Race And The Law Research Paper

1.1 Mainstream vs. Critical Scholarship

Scholarship addressing race and the law is split between mainstream approaches and critical approaches. Mainstream approaches generally conceive of racial discrimination as a minor and isolated exception to the otherwise liberal and enlightened societies of the industrialized West. They understand racial injustice as largely unconnected to other institutions in the societies in which it operates and are therefore optimistic that racism can be eliminated ‘surgically,’ without requiring significant or widespread changes in those societies. Critical scholarship by contrast understands racism as deeply implicated in the institutions and traditions of societies and is therefore accordingly both more radical in its prescriptions and more circumspect in its predictions of success (Bell 1989, Crenshaw 1995, Williams 1991).

Because the definition of race is malleable, fluctuating, and contested, the study of race and the law encompasses not only ‘race’ as it is colloquially understood but also issues of ethnicity, national origin, caste, and religious and cultural difference. The field could therefore be understood to include the study of ethnic and nationalist divisions in Asian countries, caste hierarchy in Hindu societies, tribal conflict in central Africa, and religious conflict worldwide. It implicates the study of nationalism and pannationalist movements, communities of diaspora and indigenous peoples. Moreover, the field is deeply concerned with the intersection of race with issues of gender, sexual orientation, and class (Crenshaw 1995, A Harris 1990, Thomas 1995, Williams 1991).

Generally speaking, the study of race and the law encompasses two major projects. The first is a critique that demonstrates how legal institutions and formal laws produce and perpetuate racism and racial hierarchy. The second is the analysis of legal reform that might eliminate or minimize the effects of racial hierarchy. This research paper will address each in turn.

1.2 The Critique Of Law As A Cause Of Racism

Legal scholarship addresses the various ways in which law has produced and continues to produce racial hierarchy. Law contributes to racism and racial hierarchy in at least three distinct ways. First, law codifies racial categories, which are then employed by both public and private actors to erect and maintain racial hierarchies. Second, law institutionalizes racial hierarchy by creating formal rules requiring or encouraging racial hierarchy: by segregating the races, by excluding the members of certain races from participation in social, economic, and political activities and institutions, or by legally codifying the subordinate status of one or more races. These first two types of legal action are commonly known as de jure racial discrimination because they explicitly employ or create racial categories by force of law. Third, law allows, encourages, and requires the maintenance of institutional practices and social customs that perpetuate racial subordination by entrenching the racial hierarchies of the past, even when no formal legal rule requires or promotes racial subordination on its face. This latter type of legal action is known as de facto racial discrimination because it in fact produces and enforces racial subordination, although it does not do so explicitly.

2. Racial Categorization

Many scholars have studied the development and use of racial classificatory schemes (Davis 1991, HaneyLopez 1994, Omi and Wynant 1994). Virtually all scholars agree that, historically, schemes of racial classification were not based on sound scientific theories and therefore do not reflect any ‘real’ biological differences between the races. Given the dubious scientific basis for any racial classification of human beings, it is not an exaggeration to assert that law not only enforced racial hierarchy, it also (along with other social institutions and practices) in fact produced a specific type of racial difference.

2.1 The Ontological Status Of Racial Categories

There is disagreement about the ontological status of racial categories and the centrality of law in producing racial categories. Some scholars believe that racial categories have a substance that predates or transcends legally enforced and encoded racial categorization. While few scholars would argue that races are well understood in terms of biological or genetic difference, many argue for or assume that cultural differences distinguish the races (Gotanda 1995, Peller 1995). The belief that racial categories describe an essence or positive (in the sense of ‘positive science’ not necessarily in the sense of ‘good’) attribute of human beings—whether biological or cultural—is known as racial essentialism.

Other scholars argue that social practices, including legal codification, produced racial differences where there were no such differences before. These scholars contend race is not an attribute of individuals or groups but instead the effect of a social discourse that ascribes difference to individuals and groups (Appiah 1996, Ford 1999). They insist that without the discourse of race, there would be no races. The belief that race is not an attribute or essence of individuals or groups but is instead the effect of the social discourses that describe it and the social practices that make it relevant is known as anti-essentialism or social constructivism.

2.2 The Legal Codification Of Racial Categories

Legal historians have examined the development and transformation of racial categories and definitions. A vast literature details the variety of racial classificatory schemes employed in the USA, Europe, and South Africa. The contemporary literature is overwhelmingly critical of most racial categorization, both because of its opportunistic use of scientific data (or its use of questionable science to justify racial categories) and because of the oppressive use to which racial categories have been put.

There is, however, some dissension on the question of remedial or so-called benign racial classification. A widespread understanding of constitutional law and a pervasive popular attitude holds that the legal codification of any racial classification is socially deleterious and morally indefensible (Thernstrom and Thernstrom 1999). This view asserts that the law should be race blind. Many scholars who may not insist on strict color blindness nevertheless have serious misgivings about the use of racial classifications, even for remedial purposes (Carter 1992). Others believe that racial classification is not per se undesirable and argue that remedial racial classification is the necessary antidote to centuries of oppressive racial classification. They assert that the law should be affirmatively race conscious (Crenshaw 1995, Gotanda 1995, Matsuda and Lawrence 1997, Peller 1995).

2.3 The Legal Enforcement Of Racial Hierarchy

Along with the study of racial categorization, a core concern of the study of race and the law is the legal enforcement of racial hierarchy. Of course the two are closely related: racial categories developed hand in glove with policies of racial exclusion, segregation, disenfranchisement, and involuntary servitude. The study of racial hierarchy has traditionally distinguished between formally enforced racial distinctions, hierarchies, and exclusions—de jure racial practices— and the formal requirement and enforcement of practices that have the effect of establishing or perpetuating racial hierarchy—de facto racial practices.

2.3.1 De Jure Racial Subordination. Legal historians have detailed the legal mechanisms that historically have enforced and perpetuated racial hierarchy. Historians of the USA study the institution of racial hierarchy through chattel slavery (Tushnet 1981) and the post-emancipation development of ‘Jim Crow’ laws, which required racial segregation in public institutions and accommodations such as school rest rooms, drinking fountains, eating facilities, railroad coaches, and theater or stadium seating (Woodward 1989). Scholars of South Africa study the emergence, transformation, and eventual dismantling of racial apartheid, a policy that codified a belief in black inferiority as explicit policy and required segregation of the races in virtually every aspect of political and social life (Goldberg 1994, McClintock and Nixon 1991). Comparative scholars analyze the difference and similarities of South African apartheid and American Jim Crow laws (Ford 1999, Goldberg 1994).

Much of the historical study of European racial policy takes place as part of the study of European colonialism (Appiah 1993, Bhabha 1994, Gilroy 1991). Explicit colonial racial policy and the treatment of non-whites in Europe are understood to implicate the ideology and political economy of European colonial rule.

2.3.2 De Facto Racial Subordination. Formal racial exclusion, segregation, and hierarchical classification are rare in the post-industrial mass democracies of today. They have been rejected by mass opinion, eliminated by legislation, and struck down by courts applying constitutional law. Nevertheless, racial hierarchy persists as a significant feature of every society with a history of racial differentiation. Accordingly, the study of race and the law focuses a significant amount of attention on informal or implicit practices that effectively perpetuate racial hierarchy.

The focus on de facto racial subordination almost certainly began as a response to racial practices in the post civil war USA. Federal constitutional guarantees of emancipation from slavery, equal protection and the right to vote prohibited certain explicit racial barriers. But many states, especially those of the former confederacy, found mechanisms to effectively re-establish these racial barriers without explicit reference to race. For instance, although blacks had a formal right to vote, many states effectively eliminated the black franchise through poll taxes and literacy requirements that were informally waived or ignored for whites but strictly enforced against blacks. And despite the formal emancipation of black slaves, many blacks were effectively forced into perpetual indentured servitude through the notorious sharecropping system of Southern agriculture.

Informal and de facto forms of racial subordination emerged again as the response to more comprehensive civil rights reforms of the Civil Rights Act of 1964. Significantly, the Civil Rights Act prohibited racial discrimination in employment and accommodation in private institutions such as hotels, restaurants, and theaters, and in the sale and rental of housing. Many of the private institutions covered by the Act sought effectively to reproduce racial exclusion or discrimination through less explicit means. Lawyers, activists, and scholars, armed with a knowledge of post civil war history, were able to identify and critique these practices. The attack on de facto racial subordination and discrimination became a staple of civil rights litigation as scholars and lawyers worked to expose the variety of practices that effectively perpetuated racial subordination. Antiracist scholarship and legal practice has attacked a host of formally colorblind practices as effectively racially discriminatory, including electoral gerrymandering (Guinier 1995), standardized tests (Matsuda and Lawrence 1997), neighborhood schools in a context of racially segregated neighborhoods (Ford 1995), restrictive land use regulations (Ford 1995, C Harris 1995), informal racial steering in real estate sales (Ford 1995), and informal racial discrimination in hiring and promotions (Crenshaw 1995, Williams 1991).

3. Antiracist Legal Reform

Scholarship that examines, analyzes, and advocates the development of antiracist legal reform encompasses a vast range of proposals and is based on a number of methodologies and ideological commitments. Many approaches to antiracist reform build on civil rights reforms of the 1960s in the USA, advocating the expansion of such reforms and/or the adaptation of such reforms in other national contexts.

A significant split has emerged between mainstream and critical approaches. Critical approaches question the efficacy and the underlying ideologies of mainstream civil rights and liberal antiracism. Beginning from an analysis that sees the problems of racism as deeply imbedded in the structure of social practices and institutions—including law itself—critical approaches are skeptical of reform proposals that attempt ‘surgically’ to correct or ameliorate racial bias while leaving most institutions and social practices more or less unchanged (Bell 1989, Crenshaw 1995). Nevertheless, many critical approaches often build on mainstream reforms, arguing for their radical expansion (Matsuda and Lawrence 1997, Williams 1991). Others suggest that mainstream reforms do more harm than good and should be abandoned altogether in favor of more comprehensive changes (Tushnet 1982).

3.1 Integrationism vs. Separatism

Crudely put, antiracist legal reform is characterized by a split between two strategies and/or normative commitments, one which favors the integration of the races and one which favors the development of distinct, autonomous and separate communities (see Ford 1995, Peller 1995).

Historically, racial hierarchy has been legally enforced through spatial quarantine: American Jim Crow laws enforced the physical separation of the races in public accommodations and state institutions; racial zoning and restrictive covenants have divided the metropolitan landscape into racial neighborhoods; South African apartheid enforced racial segregation on a comprehensive regional scale and imposed racially specific curfews in white-only jurisdictions. Spatial segregation not only had potent symbolic consequences but also facilitated the inequitable distribution of resources: white-only institutions were consistently better situated, better funded, and socially and politically privileged compared to those assigned to racial minorities.

Given this history, a significant approach to remediation has been to encourage the integration of the races in public and private institutions and residential environments. Many American civil rights reformers believed that antiracist legal reform should embody a positive preference for integration qua integration. Others believed that integration was desirable only because it would undo or stymie the inequitable distribution of resources in a society. These two rationales for integration produced a powerful consensus that has dominated American civil rights discourse since the 1960s and which has been influential in many other national contexts.

At the same time, however, a competing view has held that the development of distinctive and empowered minority communities is essential to racial justice and equality (Peller 1995). This view focuses on the need for political solidarity, social support, and cultural autonomy. Racial ‘separatism’ has grown in popularity as many racial minorities have become disillusioned with the limitations of mainstream civil rights and the difficulties and compromises entailed in integration.

3.2 Anti-Discrimination

A dominant conceptual and practical approach to antiracist legal reform has been that of anti-discrimination. The anti-discrimination concept presupposes that racial hierarchy is the result of irrational prejudice or bigotry based on race that results in racial discrimination. Therefore, legal reform prohibits intentional racial discrimination and practices and some policies that disparately impact members of racial minority groups. The anti-discrimination approach to antiracism focuses on specific wrongful actions by identifiable decision makers: if no wrongful act can be identified, this approach recognizes no legally cognizable or remediable harm (see Freeman 1995).

3.3 Anti-Subordination

An alternative approach to antiracist legal reform is that of anti-subordination. The anti-subordination approach views racism as a set of practices that have the effect of systematically reproducing racial hierarchy, even if no identifiable decision maker can be said to be racially biased. Anti-subordination approaches therefore find it uncontroversial that practices that adversely effect racial minorities should come under legal scrutiny, even in the absence of evidence of intent or bias. More importantly antisubordination approaches look for patterns and systems in which several distinct practices combine to produce regular, predictable, and systematic racial subordination even when each individual practice, viewed in isolation, might seem unproblematic (Crenshaw 1995).

3.4 Identity Politics And Multiculturalism

One significant strand of antiracist politics seeks to advance a project of racial recognition or multiculturalism, emphasizing the distinctiveness of racial minority communities in terms of culture. This strand seeks legal reform prohibiting discrimination against the cultural practices of racial minority groups as well discrimination on the basis of race qua status (Gotanda 1995, Peller 1995, Kymlicka 2000, Taylor 1994).

This approach can be understood as a logical extension of the anti-subordination approach to anti- racist legal reform: discrimination against cultural practices effectively harms members of racial minority groups and can be seen as a component of systematic racial subordination.

One necessary consequence of racial multiculturalism is that it requires a definition or widely shared understanding of the content of racial identity or a racial culture. Such understandings or definitions are often controversial, both in society at large and within the given racial group itself. Moreover, the idea that racial identity or culture exists in a static or stable form is itself controversial. Some scholars would reject the very idea of a static or widely shared understanding of racial identity or culture as mistakenly essentialist (see Sect. 2.1.1).

3.5 Anti-Essentialist And Cosmopolitan Conceptions Of Racial Identity

An emerging strand of antiracist scholarship first articulated within postcolonial African, Caribbean, and Indian communities approaches racial identity as fluid and supple, yet also the source of rich political, social, and cultural affiliations. These approaches define racial identity not in terms of a biological or cultural essence, but instead in terms of identification (Appiah 1996, Bhabha 1994, Gilroy 1991). According to one strand of this scholarship, members of racial minority groups share common ‘passions’ based on shared or analogous experiences of racial subordination (Gilroy 1991). This approach dispenses altogether with any remnant of biological or inheritance notions of racial identity: members of what might traditionally have been several different ‘races’ can and do share a cosmopolitan racial identity which can transcend national boundaries, cultural traditions, skin color, and phenotype. This scholarship adopts an explicitly anti-subordination approach to antiracism, but rejects the multiculturalist focus on cultural traditions within distinctive racial or ethnic communities as traditionally defined. Instead it embraces a cosmopolitan or diasporic culture that joins racial minorities of various ethnicities and cultural backgrounds.

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