ESSAY ON CRITICAL RACE THEORY
INTRODUCTION: AMERICAN CRITICAL RACE THEORY: THE
HISTORICAL PERSPECTIVE
Critical
Race Theory (CRT) grew up in America as a response to the failure of the
anti-discrimination laws to achieve any real sense of social advantage for the
black community. One of the foremost American CRT said black peoples struggle
is as old as the nation, making race and racism essential to the definition of
America as a nation. The very recognition of slavery was a compromise that
allowed the foundation of American Constitutional government (Bell 1995),
the drafting of the Independence Constitution in 1787 to include the
preservation of slavery to Hayes-Tilden Compromise of 1877 (between Republicans
and Democrats to elect Hayes in return to ending reconstruction in the south was
instituted to help improve the position of newly emancipated black slaves and the
end of military rule in the South with allow white racist to act unchecked).
From end of civil war until present a pattern has shown that any black advance
is effectively crushed by white backlash and historical racism means that black
rights will always be compromised to other economic and social interests.
Equality is stated in the law, but economic and social dispossession still
suffered renders these legal rights symbolic. Litigation engaged by National
Association for the Advancement of Colored People (NAACP) is accused
of becoming too fixated with symbolic advances without any serious
consideration to inequitable distribution of social and economic powers. Bell wants people to understand that American
is inherently racists. The failure of previous struggles rests upon a
fundamental misunderstanding of the nature of law and in the call for racial
realism that there is an alignment of the struggle for a new thinking about law
that repeat the gestures of the legal realists against the jurisprudence of the
old order. Judges political views have immense importance in the outcome of
cases as there is no such thing as neutral principle. In Regents of the University of California
v Bakke (court in deciding affirmative action
that would allow black candidates to enter the University of California) employ
a narrow definition of equality which ignored the social and economic cause of
advantages and held that no white students could be refused entrance to give
preference to black candidates.
LAW AND RACE
DISCRIMINATION
One
critical Scholar said discrimination is positional i.e. describes the
inter-relating and structured disadvantages in education, work, housing, health
care. The law tends to be blind to such
reality. Litigation on civil liberties tends to re-create this problem in terms
of an act of violation of anti-discrimination principles that can be remedied,
it neutralizes the inappropriate conduct of the perpetrator. Litigating civil
liberties issues has the effect to remove any sense of collective
responsibility for discrimination. Would it be possible for law to move to an
appreciation of ‘positional’ nature of discrimination? Such a shift would be
challenging to the legal construction and responsibility as individual fault
but risk antagonizing a vast majority reluctant or unwilling to perceive their
own complicity in discrimination. Anti-discrimination law has attempted to find
ways of breaking out of its formal restraints while trying to display adherence
to the form of the law.
RACE, RACISM AND
IDEOLOGY
CRT
borrows from CLS when it describes anti-discrimination law but also offers a
critique of the theories of ideologies CLS scholars put forward. It examines the differences between ideology
and theories. The work of Gabel and
Kennedy takes the notion that law is an ideological distortion of the
world. Ideas/practices of laws have to
be examined to see how they interface with wider social, economic and political
concerns. CLS take was that legal reform
can never transform social order because the law is already implicated. CLS use
trashing that was meant to reveal the
problems that lay under the surface of the law but it completely ignore the
role of race in its ideology. Frequent failure of anti-discrimination law was
put to the perspective by the whites that they would lose out to black interest
and they unite against these law. Ideology in this sense operates to create‘hegemony’
of interest. For example the labour
unions made up of immigrant white works excluded blacks. Civil liberty advances
are re-inscripted at a cultural level as black failure to adapt to the supposed
norms of white behavior hard work and discipline and demand for special
treatment show the continued failure of black community to match up to social
standards, hence their inferiority and the partisan one-sided nature of anti-discrimination
law. Though anti-discrimination law is
compromise it cannot be abandoned because of its transformational
potential. Whatever their shortcomings,
they have served to de-legitimise discrimination and this process is
continuing.
CRITICAL RACE THEORY
AND BRITISH RACISM
British CRT approached racism as historical problem. The perception was not much the volume of black settlement but rather its character and effects, especially threat to legal institutions. Immigration is perceived as a threat to English constitutional values rather than opportunity to create different history, institutional response. Law fails to create a legal notion of race of what is shared in common by communities of Brutishness. This concept reflects the process of decolonization, the history of colonization that created the empire in the first place.
RACE, RACISM AND
BRITISH LAW: A SHORT HISTORY
In
the post-war period there was a consensus about the need to stem immigration.
It started with 1962 Immigrants Act
reducing immigration through issuing employment vouchers (for those link with
Britain either through being born in the country or having a passport issued
there). This indicates withdrawal from Empire and the Commonwealth British
Nationality Act – obligations towards commonwealth citizens being eclipsed by
Britain’s role in Europe. British
government was concerned about coloured but not white immigrants. There are tighter
legislature for blacks than white. The second Commonwealth Immigrants Act 1968
created even tighter legal definition of British Nationality. Settled coloured people and immigrants were
turned to suspect communities. Race relation Act
1965 did recognized the problem of discrimination. The Race Relations Act was seen as the state acting on
behalf of capitalists’ interests. The
thinking of the right-wing National Front or British National Party can be seen
as the logical extension, rather than departure from, official government
discourse on the need to police race. One of the reasons for the passage of 1968 Commonwealth Act
was the need to restrict entrance into the country of Kenyans of
Asian background. A similar concern was raised about Ugandan Asians, and they
were allowed into the country because of the necessity to bear a historical
burden. The logic works through into the 1971 Immigration Act with its separate spheres of
nationality i.e. partials and non-partials and when it came into effect in 1972
virtually ended all primary immigration.
Despite the language of the 1976 Race Relations Act and developing case law,
the operative terms of the law were racists in the most crude of senses. The 1981 British
Nationality Act provides a further attempt to classify and
control. Definition of Nationality was
divided into British Citizenship, British Dependent Territories Citizenship and
British Overseas Citizenship. Linking immigration law with race relations
legislations allows these themes to be pursues.
THE RACE RELATIONS
ACTS
These
takes three phases 1965 Act, expanded by
1968 Act and redefined by 1976 Act, more recently 2000 Act. Similar themes run through the largely
compromised act and leave racism largely intact. 1965 Act passed by Labour was limited
measure, emphasis was in conciliation
and where this fail the matter is passed to AGF who may decide to litigate or
not. Political exigencies and wider
ideological failure makes it an act without teeth. In the face of evidence of widespread and
violent racism, the first official acknowledgment was in 1981 in a report by
Home Office Racial Attacks. The report described endemic institutionalized
racism. If this was a second argument in
the foundation for the 1968 Act, it might indicate that lawmakers remained
ignorant of the dynamics of the law. The Race Relations Board gives reason for
extension and argues that the law gives support to those who do not wish to
discriminate but who feel compelled to do so by public pressure. The 1976 Act widen the scope of the
anti-discrimination law, but there were glaring omission such as the exclusion
of the police from the provisions of the Act.
The concept of indirect discrimination falls far short of any meaningful
idea of institutional discrimination.
The
period since 1945 has seen substantial black and south Asian immigration into
Britain, the response to which has been a rise in racism and the simultaneous
passing of a series of law designed to reduce immigration (intent was plainly
discriminatory). The various Race
Relations Act however have proved ineffective at removing indirect
discrimination.
THE OFFICIAL
INQUIRIES
Stephen
Lawrence a young black student was murdered by a gang of racist white youths
while waiting at a bus stop in Eltham, South East London on April 22, 1993. No one was ever successfully prosecuted for
this crime. The report found no evidence
that racism had significantly contributed to the failures to make arrests. The report addressed complaints against
individual officers.
a)
The
Scarman Report 1981: This is the report
into Brixton Disorder (Brixton an area of South London which has a relatively
high black population). Lord Scarman
rejected the allegation that British institutions were systematically involved
on racial discrimination as there is no conscious policy or public
decision. The explanation was of
‘unwitting’ racism. Occasional racism could be explained as immaturity of
certain officers. There was
acknowledgment that the problem is wider and structural.
b)
The
Lawrence Inquiry: The limitation of racism was given in
evidence of how both the political complaints authority and police
appreciated the issue of discrimination,
described as a problem of rotten apples that let the side down. Scarman tended to be used to support that
racial discrimination was not a widespread problem in policing. There was a
reluctance by the police to come to term with the need to police a multi-racial
society, it is attached to a notion of unarmed and consensual policing . Most worryingly the culture of policing does
not encourage a critical self-understanding that would make prejudice easier to
identify and to challenge. It addresses the failures of the Lawrence
investigation, disparity in the numbers of black people stopped and searched by
the police, under reporting of racial incidents. The report Winning the Race shows that before
1998, not a single office had received training in racism awareness. The
Lawrence inquiry shows that these attitudes are not longer acceptable. In the word of Sir John Woodorck, the police
remain a 19th century institution, a mechanism set up to protect the
affluent from what the Victorians described as dangerous classes.
CRITICAL RACE THEORY
AND POST-COLONIALISM
Colonialism
is foreign rule. Its primary task was to make this rule effective, to assure
its long duration, to end or neutralize opposition and to make possible
European activity in the colony. It is economic exploitation between ruler and
the ruled. It involves three phases,
attempts to exploit the resource and manpower of south America and
Africa by European powers. Direct
appropriation began in the nineteenth century and later replaced by a treatise
and trading arrangement and the third movement is that of more formal colonial
rules of the later 1900s. This latter
phase was concluded and refined by the withdrawal from empire and the
independence of the new African states.
The law was a legitimization of European rule and a site of struggle and
resistance. Nigeria is a country that
will be brought into being by the law. Chief
Obafemi Awolowo, a Nigerian nationalist, invoked constitutional values and linking them
to his imagination of Nigeria, simultaneously paying homage to a common law
tradition and accusing it of failing to live to its rhetoric. The law was used a weapon for exploiting
Nigeria resources and its people. Awolowo accuses the British of denying
Nigeria legal and economic sovereignty.
The rule of law is also a feature of Awolowo’s vision. The independent constitution was a flawed
document. The flaws must be seen
alongside a great democratic potential and commitment to human rights and rule
of law that are also a feature of Awolowo’s vision.
a)
Post colonialism and
the philosophy of law: There is an alliance
between jurisprudence and colonialism.
Works like Henry Maine’s Ancient Law (2002) show clearly the
sense in which jurisprudence was informed by the anthropological, philosophical
and historical suppositions of the human sciences, especially the distinction
between ‘savage’ and the ‘civilised’ can be glimpsed within the central line of
legal thinking that runs from Hobbes to Hart.
TRACING THESE THEMES
IN CONTEMPORARY JURISPRUDENCE
Hart
wrote that unless law has a minimum of moral content, men as they are would
have no reason obeying any voluntary rules. His vision of savage society as
that which is unregulated, anarchic and merely awaits the coming of rational
legal order. Primitive law is inflexible
and rigid and therefore impossible to change.
CONCLUSION
Critical
Race Theory (CRT) grew up in America as a response to the failure of the
anti-discrimination laws to achieve any real sense of social advantage for the
black community. The very recognition of slavery in American Constitutional
government (Bell 1995), the drafting of the independence constitution in 1787,
Hayes-Tilden compromise of 1877 - ending
reconstruction in the south. Litigation
engaged by National Association for the Advancement of Colored People (NAACP)
is symbolic. In Regents
of the University of California v Bakke
(court in deciding affirmative action that would allow black
candidates to enter the University of California) employ a narrow definition of
equality which ignored the social and economic cause of advantages and held
that no white students could be refused entrance to give preference to black
candidates. One critical scholar said discrimination is positional i.e.
describes the inter-relating and structured disadvantages in education, work,
housing, health ca
Conclusively,
CRT can be seen as intellectual movement that studies the response of law to
racism. CRT is interested more broadly in racism as a social and political
problem. Postcolonial jurisprudence seeks
to create an account of the issue of race in legal philosophy and pointed out
to the classical jurisprudential test with an eye on their silences or evasions
of the issue of race. CRT grows out of concern with race and racism in the USA,
the latter has been more focused on issues of European colonialism and its
aftermath.
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