Race as a Legal Construct

Race as a Legal Construct

More than 100 years ago, the American sociologist W.E.B. Du Bois is concerned that the race has been used as a biological explanation for what he understood to be social and cultural differences between different populations. He opposed the idea of “white” and “black” as distinct groups, saying these distinctions ignored the scope of human diversity. “While advocating for the progressive elimination of racial terminology in the biological sciences, we also recognize that the use of race as a political or social category to study racism, while filled with many challenges, remains necessary as we need to understand how structural inequalities and discrimination create health inequalities between groups,” Yudell said. In order to focus on race as a legal concept, as I propose, and to move our jurisprudence away from a notion of race as a natural and immutable quality of human identity, there are several analogues in private law with which one can work. In this discussion, I have chosen the area of conflict of laws. Conflict is a good candidate because he has experienced exactly the kind of transition I am proposing here for race. In the hands of legal realists like Walter Wheeler Cook, the conflict of laws went through the intellectual mill, tearing off its formalistic foundations and imposing a newly formed functionalist jurisprudence—jurisprudence that taught judges to wonder what social needs and governmental interests would be served if they decided to assign jurisdiction to one place or another. The first idea is political: the notion of a biological thing called “race” was originally developed as a way for some people to justify the subordination of other people. In the traditional accounts of our racial jurisprudence, the blatant racism of the eighteenth and nineteenth centuries gradually gave way to a more enlightened view of race—a view of race that would triumph after World War II, Brown v. Board of Education and the Civil Rights Movement in the United States. A crucial change involved an understanding of biology, namely that it was immoral to judge a person`s worth on the basis of race. Where in classical liberalism it was desirable to order social relations on the basis of biological categories (e.g., slavery, “separate but equal”), the new view was “colorblind.” As stated by Justice Harlan in his dissenting opinion in Plessy v.

Ferguson argued: “Our Constitution is colorblind and does not know or tolerate classes among citizens. In terms of civil rights, all citizens are equal before the law. The humblest is the peer of the mightiest. The color blind approach to racial justice was therefore first presented as a progressive attack on old racism, which denounced all efforts to derive the value of a person from his race. Color blindness, therefore, did not eliminate the old basic rules of the breed; Racial identity continued to be viewed as natural, objective and rooted in human biology. On the contrary, it diminished the meaning and changed the nature of the ground rules. In other words, while at one point a legal dispute could be resolved simply by identifying a person with a particular racial identity (i.e. if you are black, you can be enslaved; if you are white, you can attend a particular school), in the latter period, the basic rules of race were retained as a legal concept. but eroded (i.e. if you are black, we cannot make deductive judgments about your place in the social order on the basis of your race alone). This is a modern liberal style of defining race as a legal concept. Of course, these are difficult questions, and instead of trying to answer them, the strategy is to reject them. After all, each of these questions is based on a very common but very false assumption about the prelegal nature of racial identity.

As this article argues, race is at best “relatively autonomous” from the law, and under no circumstances should race be considered independent of the law. This view of the constitutive relationship between race and law is alien to liberalism, including the neoliberal style of racial jurisprudence. From a neoliberal perspective, human races, like economic markets, are pre-legal and have the best chance of thriving when they are completely unregulated. As Chief Justice Roberts noted in Parents Involved, “the way to end racial discrimination is to end racial discrimination.” In this light, the leading rules – the rules that caused the transition from classical to modern liberalism – actually become discriminatory. In the first decades of the twentieth century, many concepts of private law moved from objective, formal and natural foundations to emerging realism and sociological jurisprudence. Whatever we ultimately think of the outcome of this period in our jurisprudence, a “functionalist” perspective on legal concepts has become commonplace. With this in mind, this article argues for a similar overhaul of race as a legal concept—one that could substantially benefit from a liberation from its biological beginnings and an encounter with realist jurisprudence of the early twentieth century. The third part provides an abridged intellectual history of racial science. The reason to keep this story in mind is this: if the racial contract reveals a structure of racial domination, a knowledge of racial science teaches us to understand the scientific creation of race as an attempt to satisfy an urgent social need, namely, the need to understand (in the context of an emerging enlightenment) why it was acceptable to certain groups of people. oppress other groups of people. The invention of the idea of race helped answer this question, as it became increasingly obvious (and wrongly) that some peoples were objectively and scientifically superior to others.

This could be determined by a methodical study of the new “human races.” The fourth part moves from race as a biological concept to race as a legal concept, focusing on how the courts have adopted the scientific development of “race” as the basic rule for race as a legal concept. The discussion shows how the courts of classical liberalism, modern liberalism, and neoliberalism have always retained a biologically entrenched ground rule for structuring race as a legal concept. Viewing race as a legal concept shows how the traditional view wraps notions of race into a naturalized and objectified set of assumptions about the limits of legal reform. For if race were a natural thing, then it would naturally be assumed that certain decisions concerning the legal treatment of race would be more or less compatible with the natural parameters of racial identity. However, if we abandon the idea that there is something “natural” about racial identity, lawyers have the discretion to use the tools of legal discourse – the plurality of legal reasoning – as they wish. As soon as we are forced to confront the legality of these spaces that were previously considered natural and neutral, we also receive, as Duncan Kennedy explained, the “repossession of alienated powers [in the service of] . Equality, community and wild and risky gambling. But these are powers whose ethical practice begins by accepting the existential dilemmas of undecidability of legal discourse. Strongly denied. As all lawyers know, we are often presented with a conclusion and given the task of finding the best argument for that conclusion.

In fact, the conclusions don`t matter: it`s obvious to be on opposite sides of an issue, and a clear indication of a successful lawyer is that they can provide dazzling arguments at will both for and against a particular legal conclusion (which is not clearly subject to precedents or rules). Once attention is drawn to race as a legal concept (a set of legal arguments) and away from a naturalized and objectified racial concept (a set of conclusions), it becomes quite natural to analyze this concept in a way that is both subversive and consistent with even the richest traditions of American legal thought. The purpose of the article is to make some practical suggestions on how to move civil rights away from the biological foundations on which the Court`s post-racism and cultural pluralism depend, and it uses Parents Involved in Community Schools v. Seattle School District No. 1 as an illustration – a case that the late Derrick Bell calls “the newest and perhaps most devastating obstacle in the two-hundred-year struggle of African Americans for effective public education for their children.” Of course, there are good reasons to be pessimistic about the likelihood of such a deviation from the fundamental rules of biological identity on which the legal concept of race has been defined for so long.

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