Social Contract Theory, Slavery, and the Antebellum Courts

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

Posted: 27 Feb 2012  

Thaddeus Mason Pope

Mitchell Hamline School of Law; Queensland University of Technology - Australian Health Law Research Center; Saint Georges University; Alden March Bioethics Institute

Anita L. Allen

University of Pennsylvania Law School

Date Written: January 1, 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

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: https://ssrn.com/abstract=2003447

Thaddeus Mason Pope (Contact Author)

Mitchell Hamline School of Law ( email )

875 Summit Avenue
Room 320
Saint Paul, MN 55105
United States
651-695-7661 (Phone)

HOME PAGE: http://www.thaddeuspope.com

Queensland University of Technology - Australian Health Law Research Center ( email )

2 George Street
Brisbane, Queensland 4000
Australia

Saint Georges University ( email )

West Indies
Grenada

HOME PAGE: http://www.thaddeuspope.com

Alden March Bioethics Institute ( email )

47 New Scotland Ave
MC 153
Albany, NY 12208
United States

HOME PAGE: http://www.thaddeuspope.com

Anita L. Allen

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

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