Law & Literature
ISSN: 1535-685X (Print) 1541-2601 (Online) Journal homepage: https://www.tandfonline.com/loi/rlal20
Slavery as Contract: Betty's Case and the Question
of Freedom
Sora Han
To cite this article: Sora Han (2015) Slavery as Contract: Betty's�Case and the Question of
Freedom, Law & Literature, 27:3, 395-416, DOI: 10.1080/1535685X.2015.1058621
To link to this article: https://doi.org/10.1080/1535685X.2015.1058621
Published online: 05 Nov 2015.
Submit your article to this journal
Article views: 614
View related articles
View Crossmark data
Citing articles: 22 View citing articles
Full Terms & Conditions of access and use can be found at
https://www.tandfonline.com/action/journalInformation?journalCode=rlal20
LAW & LITERATURE VOLUME 27 NUMBER 3
Slavery as Contract: Betty’s Case and the
Question of Freedom
Sora Han
Abstract, This article offers a theoretical reading of the 1857 freedom suit,
Betty’s Case, wherein a slave woman, Betty, declared free by Chief Justice Lemuel
Shaw of the Massachusetts Supreme Court, returned to Tennessee with her
owners. Based on the case’s enduring question of whether the freedom to contract should include the freedom to be a slave, the article argues that this question is foundational for the ever-present jurisprudential problem of negotiating
the empirical development of the idea of free will with the transcendental right
of freedom in modern contract law. This deeper understanding of slavery as contract deconstructs and builds on critical legal studies of slavery that have largely
focused on the legal constitution of the slave as property.
Keywords, Slavery, race, contract, property, cultural criticism,
American legal history, African
American studies, critical race
theory, performativity
There is no up from slavery.
(Anthony Farley1)
INTRODUCTION
In 1857, Chief Justice Lemuel Shaw of the Supreme Court of Massachusetts
declared Betty to be free. Betty, a slave woman, had been brought from Tennessee
into Massachusetts by her owners, the Sweets and by virtue of their travel and stay
in Massachusetts, the Sweets’ relation with Betty had been legally converted from
one of enslavement to one of labor.It was within this latter context that Shaw determined Betty to be a contractual agent with free will. This case, driven in its ruling
and circumstances by a question about the legal personality of a slave, would come
to be called Betty’s Case.2
Shaw’s ruling was not unusual, as exploiting the natural law of emancipation
had become a common legal strategy for abolitionists in the northern states. However, emancipation as a formal legal procedure was dependent on the jurisdiction of
free state courts, or the benevolence of southern masters. As a legal strategy, then,
emancipation presented little challenge to the general political climate of the time.
Law & Literature, vol. 27, issue 3, pp. 395 416. issn 1535-685X, electronic issn 1541-2601.
© 2015 by The Cardozo School of Law of Yeshiva University. All rights reserved.
http://dx.doi.org/10.1080/1535685X.2015.1058621.
395
LAW & LITERATURE VOLUME 27 NUMBER 3
Just eight months prior to Betty’s Case, the Supreme Court reasoned in Dred Scott
v. Sandford that various state laws recognizing black persons as free did not constitute evidence of their fitness for national citizenship.3
Despite the anemic legal effects of emancipation on transforming the American
law of slavery, Betty’s Case is particularly interesting for the question of freedom it
raises. As matter of the legal issue of contract at the heart of the case, the law recognized Betty’s free will. But as a matter of the facts surrounding the case, Betty curiously, even unthinkably, asserted and exceeded this legal freedom. For, against the
disapprobation and outright hostility of the abolitionists who had successfully
brought the case before Shaw in her name, and immediately after Shaw’s declaration of her freedom, Betty decided to return to Tennessee with her owners. In Betty’s
Case we find the crucible of mounting national tensions around the issue of slavery,
the particular legal issues of contract and property at stake for the parties involved
in the case, and the scandal of Betty’s decision to return to slavery.
The scandal of Betty’s decision to return to Tennessee continues to be the occasion for retrieving Betty’s Case from an American legal archive with far more doctrinally significant rulings on the status of the slave. And yet, it is precisely because
of a certain unthinkability as to Betty’s enactment of legal freedom that the case
rises to the surface of the American legal archive to be read and heard again. This
occasion is made even more compelling because of the fact that the case was never
officially recorded.4 By every measure, this is a marginal case, even as it has been
discussed as an example of the agency of the female slave to negotiate a personal
domain of autonomy within conditions of legal and social subjection.5
It certainly is possible to understand Betty’s act as the performance of some
nominal form of personal autonomy exercised against the slave’s legal status as
property. In other words, it is reasonable to read Betty’s Case as evidence of slave
resistance to, or incomplete domination by, the legal enforcement of the slave’s
property status. But this reading assumes a tension between the law’s recognition
of Betty as a contractual agent (in Massachusetts) and as an object of property (in
Tennessee). It also assumes a tension between contract law as a mode of subjection
through consent and property law as a mode of subjection through possession.
Against such an average reading, what I hope to show in the following presentation of Betty’s Case is that today’s property understanding of slavery, through the
imputation of a categorical difference between property and contract law, is a theoretical and historical assumption without moor and limits our ongoing efforts to
innovate radical critiques of race, violence and freedom. We have only to note
recent critical historical studies of slavery documenting that slaves did make
contracts, and free blacks lived constantly under the threat of recapture and sale
back into to slavery.6 In sum, racial slavery included contracting propertized
subjects; and concurrently, legal freedom included repossession of contractual
subjects.
396
HAN SLAVERY AS CONTRACT
Specifically regarding Betty’s Case, it is clear that Betty represents not simply
an exception to this more nuanced historical scene of slavery, but marks the presence of a legal personality that decomposes the very distinction between racial slavery and legal freedom. Thus approaching the case as if Betty exercised some
nominal personal autonomy over her legal status occludes the material circumstances of the case. It is pure projection to regard Betty as if she was a proper plaintiff to
this case, for she plainly was not: the claim to enforce or nullify Betty’s presumed
labor contract with the Sweets was made on Betty’s behalf by local abolitionist
groups. Indeed, Betty was compelled before the court by writ of habeas corpus. The
case materialized not by Betty’s own efforts or will to claim freedom, but is itself a
sign of a constitutive coercion to appear before the law. At the same time, all we can
glean from the legal archive is that Betty neither exercised rights entitled to her by
contract law, nor did nothing with the freedom of contract given to her.
What if, in our attempt to understand the resonance of this case, the enigmatic
outline of the legal personality of the slave, appearing as Betty, was not reduced to
any one type of legal relation in advance? How might we think this enigma through
the language of modern American jurisprudence, while at the same time retaining
the uniqueness of its imprint on the legal archive?7 If it is Betty’s Case, more
than any other case, that marks the American legal archive with a material question about slavery and freedom, how does something like resistance take form
within the specific confines of the law’s language of contract? Exactly what form of
“resistance” takes shape at this singular instance where a name, “Betty,” appears
as a sign of free will, and as the name, Betty’s Case, of a form of decision at the limit
of the law’s idea of freedom? Is it even adequate to call this “resistance”? Why should
we not call it “freedom,” as Betty neither accepts nor rejects this declaration made
about and for her by the law, and also commits an act in relationship to it?
BETTY’S ACT
The legal issue in Betty’s Case concerned whether the Sweets were detaining Betty
against her will, who held as a slave in Tennessee had become free in Massachusetts by the dictates of natural law. Specifically, as the antislavery activists claimed
in their habeas corpus petition compelling Betty and the Sweets before the court,
Betty was being held to a labor contract under duress, and thus, they argued that
the contract must be invalidated and Betty released from it. In order to resolve this
legal issue, Shaw needed to determine whether Betty was a contractual party by
duress or consent.
And so Shaw set out to personally interview Betty in his closed chambers. He
explained this procedure was necessary so “that there might be no restraint or
intimidation”8 from the Sweets and “all other persons.”9 By extending the private
interview as a common practice of equity courts to emancipation cases, he intended
to guard his determination of the nature of Betty’s will not only from those with an
397
LAW & LITERATURE VOLUME 27 NUMBER 3
immediate financial and personal interest in Betty’s labor, but also from those with
a political interest in using Betty’s release from the labor contract as a strategy to
emancipate her from a foreseeable future of enslavement upon the Sweets’ return
with Betty to Tennessee. His chambers served to shelter the legal determination of
Betty’s will from a tumultuous political context in which antislavery activists, starting in the 1830s, had regularly organized protests to physically obstruct judges in
the Northern states from hearing fugitive slave cases and ordering black persons
back to the Southern slave states.10
Legal historian Aviam Soifer gives us an account of Shaw’s conclusion upon
emerging from this closed meeting with Betty:
“[I]t appeared to me,” Shaw said of Betty, “that she is twenty-five
years old, intelligent and capable of judging for herself.” He also
found “that she has a husband in Tennessee and other relatives;
that she is much attached to Mr. and Mrs. Sweet; is very well
treated by them, and desires to remain and return with them, and
this desire she expressed decisively and upon repeated inquiries.”11
According to Shaw, Betty had become emancipated when the Sweets brought her
into free territory. But his judgment required him to analyze further not only
whether Betty was a slave or a free person, but also if she was a free person, what
the law required in recognition of her freedom, including her freedom to contract
with the Sweets. He went on to reason: “it was contrary to all the principles of freedom that this [Betty] or any other person should not exercise a free choice in such a
matter.”12
The “matter” at hand was Betty’s assertion during his closed interview of her
desire to return to Tennessee with the Sweets. Notably, we know from the archival
materials only what Shaw represents of Betty’s desires, and other than the fact
that Betty decided to remain with the Sweets, we do not have any unmediated reference to statements made by Betty. In the archive, Betty is mute. This is not to say
she is absent or illegible, but only to say that her act of returning to the Sweets
becomes even more crucial for understanding the significance of the case.
As Soifer duly recognizes as the assumptive logic of Shaw’s reasoning, “Rejecting
Betty’s decision to remain a slave would have denied her freedom.”13 Or to state this
more generally, legal freedom to be freedom must include an unobstructed right to
contract, including the right to contract to be a slave. The unthinkable question
Betty’s Case presents (and, again, this is not because of Shaw’s ruling, but rather
because of Betty’s act in relationship to the ruling) is whether freedom, as constituted by the law’s language of contract, must include the freedom to be a slave.
Stated another way, does freedom as understood and developed by law require an
unfettered right to contract anything and everything with anyone? Shaw reasoned
that it did. The abolitionists reasoned that it did not. But the crucial fact remains
398
HAN SLAVERY AS CONTRACT
that Betty’s act does not necessarily reflect a decision on her part that valorizes
either of these two interpretations of freedom: the force of her act that carries along
her desire and the irretrievable words through which this desire was expressed follow neither.
In 1895, the US Supreme Court would unanimously reject Shaw’s reasoning.
Justice Brewer’s opinion in Frisbie v. United States14 rejected a challenge to a
national statute regulating fees paid to agents acting on behalf of private individuals accessing government pension funds, arguing that “[i]t is within the undoubted
power of government to restrain some individuals from all contracts, as well as all
individuals from some contracts.”15 He goes on to list several types of government
restraint on the “freedom of contract” including restraint on all purchase or sale
of lottery tickets, or the minor’s acceptance of obligations, or the transporter’s
requirement releasing it from any negligence, or, interestingly, for our purposes,
“all engaged in any employment from any contract in the course of that employment
which is against public policy.”16 The justification for limiting the freedom of contract, we find, is the government’s obligation to regulate contractual relations
“against public policy.”
Frisbie’s reasoning obviously reflects the political sentiments of the Progressive
Era, in which a burgeoning national middle class successfully advocated for government intervention in the private sector precisely to ensure competition and enterprise. Further, Frisbie’s public policy limit does not introduce a clear standard for
the exercise of government authority over the freedom of contract, and only further
expands the law’s interpretive powers over the meaning of “public policy.” Still, we
find here the law’s recognition of a political need to regulate the freedom of contract
in the commercial realm. Notably, this regulatory boundary can be read also to
structure contemporary terms of debate about neoliberalism wherein the legal validation of commercial exchange and contracting the scene depicted in Frisbie’s list
of particulars
is either celebrated (by the political right) or bemoaned (by the
political left) as a normative metaphor for resolving social conflicts.
Yet, beyond Frisbie’s liberal reasoning justifying government intervention in the
commercial realm, it runs into trouble. For if it provides a reason (“public policy”)
for regulating the commercial realm (irrespective of whether one is ultimately convinced of this reason or not), it does not provide a reason as to why this curtailed
commercial realm does not also curtail the right to freedom of contract. It only offers
this flat assertion: “The possession of this power by government in no manner conflicts with the proposition that, generally speaking, every citizen has a right freely
to contract for the price of his labor, services, or property.”17 Here Frisbie appears
to want to have its cake and eat it too by initially imposing public policy matters
onto the private commercial realm, and then by “generally speaking,” affirming the
inviolability of the right to freedom of contract.
How does government authority not “contradict” this right? As a matter of logic,
it cannot. There is, in both Betty’s Case and Frisbie, a curious impasse in the
399
LAW & LITERATURE VOLUME 27 NUMBER 3
development of contract law that cannot establish a clear line of integration
between an empirical realm of law’s regulatory power over exercises of individual
free will and an absolute right of individual free will. On the one hand, there is the
necessarily enclosed development of legal principles in social reality; on the other,
there is an a priori right of freedom of contract that must protect itself from the singularity of the individual in order to hold out the promise of freedom.
But as a matter of language, government authority can indeed not contradict the
absolute right of individual free will. Frisbie and Betty’s Case, each in their own
turn, differently overcome this logical challenge: the former by “generally speaking”; and the latter by hypothetically yoking the slave to the legal idea of universal
free will. The sovereign regulatory power of the state and the sovereign freedom of
the individual do not contradict each other because the two types of sovereignty
occupy two different planes of legal language that are broached by generic speech
and hypothetical example. In short, two literary forms of abstraction in legal reasoning protect the absolute right of individual free will from within the language of
contract law. This might seem like an obvious uncritical statement about legal formalism. However, as we will see in the next section, what is not so obvious about
these forms of abstraction is precisely their ideality as a material structure of law
that Betty’s Case reveals because Betty’s act carries with it the force of a singular
event that disperses like an echo across an interminable determination of freedom.
This internally divided language of contract law is variously staged as an aporetic problem of freedom as both contract and absolute right. In that moment of
“generally speaking,” the law cannot reason its way from the sphere of calculation
to the sphere of foundational promise. Instead it leaps from a pragmatic application
of contract law to the social world of commercial dealings to the idea of contract law
in an abstracted world of individual freedom. I mark this aporia in order to emphasize a need to analyze more precisely the difference in legal discourses of contract
between the law’s drift toward commercialization and the law’s failed logical negotiations of this drift with an absolute right of individual free will. The fact that the
law pragmatically submits social conflicts to commercial resolution does not negate
its dependence on an absolute right of individual free will. As such, contract law
today, in practice and as conceptual metaphor for social relations, marks the law’s
impossible attempt to harmonize principles of regulated and regulatory exchange
and a categorically abstract realm of freedom.
In this precise differentiation, we should attempt to account for how personal
sovereignty, recognized by contract law in the legal personality of the individual, is
haunted materially at the level of formal legal reasoning by a notion of “free will”
that is free precisely because this freedom can be given away. Contract law itself
obliquely and explicitly acknowledges the obscenity of the formal abstractness of
freedom obliquely in Frisbie, when it recognizes the necessity of state regulatory
power over employment contracts; and explicitly in Betty’s Case, when it affirms
Betty’s free will. As two cases that bookend the Civil War and the Reconstruction
400
HAN SLAVERY AS CONTRACT
period, when the universalization of freedom of contract would become the dominant legal mode of racial subjection for freedpersons, they reveal the dependence of
the legal meaning of freedom on slavery. To be clear, this dependence is neither
instrumental nor existential. Rather, it is aporetic, meaning the singularity of the
case of the slave, internal to contract law, materializes freedom as a necessarily
transcendent right. Betty’s act within and against legal freedom is an obscene sign
of “free will” that irrupts like the Real on the development of personal sovereignty
in contract law.18
This catastrophic nuance retained by Betty’s act in the formal structure of legal
reasoning in Betty’s Case holds open the question of a subterranean realm of legal
thought about freedom that precedes property understandings of the legal personality of the slave. Betty’s act stages property freed, but so free as to be given away as
something that might arrive again as or like property. In such willful crossing of
freedom with slavery, that freedom which is given away turns out to be a complete
negation of legal freedom, with the arrival again of the slave’s question of the transcendent right to freedom of contract. To be clear on this point, the mise-en-scene of
Betty’s Case presents Betty’s free will as a predicate to her property status: Betty’s
act spectrally opens up a territory of law where the free will takes the form of giving
away or giving up on freedom. The fact that this will would be (re)owned is a contingency, while the freedom of a freedom to give away freedom is unconditional. This
is not to promote a voluntaristic theory of enslavement. Rather, it is to present a
certain rebus-like territory of law where distinctions between freedom and enslavement appear as effects of a freedom that is there in the law, but not of the law, and
thus, obscene.19
THE PRIVATE LAW OF SLAVERY
Focusing on Betty’s act, where legal freedom precedes the propertization of the
slave, is not to argue that we have been incorrect to trace the production and management of slaves through legal conceptions of property.20 It is rather to suggest
that a more fundamental legal relation contract appears through which to read
the master/slave property relation. Literary critic, Hortense Spillers observed a
problem with our treatment of slavery through the law of property this way:
Even though we tend to parody and simplify matters to behave as if
the various civil codes of the slave-holding United States were
monolithically informed, unified, and executed in their application,
or that the “code” itself is spontaneously generated in an undivided
historic moment, we read it nevertheless as exactly this the peak
points, the salient and characteristic features of a human and social
procedure that evolves over a natural historical sequence and
401
LAW & LITERATURE VOLUME 27 NUMBER 3
represents, consequently, the narrative shorthand of a transaction
that is riddled, in practice, with contradictions, accident, and
surprise.21
If statutory constructions of the slave across the states are the “peak points” of a law
of slavery, then we must be able to also read the nadir of this law, or what Spillers in
the same article references as the “oceanic”22 of this law that is “riddled, in practice,
with contradictions, accident, and surprise.” The question to be asked here is of a
peculiar transactional scene of slavery, where who and what is exchanging and
being exchanged for the promise of who or what in the future is not determined by
any law in advance.
That is, Spillers cautions that using legal definitions of the slave as property is a
“narrative shorthand” for understanding the centrality of slavery to the emergence
of the modern world, suggesting then that other legal definitions of the slave must
be explored. Christopher Tomlins’ history of the creation of what he calls an “AngloAmerican law of slavery” also warns that it is not enough to acknowledge that
“[s]laves inhabited England’s New World imaginaire from the very outset.”23 Though
this is an undertheorized historical fact, reading and analyzing how this inhabitation
took form in law is hardly transparent. Indeed, as he elaborates, the “formation of
Anglo-American slavery as an institution [required] the creation in each colony of a
legal condition of being for a particular segment of the population, qualitatively set
apart from and absolutely subordinate to all other social and legal conditions of existence […].”24 Specifically as an institution shaped by law, he encapsulates, slavery
in colonial America “began by joining within itself intellectual arguments and justifications from ius naturae and gentium with the peculiarly protean transactional
capacities and policing technologies of English common and statute law.”25
The transactional scene of slavery appears again here to stage the problem of
approaching something like the law of slavery. We are confronted by a form of legal
translation that is “riddled” because “peculiarly protean,” or “peculiarly protean”
because “riddled.” Both Spillers and Tomlins are deeply suspicious of positive laws
recognizing the slave or slavery, for a positive law of slavery by definition is the consolidation of social practices and antagonisms into what we might call the master’s
subject-matter jurisdiction over conflicts of rights between white and black claims
of possession over various forms of value inhering in the slave. But this jurisdictional consolidation is created internally, as Tomlins notes, by an aggregation and
supplementation of legal traditions and doctrines. As we saw with my framing of
Betty’s act, the aggregative effect (i.e., the yoking of the slave to the legal production
of universal free will) is precisely that: an effect. At the same time, we also saw that
this effect and how it takes place in the law’s language of contract carries with it
the aporia of a singular case that ends in an interminable determination of freedom.
This provides a point by which an aggregative approach to the law of slavery opens
402
HAN SLAVERY AS CONTRACT
up onto the presence of an as-yet latent question: what kind of law underwrites the
master’s jurisdiction in the first instance?
As I discussed earlier, Betty’s Case suggests not that contract law is one legal
mode of domination among others available to the master, but that contract is the
condition of possibility for the slave’s property status. It is not because the slave is a
priori property that the master uses contractual relations to exercise his power over
the slave; but rather, the development of legal freedom is dependent on the slave as
a passage between a fundamental split between radically heterogeneous exercises
of individual contract rights (within both public and private realms) and a transcendent idea of the free will at the heart of contract freedom. Far from valorizing transcendentalism, contract law reveals a curious moment in which the protection of
the transcendental right to freedom of contract is formally bound to the singularity
of the case of the slave. Legal freedom, on this view, is not only the operationalization of universal individual freedom; it is also a limitless horizon of the limits of contracts brought into view by a certain transcendental register the slave’s
emancipation must work through. At this register, the obscene legal effects of contracts made and broken between master and slave in both market and domestic contexts are factual predicates through which a transcendent freedom in law is
materialized. Of course, those effects give rise to relatively empowered or disempowered claims of injury. But continuing to follow Spillers and Tomlins, those positive claims are always already translations, which require literacy in more than one
idiom of representational forms if we are to mobilize them toward a knowledge of
the law of slavery.
The jurisprudential language of contract is one such idiom heretofore missing
from predominantly historical, literary, and anthropological approaches to the law
of slavery. In fact, legal philosopher and jurist, Theophilus Parsons observed something similar about the production of American law through an internal structure
of translation in his treatise, The Law of Contracts (1853).26 In the opening chapter,
which remained unchanged for the most part across the nine subsequent editions,
he observed, “The law of contract, in its widest sense, may be regarded as including
nearly all the law which regulates the relations of human life.”27 He elaborated further, “All social life presumes it, and rests upon it; for out of contracts, express or
implied, declared or understood, grow all rights, all duties, all obligations, and all
law.”28
Parsons’ idea of contract as the common denominator of legal relations and conflict is accessible from a lay understanding of the law. Without first finding some
form of contractual relation between two parties, there is no legal basis to judge a
claim, no matter what the conflict or injury is, or who or what the parties are. A natural or corporate person can sue a government entity because citizenship establishes a contractual relationship between them. One governmental agency can sue
another because federal republicanism establishes a contractual relationship
between them. A criminal defendant can sue state agencies because due process
403
LAW & LITERATURE VOLUME 27 NUMBER 3
establishes a contractual relationship between them. And an individual can sue
another individual because the social norm not to cause harm to others establishes
a contractual relationship between them. These forms of contractual relation are
variations of the social contract as a theory of modern political life, but their legal
forms (and there are many more like examples of contractual relations that we
might reference) are hardly uniform or rational as expressions of the social contract
put in action by the law’s language of contract.
Legal historian, Roy Kreitner, has described Parsons’ view of contract as an
“intermediate” stage in the modernization of contract law.29 Here, Parsons’ treatise
marks a midpoint in the development of the common law status-based approach
into the classic modern individual will-based approach to resolving contract issues.
The common law approach, exemplified in the 18th century best by Blackstone’s
Commentaries, reads contractual obligations from community standards of social
hierarchy and corresponding expectations and duties. The modern will-based
approach, emergent in Parsons’ treatise, finds contractual obligations where there
is mutual consent to obligations freely given between individuals. And to the extent
that Parsons’ treatise, according to Kreitner, exemplifies an attempt to narrate the
emergence of this will-based approach of contract law from status-based
approaches, it marks an “intermediate” point at which the universalization of the
individual from status-based social groups is as yet incomplete.
But perhaps there is a way in which we might read Parsons’ treatise not as a
stage in the teleological development of contract law, but as a fundamental articulation of an ongoing process of transplantation and supplementation of various sources of law at the core of American legal modernity. On this view, the dominance of
one theory of contract law over another signals the broaching of some internal limit
within contract law that is carried along and given new form through varying
arrangements and applications of fundamental legal concepts, such as the right to
freedom of contract we read across Betty’s Case and Frisbie. The expansive and categorically abstract idea of freedom of contract might be read, then, to have always
been the foundation for various applications of theories of contract from statusbased approaches characteristic of early modern legal regimes, to consent-based
approaches characteristic of today’s late capitalist legal regimes.
Lawrence Freidman’s unparalleled text, Contract Law in America (1965),30 can
be read to reflect this reading of Parsons. There he elaborates how the jurisprudential project of formalizing contract doctrine was at the center of modernizing
American law in Christopher Columbus Langdell’s wake, even as later scholars
have noted the particular resistance of the form of case law to formalization.31
Grant Gilmore, in his own polemical exposition of contract law, focuses on and paraphrases Friedman’s most compelling insight, which curiously echoes Parsons’ general idea:
404
HAN SLAVERY AS CONTRACT
“Pure’” contract doctrine is blind to details of subject matter and
person. It does not ask who buys and who sells, and what is bought
and sold. […] Contract law is abstraction what is left in the law
relating to agreements when all particularities of person and subject-matter are removed.
[…] The abstraction of classical contract law is not unrealistic; it is
a deliberative renunciation of the particular, a deliberate relinquishment of the temptation to restrict untrammeled individual
autonomy or the completely free market in the name of social
policy.32
Gilmore’s instructive interpretation of Friedman’s history of contract concludes that
this history is a history of a “residual” legal category, of “what is left over after all
the ‘specialized’ bodies of law have been added up.”33 Contract law is both an
abstract totality and an empirically residual legal relation, and thus any perception
of change in its substantive rules for finding an enforceable contract is only ever a
function of historically contingent inclusions and exclusions of other areas of law
from an essentially empty core.
Further, because of contract law’s essential abstractness, Gilmore observes, “it
resisted, and continues to resist, codification long after most, if not all, of the fields
of law apparently most closely related to it had passed under the statutory yoke.”34
The crystallization in the late 19th century of this legal terrain of general abstraction through the construct of individual will was nothing short of “a revolution in
private law,”35 to use Kreitner’s words. That revolution, captured by Parsons’ theory, posits a form of private law that is the ground from which social relations are
reified into specialized rights, duties, obligations and various genres of doctrine
(including administrative law, corporate law, labor law, sexual harassment law,
environmental law, animal rights law, maritime law, etc.). What is important to
emphasize here is that contract law appears as law’s glance toward that which is
anterior to socio-legality, and by this glance, we are reminded that positive law as
the spatio-temporal mapping of rules and judgments can only ever be an approximation of the totality of law.
To extend Parsons’ theory of contract from intellectual legal history to a critical
approach to legal freedom, the hybrid contract form he identified presents a conundrum: contract law’s core principle is based in a negation that rends the transcendent right of freedom of contract into the singular material form of the case of the
slave. As a philosophy intimately engaged with the law’s language of contract, it
draws attention to the formal relation between singularity and totality that contract law represents in the socio-legal operationalization of free will. Perhaps what
Spillers describes as “riddled,” or what Tomlins describes as “protean” is, in a critical approach to legal freedom, a negative form of private law that manifests in the
405
LAW & LITERATURE VOLUME 27 NUMBER 3
jurisprudential language of contract as pure abstraction and remaindered legal
relations.36
Thus, what I want to call a “private law of slavery” references both substantive
genres of positive law where the nature of the master slave relation was litigated
(for example, the law of wills and trusts, commercial law, insurance law, employment law, tort law, family law, constitutional law, etc.) and the residual cases
between these genres of positive law that were not litigated, and thus, remain as
questions for thought and of practice in law.37 The private law of slavery, if it is to
be a concept with critical possibility, must be grasped as a “residual” legal practice
that endures after all of the social (and necessarily politically contested) practices of
slavery have been institutionalized and abolished by law in various areas of property, commercial, criminal, constitutional, etc. doctrines. For these specialized legal
doctrines are cannibalized from the essentially empty core of contract in the private
law of slavery, which is always there as relatively fragile or relatively robust in the
law’s language of contract. Consequently, the slave, as an enigmatic party to various kinds of contractual relations that make up private practice, remains after the
various kinds of positive law institutionalizing slavery have been abolished.
While we are accustomed to condemning contract law as state legitimization of
social Darwinism, my reading of contract law thus far suggests a crucial point that
goes unnoticed by reductive approaches to legal discourse. This point is that legal
formalism’s dependence on contract law’s circling around a transcendent freedom is
also a dependence on the immeasurable presence of the singular case of the slave,
irrupting in the legal archive as an obscene form of freedom through which the transcendent right to freedom of contract is spectrally materialized. The problem with
legal formalism is not its indifference to the socio-legal reality of racial and sexual
violence and inequality, but its drive toward a transcendent freedom that distorts
the singularity of the case of the slave as one particular historical injury among
others.
That is, Betty’s Case is unique in the precise sense that the circumstances surrounding the case, including the circumstantiality of Betty’s act, precipitates what
literary critic, Fred Moten, calls a “transcendental clue,”38 that opens onto the private law of slavery. Perhaps it is impossible to not regard Betty’s act as anything
but a tragic act. But still, perhaps, this tragic act might be seen to bear an elegiac
decision, as a “necessary reaction to the tragic state of affairs that singularity
imposes.”39 Specifically, elegy is “the mechanism by which hopelessly fragile singularity, after the fact of the inevitable end it is and brings, is regenerated in the form
of a call to the spirit of a totality that is no longer, that has perhaps never been, one.
The elegiac response to the end that is of singularity is the invocation of totality’s
ghost.”40 A critical approach to legal freedom contained in contract law reveals
something of this totality as the cold calculus of spreading the collective cost of
social life, or as a humanist protest against the infinite designs of legal formalism.
But even more crucial than these near misses with totality, when we read Betty’s
406
HAN SLAVERY AS CONTRACT
Case as a “transcendental clue,” it invokes precisely “totality’s ghost”: the always
present (im)possibility of enacting a freedom that is also freedom’s end; a promise of
freedom that simultaneously exercises and gives away the freedom the law would
recognize in the slave but for the law’s fundamental dependence on her to continue
promising freedom.
THE FORCE OF NONPERFORMANCE
If Betty’s Case recognized Betty as party to the social contract, it is nonetheless
unclear what, if any, kind of promise Betty made to whom as an exercise of legal
freedom. The recognition of Betty’s freedom by virtue of finding in her “free will”
neither implies a mutual promissory relationship, nor the possibility of finding
some form of breach of that promissory relationship by either party. Herein lies the
ultimate stake of my reading of the private law of slavery: How, as a matter of the
law’s language, to rethink the relation between promise, breach, and freedom raised
by the slave as a figure of contract? While it is accurate that the law’s facilitation of
the historical shift from slavery to segregation worked through innovations of contractual relationships (not only of labor, but also of kinship, citizenship, and selfhood), my reading of the intellectual history of modern contract law suggests that
this legal development is symptomatic of a deeper jurisprudential problem rather
than a moment of progressive reforms to the laws of chattel slavery.
In this sense, Betty’s act faces another order of ethics what we might call an
ethics of the obscene. Her decision is neither her submission to slavery, nor her permission to the state to enforce her legal freedom. It is a remnant legal act, or an
unconditional responsibility to freedom a redoubled and redoubtable materialization of freedom that is otherwise known only in its relationship to the transcendent
right of freedom driving modern law. The decision of unconditional responsibility
shows up, at least on my reading, as a reveling in an enacted threat of a freedom
against freedom that haunts any and every promise of freedom the law both makes
and guards. Her decision is an a priori fugitivity to becoming a fugitive of the law of
slave and free states.41
The force of this fugitivity is what we might reference as blackness, a performative against all performances of freedom and unfreedom dependent on the historical
dilemma of a lack of meaningful distinction between freedom and slavery.42 The distinction here between performances of (un)freedom and a form of freedom in and as
the performative of blackness is crucial. The latter arrives at a form of freedom
dependent on, but in excess of, not only rules distributing the right to freedom of
contract (which is contract law’s primary occupation), but also, on the radical adherence of the law’s language to the transcendent idea of freedom through the case of
the slave. And while this performative is displayed in plain sight with Betty’s Case,
it is buried, but no less present, in contract law.
407
LAW & LITERATURE VOLUME 27 NUMBER 3
In what is perhaps the irony of all legal ironies raised by Betty’s Case, we find
that the formalization of what I am calling the performative of blackness is generally referred to in contract doctrine as “nonperformance.” Nonperformance in contract doctrine generally designates the failure of one party to a legally enforceable
promise to fulfill her obligation to the other party. Black’s Law Dictionary defines
nonperformance as the “the breach of a contract and the failing to carry out the
terms of the agreement.”43 Nonperformance takes many legally actionable forms,
including intentionally or unintentionally failing to keep a promise, or the judicial
disposition of the excesses of promising as either “material breach” or “gift.” Stated
another way, nonperformance claims are based both on omissions of acts expected
to fulfill a promise, and positive acts which reveal the impossibility of meeting the
expectations arising from what was a foreseeable future when the promise was
made. This scene of contract encompasses nonperforming parties performing willed
refusal, fraud, bad faith, or protest. But even more complicated than these performances, contract law also addresses nonperforming parties performing assent, good
faith, accommodation, and commitment after any practicable conditions or moral
justifications for the enforcement of the contract cease to exist by virtue of the fact
of the future’s unforeseeability.
This second form of nonperformance pokes a permanent hole in contract law’s
disciplinary function. Here perhaps is the jurisprudential analog to Spillers’ and
Tomlins’ notations of a “riddled” and “protean” law of slavery. For while we can
imagine a contract law so punitive it might manage to effectively deter intentional
breaches of contract obligations, it is harder to imagine a contract law unburdened
by nonperformance resulting from wholly unforeseeable changes in conditions that
render the expectations and enforceability of the contract impossible.
“Nonperformance” is the promise of the material threat of chance that appears
obscene only to the extent that the delusion of contract enforceability is maintained
against the totality of circumstances in any given situation. It is a futurity that is
radically indeterminable, and that is formally and uniquely structured into the temporality of the promise.44 Nonperformances of acts or intent make of contracting
parties either competitors or crooks, but the legal idea of nonperformance also
makes of the contract a way out for the contracting parties from their expectations’
hold on the future. This way out, an always present fugitivity, or the performative
of blackness as nonperformance, is the horizon of slavery as contract.
The idea of blackness as a performative in and against law then, is nonperformance, in this precise legal sense of a form of pure performativity that Moten would
call “improvisation.”45 Improvisation, notably, is that which cannot be specifically
contracted, nor performed against a contract, but is nonetheless a legal form contract law might refer to as nonperformance. We might say that improvisation is the
kernel around which contract law’s recognition of nonperformance circles, and that
which it attempts to defend the promise against.
408
HAN SLAVERY AS CONTRACT
This idea of nonperformance allows a deeper engagement with Spillers’ observation of the New World natal alienation of African captives that produces the
“property/kinless constellation” of the slave. She specifies:
In the context of the United States, we could not say that the
enslaved offspring was ‘orphaned,’ but the child does become, under
the press of a patronymic, patrifocal, patrilineal, and patriarchal
order, the man/woman on the boundary, whose human and familial
status, by the very nature of the case, had yet to be defined. I would
call this enforced state of breach another instance of vestibular
cultural formation where ‘kinship’ loses meaning, since it can be
invaded at any given and arbitrary moment by the property
relations.46
Spillers brushes up against nonperformance in contract law here in two ways.
First, the processes by which property relations “invaded” forms of black kinship
forged despite the law’s refusal to recognize and protect them occurred through
what I have called the private law of slavery. The most common example is the slave
family that is broken up by financial and disciplinary imperatives of the master to
sell away a family member. However, Spillers’ specific reference to black kinship as
an “enforced state of breach” gestures to the private law of slavery where all the conjugations of the abstract realm of contract law (what Parsons identified as “all
rights, all duties, all obligations, and all law”) could be enforced against black kinship. In this particular example, the “property relations” are invasions cum conjugations of contract: to be more precise, changes in the names of the master with
title to the exchanged slave. The invasive property relation is mere example for a
general condition of slavery as contract, which must include all variable obscene
forms of fulfilled promises. Notably, though Spillers references specifically the
“property relation” as that which interferes with otherwise established (however
precarious) legal relations of black kinship, in Betty’s Case, it is not the property
relation, but the legal freedom of contract, which invades.
Second, and the more important point for my discussion, this “enforced state of
breach” is itself a reference to contract, but by promises that are known only by
their inherent brokenness. The temporality of the promise represented by Spillers’
phrase, “enforced state of breach,” is not of future satisfaction or fulfillment foreclosed, but a condition in which compromise with any future called forth by the
promise of human kinship is impossible (which is not to say that promises of some
other kind of relation are not forged). We must retain this nuance. On my reading
of it, Spillers is not arguing that the law of property denies the slave the capacity to
promise, for some form of contractual relation (kinship) must exist to be “invaded.”
Instead, she is arguing the reality of a “state of breach,” which through its phrasing,
implicitly introduces the need for a specific understanding of the nature of the
409
LAW & LITERATURE VOLUME 27 NUMBER 3
promise, on the side of the slave, in a context where both legal unfreedom and freedom are enforcements against a radically indeterminable futurity invited by the
legal idea of nonperformance. Thus, as she states, the contractual relation of
“‘kinship’ loses meaning,” which is to say neither that whatever Betty might have
promised no longer exists, nor that the reality of unkeepable promises forecloses
the futures contained in those promises. Rather, we are on the terrain of a relationality based in an unnotarizable promissory note, already breached because unfulfillable. The performative of blackness as nonperformance opens up onto a form of
intimacy that registers only in an obscene form of consent to being bound through
such promises.47
CONCLUSIONS
Caught somewhere between positive and natural legal theories of American modern
law, slavery as a foundational national value is not ever fully present, except by a
certain opacity of rights and principles necessary for developing a legal language of
freedom within an American liberal political tradition. The natural law of freedom
is first expressed in the classic judgment of Lord Mansfield in the 1772 Somerset v.
Stewart case (issued three years before the start of the American Revolution), that
ruled that the air of England was too pure to be breathed by a slave, and that therefore a slave voluntarily brought to England from Virginia by his master immediately became free.48 Somerset would then be directly translated into the 1836 case,
Commonwealth v. Aves, also decided by Chief Justice Shaw, who declared that in
the absence of a positive law commanding slavery, natural law required that a slave
brought into Massachusetts’s free territory would become free.49 However, and as
many of the judges of free states like Shaw would acknowledge, this natural law of
freedom would inevitably conflict with the equally authoritative constitutional provision favoring the slave states’ interest in guaranteeing to owners the return of
their escaped slaves.
Still, the slave’s status as either free or bonded was never philosophically or constitutionally determined by positive law. In this way, the slave was always a kind of
afterlife, a form of legal being that was neither birthed by law, nor extinguished by
law, but nonetheless present in the law. Against the assumption that slavery’s abolition in 1865 with the 13th Amendment to the US Constitution marked the formal
death of the institution, after which the Civil War Amendments and their Civil
Rights legislations and principles came to represent slavery’s “afterlife,”50 the
theoretical reading of contract law I have presented through Betty’s Case reveals
that perhaps slavery’s afterlife is law’s condition, not its effect.
For Betty’s freedom is a performative precipitated by both complete subjection to
and mediation by legal protocols that leave traces of a form of disappearance that
can only be known through a desire that persists in monstrous conditions of forced
choices. Betty’s freedom is that which remains uncontracted in contract law. This
410
HAN SLAVERY AS CONTRACT
commitment of freedom, then, has two valences of truth: freedom as a prison, and
freedom as obscene fidelity. Where these two valences rub up against each other in
the case of the slave, we have the performative of blackness as nonperformance, or
the shadow image of the oft-noted legal fact that the slave as a completely subjected
legal being was not ever given positive form by law. Here we are given the tremulousness of the words of law.
Why has the property metaphor come to dominate our analysis and understanding of slavery, such that we tend not to think deeply about the irreducibility of the
slave to property? If we are to be more precise, the metaphorical relation of property
is materially given in the slave as a referent of a specie of contractual documentation called title. Perhaps it is stating the obvious to argue that the slave is not reducible to the object of a title document. But what is not so obvious is that this
irreducibility is given not because the slave is recognized as a subject in other areas
of or outside the law, but because title, far from fixing the fact of the slave as property, is and must remain a form of contract. And as we have seen, contract as a matter of form is and has always been beset by nonperformance, or the radical splaying
of the question of who or what is promising who or what to who or what.
This is the terrifying truth we know by Betty’s act. The law’s universal promise
of freedom is not false, as Shaw demonstrated upon his emergence with Betty from
his chambers. The law’s universal promise of freedom is a perverse wish. We domesticate this insight when we treat the case of the slave as an artifact, instead of as
law on the perverse order of drives, that is, what Moten gestures toward as “a freedom drive that is expressed always and everywhere.”51 Indeed, here we have the
slave’s “strange arrival,”52 in whatever may be the case before us.
ACKNOWLEDGEMENTS
The author would like to thank Colin Dayan, David Lloyd, Dylan Rodriguez, Fred
Moten, Atef Said, M. NourbeSe Philip, Laura Harris, J. Kameron Carter, and David
Marriott for their comments on this article.
FUNDING
This research was supported in part by the Beatrice Bain Research Group at the
University of California Berkeley.
1. Anthony Farley, “Perfecting Slavery,” Loyola University Chicago Law Journal 36 (2005): 221 51 (237).
2. 20 Monthly L. Rep. 455 (Massachusetts, November 9, 1857).
3. 60 U.S. 939 (1857).
4. I thank Aviam Soifer, in particular, for his encouragement to think more deeply about Betty. See his
discussion of Betty’s Case in Aviam Soifer, “Status,
Contract, and Promises Unkept,” Yale Law Journal
96 (1987): 1916 59.
411
LAW & LITERATURE VOLUME 27 NUMBER 3
5. Edlie Wong has uncovered some interesting historical details about Betty’s Case. Specifically, we learn
that “Betty, […] who refused to accept her liberty,
[…]took passage upon the under-ground railroad,
and safely escaped to Cincinnati, where she was
joined by her husband, who is a free man”; Edlie
Wong, Neither Fugitive Nor Free (New York: New
York University Press, 2009), 102 (quoting The Liberator, William Lloyd Garrison’s anti-slavery newspaper). Wong argues based on this “epilogue to
Betty’s case” that Betty “took advantage of northern law and geopolitics […] to emancipate herself
on her own terms”; ibid. The case, a “counter-intuitive freedom story reveals one of the myriad ways
that slave attendants negotiated the predicaments
that the law of freedom created [… through]
seemingly contradictory legal reasoning”; ibid.
Wong’s conclusions about Betty’s Case might be
convincing, except that she refers to the case as
“Betty’s case” and not Betty’s Case. This slip erroneously suggests that Betty had legal standing and
that the litigated case was Betty’s, whether as a
matter of legal procedure or history. My discussion
of the case throughout this article is based on
extending the theoretical significance of the formal
difference between the proper name of a case,
“Betty’s Case,” to which Betty is not a named party,
and the proper pronoun, “Betty” in the name of the
case, which references both the singularity and
anonymity of the slave as a legal personality.
Betty’s lack of legal and historical standing is symbolized in the unrecorded name of the case, Betty’s
Case, a lack which would not have been symbolically inscribed if the proper name of the case had
been “Betty v. the Sweets,” for example. Wong’s
conclusions are also unconvincing given the fact
that this “epilogue” appears in The Liberator, which
further mediates, and does not factually clarify,
Betty’s decisions and desires. My reading of Betty’s
Case does not attempt to interpret Betty’s decisions
or desires, but instead traces their force, as neither
a “counter-intuitive freedom” nor proof of a certain
reality of slave kinship, but as a form of freedom
upon which legal freedom and its various and
changing antonyms are predicated. In short, while
Wong would contain her reading of Betty’s Case to
“legal and literary hermeneutics,” I am interested in
the case of that which escapes such hermeneutics.
6. For example, on contracts, or “passes,” made
between slaves and masters, see Stephanie Camp,
“I Could Not Stay There: Women, Men and Truancy,” in Closer to Freedom: Enslaved Women and
Everyday Resistance in the Plantation South (Chapel
412
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
Hill: University of North Carolina Press, 2004),
35 59; and on the legal system of fugitive slave
rendition, see Christopher Lasche, “Fugitive Rendition,” North Carolina Law Review 92 (2013):
149 235.
These questions echo what I understand to be the
vocation of M. NourbeSe Philip’s long poem, Zong!
(2008). In the poem’s concluding “Notanda,” if
Philip articulates a desire for a poetics of “Breaking
and Entering” the text of the infamous case, Gregson v. Gilbert (1783), then she simultaneously asks
of law and language, or law as language and language as law, whether: “Words break into sound,
return to their initial and originary phonic sound
grunts, plosives, labials is this, perhaps, how language might have sounded at the beginning of
time?”; ibid., 200, 205. Philip’s question suggests
for me that the Constitution, and in the widest
sense, laws of various forms of constitution, open
up onto the basest of bases where libidinal fragments of and as force are the inviolate surpluses of
violence.
Soifer, “Status, Contract, and Promises Unkept,”
1923 (quoting Shaw).
Ibid., 1922 (quoting Shaw).
Soifer provides a gripping account of the courthouse scene; ibid., 1921 3. Indeed, the highly
charged political scene, and the growing trend
among judges in the free states to abstain from
issuing judgment in cases involving slaves, is the
very same context that links Betty’s Case with the
1842 case, Prigg v. Pennsylvania, 41 U.S. 539, declaring the Fugitive Slave Law of 1793 to trump a Pennsylvania state law making it a felony to take a
“negro or mulatto” back to slavery. Not only is this
case a central doctrinal statement on the constitutional principles of American federalism, but also it
is the legal backdrop for Toni Morrison’s Beloved
(New York: Knopf, 1987).
Soifer, “Status, Contract, and Promises Unkept,”
1923.
Ibid., 1924.
Ibid.
157 U.S. 160, 165 (1895).
Ibid.
Ibid., 165 6.
Ibid., 166.
Alenka Zupancic defines the Real, developed by
Lacan through the category of duty in Kantian
moral law, as an ethics of desire “in which our own
death or a general catastrophe begins to function
as the ultimate horizon of our desire”; Alenka
Zupancic, Ethics of the Real: Kant, Lacan (London:
HAN SLAVERY AS CONTRACT
19.
20.
21.
22.
23.
24.
25.
Verso, 2000), 237. The experience of the Real,
manifest in a certain “preservation of fundamental
lack that introduces a gap between the Thing and
things,” is given in “‘something’ […] which appears
only in the guise of the encounter, as something
that ‘happens to us’, surprises us, throws us ‘out of
joint’, because it always inscribes itself in a given
continuity as a rupture, a break or an interruption”;
ibid., 235, 240.
The word “obscene” is derived from the Latin
obscaena, meaning “offstage,” and conceptually captures what is at stake in this critical reading of Betty’s
Case. For my theoretical orientation toward the
“obscene,” see, generally, Georges Bataille, Eroticism
(Harmondsworth: Penguin Books, 2001), 17-18. There
he briefly glosses a definition: “Obscenity is our name
for the uneasiness which upsets the physical state
associated with self-possession, with the possession
of a recognised and stable individuality.”
The scholarship on this score is voluminous. Critical
work includes: Angela Y. Davis, “Reflections on the
Black Woman’s Role in the Community of Slaves,”
The Massachusetts Review 13 (1972): 81-100; Robert
Cover, Justice Accused (New Haven and London:
Yale University Press, 1984); Hortense Spillers,
“Mama’s Baby, Papa’s Maybe: An American Grammar Book,” Diacritics 17 (1987): 64 81; Cheryl I.
Harris, “Whiteness as Property,” Harvard Law
Review 106 (1993): 1707 91; Saidiya Hartman,
Scenes of Subjection (New York: Oxford University
Press, 1997); Ariela Gross, Double Character
(Princeton: Princeton University Press, 2000); Paul
Finkelman, ed., Slavery and the Law (New York:
Rowman & Littlefield, 2001); Mark Tushnet, Slave
Law in the American South: State v. Mann in History
and Literature (Lawrence: University of Kansas
Press, 2003); Adrienne Davis, “Slavery and the
Roots of Sexual Harassment,” in Directions in Sexual
Harassment, ed. C. MacKinnon and R. Siegel (New
Haven and London: Yale University Press, 2013),
457 78; Colin Dayan, The Law is a White Dog
(Princeton: Princeton University Press, 2011).
Spillers, “Mama’s Baby, Papa’s Maybe,” 78.
Ibid., 72. Spillers is analogizing here Freud’s metaphor for the unconscious as “undifferentiated identity” to the “Middle Passage.”
Christopher Tomlins, “Transplants and Timing:
Passages in the Creation of an Anglo-American
Law of Slavery,” Theoretical Inquiries in Law 10
(2009): 389 421 (391).
Ibid.
Ibid., 392 (the underlined emphasis has been
added).
26. Theophilus Parsons, The Law of Contracts (repr.
Charleston: Nabu, 2010). This chance encounter
between Parsons and Betty’s Case is crucial, for the
real aporia manifest in Betty’s Case is philosophically manifest in Parsons’ treatise, which would
become the most popular legal treatise on contract
in American jurisprudence in the several decades
following the Civil War. The rebus of law as both
real circumstance and philosophy amplifies a fundamental legal problem of contract and freedom
that, in fact, predated this moment when freedom
suits became an anti-slavery legal tactic. For the
will-based idea of contract these two texts elevate
can be traced back to the 17th century. Hobbes, for
example, would work through his idea of the social
contract predicated on a civil society structured by
“voluntary obligation” or what we might call private
law and custom; Thomas Hobbes, Leviathan, ed. R.
Tuck (Oxford: Cambridge University Press, 1996).
Amy Dru Stanley, in laying the philosophic ground
for her history of the rise of contract freedom in the
age of emancipation, notes that the “intellectual
roots of contract freedom extended back to antebellum debates over slavery, twisting along the
paths of the common law to the liberal political
thought of the seventeenth century”; Amy Dru
Stanley, From Bondage to Contract: Wage Labor, Marriage, and the Market in the Age of Emancipation
(New York: Cambridge University Press, 1998), 4.
Indeed, one of the most prominent of freedom
suits recovered by legal historians, Elizabeth Key’s
Case, was brought to court by a mulatto slave
woman, Elizabeth Key, in the colonial state of Virginia in 1656, and would include evidence of individual religious belief and practice in her claim that
she was free; Case of Elizabeth Key. Northumberland
County Record Books (Virginia, 1655), in Old
Dominion in the Seventeenth Century, ed. W. Billings
(Chapel Hill: University of North Carolina Press,
1975). Taunya Lovell Banks rightly observes that
Key won her case based on theories of English subjecthood, and not on the court’s recognition of
Key’s free will evidenced by her religious faith; Taunya Lovell Banks, “Dangerous Woman: Elizabeth
Key’s Freedom Suit Subjecthood and Racialized
Identity in Seventeenth Century Colonial Virginia,”
Akron Law Review 41 (2008): 799 837. However,
the fact that such evidence was presented indicates that both status- and will-based approaches
to contract comingled in the early American law of
slavery. Where in Key’s Case evidence of free will is
buried under more dispositive evidence of status,
in Betty’s Case evidence of free will is no longer
413
LAW & LITERATURE VOLUME 27 NUMBER 3
27.
28.
29.
30.
31.
32.
33.
34.
414
buried but takes center stage. We might say that
within the history of freedom suits from the 17th to
the 19th century, the question of the slave’s free
will as a matter of contract law is more or less
apparent depending on how it has been spotlighted
on the stage of American legal modernization, and
not a matter of whether it was lit at all. Ultimately,
this suggests that the freedom suits litigated with
increased frequency in the mid-19th century were
not simply a sign of historical change, but a more
complex recitation of a foundational jurisprudential
problem of contract law predicated on the aporetic
relation between a transcendent right to freedom
of contract and the always present and undecidable case of the status of the slave. The historiographic question of the agency of slaves, in
particular, female slaves, is one not of whether
(female) slaves had agency, but one of a certain
difficulty with encountering the complete (which is
not to say over-determined) mediation of that
agency by law, history, and culture. For critical historiographic studies of female slaves, see, for
example, Brenda Stevenson, Life in Black and White
(New York: Oxford University Press, 1997); Stephanie Camp, Closer to Freedom: Enslaved Women
and Everyday Resistance in the Plantation South
(Chapel Hill: University of North Carolina Press,
2004); Jennifer Morgan, Laboring Women: Reproduction and Gender in New World Slavery (Philadelphia: University of Pennsylvania Press, 2004); Sara
Clarke Kaplan, “Black Feminism and the Politics of
Reading (Un)representability,” Black Women, Gender & Families 1 (2007): 94 124; and Stephanie Li,
Something Akin to Freedom (Albany: State University of New York Press, 2011).
Parsons, Law of Contracts, 3.
Ibid., 3 4.
Roy Kreitner, Calculating Promises (Stanford: Stanford University Press, 2007), 20.
Lawrence Friedman. Contract Law in America (Madison: Wisconsin University Press, 1965).
Kreitner, Calculating Promises, 42 67.
Grant Gilmore, The Death of Contract (Columbus:
Ohio State University Press, 1974), 6 7 (quoting
Friedman).
Ibid., 7.
Ibid., 8. I note, as does Gilmore, that there have
been codifications of certain areas of contract law,
as in the Uniform Commercial Code. But again, we
mistake the jurisprudential problematic of contract
law by conflating it with specialized substantive
doctrinal areas, like labor law, or community property law, or insurance law, wills and trusts, or
various kinds of social welfare legislation. Indeed,
the preeminent legal minds of the 19th century who
had grappled with the issue of contract law, like
Joseph Story, Christopher Columbus Langdell, and
Oliver Wendell Holmes, Jr., each in their own way
recognized the impossibility of codifying all contractual relations. As a matter of history, this
impossibility of codification becomes a defining
feature of contract law despite and because of each
of their efforts.
35. Kreitner, Calculating Promises, 1.
36. Brenna Bhandar has recently explored how legal
interpretations of an autonomous will through
property relations work through modes of abstracting material and immaterial things (bodies, land,
ideas, etc.) from time and space. See generally,
Brenna Bhandar, “Property, Law, and Race: Modes
of Abstraction,” University of California Irvine Law
Review 4 (2014): 203 18. The abstraction in contract law that I am interested in developing here is
abstraction as an a priori knowledge of law, as well
as abstraction as a form of art radically separable
from its content. If Bhandar’s analysis of abstraction
and property law is a critique of the metaphysics of
modern liberal subjectivity, mine is an analysis of
abstraction and contract law as a critique of the
transcendental right of freedom. That said, and not
completely unrelated to my general argument in
this article, Bhandar’s analysis is unconvincing. The
crux of Bhandar’s analysis is the legal figure of the
slave as a “hybrid juridical form” between “object
and human”; ibid., 206. For Bhandar, “this blurring
of boundaries [in the figure of the slave] between
thing and person reflects the same conflation of self
with property that justifies private property
ownership for John Locke and Jeremy Bentham,”
and raises a more fundamental question of “being
and having” as central to theorizing race and law;
ibid.
This theoretical examination is not a problem
as much as the arbitrary terms that Bhandar
imposes on her reading of law and philosophy in
order to make the argument that racialization is in
part a legal procedure of abstraction necessary for
producing the modern liberal subject. The primary
work of the article, indeed, is to read analogical
connections between what she describes as the
“materialization of the abstraction of the Black or
Negro in the body of the slave” and the “materialization of the abstract sovereign subject whose
very self is constituted through his ownership of
things”; ibid. We must note that this similarity
Bhandar projects onto the sovereign subject and
HAN SLAVERY AS CONTRACT
the slave in her analysis pivots around a small but
profound error that should lead us to regard the
rest of her critiques and interpretations with some
suspicion, especially her engagement with Harris’s
“Whiteness as Property” (cited in note 20); ibid.,
206 13. This error is in the relation she poses
between the terms “the Black or Negro,” “the
body,” and “the slave” in her above formulation,
which reduces “the Black or the Negro” to the
metaphysical slave. This reduction of “the Black or
the Negro” then further allows the comparisons
Bhandar makes with various other legal figures to
appear logical, including: the metaphysical master,
or what she calls the “sovereign subject,” and later
on, “the native,” “the savage,” and commodity and
money forms, including finance capital; ibid.,
208 16.
This reduction further underwrites Bhandar’s
reading of an Amiri Baraka poem that is unconcerned with its poetics; ibid., 217 18. As her analogical framework limits her legal critique, so too does
it limit her literary critique: where Baraka’s “Negro,”
on my reading, references at least five coterminous
and entangled variations of a self in “himself” as
reflexive pronoun and intensive pronoun; and “hisself” as “self as object,” “self/object,” and vernacular
selves Bhandar finds only one, that is, a fraudulent
self; ibid., 218. Like Wong’s containment of the language of the law to hermeneutics, Bhandar contains
the language of the law to Marxist political economic critique. Each differently avoids encountering
how the obscene rationality of the law singles out
the non-singleness of “the Black or the Negro.” As
an alternative to Bhandar’s analogical analysis of
slavery and capitalism, I would argue instead that
transatlantic racial slavery materialized the abstraction of the slave in the body of the Black or Negro,
such that both “the body” and “the Black or Negro”
are irreducible to “the slave.”
37. Adrienne Davis’s study of slavery through the concept of “sexual political economy” outlines how private and public law protected demands made on
enslaved black women for various forms of sexualized labor. See generally, Davis, “Slavery and the
Roots of Sexual Harassment” (cited in note 20). To
the extent that Davis’ discussion examines private
causes of action available to masters during slavery,
she is analyzing a form of what I call the private law
of slavery, but only in the former sense of the term.
38. Fred Moten, In the Break: The Aesthetics of the Black
Radical Tradition (Minneapolis: University of Minnesota Press, 2003), 99.
39. Ibid.
40. Ibid.
41. Stephen Best’s exploration and analysis of fugitivity,
though it offers a nuanced critique of legal formalism as a philosophical approach, nevertheless rests
on an uninterrogated legal formalism structuring
his very definition of the fugitive. One might say in
this regard that Best’s critique re-enslaves the fugitive through a form of law as critique that would
see the running slave as running away from
enslavement and toward emancipation. See, generally, Stephen Best, The Fugitive’s Properties: Law and
the Poetics of Possession (Chicago: University of Chicago Press, 2004). Against this move, I understand
the idea of blackness as a performative through the
specific form of fugitivity developed by Stefano
Harney and Fred Moten, “Blackness and Governance,” in The Undercommons: Fugitive Planning and
Black Study (New York: Autonomedia, 2013), 50 1.
There we encounter the time of a “violent and cruel
re-routing” precipitated by a certain inseparability
between the “work of blackness” and the “violence
of blackness”; ibid., 50. By implication, then, my
understanding of the performative here departs
from the general Austinian sense of the performative exemplified by the form of an oral promise
wherein speech and act the utterance of the
promise and the act of promising are one and the
same. The legal determination of whether expectations mutually created by a contract, or those
things promised by each of the parties, have been
fulfilled is a derivative and wholly separate matter
with respect to the Austinian performative of the
promise. Determining whether the parties have
made good on whatever the promise substantively
references for the future does not negate a certain
correspondence, or mutual fulfillment, between
speech and act (promissory, either bilateral or unilateral) that binds two parties through language.
However, I prefer Harney and Moten’s articulation
of the performative because it does argue a correspondence between speech and act, but pointedly
insists, within this plane of correspondence, on “the
internal difference of blackness,” between its work
and violence, as another form of promise in “a willingness to break the law one calls into existence”;
ibid.
42. Judith Butler meditates on performances of freedom and unfreedom as “dispossession,” which is
not necessarily incorrect as a matter of a sociolegal critique of liberal political community, but is
necessarily superficial as a matter of a radical
415
LAW & LITERATURE VOLUME 27 NUMBER 3
43.
44.
45.
46.
reading of law as a philosophic paradox of founding
violence; Judith Butler, Dispossession: The Performative in the Political (Cambridge: Polity, 2013).
Black’s Law Dictionary, online version, http://thelaw
dictionary.org/letter/n/page/48/ (accessed February 11, 2015).
This is in contrast to, for example, constitutional
law, which is a derivative form of contract. The formalization of a radically indeterminable futurity in
constitutional interpretation is foreign if not antithetical to the idea of democracy instituted by law,
even if the text of national constitutions can be
made to insist otherwise.
Moten, In the Break, 13 14.
Spillers, “Mama’s Baby, Papa’s Maybe,” 74 (the
underlined emphasis has been added; the italics are
Spillers’ own).
47. Moten writes of “the document or music,” what I
take to be an apposite understanding of Betty’s act
as something we might call a fugitive promise, or a
fugitive note, that which is unnotarizable, or a mark
on a score that in its form admits the impossibility
of recording freedom; Moten, In the Break, 227. The
legal documents that together constitute Betty’s
act in and against the history of freedom have the
force of a signature to some other kind of contractual relation that Spillers recognizes in slavery as an
“enforced state of breach.”
48. Somerset v. Stewart, 98 ER 499 (1772).
49. Commonwealth v. Aves, 35 Mass. 193 (1836).
50. Saidiya Hartman, “Venus in Two Acts,” Small Axe
12 (2008): 1 14.
51. Moten, In the Break, 7.
52. Fred Moten, “Knowledge of Freedom,” CR: The New
Centennial Review 4 (2004): 269 310 (286).
Sora Han is Assistant Professor of Criminology, Law & Society and the Ph.D. Program in Culture & Theory at the University of California
Irvine. She can be
reached by email at: sora.han@uci.edu.
416