Negrophobia and Reasonable Racism. Jody David Armour
Чтение книги онлайн.
Читать онлайн книгу Negrophobia and Reasonable Racism - Jody David Armour страница 7
Название: Negrophobia and Reasonable Racism
Автор: Jody David Armour
Издательство: Ingram
Жанр: История
Серия: Critical America
isbn: 9780814707494
isbn:
Whether the reference group for determining what is typical is society at large (as in the case of the witch burnings) or some privileged subgroup within society (as in the case of the scientific community for purposes of expert testimony), our legal system tends to reward conformity and penalize nonconformity with the majority. Certainly the reasonableness standard, in its classic legal formulations (e.g., the “average man”), privileges the perspective of the majority. This approach to reasonableness might be equated to the problem of the Procrustean bed. In Greek mythology, Procrustes was a highwayman who waylaid unsuspecting travelers and dragged them to his lair, where he bound them to his bed. Although the abducted travelers came in many different sizes, Procrustes’ bed came in only one. If a hapless traveler proved too short for his host’s bed, Procrustes racked and stretched him into conformity; too long, Procrustes lopped of the offending extremities. In the end, the diversity of dimensions that the different travelers embodied was reduced to bland uniformity—a consummation devoutly sought by current proponents of Procrustean legislation that is fashioned to force the body politic to speak only one language, form only one kind of sexual union, worship only one god, and embrace only one worldview.
Procrustean beds abound in the law, but perhaps nowhere more than in the legal definition of reasonableness, which figures centrally in such areas as torts, contracts, criminal law, and criminal procedure. The legal definition of reasonableness is uniquely insidious in that it takes the merely typical and contingent and presents it as truth and morality, objectively construed. For example, according to legal usage, the “objective” standard of reasonableness encompasses those beliefs and attitudes that are shared by most people. In those limited instances in which a court instructs a jury to look at a situation from the standpoint of an actor’s atypical beliefs and attitudes, it is said to apply a “subjective” standard of reasonableness. Thus, a battered woman may believe that calling the police or attempting to separate from her batterer will only put her in greater danger. Accordingly, she may shoot him in his sleep. In judging the reasonableness of her belief, typical jurors may believe that calling the police or walking out would have prevented further harm. Some courts would characterize the jurors’ beliefs in this case as the “objectively” reasonable ones, while they would admit evidence of the battered woman’s atypical beliefs (especially expert testimony about those beliefs) only under the “subjective” test of reasonableness.
The problem with this approach is that the battered woman’s beliefs may be decidedly more rational and accurate than the jurors’. The beliefs of ordinary jurors about battering relationships are often based on inexperience and naiveté, or on ideological suppositions that women who remain in battering relationships masochistically enjoy being beaten, deserve to be beaten, or at least assume the risk of beatings. Saying that the wrongheaded beliefs of typical jurors meet the “objective” standard of reasonableness, while the atypical but accurate and rational beliefs of the battered woman are only relevant under a “subjective” standard of reasonableness, disparages the woman’s beliefs and wrenches all recognizable meaning from the term “objective.”
In the end, typical beliefs—in courts and in everyday life—still carry with them a presumption of accuracy. Accordingly, typical beliefs about the propensity of Blacks toward violence are deemed reasonable (i.e., accurate) insofar as we have no reason to doubt them. Often, however, a racially sensitive defender will not be claiming that his fearful reaction to Blacks is rational, but merely excusable. I therefore turn to the legal relation between the typical and the excusable.
Why We Blame Whom We Blame: The Typical, the Reasonable, and the Damnable
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 СКАЧАТЬ