Law is fundamentally built on alienating, racial contracts that make it obsessed with control and ownership over materiality – which foremost targeted black people.

Possibly the simplest (though perhaps also the crudest) method of determining the role of the slave in producing law is to locate the slave within the earliest institutional expressions of the law – by this I mean within the earliest legal form. What I want to suggest here is that the slave existed almost simultaneously with the emergence of law, and to suggest therefore that this particular human subject was known to law at a point that precedes the advent on to the legal stage of those who would now be perceived to be the more powerful actors within the legal arena. In this regard it is instructive to turn to an analysis of the law of contract as it developed from the ancient law of chattels and other rules governing the acquisition and exchange of commodities. Both legal historians and contemporary critical theorists would tend towards the view that contract, however crudely conceptualised, was an early form of law.20 Indeed Pashukanis is often attributed with advancing the idea that ‘the model of contract preceded all subsequent forms of legality’.21 Thanks mainly to the work of critical race scholars, notably Patricia Williams and Cheryl Harris,22 the constitutive relation of the slave to the moulding of early contract doctrine is now an important, though still marginal, lesson of critical theory and legal history. In a recent keynote address, Patricia Williams was to make explicit the relation between the development of the law of contract, the legal form that according to Douzinas et al (commenting on Pashukanis) was ‘the exemplary justification for the rule of law’23 – and those subjugated or repressed in various ways: Contract law is about alienation, about making strange, putting at a distance, transforming into something else, fixing a price, making interchangeable with the currency of the realm. Contract law is thus in tension with that which American constitutional theory considered ‘unalienable’ [sic] or what can’t be sold: that is notions of corporeal integrity, mental and physical inviolability, the pricelessness of our bodies, the embodiment of our dignity – all that we enshrine in the nation of civil rights and human rights. This tension between what can be sold and what ought not to be sold, is also an overlap or an intersection of course. It is the place where we consider questions such as slavery, indentured servitude, prostitution and trafficking in women and children.24 In posing contract as the exemplary model of law, and in revealing the ‘tensions’ in contract doctrine resulting from the commercial appropriation of human dignity and freedom, Pashukanis and Williams ease the way towards the claim that the slave as chattel and therefore one of the principal ‘objects’ regulated by the early contract form – our exemplary protagonist – existed at the earliest stage in the development of modern law. Whilst Pashukanis’ conception of law emerging from the ‘commodity form of production’25 would not be an idea that attracts universal approval, most legal historians would account some form of contractual relation as the earliest expression of modern law. Although amongst English legal historians there is some dispute as to whether rules and principles governing all forms of moveable goods (chattels) were the earliest known to English law, or whether land laws marked the origin of the common law, the former view appears to hold sway. For instance, Jenks argues that moveable goods made possible private land and associated rights and that the legal recognition of ‘property in chattels’ arose with the much earlier ‘law of theft’.26 The early preoccupation of the law with moveable goods was, according to Jenks, readily explainable by the easy availability of land ‘in primitive times’ and the converse scarcity of resources able to work upon the land. This meant that a somewhat greater premium was placed upon ‘cattle, slaves, weapons, jewels’ and other ‘moveables’ than on any other commodity (emphasis added).27 ‘weapons and jewels’ as the subject matter of this earliest of the concepts and processes that, according to Friedman, comprise the law, what Jenks also observes is the beginnings of an early market system in which chattels or moveable goods were essential components. The importance of chattels to the functioning of this market as well as their relative scarcity was such as to call for some form of regulation over their sale and barter and over alternative means to which they were put to use. The early common law served as the necessary form of regulation and, in so regulating chattels, the early juridical order crucially established a ‘material world’ that could be utterly subjugated to the demands of this early market state and later to the various manifestations of capitalism. The idea of a material world subjugated to power and dominance in whatever form is, of course, crucial to contemporary theorising on oppressed groupings, though this is not the place to elaborate on the idea.28 What needs to be emphasised, however, is that this ‘material world’ is not, as its nomenclature might suggest, inhabited by non-human species only. It simply depicts a particular idea of materiality that appears to have emerged from the construction of the slave. Drawing from the history of early modern law, what was subjugated to the demands of the market was not merely material goods proper and animals, but the human slave (chattel) who appears to co-exist with the emergence of the law of chattels, and thus, arguably, with the doctrinal origins of modern law. The means through which this world of ‘political’ materiality has matured is a complex tale and one somewhat beyond the scope of this inquiry. However, it is clear that one method of constructing such a world is by enabling the control of material things and other living species, formal acquisition being one overriding measure of control: through law, the ownership or control over materiality, including human slaves, was facilitated. To be in a position to dispose of material and in general to use the material as a resource is a means of subordinating it to control by dominant force, and of establishing material in a subordinated relationship to such forces. This world of political materiality was significantly shaped, in the early stages of the law, through the law of chattels. What is significant for these purposes is that it was the law of chattels within which we see produced the first human protagonist – the first human subject made to labour towards the law’s concepts and definitions – specifically to labour towards a definition or understanding of the nature of chattels, and this fact, I argue, is crucial in identifying the first set of doctrines of modern law, and thus to point to the vital but repressed forms of life integral to the production of law.