Slavery & the Law

By Smith, Mark M. | The Virginia Magazine of History and Biography, Summer 1998 | Go to article overview

Slavery & the Law


Smith, Mark M., The Virginia Magazine of History and Biography


Slavery & the Law. Edited by PAUL FINKELMAN. Madison, Wis.: Madison House Publishers, Inc., 1997. viii, 465 pp. $44.95.

THIS collection of essays is a healthy reminder that historians ignore the legal system that undergirded American slavery at their peril. Begun as a symposium at the Chicago-Kent Law Review, the collection contains fourteen essays by respected legal historians and theorists. Eight of the essays are original contributions: the rest are revised versions of previously published pieces. Paul Finkelman's helpful introduction identifies American slavery as "simultaneously peculiar and prosaic" (p. 3) and suggests that legal slavery was linked inextricably to legal freedom. The collection is dedicated to exploring the workings of this ostensible paradox.

Part 1 considers theories of democracy and slavery. Derrick Bell's opening essay is frustrating. Wrongly dismissive of the considerable literature on American slavery produced in the past three decades, Bell begins with the astonishing assertion that slavery has "been systematically consigned to an era of our history that has been deemed better forgotten" (p. 30). Polemic and prolixity characterize this essay, and Bell appears comfortable in eschewing conventional standards of historical evidence. The section is redeemed by William W. Fisher III's fine essay on "Ideology and Imagery in the Law of Slavery." He demonstrates that southern ideology shaped the law and that "legal historians should not limit their attention to the material interests of the dominant classes" (p. 68).

Part 2, on "Constitutional Law and Slavery," consists of four essays. Finkelman`s piece on New Jersey and the 1793 fugitive slave law is a useful reminder that court cases and legal theory played an important role in the emergence of antislavery politics in the North. James Oliver Horton and Lois E. Horton offer thought-provoking arguments on the racial and national identity of African Americans. They chart the role of northern black youth in the formation of that identity following the passage of the 1850 Fugitive Slave Act, and they make a strong case for the "important link between free blacks and slaves" (p.

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