29 January 2014

Could slaves be legal agents?

About the most depressing topic in legal theory is slave law.

There must have been legal principles at work as the various American colonies and states wrote laws to regulate their slave populations; if there were principles, there is work for philosophers and logicians to do. I find it an obnoxious and disagreeable thing to think about, and I think it's a permanent, weird stain on the body of law we rightly admire otherwise. But somebody's got to figure it out. It might as well be me--and those of you who've wandered by.

Let me carve out some space for a question.

Did the slave codes see the Negro slave as a legal agent for their master (in the contract-law sense of representative agent)? I'm reminded of an Oliver Wendell Holmes discussion (1891) about agency and contracts as deriving from masters who commission their slaves to act on their behalf, and the thicket of obligations resulting therefrom. It's intriguing to think that so central a tenet of both common law and American law arose from Roman slavery. I wonder how that walks back to American slave law.

There are empirical aspects to that question: What actual legal protections were guaranteed in slave codes? And what protections from masters were guaranteed? (...thereby raising the weird but intriguing question: how did slave-era law seek to protect slaves?)

There's a counterfactual-ish follow-on question as well: Could a Negro slave be a legal principal (in the contract-law sense of one who empowers a representative)? That is, if a slave could be an extension of their master's power as a representative, could they reciprocate? Or perhaps pass responsibility down the chain a bit? Could they delegate another? And if so, do they as an author of obligation have a presence in the law as such?

On the other hand, if they can't be principal, but agent only, is that a stable legal concept? If an entity cannot be the author of such a power, does that not imply that they cannot be the one on whom such power is conferred? What faculty do they lack such that they cannot be principal, and how is it that that lack doesn't thereby ill-suit them for agency altogether?

Here's a clearly philosophical aspect to the Negro-as-legal-agent question: Can the legal protections afforded slaves be understood using other legal frameworks (for example, property law as opposed to contract law)? How should we decide which conceptual framework to use?

A perfectly parallel question can be posed, but focused on Negro-as-criminal-menace instead: Did the slave codes see the Negro slave as a criminal menace to their master?

Empirical aspects: What restrictions were placed on Negro slaves? What slave-to-slave constraints were instituted (that is, constraints on socializing among blacks of different status--free, slave)?

Counterfactual-ish follow-on: Could a Negro slave be a crime victim? If not, why not? Surely someone who can be criminal is capable of the responsibility to follow the law; they are criminal only if they fail to do so. But if they cannot assume responsibility, and so must always be viewed as the ward of another (say, their master), and so cannot be treated legally as one whose property has been stolen, or who has been illegitimately subject to bodily harm, etc., how then could they be treated as criminal at all?

And a philosophical aspect: Can the legal restrictions be understood using other legal frameworks (for example, piracy law, terrorism statutes, property and vandalism statutes)? Is there a way to understand the restrictions in terms of contract law? What would guide the choice of conceptual framework?

(Will Holmes as legal pragmatist be able to help us here? Will Hart and the positivists? Don't know. Doubtful right now, though. Jurists and positivists hate this kind of question.)

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