| Book Review | Law and History Review, 25.2

Book Review

Stephen M. Best, The Fugitive's Properties: Law and the Poetics of Possession, Chicago: University of Chicago Press, 2004. Pp. xii + 362. $69 cloth (ISBN 0-226-04433-5); paper $25.00 (ISBN 0-226-04434-3).

Stephen Best's The Fugitive's Properties is a New Historicist exploration of the problem of representing personhood in turn-of-the-century American law, literature, and culture. Other works in this vein include Brooke Thomas's American Literary Realism and the Failed Promise of Contract, and Walter Benn Michaels's The Gold Standard and the Logic of Naturalism. Like these earlier works, The Fugitive's Properties presents legal formalism as a self-defeating response to the social dislocations of commercial and industrial development. Readers of critical legal histories of this period will find some of Best's conclusions familiar: "The law's purpose is to produce reliable principles of value that seem to emanate from the object—with the consequence that the very conception of property as an object appears only at the end, not the beginning, of any legal deliberation. Equality is no different ... it too is an effect, not a grounds, of deliberation ..." (274). What Best adds to the realist critique of formalism, however, is a reading of disputes about slavery and racial status in the later nineteenth century as reflections of a pervasive anxiety about commodification of personality: "Slavery is not simply an antebellum institution that the United States has surpassed but a particular historical form of an ongoing crisis involving the subjection of personhood to property" (270).

Best begins his argument by juxtaposing the Dred Scott case with the emergence of intellectual and other intangible property. For Best, disputes over the rendition of fugitive slaves highlight the dependence of all property on law, and of its value on such "fugitive" factors as capital, credit, and commercial good will. In Best's rhetoric, property in slaves becomes a metaphor for rights of all kinds, as the idea of estates in persons grounds liberal rights of self-ownership, as well as rights to privacy and intellectual property. Best is fascinated by the constitution's euphemistic characterization of fugitive slaves as absconding debtors. He takes this as a paradigmatic illustration of the capacity of liberal jurisprudence to justify any social arrangement whatever by constructing a mythology of prior consent.

In the same eclectic chapter, Best recounts the career of "Blind Tom," a celebrated slave savant who, from childhood could play any piece of music by ear by hearing it once, and who remained a dependent of his former master for decades after slavery's end. Best suggests that racist culture managed the anomaly of African-American genius by identifying authenticity and originality in formalist terms, as inhering only in creations reducible to some system of notation; and by associating African-American cultural expression with repetition, rhythm, and parody as opposed to genuine innovation and progress.

Best's second chapter juxtaposes Uncle Tom's Cabin with the emergence of marginalism in economics. Best reads Stowe's commercially successful novel as an ambivalent commentary on the morality of the market in which it was sold, adapted, translated, and purloined. While Stowe condemns slavery as the sin of commodifying the soul, she also condemns it as imprudent commerce. Thus slavery corrupts its beneficiaries by insulating them from the puritanical discipline of market and family, and shifting the costs of their imprudence onto their disposable dependents. Like many abolitionist texts, Uncle Tom's Cabin presented slaveholders as infected with vices (lazy, shortsighted, and irresponsible) stereotypically attributed to slaves. Stowe's villains are at once excessively passionate and insufficiently compassionate. Best sees a similar ambivalence about sentiment and social mobility in nineteenth-century economic debates about whether price movements reflected real value or fickle fads and idle speculation. Finally, he sees the same ambivalence and anxiety about consumerism in white appropriation of African-American cultural forms that parody the masters' pretensions.

Best's wonderfully suggestive third chapter juxtaposes Plessy v. Ferguson with an early silent film in which a gentleman flirts with a young lady on a train, only to find, on emerging from the darkness of a tunnel, that he is embracing her bemused black maid. Best first explores the use of railroads as literary and cinematic symbols of destructive progress, social mobility, and narrative necessity. Next, he locates the film as part of a genre of place-switching jokes in cinema and fiction that invoke the fixity of racial status ironically, to dramatize the arbitrariness and fragility of social position in a rapidly industrializing society. Best finds the same trope of place switching repeated in the oral argument and opinion in Plessy. This leads him, finally, to an intriguing meditation on counterfactual reasoning in legal accounts of equality, causation, and damages. In Best's view, liberal jurisprudence typically conceives equality in formal terms as fungibility, likening persons to exchangeable commodities.

This is a stimulating book, loaded with ideas and surprising connections. It is not, however, without flaws. Legal historians will be frustrated to find gratuitous errors, like confusing Charles Sumner and William Graham Sumner, or misattributing the term "originalism" to nineteenth-century constitutional lawyers. That such errors rarely undermine the author's claims points to another problem: at times, too much disjointed historical detail competes for the reader's attention, with too little contribution to the argument. This is a chronic risk of the New Historicist method, which often draws connections among disparate events that are more aesthetic than causal. The author uses such connections to explore unresolved antinomies in liberal legal thought that he believes transcend time and place; but historically trained readers may wonder how much thought—even very abstract, formalist thought—ever transcends time and place.

Guyora Binder

SUNY—Buffalo

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