Fiat justitia: American literature and the jurisprudence of rights, power, and community, 1850-1903

The legal systems of slavery and Jim Crow provoked a succession of literary challenges to the theoretical and practical terms of American law. Transgressing the boundaries that segregated the discourses of law and literature as well as the races, Harriet Beecher Stowe, Martin Delany, Frederick Douglass, Mark Twain, and Charles Chesnutt sought to correct the law by manipulating the cultural consensus on individual rights, political power, and the racial composition of the American community. In literary narratives that appropriate and subvert the legal narratives of racial oppression fashioned by courts and legislatures, these authors controvert the legal profession's characterization of law as the mere instrument of sovereign power. Instead, they draw upon the unfulfilled natural rights tradition of the American Revolution as the basis for a more inclusive definition of the national community and a jurisprudential means of protecting African Americans from the predations of the majority.; In examining the dialogue of such literary narratives as Uncle Tom's Cabin, Blake; Or the Huts of America, and The Marrow of Tradition and such legal texts as Dred Scott v. Sandford, the Civil War amendments, and Plessy v. Ferguson, my dissertation demonstrates the centrality of law and legal theory to the themes and figures of American race literature and the centrality of race to American conceptions of justice. I trace the rhetorical development of this intercourse from the higher law arguments for and the positivistic arguments against the rights of black Americans that precede the Civil War amendments to the tropes of legal entitlement and majoritarian custom that follow the constitutional recognition of African Americans. And I argue that writers, such as Stowe, Douglass, and Chesnutt, used natural rights rhetoric to create an emergent theory of rights as the moral accord of a diverse and pluralistic society.