Legal fiction, past and present
Quoting fellow roasters from the previous post about innocent detainees at Guantanamo:
Once you establish a special class of human beings who have absolutely no rights under the law, you’ve essentially opened the Gates of Hell. [StrangeAppar8tus]
I never understood why any place under U.S. jurisdiction could be considered beyond the law, no matter where it was. The NeoCons’ dodges and rationalizations seem no more than what children do when they cross their fingers behind their backs. [Mrs. Polly]
This status effect is amplified and far more pronounced for walking, talking non-white fleshbags outside the contiguous USA. [Ripley]
One convenient way to create that special sub-class of humans, or to create a jurisdiction-free zone in which to place them, is to rid the law of any consideration of equity. Law professor and award winning author of The Hemingses of Monticello, Annette Gordon-Reed, describes the doctrine of equity and the role it plays in helping to mitigate against the risk that those in power will use the law to oppress others. Or, perhaps it is better said that Gordon-Reed shows how, in the case of slavery, the doctrine of equity was overlooked in a way that preserved one group’s supremacy over another.
The way the law was manipulated by the powerful Virginia burgesses, the slave owners, is closely analogous to the present day situation at Guantanamo. Juxtapose the doctrine of equity and its omission from any legal consideration with regard to slaves to the circumstances of innocent civilians who were picked up in large sweeps throughout Afghanistan and Iraq, and who were then tossed into the brig at Guantanamo. As we heard Rachel Maddow ask, and the former Guantanamo prosecutor Lt. Col. Vandeveld answer, [link], there was literally no way out of Gitmo for these people. It’s precisely what StrangeAppar8tus pointed out above: the Bush administration manipulated and evaded the law in order to create a special sub-class of humans who were yielded no rights whatsoever, and in doing this, they re-opened the Gates of Hell.
In the passage below, Ms. Gordon-Reed is talking about John Wayles (Thomas Jefferson’s father-in-law and Sally Hemings’s father), and the mixed race Elizabeth Hemings, who was Sally Hemings’s mother. Elizabeth Hemings first had several children by a black man, and then several more by John Wayles, the man who owned her. Remember also that this quaint scenario makes half-sisters of Martha Wayles, Thomas Jefferson’s wife, and Sally Hemings, Thomas Jefferson’s concubine. (I know, I know ... so make a chart!)
Gordon-Reed is analyzing the condition in which Elizabeth Hemings and her blood relatives, both black and mixed-race, found themselves, and the legal fiction which allowed their enslaved condition to exist. Follow her thoughts closely as she talks about a perplexing problem for the Virginia burgesses: is a mixed-race child considered by the law to be free, and thus have rights (which would play hell with their own property rights), or should they adjust the law so their own paternity could be obliterated, thus leaving the children with no rights whatsoever, just as their mothers had none. If they had no rights, the children can be treated as personal property to be bought, sold, passed on through probate, or kept in continued bondage by their master and owner. In the end, the Virginia burgesses crafted the law to precisely fit the slave masters needs, that they could have sex and impregnate their slaves without the risk of creating free, mixed race children. They did this by making it impossible for a mixed race child to legally claim the white slave master as their father. It’s very convenient to ignore equity in law when you want to deprive one, whether slave or prisoner, of their inalienable rights as human beings. Here is Ms. Gordon-Reed:
The fictions and presumptions about bastardy and marriage serve definite purposes in a legal system seeking easy ways to determine who was eligible to inherit property, who had the right to a child’s labor, and who could be held liable for support of a child. Efficient as they may have been, these fictions yielded answers that were not always truthful and certainly not always moral. Although they were tailor-made for the needs of the law, and so perfect a fit for historical or biological conclusions, there is little doubt they have come to represent what people take to be actual reality. They hover in the consciousness even when outside indicators suggest they should not be relied upon. If by law, Hemings’s children had no father, as even extralegal convention would have it, John Wayles could not be their father unless he was willing to say he was.
... This way of thinking does not apply to the black men who fathered children with enslaved women to whom they could not have been legally married because the absurdity of the fiction as a statement of actual reality would then be too patently clear. Applying the precepts of filius nullus [the children of no one] to enslaved families would require pretending that from the late 1600s to 1865 no American slave ever knew who his or her father was, an idea that is nonsense on stilts. Why would slaves have known who their fathers were when those men were black, but not know when the man was white? Indeed, if the black man who fathered Elizabeth Hemings’s older children had been named, it is a safe bet that no question about his paternity would even be raised. But when a demonstrably mixed race people speak of their white father or forefather, at most the white man is portrayed as the “alleged” father or the “said to be” father, as if there had been some white “Mr. Noboby” (“Mr. Nillius?) out there impregnating all the enslaved women in America. Presenting the life of mixed-race individuals in slavery poses a great challenge precisely because there is such hesitancy about accepting their competence when they explain how they came to be mixed race. The reluctance to accept the prevalence of interracial sex, other than as a generalization, avoids the perceived “cost” or “hazard” of naming a specific white man.
...
What we have in considerations of white male slave owner’s paternity of slave children is a version of Anglo-American law without its usual complement of Anglo-American equity. The doctrines of equity exist alongside the law to help mitigate the harsh and unjust results that come from too strict adherence to legal rules. For example, when no formal documents exist to prove that individuals entered into a contract, but the circumstances strongly indicate that an agreement was made and that one party will be severely damaged if the contract is not recognized, equity allows stepping outside formalities to consider other evidence and, when possible, to do justice.Law, not equity, lay at the heart of the American slave system. Under this regime of law with no equity, John Wayle’s power as a slave owner remains as potent as the power he held as a legal husband and father. Slave owners like Wayles, who could force others to see the world through their eyes, virtually guaranteed that their lives and interests would be seen as paramount importance in the writing of history. And because Wayles was a legally married man—three times—no one would ever think to suggest that the children born of his legal marriage could have been the children of someone else, though that was certainly possible. Even to open that inquiry, other than in the most extreme circumstance, would provoke outrage. Historians might pause at suggesting that a white man might have fathered a child of his own race outside marriage, a so-called bastard, whom he did not acknowledge. That, too, would be considered a “bad” thing, although one wonders what stake a historian could have in protecting a subject’s legal family against what could be a legitimate, that is to say, historically or biologically accurate claims established through means other than a marriage license. One can understand a legal family’s interest: they want to keep “Daddy” or “Grand Daddy” and his legacy all to themselves. Deeply felt as that desire may be, it simply cannot be taken seriously as a matter of history.
What do we make of this in the context of Hemings’s life under eighteenth-century Virginia’s system of slavery? We know she lived in a slave society with rules of law specifically fashioned to make possible, and then to obscure when necessary, the nature of one group’s oppression of another. In ways that should be clear to modern observers, even if it was not to people at the time, the law in that setting functioned essentially as a racket designed for the protection of whites. How does one begin to get at what was “real” or “true” in such a context? Playing along with the racket is an all too easy, wholly unworthy enterprise because it ratifies the view that “extralegal” blacks, like Elizabeth Hemings, deserve no protection and that “legal” whites, like John Wayles, are to be protected at all costs—even at the cost of reason. This simply reenacts the world of master and slave in the pages of history. It is only through piercing the viel of southern society’s laws, including its fictions about family, that we can take the first step in getting at the reality of black and white lives under slavery.
A final point: this post is not comparing the physical conditions of slavery to the physical conditions at Guantanamo. It’s comparing how in one case, slavery, laws were created that operated outside any doctrine of fairness or equity and thus led to the ‘legal’ oppression of a group of people, to another case, Guantanamo (and torture) where a group of powerful Americans intentionally circumvented the law (and any consideration of equity) by operating a facility outside US jurisdiction. In this latter case, it would appear the sole purpose of moving out of US jurisdiction was indeed so that equity in law could intentionally, and in their minds, legally, be ignored. This is one way to suppress the human rights of targeted individuals.
NOTE: Updated to include two paragraphs at top of the Gordon-Reed excerpt.
Posted by poputonian on 02/03/09 at 09:43 AM • Permalink
