Brophy on Utility, History, and the Rule of Law: The Fugitive Slave Act of 1850 in Antebellum Jurisprudence

Alfred L. Brophy, University of Alabama School of Law, has posted a new essay, Utility, History, and the Rule of Law: The Fugitive Slave Act of 1850 in Antebellum Jurisprudence. It is forthcoming is THE TRANSFORMATION OF AMERICAN LEGAL HISTORY: ESSAYS IN HONOR OF MORTON J. HORWITZ (Harvard University Press, 2008). It is also part of Brophy's own new book project. Here's the abstract:

In the years before the Civil War, the Fugitive Slave Act of 1850 focused public discussion of the duty to abide by law, as well as the obligations of individual (and religiously inspired) conscience. This paper addresses the debate over the act in Congress, where the Senators could already foresee conflict between law and conscience, as well as subsequent commentary by southern jurists, lawyers, religious leaders, novelists, and professors. They explored the competing considerations of individual morality, abstract duty to abide the law, and expediency in passage and enforcement of the Act. A final section explores the implications for the rich public debate for the judiciary and for politics in the years leading into Civil War. This paper exhumes the Act and places it at the center of American jurisprudence in the antebellum period.

This paper is the first chapter to a monograph I am writing, tentatively entitled, University, Court, and Slave: Moral Philosophy in the Old South. It locates the common language of moral philosophy used by Southern educators and jurists. This language provides a way of understanding how Southern intellectuals thought about slavery and law. The project seeks to map the language used to talk about proslavery legal thought and how Southern intellectuals justified the institution of slavery. It seeks to understand the grammar of their moral thought, from their utilitarian calculus, to their belief in the importance of stability and the natural law of hierarchy. This paper sets up the key points of conflict: the relationship between a people's values and their laws, the importance of the rule of law, and the utilitarian calculations that suggested slavery should be maintained, even if people were treated inhumanely within it.