In the United States, the use of extralegal violence to maintain racial order has been so pervasive that one might reasonably regard lawlessness as a defining feature of white supremacist rule. From the practically unlimited authorization of personal violence vested in slave masters, to the terrorist violence of lynching and the KKK, to our current era of illegal yet unpunished police brutality, harassment, and use of deadly force, racial violence is typically framed as a breakdown or violation of the rule of law.

“Beneath such iconic images of illegal racist violence lies a system of rights and legalities upon which white supremacist social order more fundamentally depends.”

And yet beneath such iconic images of illegal racist violence lies a system of rights and legalities upon which white supremacist social order more fundamentally depends. Legally, slave codes enshrined relationships of contract and regulation of personal property, which were protected by the US Constitution (authorizing military aid to quell slave revolts or return fugitives to bondage, for example). Not only were lynchings carried out with the full knowledge and consent of white community leaders, including elected officials and the police, but the Supreme Court also took care to create legal “zones of permissiveness” that insulated such violent activities from federal intervention and relief.1Daniel Kato, “Constitutionalizing Anarchy: Liberalism, Lynching, and the Law,” Journal of Hate Studies 10, no. 1 (2012). Overt practices of Jim Crow segregation were struck down by courts in the 1950s and 1960s, but have for the most part given way to legalized and conventionally Northern techniques of resource hoarding and maintenance of differentially racialized space.2→Cheryl Harris, “Whiteness as Property,” Harvard Law Review 106, no. 8 (1993): 1707–1791.
→George Lipsitz, Possessive Investment in Whiteness (Philadelphia: Temple University Press, 1998).
→Daria Roithmayr, Reproducing Racism (New York: New York University Press, 2014).
And while media attention and public outrage periodically focus on “exceptional” cases, even the most scandalous of police killings necessarily fail to discredit the underlying structures of the US carceral state or the comparatively mundane practices of “liberal law and order” from which they have grown.3New York: Oxford University Press, 2014More Info →

To understand how racial violence functions through adherence to the rule of law, and not primarily through its disregard, we need to think more carefully about the social order that law is meant to protect, namely a racialized form of capitalism. By exploring the debates between critical legal studies (CLS) and critical race theory (CRT), this essay seeks to explain the law’s legitimating function as masking the coercive and violent nature of what might be called the racial-capitalist state.

Law and legitimation under capitalism

The phrase “rule of law” is often traced to Aristotle’s assertion, in the Politics, that “law should be the final sovereign,” meaning that personal authority should be subordinated to general rules.4“We have always, however, to remember that rightly constituted laws should be the final sovereign, and that personal authority of any sort should only act in the particular cases which cannot be covered by a general law.” Aristotle, Politics, Book 3, ch. 11, eds. Ernest Barker and R. F. Stalley (Oxford University Press, 1998). As defined during the founding of the United States, rule of law named an alternative to such personal authority associated with royal power and absolutism, leading to John Adams’s gloss of James Harrington that a republic is “a government of laws, not of men” or Thomas Paine’s declaration that “in America the Law is King.”5Thomas Paine, Common Sense and The Crisis (New York: Dolphin Books, 1960), 41. In its ideal form, rule of law ceases to look like the use of force at all, appearing instead as the application of a logical formula: general principles, applied to specific cases, yielding necessary outcomes.

To invoke the concept of rule of law, then, is to demand more than that laws be followed—rather than, say, broken, betrayed, or ignored. It is also to claim the coercive power of the state as transcending the interests of any particular individual, group, or class. Rule of law is not only valorized by this appeal to neutrality, it is defined by it. And yet, for this very reason, the concept is unable wholly to accomplish the near-mystical tasks required of it: to deal violence in such a manner as to appear as nothing but deliverance from violence, and to maintain social order while seeming to transcend the particularity of interests that capitalist society represents.6“For each new class which puts itself in the place of one ruling before it, is compelled, merely in order to carry through its aim, to represent its interest as the common interest of all the members of society, that is, expressed in ideal form: it has to give its ideas the form of universality, and represent them as the only rational, universally valid ones.” Karl Marx and Frederick Engels, The German Ideology (New York: International Publishers), 65–66. Rule of law succeeds, therefore, only to the extent that its enforcement of social order appears as a logical abstraction rather than an expression of the material interests of a dominant social class.

“Building on the insights of this legal realist tradition, CLS scholarship in the 1970s was especially adept at showing how seemingly neutral legal principles mask relationships of power and class domination.”

However, as early twentieth-century legal scholarship turned its focus from philosophy and theology to the historical reality of the law’s use, it became increasingly difficult to maintain the distinction—so central to liberal ideology—between law and politics.7William W. Fisher, III, Morton J. Horwitz, and Thomas A. Reed, eds., American Legal Realism (New York: Oxford University Press, 1993). Building on the insights of this legal realist tradition, CLS scholarship in the 1970s was especially adept at showing how seemingly neutral legal principles mask relationships of power and class domination. In Morton Horowitz’s sweeping legal history, for example, the transformation of property rights and US contract law is traced directly to the requirements of nineteenth-century commercial interests and capitalist economic development.8New York: Oxford University Press, 1994More Info → In Roberto Unger’s sociological account, the central function of law is one of legitimation, with the rise of liberal legal ideology giving cover to those modes of class rule distinctive of capitalist economic expansion.9New York: The Free Press, 1976More Info →

For some CLS scholars, the language of individual rights inevitably contributes to this process of legitimation—either due to its reliance on the state to enforce and define legal entitlement; to its rendering of current political arrangements as natural and inevitable; or to its conversion of real material needs into mere juridical abstraction.10→Mark Tushnet, “An Essay on Rights,” Texas Law Review 62, no. 8 (1984); Peter Gabel and Duncan Kennedy, “Roll Over Beethoven,” Stanford Law Review 36, no. 1/2 (1984): 1–55.
→Frances Olsen, “Statutory Rape: A Feminist Critique of Rights Analysis,” Texas Law Review 63 (1984).
→Duncan Kennedy, Legal Education and the Reproduction of Hierarchy: A Polemic Against the System (New York: New York University Press, 2004).
Normatively and strategically, not everyone identifying as a “crit” embraced such critiques of rights. Nonetheless, as a whole, the CLS movement quite successfully called into question the supposed neutrality of the underlying liberal legal order, demonstrating it to be neither universally applicable nor entirely arbitrary, but instead following the predictable requirements of the capitalist society it necessarily serves.

Racial critiques of law

As effective as it was at drawing connections between capitalist social order and liberal rule of law, the CLS movement of the 1970s was also remarkably inattentive to questions of race and racial domination.11A notable exception is Alan David Freeman’s classic essay, “Legitimizing Racial Discrimination through Antidiscrimination Law,” Minnesota Law Review 62 (1978). The emergence of critical race theory (CRT) in the 1980s thus registers as a scathing critique of this neglect, but also as a moment of rupture whereby left-leaning legal scholarship on issues of race and class became increasingly estranged from each other.12New York: The Free Press, 1996More Info →

In part, this conflict reflected a feeling by CRT scholars of being “silenced by CLS,” or of having their experiences “appropriated or used.”13Harlan Dalton, “The Clouded Prism: Minority Critiques of the Critical Legal Studies Movement,” in Crenshaw et al., Critical Race Theory, 81. But it also marked a strategic disagreement as to the utility of rights discourse, criticizing CLS critiques of rights that failed to examine the particular racial context of their exercise. For some CRT scholars, that critique read as overly dismissive of the civil rights movement, which they viewed as effectively seizing upon rights discourse in order to create a crisis of legitimacy for the racial state.14Kimberle Crenshaw, “Race, Reform, and Retrenchment: Transformation and Legitimation in Anti-discrimination Law,” in Crenshaw et al., Critical Race Theory, 111. At the very least, as Patricia Williams pointedly observed, it obviously means something different for white leftist law professors to renounce rights they have always comfortably possessed than for communities of color to do so, given a long history of struggle against the condition of rightlessness.15Patricia Williams, “The Pain of Word Bondage,” in Alchemy of Race and Rights (Cambridge, MA: Harvard University Press, 1992).

By insisting upon the centrality of race as an analytical category—rather than a subset of purportedly more general relationships of citizenship, equality, or class—CRT produced a generative account of US law’s role in reproducing racial hierarchy and a desperately needed counterweight to the apologetic reformism of race-liberals in a time of reactionary ascendency. Against increasingly hegemonic understandings of “color-blindness” as a racially neutral constitutional imperative, CRT demonstrated the false equivalency between segregation and race-conscious remedies such as affirmative action. Against “reverse-discrimination” theories of equal protection, it developed an antisubordination analysis that emphasized asymmetrical relationships of power rather than abstract formal equality. More broadly, it advanced an analysis of race and law in which racial domination could be understood as a constitutive element of US social structure rather than an aberration from otherwise sound liberal principles—in other words, as one aspect of law’s intended function rather than its failure.

From racial critiques of law to a critique of racial capitalism

“The racial critique it provided, however, may also have had the effect of drawing antiracist attention away from traditional issues of left concern: capitalist development, class structure, labor discipline, and the like.”

At its best, CRT sought to provide “a left intervention into race discourse and a race intervention into left discourse.”16Introduction to Critical Race Theory, xix. In so doing, it revealed a willful ignorance about race shared by white liberals, leftists, and conservatives alike. The racial critique it provided, however, may also have had the effect of drawing antiracist attention away from traditional issues of left concern: capitalist development, class structure, labor discipline, and the like. On CRT’s view, the error of left legal analysis was to focus on class rather than race, and to critique capitalist exploitation rather than racial oppression. In contrast, to approach rule of law from the perspective of racial capitalism will require an analysis of racial oppression grounded in the material conditions of capitalist society, in which class formation is understood to be racially structured from its very inception. Seen this way, the error of CLS was not (or not only) that it emphasized class over race, but that it misunderstood class by failing to address the racialized nature of US capitalism, class division, and capitalist social organization.

Saidiya Hartman’s analysis of what she deems the failure of nineteenth-century abolitionism provides one example of how we might understand the afterlife of slavery as an instance of law’s accommodation of racial capitalism.17Saidiya Hartman, Scenes of Subjection: Terror, Slavery, and Self-Making in Nineteenth-Century America (New York: Oxford University Press, 1997), 116.

As Hartman points out, Marx’s observation in On the Jewish Question—that legal emancipation and the abstract rights of citizenship do not yield true freedom, but rather legitimize continued domination by relocating it into the private sphere where it is protected by contract and the illusion of choice—applies especially well to the abolition of US slavery. With emancipation, former slaves were granted citizenship rights but were denied access to the material resources necessary for those rights to become substantive. Hartman thus rejects “any absolute and definitive marker between slavery and its aftermath,” not because she views post-emancipation conditions as no different from those under slavery, but to better understand how “the stipulation of abstract equality produces white entitlement and black subjection in its promulgation of formal equality.”18Hartman, Scenes of Subjection, 115–117.

Where emancipation typically is figured as a decisive break from slavery, from the perspective of racial capitalism important continuities seems evident. Hartman traces these continuities through post-emancipation discourses of dependency and idleness born from national concerns that the newly freed slaves could no longer be made to keep to their station, continuing to provide the hyper-exploited labor upon which the Southern and national economies both depended. Much of this discourse functioned moralistically, as education for citizenship or religious instruction, thereby turning abolitionist denunciations of slavery into celebrations of hard work, self-sacrifice, and racialized willingness to endure hardship. But the necessity of black toil was also achieved through coercive measures properly fitted to the newfound responsibilities of formal equality—vagrancy laws, labor contracting by the Freedmen’s Bureau, indebtedness, and hunger—driving former slaves to assume personal responsibility for labor previously obtained principally by the lash.

“Emancipation announced the end of chattel slavery,” Hartman notes, but “it by no means marked the end of bondage.”19Hartman, Scenes of Subjection, 125. This line will register as neither figurative nor hyperbolic when we recognize the link between rule of law and the requirements of racial capitalism.

Similarly, in gauging the demise of Jim Crow–era segregation, the achievement of federal civil rights legislation coincides with present conditions of mass incarceration sustained primarily through application of law rather than deviation from it. Nor can the rapid expansion of punitive carceral policy be explained without linking extreme racial disparities in the criminal justice system to underlying economic conditions and neoliberal politics. While typically understood as a thinly veiled racial policy (or, on the right, as a crisis of personal responsibility), mass incarceration is rooted in liberal reformism, economic deindustrialization, the neoliberal abandonment of the social safety net, and the social unrest and organized resistance these conditions provoke.20→Angela Y. Davis, Are Prisons Obsolete? (New York: Seven Stories Press, 2003).
→Murakawa, The First Civil Right.
→Marie Gottschalk, Caught: The Prison State and the Lockdown of American Politics (Princeton, NJ: Princeton University Press, 2015).
→Loic Wacquant, “From Slavery to Mass Incarceration,” New Left Review 13, January–February 2002.
→Jordan Camp, Incarcerating the Crisis: Freedom Struggles and the Rise of the Neoliberal State (Oakland, CA: University of California Press, 2016).
If antiprison organizers are right that “mass incarceration is the new Jim Crow,” it is not because prisons are an obsolete hold-over from a previous era.21Michelle Alexander credits this slogan of prison abolition movements for the title of her book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New York: The New Press, 2010). It is because racial capitalism requires the carceral state, the violence of which is concealed by the rule of law.

References:

1
Daniel Kato, “Constitutionalizing Anarchy: Liberalism, Lynching, and the Law,” Journal of Hate Studies 10, no. 1 (2012).
2
→Cheryl Harris, “Whiteness as Property,” Harvard Law Review 106, no. 8 (1993): 1707–1791.
→George Lipsitz, Possessive Investment in Whiteness (Philadelphia: Temple University Press, 1998).
→Daria Roithmayr, Reproducing Racism (New York: New York University Press, 2014).
3
New York: Oxford University Press, 2014More Info →
4
“We have always, however, to remember that rightly constituted laws should be the final sovereign, and that personal authority of any sort should only act in the particular cases which cannot be covered by a general law.” Aristotle, Politics, Book 3, ch. 11, eds. Ernest Barker and R. F. Stalley (Oxford University Press, 1998).
5
Thomas Paine, Common Sense and The Crisis (New York: Dolphin Books, 1960), 41.
6
“For each new class which puts itself in the place of one ruling before it, is compelled, merely in order to carry through its aim, to represent its interest as the common interest of all the members of society, that is, expressed in ideal form: it has to give its ideas the form of universality, and represent them as the only rational, universally valid ones.” Karl Marx and Frederick Engels, The German Ideology (New York: International Publishers), 65–66.
7
William W. Fisher, III, Morton J. Horwitz, and Thomas A. Reed, eds., American Legal Realism (New York: Oxford University Press, 1993).
8
New York: Oxford University Press, 1994More Info →
9
New York: The Free Press, 1976More Info →
10
→Mark Tushnet, “An Essay on Rights,” Texas Law Review 62, no. 8 (1984); Peter Gabel and Duncan Kennedy, “Roll Over Beethoven,” Stanford Law Review 36, no. 1/2 (1984): 1–55.
→Frances Olsen, “Statutory Rape: A Feminist Critique of Rights Analysis,” Texas Law Review 63 (1984).
→Duncan Kennedy, Legal Education and the Reproduction of Hierarchy: A Polemic Against the System (New York: New York University Press, 2004).
11
A notable exception is Alan David Freeman’s classic essay, “Legitimizing Racial Discrimination through Antidiscrimination Law,” Minnesota Law Review 62 (1978).
12
New York: The Free Press, 1996More Info →
13
Harlan Dalton, “The Clouded Prism: Minority Critiques of the Critical Legal Studies Movement,” in Crenshaw et al., Critical Race Theory, 81.
14
Kimberle Crenshaw, “Race, Reform, and Retrenchment: Transformation and Legitimation in Anti-discrimination Law,” in Crenshaw et al., Critical Race Theory, 111.
15
Patricia Williams, “The Pain of Word Bondage,” in Alchemy of Race and Rights (Cambridge, MA: Harvard University Press, 1992).
16
Introduction to Critical Race Theory, xix.
17
Saidiya Hartman, Scenes of Subjection: Terror, Slavery, and Self-Making in Nineteenth-Century America (New York: Oxford University Press, 1997), 116.
18
Hartman, Scenes of Subjection, 115–117.
19
Hartman, Scenes of Subjection, 125.
20
→Angela Y. Davis, Are Prisons Obsolete? (New York: Seven Stories Press, 2003).
→Murakawa, The First Civil Right.
→Marie Gottschalk, Caught: The Prison State and the Lockdown of American Politics (Princeton, NJ: Princeton University Press, 2015).
→Loic Wacquant, “From Slavery to Mass Incarceration,” New Left Review 13, January–February 2002.
→Jordan Camp, Incarcerating the Crisis: Freedom Struggles and the Rise of the Neoliberal State (Oakland, CA: University of California Press, 2016).
21
Michelle Alexander credits this slogan of prison abolition movements for the title of her book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New York: The New Press, 2010).