February 24, 2011 Broken Fence
Does the law play merely a superstructural role in the generation and maintenance of racism or is it generative of the infrastructure of racism? Is the primary function of the law legitimation or does the law primarily function through direct intervention into social relations? In reviewing antidiscrimination law, many scholars have pointed to the tendency of the law to simply mask extant patterns of inequality through the rhetoric of formal equality (Harris 1993; Gotanda 1991; Freeman 1977; Dunson III 2001; Emens 2009; Berg 1999). This ‘masking’ function of antidiscrimination law is a means through which the law serves to discursively legitimate status quo maldistributions of resources and power, while at the same time offering forceful protection to the established order from legal and political challenges. This might serve to imply that the role of the law is primarily superstructural – that it offers legitimation and stability – in relation to deeper structures that generate basic social relations (e.g. empire, capitalism, patriarchy).
However, such a view misses the contexts in which the law becomes an active collaborator in producing inequality, rather than simply stabilizing external patterns. By paying attention to the legal practices involved in the production of spaces of exception, tax policy, and criminal justice, we can see that the law can co-constitute structures of domination, oppression and inequality in addition to legitimating and stabilizing them. If the law seems merely superstructural in one circumstance, and structurally constitutive in another, than perhaps another logic is in operation. Those contexts in which the law appears superstructural are the same contexts that might offer challenge to white supremacy and other structures of oppression. Those contexts in which the law appears as forceful and co-constitutive of social structure are those in which it buttresses or exacerbates existing patterns of inequality. The common thread is support for status quo power arrangements, and the law deploys either an active constitutive mode or a passive mode of legitimation and stabilization depending on context.
Critical scholarship on antidiscrimination law and legal remedies to racism offer insight into the discursive and legitimating mode of legal action. Alan Freeman argues that the law primarily worked as a means to legitimate and stabilize racial disparities in a moment of crisis. The embrace of a ‘perpetrator’ centered perspective centered on identifying harm and intent to cause harm foreclosed the possibility of a ‘victim’ centered perspective centered on the actual conditions of disparity (1977). He argues that the law had the contradictory goal of holding out the discursive promise of racial equity while foreclosing the real possibility of attaining justice. Formal equality and race neutral colorblindness serve as a legitimating mask that suggests that the state rebukes racism while strictly limiting the boundaries of actual remedial action. Neil Gotanda suggests that the precept of a colorblind constitution requires substantial intellectual and performative gymnastics that result in the erasure of the historical meaning of race and racism. He argues that a contradictory practice of “nonrecognition” (Gotanda 1991:6), combined with a move toward formal definitions of race and an insistence on the “unconnectedness” (1991:41) of race to extant patterns of inequality reinforces white supremacy through legitimating racism as a thing of the past.
Cheryl Harris argues that we can read the legal history of whiteness and property together; that they are co-constitutive. She argues that contemporary claims to remedial action are being weighed against the settled expectations of white people’s privilege, and that white people have won legal protection for their investments in whiteness. As such, the courts have legitimated and reinforced extant hierarchies. Perhaps more than Gotanda and Freeman, Harris suggests that racial law itself has helped to constitute the frameworks through which privilege and exclusion operate (1993). In the context of colorblind or unconnected formal-race jurisprudence (Gotanda 1991; Freeman 1977), we see the function of the court as primarily legitimating status quo power distributions. In the context of whiteness as property or status-race in the pre civil-rights era, we see the court actively engaging in creating and reinforcing white supremacist social structure. In these cases then, the mode that sees the court as primarily legitimating operates only in the context of the possibility of social change to white supremacy. Anti-discrimination law in particular serves to suggest equity while refusing to challenge. Property (as Harris suggests) and other sectors of the law are far more direct in their intervention.
Derek Gregory suggests that spaces of exception and colonial occupations are characterized not so much by the suspension of law but through an elaborate legal performance. He suggests that we can’t see law in this context as merely offering the cover of legitimacy for the necropolitical (Mbembe 2003) regimes these spaces contain, but that these legal performances themselves render spaces as both interior to sovereignty and exterior to it simultaneously (2006:414). The law co-constitutes this social structure of extreme racial domination in partnership (and perhaps inseparably bound with) imperialism and biopolitical governance. Indeed the constitution of the space of exception and its governance is by necessity legal and by necessity racist (Foucault 2003:258; Mbembe 2003). The law here does far more than offer legitimation, it actively builds social structure.
Similarly, the racial maldistribution of wealth which affirmative action policies seek to at least suggest challenge to, are at least partially co-created through legal action. The establishment of the Bush-era tax cuts (and the precipitous decline in tax rates following the end of World War II) served to promote a massive upward transfer of wealth (Hacker and Pierson 2005). Similarly, the rapid privatization of public goods such as public housing has created windfall opportunities for corporate tax evasion, thus enabling a different stream of upward wealth transfer (Guthrie and McQuarrie 2005). In both cases, legal performance directly intervened into the fabric of social structure and buttressed already existing hierarchies.
Similarly, criminal law regularly intervenes directly and forcefully into social structures and actively builds a stigmatized underclass (Alexander 2009). Criminal law though, shows us how both discursive superstructural work and material structural work often go hand in hand in legal action. On the one hand, the enormous racial disparities in incarceration rates (Western 2006) produced by racist policing practices (Williams 2007; Parenti 2003), sentencing policy (Schlesinger 2011) and the targeting of racialized practices and spaces (Bobo and Thompson 2006; Mele 2004) naturalizes difference and legitimates and reinforces white supremacy (Wilderson III 2007). On the other, these same legal practices actively build structures of white supremacy through creating exclusive stigmas (Pager 2007) and dramatically diminishing the life chances of people of color (Western 2006; Gilmore 2007). In moments in which the legal system aligns with white supremacy, we see both the legitimation of Black subordination and the active building of structures that perpetuate white supremacy.
It is only then in moments in which the legal system potentially aligns itself against white supremacy that we see it function primarily with the discursive function of legitimation. The non-intervention that characterizes anti-discrimination law, coupled with its discourse of fairness and race neutrality, serves to ignore patterns of racial inequity. In this situation in which it ignores the problem, the court is compelled to engage in performances that communicate that it is in fact doing all that can be done to correct the problem, or that the problem of racism has been effectively dealt with (Freeman 1977:1117). This is a rare instance in which the court intentionally avoids action. In a range of other modes of legal action including criminal law, tax law, and the production of spaces of exception, the law actively engages in expanding or reinforcing white supremacy while at the same time engaging in communicative performance that seeks to naturalize power arrangements. When the capacity to act against white supremacy has developed, the courts choose non-intervention. When the capacity to buttress white supremacy arises, they actively engage. In both circumstances legal action involves the communicative task of legitimation.
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