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Victim-based perspectives as correctives
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- Answering Legal Neutrality with Critical Race Theory
Victim-based perspectives as correctivesGiven that the law is already biased in favor of historically built White privilege, it would seem ridiculous to argue that victim-based perspective taking would be illegitimate based on bias. We are always already situated, and CRT draws on this to argue, “Racism is ‘normal’ in our society. Racist assumptions about minorities pervade our mind-set and are reinforced in the media and popular culture. Race is encoded not merely in our laws, but in our cultural symbols such as movies, clothes, language, and music. Our commonsense assumptions about people of color are biased- ‘we are all racists’” (Litowitz n6). If this is the case, it is clear that legal perspectives must adopt a consciousness of race, not a blindness to it. The impossibility of blindness is the very thing that makes victim-based perspective taking a necessity. Moreover, the use of victim-based perspective taking has the effect of reducing overall racism throughout society by humanizing racial others from which we are separated. Frankenberg’s study of white women’s reactions to racism noted “it is far easier for persons from oppressed communities to recognize the privilege that is invisible to whites. The white women tended to describe racism as something distant. It was something evil happening to others and perpetrated by others. It was not part of their daily experience, nor were they generally responsible for it” (McGinley n269). But when we are exposed to people of different races, we humanize them and can empathize with their struggles. The major differences between races, entrenched specifically in the privilege of Whites, become clear. Lopez notes that, “Southerners are more likely to live in integrated neighborhoods than people in other parts of the country, and racial attitudes are changing for the better. In 1970, according to a survey by the National Opinion Research Center, 55% of white Southerners agreed strongly that blacks shouldn’t push for inclusion where they are not wanted; 26.5% agreed slightly. Last year 19% agreed strongly, and 30% slightly. Most of the progress, social scientists say, has come in metropolitan areas” (Time, May 6). Given that close integration and contact with people of other races appears to reduce racial tension and promote understanding between groups of people, it would seem that the best way to change the highly stratified white elites of law would be to change their approach to law in a way that would offer them community with Blacks. The victim-based perspective opens law to the possibility that it is always marginalizing someone’s voice, not just Blacks. Looking for the perspectives of the most oppressed creates new visions of legal justice that cannot be considered by Whites situated in the privilege that blinds them. Brooks tells us that, “Because the existing legal order, including traditional legal analysis, has a built-in bias in favor of whites, CRT consciously looks at the law from the perspective of non-whites. It relocates the source of truth and knowledge from the perpetrator to the victim, from the insider to the outsider.” We should focus on these insights because “‘those who have experienced discrimination speak with a special voice to which we should listen,’…‘the victims of racial oppression have distinct normative insights,’… ‘[t]hose who are oppressed in the present world can speak most eloquently of a better one’” (96). We might even say that those who experience oppression seem the most qualified to speak about it. It seems that White male lawyers and judges, so distant from the problems of racial discrimination as were the White women in the Frankenberg study, are hardly qualified to represent and correct such problems. However, they can greatly improve the legitimacy of their decisions and legal analysis by seeking to be informed by the perspectives of Blacks, and other historically oppressed groups. Increasing the numbers of Black judges and lawyers wouldn’t hurt either. The law’s claim to legal objectivity and neutrality is not valid, and probably not believed by most people. However, those Whites who are distant from the problems and tensions of racial oppression are unlikely to believe that the law oppresses Blacks, even indirectly. Reconnecting Whites, especially those in legal power, with the views of the oppressed is the best we can do to combat the effects of the racism that Bell thinks we can never really end. The goal must not be to end racial oppression, because race will now and forever inform our understandings of ourselves and others. We must hope that we can contextualize our beliefs about race in ways that serve the cause of justice, and only by creating situations of empathy with others can this be accomplished. Answering Legal Neutrality with Critical Race TheoryThe fundamental component of liberalism’s theory of legal legitimacy is consent, but that consent only is given in exchange for the law’s protection and aid via social contracts. Contractual consent is not applicable to those that are not served by the law, and CRT clearly demonstrates that some are served unequally while others are not served at all. Locke even authorizes the total rejection of law that fails to serve its people. Rather than simply asserting that the law empirically fails everyone but white males with statistics on the death penalty and crime convictions, Critical Race Theory offers an explanation for the failure of legal objectivity. This explanation and the solutions offered by CRT can function well as a debate case designed to challenge legal validity. As a value, I think that the obvious choice is justice or some variation on it (such as social justice, etc). The criteria should narrow the focus of your take on justice, perhaps by adopting CRT’s call for a victim-centered approach toward law, or a legal process that emphasized the telling of narratives more. The more difficult part of proving your case will be convincing a judge that true objectivity is impossible from the point of view of law. It shouldn’t be hard to win the argument that all perspectives are biased, but you might have trouble showing that legal perspectives are biased enough to warrant the changes recommended by CRT. Melding this argument with Rawls’ veil of ignorance might be most effective, since the victim-centered approach would then make the judge consider what it would be like to try to live from an underprivileged legal vantage point. You are also likely to face the argument that equality exists under the law now, meaning that legal objectivity is possible. The warrant for this argument would likely base itself in some reflection on how opportunities are open to all of those in society. This argument is fallacious because it places the burden of change on minorities, instead of making whites change the racist social structures that they created and imposed upon minorities. An opportunity implies that the door is open if minorities work hard, but whites do not have to work hard to move through the door that already privileges them. Legal structures are biased in favor of whites insofar as they do not consider a white’s lack of need of opportunities as privileged. 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