This post fuses critical legal theory with my analysis of Barack Obama’s presidency.
Critical legal theorists argued that the “myth of rights” from classical rights theory is essentially providing protective cover for entrenched forces of racism, sexism and class domination. These critics highlight the indeterminacy of rights and their paradoxical tendency to legitimate oppression by creating a false sense of formal neutrality and equality. This is why the election of Barack Obama, the protective cover, should concern you.
For example, the phrase “all men are born equal” was embedded into the the founding documents of the United States. But today, as it was before the 1860s, this promising phrase holds little in terms of actual practice. Barack Obama is black, but so are over 1 million out of 2 million in the American prison system. The prison system is expanding to hold 5 million by 2010. The promise of equality pacified populations hurt by discrimination, and helped the oppressing population turn a blind eye to the harm done. “All men are born equal” gave the promise of change without following through. African Americans fought wars under regimes that mistreated them horribly. Though the promise of freedom and equality was present, it still is not practiced.
The critical legal theorists do not attack the ‘constitutive’ effects of having rights in a liberal democracy per se. What they do is examine the actual effects of the law on consciousness and action. Whereas classical rights theorists – Locke, J.S. Mill, Hart, etc. – provide the cornerstone for liberal legal theory, they cannot abolish social forces that inhibit equality. Liberal legalism much of the time creates a sense of ‘the self’ that is illusory and ultimately destructive, because ordinary citizens can find themselves locked out of the formal capacity of the law to safeguard their rights.
The Supreme Court’s anti-discrimination law “normalizes the existing patterns of inequality and hierarchy,” argued critical legal theorist A.D. Freeman. Mark Tushnet wrote that “It is not just that rights-talk does not do much good. In the contemporary United States, it is positively harmful.” Feminist and critical race scholars also address the more explicit effects of rights, rather than the constitutive (promised) effects of rights on individuals.
On the other hand, the effect of the civil rights movement’s confrontations with American society on the identity of African Americans was positive. To the extent that rights were associated with a “powerful combination of direct action, mass protest, and individual acts of resistance, along with appeals to public opinion and the courts”, they were successful. Without a decisive attack on public consciousness through action, the classical rights theories actually reinforced myths and stereotypes about social differences.
With the election of Barack Obama, there is a connection between critical legal studies and the ‘constitutive’ effect of embracing the first African American as President of the U.S. The implication that Barack Obama is part of – or somehow is a leader in – the civil rights movement, could not be more damaging. A figure within the political system cannot take the place of or be a leader in any popular movement. That is co-option. The election of Barack Obama will most likely bring an end to confrontational approaches to social difference before it ameliorates real social differences. And if confrontational approaches have historically won decisive political victories in areas where liberal legalism has failed, the election of Barack Obama would soften the confrontations, and hence have little or no effect on society.