Читать книгу Negrophobia and Reasonable Racism - Jody David Armour - Страница 16

Alternatively, typical beliefs may be considered reasonable on the supposition that they are not blameworthy, however inaccurate or even irrational they may be.¹² This is the claim of reasonableness invoked by both the Reasonable Racist and, as we will discuss later, the Involuntary Negrophobe. According to this position, even admittedly wrong judgments about a fact or situation should be excused so long as most people would have reached the same wrong conclusions under similar circumstances. A roll of keys that looks just like a gun in the eerily flickering lights of a bank lobby provides a simple illustration of this excuse. The argument rests on the premise that “blame is reserved for the (statistically deviant); we are blamed only for those actions and errors in judgment that others would have avoided.”¹³ Under a noninstrumental theory of criminal liability (that is, a theory that determines legal liability solely on the basis of an actor’s just deserts, and that gives no weight to social policy in fixing liability), it is unjust to punish someone like the Reasonable Racist since his typical beliefs are by definition not morally blameworthy.¹⁴

Speaking to a jury of other seventeenth-century men, the storekeeper who shot the supposed witch would argue that his belief was typical and accurate; speaking to a modern jury, however, he might concede that his beliefs were inaccurate, but still argue that they were typical for someone from his cultural background, and that therefore he was not blameworthy for holding such admittedly inaccurate beliefs. When the reference group for determining whether an attitude or belief is typical is not the majority, this kind of claim is referred to as the “cultural defense.” Thus, a Hmong tribesman from Laos kidnapped his intended bride in California and raped her in order to officiate their marriage, as is the tradition in his native country.¹⁵ Also in California, a Chinese mother killed her son in an attempt to commit parent-child suicide after discovering her husband’s adultery.¹⁶ Through a “cultural defense,” these defendants could attempt to negate or mitigate their criminal liability by arguing that they believed they were reasonably committing such acts because their cultural background and beliefs permit, and even encourage, such behavior.

Of course, insofar as our courts reject the claims of these cultural minorities, they raise Procrustean bed concerns. But insofar as they recognize such claims, they raise the problems on which the discussion now centers, namely, the problem of showing undue deference—and giving undue normative legitimacy—to the merely typical. Our investigations will uncover more such conundrums as we proceed.

A variant of the cultural defense is often asserted in defense of some of this country’s revered “forefathers.” For example, not long ago I heard a Black alumnus of the University of Virginia singing the illimitable praises of his alma mater’s founder and benefactor, Thomas Jefferson. “You know, Jefferson maintained that Blacks were a naturally inferior race and remained a slave owner until the day he died,” I observed.¹⁷ “Oh, but it is unfair to judge him by today’s standards,” my interlocutor shot back. “Lots of people owned slaves back then, and most Americans of that era thought it was all right. Besides, Jefferson was a gentleman slaver.” I was about to respond that a “gentleman slaver” is like a “nice Nazi,” but it occurred to me that such a point would not assail the logic of his position—if anti-Semitism was a typical attitude among Germans in the 1930s and 1940s, how could we by his logic blame individual Germans of that era for holding such typical attitudes?

The problem with the claim that typical attitudes are not blameworthy is easier to recognize in cultural-defense cases, where what is typical for the cultural minority is not typical for the majority, than in cases where what we mean by typical beliefs and values are our very own cherished majoritarian beliefs and values. Acknowledging that our own typical values and beliefs may not reflect absolute truth and justice raises problems of moral and epistemological relativity that many of us would rather avoid honestly confronting. This is why the popular movie Pulp Fiction, though widely touted as iconoclastic, is at its core highly conservative. Early in the movie, the John Travolta character revels in cultural relativity by regaling his cohort in crime, played by Samuel L. Jackson, with stories of the different standards employed in different countries: a different system of weights and measures in France, and different, more permissive drug laws in Amsterdam. Jackson’s character revels in the relativity as well, until he partakes of a burger called The Big Kahuna (Big Kahuna is the Hawaiian phrase for high priest), after which he “gets religion.” When Travolta is invited to partake of The Big Kahuna, however, he declines. Travolta’s refusal to renounce relativism leads to his demise (the price of relativism is death). Jackson, thanks to his espousal of absolutism, dodges the bullet. In the end, Pulp Fiction offers moviegoers relief from the vertiginous relativity of post-modernism via conversion to Judeo-Christian dogma … follow you who can.

But America is a diverse nation, many of whose members do not subscribe to any monolithic code of moral absolutism and harbor healthy skepticism toward those who profess to have a privileged pipeline to some God’s-eye view of truth and justice. Moreover, this country is officially irreligious by constitution. Consequently, are there any coherent grounds upon which to build a critique of the claims of the Reasonable Racist? Is it even possible, let alone just, to discipline a person for beliefs, attitudes, and reactions that they share with most of the people around them, without either appealing to moral absolutes or somehow bootstrapping oneself to a position outside the prevailing belief system and into a God’s-eye perspective?

In contrast to an “externalist” critique, which seeks a God’seye perspective on a set of beliefs and reactions, a more coherent critique draws from an “internalist” perspective by seeking leverage for its critical evaluations from within the belief system itself. An internalist approach criticizes a belief or practice by showing how it contradicts or undermines other important beliefs, practices, values, and convictions within the same belief system. The values of the belief system need not have been handed down from some divine oracle, but rather may evolve gradually from historical processes and political struggles. The high value American culture places on free speech, for example, cannot be deduced from the Ten Commandments, and it took a bloody civil war for antislavery values to take root fully in our cultural belief system.¹⁸ Democratic struggle over moral and legal definitions, on the one hand, and exposure of contradiction and hypocrisy, on the other—these are the defining characteristics of the internalist approach.

Legal disputes in our justice system are argued and resolved within an internalist perspective. Parties to a legal dispute, whether over ownership of a parcel of land or school desegregation, couch their contentions in terms of moral norms and social policies for which there is significant support in society’s moral and legal discourse. Thurgood Marshall did not argue Brown v. Board of Education, the landmark school desegregation case, by appealing to some critical morality that lacked roots in the social morality and legal discourse of his times. Instead, he relentlessly hammered home the contradiction between segregation and deep-seated American moral and legal convictions. Applying an internalist methodology, he—like my incarcerated father—found a way to “make the frozen circumstances dance by playing to them their own melody.”

Social morality—as distinct from popular morality—provides a basis for critiquing even widely shared beliefs and attitudes. Social morality consists of moral standards rooted in aspirations for the community as a whole, and that can fairly be said to have substantial support in the community or can be derived from norms that have such support.¹⁹ “Popular morality,” on the other hand, consists of moral norms that reflect a majority of opinion about appropriate behavior at some particular point in time. Despite considerable overlap between social morality and the popular version, they are not coextensive. Popular opinions about morally acceptable behavior feed social morality, but social morality is a river fed by many streams. A nation’s constitutional promises, for example, contribute to its social morality, even when that nation, seized by popular prejudices and opinions about morally acceptable behavior, breaks those promises for a period of time, as it did when the United States interned Japanese Americans in concentration camps during World War II. That the United States has officially repented of its wartime treatment of Japanese Americans and offered monetary restitution for its transgressions points to its own realization that popular judgments of appropriate behavior at a given time may contradict deeper norms and convictions that the formerly popular judgments dismissed too lightly.

Indeed, most constitutional provisions work this way—they are promises a body politic makes to itself, ideally at the behest of its nobler impulses and “higher angels,” which it hopes will protect its better self from a later weaker or less just self; they are the ropes Ulysses uses to bind himself to the mast to help him resist the siren songs he knows await him. Sadly, however, given the Supreme Court’s recent assault on the Bill of Rights, which has been significantly fueled by the very fear of Black crime that we are considering, it appears that some of Ulysses’ robed shipmates are bent on hacking away at his self-imposed coils in the name of siren justice.

Once the relationship between social and popular morality is properly understood, it is easier to see the flaw in the claim of the Reasonable Racist. The Reasonable Racist assumes that the sole function of the reasonable-man test is to reflect popular morality and that the sole objective of the legal system is to punish those who deviate from popular attitudes and beliefs. The role of the courts, from this perspective, is to observe rather than define the attributes of the reasonable man.

Whether courts that apply the reasonable-man standard should merely accommodate prevailing attitudes and practices or instead actively channel them in directions that serve higher social interests is a long-standing legal debate. In the famous torts case of T. J. Hooper,²⁰ for example, a defendant tug owner argued that the reasonableness of his decision not to equip his tug with a safety device should be judged on the basis of the behavior of most other tug owners. Because most other tug owners also failed to install the safety devices, the defendant argued, his failure to install them should be deemed reasonable. Judge Learned Hand, writing for the court, refused to equate the reasonable with the typical, however. Making it clear that courts do not merely observe, but actively define standards of reasonable behavior, Hand held: “[I]n most cases reasonable prudence is in fact common prudence; but strictly is never its measure; a whole calling may have unduly lagged in the adoption of new and available devices…. Courts must in the end say what is required; there are precautions so imperative that even their universal disregard will not excuse their omission.” Hand’s recognition that courts have a duty to actively define standards and thereby channel social behavior applies with equal force to both civil and criminal cases.²¹

This analysis exposes the fallacy of equating reasonableness with typicality. Even if the “typical” American believes that Blacks’ “inherent propensity” toward violence justifies a quicker and more forceful response when a suspected assailant is Black, this fact is legally significant only if the law defines reasonable beliefs as typical beliefs. The reasonableness inquiry, however, extends beyond typicality to consider moral standards rooted in aspirations for the community as a whole. Even when such moral standards are ignored by most of a community, it is incumbent upon the courts, as trustees of these higher standards, to hold the community accountable to them.

Avoidance of invidious racial discrimination has achieved the hard-won status of a core value in this nation’s social morality. Support for this value can be readily found in sources ranging from constitutional provisions and legislative decrees to newspaper editorials. Accordingly, courts must not allow an attribute like irrational racial bias to figure in the formulation and application of the reasonable-man standard, however widespread that attribute may be. Although in most cases the beliefs and reactions of typical people reflect what may fairly be expected of a particular actor, this is not always true. “Should” must never be confused with “is,” no matter how widespread what “is” may be. “Nice Nazis,” “gentlemen slavers,” and Reasonable Racists—this troika of odious oxymorons—stand as cautionary reminders of the danger of smug complacency in the face of what “is.”