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Social Science Research Council - February 2019

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

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.

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.1 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 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.3

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 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.”5 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 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.

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.7 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.8 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.9

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 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. ...
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