Law of Slavery: Course examines slavery through the ‘lens of the law of daily life’

August 22, 2013Duke Law News

Professor Adrienne Davis

Professor Adrienne Davis invites students in her Law of Slavery course to become legal historians and philosophers for a semester.  “I want them to really explore their thoughts on what the rule of law means for a democratic society,” she said.  To do so, she goes beyond the overarching themes of servitude and freedom, and engages them in an examination of slavery through the myriad slave-related disputes that judges and juries routinely had to adjudicate.

Davis is in residence at Duke in the fall semester as the John Hope Franklin Visiting Professor of American Legal History.   Renowned for her scholarship and teaching on gender and race relations; theories of justice and reparations; feminist legal theory; and law and popular culture, she is visiting from Washington University in St. Louis, where she is Vice Provost and the William M. Van Cleve Professor of Law. 

“On a daily basis, Southern judges weren’t adjudicating the grand Dred Scott or Plessy v. Ferguson types of issues,” she said.  “They were adjudicating questions of the priority of a slave lien, whether slaves were real or personal property, and whether masters could allow their slaves to make independent labor contracts with other masters, to offer just a few examples.”

The practice of using slaves as collateral for mortgages and other contracts led to questions about the priorities of liens, Davis explained.  “Would a slave lien be a priority ahead of or behind real estate?”  Widows, whose dower rights attached to their deceased husbands’ real estate only, wanted courts to deem slaves to be real estate and not personal property, she said.  And masters with surplus slave workers often were prohibited in their attempts to hire their services out, thus allowing them to function like free workers. 

“All of these things that went to the heart of how labor operated or the way that debts and liens operated or domestic relations operated kept bumping up against slavery,” said Davis.  “It’s quite fascinating to look at slavery through the ‘lens of the law of daily life,’ as one of my colleagues calls it.”

Some of Davis’s favorite cases involve slave masters – some of the wealthiest people in the South – who wanted to leave their entire estates to their “shadow families” of enslaved black women and their children.  “Many of these cases involved what today would be millions and millions of dollars.  There were massive amounts of wealth at stake.  The money becomes a proxy for the cultural, social, and political threats that all of this posed.”

It also undermines the idea that slave masters’ interests were completely aligned with the interests of white people, said Davis.  “We often find that the slave masters were trying to pursue their own interests in leaving money to slaves, or hiring a slave out, or taking out a mortgage in slave.  But those things fundamentally threatened the political stability of slavery itself.  A master might find it convenient to treat his slaves like free white workers for a couple of years, but treating blacks as free workers might undermine the entire system of slavery. 

“So we find that there are at least three distinct interests:  that of the state itself, that of slaveholders and other whites, and that of enslaved black people.  The law had to mediate and triangulate those three interests, and we find that some judges did it better than others.”

As they explore the role of the law and the legal system in implementing and sustaining slavery, students tease out definitions of a good, well-functioning rule of law, and what constitutes a “good judge” in this context, said Davis.

“Is the good judge one who completely rebels against the entire system, or is the good judge the one who manages to achieve a level of coherence within a corrupt system?  Students might start out thinking some judges are good because they have wonderful anti-slavery rhetoric, but they later realize they’re just very skilled jurists who maintain the system but put a nice mask on it.” 

As they discuss cases and scholarly sources relating to slavery, students also will be exposed to areas of contention among modern slavery scholars.  These include the efficiency of slavery as an institution and the role of the North in perpetuating it, questions of slave agency, and the possibility of love and desire under a brutal totalitarian system, one of Davis’s areas of scholarly interest.

Having taught Law of Slavery at various institutions across the U.S. and even at the University of Toronto, Davis observed that the student body’s collective background tends to shape the class.  “I think many students outside of the South tend to think of slavery as a completely isolated institution that is very much about servitude versus freedom – a very confined set of questions,” said Davis, who was on the faculty of the University of North Carolina School of Law from 2000 to 2007 as the Reef C. Ivey II Research Professor of Law.  “I find that students in the South tend to be less surprised because many of them are still living in a world where they are sometimes still experiencing its effects.  At UNC, for instance, some of my students lived on the remnants of old plantations.  So the course itself transforms depending on where I teach it.”

Davis said it is a particular honor to hold a distinguished visiting professorship at Duke named for the late John Hope Franklin.

“When I first moved to the Triangle, Dr. Franklin reached out to me and was completely iconic in my own research, scholarship, and thinking.  It meant so much to me that he was so generous and was such a wonderful personal mentor.  So to be invited to hold this chair is just one of the highlights of my career.”