Justice Accused: Antislavery and the Judicial Process

Description

What should a judge do when he must hand down a ruling based on a law that he considers unjust or oppressive? This question is examined through a series of problems concerning unjust law that arose with respect to slavery in nineteenth-century America. “Cover’s book is splendid in many ways. His legal history and legal philosophy are both first class. . . . This is, for a change, an interdisciplinary work that is a credit to both disciplines.”—Ronald Dworkin, Times Literary Supplement “Scholars should be grateful to Cover for his often brilliant illumination of tensions created in judges by changing eighteenth- and nineteenth-century jurisprudential attitudes and legal standards. . . An exciting adventure in interdisciplinary history.”—Harold M. Hyman, American Historical Review “A most articulate, sophisticated, and learned defense of legal formalism. . . Deserves and needs to be widely read.”—Don Roper, Journal of American History “An excellent illustration of the way in which a burning moral issue relates to the American judicial process. The book thus has both historical value and a very immediate importance.”—Edwards A. Stettner, Annals of the American Academy of Political and Social Science “A really fine book, an important contribution to law and to history.”—Louis H. Pollak Contents Acknowledgments Prelude: Of Creon and Captain Vere 1. The Intellectual Tradition: Slavery, Natural Law, and Judicial Positivism in the Eighteenth Century Part I: Nature Tamed 2. Natural Right in Legislation 3. Judicial Construction of a Natural Law Text: The "Free and Equal" Clauses 4. Statutory Interpretation: In Favorem Libertatis? 5. Conflict of Laws 6. Perspectives From International Law Part II: Rules, Roles, and Rebels: Nature's Place Disputed 7. Some Paradigms of Judicial Rhetoric 8. Formal Assumptions of the Judiciary 9. Formal Assumptions of the Ant Isla Very Forces 10. Positivism Established: The Fugitive Slave Law to 1850 11. Positivism and Crisis: The Fugitive Slave Law, 1850—1859 Postscript to Part II Part III: The Moral-Formal Dilemma Introductory Note 12. Context for Conscience 13. Judicial Responses Postscript to Part III Appendix Notes Index