Whose Nuremberg Laws?

Race is something which shouldn’t matter, but which has mattered and therefore has to matter. In a world uncontaminated by injustice, we could regard heritable differences in skin pigmentation, physiognomy, hair texture and body morphology as superficial traits. We could be, as they say, ‘colour blind’, treating those traits, as we treat the green in someone’s eyes, as features that point to nothing beyond themselves, above all nothing that would warrant different treatment or differences in respect. It is hard, however, to imagine such a world without seeming naive or disingenuous, for it would be a world in which it never occurs to anyone to discriminate on the basis of what we call ‘racial differences’, a world where that would be as unintelligible as one person discriminating against another because he was born on a Tuesday.

It is certainly not enough to think of a world in which there has been discrimination, but in which now – thank God! – we have seen the error of our ways and resolved to put it all behind us. Injustice on the scale that racism has involved – genocide, expropriation, imperial brutality, chattel slavery, apartheid and segregation – is not something that evaporates in the light of our good intentions. Such evils inflict terrible harm on their immediate victims. But they can also lay a curse on a country: a curse that is never easily or unambiguously lifted, but lingers on in memory, culture and the million and one ways in which what has happened to a people in the past infects the capillaries that nourish their future. The Biblical prophets understood that curse as God’s judgment on injustice. Part of what’s wrong with one generation’s wickedness is that it blights the future for later generations: ‘Woe betide those who enact unjust laws, depriving the poor of justice, plundering the widow and despoiling the fatherless! What will you do when called to account? To whom will you flee for help, and where will you leave your children?’ (Isaiah 10:1-3).

We don’t have to see our predicament in a Biblical light, though in the past this has lent a certain grandeur to such occasions as Edmund Burke’s denunciation of the British administration in India, Abraham Lincoln’s Second Inaugural and Martin Luther King’s Letter from a Birmingham Jail. We don’t need theology or metaphysics to understand the enduring legacy of slavery or colonial brutality. We know the social dynamics.

In the United States, for example, slavery and segregation were, for a whole people, forms of legislated hopelessness. These arrangements (and the violence and terror that supported them) were designed to keep blacks ‘in their place’, to defeat any attempt by slaves or their descendants to make something of themselves. What does this do to a people over six or seven generations in a competitive society like the US, where hope and opportunity are transmitted through families, and where the normal mechanism of social mobility is for people to work, save and generate hope out of nothing, not for their own prosperity but for the imagined future of their children and grand-children? When the legal barriers are lifted and the violence suppressed, some sort of hope may return, opportunities may open up, and after a generation or two there may be some success stories. But the situation is not as it was before the injustice or as it would have been had the injustice never been perpetrated. It is fatuous to think that hope, and the inter-generational connections that nourish hope, can survive such injustice unscathed and reappear magically to vindicate the good intentions of those whose ancestors did their best to destroy it.

In 1997, Patricia Williams, a colleague of mine at Columbia Law School, was invited to deliver the Reith Lectures. Before she gave them, she was targeted by sections of the British media as ‘a militant black feminist who thinks all whites are racist’ (Daily Mail). It was said that her selection as Reith lecturer was an obeisance to political correctness and that the style of her writing embodied all that was bad about the narcissistic confessional culture of the United States.

Patricia Williams does write in a narrative mode, in part first-person reflections, in part recollections of the impact of race on her own experience and on the lives of her friends and children. And one or two of the stories she tells seem laboured – like the story of her son having to be taken to an ophthalmologist because when asked what colour grass was, he kept saying (true to the assurances he had received from his scrupulous kindergarten teachers): ‘It doesn’t matter. It makes no difference.’ Many of the stories, however, are much more subtle, like the best parables, leaving the reader to ponder their significance.

Of course, we should have reservations about the use of anecdote as a basis for public policy. Richard Posner once remarked that the United States is a nation of more than a quarter-billion people closely watched by a horde of journalists. Every bad thing that can happen will happen and it will be reported; so it may be worth not panicking until we see whether it happens (say) thirty thousand times – which would mean it’s happening to slightly more than 0.01 per cent of the population. As we used to say when I was learning jurisprudence, ‘hard cases make bad law.’ That’s a lesson that needs to be learned in America, where there is now a habit of naming hasty legislation after the individual stories that elicited it – ‘Megan’s Law’, ‘Elissa’s Law’ and the like. Williams, however, is not offering her stories as a basis for instant law-making.

She tells them, first, so that we can glimpse the reality that is otherwise abbreviated in columns of statistics. Suppose one-third or more of African-Americans have experienced some form of discrimination in housing: that means that, in the current generation, there have been about ten million incidents at least as humiliating to those involved as an incident which Williams recounts from her own experience. The story is no substitute for the statistics, but it makes them a little more difficult to pass by.

Second, she tells the stories she does because of her interest in ‘the small aggressions of unconscious racism’: the slights and embarrassments that could not possibly be gathered as statistics, but of which some awareness is indispensable for understanding men and women suffering in what we must hope is the terminal moraine of racism. The Daily Telegraph lampooned this sensibility. It said that, in Williams’s view, every attempt to be colour-blind in practice turns out to be a subtle form of racism: ‘If someone choosing between candidates for a job decides to ignore the fact that some of them are black, that person is in fact pretending that they are all white, which reveals a racist assumption.’ But if it seems to a black candidate that the person judging her is pretending she is white, and if that distresses her and she thinks to herself, ‘I wish this were not what fairness amounted to,’ then surely that’s of interest. It may not be interesting for the purpose of accusing anyone of racism – the Telegraph is right about that – but it deepens our sense of the presence of race in the detail of our interactions, its presence in what I called the capillaries that nourish hope, on the one hand, or resentment and despair, on the other.

Is race something we could learn not to notice? And if we did, who would pay the price of its not being noticed? Whites? In his Introduction to Colour Conscious, David Wilkins observes that the white citizens of America and Britain mostly don’t see themselves as having a race. Their culture is just ‘British culture’ or ‘American culture’ or, unselfconsciously, simply the way things are. Wilkins, Appiah, Gutmann and Williams are suspicious of white proposals to create a colour-blind world, what Williams calls a ‘prematurely imagined community’, characterised by ‘the majoritarian privilege of never noticing oneself’, ‘the profoundly invested disingenuousness’ of racial denial and ‘all the while, a kind of pleading behind the eyes, a twisting of nervously clutched hankies’ – ‘Race is nothing to us: would that it were also nothing to you.’

Is it even reasonable to ask those who have been harmed by race to put their race-consciousness aside? Williams makes it clear that one still cannot survive as a black person in America or England without being watchful where colour is concerned. A black woman with her child must prepare to be humiliated in front of him. A young black man must expect to be stopped more often by the police. A person of colour knows that the fact of her colour will register every time in the eyes of strangers, officials, shop assistants, even friends and colleagues. Since race looms so large in the lives of those who may be harmed by it, it seems unfair to say that they are to make nothing positive of it – a badge of honour or a basis of solidarity.

Or is it? Anthony Appiah, a professor of Afro-American Studies at Harvard, is well known for his misgivings about this sort of makeover – race as an affirmative identity among those most likely to be affected by racism. Part of Appiah’s unease is a general worry about identity politics: ‘If what matters about me is my individual and authentic self, why is so much contemporary talk of identity about large categories – race, gender, ethnicity, nationality, sexuality – that seem so far from the individual?’ But much of it is specific to race consciousness, for race in Appiah’s view is such a discredited concept that even benign attempts to make it the centre of identity and solidarity are likely to end in confusion.

Appiah bluntly insists: ‘There is no such thing as race.’ He doesn’t deny the obvious facts about heritable differences in pigmentation, but denies that there is any interesting correlation between these and other characteristics that might be thought important for social purposes. He says that as a matter of biology, the underlying theory of race – that human beings can be divided into a fairly small number of groups whose members share a set of heritable moral and intellectual characteristics with one another that they do not share with members of any other race – is not slightly wrong, but wildly wrong. What’s more, there is an explanation of why it is wildly wrong: unlike colour, the other characteristics (to the extent that they are genetic) have been selected for under pressures not closely correlated with the presence of harmful amounts of sunlight.

The scientific falsity of race theory is important, Appiah believes, because of the peculiar meaning-structure of the word ‘race’, a word, like ‘electricity’, whose use by laymen in non-scientific contexts presupposes that there are scientists who can provide a full and precise explication of what it involves, a word whose use entails what Appiah calls ‘semantic deference’ – implicit reliance by one community of users on the specialist knowledge supposedly held by another. Semantic deference helps to explain why ordinary people sometimes continue talking about things that don’t exist. Not knowing in detail what is going on in the science to which they defer, they may continue using a term that embodies a particular theory long after that theory has been discredited, and the term discarded, by scientists.

I am not sure whether this gets to the heart of the matter. Though racial discourse may involve semantic deference to biology, it also contains evaluations which are often non-deferential. I don’t just mean crude rankings – ‘master-race’, ‘lesser breeds’, etc. I mean that people’s use of ‘race’ tells you something about which characteristics they think are important for social and political (as opposed to biological) purposes. For some, this requires finding correlations between superficial characteristics (which do not matter) and intellectual and emotional ones (which do). For others, even the correlations may be unnecessary. Thomas Jefferson believed that skin colour was important in its own right, not just as an indicator of something subcutaneous. Blacks may have the same emotions as whites, but their colour means they cannot display them in the same way: ‘Are not the fine mixtures of red and white, the expressions of every passion by greater or less suffusions of colour in the one, preferable to the eternal monotony which reigns in the countenances, that immovable veil of black which covers all the emotions of the other race?’

Even in its descriptive aspect, the use of ‘race’ may presuppose the truth of certain scientific propositions without committing its users to anything like deference to the scientific community. Racism is often associated with resentful suspicion of scientists, seen as covering up the truth about race or as refusing to investigate whether correlations of the appropriate type exist. In other words, the association between ‘race’ and scientific truth is itself normative. The racist says, ‘Something like this must be true,’ where the ‘must’ is borne of a much deeper conviction than anything racial science could have generated on its own, even in its heyday.

The connection between race and science is opportunistic, and there may be other ways for the term to secure a modicum of intellectual respectability. A deeper conviction that humans really are divided into sub-species rides for a while on the back of a biology that appears to support it. But it might equally ride on the back of a pre-modern metaphysics which insists that nothing as striking as skin colour could fail to be a sign of something deeper. It might team up with a theology that talks of the diabolical pollution of one line of human descent. Or it may claim validation from an ethology that entangles nature and culture so tightly that no interesting distinction can be drawn between kinds of people and ways of life. The versatility of the term must not be underestimated. There may not be any single controlling hypothesis at the centre of the race idea which, if only we could make its refutation known, would turn out to be the Achilles’ heel of racism.

These observations cast some doubt on the thesis of a fascinating study of the history of race as an idea in the West by the late Ivan Hannaford. Hannaford has assembled an enormous amount of material in order to illustrate his conviction that the idea of race is mostly a product of the Enlightenment and of post-Enlightenment biology and anthropology. He has gone to extraordinary lengths to show that ancient, medieval and Renaissance writers did not think in terms of race at all, though they often thought in terms which were remarkably similar. Thus the Greeks believed that culture and upbringing were conditioned by the meteorological characteristics of various human habitats; but this, Hannaford argues, does not provide grounds for a racist reading of the claim that some peoples are by their nature unfitted for politics. In Renaissance England, ideas of aristocratic genealogy – a ‘noble race, a race of kings’ – became entangled with cabalist doctrines of the curse of Ham to provide a complex framework whereby Englishmen could compare themselves to what they knew of Africans or native Americans. This, too, says Hannaford, was not a racial conception because there was no proper anthropology, natural history or biology to support it. Race, he insists, is not the same as genealogy or eugenics or the idea of ethnic destiny.

It is hard to sustain these fine distinctions, however, or to share the author’s sense of their importance, once one acknowledges that ‘race’ does not have a fixed meaning. What one misses in Hannaford is any sense of the contested and mercurial character of the term, any sense that it represents the opportunistic appearance in various guises of convictions (about great divisions in humankind) which are not themselves primarily intellectual, let alone scientific. It’s extraordinarily difficult to figure out what these convictions are based on. The will to power? A deep desire for the existence of an ‘Other’? A refusal to accept the infinite malleability of culture? Perhaps it is even a horror at the thought of our common nature. ‘Well, you know, that was the worst of it,’ Marlow observes – ‘this suspicion of their not being inhuman. It would come slowly to one. They howled, and leaped, and spun, and made horrid faces; but what thrilled you was just the thought of their humanity – like yours – the thought of your remote kinship with this wild and passionate uproar.’

None of this exactly undermines Appiah’s case. If one begins with his worry about the way identity politics freezes individuals’ sense of themselves by tying it too closely to group solidarity, then one can imagine him saying that an empirically empty notion of ‘race’ makes matters worse. It’s bad enough having one’s identity dictated by a group, without having the group, in turn, defined by a pseudo-science. But the slipperiness of ‘race’ may work as well in the other direction. If the term is versatile enough to move effortlessly from theology to biology, it may also be versatile enough to serve as an organising principle for people’s protective and defiant sense of themselves, without locking them into the particular propositions (about blood or genes or destiny) associated with their oppression.

Much the same can be said about state policies and institutional responses to racism which are themselves organised on racial principles. There is inevitably concern about the message conveyed to individuals when governments pursue programmes of the sort that Amy Gutmann defends in her contribution to Colour Conscious: preferential hiring, for example, or electoral re-districting aimed at enhancing minority representation.

Gutmann rightly insists that governments cannot be colour-blind in a world that has not itself been colour-blind. But this leaves unanswered a number of troubling questions about the benign colour-vision that she favours. If a government is saying that race matters, at least remedially, is it committed to there being something that race amounts to? If the notion of racial bloodlines does not make sense, can we stipulate how much African blood one needs to be a beneficiary of affirmative action? Stories abound in the United States of people who have emphasised tenuous elements in their ancestry or changed their names or added hyphens to get the benefit of (say) Hispanic or Native American preferences. When it is not a question of direct remedy to an actual victim of racism, are we still to be guided in our racial preferences by the detailed classifications used by the racists? Are we to have our Nuremberg laws in response to their Nuremberg laws? Our ‘one drop of blood’ rule to redeem their ‘one drop of blood’ rule? Or can we take advantage of the contestability I have emphasised in order to construct a different and more honourable notion of race for the purposes of affirmative action?

The sensible response to these questions is to point out that no one defends affirmative action because they think it is easy. They defend it because they believe that nothing less difficult than these policies – fraught as they are with the paradoxes and the poisonous legacy of race – will do in a country whose history has been disfigured by racism. Of course, they may be wrong about that. But the one thing that history has deprived us of is any certainty – either way – that the easy or obvious response is the right one.

I have said that the curse of injustice deprives the current generation of any guarantee that its good intentions will bear good fruit. It leaves us quite unsure of where we stand and what we can achieve. Defenders of affirmative action recognise this when they say to their opponents: ‘We are no longer in a position to proceed on the basis of intuitive moral certainties, such as colour-blind hiring or promotion on the basis of merit alone. Those principles might be fine for a pristine Eden, uncontaminated by the past. But their cheerful application without regard to the blighted ground we are attempting to cultivate may, for all we know, do more harm than good. We have to go back to square one and develop new policies – perhaps counter-intuitive policies – to deal with the mess that our forefathers left us.’

The more thoughtful opponents of affirmative action may well respond: ‘All right, but let those policies at least be pursued in a spirit of humility and openness to evidence. They may or may not work. We cannot know unless we confront the harm they undoubtedly do as well as the benefits they generate. Whatever may be the appropriate response to the curse of past injustice, it is surely not wilful blindness to the detrimental consequences of our attempts to deal with it. And we suspect that that blindness on the part of defenders of affirmative action – a willingness to defend it as a moral imperative, come what may – is in part a consequence of the very self-righteousness that a recognition of the curse of injustice ought to preclude.’

Maybe I am overestimating the number of people who are willing to say something like this, as they vote in California, for example, for the repeal of racial preferences (which they recently did), or criticise ‘political correctness’ over the breakfast table. But I am certain the debate about affirmative action and about race in general would be immeasurably improved if there were more people on both sides who were prepared to proceed in this spirit.