Friday, July 9, 2010

New Directions for Legal History of the South?

Al Brophy, my friend and recent guest blogger on this site, suggested that I post some thoughts about possible new directions for the legal history of the South. Almost (gulp) ten years ago, I wrote an essay for the Columbia Law Review about new directions in the legal history of race and slavery, where I suggested that “cultural-legal histories” focusing on trial records, and the interaction between law and local cultures, were the most fruitful new research projects in the field. Since then, there has been an outpouring of wonderful work in this vein, including books by Dylan Penningroth, Jeannine DeLombard, and Laura Edwards, as well as many very promising dissertations by up and coming scholars.

If I had to peg a similarly important trend for this decade, I would say it’s the rise of comparative and transnational legal studies of slavery, from the transnational micro-histories by Rebecca Scott & Jean Hebrard and Martha Jones are working on, to the forthcoming broad comparative work on race in the Americas by Bob Cottrol and Taunya Kateri Hernandez. As Alejandro de la Fuente and I have written in a forthcoming essay for the Annual Review of Law and Social Sciences, these comparative studies hold great promise for legal scholarship. The turn away from law in the social history of slavery in the 1970s through the 1990s coincided with a turn away from comparison. Returning to law, but from a bottom-up rather than top-down perspective, may allow us to escape some of the exceptionalism that has marked studies of the U.S. South – and the U.S. more generally – without falling prey to the overdrawn contrasts of an earlier generation of scholarship.

I would be very interested in hearing what others working in this area think are the important new questions or avenues for research at the moment.


  1. For 20th century Southern legal history, I would like to see more local studies of the criminal justice system in action at the city and county level, looking at how plea bargaining and trials played out in run-of-the-mill criminal cases. I have found that the literature is almost entirely based on very high-profile cases (e.g. Scottsboro) and it's hard to get a sense of day-to-day justice. Although maybe I've just missed that shelf in the library? (Also, I realize there are problems with finding archives to do this kind of thing.)

    Sara Mayeux
    stanford jd/phd in progress

  2. Hi Ariela -- It's nice to "meet" you, if in cyberspace.

    I'm glad to see this post -- I've been thinking about this issue a lot, and will have an essay in 2011 in LSI that touches on this topic. I agree that comparative studies are the direction that the field should go in, particularly since the South is so often assumed to be and studied as a world unto itself, as Laura Edwards so eloquently talks about in her newest book. I think it would also be helpful to have studies that step away from slavery itself and look at other aspects of Southern law in comparative or national perspectives. Historians have often assumed that, with slavery, the entire South (and its law) went in a different direction, but I'm not sure that's true. For me, the fundamental question is "what did slavery mean for the South and Southern law" -- in other words, how did it influence jurisprudence, conceptions of law and justice, etc. (although there are certainly other questions one could ask). I think that looking at other areas of law (bottom up as well as top down) outside of the law of slavery itself is the best way to get at this influence.

    Jessica Lowe
    Princeton PhD in progress
    Harvard JD 2002

  3. Thanks for this, Ariela. I think you're exactly right that much of the interesting work being done in 19th century southern legal history is at the trial level. Double Character and The People and Their Peace are prime examples here -- and I think they provide models for the kind of work that Sara Mayeux is suggesting for the 20th century.

    Trials are great places for social historians to find "little people" exercising "agency." For the trial often gives power to the humble to topple the mighty. Antebellum southerners understood this -- that's why they tried to hard to limit slaves' testimony. Yet, even with their efforts to silence slaves in court, enslaved people were still heard, through the testimony of white people, who themselves might be trying to topple some powerful person. Trials are a great for social historians for other reasons, though -- as you point out in Double Character, we see how the legal system supported in all sorts of ways the slave system. It's a ground-level view of how the whole system functioned.

    One question here about some of the social history that looks at slaves' agency through court records: I wonder if some of the social historians' focus on the power of humble people in trials diverts our attention from just how powerful the powerful were. Along similar lines, I sometimes fear that the terrific work that goes back and recovers the vibrant African American culture that existed during Jim Crow can distract us from the nightmare of the Jim Crow.

    This is going to sound very old, dead, white guy (so my apologies in advance) -- but I wonder if we need to also be looking at the people at the absolute top of the hierarchy and their ideas, and in places like treatises and appellate reports, as well as the trial courts. For I fear that we sometimes can lose sight of the system that those powerful people sought to create.

    Ok. One other question. I've taught Double Character a bunch of times now (always at law schools south of the Mason-Dixon line), and it generates great discussion, especially the chapter on honor. I'm wondering what people think about the idea of honor as an organizing principle for legal history of the old South?

  4. Hi folks, I'm in Pebble Beach for a writing retreat with my graduate school compatriots, so I missed these comments. I agree with all of the above! Recent conversations at the "Law As..." Conference on Legal History at UC Irvine, and at the Law and Society Association panel on revisiting Bob Gordon's "Critical Legal Histories" have raised a number of these questions about what we lose if we don't pay attention to the "mandarin legal sources" Gordon reminded us to look at. In my view, the best work doesn't ignore the appellate courts and treatises, but tries to draw the connections between "bottom" and "top." That's a place where Laura Edwards and I probably disagree. I don't think the "local" is entirely disconnected from the state or federal level in law, although I think there can be disconnects. In Double Character, I tried to trace what happens to the stories that are told at the trial level when they get to the appellate level, for example, and how the appellate process shaped people's interaction with the law. Tim Huebner's wonderful recent article in the Journal of American History about Roger Taney is a great example of the combination of archival research with a focus on an important player on the national stage.