In re-reading the Lincoln-Douglas debate at Freeport, Illinois, it occurs to me that Stephen Douglas ought to get credit for stating the essential Legal Realist position in 1858 — more than a half-century before the classic statements of Realism in property law by Morris Cohen (Property and Sovereignty (1927)) or Erie v. Tompkins (1938).
Douglas’ “Freeport Doctrine” maintained that, regardless of any formal legal statement to the contrary in Dred Scott v. Sandford, (a) the territorial legislatures would necessarily have local democratic control over slavery, because property in slaves could not be maintained without the positive assistance of the state (in the form of sheriffs’ arrests, liens, etc, adjudication in territorial courts, private remedies and sanctions for violations of property rights, etc) and (b) the territorial legislatures ought to exercise such control, because property policy ought to be controlled democratically.
Leave out the phrase “in slaves, ” and one has the essence of legal realism stated in a nutshell, right? Does Douglas’ view constitute yet further evidence against the widespread notion that 19th century American legal thought was dominated by the concept of laissez-faire natural law?
Posted by Rick Hills on August 11, 2008 at 12:12 PM