Jurisprudence as performance: John Brown's enactment of natural law at Harper's Ferry

Abstract

As members of the public and private sphere, we are constantly intrigued by the question of the nature, scope, and limitations of dramatic appeals that are made to a higher justice that appears to exist along side the established order and the “rule of law.” While as Americans we often view ourselves as constitutionalists, obedient citizens who acknowledge the legitimacy of the positive laws instantiated through the decisions of the government, at the same time we are mesmerized by the words and deeds of revolutionaries who have been willing to shed blood in the name of a higher law. Using the John Brown trial as a case example, the essay argues that our jurisprudential norms are co‐produced by both text writers and their audiences. By adapting a performative stance, we can perhaps gain a better understanding of the selectivity and inventiveness involved in legal decision making.