Depending On The Blindness Of Strangers... The Question Of The Law And Minorities

In Tennessee Williams's play 'A Streetcar Named Desire' the protagonist Blanche DuBois finds herself living with her sister and brother-in-law after she loses her house and livelihood. Blanche, throughout the play, slowly descends into madness, as she is abused by her sister's husband and haunted by the death of her former lover. At the end, when she is taken away to a mental institution, Blanche softly says to the doctor "I have always depended on the kindness of strangers." As a woman who has spent her life hounded by the stark injustices of her situation, Blanche has depended on the kindness of strangers to offer her comfort where there is none, a home when she has lost her own, a job when she has been dismissed, and love where she cannot find some, but it is this same dependence that allows Blanche to be inherently vulnerable to those she depends on: the lover who kills himself, breaking her heart; the sister who gives her away to a hospital; the brother-in-law who relentlessly taunts her, and rapes her. 

This same dependence has an uncomfortable parallel in the modern legal world - minority groups are dependent on the majority to get ahead, leaving them similarly vulnerable to be let down, abused, and forgotten. The world is, unfortunately, not a level playing field, and great strides towards equality have been made in the past century, from voting rights to marriage equality, but even so, minority groups are dependent on white, straight men to provide this equality for them; a challenge that becomes infinitely harder when people in these majority groups deny the existence of inequalities. A consequence of the myth of a post-racial society is that many white people feel comfortable, if not proud, to state "I don't see colour." While this undoubtedly comes from good intentions, minority groups are often vocal in their opposition to this simple phrase, saying it blinds those in power from seeing the inequalities faced by people of colour, and allows these inequalities to continue.

However, by opening your eyes to the racism, and other forms of discrimination, that exist in modern society, by becoming 'colour-aware', people will be educated and empowered to make the changes necessary to level the playing field, so that people of colour, women, people with disabilities, the LGBTQ+ community, and other minority groups no longer have to depend on the kindness of strangers. 

There are two options for the law to take in this regard: the active approach, whereby laws distinguish between those in the majority and those in the minority to use the immense power of the legal system to right these wrongs, and take measures to mitigate the effects of systemic racism and inequality; or the passive approach, whereby the law affords blanket equality to all, and allows policy-makers to advance social justice causes. This post shall explore these two options, interspersed with quotes from six young people with whom I have discussed this issue. These people are anonymous, and their voices are used to illustrate the myriad of perspectives surrounding this topic. For the purposes of this blog post, I refer to colour-blindness and colour-awareness to refer to different perspectives on how people view the distinguishing characteristics of minority groups - this is shorthand for blindness or awareness to any distinguishing characteristics, from gender, skin colour, ethnic origin, disability, sexual orientation, gender identity, religion, and other characteristics that put a person in a minority group. 

The role of the law

Hart, in his book 'The Concept Of Law', suggested two models for how laws operate: a threat and obedience-based model, and a justice and morality-based model. These two approaches are useful to understanding the core reasoning behind a legal system, and determining where colour-blindness or colour-awareness fit into our law. 

The threat and obedience-based model suggests that laws are inherently orders backed by threats: "If you kill a person, you will be put in prison" or "If you don't sign this contract, you will not be paid." A broad approach of this model would suggest that the passage of a bad law (a statute which goes against a Constitution or an ethical belief) would be discouraged with the threat of nullification. A bad law in the United States which, for example, bans religion would be struck down by the Supreme Court as being unconstitutional. While each legal system is different, parallels do exist. A bad law in the UK which, for example, outlaws the right to privacy would be met with a 'declaration of incompatibility' by the Courts under the Human Rights Act, and immense pressure would be put on Parliament to repeal this law (pressure that, according to Bagehot, would make passage of this law impossible in the first place). While there are numerous psychological theories for obedience, they all broadly acknowledge a consequence for defying authority, from mere criticism or a damaged relationship, to arrest or physical harm. 

However, for a 'threat' to work, one must fear the consequences. If a person does not care whether they end up in prison, the threat of prison will not deter them from being disobedient to the law. A more powerful motivator, perhaps, could be the justice and morality-based model of law, where one obeys the law not because they fear the consequences of breaking it, but because the law is moral and just, and it is the right thing to do to obey it. Hart states that "a command is primarily an appeal not to fear but to respect for authority." In Milgram's experiments into obedience in the 1960s, he found that when a lab coat-wearing man asked an individual to obey an order, people tended to be more obedient than when a plain-clothed man asked them to obey an order; the consequence of disobeying was exactly the same, but people had more respect for the man they viewed to be more respectful: the doctor. Similarly, Martin Luther King Jr wrote that we have a "moral responsibility to disobey unjust laws." The consequence of disobeying the law was imprisonment or a fine, but one should not obey a law that perpetuates inequality because it is not worthy of our obedience. It therefore follows that an authority figure acting immorally will receive less obedience than one acting morally when the order they are imparting is no different in either scenario. 

This inevitably brings us to the rule of law (a topic I am sure by now you know I am obsessed with). Hart noted that under the rule of law "statutes often bind the legislators themselves." By passing laws, a government and its legislators inevitably find themselves wrestling with ideas of morality, and even more so in the modern age of economic equality and climate change, when even the most mundane laws have a stark moral dimension. An authoritarian government will see obedience to the law not because they are beacons of morality or ethical leadership, but because the penalties for disobedience are harsh, while a compassionate government will see obedience because of their moral positioning. The coronavirus crisis has made this especially clear, where authoritarian-leaning individuals have discarded masks and social distancing because of the lack of threats forcing them to do so, while more progressive individuals have largely adopted social distancing and mask-wearing measures, because they hope to prevent further infections and deaths. 

In spite of the moral dimension, theorists largely agree that it is necessary for the law to apply equally to everyone, including the legislators who, Hart pointed out, also must obey the law. It is true, however, that governments are made up predominantly of individuals from majority groups: Trump's cabinet has three minority members, and the ruling Conservative party in the UK is 76% male and 94% white. As a result of this, even the most colour-aware individuals in these two governments would be significantly hampered in attempts to reduce inequality, simply because of the lack of their lived experiences. But while the law is made by legislators, who may be authoritarian or liberal, colour-aware or colour-blind, the law is enforced by the judiciary, an independent body who takes great care to ensure that their decisions are not politically-motivated. As a result, a colour-aware judge would be forced to make colour-blind decisions - the purpose of this post is to examine whether they should be. 

A final consideration relates to the question of old laws - those which are ignored, outdated and antiquated. For example, until 1960, men between the ages of 17 and 69 were required by law in England to possess and be in practice with a longbow. While this law was, thankfully, repealed, it fell into disuse long before that, and an individual who was not in possession of a longbow in 1959 would not have been arrested and prosecuted for this crime, even though it was technically an offence. These antiquated statutes which have not been repealed, but are also not enforced, could be seen to pass the burden to law enforcement (by which I mean police and prosecutors) to act as legislators in deciding what laws are worthy of enforcement - in essence, what laws are 'good' laws. While it may seem sensible enough for law enforcement to ignore antiquated laws, there is a concern, however remote, that by passing such legislative power to non-Parliamentary bodies, law enforcement could become grossly powerful in enforcing only the laws they agree with, from ignoring human rights violations to prosecuting individuals for antiquated, and often discriminatory, offences.

A passive law 

Passive law would, ideally, provide blanket equality for all and afford no additional protections to minority groups. On the face of it, this seems like a sensible approach, and perhaps it is. However, it inevitably means the end of 'protected groups' in anti-discrimination legislation, and the end of specific hate crimes, which are, after all, normal crimes motivated by prejudice against a minority group. Blanket equality would afford the same protections to men and women, white people and black people, and heterosexuals and homosexuals, and place the onus on policy-makers (i.e. those in government) to create policies that reduce inequality. 

Passive law would also require a shift in jurisprudence from a purely textualist approach to a more contextual approach, taking into account the modern society we live in when interpreting law. For example, excessive bail (prohibited by the 8th Amendment to the US Constitution) would mean a very different amount in 2020 than what it meant in 1791 when it was ratified. A passive approach to law would keep this 8th Amendment prohibition, but apply a modern context, and use this to root out inequality. A single black disabled woman is almost certain to earn less than a married white able-bodied man in both the US and the UK, and so the concept of 'excessive bail' would inevitably mean different things to each of them, and so by applying their different contexts, inequality is reduced by requiring more reasonable, and different, bail from each of them on their arrest. 

Through the use of passive law, the burden is placed on policymakers to root out inequalities and level the playing field. A government minister might invest more in low-income school districts, or use their office to promote minority voices. The fact that judges are unable to impose their own beliefs on their judgments, particularly in regards to statutory interpretation, means that the executive branch of government (the Prime Minister, President, and Cabinet) are uniquely situated to advance the interests of minority groups, so that when these people appear before a judge, they are able to be treated fairly, because the society in which they live is fair. We are all familiar with statistics of arrest disparities between different racial groups, but inequalities pervade far deeper in society than just in law enforcement. Black women are 39% more likely to die from breast cancer than white women, but by reducing inequalities in healthcare provision and requiring unconscious bias training of healthcare professionals, it is likely that this number will decrease in a way that would be impossible for the legal system to do, beyond relentlessly prosecuting doctors for negligence while ignoring the environmental factors that often lead to poorer health in minority groups, including poverty. 

There is, however, a problem with a passive model that focuses on policy rather than law reform: minorities are rarely the policy-makers. It is unlikely that, were the US Education Secretary a transgender individual, she would continue with her policies that reduce protections for transgender students. As I mentioned previously, it is naive to think that a white male knows the struggles of an Asian woman, even if he is supremely educated on racial issues, because he simply hasn't lived through them. Similarly, as a cisgender man, while I am educated on the issues facing the transgender community, I do not understand what their lives are like. As a result, I wouldn't be the most qualified person to make policies pertaining to transgender individuals. The answer is, of course, to seek guidance and amplify the voices we don't hear enough of, but this is, in a cruel circle, hard without creating policies in the first place which allow their voices to be heard. Every civil rights movement has been sparked by the breaking of discriminatory laws - from runaway slaves to the Stonewall protests - and therefore, a passive law may simply encourage a passive policy. 

In the modern day, however, most inequalities are not direct products of the law, but policy, and so it makes sense for the policymakers and not the legislators to address this. Hart writes how law enforcement is secondary to the law (after all, you cannot enforce a law without law in the first place), and therefore changes in the way law enforcement operates, from bans on racial profiling to defunding and divestment, do not require changes in the law, but rather in policy. Not only this, but it is a core tenet of the rule of law that the law applies to everyone equally, and therefore by granting special status to minority groups who need protection, the law actually is applying a different standard to different individuals, and thus breaking the rule of law. In fact, the mere passage of laws granting such 'special status' may be offensive in the first place, and ignore the crucial role that policy plays in the perpetuation of inequality. As asserted by the character Ainsley Hayes in the 'West Wing', the passage of the equal rights amendment doesn't just guarantee equality for women, but declares that they have never been equal in the first place. 

An active law

Active law would, as anti-discrimination and hate crime legislation does, identify minority groups that need additional protection, and afford them this protection in law. As the law does with children and the mentally ill, the law would acknowledge their less privileged position, and treat them accordingly, inevitably leading to ethical questions of 'If a poor minority steals bread to feed their family, does that still make it theft?'

Hart believes that the structure of law is necessarily "sovereign-subject", meaning a sovereign body (such as the UK Queen in Parliament, a dictator, or the US Congress) exerts authority over a subjective body (the people). This could be seen to read that the law must lead society, rather than follow, and push equality even if the majority of the people are not in favour of it. In this alternate universe, the US Supreme Court would have held same-sex marriage constitutional before 2010, when the majority of Americans were still opposed to the concept, not because it was popular but because it is the right thing to do. In fact, judges spend so much time convincing the readers of their decisions that they are apolitical, that they consign themselves to be followers, rather than the leaders that a sovereign-subject system would expect them to be. 

While new laws can be made, the question of antiquated laws, which I raised earlier, is still unanswered. Under an active law system, would the focus of the legislature be on repealing antiquated, unenforced discriminatory legislation, or would the focus be on making new laws to combat modern inequality? By repealing old laws, which aren't being enforced, the legislature would achieve three important things: (1) it would remove the power of law enforcement to decide which laws to enforce or not, and bring the default position back to 'enforce all laws on the books'; (2) it would reduce the risk of judges interpreting modern equality legislation in line with outdated discriminatory statutes; and (3) it would be a powerful symbolic move that discrimination is not tolerated in the modern law. However, beyond mitigating the risk of outdated statutory interpretation and affirming parliamentary sovereignty, some would argue convincingly that a better symbol would be to root out inequality in the present day, rather than repealing the wrongs of the past. It would be fair to assume a minority would appreciate the problems facing them to be solved today, rather than Parliament symbolically removing problems that faced their community many generations ago. Parliamentary time is extremely limited, and the legislative process cumbersome, and thus this is a question of priorities. 

Legislation dealing with issues such as anti-discrimination or hate crimes provide more of a legal backing to minority groups pursuing claims. If a colour-blind judge refused to believe in his personal life that a disabled person is discriminated against because of their disability, they would be required to take that discrimination into account when interpreting a case where a person was fired because they were disabled. The recent case of Bostock v Clayton County in the US saw the application of Title VII of the Civil Rights Act 1964 to hold that gay and transgender individuals couldn't be fired because of their sexual orientation or gender identity. The conservative Justice Gorsuch, in writing the majority opinion, held that it was because of the prohibition on sex discrimination in Title VII that this case was won - regardless of his own beliefs of the gay community, a ban on discrimination led to a leap forward in equality in real life, particularly under an anti-LGBTQ+ presidency which cannot be trusted to implement policy. Mounting a legal challenge is a daunting experience, but with the backing of the law, individuals are much more likely to do it and do it with confidence. Even if their case is won on different grounds (Bostock was decided on gender discrimination law, not LGBT discrimination law), the mere presence of laws affirming the specific equality of their community provides a powerful symbol to minority groups of their acceptance and empowerment. 

The presence of such minority-specific legislation would also put rights in much greater certainty. The frequent challenges to the case of Roe v Wade in the US is illustrative of the fervent anti-abortion sentiment prevalent in a vocal minority, but also of the comparatively weak legal backing abortion rights stand on. The 14th Amendment affirms the right to due process and equal protection, not the right for a woman to choose whether to obtain an abortion or not, and so the lack of specificity, common in the US Constitution, leads to uncertainty with how long abortions will be legal in the country, and every ruling upholding Roe v Wade is celebrated, rather than expected. The Equal Rights Amendment would likely place abortion rights on a much more sure footing, and give confidence and certainty to women across the country in a way that the 14th Amendment has failed to do. 

Any such legislation giving special treatment, however much deserved or needed, to minority groups runs the risk of leading to more discrimination against those minority groups. By singling out people who are disadvantaged, and providing them with advantages to level the playing field, members of the majority will always be upset. This can be seen with affirmative action, where greater consideration is given to people from minority groups in education and employment so that they are not disadvantaged because of their backgrounds. Minorities are much more likely to be living in poorer areas, with worse schools, weaker or no internet connection, a lack of technology, and less suitable housing. As a result of centuries of systemic discrimination, it is harder for minority individuals and families to accumulate wealth, buy property, and move to more affluent (read: whiter) neighbourhoods. While the main beneficiaries of education-based affirmative action policies in the US are white women, there are numerous reports of discrimination against ethnic minority students who are viewed by their white peers as 'less deserving' of their seat at the table, because they lack the accomplishments afforded to the white students as a result of their heritage and family wealth. 

The politicisation of affirmative action policies, however warranted, would lead to worse consequences from affirmative action laws. Even the faintest whiff of a judge acting politically provokes outrage from the opposing party, such as when the Daily Mail, a right-wing newspaper, referred to the UK Supreme Court as the "enemies of the people" for their ruling in Miller (No 1) which affirmed parliamentary sovereignty in cases of non-binding referendums. A similar scene can be viewed across the Atlantic, with fierce protests whenever a Supreme Court nominee is announced, including the uncomfortably partisan rancour surrounding the nomination of Trump-nominee Brett Kavanaugh, who blamed Hillary Clinton for accusations of sexual assault against him. The politicisation of the law, or any issue, leads to worse outcomes for all involved. When Trump politicised the wearing of masks, despite his Republican allies in the Senate taking a different approach, his base responded by refusing to wear masks, and protesting social distancing policies and state lockdowns that experts believed to be crucial to preventing the spread of COVID-19. This politicisation has led to thousands of deaths, as the US struggles to get the virus under control. During the US civil rights movement, the politicisation of racial equality led to lynchings and violence against black Americans, and there is no sign of this being any different under a legislative agenda for economic equality, for instance. Even where the cause is moral, there will be those who disagree with it, forcing the threat and obedience model of law to take over, but racism still pervades this approach for equality, as, according to Hart, "it is obvious that predictability of punishment is one important aspect of legal rules", but under systemically racist institutions, there is anything but predictability in punishments, with black individuals and other minorities facing consistently harsher penalties than their majority counterparts. 

Depending On Blindness

This post has sought to examine, in a sufficient level of detail, the frustrating problems the law is faced with when fixing institutional inequality. Both the threat and obedience-based model and the justice and morality-based model are ill-equipped to deal with the poisonous environment we find ourselves in today, and while the march for equality moves on, it can sometimes be difficult to see a satisfactory road out of our current situation. 

Minority individuals from all communities are forced to depend on the kindness of strangers, be they legislators or policymakers, and minorities, unlike anyone else, are also forced to depend on those strangers who are blind to their identity, whether they want them to be or not. When at a job interview with a majority individual who is telling their minority interviewee of their colour-blindness, the minority must just sit and wait, and hope that, in spite of their blindness, they see them for who they are, and acknowledge their accomplishments came not from their privilege, but in spite of their lack of it. The law faces a difficult task over the next few years in grappling with these important issues, and it is unlikely we will see anything like affirmative action statutes passed, but the onus is currently, and always must be to a large extent, on the policymakers and the politicians to not just promote equality, but deliver it. 

Click Here For The Audio Version Of This Blog

Thank you to all of you who volunteered to talk to me about this issue and allowing me to put your quotes in my blog post - it was my intention to examine as many sides of this as possible, and I hope I have done that. I am sorry if I couldn't include some of your opinions and comments, but I think the spread I have here helpfully illustrates the variety of viewpoints I received.

The opinions of this article are solely those of the author and are not intended to provide accurate legal advice for anyone to rely on. While the content is intended to be factually correct, the author does not accept any responsibility or liability arising from the use or misuse of this article or any loss/inconvenience/damage stemming from this. Legal advice should be sought from a qualified professional, not this blog. The opinions represented in this blog are personal and belong solely to the blog owner, and do not represent those of the people, institutions, or organisations that the owner may or may not be associated with in a professional or personal capacity, unless explicitly stated. The views expressed by any podcast guest are their own entirely, and do not necessarily reflect those of the blog owner. The blog owner is not responsible and liable for any discrepancy, if any. Any content provided by this blog or its companion podcast is not intended to malign any religion, ethnic group, club, organisation, company, individual, or anyone or anything.