Forget English Freedom, Remember Atlantic Slavery: Common Law, Commercial Law and the Significance of Slavery for Classical Political Economy

Abstract

Is the liberty to pursue individual self-interest in the capitalist market all that remains of the grand Enlightenment promise of human emancipation? The article addresses this question by returning to eighteenth century scholarship on the relationship between English common law and commercial law. Specifically, I explore the fundamental challenge posed to common law by the regulation, through commercial law, of enslaved Africans as labouring ‘things’. I show how key British scholars in the eighteenth century traditions of jurisprudence, moral philosophy and political economy struggled to address the radical unfreedom of the enslaved and the meaning of her/his radical emancipation. I explore how this Atlantic challenge was ‘indigenised’ to speak to the threat posed by enclosures in Britain, in particular, the possible destruction of the qualified unfreedoms and freedoms extant in the paternal social order upheld by common law. I explore how political economy traditions pre and post abolition and emancipation sought to deal with this challenge. And I conjecture on the significance of remembering the most radical process of commodifying labour – in Aimé Césaire's terms, thingification – for present day interpretations of the relationship between capitalism and freedom.

Keywords:

• slavery
• political economy
• common law
• Marx
• Mill

Notes

My thanks to Pat Moloney, Megan MacKenzie, Beate Jahn, Justin Rosenberg and Naeem Inayatullah for their comments and critiques.

The exceptions are documented throughout the following references.

For a contemporaneous assessment see Sharp (1773: viii).

I would maintain that this situation was significantly different to that of France, which, even if the enslaved in its colonies were treated de facto as things nevertheless had a very limited – almost negative, yet nevertheless stated – de jure personhood in the Code Noir regulations. For a provocative explication of these regulations see Dayan (1995: 199–212). Certainly, more work needs to be done on these comparisons.

See for example, Tomich (1991); moreover, loss of sugar markets in the Americas prompted the growth in the Pacific region of sugar plantations and a trade in island peoples called ‘blackbirding’; see Horne (2007).

My argument does not necessarily seek to undermine political philosophies posited upon the dialectic of freedom, for example, Buck-Morss (2000). However, the argument does demand that we first question the assumption that the dialect can sweep all up in its wake including slavery. See, for example, the reply to Buck-Morss in Fischer (2004: 32). Additionally, my argument is therefore cognate to Baucom's (2005); and to Losurdo (2011) which was published after I completed this article. However, in both cases, my argument about the cognitive relationship between capitalism and slavery differs somewhat.

There are, of course, exceptions to this. See for example, Grovogui (2008); Bogues (2005); Hutton (2007).