When it comes to the central question of legal philosophy, academics are divided. Do we have an obligation to obey the law? Crimes are committed on a daily basis, some benignly, others maliciously, and yet we are faced with the same question of whether we have a duty to follow the rules that govern our society. Wolff argues we never have such an obligation - a legal anarchist - whereas Raz approaches this from the more transactional perspective: we have an obligation to obey the law when it helps us to do something we wanted to do anyway. Shelby, on the other hand, pays particular attention to the role of society in answering the question, and argues that our obligations are differentiated on the basis of how society treats us.
Shelby writes of the ghetto: an urban neighbourhood characterised by concentrated poverty, racial segregation, violence and crime, unemployment and numerous other social issues that cast our imagination to scenes not dissimilar to those in The Wire, where ethnic minorities turn to criminal acts, such as drug dealing or prostitution, in order to compensate for their lack of material and generational wealth. These neighbourhoods are also characterised by the systemic intertwining of these issues, from poor housing to unemployment to mass incarceration, and it is not enough for one of these elements to be present to label a community as a 'ghetto'. In the face of such deprivation and lack of opportunity, Shelby argues that what he calls the 'ghetto poor' - the inhabitants of such a neighbourhood - have no obligation to obey the law. He is not writing of whether it is wise for these people to break the law, indeed it may be more prudent for them to shy away from crime as much as possible, or whether it is appropriate for the laws to be enforced in these communities, but simply whether or not the ghetto poor have an obligation to obey the law.
This argument is premised on the concept of reciprocity: the only place that an obligation to obey the law could come from is the political value of reciprocity - what you give to society, you should get out of society, but when your society is seriously and systemically unjust, you don't have an obligation to give because you don't get. Crucially, Shelby draws the line at what he calls the 'social minimum' - a state that provides the constitutional essentials, such as social stability and a political process that leads to improvements, meets the social minimum and therefore you have an obligation to obey the law. This is not to say that social inequalities don't exist, but that there is an ordered and available process to remedy these inequalities. But a society which doesn't provide the constitutional essentials that guarantee a social minimum, for example, through disenfranchisement of voters, chronic underinvestment in communities, and a failure to provide minimum welfare benefits, doesn't create an obligation to follow the law in the oppressed people who live in the ghetto.
Shelby argues that in order for reciprocity to create an obligation to obey the law, "the [social] scheme should be organised so that it publicly conveys to each participant that his or her interests are just as important as any other participant's." This doesn't mean that in an unjust society no one has an obligation to obey the law, but that the ghetto poor don't have an obligation to obey the law, because reciprocity requires that everyone have an adequate opportunity to avoid demeaning forms of labour that don't provide any meaningful change of achieving their life goals which society encourages them to adopt, for example, becoming a doctor or lawyer. An adequate opportunity requires a meaningful chance, and the communities in which the ghetto poor exist, which have underfunded schools and low employment, don't provide their people with this meaningful chance, and Shelby focusses on the predominantly Black urban communities in the US to illustrate this.
The US is the wealthiest nation on the planet, and provides millions of individuals with the opportunity for a college education, the chance to make a good wage, and the other requirements for a reciprocal society, but it also contains some of the worst inequality in the developed world, and it is this inequality that Shelby uses to justify his belief that the ghetto poor in the US don't have an obligation to obey the law. Crucially, Shelby's focus on Black urban communities is limited to these communities; other minority and oppressed groups, such as the Black middle class or white transgender individuals, don't suffer the same lack of reciprocity as the ghetto poor, simply by virtue of their social conditions. The ghettos, Shelby argues, are a political choice as a result of politicians who wish to disenfranchise minority voters and maintain a white-supremacist hierarchy in the US, and it is this political choice, and perhaps even malice, that leads Shelby to suggest that the ghetto poor have no obligation to obey the laws that are being used specifically to victimise them.
Again, this is not to say that Shelby things the ghetto poor shouldn't obey the law - it might be prudent for them to do so to avoid incarceration or to enhance their chances of getting out of the ghetto - but simply that they don't have a civic duty to obey the law. A similar theme occurs in Shelby's discussion of natural duties, which are binding on everyone by virtue of our humanity - an example of a natural duty is the duty not to be cruel. The ghetto poor are obliged to follow these duties, but not out of the legal prohibitions on murder or violence, but simply because they are human.
Justice finds a different conception in the work of Angela Harris, who argues that justice requires finding a balance between 'I' and 'we'. She writes of Funes, who knows only particulars, and the preamble to the United States Constitution, which starts with the words 'we the people', condensing the lives of 300 million Americans to one homogenous group. Justice, for Harris, demands that the law acknowledges both the individual differences and the group commonalities that bind us together, and work not to silence others through an exclusionary 'I' that ignores all similarities, or an exclusionary 'we' that ignores all differences. Harris criticises feminist theories that place sex and gender as the essential characteristic - more important to an individual's identity than their race - which serves to exclude Black women by characterising them as "white women, only more so... By the time [essentialist theories have] finished elaborating, black women have completely vanished; remaining are only white women with an additional burden." Indeed, Harris singles out MacKinnon and West, the latter of which, "by suggesting that gender is more deeply embedded in self than race, West's theory privileges the experience of white people above all others." By denying individuals the chance to encapsulate all their identities in their 'self', essentialist theories deny justice to those individuals, and exclude them from the equal protection of the law.
Harris's theory embodies the wider problem that the law faces of excluding the concept of multiple consciousness or 'intersectionality' from its understanding of discrimination and oppression. While Shelby focusses more on socioeconomic deprivation, Harris, and other Black women theorists such as Kimberly Crenshaw, understand the failings of the law to take into account the intersection of two 'minority' characteristics, leaving Black women, among others, uniquely unprotected by the law, by virtue of their inability to isolate the cause of their disadvantage to either solely their race or their sex. By denying their intersectional identity, the law denies them justice.
By reforming the law so it applies equally to all, and by making political choices that enfranchise voters, invest in underfunded communities, and provide real equality of opportunity to the most deprived, the law is strengthened because it applies to everyone. As I wrote in the Black Lives Matter post last summer, it is only through the equal application of the law that there can be said to be good law, and only through good law can it be said we have law at all, and as Shelby writes: "the duty of justice ... requires each individual to support and comply with just institutions and, where just institutions do not exist, to help to bring them about." The onus is on each of us this Black History Month, and throughout the year, to bring about justice for all.
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Sources:
- Tommie Shelby, Dark Ghettos (Harvard University Press 2016)
- Angela Harris, 'Race and Essentialism in Feminist Theory' (1990) 42 Stanford Law Review 3
Informative and compelling
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