The Somerset case 1772

Re: Somerset v. Stewart, Lofft 1, 98 E.R. 499 (1772).

Some quick readings about conceptions of law at work in the case:

Lawyer Alleyne for Somerset (a slave): slavery is not natural, but "municipal" (conventional); so, slavery cannot cross municipal boundaries (since conventions change from one municipality to another). This seems a perfectly fair conceptual point about the concept of slavery, though it's unclear to me what conception of law is at work; it seems compatible with both conventionalism and pragmatism.

Lawyer Wallace for Stewart (a slave owner): claims there is no law against, and so (given the acceptance of villenage, a sort of share-cropping in feudal times--not nice) there is no case against slavery. This reads pretty straightforwardly as soft conventionalism. 'Soft' because they are prepared to accept the existence of a supporting right even in the absence of positive law.  

Mansfield for the Court: since there is no English positive law on the matter, he reasons that there is no case for holding Somerset in slavery. (Strict conventionalist reasoning.) He considers, but ultimately sets aside, pragmatic considerations about cost and consequence of slavery. He does have a plain fact-y moment where he refers to the law as such.

Hart's rules and slave codes 2

Let me add to the sketch from my previous post. 

Primary rules (obligations): here are three--

[1] Principal's rule-- 

• If the price is P then Q; otherwise not-Q 
• [gloss: first-order universally quantified, conditional mood; Q is an agent action]

[2] Agent's rule-- 

• If the price is P do Q; else not-Q 
• [gloss: first-order universally quantified, imperative mood; Q is a state]

[3] Slave statutory rule-- 

• If any slave shall strike any white person then R 
• [gloss: first-order universally quantified, general conditional; R is a court officer's action]

Secondary rules (regulations): here is one--

[4] Slave statutory recognition rule-- 

• Premise 1: If "If any slave shall strike any white person then R" is S then T 
• [premise 1 gloss: second-order universally quantified, general conditional; S is a recognition-mark, T is a recognition-act]
• Premise 2: "If any slave shall strike any white person then R" is S
• [premise 2 gloss: predication]
• Therefore: T
• [conclusion gloss: assertion]
• [argument gloss: modus ponens]

Comment 1. Recognition-mark S is a unifier and rationalizer of the legal system in which it is a part. As Hart points out, such marks are what make a set of statutes not merely a set of primary rules but an actual legal system.

Comment 2. Is there any way to examine S? Yes and no. It can be examined by a Hart-style secondary rule of change (legislative review and repeal) or a Hart-style secondary rule of adjudication (judicial review). But there are two issues. First, any such review process runs the risk of reproducing whatever social pressures led to the recognition pressure in the first place. If primary obligations about how to control slaves were a product of custom and prejudice, lawmakers may very well be responding to those same customs and prejudice. What would prevent that from occurring? And second, the recognition rule, according to Hart, is both supreme and ultimate---there is none higher, and no other steps follow it. Unless there's a federal authority. Such an authority (its constitution, actually) would serve as an a priori constraint on S. But in the colonial era that authority is remote. And even if such an authority exists (as of course it does post-1789) what ensures that it will be shielded from those pressures? (The classic answer is the Bill of Rights; is that sufficient?)

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.)

Holmes on agency and contract 1891 5

The Hobbes/Holmes issues remain at the center of my thinking about contractual obligation. The Leviathan passage (chapter 16) is surprisingly complicating: while the master-family relation is surely natural, if anything is, and the agent negotiating the contract on the author's behalf is surely conventional, if anything is, the question arises whether the master-slave relation is natural or conventional. 

It is theoretically unstable at best, given the children-madmen-fools reasoning, since no slave is by that fact incapacitated, not even transiently so. Children pass through developmental phases, madmen are presumably seized from time to time by their madness, and fools are prone to folly qua fools (whatever that means). But it is not obvious what to infer from the slave condition as such vis-a-vis the master relation. 

Some slaves are fathered by their masters; some slaves are raised as children (in some sense) in the household with members of the master's family; many, most perhaps, will have given their labor to help make and sustain those intimate living arrangements that constitute the life of the master's family. Though there is theft, rape, and enslavement at the basis of all of this---all unconscionable and terrible, to be sure---it is still a kind of natural relation (in the sense of being extra-institutional). 

So the question for the Hobbesian account: is the slave a pre-condition for the institutional arrangement that is then codified? Or is the slave a consequence of the domestic arrangement that is then codified?

Slave code sources 1

A short reading list on slave codes.

[1] Ingersoll, Thomas N. 1995. Slave codes and judicial practice in New Orleans, 1718–1807. 13 Law & Hist. Rev. 23. 

[2] Thompson, Joseph Conan. 1993. Toward a more humane oppression: Florida's slave codes, 1821-1861. 71 Flor. Hist. Q. 324.

[3] Schnapper, Eric. 1983. Perpetuation of past discrimination. 96 Harv. L. Rev. 828.

[4] Tahmassebi, Stefan B. 1991-1992. Gun control and racism. 2 Geo. Mason U. C.R. L.J. 67.

[5] Nicholson, Bradley J. 1994. Legal borrowing and the origins of slave law in the British colonies. 38 Am. J. Legal Hist. 38.

[6] Mills, Michael P. 2001-2002. Slave law in Mississippi from 1817-1861: Constitutions, codes and cases. 71 Miss. L.J. 153.

[7] Flanigan, Daniel J. 1974. Criminal procedure in slave trials in the antebellum South. 40 J. Southern Hist. 537.

[8] Watson, Larry Darnell. 1980. The quest for order: Enforcing slave codes in revolutionary South Carolina, 1760-1800. PhD diss., U. South Carolina.

[9] Wiecek, William M. 1977. The statutory law of slavery and race in the thirteen mainland colonies of British America. 34 William and Mary Q., Third Series, 258.

[10] Morris, Richard B. 1954. The measure of bondage in the slave states. 41 Miss. Valley Hist. Rev. 219.

[11] Fede, Andrew. 1984. Toward a solution of the slave law dilemma: A critique of Tushnet's "The American Law of Slavery." 2 Law Hist. Rev. 301. 

[12] Blanck, Emily. 2002. Seventeen eighty-three: The turning point in the law of slavery and freedom in Massachusetts. 75 New Engl. Q. 24.

[13] Bush, Jonathan A. 1993. Free to enslave: The foundations of colonial American slave law. 5 Yale J.L. & Human. 417.

Thrasymachus and the slave codes 2

Continuing in a hypothetical mode in reading slave codes, thinking about Thrasymachus, and turning to justice questions...

How can justice-is-the-might-of-the-stronger be made intelligible? Especially if you think, as I do, that Socrates is right, and that he is a champion of reason, and he is not an asshole or thinks slaves ought to be subjugated, or anything like that. But you can see Thrasymachus' view as being a heroic defender of the underdog if you regard the slave as a kind of powerful figure. The slave is not the victim of power but the possessor of power. Clearly the slave codes are written to counterbalance the slave's power, after all. You don't fear something unless it has power. And if nothing else, the slave has the power to provoke fear. But the slave also has power to create mischief. A slave revolt is at least that. A kind of terrorizing power. Of course it could be more than that if the slave can set fires and commit murder, all of which certainly happened during uprisings.

So in that sense Thrasymachus' position can be understood more sympathetically. If the power of the stronger is de facto, then in a slave-owning society the owner has it because they control the whereabouts of the slave. The legislator has it---in a way---but that would be de jure; I suppose the same is true of the sheriff. The slave has it because of the nature of the threats they pose.

One can read Thrasymachus as saying that whoever actually has the power ought to retain that power, and that that is how we decide what is just. It's them carrying out the dictates of their power---essentially, whatever their whims are. A tyrannical theory of justice. But you can regard Thrasymachus as endorsing the efforts to unseat power, and thus endorse the power that the weaker have to overthrow the stronger. It sounds contradictory---I guess it is---better to think of the weak force as still being a kind of force, and that in the struggle it becomes strong (or at least stronger) and that would be the fulfillment of justice. We can think of this as a kind of Thrasymachus-ish theory of justice as applied to the Negro slave as endorsing the effort to unseat power and replace it with their own power. If that's a consistent reading we can take Thrasymachus as endorsing slave revolts. And isn't this after all some of the early Hobbes? Maybe Foucault as well. Thrasymachus (and Plato) predate(s) both, of course. 

But if that is what justice demands---the rising up of the weak over the strong so as to become strong? Then I think it's kind of interesting. The chief complaint, though, would be the complaints that Socrates actually has. 

He has two kinds: the first is conceptual, that the concept of justice precludes any concept of de facto strength, let alone the efforts to achieve de facto strength. So the doctor is never acting to make themselves advantaged, but is always acting on behalf of the patient. That after all is the function of a doctor---same thing. 

The other kind of complaint is something like, if you make justice parasitic on de facto strength, then you are (in a sense) limiting justice to what the strong can achieve. (Is this in Book 1? I'm not sure.) So not only are you running afoul of the concept of justice, but you're also shortening justice. So if the slave revolts, and takes over the municipality (?) in which the plantation is located, would we say of that that that is justice? But then you have the problem, that that is only as good as the revolting slaves' ability to hold the fort. In a sense justice would be achieved only to the extent that the slaves could withstand whatever counter-revolt efforts occurred. 

Whereas on the kind of view that Socrates endorsed there would be some sort of appeals process. If justice has been flouted, then there would be an appeal one could make. This is the modern understanding of justice. You can make a case to a higher body and they could rule on the merits, and so on. But justice-as-strength does not account for that. 

But I'm not now sure that Socrates makes anything like this sort of objection in Book 1. It sounds more Kantian actually. But I can't imagine that Socrates does not have something like this in mind. Thrasymachus could respond to this last kind of objection and say that if you understand the legislator as having a kind of strength (as in the strength of a ruler) then the goal of a successful, full uprising by a slave not just to have sufficient guns and firepower to shoot anyone who comes close by the plantation, and thus achieving justice by securing the plantation due to the force of the weapons being used, but it would also be to take over the state house, and becoming a legislator---in a sense, becoming a tyrant. And who is above a tyrant? You can say whatever you like about courts and due process of law and all that, but in a tyrant state, those institutions (and everything else) will serve the tyrant. And so the ultimate justice would be to become the tyrant, rather than being able to bring a case to court. (I remain unsure whether Socrates makes this kind of point.) But if this complaint were made, I imagine Thrasymachus could make the kind of point like I just described. 

Thrasymachus as justice theorist for the slave: once you pose the question this way, then the Socratic line of reasoning becomes kind of irritating. Because what he is doing is he is presenting obstacles to the success of the one you are rooting for. And every modern reader is going to know how the story ends. 

Thrasymachus and the slave codes 1

Let me take a brief left turn (in the sense of the "lefty" natural law theorist in the legal-theoretic discussion of slave codes). I'll revisit a bit of Plato's Republic, book 1, especially the exchanges between Socrates and his sophistic nemesis Thrasymachus, the relativist who holds so untenably that justice is the power of the stronger. In a later post I'll tie this back to the "right-wing-ish" legal realist Holmes and Hart. (Of course I mean all of this playfully...) 

I'm also writing in a more speculative mode. I believe in philosophy (as in law) that data should always lead, and theory should always follow. I don't yet have all the data, though. So let's call these hypotheses.

What strength or power does the "Negro" slave have? (I use the term of the American colonial period.) Put crudely, the Negro slave is a kind of beast to be controlled. Slave codes were clearly intended to cause the threat posed by the slave to diminish. If the Negro is thus understood animalistically, then, rather than being a full-on, full-blown author of action, the Negro is an object to be figured out and controlled. The Negro thus becomes an object of the law only when their owner cannot fully control them.

So, the Negro becomes dangerous, and because of that the law has to step in. Otherwise the law defers to the owner's attempts to control them. The slave codes thus describe the limits of slave punishment and handling, understood as reaching past the legitimate efforts an owner might expend. The slave is thus a beast, but that beast-character does not obliterate all limits of actions brought against them. The slave is thus like the horse, plus something: a restricted sort of actor, and the law makes room for that. 

Interestingly though, the Negro only becomes a problem for the law when there is a disruption, and the threat to social order that may result. So there is no issue apart from threat. In a way, there is no description of a normal life that concerns the law. So the property owner can come under law (some sort of regulatory regime) in virtue of making contracts, and the assumption of liability that results. In this regulatory role the law enters everyday life, not just when there is a violation or threat. Everyone thus has the expectation that a contract will be honored. The ordinary business of life here described and protected is something like what Hart has in mind in his notion of primary rules of obligation.

But in the slave case all of that is absent---or at least distorted. The slave is understood as a threat, as a creature capable of posing a threat, like a potentially threatening animal. And yet not too wild an animal. No one in the discussion believes that the Negro is an animal entirely, but that they are a chimera: half-animal, half-human. This theoretical confusion is of course expressed in the reasoning of lawmakers. Once you have this kind of chimerical existence, you get all of the other crazy-ass stuff.

Thrasymachus gets interesting here. Using a different sort of lens than is usually used, he may be seen as a heroic philosopher who models and champions the force of the brute as the basis of justice. Perhaps he may be read consistently this way, and so provide a way to understand the slave as legal actor. (Socrates certainly did not see him this way: he excludes Thrasymachus from the dialectic of reasoning, or at least engages him only problematically. No Socratic is going to like the move I'm toying with here.)

Every philosopher who studies the Republic thinks of Socrates as the heroic figure in the dialogue. I am no exception. But reading Book 1 as a kind of vilification of Thrasymachus and his view, and then trying to resuscitate his view---or at least gloss it in such a way that the view can be regarded as heroic from the standpoint of the slave is kind of interesting. All of the energy he puts into his view, all of the off-stage stuff, the stage direction let us call it, all of the philosophers who read it will ignore to focus on the reasoning part. But the stage direction is revealing. It is clear that Plato is trying to make Thrasymachus out to be some sort of beast, not unlike the role the Negro plays in the colonial period of the American enlightenment. The beast, slightly out of control, a sense of threat and danger. The wild man, undermining the project of elenchus, thwarting the march of reason toward truth. One cannot engage in the logical pursuit of truth, since one has to suspect that Thrasymachus is undermining that. And he even seems to say as much: "okay, have your little feast, Socrates, whatever you say. You've won, even though I don't really believe that you've won.'' He is the wild beast who cannot be reasoned with---it can be soothed, but cannot be shown the truth, cannot be part of the pursuit of truth. The more forceful character wins because they shut down the opposition. 

If Thrasymachus is the hero, the reader has a conflict, because Socrates---the voice of reason---is trying to shut down the hero.

(I guess I'm being a bit rhetorical as well as hypothetical.)

But then this becomes instructive in trying to study the colonial slave codes. Any modern reader will read the codes as the quasi-rational approach of superior force---a stronger force---trying to put down the character you are really rooting for, the slave. No one is going to read the slave codes and think, yeah, that's a good idea. Something that, if a white person did it, they would do a little time in prison, whereas if a black person does that same thing they would be sentenced to death, a distinction written directly in the penal code. Of course not. 

So reading Thrasymachus this way is like reading the slave codes. How it is for the slave in the cold hard light of rational law as one squirms and shudders. 

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.)

Discourse like a slave narrative

“...reveal in this discourse what paths I have followed, and to represent my life as if in a picture...”

I think the Discourse reads like a slave narrative: early greatness and privilege, followed by life as a lost soul, adrift in confusion and sin, in captivity. Then all at once, perhaps through an intervention by a helpful benefactor, or the wily plan of a fellow slave, or whatever—and that heralded by a supernatural vision or dream—freedom, truth, enlightenment.

An interesting read: D’s Discourse and Douglass’s Narrative.