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Published online by Cambridge University Press: 15 November 2021
This paper argues that the wrong of slavery lies in the denial of the good of law to the slave. Defending this proposition will require the positing of three related claims: (i) that law is good, (ii) that the good of law is denied to the slave, and (iii) that the denial is wrong. This paper will defend the main proposition by defending its three constituent claims. On claim (i), the paper will relate the form of law to the formation of freedom. On claim (ii), the paper will relate law’s objectivity to legal subjectivity. On claim (iii), the paper will relate the state of nature to the state of civil society.
1. Chattel slaves are enslaved persons: they are moral persons who have been legally enslaved. Slaves remain full moral persons, no matter what the law says. The law cannot strip them of moral personhood, but it can strip them of legal personhood by legally designating them as property. The moral wrong of chattel slavery is not the same as the moral wrong of labour exploitation, although the two wrongs often come together. Often, but not always: some ancient Roman slaves were given great latitude in managing their own affairs, and in keeping their own peculium, notwithstanding their property status, so much so that they ended up being financially better off than a free, but poor, citizen. In such cases, there would be the wrong of slavery without the wrong of labour exploitation. Conversely, one may commit the wrong of labour exploitation without committing the wrong of slavery, which occurs when one wrongfully exploits the labour of one’s free workers. Just as the wrong of slavery can be disaggregated from the wrong of labour exploitation, so the wrong of slavery too can be disaggregated from the wrong of racism. On the relationship between the wrong of slavery and the wrong of racism, see the final paragraph of the introductory section of this paper.
2. Chattel slavery is created by law, whereas ‘modern slavery’ is criminalized by law. Law defines chattel slavery in order to bring it into existence, while law defines ‘modern slavery’ in order to stamp it out. Law is complicit in chattel slavery, in a way that it is not in ‘modern slavery.’
3. This proposition is an antipositivist position because, if law necessarily creates freedom for its subjects, then law necessarily realizes a moral value, which makes law an inherently moral enterprise. Morality and freedom will be used interchangeably in this paper, for I take it to be common ground that freedom (once properly defined, of course) is a moral value. The morality that this paper is concerned with is the moral value of freedom, particularly the kind of freedom that is realized by law.
4. This counterargument is a positivist position because it asserts that law does not necessarily create freedom for its subjects. If it happens to do so, then it only does so contingently. The relationship between law and the moral value of freedom is protean, just as the relationship between law and morality generally is protean. On this view, law is not an inherently moral enterprise.
5. Matthew Kramer, “Freedom and the Rule of Law” (2010) 61:4 Ala L Rev 827 at 845.
6. Ibid .
7. Nigel Simmonds, Law as a Moral Idea (Oxford University Press, 2007) at 101.
8. Joseph Raz, Practical Reason and Norms (Oxford University Press, 1999) at 157-61.
9. See Philip Pettit, Republicanism: A Theory of Freedom and Government (Oxford University Press, 1997).
10. Ibid at 5.
11. Ibid at 22.
12. The form of law is specified by Fuller’s eight desiderata. For there to be a legal system, there must be: (1) rules, which are (2) published, (3) prospective, (4) intelligible, (5) do not contradict each other, (6) are possible to comply with, and (7) do not frequently change, where (8) official action is congruent with the declared rules. Lon Fuller, The Morality of Law (Yale University Press, 1964) at 39-41. Gardner takes issue with using the term ‘formal’ to describe these eight desiderata. Instead of the term ‘formal,’ he proposes the term ‘modal.’ According to Gardner, these desiderata constitute, not the formality, but the modality of law. Switching the term from formal to modal will not diminish its morality, for “a modal idea can also be a moral one.” John Gardner, “The Supposed Formality of the Rule of Law” in John Gardner, Law as a Leap of Faith (Oxford University Press, 2012) at 217. Modality might be a preferable term to formality, but the term formality has the benefit of familiarity, for it is the standard term used in the literature to describe these desiderata.
13. Philip Pettit, Just Freedom: A Moral Compass for a Complex World (WW Norton, 2014) at 25.
14. Pettit, supra note 9 at 66.
15. Simmonds, supra note 7 at 143.
16. Pettit, supra note 13 at 24-26.
17. Pettit, supra note 9 at 35-41, 174-77.
18. Simmonds, supra note 7 at 102-04 [emphasis in original].
19. Fuller, supra note 12 at 64.
20. Simmonds, supra note 7 at 85-88.
21. John Rawls, A Theory of Justice (Harvard University Press, 1971) at 239-41. See also Jeremy Waldron, “Why Law—Efficacy, Freedom, or Fidelity” (1994) 13:3 Law & Phil 259 at 266.
22. See Wesley Hohfeld, “Fundamental Legal Conceptions as Applied in Judicial Reasoning” (1917) 26:8 Yale LJ 710.
23. HLA Hart, Essays on Bentham: Jurisprudence and Political Philosophy (Oxford University Press, 1982) at 171-73.
24. Nigel Simmonds, “Rights at the Cutting Edge” in Matthew Kramer, Nigel Simmonds & Hillel Steiner, A Debate over Rights: Philosophical Inquiries (Oxford University Press, 2000) 113 at 165.
25. Ibid at 179.
26. Raz, supra note 8 at 149-54; John Finnis, Natural Law and Natural Rights (Oxford University Press, 1980) at 148.
27. See Simmonds, supra note 7 at 102-9; Simmonds, supra note 24 at 165-8.
28. Simmonds, supra note 7 at 193, in which Simmonds describes, without endorsing, the Kantian view of rights.
29. Joseph Raz, Authority of Law (Oxford University Press, 1979) at 170.
30. Simmonds, supra note 24 at 167.
31. Nigel Simmonds, “Straightforwardly False: The Collapse of Kramer’s Positivism” (2004) 63:1 Cambridge LJ 98 at 130.
32. Moses Finley, Ancient Slavery and Modern Ideology (Chatto & Windus, 1980) at 98. The master could, of course, in turn, chastise the slave—by beating or imprisoning the slave in an ergastulum—for the slave’s misdeeds. In any event, the master did not require a reason to beat or imprison the slave anyway—the master could do that for a reason or for no reason at all.
33. Sandra Joshel, Slavery in the Roman World (Cambridge University Press, 2010) at 40.
34. Keith Bradley, Slavery and Society at Rome (Cambridge University Press, 1994) at 55.
35. Finley, supra note 32 at 99.
36. See Ngaire Naffine, Law’s Meaning of Life (Hart, 2009).
37. Kristen Rundle, “Legal Subjects and Juridical Persons” (2014) 43:3 Netherlands J Leg Philosophy 212 at 218, 223.
38. Kristen Rundle, “The Impossibility of an Exterminatory Legality: Law and the Holocaust” (2009) 59:1 UTLJ 65 at 107-08.
39. Fuller, supra note 12 at 39-40.
40. David McIlroy, “When is a Regime not a Legal System?” (2013) 26:1 Ratio Juris 65 at 69.
41. Frank Lovett, A Republic of Law (Cambridge University Press, 2016) at 125, 128.
42. Simmonds, supra note 24 at 166.
43. John Rawls, “Justice as Fairness: Political not Metaphysical” (1985) 14:3 Philosophy & Public Affairs 223 at 243.
44. Modestinus, The Digest of Justinian, translated by Alan Watson (University of Pennsylvania Press, 1985) at Dig 40.8.2.
45. Gaius, The Institutes of Gaius, translated by Francis de Zulueta (Clarendon Press, 1946-1953) at 1.53; Joshel, supra note 33 at 72.
46. McIlroy, supra note 40 at 75.
47. Thomas Hobbes, Leviathan, edited by JCA Gaskin (Oxford University Press, 1998) at 1.13.9.
48. Simmonds, supra note 7 at 187.
49. Fuller, supra note 12 at 207-09.
50. Varro, On Agriculture, translated by WD Hooper & HB Ash (Harvard University Press, 1934) at 1.17.1.
51. Bradley, supra note 34 at 24.
52. Ibid at 26.
53. Bradley, supra note 34 at 25 citing Ulpian, The Digest of Justinian, translated by Alan Watson (University of Pennsylvania Press, 1985) at Dig 35.1.59.2.
54. Unlike Aristotle who thought that there was some natural basis to slavery, the Romans understood slavery to be the result of fortune, not nature. Losing a war, which led to enslavement, was sheer bad luck. The enslaved were not, in any sense, sub-human. See Deborah Baumgold, “Slavery Discourse before the Restoration: The Barbary Coast, Justinian’s Digest, and Hobbes’s Political Theory” (2010) 36:4 History of European Ideas 412.
55. Gaius, supra note 45 at 4.16.
56. Tacitus, The Annals of Imperial Rome, translated by Michael Grant (Penguin Classics, 1971) at 14.44.
57. Thomas Hobbes, Leviathan, edited by CB Macpherson (Penguin, 1968) at 255.
58. Simmonds, supra note 24 at 166.
59. Jean Jacques Rousseau, The Social Contract, translated by GDH Cole (JM Dent & Sons, 1920) at ch 4.
60. Ibid . Rousseau is here merely echoing what has been explicitly stated in the Digest of Justinian that slavery is “an institution of the jus gentium [the law of nations], whereby someone is against nature [the law of nature] made subject to the ownership of another.” See Florentinus, The Digest of Justinian, translated by Alan Watson (University of Pennsylvania Press, 1985) at Dig 1.5.4.
61. McIlroy, supra note 40 at 73. See also Robert Alexy, “On Necessary Relations Between Law and Morality” (1989) 2:2 Ratio Juris 167 at 176.
62. Finley, supra note 32 at 97.
63. Ibid .
64. In imprisonment or in the now obsolete punishment of attainder, something good (necessarily good) is withheld, either temporarily or permanently: the freedom of movement in the case of the former and legal personality (or at least part of it) in the case of the latter. Attainder was a criminal punishment that could be imposed following a sentence of death. If the death sentence was not carried out, the law could treat the person as legally dead nonetheless, with all of the person’s civil and political rights extinguished. Insofar as they are imposed as punishments for crimes, the withholding might be morally justifiable.