Throughout her work, Cheryl Harris criticizes the courts for their reification of racialized property. Often, Harris' critique lies in the Court's failure to define terms such as "first possession" in a way that does not unduly favor the party with systematic power. She traces these consistent "misdefinitions" to court cases involving the definitions of "tribe," "color," "inequality," and "merit." In her discussion of the Court's justification for the conquest of Native American land, Harris specifically notes that, "possession--the act necessary to lay the basis for rights in property-- was defined to include only the cultural practices of whites" (1721). For Harris, it is this dominance of law by those who hold the most power that has permitted the consistent subjugation of African American peoples. She argues that, "the law holds to the basic premise that definition from above can be fair to those below, that beneficiaries of racially conferred privilege have the right to establish norms for those who have historically been oppressed pursuant to those norms and that race is not historically contingent" (1762). Harris explains that so long as those leading the law also feel the need to protect their expectations and identity from the outcome of these decisions, the law will continue to oppress underrepresented groups.
Harris' argument about decisions in law drew a few questions for me: Is it impossible to ever create objective laws? And if so, how can we ensure that we create the most fair laws? Harris seems to most directly answer these questions during her reference to Mari Matsuda during her argument for improving the current system for affirmative action in America. Matsuda argues that, "looking to the bottom [involves] adopting the perspective of those who have seen and felt the falsity of the liberal promise" (1779). She explains that this "bottom-up" approach mandates thorough studies of oppressed groups and their experiences without any desire to remain "abstract." Thus, Harris contends that while the law will never be objective, such objectivity is not necessary to create the "most fair" laws. Instead, the actual experiences of oppressed groups must replace appeals to abstract terms such as "liberty" and "equality" which Harris demonstrates have been disguised as "objective" to conceal their essential role in promoting subjugation and oppression.
This challenge, already implicit in Mo's post, and Devon's comment, is really important to take up. Harris shows that the "objective" is often merely the custom of some reified as the objective standard, binding upon all. The obvious suggestion is that we need to eliminate such bias towards some in the standards applicable to all, the objective standards. The question is whether this can be done; the skeptical challenge, as I understand it, asks whether it cannot be done, hence whether "objective" standards will always embodies the customs favorable to those in positions of power.
ReplyDelete