Fugitive Justice

Author(s): STEPHEN BEST and SAIDIYA HARTMAN

Source: Representations, Vol. 92, No. 1 (Fall 2005), pp. 1-15
Published by: University of California Press
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STEPHEN BEST AND SAIDIYA HARTMAN

Fugitive Justice

The Appeal of the Slave

B 1787,     . It was not too late to imagine
an end to slavery, but it was too late to imagine the repair of its injury.
Abolition was perhaps all that those who sought redress for slavery could rea-
sonably expect. No one expressed this more eloquently than Ottobah Cugoano
who, in his Thoughts and Sentiments on the Evil of Slavery (1787), admonished: ‘‘The
whole of that base traffic is an enormous evil and wicked thing, which cries aloud
for redress, and that an immediate end and stop should be put to it.’’1 Great Britain,
the ‘‘criminal nation’’ that led this ‘‘base traffic,’’ has ‘‘sin[ned] and rebel[led]
against God, and against the laws of nature and nations’’ (117). The slave trade has
engendered destruction of a nature that proved irreparable. The devaluation of
black life had been, in Cugoano’s assessment, that extensive: ‘‘Our lives are ac-
counted of no value, we are hunted after as the prey in the desert, and doomed to
destruction as the beasts that perish’’ (112). For sure, the ‘‘noble Britons’’ must adopt
a ‘‘plan’’ to ‘‘relieve the grievances and oppression of the Africans,’’ they must ‘‘ex-
tend their philanthropy to abolish the slavery and oppression of Africans;’’ but in
so doing, they would merely provide ‘‘a just commutation for what cannot be fully
restored, in order to make a restoration, as far as could be, for the injuries already
done to [enslaved Africans]’’ (134–36).
Cugoano isn’t at all confused here. A ‘‘just commutation’’ is not opposed to
remedies ‘‘unjust.’’ Any remedy would have been welcome and deserved, for the
slaves were certainly in need of remedy, it simply would not have exhausted their
claims for ‘‘justice.’’ A ‘‘plan’’ for the redress of slavery is what is urgently needed,
but any plan, any legal remedy, would inevitably be too narrow, and as such it would
also prove necessarily inadequate. In his plan for the abolition of slavery and the
reform of the three continents shaped by it, Cugoano operates within the governing
logic of law and commerce; yet he recognizes that pragmatic solutions, which would
be beneficial to the commerce and interests of Great Britain, fall far short of justice.
He insists that the injury of slavery must be borne, since it cannot be reversed. In his
account, justice is beyond the scope of the law, and redress necessarily inadequate. If
what has been done cannot be undone, then the forms of legal and social compensa-
tion available are less a matter of wiping the slate clean than of embracing the lim-
ited scope of the possible in face of the irreparable, and calling attention to the

R            92. Fall 2005 䉷 2006 The Regents of the University of California. ISSN 0734–6018,
electronic ISSN 1533–855X, pages 1–15. All rights reserved. Direct requests for permission to photocopy
or reproduce article content to the University of California Press at www.ucpress.edu/journals/rights.htm. 1

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 incommensurability between pain and compensation. How does one compensate
for centuries of violence that have as their consequence the impossibility of restor-
ing a prior existence, of giving back what was taken, of repairing what was broken?
A decade earlier, four men who identified themselves as the Boston Committee
of Slaves and petitioned the Massachusetts legislature for their freedom struck a
similar chord. Their petition underlined the disparity between what was theirs by
right and the legal paths of remedy, the difference between ‘‘the sublime ideal of
freedom’’ and the limited justice availed to blacks in America. The only avenue
beyond this constitutive impasse that they could imagine was emigration to Africa;
for Cugoano, grief was the only transit possible.2
Of his own captivity, Cugoano writes: ‘‘all my help was cries and tears, and
these could not avail; nor suffered long, till one succeeding woe, and dread, swelled
up another’’ (10). If cries and tears were of no avail then, they are essential now in
creating a public space for black grief, and sounding our collective plaint. In giving
voice to the lamentations of the captive, ‘‘those crying and groaning under the
heavy yoke of slavery and bondage’’ (75), Cugoano shuttles between grief and griev-
ance.3 That is, he demands justice in light of that which he cannot describe or con-
vey, fully cognizant that what has been destroyed cannot be restored.
Despite his effort to make visible black suffering and audible the cries of his
‘‘countrymen in complexion,’’ Cugoano fears that his efforts may be of no practical
value for those abandoned before the law: ‘‘The cries of some and the sight of their
misery, may be seen and heard afar; but the deep sounding groans of thousands,
and the great sadness of their misery and woe, under the heavy load of oppressions
and calamities inflicted upon them, are such as can only be distinctly known to the
ears of Jehovah Saboath’’ (11).
Cugoano inhabits the discourse of redress as a Christian mourner, with his gaze
directed toward a world destroyed by the violence and brutality of the slave trade.
Mourning is for Cugoano not a way of atoning for what has been done, but of living
with the devastation and loss that has occurred as a consequence of the trade. If
‘‘our lives are accounted of no value, we are hunted after as the prey in the desert,
and doomed to destruction as the beasts that perish,’’ then what forms of recom-
pense can make life inhabitable?
In Thoughts and Sentiments, Cugoano connects the possibilities of habitation to
the act of lamentation—the enactment of black grief. Restitution for the crimes
of slavery depends upon the expression of grief and the working through of the
‘‘melancholy instances,’’ which, like the stations of the cross, are tableaus of loss,
suffering, and death that point toward redemption. As Veena Das notes, in the pro-
cess of mourning, ‘‘the transactions between body and language lead to an articula-
tion of the world in which the strangeness of the world revealed by death, by its
non-inhabitability, can be transformed into a world in which one can dwell again,
in full awareness of a life that has to be lived in loss.’’4 A life lived in loss—this
perhaps is the great gift of Cugoano’s harsh words and laments, the recognition

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that abolition could not redress the crime of slavery but could only commute its
death sentence. In this regard, he was perhaps more hopeful than Henry Highland
Garnet, who believed slavery was a condition that was not terminated even by
death, since the progeny of the enslaved inherited the wretched condition of their
predecessors. Cugoano’s plan for reform entailed working through ‘‘the injuries
already done’’ and operating within the limited scope of the possible, rather than
making right a wrong, restoring what has been destroyed, or giving back what has
been taken. By 1787, it had already become too late for that.
What we find of interest in Cugoano’s text is its nuanced conceptualization of
redress discourse, a sophisticated understanding captured in the rhetorical distinc-
tions between grievance and grief; between the necessity of legal remedy and the
impossibility of redress (‘‘these could not avail’’); between the unavoidable form
of the ‘‘appeal’’ and its ultimate illegibility and insufficiency (it ‘‘can only be . . .
known to the ears of Jehovah’’); between the complaint that is audible to ‘‘noble
Britons’’ and the extralinguistic mode of black noise that exists outside the parame-
ters of any strategy or plan for remedy. We find in this loophole between hope and
resignation (Cugoano’s differend) a deeper significance, a sign of the political interval
in which all captives find themselves—the interval between the no longer and the
not yet, between the destruction of the old world and the awaited hour of deliver-
ance. That interval is the hour of the captive’s redemption, it is not only the govern-
ing trope of the captive’s complaint but also, viewed from the retrospective glance
of our political present, the master trope of black political discourse.5 In this interval
we find the mutual imbrication of pragmatic political advance with a long history
of failure; in it, too, we find a representation in miniature of fugitive justice.

These concerns have animated the Redress Project, a group of scholars and
activists devoted to questions of slavery, fugitive forms of justice, and the role of
history in the political present. Among these questions are:
• Why is justice fugitive? Why, for a captive such as Cugoano, does justice appear
elusive and perceptually dubious from within the crucible of slavery and at the
height of the slave trade—when the time of injury and the time of repair would
have been coeval? Cugoano and his comrades in arms could not have been ac-
cused, as many are today, of ‘‘sleeping on their rights.’’ Is this elusiveness then
an index of the incommensurability between grief and grievance, pain and
compensation?
• What is justice for the slave? What is justice for the slave’s descendants? Does the
slave even have descendants? Who are the slave’s many descendants?6
• What is slavery? What is the violence particular to slavery? It is not possible to
think about reparations for slavery without thinking seriously about what the
constituent elements of slavery are. In ‘‘The Slavery of Emancipation,’’ Guyora

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 Binder asks, ‘‘What was the essential feature of the slavery that the Thirteenth
Amendment commands us to disestablish’’: (1) property in human beings, (2)
physical compulsion and corporal correction of the laborer, (3) involuntary ser-
vitude, (4) restrictions on mobility or opportunity or personal liberty, (5) re-
strictions of liberty of contract, (6) the expropriation of the material fruits of the
slave’s labor, (7) absence of collective self-governance or noncitizenship, (8) dis-
honor and social death, (9) racism?7 What is crucial for us (and for Binder as
well) is the incompletion of abolition. We understand the particular character of
slavery’s violence to be ongoing and constitutive of the unfinished project of
freedom.
• What is the slave—property, commodity, or disposable life? The slave, according
to Anthony Farley, ‘‘is the apogee of the commodity. It is the point—in time as
well as in space—at which the commodity becomes flesh.’’ For Farley, remedying
the injuries of slavery would entail the abolition of capitalism. In his estimation,
‘‘the somnambulant path of law leads to the question of reparations because the
law promises a remedy for every wrong.’’ Prayers for relief are ‘‘acts of state wor-
ship’’ that can only reproduce extant structures of powerlessness and disposses-
sion. ‘‘The state will not grant the prayer for reparations; it cannot without de-
stroying itself.’’8
• What is the time of slavery? Is it the time of the present, as Hortense Spillers
suggests, a death sentence reenacted and transmitted across generations? ‘‘Even
though the captive flesh/body has been ‘liberated,’ and no one need pretend that
even the quotation marks do not matter, dominant symbolic activity, the ruling
episteme that releases the dynamics of naming and valuation, remains grounded
in originating metaphors of captivity and mutilation so that it is as if neither
time nor history, nor historiography or its topics, show movement, as the human
subject is ‘murdered’ over and over again by the passions of a bloodless and anon-
ymous archaism, showing itself in endless disguise.’’9
• Is it a time that we can all remember? As George Jackson wrote from his prison
cell in Soledad: ‘‘My recall is nearly perfect, time has faded nothing. I recall the
first kidnap, I lived through the passage, died on the passage, lain in the un-
marked shallow graves of the millions who fertilized the American soil with their
corpses; cotton and corn growing out of my chest ‘until the third and fourth
generation,’ the tenth, the hundredth.’’10
• Why is the history of reparations for slavery, to paraphrase Robert Westley in this
volume, a history of a nonevent, a history of events either too recent to deserve
the name of history or events that reverse contemporary expectations about repa-
rations?11 And extending from this last question, why is the appeal for redress
one that seems always to arrive too late, and to be marked by a note of belatedness
and insufficiency?

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 This is not a volume on reparations (on that discourse’s structural account of
slavery and certain knowledge of what the slave is); nor is it a volume on remember-
ing and working through historical trauma. Rather, what this volume represents is
the attempt to interrogate rigorously the kinds of political claims that can be mobi-
lized on behalf of the slave (the stateless, the socially dead, and the disposable) in
the political present. In posing the question of slavery in terms of the incomplete
nature of abolition, we are concerned neither with ‘‘what happened then’’ nor with
‘‘what is owed because of what happened then,’’ but rather with the contemporary
predicament of freedom, with the melancholy recognition of foreseeable futures
still tethered to this past. In this effort we are very much guided by the work of David
Scott, particularly his recent book Conscripts of Modernity: The Tragedy of Colonial
Enlightenment, which encourages us to think about the epistemological and political
dilemmas entailed in writing histories of the present, and invites us to write histories
of the present that squarely engage the problem of ‘‘futures.’’ Scott cautions us to
tread carefully when writing histories of dispossession in the space of the interval,
in ‘‘a time . . . in which old horizons have collapsed or evaporated and new ones
have not yet taken shape.’’ In other words, to paraphrase Scott, what is the story
about the slave that we ought to tell out of the present we ourselves inhabit—a
present in which torture isn’t really torture, a present in which persons have been
stripped of rights heretofore deemed inalienable?12

The Appeal of the Ex-Slave

In 1896, Callie House, a Tennessee seamstress become activist, founded

with a number of compatriots the National Ex-Slave Mutual Relief, Bounty and
Pension Association, an organization that stood at the forefront of the movement
to pass a federal ex-slave pension bill on the model of those provided to Civil War
veterans. House had hoped that a pension for ex-slaves would remedy ‘‘wrongs this
Government allowed to be suffered by us without redress.’’ As she elaborates in a
letter written in her defense:
Four & half million slave[s] who was [were] turn[ed] loose ignorant bare footed and naked
without a dollar in their pockets without a shelter to go under out of the falling rain but
was force[d] to look the man in the face for something to eat who once had the power to
whip them to death but now have the power to starve them to death. We the ex-slave [sic]
feel that if the government had a right to free us she had a right to make some provision for
us as she did not make it soon after our Emancipation she ought to make it now.13

Like Cugoano, House struggled to negotiate the interval between the ‘‘black noise’’
of her own utterance and a claim for redress that would be legible to the state. House
wanted every ex-slave to exercise their nascent constitutional rights to ‘‘gather and
petition there [their] grievances’’ (My Face Is Black Is True, 128), and to sign their

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 names to a petition to support a pension bill then circulating before Congress. The
petition read:
To the Senators and Representatives of the Congress of the United States of America:
Whereas, Generation after generation of Colored people served this country as slaves
for two hundred and forty-four years or more, and
Whereas, This government owes the unknown and deceased Colored Soldiers a large
sum of money which is unclaimed, and
Whereas, Many of those soldiers have brothers, fathers, mothers and sisters among us,
who are destitute and starving, and
Whereas, It is a precedent established by the patriots of this country to relieve its dis-
tressed citizens, both on land and sea, and millions of our deceased people, besides those
who still survive, worked as slaves for the development of the great resources and wealth of
this country, and
Whereas, We believe it is just and right to grant the ex-slave a petition:
Therefore, We, the undersigned, citizens of the United States of America, appeal to your
Honorable Body to pass Senate Bill, No. 4718, introduced June 6, 1898, by Senator Mason,
of Illinois, providing pension for Freedmen, etc.14

Six ex-slave pension bills in total went before Congress between 1890 and 1903.
All of the bills were identical, according to Walter Hill, ‘‘each providing a pension
to ex-slave[s] based on a scale. Ex-slaves 70 years and older were to receive an initial
payment of $500 and $15 a month; ex-slaves 60–70 years would receive $300 and
$12 a month; ex-slaves 50–60 years would receive $100 and $8 a month; and those
ex-slaves less than 50 years old would not receive an initial payment, but a $4 a
month pension.’’15 All were finally defeated.
Frustrated by these legislative defeats (and encouraged by House to pursue a
new path), Cornelius J. Jones in 1915 filed a lawsuit against the United States De-
partment of Treasury on behalf of H. N. Johnson, C. B. Williams, Rebecca Bowers,
Minnie Thompson, and ‘‘others similarly interested.’’16 They alleged that between
the years 1859 and 1868 they and their ancestors ‘‘were subject to a system of invol-
untary servitude’’ in the states of the South, and that as a result of such servitude
‘‘many million bales of cotton were produced.’’ In their attempt to recover the mon-
etary value of their unpaid labor and that of their ancestors, they argued that the
federal government had benefited financially from slave labor in the form of the
‘‘Internal Revenue Tax on Raw Cotton.’’ In Jones’s estimate, the unpaid labor of
the slaves amounted to $68,072,388.99. The U.S. government was a state in debt
and the plaintiffs injured creditors. Assessing debt and calculating injury was itself
a formula for justice.
The federal appeals court did not agree and dismissed the appellants’ case on
the grounds that there was no proper defendant. The government, unlike an indi-
vidual defendant, could not be sued without its consent. The government possessed
‘‘sovereign immunity,’’ which was a defense against legal action. The rationale that
undergirded the government’s ‘‘sovereign immunity’’ was protecting the ‘‘public
fisc.’’ In this case, the protection of the public fisc had as its cost the perpetuity of

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unremunerated slave labor and the continued failure by the government to return
funds it had obtained through unjust means. The decision by the court of appeals
nullified not only the specifics of the litigants’ plea but also, and more important,
the very conception of the government as culpable or obligated. Redress could only
obtain when the state recognized itself as negligent, when it acknowledged its unjust
enrichment. The redress Jones sought was possible only if the state assumed a sense
of continuity between itself and its predecessor—a continuity made visible by the
accusation of ‘‘involuntary servitude’’ in ‘‘the years 1859 to 1868,’’ a charge that
denied the barricade between the slave past and the emancipated present.
The state, in addition, had its own designs for House, Jones, and their compatri-
ots. The Justice Department and the U.S. Postal Service, acting at the behest of the
Pension Bureau, charged the backers of the various ex-slave pension bills with using
the mails to defraud ‘‘poor negroes’’ of their ‘‘hard-earned money’’ and making
promises the postmaster considered impossible to perform—the outlandish prom-
ise that the state would redress slavery. As the Office of the Attorney General ex-
plained, the ex-slave petitioners knew that ‘‘there had ‘never been the remotest
prospect’ that Congress would appropriate pensions for African Americans.’’17 For
sure, the state too was concerned with the stolen wages of poor negroes; but the
culpable agent brought before the bar was not the U.S. government; rather, it was
the very petitioners who appealed on the ex-slaves’ behalf. House served eight
months in a Missouri penitentiary for this fraud.
Sovereign immunity protected the government from all charges of culpability
as regards the institution of slavery. This seems to be the lesson learned by those
who currently argue for reparations. Today, it is too late to invoke the crimes of the
U.S. nation state. Few dare to speak of a ‘‘slaveholders’ Constitution’’ (as abolition-
ists had a century and a half ago), to charge the government with ultimate responsi-
bility for slavery. The injuries suffered were not at the hand of the U.S. government,
but at the hands of Aetna Life & Casualty, R. J. Reynolds Tobacco, FleetBoston
Financial, Lloyds of London, and other corporations. In cases recently filed in U.S.
civil courts, the ‘‘crime’’ of slavery involves ‘‘unjust enrichment,’’ the loan of monies
to ‘‘planters, merchants, and cotton brokers throughout the South,’’ the collection
of ‘‘custom duties and fees on ships engaged in the slave trade,’’ the garnishing of
premiums through the ‘‘sale of life insurance to slave owners’’ and ‘‘the insuring of
ships utilized for the Trans-Atlantic slave trade,’’ and the construction of railroad
lines and harvesting of tobacco ‘‘in part by slave labor.’’18 These most recent repara-
tions cases are unable to name the state as an agent in the perpetuation of injury;
they foreclose the possibility of a discussion of the racial state, and as such they
reinscribe the neutrality of the state. What is more, in all these cases, which ‘‘de-
mand . . . a just and fair accounting of profits earned from slave labor,’’ the injury
of slavery amounts in essence to the withholding (certainly violent, certainly co-
erced) of the slave’s wages. The plan for redress, in turn, amounts to a demand
for back wages. What better illustrates Cugoano’s pragmatic resignation and the

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 insufficiency of redress—‘‘a just commutation for what cannot be fully restored’’—
than a demand for back wages?
Recent cases for reparations have focused on figuring out formulas for ‘‘just
commutation,’’ on how to create a case for a ‘‘cause of action,’’ on how to advance
and pursue claims for redress before the bar.19 Judicial models of redress often re-
quire that claims fit a legal paradigm of individual rights, that a group seeking a
court’s remedy for harms done to it translate its claims into forms synonymous with
the rights and privileges, duties and liabilities that the Constitution ascribes to the
agents of contractual liberty (for example, the Constitution’s ‘‘due process’’ protec-
tions of citizens against deprivation of life, liberty, or property by the state, and
its guarantee of ‘‘equal protection of the laws’’). In line with this emphasis on the
individual, appeals for judicial redress must satisfy the demand for identifiable vic-
tims and perpetrators, unambiguous causation, limited and certain damage, and
the acceptance that the agreed remuneration shall be final. This reduction of collec-
tive appeal to the forms of grievance common to the paradigm of individual rights
is often claimed as the principal reason why the case for Japanese-American repar-
ations succeeded. It is also claimed as the principal reason why the claims for
African-American reparations have failed. The paradigm of individual rights pre-
sents African Americans with particular obstacles. First, this paradigm’s standard
of accountability renders all claims for black reparations null and void, as the vic-
tims and perpetrators of slavery have been long dead. Second, the focus on the
individual in liberal legal formulas for remedy makes difficult an account of group
oppression and structural inequalities. Third, and finally, the focus on identifiable
victims and perpetrators foregrounds the law’s indifference to tangled and compli-
cated webs of causation.
African Americans’ attempts to establish the authority of the past have been
made difficult if not impossible by the temporal limits placed upon the duration
and finality of a wrong. Or, in other words, one means of dismissing a claim for
redress is to charge the plaintiff with unreasonable delay or negligence in pursuing
a right or claim. African Americans are guilty of their own wrong—of sleeping on
their own rights, failing to act in a timely fashion, or what the law would describe
as laches (F. lachesse, negligence, slackness). If African Americans fail in their attempt
to achieve redress, it will be due not to the nation’s failure to recognize historical
wrongs, but, curiously, to their own negligence. Dismissals of African American
claims for reparations oscillate between competing senses that one either has no
ground for a legitimate claim or that the claim has come too late. Temporal rela-
tions, as Westley points out, ‘‘determine the existence or nonexistence of standing.’’
He identifies two opposing views. In the eyes of the court, the passage of time evis-
cerates standing for those who claim redress for race-based injuries; but from the
perspective of the petitioners, it is this very passage of time that augments and inten-
sifies these injuries. Westley proposes a legal path beyond this impasse, which arises
in large part from the doctrinal constraints of tort law and contract law. The most

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viable path for future reparations claims, he suggests, is to be found in the law of
restitution, which gives courts ‘‘the equitable powers . . . to undo the unjust enrich-
ment brought about by a defendant’s misappropriation of labor through violence,
coercion, fraud, and duress.’’
Although Westley does not make this point, recent slave redress cases have
given much less thought to what ‘‘cannot be fully restored.’’ The shuttling between
grief and grievance has been lost in pursuit of what is possible within a liberal legal
conception of law and property. What is sacrificed in this approach, what cannot
be heard, is the black noise that animated Cugoano’s earlier polemic. It is to this
sound that the remaining essays in this volume are attuned. Black noise represents
the kinds of political aspirations that are inaudible and illegible within the prevail-
ing formulas of political rationality; these yearnings are illegible because they are
so wildly utopian and derelict to capitalism (for example, ‘‘forty acres and a mule,’’
the end of commodity production and restoration of the commons, the realization
of ‘‘the sublime ideal of freedom,’’ the resuscitation of the socially dead).20 Black
noise is always already barred from the court.21
For Bryan Wagner, black noise is defined primarily by virtue of its negative
relation to the law. His essay, ‘‘Disarmed and Dangerous: The Strange Career of
Bras-Coupé,’’ locates the origins of jazz in a slave who had been maimed by the
police—Bras-Coupé, an escaped slave and reputed commander of the fugitives who
resided outside the city of New Orleans. Wagner seizes upon the figure of Bras-
Coupé in order to write against mainstream jazz historiography’s narrative of cul-
tural continuity and transmission, which he contends is premised upon the repres-
sion of the fugitive. The fugitive ‘‘must vanish from the scene of the music’s origin
before that music can be integrated into the time frame of liberal nationalism’’
(think here of Ken Burns’s Jazz, in which bebop serves as the background music
and motive cultural force behind a U.S. liberal project, rather than the music ex-
isting in an antagonistic relation to it, as bebop may have ‘‘sounded’’ for many of
the black soldiers who returned home after World War II). Instead, Wagner locates
the music’s origins in the state of exception (the negative relation to law) that defines
the slave’s existence.22
Looking at the legend of Bras-Coupé, Wagner traces two competing narratives
of the fugitive’s identity. In one, the propagandistic account of the dangerous fugi-
tive, the purpose of the narrative is to justify the police power, to justify the exercise
of the power to kill. Bras-Coupé is presented as the outlaw and paradigm case in
local police history that affirms the state’s right to use deadly force. In the other—
the oral and counterhistorical narrative—police violence and brutality create the
identity of the fugitive.
The oral tradition places police violence at the origin of the story, inverting the
very propaganda that brought the legend into being. ‘‘Once this violence is shown
not only to precede but to produce the outlaw, a new kind of inquiry is begun that
reads blackness as the signature of violence.’’ For Wagner, then, the outlaw legiti-

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 mates the state of exception, the fugitive’s abandonment before criminal and civil
law. In order to exercise the sovereign right to kill, the state had first to create a
person entirely stripped of all rights, a person outside the reach of civil law, criminal
law, even slave statute. To do so, the state invoked the ancient precedent of outlawry.
For Colin Dayan as for Wagner, the genealogical inscription of race can be
traced to an old language of criminality, monstrosity, and heredity—that taint
through which the criminal is ‘‘exterminated as a monster.’’ For them, blackness is
the consequence of violence, the residue of an exercise of power. As William Black-
stone describes the outlaw’s utter abandonment before the law: ‘‘For when it is now
clear beyond all dispute, that the criminal is no longer fit to live upon the earth,
but is to be exterminated as a monster and a bane to human society, the law sets a
note of infamy upon him, puts him out of its protection, and takes no further care
of him than barely to see him executed. He is then called attaint, attinctus, stained,
or blackened.’’23 In ‘‘Legal Terrors,’’ Dayan points to this history of taint, to ‘‘the
stigma that ordains deprivation’’ and produces a class of citizens ‘‘who are dead in
life.’’24 For her, the slave exemplifies the condition of civil death, a long project of
civil incapacitation that condemns certain entities—for example, the prisoner, ‘‘se-
curity detainee,’’ ‘‘enemy combatant’’—to be ‘‘dead in law,’’ to have ‘‘los[t] the right
to have rights.’’ Dayan, tracing the long history of radical depersonalization, moves
between the ethereal musings of St. Paul, the recent Torture Memos of the Bush
Administration, and the opinions of Justice Antonin Scalia in cases involving
‘‘cruel and unusual punishment.’’ She notes that, to the degree that the wantonness
and intentions of the guards, interrogators, and prison administrators supplant the
physical and psychic experiences of the prisoners as the basis for the definition of
‘‘cruel and unusual punishment,’’ the state eviscerates all prohibitions against tor-
ture. ‘‘Once states of mind such as ‘indifferent’ or ‘malicious’ are applied to those
who harm without actual liability to legal punishment, something vicious is being
done to the object of harm, now reduced to a mere body controlled by adminis-
trative power.’’ Dayan describes this as a ‘‘second death,’’ a return to the state-
sanctioned bondage of slavery. What does it mean to kill that which is already dead?
How do you kill the spirit of the person already considered ‘‘dead in law’’? The
achievement of ‘‘second death’’ is the very business of cruel and unusual punish-
ment, she argues, one that does not have a history so much as a kind of compulsive
repetition: ‘‘the insistence on the already done that must be redone,’’ the very ritual
practice that is law itself. This brutal reduction of life is a condition from which
there is no return, for which no redress is possible.
As in the case for both Herman Bennett’s and Bryan Wagner’s essays, in Da-
yan’s ‘‘Legal Terrors’’ the slave designates a relation to law, state, and sovereign
power, a condition of disfigured personhood, civil incapacitation, and bare life that
long outlives slavery itself. Dayan writes: ‘‘The substance of slavery is preserved in
the person of the prisoner by confronting what it is to be a person, or the limits of
personal identity.’’ This genealogy of the slave is in tension with the case put for-

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ward by Westley, where the slave designates a long history of the devaluation of the
African. This tension is productive for us because it opens up a set of questions
concerning the competing genealogies of racism, the identity of the slave, the role
of the state, and the possibility or impossibility of redress. For Westley, every living
African American is a legitimate heir of the slave. For Dayan, it is the prisoner, the
stateless, and the enemy combatant who can claim the slave as progenitor. In many
of the essays we’ve gathered in this volume (Dayan, Wagner, Bennett, and Lloyd)
racism and the figure of the black recede, even as the essays extend a line of thinking
on the state of exception and lives lived in a negative relation to law that others
(Michel Foucault, Achille Mbembe, Hannah Arendt) mark specifically as the work
of ‘‘racism.’’
In David Lloyd’s ‘‘The Indigent Sublime: Specters of Irish Hunger,’’ the Fam-
ine Irish—like the slave and the prisoner—occupy the threshold that divides the
human and the nonhuman. The Famine, he contends, was the price of converting
the Irish into wage laborers, and to achieve that end what had to be destroyed was
the clachan (an older Gaelic system of communal landholding and collective labor
recalcitrant to capitalist modes of production). The clachan, or rundale, preserved
an Irish vernacular culture in which labor and recreation were integrated. For
Lloyd, the clachan represents ‘‘a countermodern effect of modernity’’ and ‘‘an alter-
native track of human unfolding that is at once there and not there, of the present
and of another time.’’ What does it mean to write a history of the present that pivots
upon a destroyed cultural formation? The clachan is not for him a nostalgic figure
of times past, but rather an occasion to think about eclipsed and alternative futures.
For Lloyd, what is at stake in this social formation are ‘‘the outlines of a communal
life whose redemption and transformation presen[t] a still to be realized alternative
to capitalist colonialism.’’
Lloyd, like others in this volume, explores the violence of discursive formations
that produce classes of disposable people. For him, ‘‘the spectacle of the skeletal,
starving human reveals [much] about the very minimum of humanity itself.’’ This
state, in which rightlessness is so total, in which life has been reduced to matter,
illuminates ‘‘the deep connection between the rightless, politically unrepresented
status of bare life and the process of a primitive accumulation that denies the dispos-
sessed of even the right to subsistence.’’ This is akin to what Wagner in his essay
describes as the slave’s ‘‘abandonment before the law’’ or Dayan describes as the
process by which persons are made ‘‘dead in law.’’
But the Famine Irish are, for Lloyd, ‘‘the contemporaries of every unfinished
struggle against domination.’’ Contrary to historicism, which refuses a relationship
to loss, Lloyd’s historical materialism, echoing the work of Walter Benjamin, con-
ceives the work of history as that which attempts ‘‘to grasp the record of both [the
dead’s] recalcitrance and their defeats as the record of an unfinished collective
struggle to live on.’’
For Herman Bennett, received narratives of the early modern period have pro-

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 duced a ‘‘savage-to-slave’’ plot that makes it impossible to engage the vicissitudes of
the encounter between Europeans and Africans, the determining role of historical
representation in shaping the encounter, and the role of sovereign power in the
production of different classes of Africans. A central target of Bennett’s critique is
an account of the making of the African diaspora that privileges the slave as its
‘‘charter subject.’’ To the contrary, Bennett reveals the ways in which categories of
personhood and taxonomies of difference were the product of an imagined ‘‘Af-
rica,’’ ‘‘Egypt,’’ ‘‘Ethiopia,’’ and ‘‘Libya,’’ which was then transposed onto Guinea.
Bennett attends to the juridical differences wrought among Africa’s inhabitants, to
the conflicts in early modern politics between natural law, customary law, and
canon law that gave rise to discrete classes of infidels and pagans, Africans and
blacks, sovereigns and sovereignless, free persons and slaves.
Viewing Guinea through the conceptual grid of narratives forged two hundred
years earlier, the Portuguese gaze ‘‘elicited little wonder and even fewer marvels.’’
‘‘This phenomenon, a product of reconquista historiography, positioned Guinea’s
inhabitants as knowable objects whose customs, habits, and practices could be ap-
prehended.’’ Guinea’s inhabitants were defined, by the terms of this grid, in relation
to the threatening and defeated, yet nonetheless sovereign, Moors. Guinea’s black
inhabitants were ascribed a ‘‘corporate place as the sovereignless,’’ and this designa-
tion is what legitimated their enslavement. Bennett suggests that it is sovereignless-
ness, both in the eyes of Africans and Europeans, rather than blackness, that deter-
mines who is vulnerable to enslavement in the early modern period. This focus on
sovereignlessness and statelessness heralds a new direction in studies of slavery, one
that takes a keen interest in the state and its designation of dispensable subjects.
Although Bennett doesn’t make the point, his essay would seem to suggest the con-
stitutive role of expendable lives in the project of state building. Bennett’s essay in-
vites us to consider two important questions: How does the recognition of heteroge-
neity better enable us to chart the relation between pasts and presents, to think
about the relation between capitalism and slavery and the dilemmas of the present?
What happens, as he asks, both to our understanding of black identity and the poli-
tics of redress when their foundational trope, the slave, is no longer conceived of as
a stable subject?

No t e s

The work of the Redress Project, from its first conversations to the publication of the
following essays, has received valuable support from a number of institutions: the Uni-
versity of California’s Humanities Research Institute (HRI); the Mellon Foundation’s
Sawyer Seminar program; and UC Berkeley’s Townsend/Mellon Strategic Working
Group program. We would like to thank David Theo Goldberg and the staff at HRI,

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 as well as Tom Laqueur, Candace Slater, Matthew Tiews, and the staff at the Doreen
B. Townsend Center for the Humanities. We also like to extend a word of gratitude to
the Representations editorial board and to Jean Day, the journal’s associate editor.
We want to give special thanks to all those who have made the Redress Project a
living, breathing diaspora: at HRI, Dina Al-Kassim, Lindon Barrett, Judith Jackson
Fossett, Alex Gelley, Cheryl Harris, Donna Jones, Jeff Prager, Michael Soller, Robert
Westley, and Lisa Yoneyama; through the Mellon Sawyer Seminar, Adjoa Aiyetoro,
Branca Arsic, Etienne Balibar, Elazar Barkan, W. James Booth, David Cohen, Neta
Crawford, Brent Edwards, Catherine Gallagher, Sander Gilman, Ruthie Gilmore, An-
gela Harris, Gloria House, Walter Johnson, Maivan Clech Lam, David Lloyd, Achille
Mbembe, Daniel Monk, Dorsey Nunn, Gabriel Piterberg, Elizabeth Povinelli, Marcus
Rediker, Cedric Robinson, Ngugi wa Thiong’o, Haunani-Kay Trask, and Jeanne
Woods; at the Townsend Center for the Humanities, Marianne Constable, Laurel
Fletcher, Christopher Kutz, Annie McClannahan, and Michael Rubenstein; and at the
fall 2005 Redress Symposium at UC Berkeley, Anne Bailey, Herman Bennett, Colin
Dayan, Fred Moten, and David Scott.
1. Ottobah Cugoano, Thoughts and Sentiments on the Evil of Slavery (1787), (London, 1969),
97. Subsequent page references to this work appear parenthetically in the text.
2. The 1773 petitioners were Peter Bestes, Sambo Freeman, Felix Holbrook, and Chester
Joie. See Dorothy Porter, ed., Early Negro Writing, 1760–1837 (Boston, 1971), 254–55.
3. On the relation between grief and grievance, see Anne Cheng, The Melancholy of Race
(New York, 2003).
4. Veena Das, ‘‘Language and Body: Transactions in the Construction of Pain,’’ in Social
Suffering, ed. Arthur Kleinman, Veena Das, and Margaret Lock (Berkeley, 1997), 69.
5. Michael Hanchard, ‘‘Afro-Modernity: Temporality, Politics, and the African Dias-
pora,’’ Public Culture 11 (1999): 245–68.
6. We use the language of ‘‘descendants’’ here, not to indicate the slave’s potential heirs,
but to indicate the actual recipients of the slave’s negative inheritance—the ongoing
production of lives lived in intimate relation to premature death (whether civil, social,
or literal). In her work on ‘‘civil death,’’ Colin Dayan argues that the slave and the
prisoner are subject to a sorcery of law—a ‘‘being dead in law’’ that sustains ‘‘the image
of the servile body necessary for the public endorsement of dispossession’’; see Joan
Dayan [Colin Dayan], ‘‘Legal Slaves and Civil Bodies,’’ in Materializing Democracy:
Toward a Revitalized Cultural Politics, ed. Russ Castronovo and Dana Nelson (Durham,
N.C., 2002), 53–94, 87. For Ruthie Gilmore, this is the very definition of ‘‘racism’’:
‘‘The state-sanctioned production and exploitation of group vulnerabilities toward pre-
mature death’’; Ruthie Gilmore, ‘‘Profiling Alienated Labor,’’ talk delivered at Mellon
Foundation Sawyer Seminar on Redress in Law, Literature, and Social Thought, 24
February 2003.
7. Guyora Binder, ‘‘The Slavery of Emancipation,’’ Cardozo Law Review 17, no. 6 (May
1996): 2063–2102, 2068 and passim.
8. Anthony Paul Farley, ‘‘The Apogee of the Commodity,’’ DePaul Law Review 53 (Spring
2004): 1229–46.
9. Hortense Spillers, ‘‘Mama’s Baby, Papa’s Maybe: An American Grammar Book,’’ in
Black White and In Color (Chicago, 2003) 208.
10. George Jackson, Soledad Brother (Chicago, 1994) 233.
11. The arguments against reparations and descent either question any relationship be-
tween authoritative narratives of the past and advancing political claims in the present,
or assert that there is no practical importance now of a judgment that injustice occurred

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 in the past. See, respectively, Steven Knapp, ‘‘Collective Memory and the Actual Past,’’
in Literary Interest: The Limits of Anti-Formalism (Cambridge, Mass., 1993), 106–36; and
Jeremy Waldron, ‘‘Superseding Historical Injustice,’’ Ethics 103 (1992): 4–28, and Jer-
emy Waldron, ‘‘Settlement, Return, and the Supersession Thesis,’’ Theoretical Inquiries
in Law (Online Edition) 5, no. 2 (2004) [http://www.bepress.com/til/default/vol5/
iss2/art1].
12. David Scott, Conscripts of Modernity: The Tragedy of Colonial Enlightenment (Durham,
N.C., 2004), 30–31, 168.
13. Callie House to Harrison J. Barrett, acting assistant attorney general for the Post Office
Department, September 29, 1899, Record Group 28, Records of the Postmaster Gen-
eral, Office of the Solicitor, Fraud Order Case Files 1894–1951 (brackets in original);
cited in Mary Frances Berry, My Face Is Black Is True: Callie House and the Struggle for Ex-
Slave Reparations (New York, 2005), 88–89.
14. Berry, My Face Is Black Is True, 62–63.
15. Walter L. Fleming, ‘‘Ex-Slave Pension Frauds,’’ University Bulletin, Louisiana State Univer-
sity 1 (September 1910): 3–15; quoted in Walter B. Hill Jr., ‘‘The Ex-Slave Pension
Movement: Some Historical and Genealogical Notes,’’ Negro History Bulletin 59, no. 4
(1996) [http://www.afrigeneas.com/library/hillarticle.html#note4].
16. Johnson vs. McAdoo 45 App. D. C. 440 (1916).
17. Berry, My Face Is Black Is True, 84.
18. In re African-American Slave Descendants Litigation, 304 F. Supp. 2d 1027, (N. D. Ill. 2004),
1040–42. This case consolidated the following reparations suits: Porter v. Lloyds of Lon-
don, No. 02-CV-6180 (N. D. Ill. filed Aug. 29, 2002); Carrington v. FleetBoston Fin. Corp.,
No. 02-CV-1863 (E. D. N.Y. filed Mar. 26, 2002); Farmer-Paellman, v. FleetBoston Fin.
Corp., No. 02-CV-1862 (E. D. N.Y. filed Mar. 26, 2002); Barber v. N.Y. Life Ins. Co., No.
02-CV-2084 (D. N. J. filed May 2, 2002); Johnson v. Aetna Life Ins. Co., No. 02-CV-9180
(E. D. La. filed Sept. 3, 2003); and Hurdle v. FleetBoston Fin. Corp., No. 02-CV-4653 (N. D.
Cal. filed Jan. 17, 2003).
19. For an account of the capaciousness of the political movement for reparations see Robin
Kelley, ‘‘A Day of Reckoning: Dreams of Reparations,’’ in Freedom Dreams: The Black
Radical Imagination (Boston, 2002), 110–34. Kelly writes: ‘‘The reparations campaign,
despite its potential contribution to eliminating racism and remaking the world, can
never be an end in itself. . . . And without at least a rudimentary critique of the capitalist
culture that consumes us, even reparations can have disastrous consequences.’’ He
closes his essay on reparations with a quote from Grace Boggs: ‘‘Instead of seeing our-
selves only as victims, we begin to see ourselves as part of a continuing struggle of
human beings, not only to survive but to evolve into more human human beings.’’
20. Seyla Benhabib and Paul Gilroy would term this noise ‘‘the politics of transfiguration,’’
by which they mean a notion of utopian politics that exceeds the frame of prevailing
conceptions of political rationality. See Gilroy, The Black Atlantic (Cambridge,1993), 37;
and Seyla Benhabib, Critique, Norm, and Utopia (New York, 1986), 13, 41. On ‘‘black
mo’nin’,’’ see Fred Moten, In the Break (Minneapolis, 2003), 192–211.
21. What we call ‘‘black noise’’ Robin Kelley would describe as a ‘‘freedom dream,’’ or
Fred Moten would describe as ‘‘the surreal utopian ‘nonsense’ of a utopian vision, the
freedom we know outside of the opposition of sense and intellection’’; see Robin D. G.
Kelley, Freedom Dreams, and Fred Moten, ‘‘Uplift and Criminality,’’ unpublished manu-
script, 23.
22. Achille Mbembe begins his account of the rise of modern terror with slavery, which he
defines as one of the first instances of biopolitical experimentation. The plantation sys-

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 tem and its aftermath manifest the emblematic and paradoxical figure of the state of
exception, a state that is less ‘‘a temporal suspension of the state of law’’ (as it was under-
stood by Carl Schmitt) and more the achievement of ‘‘a permanent spatial arrangement
that remains continually outside the normal state of law’’; see Achille Mbembe, ‘‘Ne-
cropolitics,’’ Public Culture 15, no. 1 (Winter 2003): 11–40.
23. William Blackstone, Commentaries on the Laws of England (1769) (Chicago, 1979), 4: 373.
24. See Dayan, ‘‘Legal Slaves,’’ 62.

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