Law, Morality, and the Problem of Slavery

Mark Lane Roark, The Savannah Law School, is publishing Slavery, Property, and Marshall in the Positivist Legal Tradition in the Savannah Law Review. Here is the abstract.

In 1819, a slave ship called the Antelope entered the harbor of Savannah carrying Africans originally detained as slaves on U.S., Spanish and Portuguese vessels. John Marshall four years later would hold that slaves originally captured on U.S. ships were entitled to their freedom, while those originally held by Spanish and Portuguese interests should be returned to slavery, pending proof of claim. Marshall's opinion implicitly sets law and morality at opposite poles, freeing the law to undertake morally questionable acts. This essay examines the tension underlying Marshall's opinion that positivism's negative effects (here the establishment of slavery outside of a moral order) continue to have pervasive consequences, even after legal regimes change. For example, the disarming of the transatlantic slave act by Congress in 1807 did not prevent Africans on board the Antelope from being transported away from their homes, held for four years pending judicial decision, and then held an additional two years while ancillary claims to their freedom were resolved. The essay suggests that property's static nature preserves institutions even after they've been deemed illicit by other law. 

Download the article from SSRN at the link.