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Archive for April, 2011|Monthly archive page

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Hayek v. Keynes: The Rap Anthems

In Austrian Economics, Economics, History, Music, Rhetoric on April 29, 2011 at 1:36 pm

Allen Mendenhall

“Fear the Boom and Bust”

“Fight of the Century: Round Two”

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Outline and Summary of Thomas D. Morris, Southern Slavery and the Law: 1619-1860 (Chapel Hill and London: University of North Carolina Press, 1996).

In American History, Arts & Letters, Book Reviews, History, Jurisprudence, Law, Laws of Slavery, Legal Education & Pedagogy, Nineteenth-Century America, Politics, Slavery, Western Civilization on April 20, 2011 at 4:23 pm

Allen Mendenhall

Introduction

The introduction serves as a brief historiographical essay that situates Morris’s text alongside other prominent texts and authors in the field.  Morris uses the introduction to familiarize readers with, among other things, the differences between common law and courts of equity, the differences between civil and criminal law, and other relevant information such as the fact that statutes in England and America are mostly products of the nineteenth century.  Morris believes that slavery reinforced English racism in that the English were predisposed to view Africans as inferior and so used the law to categorize racial difference and justify slave property.  Morris suggests that experts can skip most of his introduction probably because the introduction is, as I have suggested, a piece about historiography rather than a history in itself. 

PART ONE

Sources: Racial and Legal

Chapter One: The Function of Race in Southern Slave Law

Popular science maintained that blacks were inferior, and this understanding was reflected in law.  Indians were not enslaved as often or in the same numbers as blacks.  The presumptions and definitions of “slave” had to do with blackness; therefore, the legal status of mulattoes was often in flux.  Law had to define people by race and then determine their free or slave status afterwards.  Several Southern states adopted laws allowing free blacks to sell themselves as slaves.

Chapter Two: The Sources of Southern Slave Law

Some Southern slave law derived from Roman law; some derived from English common law.  The origins of Southern slave law are traceable to at least Virginia.  The degree to which Virginia followed or revised the common law is debatable.  In early Virginia, many blacks were treated as indentured servants, not slaves.  Not until the mid-seventeenth century did blacks become routinely associated with slavery.  There is little evidence to suggest that Virginians had a sophisticated understanding of ancient Roman or other European legal traditions.  A child’s status as free or slave followed the mother under the judicial principle of partus sequitur ventrem.  The traditional common law rule was that the child’s status followed the father.  Some appellate courts tried to link their opinions to the precedents of civil law or the Roman law on slavery.  Some judges analogized slavery to English villenage.  The roots of slavery in Hebraic tradition and Biblical literature had an enormous influence among nineteenth-century Southern whites. Read the rest of this entry »

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Law and the Ordinary, by Alexandre Lefebvre

In Arts & Letters, Communication, Jurisprudence, Law-and-Literature, Literary Theory & Criticism, News and Current Events, Politics, Rhetoric, Rhetoric & Communication, Writing on April 13, 2011 at 10:32 pm

Allen Mendenhall

One of my favorite journals, Telos, has published an essay that might interest readers of this site.  The essay, by Alexandre Lefebvre, is titled “Law and the Ordinary: Hart, Wittgenstein, Jurisprudence.”  Here is the abstract:

This essay argues that H. L. A. Hart’s concept of jurisprudence in the first chapter of The Concept of Law is strongly influenced by the relationship that Wittgenstein establishes between ordinary and metaphysical language. The article is divided into three sections. The first section shows how jurisprudence emerges as a denial of ordinary language in its pursuit of a definition of law. The second section traces Hart’s use of ordinary language to identify idleness or emptiness in jurisprudence. The third section presents Hart’s conception of his work as therapeutic in its attempt to lead jurisprudence back to the everyday.

Telos is one of the few literary-theoretical journals that regularly challenges the critical and political orthodoxy that pits itself, ironically, as the unorthodox, progressive, or transgressive.

Indeed, Telos seriously considers repressed, unpopular, and unapproved thoughts and theories. It complicates “conservative” and “liberal” as meaningful categories of discourse.

Having published such controversial authors as Paul Gottfried, Clyde Wilson, Alain de Benoist and others who situate themselves on the right-wing of the political spectrum, Telos is committed to contemplation and speculation, to profound and difficult ideas and not fashionable or typical recitations of mainstream opinions.

The journal has a long history of interrogating and revising critical theory and critiquing culture and society, and it continues to publish notable scholarship in traditions both left and right, although the signifiers left and right are not useful starting points from which to analyze anything that appears in this journal.

Paul Piconne was the founder and long-term editor of Telos.  Piconne died in 2004.  Today the editor is Russell A. Berman.  The only publication as daring and interesting as Telos is Counterpunch, a political newsletter and not an academic journal.  I urge readers of this site to read both Telos and Counterpunch as often and as closely as possible.

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Outline and Summary of Walter Johnson’s Soul by Soul: Life Inside the Antebellum Slave Market (Cambridge, Massachusetts and London, England: Harvard University Press, 1999)

In American History, Arts & Letters, Book Reviews, History, Nineteenth-Century America, Politics, Rhetoric, Slavery on April 9, 2011 at 4:01 pm

Allen Mendenhall

Introduction

The focus of this book is on nineteenth-century New Orleans and the slave market that emerged then and there.  More than other workings of slavery, slave markets reduced humans to commodities with prices.  In particular, this book is interested in the story of slave showrooms, which held up to 100 slaves and where appraisals, accountings, back-room dealings, and other activities took place.  The book attributes the slave trade to mercantilism whereby colonial imports serviced and stocked metropolitan centers and generated profits secured for both state-sponsored companies and the monopoly-granting state itself.  Companies with well-connected leaders and government ties could gain state privileges and favors and receive special monopoly licenses to dominate trade, first in goods such as tobacco, indigo, rice, cotton, coffee, and so on, and later in human beings.  The ban of the international slave trade in 1808 did not lead to the reduction or softening of slavery, but rather to new shapes and manifestations of slavery, especially as slave populations moved increasingly from the upper to the lower South.  The ban led, more importantly for the purposes of this book, to the domestic slave trade.  The domestic slave trade intensified during the rise of the cotton kingdom.  The price of slaves changed with the price of cotton until the 1850s.  Read the rest of this entry »

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Law Professors and Laws of Slavery

In American History, Arts & Letters, Book Reviews, History, Nineteenth-Century America, Politics, Slavery, The Literary Table, Western Civilization on April 4, 2011 at 3:44 pm

Allen Mendenhall

This post was first published over at The Literary Table.  I have reposted here because the content of the post relates to many recent posts on this site.

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.  Read the rest of this entry »

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Law & Literature: A Basic Bibliography

In American History, Arts & Letters, Law-and-Literature, Legal Education & Pedagogy, Literary Theory & Criticism, Nineteenth-Century America, Novels, Pedagogy, Politics, Rhetoric, Rhetoric & Communication, Semiotics, Slavery, The Literary Table, The Supreme Court, Western Civilization on April 2, 2011 at 9:16 pm

Patrick S. O’Donnell compiled this bibliography in 2010.  He teaches philosophy at Santa Barbara City College in California.  This bibliography first appeared over at The Literary Table. 

Amsterdam, Anthony G. and Jerome Bruner. Minding the Law. Cambridge, MA: Harvard University Press, 2000.

Atkinson, Logan and Diana Majury, eds. Law, Mystery, and the Humanities: Collected Essays. Toronto: University of Toronto Press, 2008.

Ball, Milner S. The Word and the Law. Chicago, IL: University of Chicago Press, 1993.

Bergman, Paul and Michael Asimow. Reel Justice: The Courtroom Goes to the Movies.  Kansas  City, MO: Andrew McMeels Publ., revised ed., 2006.

Best, Stephen M. The Fugitive’s Properties: Law and the Poetics of Possession. Chicago, IL: University of Chicago Press, 2004.

Binder, Guyora and Robert Weisburg. Literary Criticisms of Law. Princeton, NJ: Princeton University Press, 2000.

Biressi, Anita. Crime, Fear and the Law in True Crime Stories. New York: Palgrave, 2001.

Black, David A. Law in Film: Resonance and Representation. Urbana, IL: University of Illinois Press, 1999.

Brooks, Peter. Troubling Confessions: Speaking Guilt in Law and Literature. Chicago, IL: University of  Chicago Press, 2001.

Brooks, Peter and Paul Gewirtz, eds. Law’s Stories: Narrative and Rhetoric in the Law. New Haven, CT: Yale University Press, 1998 ed. Read the rest of this entry »