Monday, June 13, 2011

Considering Comparative Legal History Through the Lens of Transatlantic Anti-Slavery Movements

Comparative constitutional law has swept the academy in recent years, as we all know. Scholars of U.S. constitutional and legal history increasingly take global perspectives, as well. Over time, after reading engaging comparative and/or cross-disciplinary work by scholars including Vicki Jackson, Mark Tushnet, George Billias, Andrew Lewis, Mary Dudziak, Willy Forbath and Ariela Gross, I've grown more interested in comparative constitutional law and legal history. I'm particularly interested in works that integrate local, national and global histories to understand social and political change in public law.

The comparative approach is captivating, but the field is vast and the methodologies subsumed within the genre are numerous. I have found myself flipping through collections of materials and wondering: precisely what constitutes a meaningful comparative methodology, and what makes for successful comparative scholarship? Elizabeth Dale's posts a few weeks ago about teaching comparative constitutional history in the U.S. (see here and here) suggest some of the challenges involved in writing good comparative scholarship. As an initial matter, one must acquire the requisite depth and breadth of knowledge to compare constitutional systems across place and time. Even if one is quite knowledgeable about several different legal systems, one has to confront the question of what analytical difference "difference" should make in comparative analysis. That is, precisely how does one usefully compare constitutional or legal systems in countries where political, cultural, and social contexts differ to a substantial degree? On the other hand, there are limitations to comparing places (such as the United States and Britain) whose traditions are similar in many important respects. When describing societies at the high level of generality demanded of comparative scholarship, can one avoid essentialism? Another conundrum: the U.S. constitutional and legal frameworks, influential worldwide, can obfuscate genuine comparative analysis. For these reasons and more, comparative analysis of law and societies strikes me as challenging in concept and practice.


In an effort to learn more about the comparative enterprise, I'm working my way through a long reading list. One of the articles on my list is "Remembering Dinah Nevil: Strategic Deceptions in Eighteenth-Century Antislavery," Journal of American History (Sept. 2010), by Kirsten Sword (History--Indiana). The article tells the story of a woman who filed a freedom suit, an action that prompted the establishment of the world's first antislavery organization. In addition to telling this fascinating story, Professor Sword discusses comparative historiography in transatlantic slavery studies, reframes the famous Somerset case, and reorients discussion of British and American antislavery movements. I found the article useful in thinking about how one might integrate local, national and global perspectives in a manageable way (e.g. in the context of an article as opposed to a monograph). I share Professor Sword's article with other readers who are intrigued by the various comparative methodologies.

Excerpts from the first few paragraphs of the article follow, and the full article is available here.

What is a founding moment? Who is a founder? Recent scholarship on British antislavery demonstrates why such questions are at once vexing and engaging. In scholarly trade books and popular film timed to coincide with Britain's bicentennial commemoration of the 1807 abolition of the slave trade, Britain's eighteenth-century abolitionists perform cultural work akin to that done by political founders in the United States. Much of this new literature recapitulates, for a transatlantic audience, the nationalistic arguments made by abolitionists themselves. Slavery served them, and apparently still serves us, as a testing ground for competing British and American claims to be beacons of liberty in an emerging global order. The best new scholarship on the foundations of British abolitionism, on the other hand, raises provocative questions about who and what transformed long-circulating antislavery sentiments into antislavery actions.

In the winter of 1773, three years before George Washington made a more famous crossing, Dinah Nevil was ferried across the Delaware River from New Jersey to Philadelphia. There she “asserted that she and her children were Free people.” Her freedom lawsuit became the impetus for the first antislavery society, and that institutionalizing moment remains a staple event in textbook timelines of the American Revolution and in comprehensive histories of the antislavery movement. Such synopses are generally garbled because the organization had multiple names and multiple foundings. Sometimes the date that matters is 1775, when the first formal meeting of the Pennsylvania Society for the Assistance of Free Negroes Unlawfully Held in Bondage took place; the coincidence of this event with the first shots of the American Revolution fired at Lexington and Concord allows textbooks to encompass antislavery under the nationalistic umbrella of the revolutionary “contagion of liberty.” Sometimes the emphasis is on the organization's postrevolutionary reformation in 1784, and sometimes on 1787, when it rechristened itself as the Pennsylvania Abolition Society (pas) and recruited Benjamin Franklin as its titular head. Franklin is often mentioned, erroneously, as its first president. He competes for the honor with the Quaker antislavery activist and “American saint” Anthony Benezet, who was indeed essential to the organization's existence but was never actually a member. The pas formed, moreover, as a reaction against the “warlike preparations” of American revolutionaries rather than as an extension of them; historical synopses uniformly overlook this nuance. The specific empathetic desire to help Dinah Nevil sue for her family's freedom was also crucial, but on the few occasions when Nevil is mentioned, it is as an anonymous Indian woman used as a convenient narrative starting point. Her full significance is forgotten even in histories that recall her name.
Such vagueness suits a historiography invested in the seemingly inevitable failure of eighteenth-century American antislavery. For historians of the United States, the first emancipation serves as the conservative backdrop for nineteenth-century radical abolition. Across the Atlantic, the “failure” of revolutionary American antislavery provides a counterpoint for British success, defined chiefly by two landmarks: first, the 1772 case of James Somerset v. Charles Steuart, a freedom suit widely (if incorrectly) interpreted as freeing all slaves on English soil, and second, the popular opposition to the slave trade that followed the 1787 founding of England's first antislavery organization, the Society for Establishing the Abolition of the Slave Trade (seast). In both of these national paradigms, accounts of black resistance to slavery fit somewhat awkwardly alongside narratives built around white actors and institutions.
By contrast, Dinah Nevil's story can help us reframe Somerset v. Steuart as a case generated by colonial American actors. In the cases of both Somerset and Nevil, outcomes have veiled antislavery ambitions that did not confine themselves within national or colonial borders. Considered together, these freedom suits offer suggestive evidence of an intercolonial and transatlantic network of white and black activists who worked together before the American Revolution.

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