"The laws were laid down to me anew": Harriet Jacobs and the reframing of legal fictions

African American Review, Summer, 1998 by Christina Accomando

As a multiply disfranchised subject, Jacobs writes against the dominant voices of Southern slave law and of the law itself. Antebellum legal scholars, like her contemporary Thomas Cobb (a Georgian who wrote the fundamental Southern treatise on slave law), framed their defenses of slavery in the falsely neutral and universal terms of legal rationality and precedent, while discrediting or omitting slave voices.(3) In numerous and varied ways, the laws of slavery attempted to erase and silence African Americans, to deny their subjectivity, to say they did not exist as individuals. Laws governing legal testimony, racial identity, literacy, miscegenation, rape, and reproduction defined slaves and African Americans in specific yet contradictory ways - as nonhuman, with dangerous sexuality and nonexistent subjectivity. These legal and political fictions were just that - constructed fictions - but they have had tremendous power. Analyzing legal, political, and literary discourses of slavery can help deconstruct these fictions and their power (which did not vanish with emancipation). This article examines nineteenth-century statutes and Thomas Cobb's 1858 legal treatise alongside Harriet Jacobs's critique of slave law in order to probe contradictions in discourses of slavery and to demystify legal fictions more broadly.

Part of the power of legal discourse is its pretense at objectivity, neutrality, and rationality. The legal system attempts to make its workings and maneuvers invisible. Exposing instabilities and slippages, as Harriet Jacobs does in her narrative, helps to demystify these workings, not just in slave law but in its descendants as well. Legal scholar Angela Harris argues that introducing multiple voices and shifting perspectives as a theoretical approach to both law and literature can help dislodge this appearance of neutrality. In "Race and Essentialism in Feminist Legal Theory," Harris argues for "multiple consciousness" as an antidote to disciplinary restrictions in the voices of law and literature. It is crucial, she argues, not to let either possible extreme - the single "neutral" voice of law or the lack of context of literature-narrow the scope. While law and literature often are seen as occupying completely different spaces, challenging these boundaries can illuminate the study of both disciplines. Harris discusses literary and legal scholars who "struggle against their discipline s grain,"(4) and she argues for the need "to understand both legal and literary discourse as the complex struggle and unending dialogue between these voices." She seeks not a "static equilibrium between two extremes, but rather a process in which propositions are constantly put forth, challenged, and subverted" (237). I want to use her approach to destabilize the seemingly neutral language of law and policy by critiquing these discourses and eventually shifting discussion to other narratives as well. "In order to energize legal theory," argues Harris, "we need to subvert it with narratives and stories, accounts of the particular, the different, and the hitherto silenced" (255). I want to subvert the falsely "neutral" categories of slave law with narratives from Harriet Jacobs's book and with resistant readings of the laws themselves. Jacobs herself takes such an approach by subverting the dominant discourses with multiple voices and accounts of the silenced.

Such a project is important not only to understand a past moment in history, but also to contribute to an understanding of racism and legal discourse in the present. The current political climate in the U.S. is marked by both retrenchments in civil rights law and claims of progress and "color-blindness." From the Supreme Court's dilution of voting rights to the UC Board of Regents' elimination of affirmation action, attacks on the gains of the last three decades are cloaked in the language of neutrality and fairness. Judge and legal scholar A. Leon Higginbotham provides strategies for decoding such language through his examination of both slave law in U.S. history and racism in current law. Arguing that Americans must pay attention to the legal roots of slavery, he exposes various ways the seemingly neutral law sought to deny personhood to slaves and to African Americans more generally. "However tightly woven into the history of their country is the legalization of black suppression," he writes, "many Americans still find it too traumatic to study the true story of racism as it has existed under their 'rule of law'" (11). This "true story" is difficult to come by through a passive reading of law. Since "the language of the law shields one's consciousness from direct involvement with the stark plight of its victims," Higginbotham argues for a "skeptical reading" of legal discourse. Slave narratives can provide some of the material for such a reading of antebellum law. While Higginbotham focuses on historical analysis, he also points to modern legacies: "The poisonous legacy of legalized oppression based upon the matter of color can never be adequately purged from our society if we act as if slave laws had never existed" (391). By examining legal tellings of slavery in the mid-nineteenth century, from apologist Thomas Cobb to abolitionist Harriet Jacobs, we can confront that existence of slave law in an historical moment when debate over the legality of slavery was especially fierce. In the midst of modern-day claims of color-blindness and race neutrality,(5) it is particularly crucial to confront our history of legalized racial oppression.