Toward a New Legal History of Capitalism and Unfree Labor: Law, Slavery, and Emancipation in the American Marketplace

Abstract

New work on the “history of capitalism” reveals how the personal freedom enjoyed by people living within the liberal capitalist mainstream is often purchased by coerced labor at the social margins. Walter Johnson's book River of Dark Dreams: Slavery and Empire in the Cotton Kingdom makes this argument with force, utilizing the concept of “slave racial capitalism” to suggest how race‐based slavery constituted a necessary component of early American economic expansion. Using Johnson's framework as a starting point, this essay argues that the legal institutions of property and contract, institutions underwriting a genuinely “slave racial capitalist” regime, also contained certain subversive possibilities within themselves, eventually challenging unfree labor as a modality of rule within the modernizing United States.