Abstract

http://ssrn.com/abstract=2003447
 


 



Social Contract Theory, Slavery, and the Antebellum Courts


Thaddeus Mason Pope


Hamline University - School of Law

Anita L. Allen


University of Pennsylvania Law School

January 1, 2003

COMPANION TO AFRICAN-AMERICAN PHILOSOPHY, pp. 125-133, T. L. Lott, J. P. Pittman, eds., Malden, MA: Blackwell, 2003

Abstract:     
Social contract theory holds that political order 'is legitimate if and only if it is (or could be) the outcome of a collective agreement of free, equal, and rational individuals.' American law has a special relationship to social contract theory. According to some scholars, American colonists relied upon liberal, Lockean notions of a social contract to justify revolution against British rule. Historians maintain that social contractarian theories of political order significantly influenced the people who wrote and defended the Declaration of Independence, the original Constitution, and the Bill of Rights.

Although much has been written about the contractarian foundations of the Declaration of Independence and the Constitution, little has been written about the role contractarian thought played in subsequent jurisprudence. This article identifies distinctly contractarian 'justifications' for black slavery found in antebellum court opinions. We elaborate three lines of contractarian argument. The first justifies permitting slavery on the ground that the U.S. Constitution is a white-only social contract under which blacks are not free and equal. The second justifies permitting slavery on the ground that slavery is blacks’ best deal for escaping the state of nature, give (putative) black inferiority. The third justifies slavery on the ground that death to the vanquished is a just consequence of war, and that slavery is a rationally preferable fate to death. We limit our attention here to social contractarian arguments.

Keywords: social contract, slavery, antebellum courts, contractarian, discrimination, Constitution, ethics

JEL Classification: K00, K31

Accepted Paper Series


Not Available For Download

Date posted: February 27, 2012  

Suggested Citation

Pope, Thaddeus Mason and Allen, Anita L., Social Contract Theory, Slavery, and the Antebellum Courts (January 1, 2003). COMPANION TO AFRICAN-AMERICAN PHILOSOPHY, pp. 125-133, T. L. Lott, J. P. Pittman, eds., Malden, MA: Blackwell, 2003. Available at SSRN: http://ssrn.com/abstract=2003447

Contact Information

Thaddeus Mason Pope (Contact Author)
Hamline University - School of Law ( email )
1536 Hewitt Avenue
Saint Paul, MN 55104-1237
United States
651-523-2519 (Phone)
901-202-7549 (Fax)
HOME PAGE: www.thaddeuspope.com
Anita L. Allen
University of Pennsylvania Law School ( email )
3501 Sansom Street
Philadelphia, PA 19104
United States
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