Kastner on Deviance in Nineteenth-Century American Law and Culture

Tal Kastner, Rutgers Law School, has published Deviance in Nineteenth-Century American Law and Culture. Here is the abstract.

Viewing slavery as a defining phenomenon of the American nineteenth century, this chapter traces the unstable and evolving relation in this era between norm or law and deviance or crime. The dynamic negotiations of the parameters of normativity of this period, not least as embodied in the law and in relation to slavery, significantly shaped American culture and society. As norms became the subject of dispute, shifting figures of deviance emerged. It is not until the end of the nineteenth century that certain practices, such as homosexual acts, come to constitute a deviant identity. Indeed, the deviant as an identity determined by an individual’s divergence from a norm does not enter into American usage until the twentieth century. Nonetheless, slavery—itself a contested legal and social phenomenon in this period—significantly shaped the ways normative social structures, including race, gender, and sexuality, are constructed in the course of the nineteenth century through law. Dubbed the South’s “peculiar institution”—in the sense of its distinctiveness to this particular society—slavery figures at the heart of the normative debate and resulting legal and social transformations of the nineteenth century. At mid-century, the contest over slavery precipitated discussion among abolitionists about the normative status of the Constitution. Adherence to the dictates of the law—a purported site of normativity—came to be seen by some as criminal, impacting the ongoing negotiation of the bounds of deviance. The discussion below explores how works of literature, including The Scarlet Letter, Bartleby, Incidents in the Life of a Slave Girl, The Bostonians, and other works, along with legal developments and cultural constructs, reflect and participate in the negotiation of normativity in the nineteenth century, as informed by the transforming figure of slavery. In addition, it traces the normative social models and counter-models precipitated by slavery, such as the penitentiary, the ideal of contract, and marriage.

Download the chapter from SSRN at the link.