Methodological Interventions and the Slavery Cases; or, Night-Thoughts of a Legal Realist

Abstract

In thinking about conflicts theory, one comes up against the problem of immoral law. There is no neutral, abstract, predetermined choice rule that can confidently avoid immoral law, if immoral law is arguably applicable. The legal realists were right in supposing that the better the judge, the more disregardful of a rule that threatens to yield an unjust result. This paper briefly examines examples from two significant clusters of cases in this country about which we can say with some confidence that the judges had to face a choice of immoral law. These are cases involving slavery. In the first group are the cases of “sojourners” and other slaves with some legal claim to freedom, whether in the courts of the slave state or away. In the second group are cases about runaways, the “fugitive slaves” that were the subject of harsh federal law. These latter cases were only occasionally conflicts cases proper, notably in cases of conflict between federal law and more protective state law. But the underlying struggle against immoral law is made vivid in them. In the end a realist's rule, one that is not neutral, abstract,or predetermined, may impose itself upon the reluctant mind: the rule of justice in the individual case.