Philosophy Of Law Thesis

Ryan Conway
April 25, 2012






Inequality is present throughout our society. It runs rampant through our economy,
legal systems, and the whole of our civilization. Although progress has occurred in the last few
centuries towards equality, we are far from reaching our goal. Formal equality, like laws,
regulations, and institutions, has been the driving force behind much of this progression.
Unfortunately, this method does not handle the real issue; instead, it abstracts the concept of
discrimination. Discrimination occurs on a more personal level. Formal equality protects the
individual liberties and rights of those oppressed, but it disregards the interpersonal interaction
that takes place between members of society. Although reinforced through institutions, racism
and sexism are personal matters. It is in the informal, atomic, interpersonal level of interaction
among people, that minorities learn from whites that they are unwelcome and unwanted in
mainstream society. It is at this personal level that I wish to combat racism and discrimination.
At the formal level we have abstracted away from reality to a point where interpretation allows
for pejorative ideologies to prevail. I will argue that the security created by formal equality laws
is a false and misunderstood defense that masks the interpersonal discrimination happening on
the ground. In other words, rights have become constraints that hide and reinforce hierarchies
based on class, gender, race, and sexual orientation. My main argument is that legal reform
cannot serve as a complete means for the reconstruction of society and that the deconstructive
method utilized by the critical legal studies movement may provide a tool for the recognition
and alleviation of discrimination in legal discourse. My final point is that Deweys pragmatism
may cultivate a democratic environment that can socially recognize and alleviate oppressive
forces.
As Richard Delgado points out, members of the majority race will generally prefer
informality, minorities [will prefer] formality. Whites will want community. We will want the
safety that comes from structure, rights, and rules. They will want free-flowing, uninhibited,
interpersonal relationships with all the barriers down. We will settle for safety, even if that
means that some of the barriers must remain up. (Richard Delgado Pg. 646) My argument is
that the safety that Delgado believes is ensured by formal structures of law is not impenetrable.
Many forms of discrimination occur regardless of the laws that were made to protect against it.
In fact these formal structures are utilized to mask and conceal discrimination in our society. Id
like to pause here and distinguish between what I will call subtle discrimination and blatant or
obvious discrimination. Blatant discrimination is easily recognizable as oppressive or demeaning
actions or words used against a generalized group of people. This can include violent hate
crimes, racial slurs, and openly judging a person based on their race, gender, or sexual
orientation. Subtle discrimination is more difficult to identify, especially for white heterosexual
males who dont typically experience it. This type of discrimination takes place when a
demeaning judgment is made based on race, sexual orientation, or gender and the person
making this judgment is not open about their reasoning for making such discrimination. It is
important to identify this type of discrimination because the formal laws that are made to
protect against such acts fail to recognize subtle discrimination for what it is.
Discrimination is disguised in our society. It hides behind ideologically charged
statements and fake smiles. It takes place, in its camouflaged form, throughout our social
interactions. Members of an oppressed class experience discrimination on a daily basis. White
males of our society, like me, are particularly blind/ sheltered from these demeaning actions,
but when approached critically from our perspective, we too can witness some of the injustice
and inequality that occurs. The intentional and inadvertent exclusion of our black brothers and
sisters from mainstream society is a difficult thing to grapple with. Most white males deny this
segregation, hiding behind our societys affirmative action plans, and equality laws. What these
people do not realize is that this segregation happens on a much more personal and hidden
level. Although illegal, discrimination, based on race, happens all too often. In job interviews,
housing contracts, court cases etc. discrimination based on race, gender, and sexual orientation
occurs even with our equality laws. In fact, it is these same laws that conceal and shelter many
forms of racism. Using a different language of racism that is not as apparent or blatant as racist
slurs, white males in positions of power suppress black culture. Minorities are told demeaning
things that are not outright and obviously racist, such as, not getting a job because someone
does not think they will be comfortable, or calling them too weak. (Patricia J. Williams, the
Obliging Shell: An Informal Essay an Formal Equal Opportunity Pg. 636) Statements such as
these may not be obviously racist, but the discrimination is still present. As long as the term
race is not used, people will not consider this act racist in our society, even when the
statistics show that this happens disproportionately more to minorities. Racism in its subtlest
form now hides behind a smile and a handshake.
Although rights discourse appears to protect the individual liberties of all people,
formal laws such as, antidiscrimination laws, and the equal protection clause, only serve as a
camouflage for indirect and subtle racism. Despite admiration for these legal measures as
methods for alleviating oppression, empirical evidence and statistical information on the
subject show that discrimination based on race, gender, sexual orientation, is still excessively
present in our society. According to Rachel Smolkin, only four women are CEOs of Fortune
500 companies. (Rachel Smolkin, Equality at Work Remains Elusive. Pitt Post-Gazette, June 3
2001, Chapter Seven Pg. 539) The Bureau of Labor Statistics, Dept of Labor Report No.9843
(May 2000) found that median weekly earnings of female full-time wage and salary workers
were76.5 percent of the median for menWhite womens earnings were 18.1 percent
higher than black womens, and 38.8 percent higher than those for Hispanic women. (Bureau
of Labor Statistics U.S. Highlights of Womens Earnings in 1999 1-2 Chapter 7 Feminist Legal
Theory Pg.539) It is clear from these statistics that an economic disparity exists between men
and women in the work place. It is also clear that a difference in pay for minority women is
present. Depending on a persons interpretation of these statistics, discrimination is taking
place based on gender and race, or (less likely) the nexus between the statistics and
discrimination is not apparent whatsoever. Even with formal or legal protection of rights,
discrimination prevails. Dominating members of our society deny racism and discrimination by
asserting that the formal equality laws in place prevent such acts from occurring. Critical Legal
studies contend against this claim by asserting that race-neutrality in the law is not the antidote
to racial discrimination in real life. The Critics present law as a series of ideological constructs
that operate to support existing social arrangements by convincing people that things are both
inevitable and basically fair. (Kimberle Williams Crenshaw Race, Reform, and Retrenchment:
Transformation and Legitimation in Antidiscrimination Law pg. 632)
During the civil rights movement, minorities were confronted with overwhelming and
unrestrained racism. In the face of this unbridled threat, legal reform was a somewhat
successful pragmatic tactic used to combat discrimination. It allowed black people to legally
protect themselves and their individual liberties. Unfortunately this was not enough to stop
subtle discrimination. The interpretation of these laws as well as the introduction of a subtle
form of racism allowed for this discrimination to flourish once again. Kimberle Crenshaw points
out two differing interpretations of antidiscrimination law. She distinguishes between the
expansive view and the restrictive view. The expansive view treats equality as a result, and
utilizes antidiscrimination law and the courts to advance the goal of the elimination of racial
oppression. On the other hand, the restrictive view treats equality as a process and places less
emphasis on actual results. According to this view, antidiscrimination law is only in place to
prevent future transgressions in isolated incidents. Instead of addressing the current forms of
past inequality and injustice that are perpetuated in societal policy, the restrictive view is
merely concerned with specific incidents of blatant oppressive actions. As is apparent from
these two views on antidiscrimination law, there is not a single self-evident interpretation of
civil rights. Each interpretation is influenced largely from the worldview of the interpreter. Laws
and rights are left to interpretation by a human subject. Their values and understanding of
societys values will be interjected into his/her interpretation. If this interpreter is a member of
the dominating class and even if they do not recognize themselves as an oppressor, they may
interpret laws and rights in a manner that perpetuates inequality. In the case of The City of
Richmond v. JA Croson Co, (1989) the United States Supreme Court ruled that, a plan for
minority contractors violated the equal protection clause of the fourteenth amendment. This
plan stated that at least thirty percent of the subcontractors in municipal contracts be qualified
Minority Business Enterprises. The court held that the citys claim that the plan was a legitimate
attempt to alleviate previous discrimination in the contracting trade was based on the
amorphous claim of past societal discrimination. The city of Richmond provided evidentiary
support that explained their reasoning for this affirmative action plan. The Supreme Court had
recognized previous formal cases of discrimination nationwide. The Richmond City Council had
also heard testimonies of local discrimination in the contracting trade. Virtually zero minorities
were members of the local trade associations and although minorities made up about 50% of
the total population of Richmond, only 0.67% of the contracting business went to minorities. In
other words, half the population received less than a single percent of all contracting business!
In light of this overwhelming evidence, the Supreme Court ruled that Richmonds remedial
rational rested on sheer speculation. The court decided that the correlation the City of
Richmond was drawing between the statistics and discrimination in the contracting business
was not sufficient evidence to make such a connection. Without obvious racist or
discriminatory actions, such as hate crimes, Justice OConnor explains that the evidence
provided by the city of Richmond was not enough proof of racial discrimination. She rationalizes
his claim that this was not sufficient evidence, by saying that the statistical disparities may have
arisen from different entrepreneurial choices between white and minority citizens. (Richard
Delgado & Patricia J. Williams, The Obliging Shell: An Informal Essay on Formal Equal
Opportunity Pg. 635 note #1) The way in which Justice OConner interprets racism, as a blatant
and obvious action, committed by a single individual, ignores the more subtle, less apparent
forms of racism that may cause the statistical discrepancy found in Richmond v. J.A. Croson Co.
Justice OConners status as a white person may have been the cause of her ignorance of the
more elusive forms of racism that she may not have ever experienced.
A persons perceived position in the social hierarchy has a correlation to how they
interpret legal discourse. A member of the dominating class who has not experienced
oppression typically interprets legal discourse in a manner that ignores many forms of
discrimination. Without ever experiencing marginalization and oppression they are ignorant to
many subtle and inadvertent forms of discrimination. It would be beneficial to the alleviation of
oppression for these white heterosexual males to recognize their own ignorance. If we, the
dominant members of society, actually understood our role in the subjection of other groups of
people, we may cause large-scale recognition of these less obvious forms of discrimination.
Legal discourse needs to comprehend or at the very least acknowledge these different forms of
discrimination if we hope to alleviate these oppressive forces.
It is evident that formal rights will not provide a method for reconstruction of society
that lacks oppression. The critical legal studies movement works to expose ideologies fabricated
and perpetuated by the law. The view point of the critical legal scholar is that rights...give an
impression of fairness, but actually perpetuate racial, economic, and class subordination by
maintaining collective passivity. (Richard Delgado, Robert Hayman Jr., & Nancy Levit Chapter
5 CLS Pg. 404) Delgado goes on to explain that rights-talk treats rights as real entities, which
reinforces the belief that makes the existing social and legal order of things seem inevitable and
correct. The collective passivity Delgado mentions is the complacent or apathetic attitude of
those well-off members of society who do not recognize subtle discrimination as a societal
problem. They assume that rights and formal legal discourse protect citizens against
discrimination. The Critical Legal scholar Mark G. Kelman uses his concept of trashing (also
known as deconstruction) to expose internal contradictions and underlying ideologies in legal
discourse. Kelmans trashing consists of looking at the viewpoint or argument and being
charitable in your attempts to understand it. In other words, when approaching a new
argument or perspective we need to actually listen and attempt to comprehend what the actual
argument is saying. If possible a person should trying to see the value in the argument before
attempting to criticize and critique it. Once the value of the alternative perspective is
understood then a person attempts to see the context and ideologies that surround it (Mark. G
Kelman, Trashing Pg. 406). The crucial element of this method is the concept of being
charitable to other and alternative perspectives. This allows for common and cultural critique of
ideologies that may perpetuate oppression in all forms. If we utilize this method of trashing to
expose the embedded ideologies, in the application of legal rights, it may provide a beneficial
strategy of raising the consciousness of the powerful white males who may be ignorant to their
own oppressive actions. To raise the consciousness of the dominating members of our society
we must expose their personal ideologies and worldviews that cause them to interpret law in a
manner that perpetuates inequality. Once exposed, the ideologies must be taught and
understood as oppressive in nature.
Deweys pragmatism offers a method of social inquiry that would cultivate the
deconstruction or trashing of others perspective. Dewey describes society as a living organism
that is constantly adapting to its environment. Experience is shared among societies members
although each person has their own individual and differing perspective. The actions we take
have practical effects on our neighbors. Experience, in its entirety, is an interconnected web of
individual experiences. This is why community is so vital to Deweys theory. He places emphasis
on inner-subjective communication between societys members. Inner-subjectivity is a mutual
understanding of another beings experience. Dewey wants people to strive for inner-
subjectivity; to actually try to understand opposing viewpoints and the experiences of our
neighbors. Inner-subjectivity takes place at the interpersonal level of interaction; the same
place where the injustice of discrimination happens. This is where I believe the deconstruction
or trashing of other perspectives will be possible. This interpersonal communication is
imperative in order to achieve inner-subjectivity. In other words, in order to understand
someone, a person must communicate and interact with them. If you want to know what a
person needs, than ask them personally. Dewey states, Associated or joint activity is a
condition of the creation of a community. (Dewey The Search for the Great Community, Pg.
151) We must learn the give-and-take of communication with the purpose of social inquiry.
Social Inquiry is what fuels the democratic state. Dewey wishes to cultivate a democratic
society where social collaboration and inquiry is a necessary component in the decision-making
and interpretation of political, economic, judicial, and legal discourse. Without a social inquiry
into the consequences of our beliefs and ideologies, and the channeling of this inquiry into a
form of action, there is no democracy. People from the majority and the minorities must be in
constant collaboration in order to maintain the publics control of interpreters of the law.
Without social involvement, these interpreters lose the ability to accurately understand the
communitys needs. Even worse is that they may be free to do as they please with disregard for
public opinion. With social cooperation, collaboration, inquiry, and action the members of
society have the ability to create a flexible and unified democracy. The deconstruction that is
possible through Deweys model of social inquiry may cultivate the informal equality that has
been assumed present in our society. Dr. Cornel West offers a critique to pragmatism that
explains that pragmatism may ignore the tragedy that is natural to life. Dr. West in his The
Evasion Of American Pragmatism, wishes to point out the overly optimistic attitude of the
pragmatic thought. This excessive optimism may cause us to overlook crucial issues and
problem that occur in reality. He explains that pragmatic thinking treats all social issues as
problems to be solved. In other words, he is warning against the attitude that, as American
Pragmatists, we can solve every problem that arises, even the tragic. Discrimination based off
of race, gender, or sexual orientation is the tragedy we are speaking about in this particular
case. Dr. Wests critique is well received and I think it is very important to consider while
approaching these real world issues. I also think it is important to note that Dr. Cornel West
considers himself a pragmatist and utilizes pragmatic methods throughout his career as a
philosopher.
In conclusion, formal equality has been presumed as the resolution of social
discrimination. It is apparent from empirical evidence and statistical information that
oppression still exists in our society. Unfortunately, dominant members of our society use these
formal laws, sometimes unintentionally, as a way to mask the subtle discrimination that is
actually occurs in interactions between people. In order to successfully combat these
oppressive forces we must focus on the informal and subtle inequality by utilizing the Critical
Legal studies method of deconstruction or trashing to uncover and recognize the oppressive
ideologies of those who interpret the law. Deweys pragmatic democracy may cultivate an
environment where these deconstructive methods may flourish and oppressive ideologies may
be acknowledged and changed. Deweys inter-subjectivity, or the mutual understanding
between different members of our society takes place at the level of interpersonal interaction,
the same place that discrimination, racism, and gender bias occurs. We must create social
bonds, mutual understanding, and trust through social inquiry, while keeping in mind Dr.
Wests point about not being overly optimistic in our pursuits. Both subtle and obvious
discrimination and oppression can be alleviated. With the combination of the Critical Legal
Studies approach to ideologies, and a pragmatic & democratic social inquiry into the
perspective of others we can reconstruct society in a manner that does not perpetuate
oppression, but strives and works to relieve it.