Alchemy of Race and Rights: Diary of a Law Professor

134 Pages·1992·10.27 MB·English

by  Patricia J. Williams

Contents
I Excluding Voices: A Necklace of Thoughts on the
Ideology ofStyle
1 The Brass Ring and the Deep Blue Sea 3
2 Gilded Lilies and Liberal Guilt 15
3 The Death of the Profane 44
II Trial by Text: A Sequence ofS ublimation
4 Teleology on the Rocks 55
5 Crimes Without Passion 80
6 The Obliging Shell 98
ill Ladder to the Light: A Series ofH inged Turning
Points
7 Fire and Ice 133
8 The Pain of Word Bondage 146
9 Mirrors and Windows 166
IV The Incorruptible Simplicity ofB eing: A String of
Crystalline Parables
10 Owning the Self in a Disowned World 181
ll Arm's-Length Intimacies 202
12 On Being the Object of Property 216
Notes 239
A W<:>rd on Categories 256
Acknowledgments 258
Index 259
0
nee upon a time there was a society ofp riests who built a Celestial
City with gates secured by word-combination locks. The priests were
masters of the Word and, within the City, ascending levels ofp ower and
treasure became accessible to those who could learn ascendingly intricate
levels of Word Magic. At the very top level, the priests became gods; and
because they then had nothing left to seek, they engaged in games with
which to pass the long hours ofe ternity. In particular, they liked to ride their
strong, sure-footed steeds around and around the perimeter ofh eaven: now Excluding Voices
jumping word hurdles, now playing polo with concepts oft he moon and the
stars, now reaching up to touch that pinnacle, that splinter of Refined
Understanding called Superstanding, which was the brass ring of their
A Necklace of Thoughts on
merry-go-round.
the Ideology of Style
In time, some of the priests-turned-gods tired oft his sport, denounced it
as meaningless. They donned the garb ofp ilgrims, seekers once more, and
passed beyond the gates of the Celestial City. In this recursive passage they
acquired the knowledge ofUndoing Words.
Beyond the walls oft he City lay a Deep Blue Sea. The priests built small
boats and set sail, detennined to explore the uncharted courses and open
vistas of this new tm-ain. They wandered for many years in this manner,
until at last they reached a place that was halfa circumference away from
the Celestial City. From this point the City appeared as a mere shimmering
illusion; and the priests knew that they had finally reached a place Beyond
the Power ofWords. They let down their anchors, the plumb lines of their
reality, and experienced godhood once more.
Under the Celestial City, dying mortals cried out their rage and suffering,
battered by a steady rain of sharp hooves whose thundering, sound
drowning path described the wheel oft heir misfortune.
At the bottom of the Deep Blue Sea, drowning mortals reached silently
and desperately for drifting anchors dangling from short chains far, far
overhead, which they thought were lifelines meant for them.
I
II
The Brass Ring
and the Deep Blue Sea
(some parables about learning to think like a lawyer)
Since subject position is everything in my analysis of the law, you
deserve to know that it's a bad morning. I am very depressed. It
always takes a while to sort out what's wrong, but it usually starts
with some kind of perfectly irrational thought such as: I hate
being a lawyer. This particular morning I'm sitting up in bed read
ing about redhibitory vices. A redhibitory vice is a defect in mer
chandise which, if existing at the time of purchase, gives rise to a
claim allowing the buyer to return the thing and to get back part
or all of the purchase price. The case I'm reading is an 1835 deci
sion from Louisiana, involving the redhibitory vice of craziness:
The plaintiff alleged that he purchased of the defendant a slave
named Kate, for which he paid $500, and in two or three days after
it was discovered the slave was crazy, and run away, and that the
vices were known to the defendant ...
It was contended [by the seller] that Kate was not crazy but only
stupid, and stupidity is not madness; but on the contrary, an appar
ent defect, against which the defendant did not warrant ...
The code has declared, that a sale may be avoided on account of
any vice or defect, which renders the thing either absolutely useless,
or its use so inconvenient and imperfect, that it must be supposed
the buyer would not have purchased with a knowledge of the vice.
We are satisfied that the slave in question was wholly, and perhaps
worse than, useless. 1
Excluding Voices
The Brass Ring and the Deep Blue Sea
I
I
I As I said, this .is the sort of morning when I hate being a lawyer,
I black and brown communities in particular. Subsistence ~armers
a teacher, and JUst about everything else in my life. It's all I can do
and indigenous people are dying all over the world, their ways
~o feed the cats. I let my hair stream wildly and the eyes roll back
and knowledge devoured and lost forever. According to the most
mmyhead.
authoritative scientists, the greenhouse effect is supposed to raise
So you should know that this is one of those mornings when
the temperature of the earth by two or three degrees o:er the next
I I re~e t? compose myself properly; you should know you are
millennium. The winter of 1989 was five, ten, sometimes fifteen
II d~almg ~Ith s~meone who is writing this in an old terry bathrobe
' I degrees above normal, all over the earth. It is the spring of 1990,
i I With a ~ttle frmge of blue and white tassles dangling from the
I and we are all worried about the summer to come.
I hem, trymg to decide if she is stupid or crazy.
I don't know how to find something to write about in the
Whene~er I'm in a mood like this, it helps to get it out on
panic of this deadly world. There is more in the news than even
paper, so I sit down t? write even when I'm afraid I may produce
my depression can consume. . .
a death-poem. Sometimes I can just write fast from the heart until
Then I see it. A concise, modular, yet totally engagmg Item
I'm healed. Sometimes I look at my computer keyboard and I am
on the "MacNeil/Lehrer News Hour": Harvard Law School can
paralyzed~ ~adeq.uate-all those letters of the alphabet, full of
not find one black woman on the entire planet who is good
r~~om sigruficatton. I feel like a monkey. Those mornings, and
enough to teach there, because we're all too stupid. (Well, that's
this Is one, I need a little extra push to get me started and ifi tum
not precisely what was said. It was more li~e they coul~'t find
on the television, almost any story will do. I switch channels
anyone smart enough. To be fair, what AssoCiate D~an Lo~s Kap
through a sea of news programs with the coopting, carnivorous
low actually said was that Harvard would have to lower lts stan
eagerness of catharisis.
dards" which of course Harvard simply cannot do.2
)
Conditions are bad, very bad, all over the world. The news S~ now you know: it is this news item, as I sit propped up in
casters tell me that everyone is afraid of black men these days, even
bed with my laptop computer balanced on my knees, clad in my
blac~ women. Black people are being jailed in huge numbers, and
III robe with the tom fringe of terry bluebells, that finally pushes me
the infant-mortality rate is staggering. Courts have authorized the
over the edge and into the deep rabbit hole of this book.
cus~ody removal of ~hildren at birth from mothers who are drug
adci!cted. Drugs brmg pleasure to the biological catastrophe of
When I dust myself off, I am sitting with my sister at my
I ~avm~, been born. in .the fearsome, loathesome packaging of an
:I parents' kitchen table. Grown now, she and I, ar~ at home. for
~ther body. ~ditonals talk about the efficiency of apartheid.
I' Christmas. We chat, catching up on each others lives. My stster
I i Bigger better pnsons. Spy satellites. Personnel carriers in Harlem.
I tells me how her house is haunted by rabbits. I tell her how I'm
Door-to-door searches. State-sanctioned castration. Some neutral
trying to write a book on law and liberation.
market thing devouring the resources of the earth at a terminally
I' "The previous owner had hundreds of them:' she says. "You
,I
II reckless. rate. !he Ku Klux Klan and the Aryan Brotherhood are
II can hear them dancing in the dining room after midnight."
I ~ the maJor uru~ns among prison guards. Eastern Europe wants
"It will be a book about the jurisprudence of rights:' I re
~ore freedom m the form of telephone-answering machines and
spond. "I will attempt to apply so-called critical ~o~ght to legal
VIdeo cassettes. AIDs spreads and spreads and spreads, among
studies. I believe that critical theory has valuable mstghts to con-
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Excluding Voices The Brass Ring and the Deep Blue Sea
tribute to debates about the ethics of law and the meaning of female, and commercial lawyer has rendered me simultaneously
rights; yet many of those insights have been buried in relatively universal, trendy, and marginal. I think, moreover, that there is a
arcane vocabulary and abstraction. My book will concern itself paradigm at work, in the persistent perceptions of me as inherent
with the interplay of commerce and constitutional protections and contradiction: a paradigm of larger social perceptions that divide
will be organized around discussion of three basic jurisprudential public from private, black from white, dispossessed from legiti
forces: autonomy, community, and order. My chapters will ad mate. This realization, while extremely personal, inevitably in
dress such issues as surrogate motherhood and ownership; neigh forms my writing on a professional level."
borhood and homelessness; racially motivated violence and dis "What's so new," asks my sister, losing interest rapidly, "about
ow~e~ess. I will try to write, moreover, in a way that bridges the a schiwphrenic black lady pouring her heart out about food
traditional ~ap _between theory and praxis. It is not my goal stamps and polar bears?"
merely to srmplify; I hope that the result will be a text that is I lean closer to her. "Floating signifiers;' I whisper.
multilayered-that encompasses the straightforwardness of real I continue: "Legal writing presumes a methodology that is
life and reveals complexity of meaning." highly stylized, precedential, and based on deductive reasoning .
. "But what'~ ~e book about?'' my sister asks, thumping her leg Most scholarship in law is rather like the 'old math': static, stable,
agamst the chatr rmpatiently. formal-rationalism walled against chaos. My writing is an inten
" '~oward Be~ch, polar bears, and food stamps;' I snap back. tional departure from that. I use a model of inductive empiricism,
I am mterested m the way in which legal language flattens and borrowed from-and parodying-systems analysis, in order to
c~nfines in absolutes the complexity of meaning inherent in any enliven thought about complex social problems. I want to look at
gtven problem; I am trying to challenge the usual limits of com legal issues within a framework inscribed not just within the four
mercial discourse by using an intentionally double-voiced andre corners of a document-be it contract or the Constitution-but
lational, rather than a traditionally legal black-letter, vocabulary. by the disciplines of psychology, sociology, history, criticism, and
For example, I am a commercial lawyer as well as a teacher of philosophy. The advantage of this approach is that it highlights
contract and property law. I am also black and female, a status that factors that would otherwise go unremarked. For example, stare
one of my former employers described as being 'at oxymoronic decisis (the judicial practice of deciding cases in a manner limited
odds' with that of commercial lawyer. While I certainly took issue by prior court decisions in factually analogous situations), rather
wi~ ~at particular characterization, it is true that my attempts to than remaining a silent, unquestioned 'given; may be analyzed as
wnte m my own voice have placed me in the center of a snarl of a filter to certain types of systemic input. Another advantage is
~ocial tensions and crossed boundaries. On the one hand, my writ that this sort of analytic technique can serve to describe a com
mg has ?ee~ staked out as the exclusive interdisciplinary property munity of context for those social actors whose traditional legal
?f
~onstltutlonallaw, contract, Mrican-American history, feminist status has been the isolation of oxymoron, of oddity, of outsider.
JUnsprudence, political science, and rhetoric. At the same time, my I am trying to create a genre of legal writing to fill the gaps of
work has been described as a 'sophisticated frontal assault' on traditional legal scholarship. I would like to write in a way that
an;
laissez-faire's most sacred sanctums, as 'new-age performance reveals the intersubjectivity of legal constructions, that forces the
and as 'anecdotal individualism.' In other words, to speak as black, reader both to participate in the construction of meaning and to
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Excluding Voices The Brass Ring and the Deep Blue Sea
be conscious of that process. Thus, in attempting to fill the gaps saw, in which a group of prehistoric fish swam glumly underwater,
in the discourse of commercial exchange, I hope that the gaps in carrying baseball bats tucked beneath their fins, waiting to evolve,
my own writing will be self-consciously filled by the reader, as an looking longingly toward dry land, where a baseball was lying in
act of forced mirroring of meaning-invention. To this end, I ex wait on the shore. The more serious side of this essentialized
ploit all sorts of literary devices, including parody, parable, and world view is a worrisome tendency to disparage anything that is
poetry." nontranscendent (temporal, historical), or contextual (socially
" ... as in polar bears?" my sister asks eagerly, alert now, ears constructed), or nonuniversal (specific) as "emotional;' "literary,"
pricked, nose quivering, hair bristling. "personal," or just Not True.
"My, what big teeth you have!" I exclaim, just before the (3) The existence of objective, ''unmediated" voices by which
darkness closes over me. those transcendent, universal truths find their expression. Judges,
lawyers, logicians, and practitioners of empirical methodologies
It is my deep belief that theoretical legal understanding and are obvious examples, but the supposed existence of such voices is
social transformation need not be oxymoronic. I want this book also given power in romanticized notions of "real people" having
to occupy the gaps between those ends that the sensation of oxy "real" experiences-not because real people have experienced
moron marks. What I hope will be filled in is connection; connec what they really experienced, but because their experiences are
tion between my psyche and the readers', between lived experience somehow made legitimate-either because they are viewed as
and social perception, and between an encompassing historicity empirically legitimate (directly corroborated by consensus, by a
and a jurisprudence of generosity. community of outsiders) or, more frequently, because those ex
"Theoretical legal understanding'' is characterized, in Anglo periences are corroborated by hidden or unspoken models of le
American jurisprudence, by at least three features of thought and gitimacy. The Noble Savage as well as the Great White Father, the
rhetoric: Good-Hearted Masses, the Real American, the Rational Con
(l) The hypostatization of exclusive categories and defini sumer, and the Arm's-Length Transactor are all versions of this
tional polarities, the drawing of bright lines and clear taxonomies Idealized Other whose gaze provides us either with internalized
that purport to make life simpler in the face of life's complication: censure or externalized approval; internalized paralysis or exter
rights/needs, moral/immoral, public/private, white/black. nalized legitimacy; internalized false consciousness or externalized
(2) The existence of transcendent, acontextual, universal legal claims of exaggerated authenticity.
truths or pure procedures. For example, some conservative theo The degree to which these three features of legal thought are
rists might insist that the tort of fraud has always existed and that a force in laws ranging from contracts to crimes, from property to
it is part of a universal system of right and wrong. A friend of civil liberties, will be a theme throughout the rest of this book.
mine demanded of a professor who made just such an assertion: For the moment, however, a smaller example might serve to illus
"Do you mean to say that when the first white settlers landed on trate the interpretive dynamic of which I am speaking.
Fiji, they found tortfeasors waiting to be discovered?" Yes, in a A man with whom I used to work once told me that I made
manner of speaking, was the professor's response. This habit of too much of my race. "After all;' he said, "I don't even think of
universalizing legal taxonomies is very much like a cartoon I once you as black." Yet sometime later, when another black woman be-
8
9
p;:
Excluding Voices
The Brass Ring and the Deep Blue Sea.
came engaged in an ultimately unsuccessful tenure battle, he con
gender, race, voice, boundary; it allows us to acknowledge the
fided to me that he wished the school could find more blacks like
utility of such categorizations for certain purposes ~d the nece~­
me. I felt myself slip in and out of shadow, as I became nonblack
sity of their breakdown on other occasions. It c~mplicates ~efini­
for purposes of inclusion and black for purposes of exclusion; I
tions in its shift, in its expansion and contraction according to
felt the boundaries of my very body manipulated, casually in
circumstance, in its room for the possibility of creatively mated
scribed by definitional demarcations that did not refer to me.
taxonomies and their wildly unpredictable offspring.
II The paradox of my being black yet notblack visited me again
I think, though, that one of the most important results of
I when, back to back, the same (white) man and then a (black)
reconceptualizing from "objective truth" to rhetorical event will
I
woman wondered aloud if I "really identified as black." When the
be a more nuanced sense of legal and social responsibility. This
white man said this, I was acutely aware that the choice of identi
will be so because much of what is spoken in so-called objective,
fying as black (as opposed to white?) was hardly mine; that as long
lliunediated voices is in fact mired in hidden subjectivities and
as I am identified as black by the majority of others, my own iden
unexamined claims that make ro erry of others beyond the self,
tifying as black will almost surely follow as a simple fact of human
the while denying such connections. I remember A., a col
interdependency. When the black woman told me the very same
league, once stating that he didn't like a book he had just read
thing, I took it to heart as a signpost of self-denial; as possible
because he had another friend who was a literary critic and he
evidence within myself of that brand of social distress and aliena
imagined that this critical friend would say a host of negative
tion to which blacks and oppressed people are so peculiarly sub
things about the book. A. disclaimed his own subjectivity, displ~c­
ject; and as a call for unity in a society that too often helps us turn
ing it onto a larger-than-life literary critic; he created an authonty
against ourselves.
who was imaginary but whose rhetorical objectivity was as
I heard the same words from each, and it made no difference
smooth and convincing as the slice of a knife. In psychobabble,
to me. I heard the same words from each, but differently: one
this is known as "not taking responsibility." In racial contexts, it is
characterized me as more of something I am not, white; the other
related to the familiar offensiveness of people who will say, "Our
called for me to be more conscious of something I am, black. I
maid is black and she says that blacks want ..." ; such statements
heard the same-different words addressed to me, a perceived
both universalize the lone black voice and disguise, enhance, and
white-male-socialized black woman, as a challenge to mutually ex
"ObjeCtify" the authori of the individual white s eaker. As a legal
clusive categorization, as an overlapping of black and female and
too , however, it is an extremely common device by which not just
right and male and private and wrong and white and public, and
subject positioning is obscured, but by which agency and respon
so on and so forth.
sibility are hopelessly befuddled.
That life is complicated is a fact of great analytic importance.
The propagated mask of the imagined literary critic, ~e 1~­
Law too often seeks to avoid this truth by making up its own
lr guage club of hyperauthenticity, the myth of a purely obJeCtive
breed of narrower, simpler, but hypnotically powerful rhetorical
!I perspective, the godlike image of generalized, legitimating oth
truths. Acknowledging, challenging, playing with these as rhetor
ers-these are too often reified in law as "impersonal" rules and
ical gestures is, it seems to me, necessary for any conception of
"neutral" principles, presumed to be inanimate, unemotional, ~­
justice. Such acknowledgment complicates the supposed purity of
biased, unmanipulated, and higher than ourselves. Laws like
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Excluding Voices The Brass Ring and the Deep Blue Sea
masks, frozen against the vicissitudes of life; rights as solid as capitulate so uncritically to a norm that refuse~ to allow for ~ffe~­
rocks; principles like baseballs waiting on dry land for us to crawl ence? How else do grown-ups sink so deeply mto the authontan
up out of the mud and claim them. anism of their own world view that they can universalize their
relative bigness so completely that they obliterate the subject po
This semester I have been teaching a course entitled Women sitioning of their child's relative smallness? (To say nothing of the
and Notions of Property. I have been focusing on the semantic position of the slathering wolfhound, from whose own narr~w
power and property of individualistic gendered perspectives, gen perspective I dare say the little boy must have looked exactly like
der in this instance having less to do with the biology of male and a lamb chop.)
female than with the semiotics of power relations, of dominance I used this story in my class because I think it illustrates a
and submission, of assertion and deference, of big and little; as paradigm of thought by which children are taught not to see what
well as on gender issues specifically based in biology, such as re they see; by which blacks are reassured that there is no real in
productive rights and the complicated ability of women in partic equality in the world, just their own bad dreams; and by which
ular to live freely in the territory of their own bodies. An example women are taught not to experience what they experience, in def
of the stories we discuss is the following, used to illustrate the erence to men's ways of knowing. The story also illustrates the
rhetoric of power relations whose examination, I tell my students, possibility of a collective perspective or social positioning that
is at the heart of the course. would give rise to a claim for the legal interests of groups. In a
Walking down Fifth Avenue in New York not long ago, I historical moment when individual rights have become the basis
came up behind a couple and their young son. The child, about for any remedy, too often group interests are defeated by, for ex
four or five years old, had evidently been complaining about big ample, finding the one four-year-old who has wrestled whole
dogs. The mother was saying, "But why are you afraid of big packs of wolfhounds fearlessly to the ground; using that individ
dogs?" "Because they're big:' he responded with eminent good ual experience to attack the validity of there ever being any gen
sense. "But what's the difference between a big dog and a little eralizable four-year-old fear of wolfhounds; and then recasting the
dog?" the father persisted. "They're big," said the child. "But general group experience as a fragmented series of specific, iso
there's really no difference:' said the mother, pointing to a large lated events rather than a pervasive social phenomenon ("You
slathering wolfhound with narrow eyes and the calculated amble have every right to think that that wolfhound has the ability to
of a gangster, and then to a beribboned Pekinese the size of a roller bite off your head, but that's just your point of view").
skate, who was flouncing along just ahead of us all, in that little My students, most of whom signed up expecting to experi
fox-trotty step that keep Pekinese from ever being taken seriously. ence that crisp, refreshing, dear-headed sensation that "thinking
"See?" said the father. "If you look really closely you'll see there's like a lawyer" purportedly endows, are confused by this and all
no difference at all. They're all just dogs." the stories I tell them in my class on Women and Notions of Prop
And I thought: Talk about your iron-dad canon. Talk about erty. They are confused enough by the idea of property alone,
a static, unyielding, totally uncompromising point of reference. overwhelmed by the thought of dogs and women as academic
These people must be lawyers. Where else do people learn so well subjects, and paralyzed by the idea that property might have a
the idiocies of High Objectivity? How else do people learn to gender and that gender might be a matter of words.
12
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Excluding Voices
But I haven't been able to straighten things out for them be
cause I'm confused .too. I ~ave arrived at a point where everything
I have ever learned 1s runrung around and around in my head· and
li~e bits of ~aw .and pieces of everyday life fly out of my mouili in
wetrd combmanons. Who can blame the students for being con
fused? On the other hand, everyday life is a confusing bit of busi
ness. And .so my students plot my disintegration, in the shadowy
shelter of tvy-covered archways and in the margins of their note Gilded Lilies
books .....
and Liberal Guilt
(a reflection on law-school pedagogy)
I am sitting on a train rushing from my old home in New York to
my new home in California. In the dining car of the Broadway
Bomber, or some other Amtrak name like that, with my pens and
notebook spread out on the table, I am writing a speech for a
program sponsored by the University of Maryland Law School.
About all I have done is pick a title: Contract and Communion.
This much I can do without difficulty, because contract and some
thing like communion are pretty much what I always write about.
Most of my work is concerned with the division between the com
mercial and the communitarian, or the legal and the illegal, the
righted and the outlawed, the legitimate and the illegitimate, the
propertied and the dispossessed.
In this piece, I plan to make an analogy between social and
private contract. My conviction is that aspects of the social con
tract are characterized by strategies of evasion or control embed
ded in American symbology, a symbology that is rooted in a cer
tain ahistoricism. I want to use the model of private contract to
illustrate the problematics of social contract because it seems a
manageable way to test my hypotheses. At issue is a structure in
which a cultural code has been inscribed; if I am inside the bell jar
of the culture, my dilemma becomes how I can situate myself in
14