From the Plantation to the Penitentiary: Interpretation, Literature and the Law

This seminar explores the redefinition of civil life in nineteenth-century America by concentrating on how punishment, prisons, and incapacitation not only become critical to the ideology of democracy and freedom, but also shaped a genealogy of property and possession essential to what Thomas L. Durham in Democracy and Punishment has called "The American Project". We will be expanding our understanding of what constitutes this exclusive locale throughout the semester.


Ratification of the Thirteenth Amendment to the Constitution had been announced in December 1865. The Thirteenth Amendment outlawed slavery and involuntary servitude "except as punishment of crime whereof the party shall have been duly convicted". The legal exception became the means for terminological slippage: those who were once slaves were no criminals. Such an amendment literally amounted to nothing more than an escape clause, a corrective that left the vestige of enslavement intact. Some of the questions crucial to our investigation of the continuity between slavery and incarceration follow: How do narratives of the past get told by law? How does the mobilization of history trump arguments about justice? What are the legitimate rights of the state over the liberty interests of the incarcerated? What is the relation between the status of criminal as "slave of the state" and slave as a property or thing? What are the conditions sufficient for attaining the status of "citizen"?


Through an examination of legal, philosophical and historical texts, as well as fictional and film reenactments of incarceration and criminality, the seminar will examine the varying controversies about personal identity, servitude, and finally, the legacy of such legal fictions as "civil death" or being "dead in law." Using contradictory images of law that intervene in everyday life through strategies of containment and exclusion: chain gangs, special management, treatment, or control units, and capital punishment.

Melville

This course is an intensive reading in the prose and poetry of Herman Melville, especially Moby Dick (1851); Pierre, or the Ambiguities (1852); Israel Potter (1855); The Piazza Tales (1856), The Confidence Man (1857); Battle Pieces and Aspects of War (1866); Clarel: A Poem and A Pilgrimage (1876); Billy Budd, Sailor (1924). Only in the conclusion of the course will we turn to a discussion of literary critical approaches to these works. For the burden of this class will lie in our close readings and contextualization of Melville's writings, which will demand some familiarity with authors and issues crucial to his accounts of the Old World and New, his obsession with taxonomies of the human, the facts of bondage, and the nature of belief whether in law, God, or nation. These collateral readings include works by John Locke, David Hume, John Calvin, Jonathan Edwards, Orville Dewey, James Kent, Edgar Allan Poe, Ralph Waldo Emerson, Nathaniel Hawthorne, the legal opinions of Lemuel Shaw and Joseph Story, as well as selected natural histories of the Caribbean.

IDIOMS OF SERVILITY: SLAVERY, PRISONS, AND TORTURE

That one can create a servile soul is not only the most painful experience of modern man, but perhaps the very refutation of human freedom.
Levinas, "Freedom and Command"

Can we take law for the purpose of strictly philosophical inquiry? How might we approach the history of the legal systems? How have legal institutions embraced and constructed, as well as silenced and stigmatized various national and personal identities?

This seminar seeks to study the philosophical, moral, and ethical (normative) backgrounds to the debates on legality and legitimacy. Few of the topics under consideration are peculiarly Anglo-American; indeed most of them (slavery, civil death, penance, and torture) form part of the general history of the Western world. But our readings and discussion will be strictly limited to the British West Indies and the United States. Through an examination of legal, philosophical and historical texts, as well as fictional re-enactments of incarceration and criminality, the seminar will examine varying controversies about personal indentity, servitude, and the legacy of such legal fictions as "civil death" or being "dead in law." Using primary and secondary historical materials, the course will attempt to make sense of the diverse and contradictory images of law that intervene in everyday life through strategies of containment; strategies of disenfranchisement; and the limits of due process and Eighth Amendment claims.

Legitimacy, reasonableness, and necessity. These words recur in the Code Noir of the French Islands; the West Indian slave laws of the eighteenth century; the black codes fo the American South; contemporary legal decisions promoting prisoner incapacitation; and, now, the detention of suspected terrorists and "enemy combatants" in Guantanamo, Bagram Air Base, or in numerous "secret sites" (the so-called legal "black holes") in Eastern Europe and other foreign countries. The ongoing disintegration of formal law and the increasing subordination of the judiciary to the Washington central authorities continue to threaten the weak, the socially oppressed, and the racially suspect. Thus, the stakes of the seminar are high. In attempting to speak about the multiple forms of disabling we confront today, we will, in conclusion, turn to the traditional concerns of liberal legal and political theory, focusing on Otto Kirchheimer's "Legality and Legitimacy" (1932) and his "Remarks on Carl Schmitt's The Crisis of Parliamentary Democracy (1923) and The Concepts of the Political (1932).