlightenment, with its celebration of reason, humanism, and liberation, intensify rather than disparage slavery?  And how can the New World, a putatively progressive landscape, rely on and perpetuate an ancient institution?  These and other questions permeate Davis’s provocative text.  Davis does not try to resolve these apparent contradictions so much as he explores them through various persons, places, and patterns; in so doing, he describes how human bondage gets revised and extended from one age to the next, and how justifications for slavery in one era inaugurate justifications for slavery in later eras. 

Davis’s book departs from trends set by historians such as Stanley Elkins.  A paradigm shift away from the “Phillips School” of historiography—which looked sympathetically upon plantation life in the Old South—Elkins’s Slavery: A Problem in American Institutional and Intellectual Life (University of Chicago Press, 1959) charts the rise of slavery in early America and argues, controversially, that the infantilization of American slaves by slave owners and overseers was akin to the psychological tactics that Nazis deployed in concentration camps.  Any comparisons with Nazi Germany are suspect and tend to raise more questions than they resolve.  How, for instance, do property and property law in American slavery relate to the Nazi investment in bodily economy?  How did the ideology of Southern slaveholders vis-à-vis the ideology of Europeans in other countries during the late eighteenth and early nineteenth centuries contrast with the ideology of Nazis vis-à-vis the ideologies of other European countries during the Nazi era?   Elkins runs up against this problem by overstating, in part III in particular, the ideological similarities between American slave-owners and Nazi leaders.  In terms of time and geography, this comparison does not stand up to scrutiny.  At any rate, unlike Elkins, Davis contextualizes slavery by the historical events leading to and immediately following slavery in America, the West Indies, and Brazil, drawing from sources directly linked to these slave systems rather than generalizing about recent events only tangentially or conceptually related to American slavery, an institution balancing on a different ideological fulcrum than did Nazism.          

Davis argues that the basic characteristics and structures of slavery remain unchanged throughout Western history, even if the particulars of slavery—say, slave laws or notions of racial superiority—take on new forms in new sociopolitical environments.  Davis’s text appears in the wake of scholarship “less content with theories of progressive currents washing away the dregs of an evil past” and more interested in “the relations between ideology and social structure” (28).  Although Davis applauds then-recent scholarship for bringing “rewarding insights,” he cautions that it tends “to divert attention from the fact that Negro slavery in the eighteenth and nineteenth centuries posed a genuine moral problem that reflected deep tensions in Western culture and involved the very meaning of America” (28).  Davis’s text, then, stands in contradistinction to Elkins’s because Davis embraces an ethical approach—or at least entertains moral questions—while Elkins generally eschews approaches treating slavery as a system of competing moralities (Elkins 28).  Davis appears to position his text as a corrective to, rather than an extension of, scholarship on American slavery, although he, like Elkins, refuses to view history as necessarily linear or progressive, and although he uses America—that is to say, the colonies that would make up the United States—as a starting point for investigating other European slave societies both earlier (ancient, medieval, and Renaissance) and later (the eighteenth and nineteenth centuries in the West Indies and Brazil).  Davis’s accounts are not and cannot be exhaustive, but they are critically detailed and theoretically sound, tracing lines of thought about slavery across a vast time and space.  Davis takes pains, in chapters eight and nine especially, to debunk the notion that slavery in Brazil and Latin America was less harsh than slavery in North America.  Here he falls, like Elkins, into the trap of comparing a severe phenomenon from one time and place with the severe phenomenon of another time and place in a way that distracts from the brutality and grotesqueness of both phenomena.             

Winthrop Jordan’s White over Black (University of North Carolina Press, 1968), winner of the National Book Award and the Bancroft Prize, followed shortly after Davis’s publication and explores race-based theories underpinning the international slave trade.  The fundamental question upon which this book rests is whether racism precedes slavery or slavery precedes racism.  Contra Davis (see Davis, chapter 9), Jordan submits that slavery precedes racism, particularly in the American context.  His thesis is that although historians treat slavery and racism as one-in-the-same, the beginning of slavery does not correspond with the beginning of racism, which is a later phenomenon.  The colonists and mercantilists who transported slaves from Africa to the Americas were less motivated by racial prejudice than by difference itself.  Insofar as difference is bound up with race, the distinction is a fine one.  Nevertheless, “racism” entails science and implicates discourses of biological superiority and inferiority, whereas “difference,” as it were, entails dissimilarities that are, among other things, aesthetic, religious, cultural, sexual, and social.  Jordan’s focus is on Anglo-America.  He does not investigate slave life in Brazil or in the West Indies as does Davis.  His analysis is mostly rooted in the eighteenth-century, roughly the same period that Davis uses to foreground his discussion of earlier forms of slavery.  Both Davis and Jordan privilege a white, European reading of history, at least inasmuch as they ignore the perspectives and quotidian realities of black slaves.  Jordan in particular is criticized—and rightly so—for his apparent attempts to understand the psychology of European colonials.  Although he, like everyone, has no access to the inner thoughts of colonials—or to the inner thoughts of anyone not himself—he does piece together stark insights from the outward manifestations of personal attitudes that, in the aggregate, combine to create a telling portrait of the colonial ethos and milieu.  Davis’s work anticipates the work of later scholars such as Orlando Patterson, who, in Slavery and Social Death (Harvard University Press, 1982), analyzes slavery as a widespread practice throughout different periods and places. 

Despite their shared attention to breadth and continuity, Davis’s and Elkins’s books differ in several important ways, but most notably in Davis’s avoidance of totalizing definitions for slavery.  Patterson defines slavery as “the permanent, violent domination of natally alienated and generally dishonored persons” (13).  This definition is problematic for a number of reasons, not least of which is its reliance upon slippery signifiers: “permanent,” “domination,” “natally alienated,” and “generally dishonored.”  (Was American slavery “permanent” if it no longer exists?  Put another way, did American slavery constitute slavery if it came to an end?  And did slave status always necessarily entail the natal?)  Patterson’s definition is too broad or too narrow, depending on who is interpreting it and in what context.  That there might be a universal definition for slavery, however, is an interesting—albeit daring—proposition.  It lends critical substance to Davis’s thesis that the dynamics of slavery remained relatively fixed over time, despite diverse technological, economic, and ideological currents shaping slavery in different eras.      

Slavery received an enormous amount of attention among historians working during the late twentieth century, and every year historians continue to uncover more information about slavery.  But the law professoriate has yet to examine the laws of slavery with adequate detail.  With a few notable exceptions—I’m thinking in particular of Paul Finkelman and Ariela Gross—law professors have yet to properly examine slavery and all of its ramifications for the law.  In light of Eugene Genovese’s magnificent Roll, Jordan, Roll (New York: Pantheon Books, 1974), which is now quite old but which remains relevant and important to any understanding of slave laws in America, the lack of attention to slave law among legal academics is striking and even worrisome.  Why have legal academics fallen behind in this critical area, and what are they doing to make up for this lacuna in legal scholarship?

Allen Porter Mendenhall


  1. This is a very good discussion of slavery and the law. I am curious what you think of Tushnet’s original treatment of slavery and the law (The American Law of Slavery (1992)) and his new treatment (Slave Law in the American South (2003)). I remember reading his original work but have not read the more recent treatment.

    • First,let me be clear about one thing: I’m not criticizing law professors for being “behind” but celebrating their recentturn to slavery as an area of academicinterest. I will say, though, that it is interesting (if that’s the right word) that legal scholarship has arrived at this area of study only after the areabecame en vogue.

      Second,I’m not anexpert in the history ofAmericanslavery and certainly not an expert inslave laws. That’s a careful way of apologizing for not having read any of Tushnet’s work in the field EXCEPT for his treatment of State v. Mann.IsupposeI should have included Tushnet’s name alongside Finkelman and Gross. Thomas Morris, a history professor,has done great work in the field, andI think Sanford Levinson alsohas done some more-than-fleeting work here too, but I could be wrong about that. I should point out that Finkelman and Morris are trained as historians, not lawyers, and Gross is trained as both. I’m not making any particular point by stating that fact. I just find it compelling how interdisciplinary the field of slave studies–in particular those studiesdealing withslave law–is becoming.

      So that I won’t step on Patrick’stoes as he develops his bibliography, I’ll simply list the names of scholars I’ve read in the field of slavery: Winthrop Jordan, Orlando Patterson, Stanley Elkins, Peter Kolchin, Edmund Morgan, Daniel Littlefield, Ira Berlin, Peter Wood, David Brion Davis, Douglas R. Egerton,Eugene Genovese, James Oakes, Lacy K. Ford, Kenneth Stamp, William Fogel and Stanley M. Engerman (co-authors of Time on the Cross), Stephanie M. H. Camp,Diana Ramey Berry, Sylvia Frey, Stephen Deyle, Walter Johnson, Eric Williams, Ariela Gross, Paul Finkelman, Thomis Morris,andLaura F. Edwards. Certainly anyhistorian in the field would roll his or her eyes at the brevity of this list, but I’m not claiming to be an expert–just someone who is interested.

      Allen Porter Mendenhall, Esq. Ph.D. student, Auburn University LL.M. candidate, Temple University Beasley School of Law M.A., J.D., West Virginia University B.A., Furman University

      SSRN: Website: Blog: Other:

      • I replied to this comment via email–wordpess allows you to reply that way rather than visiting the site to reply–but I’ll try to avoid doing so in the future because of the bizarre question-mark icons and formatting that resulted. My apologies for that.

      • Sorry to continue on with the email/Wordpress thread, but I did notice that responding by email meant that my email signature line got included in the post. That is kind of neat. Perhaps that is one plus for responding that way rather than visiting the site and typing in the comments section.

      • Certainly not a list to roll one’s eyes at. 🙂 Very impressive in my mind. (Especially getting through Edmund Morgan). I bring up Tushnet because it seems that a few reviews of the later book had him switching course so to speak on what he thought slavery’s lessons were. As I said I have not read his latest treatment but remember a fairly critical (and unsympathetic) view of Southern Courts and their treatment of slave cases. Maybe its cause for me to go to amazon to purchase the book.

        Patrick, any thoughts here….

  2. Thanks Allen: very interesting stuff! It’s fortuitous as well as I should soon be posting my “basic bibliography” for slavery at the Ratio Juris blog.

    • I’m no expert either (alas, I’m not an expert on anything) so I consulted one for a bit of help with my bibliography: Al Brophy, and he was gracious enough to oblige. I’m most interested in the grand historical narratives (and secondarily in the ‘economics’ of slavery), like works by Robin Blackburn. I suspect both of you are far better acquainted with the bulk of the literature than I am. In fact, I’ll be checking my compilation againt titles mentioned here. And I’ll send a draft to both of you before I post in case I’ve missed material you think I should include (with the constraints of ‘books, in English’).

      Best wishes,

  3. I just realized ( as I was putting books back on my shelf) that you said Edmund Morgan (as in the quite readable American Slavery, American Freedom) and not Edmund Burke, the eighteenth century statesman. Yes, I like Edmund Morgan too. 🙂

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