Yearly Archives: 2021
Jul 5, 2021 Allison Madar
In Race, Slavery, and the Problem of Numbers in Early New England: A View from Probate Court, Gloria McCahon Whiting makes significant contributions to the study of slavery in seventeenth- and eighteenth-century New England. She offers new insights into who made up that labor force, as well as into scholarly debates regarding the utility of quantitative analysis for historians of slavery.
Whiting examines volumes upon volumes of seventeenth- and eighteenth-century probate sources to better understand who lived and labored in Suffolk County, Massachusetts. In this, “the wealthiest and most populous county in New England,” Whiting argues that not only were indentured servants “supplanted early on by a near-complete reliance on African slavery,” but also that local Native populations “never provided a significant source of bound labor in the area.” (P. 407.) The first part of her argument is not one with which most scholars would take issue. Her assertion that local Native populations never made up a significant proportion of the enslaved labor force in the region, however, is more surprising. This argument challenges the scholarship of historians such as Margaret Newell, Wendy Warren, Jared Hardesty, and Linford Fisher, who have argued that large numbers of enslaved Natives played an important role in New England’s labor force well into the eighteenth century.
Whiting’s study is quantitative in nature and based on careful demographic calculations drawn from thousands of records. It required her to count. In the extant 110 volumes of Suffolk County Probate Court records, Whiting found that “wills, inventories, accounts, and other documents filed in the court mentioned 2,160 people in servitude” between 1639 and 1760. (P. 411.) Whiting traced the proportional decline of European indentured laborers over time and the increase in enslaved African laborers. Moreover, Whiting’s findings illustrate the difference in the ways that European indentured servants, enslaved Africans, and Native people, who were both enslaved and indentured by their masters, experienced bondage, and the early date at which New Englanders turned to enslaved labor.
Whiting takes a deep dive into legal documents in this essay, and focuses particularly on wills and the probate records that surround them. Because this is a case study, Whiting’s article speaks only for Suffolk County, “the commercial linchpin of the region,” and the county that “relied more heavily on the toil of people in bondage than … any other.” (P. 407.) If her findings differ from broader New England patterns, they emphasize the importance of considering regions—and in this case particular counties—on their own terms. Suffolk County, she asserts, is not and cannot be a proxy for the rest of New England. Other regions and towns developed different economies and most likely relied on different forms of labor.
But Whiting does more than quantify data. She also discusses the racial categorizations New Englanders used to identify their unfree laborers as a way to trace the racialization of Suffolk County’s labor force during the seventeenth and eighteenth centuries. Here, too, Whiting challenges previous understandings, arguing that the fluidity of “racial terminology” that might have erased Native people from the records in post-revolutionary New England did not exist in pre-revolutionary Suffolk County. Instead, Whiting claims that seventeenth- and eighteenth-century New Englanders identified their bound laborers consistently as “Negro” or “Indian” from entry to entry and did not shift back and forth between terms, and in so doing misidentify their laborers, or use them inconsistently, as was the case in later years. She concludes by providing insight into the ways that probate records can “enable us to trace the contours of Black families by revealing ties of blood and marriage recorded nowhere else.” (P. 429.) Probate records, then, offer more than quantifiable data and can allow scholars to access the lives of those who left little, if any, documentary evidence behind.
The so-called problem of numbers Whiting refers to in the title, then, is not a problem with her numbers, per se, but with the perceived problem of quantitative histories of slavery and the ways in which numbers erase—or fail to provide—information regarding the lived experiences of enslaved laborers. Critiques of quantification, Whiting discusses, arose around the creation of the Trans-Atlantic Slave Trade Database, which provides significant amounts of quantitative data on hundreds of thousands of nameless enslaved Africans. (P. 408 n.9.) And those critiques have continued. Scholars have rightly alerted us to all that “the archive” cannot tell us and the violence it reinscribes on those who experienced enslavement first-hand. Aggregation and the counting of bodies, they argue, tell us nothing about the brutality and horror that defined the institution and, instead, dehumanize the enslaved all over again. But even as Whiting makes plain that this study requires her to count, and is, indeed, about counting, she also acknowledges that the Suffolk County archive allows her to do more than just that. Her work is both quantitative and qualitative and, when possible, Whiting moves beyond the numbers.
Cite as: Allison Madar,
The ‘Problem’ of Numbers, JOTWELL
(July 5, 2021) (reviewing Gloria McCahon Whiting,
Race, Slavery, and the Problem of Numbers in Early New England: A View from Probate Court, 77
Wm & Mary Q., 3d ser., 405 (2020)),
https://legalhist.jotwell.com/the-problem-of-numbers/.
Jun 27, 2021 Jotwell
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May 31, 2021 Jedidiah Kroncke
In recent decades, a new wave of critical literature highlighted how the concept of “civilization” emerged in the 19thcentury as a rubric to judge countries as worthy (or not) of admission to the European order of international law. Today this scholarship is commonly referred to as the “historical turn” in international legal scholarship. Much of this literature explored the problematic racialized origins of the term “civilized,” as well as its persistent impact on international law today. In this context, Ntina Tzouvala’s Capitalism as Civilisation presents a next-generation interpretation of the legacy of “civilization” of international law today.
Tzouvala’s book is ambitious on a number of fronts. She approaches “civilization” not as a singular term but as an argumentative pattern driven by an oscillation between what she calls the “logic of improvement” and the “logic of biology.” “Improvement” here refers to international law’s embrace of progressive universalism, and “biology” refers to assertions of immutable cultural difference. While these ideas are seemingly at odds, Tzouvala emphasizes how these dual logics exist in productive tension. Together, they kept those once deemed “uncivilized” as perpetual objects of needed reform and irresolvable incompatibility.
But Capitalism as Civilisation is even more ambitious than simply providing this new framing of the now well-established “historical turn.” The book can be read as a generational statement about what critical scholarship on international law should and can be. Within a single volume it attempts to provide a convincing synthesis of core tensions in the field, if not in critical scholarship more generally. With care and confidence, Tzouvala’s aims to integrate material analysis into the predominately discursive and deconstructive focus of her critical predecessors on the indeterminacy of international law.
Like many today working under the frame of “law and political economy,” Tzouvala wants to avoid Marxist scholars’ dismissal of discursive approaches while still arguing for the necessity of a “materialist framework for understanding legal indeterminacy.” (P. 38.) In what could be called nothing less than the holy grail of critical scholarship, the book seeks to fuse both “epistemological relativism and ontological realism.” (P. 13.) To do so she takes up how the creation of the modern international legal system was inseparable from the creation of the modern international economic system—for Tzouvala, understood as the spread of global capitalism.
Her first chapter delves directly into melding an understanding of the expansionist nature of global capitalism and its interplay between her two logics in 19th century international legal thinking. In her second chapter, she gives specific focus to the now-classic example of extraterritorial regimes as premised on the empirical “improvement” of domestic legal systems (as generally judged through comparison with idealized forms of capital-friendly economic regulation) but ever-susceptible to arguments of “biological” cultural incommensurability to shift the proverbial goal-pasts. Similarly, she explores how the international abolition of slavery was turned against colonized countries as a lever to induce reforms amenable to modern wage labor markets.
Her next three chapters link together the early 20th and 21st centuries to show the way in which the language of international law repackaged the logics of improvement and biology even after the formal demise of “civilization” as a central frame. Chapter 3 looks to the post-World War I Mandate System where, in particular, struggles over the British presence in Iraq after the Anglo-Iraqi Treaty set into collision new alchemies of informal power, “good governance,” and essentializing cultural reasoning. Chapter 4 primarily centers on the “South West Africa saga” from the late 1940s to the early 1970s which saw the International Court of Justice confronting challenges by Liberia and Ethiopia to South Africa’s presence in modern Namibia. For Tzouvala, the outcome of this judicial contest required displacing concerns with exploitative economic development as a basis of critique to normalize a more circumscribed language of judicialized rights. Chapter 5 brings the analysis into the contemporary era by showing how the invasion and post-invasion administration of Iraq after the second Gulf War, as well as the larger war on terrorism, relied again on both logics to demand particular market reforms while opportunistically falling back on arguments regarding cultural difference for justification or explaining away failure.
In threading her discursive and material needle, Tzouvala argues that activists or scholars who strategically embrace either logic as tools of resistance ultimately contribute to crippling more radical critique. With little fear of the polarizing terrain it has recently induced, she clearly outlines examples where the language of human rights was used to displace systemic critiques of capitalism, and the domestic and transnational social movements that embraced them. Similarly, she provocatively unpacks how this argumentative strategy is redeployed in modern international humanitarian legal vocabulary—exemplified in the recurrently stable set of countries “unable or unwilling” to properly self-govern and thus legitimating external intervention. Here remedying the elision of the material context of economic development—at least as a contested arena of publics rather than technocratic “best practices”—renders the stakes and drivers of doctrinal debates visible.
With such theoretical ambition, Capitalism as Civilization will be off-putting to some who would be uncomfortable with its clear invocations of Marxist legal theory—even as it spends much energy addressing the limitations of its recent critical standard-bearers in her field. Yet, it can be read productively alongside many recent works with quite divergent theoretical positions. For example, her Australian National University colleague Anthea Robert’s recent Is International Law International? provides detailed exemplification of both the specific material and discursive practices by which modern international lawyers continue to assert their unsullied transcendence of cultural chauvinism (while replicating patterns of social and economic inequality in and between nations). Similarly, Gao and Shaffer’s study of the “improvement” of China’s performance at the WTO, and the United States’ concomitant withdrawal, exposes the material consequences when the submerged cultural presumptions of international law are challenged.
Critically, Tzouvala’s broadening of the analysis to include the context of capitalism’s near complete global spread and indigenization is necessary for understanding a changing global order in which the traditional discursive anchors of previous critiques have lost trenchancy. It is clear that terms such as “the West,” or even the more recent “Global South,” struggle to capture the assertive global role of China or the regional rise of ethnonationalist authoritarian politics in India or Brazil—all of which exist in a deeply economically integrated capitalist world order.
Tzouvala’s ultimate audience is still quite specific. Her motivating concern is that recognizing legal, or epistemological, indeterminacy is a wholly insufficient ground for generating an effective radical counter-politics. If advancing a critique of capitalism is not already within one’s normative frame, then there are many places where the book can provide reason to disengage. Still, even for those least-disposed to consider this their own concern, the synthetic breadth of Tzouvala’s work should be read as an effort of intellectual reconciliation that will continue to be at the heart of critical legal scholarship in coming decades in and outside of international law.
May 4, 2021 Christopher W. Schmidt
For almost half a century, Roe v. Wade has been a dominant presence in debates about the Constitution and the Supreme Court in the United States. Other contentious rulings come and go. (In 1973, the year in which the Supreme Court decided Roe, commentators typically identified obscenity regulation as the most explosive issue the justices faced. No one mentioned Miller v. California at the most recent Supreme Court confirmation hearings.) But Roe remains, year after year, a uniquely urgent and divisive focal point in the nation’s constitutional discourse. In her important and insightful new book, Abortion and the Law in America: Roe v. Wade to the Present, Mary Ziegler explains how the debate over Roe has evolved and why it endures.
This is Ziegler’s third book on Roe’s impact on American society and law. In her first, After Roe: The Lost History of the Abortion Debate, published in 2015, she explored struggles over abortion in the immediate aftermath of Roe. The debate she found in this period was more fluid and multivalent than the pro-choice/pro-life, liberal/conservative, Democratic/Republican dualism that solidified in the 1980s and remains today. In 2018, Ziegler published Beyond Abortion: Roe v. Wade and the Battle for Privacy, an examination of how Roe reshaped legal debates in contexts outside abortion.
For readers of Ziegler’s prior work, her newest book has a familiar feel. She relies on the same research methods she used to such impressive effect in her first two books: archival research, interviews with key players, and analysis of traditional legal sources, such as written opinions, briefs, and oral arguments. She also returns to key themes from her earlier work, locating underappreciated complexities and nuances in debates over Roe, emphasizing the radiating effects of Roe beyond abortion, and placing political social movement activism alongside litigation as mechanisms of constitutional change.
The fresh insights in Abortion and the Law in America come from Ziegler’s decision to follow the post-Roe abortion debate up to the present day. The book begins with a description of our current abortion debate and then asks how we got here. The chronological narrative of the book is basically an extended answer to this question. Ziegler guides the reader through a thoroughly researched, richly detailed, comprehensive historical account of how, across the last half century, pro-choice and pro-life activists and lawyers pursued their agendas. She is particularly insightful in exploring divisions within the abortion-rights and anti-abortion movements as she navigates back and forth between social movement activism, policy developments, and constitutional litigation. Although it’s not hard to discern that her sympathies lie with those who advocate for abortion rights, Ziegler never reduces or caricatures her subjects. She recognizes the principled commitments that drove activists on both sides while also charting their strategic opportunism, inconsistencies, and factionalism.
Within her narrative, Ziegler threads an argument for revising the way we think about the history of abortion rights. She argues that as the leading edge of the abortion debate shifted in the 1980s from demands to ban abortion to battles over “incremental restrictions designed to undermine Roe,” the terms of the debate “changed in ways we have rarely appreciated.” (P. 2.) When pro-life advocates realized that amending the Constitution to end legal abortion across the nation wasn’t going to happen, they turned their focus to pushing more aggressive abortion regulations and overturning Roe in the courts. As a result, contestation over the social effects of reproductive rights joined and often displaced the foundational question of whether the Constitution protects a right to abortion. Arguments about abortion that centered on rights—the right of the mother to reproductive autonomy on one side, the right to life for the unborn on the other—shifted to less absolutist debates about regulatory policy. “The struggle,” Ziegler writes, “has increasingly turned not only on rights-based trumps but also on claims about the policy costs and benefits of abortion for women, families, and the larger society.” (P. 2.)
“Fights about abortion have mirrored much more than core arguments about choice and life,” Ziegler writes, and much of Abortion and the Law in America is dedicated to documenting the proliferation of the grounds of debate. “Battles about incremental restrictions consistently reflected a complex set of beliefs about issues only tangentially related to abortion,” she explains. “The abortion struggle offered a window into disagreements about poverty, personal responsibility, welfare reform, maturity, parenthood, marriage, the health care system, and the trustworthiness of the media and the government.” (P. 211.)
Ziegler argues that, contrary to commonplace assumptions, when the debate centered on the costs and benefits of abortion rather than on the fundamental rights at stake, the issue became more polarized, and the divide between the sides deeper and more enduring. It’s a provocative claim, although it’s not fully clear how one would prove it. If the abortion debate has in fact become more polarized over time, why, of all the possible contributing factors, would we identify this as the cause? Why would a shift in focus from a fight over the medical necessity of particular abortion procedure or about the health benefits of medical regulations be more polarizing than a debate about when life begins or about the relationship between reproductive rights and equal citizenship for women?
There are alternative frameworks to understand how the abortion debate changed as it diffused into related issues. One possibility would be to highlight the ways in which an already deeply polarized abortion debate fueled polarization elsewhere, while polarization elsewhere, in turn, reinforced the polarization on abortion. People’s views on social welfare, gender roles, and scientific expertise certainly inform their views on abortion. But their views on abortion also inform their views on these closely related issues. This is the polarized world in which we inhabit, filled with mechanisms that reinforce and amplify the cultural divisions.
Rights-based claims and arguments about the costs and benefits of abortion are best understood as symbiotic, as overlapping categories between which activists moved frequently and easily. The idea of absolute rights may be useful rhetorically, but in practice they’re non-starters. In American law rights claims unavoidably raised questions about policy costs and benefits. Rights and policy offer strands of abortion framing that are at once antagonistic and complementary, with the salience and content of the categories shifting across time. Rather than a single persistent abortion debate, Abortion and the Law in America reveals a dynamic constellation of overlapping abortion debates.
Ziegler concludes her book by reflecting on how the history of the abortion debate provides insights into possible future developments. One point she emphasizes is that debates about abortion have always been about much more than any single Supreme Court decision. This fact, which Ziegler has demonstrated across her three books, means if the Supreme Court overturns Roe—a development she believes likely with recent appointments to the Court—the basic lines of division over reproductive rights will remain. They will remain because the American people remain divided over not only over abortion but also over welfare policies, gender roles, scientific expertise, and all the other issues that have become inextricably intertwined with abortion. Abortion and the Law in America offers an essential resource to help us understand not only what Roe has accomplished but also what a post-Roe world might look like.
Apr 2, 2021 Angela Fernandez
Christopher Tomlins’s new book, In the Matter of Nat Turner: A Speculative History, is a tour de force. It retells the history of Nat Turner’s famous rebellion with a focus on Turner’s religious motivations. The book begins by explaining the shortcomings of previous accounts of Turner, attempting to reconstruct what might have motivated Turner to decide in August 1831 to lead a group of fellow slaves on a campaign in Southampton, Virginia, “to rise up and kill all the white people.” Tomlins’s book shows how historical speculation and conjecture can be done in a way that is nonetheless solidly grounded in biblical, philosophical, anthropological, and historical context. The book is about Turner, yes, but insofar as it demonstrates the approach—call it “grounded speculation”—it is also a reflection on history itself and what to do as a historian when the historical event you are interested in is simultaneously under-documented and over-interpreted.
Tomlins begins by outlining the problems with two widely-relied upon accounts of the Turner Rebellion, both titled The Confessions of Nat Turner, which co-opted Turner in the service of other agendas. First, there was the contemporary account given by white county lawyer Thomas Ruffin Gray to whom Turner confessed while in prison awaiting trial. Gray produced a very complicated text about which Tomlins writes, “[it] is undoubtedly evidentiary, but evidence of what?” (P. 31.) What follows is a very nuanced reading of the work and what can and cannot be inferred from it.
Secondly, Tomlins critiques the 1967 best-selling book written by white novelist William Styron. Styron purported to be providing a historical “meditation” on the event. However, he was not a historian. Tomlins persuasively argues that Styron was, in reality, using Turner to make sense of the race riots of the 1960’s and to fulfil Styron’s own self-involved fantasy of what he thought of as every Southerner’s duty to come to know “the negro.” Both men treated Turner’s “enthusiasm as insanity.” (P. 11.) And both were profiting by turning Turner’s story into their property. (P. x.)
Tomlins, by contrast, embarks on a “work of recovery and recognition” (P. x) to understand Turner “on his terms.” (P. 22, emphasis in the original.) Specifically, Tomlins analyzes how Turner saw himself as commanded by God to take up, as reluctantly as Abraham did the command to kill his own son, God’s “work of death.” What follows is simultaneously chilling and immensely instructive. Tomlins weaves, often through long and learned footnotes, his own reflections on philosophical topics such as Walter Benjamin’s concept of “divine violence,” central to Tomlins’s conjectures about Turner. (See Pp. 279-80, note 3.)
Tomlins wants most to emphasize the profound religious faith likely underlying Turner’s actions. He argues that faith has been washed out by those who have made but a feeble attempt to understand Turner, Grey who was “irreligious” (P. 86) and Styron who was not interested in religion. The Prologue starts with a of the cover of Styron’s novel (P.1), Chapter 1 with a reproduction of the title page of Gray’s work, and Chapter 2 with a photograph of Turner’s bible. (P. 50.) Tomlins starts the religious reconstruction with the Gospel of Luke because Turner lived all his life in St. Luke’s parish in Southampton County (P. 52), and because of the appropriateness of some of the teachings in this Gospel relating to “reversal” (P. 55) and how “the first [the white slave-owning Virginian] should be last and the last [the slave] should be first.” (P. 61.) As Tomlins describes, Turner “has been widely identified as a lay preacher […] was highly intelligent (that is generally accepted), and he was highly literate […] like Christ he too was thirty years old when [as he put it] the time came to ‘arise and prepare myself.’” (P. 77.)
In addition to a range of other biblical texts, Tomlins also connects Turner’s revolutionary eschatology and his Virginian Methodism to Jonathan Edwards, arguing that Turner likely saw himself as comparable to David in David and Goliath. (P. 79.) Chapter 3 takes up the notion of “divine violence” that Turner saw as demanding his action as a kind of Kierkegaardian “Knight of Faith” with no choice but to obey God’s command whatever ethics and the law said, and however horrifying the consequences. Chapter 4 describes the killings, what Turner called his “work of death,” deliberate and methodical. What was its logic? Tomlins writes that, according to Locke, “killing those who would maintain one in relations of dependence is a means to obtain a property in oneself.” (P. 96.) Perhaps that was the kind of politics that inspired others to follow Turner; yet for Turner, Tomlins emphasizes, it was first and foremost a matter of faith.
Where the earlier chapters deal with the religious reconstruction of what might have been Turner’s mindset and the event itself, the last two chapters of the book, Chapters 5 and 6, deal with the fall out or ripple effects of the rebellion in a fragile and fractious Virginia. The state was split between slave owners in the East and a West with more development-oriented interests. Here we are told about how Turner, “the self-possessed rebel” (P. 141), haunted the state’s Constitutional Convention in 1829-30, controversies over using (discounted) slave labor on public work projects, and debates about emancipation in 1831-32. The rebellion helped support pro-emancipation on the grounds of safety and security, the danger that “proximity” between blacks and whites raised, and the idea, however briefly entertained, from the Western part of the State that “the right of private property must yield to the right of society to be secure.” (P. 181.) The pro-property East, concerned about the loss of their capital in future slaves that would be born and manumitted once they reached the age of majority, pushed back against the idea that this “increase” was not naturally (and legally) theirs. To white Virginians, Turner had to be presented to the public as an irrational and insane aberration, the perpetrator of a wild and random massacre that made no sense and was unlikely to repeat itself. “‘[W]ild and intemperate’ proposals for abolition and emancipation … ‘subversive of the rights of property’” were neither necessary nor welcome. (P. 188.)
This work is very unlike Tomlins’s earlier books given the way that it focuses on a specific event. It is challenging reading for a number of reasons. First, there are the descriptions of the killings in Chapter 4. They put me in the mindset of Truman Capote’s In Cold Blood, another best-selling “true crime” novel from the 1960’s, gripping yet awful in their details. Tomlins presents the killings in a very matter-of-fact and non-sensationalist way that gets the point across but nonetheless left me at least feeling disturbed.
Second, trying to climb inside spiritual and supernatural faith when you do not share it is not an easy thing to do and many readers will likely find themselves in this position. It is challenging for us (just as it was for Gray and Styron) not to secularize such an event. Yet in Turner’s case, Tomlins is asking us to refrain from turning Turner into “a conscript of modernity,” making him into something sensible to us and inappropriately substituting a flat figure for a three dimensional person who was motivated by spiritual and supernatural faith. (P. 280, note 3.)
Thirdly, looking for the logic in “divine violence” or “righteous violence” runs up against abhorrence of violence and the urge to condemn it in any form. Yet it is not our job as historians to try and stand in the same shoes as the Southampton County Court to condemn Turner’s acts (or to try to explain and try to excuse them). The job of the historian is to try to read and understand (especially difficult) events on their own terms and, as Tomlins elegantly puts it at the end of the book, “be ready to read what was never written.” (P. 218.) That imaginative leap is required when it comes to the thinly documented, e.g. the person at the center of the Turner Rebellion. It is just those topics that most deserve our attention, as they will often involve incidents, events, or people that are easy to misunderstand and manipulate into something quite different from who and what they were.
