Slavery and the "Masks of the Law"

 One of the great constitutional law scholars of the past fifty years, the late, great Judge John T. Noonan of the Ninth Circuit, has observed that “[i]t is a propensity of professionals in the legal process to dehumanize by legal concepts those whom the law affects harshly.” He calls this process of dehumanization the “masks of the law.”

What Noonan meant by the masks of the law is the law’s ability to use rules and legal concepts to conceal persons who are treated harshly by the law. He puts it this way in his book entitled The Masks of the Law: “By masks in this context I mean ways of classifying individual human beings so that their humanity is hidden and disavowed.” So, think about slavery in American legal history. Suppose the law wants to permit and even sanction slavery, as was the case in America before the Civil War. The mask that the legal system used to disavow the human dignity of slaves was the mask of “property.” The mask of “property” was what allowed champions of liberty, such as George Wythe and Thomas Jefferson, to own slaves and to accept the power of the law to treat slaves harshly.  

By the way, there is also a powerful example of slavery and the masks of the law in the recent Oscar-winning film, Twelve Years a Slave. It is the scene where the cruel slave-owner, Master Epps,  is brutally whipping Patsey, a female slave. He is literally tearing the flesh off her back with a bull whip for a minor act of disobedience. Solomon Northrup, a free man who was kidnapped and sold into slavery, denounces Epps for his inhumanity: “Thou Devil,” says Solomon. “Sooner or later, somewhere in the course of eternal justice, thou shalt answer for this sin!” Epps replies with a mask: “Sin? There is no sin. Man does how he pleases with his property."    

Are there other examples in history where the law refused to recognize the personhood and human dignity of a subcategory of human beings? Be very careful when analyzing laws that refuse to recognize the full humanity of any class of human beings, because persons classified as "nonpersons" are outside the protection of the law.