The Problem of Slavery: Natural Law v. Positive Law [No. 86]
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The Problem of Slavery: Natural Law v. Positive Law [No. 86]


When you’re starting to deal with the slave
situation, there is an obvious tension between the natural law on the one hand, and the positive
law on the other hand. According to Justinian, and virtually everybody
else at the time, slavery was against the laws of nature, which was essentially thought
to guarantee the freedom of every individual, but nonetheless, it was part of the positive
law. The abolition of slavery in the United States
was one of the issues that triggered the bloodiest conflict that this country had ever entered
into. It was about trade, but essentially the issue
that drove everybody, was the issue about slavery. The reason why it’s so difficult, is if you
come within the legalistic tradition there’s a strong system of vested rights, if you come
within the natural law system, none of this really counts for anything at all. It’s just very difficult through the art of
fine persuasion to work a compromise. Lincoln, of all people, understood this better
than anybody else. If you read some of his statements and so
forth, having to do with Dred Scott and so forth, he made concession after concession
to the Southerners on these kinds of issues because he understood the enormity of trying
to upset one of these kinds of arrangements. When you do modern American constitutional
law, it’s really important to understand the level of doubt, anxiety, and turmoil that
took place between the period of Dred Scott, which was decided about 1856 or so, and the
adoption of the 13th, 14th, and 15th Amendments. Two very different traditions have to come
to peace. We know which one won in the end, but if you’re
trying to do history it’s much better to understand the turmoil as it unfolded to the parties
who were involved, rather than looking at the result that came out of it and treating
it as though it’s inevitable; and therefore, understanding not a whit about how it was
that the debate was framed in the earlier period. Good historians are extremely careful about
all of that stuff, and when you start to do so you can see just how perplexing an issue
slavery turns out to be. This is not to say that it’s part of the new
program of a political party to re-institute the institution, nobody believes that of course,
it’s just a way to say that transitions are always messy, even if the moral position at
the end of the day is crystal clear.

One Comment

  • Ron Beck

    Usually, therez very lil morality n DUH law. Itz usually, just a CONsequence of bizness & makin sum LOOT.

    HEY…… We all, gotz 2 eat & sum of U.S., mo, than othaz. Morality, seemz 2 b a useful idiot, n many of our legalitiez, BUTT nevitably, itz da bizness, dat iz runnin thangz.

    If morality wuz a barometer of if there should have been slavery or not, good Christian, lily peephole, would never have ngaged n it, n DUH 1st place! Now would they? Da Bible CLEARLY statez – DO UN2 OTHERZ, AZZ U WOULD DO UN2 URSELF. It does not say, treat folkz like crap, if u can. It don't say, – if ur mo learned than DUH next yokel, itz ok 2 take advantage of him or her, – yet, even within DUH law, we find many of these typez of abusez.

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