Hart's rules and slave codes 1

I have three ideas, all a bit rough: 

1. Hart's distinction between primary and secondary rules can shed interesting light on the question of contractual obligations within any legal system that contains slaves.
2. The two sets of rules are phase-sensitive: that is, there's a diachronic aspect that is expressible in the model theory (or at least the metalogic) of such a legal system.
3. There's some sort of metaphysical constraint on conditions of legal action that's running around the slave codes---not just the obvious one about people not being ownable, but a more secular (deontic?) one; not there yet though.

Here are some expansions. First a bit on properties (item 3), followed by a bit on phases (items 1 and 2).

The deontic problem: what is the logic of obligation in both the moral and legal contexts of principals' actions? This goes directly to the primary basis of ex persona domini obligations, since it lies at the presumptive point of hand-off.

Principals act: moral action when act has F; legal action when act has G. Feature F places an obligation on the principal, as well as corresponding obligations on others (disputant, arbiter (moral authority)). Feature G places an obligation on the principal, as well as corresponding obligations on others (disputant, arbiter (legal authority)). In both kinds of contexts, the basic condition of action is the capacity to perform an act with F (the moral condition) and with G (the legal condition).

Antebellum legal cases are problematic in an obvious way, since some nominal humans are also nominal property, and thus violate a legal exclusion: no property can do F or G, while every human can do F and G. 

The remedy sounds clear and simple. Begin by acknowledging, restoring, and protecting the F/G capacity of every nominal human---that is, take humans to be legal and moral principals---and thus achieve a legal philosophical remedy. Introduce the concept of legal personhood (or at least principal-hood), and specify the criteria for satisfying that concept. Then work on the metalogic of federal law by amending the Constitution (the equal protection and due process clauses of the Fourteenth Amendment) so as to provide regulating principles for the constitutionality of statutory law (much as the first ten amendments are). A legal logical remedy is thus achieved. Introduce satisfaction conditions for a given body of law (model theory) and specify criteria of entailment for that body of law (proof theory).

Now on phases and rules:

Primary rules of obligation, to the principal, are universally quantified and hence essentially hypothetical. The agent takes them in the imperative mood, complete with the pragmatic aspects one would expect. In this form, they can be either hypothetical or categorical, depending on their teleological character. A contract is thus possible because of the confluence in an historical setting of logical-form facts and pragmatic facts. 

Secondary rules, to the jurist, are universally quantified and hence essentially hypothetical, but they regulate the predicates occurring in the primary rules. They thus take those predicates as arguments, issuing second-order rules. Moreover, they treat primary rules as existential and thus non-hypothetical, even as they themselves are hypothetical and universal.

Legal models may thus be said to have logical phases of a sort. During the primary dominant phase (when a given rule has primary character) the model has a very weak existential load, given their hypothetical and/or categorical character. But during the secondary dominant phase the primary takes on a significant existential load, while the secondary remains only weakly existential. Models containing such rule statements will vary widely, since satisfying those rules will be highly contingent on what phase dominance is occurring when the model is captured.

This can be walked back through slave statutes. The colonial period is highly unstable with respect to obligation rule phasing, given the outsized sociological facts around slave customs and the social dimensions of race relations; it is difficult to imagine otherwise. But even with the eventual ratification of the US Constitution and the institution of a federal framework for contract law, it remains an empirical question whether the rule phasing I am describing stabilizes. And after all, an eventual civil war settled the first batch of legal questions about slaves as rule phasing sputtered along, prima facie evidence for dramatic phase instability.

(An easy and obvious speculation: the emergence of Jim Crow laws during the segregation era is evidence of persistent phase instability in American law.)