Racial justice is never far from the headlines, but, although the ideals of the legal system such as fairness and equality seem allied to the struggle, campaigners have been all too often let down by the system.
In this episode Jess Miles and Bharat Malkani, author of Racial Justice and the Limits of the Law, talk through cases like those of the Colston Four and Shamima Begum, to explore this paradox and establish where change is possible.
Listen to the podcast here, or on your favourite podcast platform:
Scroll down for shownotes and transcript.
Racial Justice and the Limits of Law is available on the Bristol University Press website. Order here for £19.99.
Bharat Malkani is Reader in Law at Cardiff University. His research connects human rights with criminal justice, with a particular focus on racism, miscarriages of justice and the death penalty. Follow him on Twitter: @bharatmalkani.
SHOWNOTES
Timestamps:
01:11 – How does the Colston Four case illustrate the relationship, and the paradox, between racial justice and the law?
04:31 – How do six concepts from critical race theory explain the ways the law is limiting when it comes to racial justice?
36:43 – What is anti-racist lawyering and is it possible within the system?
42:16 – There are structural limits everywhere, not just in law. How does EDI relate to this and what should we think about?
46:40 – If we are concluding that the law is too limited to achieve racial justice, what is there to learn and where can change be made?
Transcript:
(Please note this transcript is autogenerated and may have minor inaccuracies.)
Jess Miles: Welcome to the Transforming Society podcast. My name is Jess Miles, and today I’m speaking to Bharat Malkani, reader in Law at Cardiff University. Bharat’s new book, Racial Justice and the Limits of the Law lays bare the tension between the legal system and the struggle for racial justice.
Racial justice is never far from the headlines. The Windrush scandal, the toppling of the statue of Edward Colston, Shamima Begum and racism within the police have all recently captured the public’s attention and generated legal action.
But although the ideals of the legal system such as fairness and equality seem allied to the struggle, campaigners have been all too often let down by the system. The book is both a lawyer’s guide to anti-racism and an anti-racist’s guide to the law, bringing together these different perspectives to help both groups understand how to use the law to tackle racial injustice.
Welcome Bharat…
Bharat Malkani: Thanks. Thanks for having me.
JM: Absolute pleasure. It’s a really fantastic, interesting book. And I think the relevance probably extends well beyond the law as well. But. Well, we’ll get onto that. So you start the book with the coast and fall case. And as we are Bristol publisher, it felt like this was a fitting place for us to start here. How does this case illustrate the relationship and the paradox between racial justice and the law?
BM: So for those who don’t remember back in the summer of 2020, there’s a process in Bristol against racial injustices. And during this protest, several people tear down a statue of Edward Colston. Colston had been revered in Bristol by some people because of his philanthropy in the city back in the 1600s. But he had also been despised by many people because of his role in the trade of enslaved African people.
And despite some calls to have the statue taken down, the council resisted those calls. And so protesters took matters into their own hands. And this caused some controversy, to put it mildly. Some people celebrated the removal of the statue. Others saw it as an act of vandalism. Now, for reasons that aren’t entirely clear, only four people are prosecuted for criminal damage.
Right. And so regardless of whether you approve or disapprove of their actions, one thing is absolutely clear the legal system is being used against those taking a stand for racial justice. What I found really interesting, though, was how this was all eventually turned on its head. The defence lawyers were really creative and bold. So the law allows a person to commit criminal damage in certain circumstances, such as to prevent a more serious crime from occurring.
So to take an example, I could break down the door to a house if I’m trying to rescue people inside from an intruder, for example. And the Colston Four’s lawyers argued that the presence of the statue constituted a criminal offense because it was causing distress to people, black people, who had to walk past the statue of a person who was responsible for the enslavement and horrible mistreatment of their ancestors.
Right. So in other words, the struggle against racism provided Colston full with a legal defence for their actions and the jury acquitted the defendants. We don’t know for sure why that jury acquitted the Colston Four. They don’t have to give their reasons, but we can assume that they agreed with the their arguments. Otherwise they would have convicted them because there was no doubt about them actually bringing down the statue that wasn’t in question at all.They fully admitted to that. They just said they had good reasons for doing so, and the jury agreed with those reasons. So in other words, the legal process ended up furthering the cause of racial justice as the Colston Four were deemed to have acted lawfully. Right. These jurors said that under law, the fight against racism trumps the law, against criminal damage and so this is the paradox, isn’t it?
Law can be used about sustained racial injustices. It can be used against those taking up the cause of racial justice, but it can also be used to tackle racial injustices. Like, it wasn’t this case. And so that’s what I found interesting. That’s what I thought really exemplified this idea of the paradoxical relationship with racial justice. And there are loads of other cases which I sort of pepper the book with throughout this.
There’s lots of cases of those paradox of relationship with racial injustice. But, you know, I live in Bristol and this is a case that so of really spoke to me. And I know it spoke to a lot of people. It was very, very public at the time. I think it’s one of the ones that is most widely known.
So, yeah, it seemed like a good place to start the book.
JM: So in that particular case, the law did advance the struggle for racial justice. But it feels like more often than not, that doesn’t happen. And actually the law tends to limit the struggle. And I found it really helpful in the book because you use six concepts from critical race theory to kind of explain the specific ways in which the law is limiting when it comes to racial justice.
So please, could you talk us through these kind of six points as a phrase, as a framework for understanding?
BM: Yeah, sure. Critical race theory has come under a lot of criticism itself in recent years, mainly from politicians. But I find that it’s a really helpful way of just thinking about racism, right? It’s a way of understanding how racism works in any given society. So I think the first point that I made, the first rough idea of critical race theory is probably at the heart of critical race theory is this idea of structural racism.
So critical race theory, it’s the name is given by American scholars in the 1980s. But actually the ideas behind it were being written about by British scholars in the sixties, seventies. It was just the name was given to it by by American scholars in the 1970s and eighties. And it’s just this idea of understanding how racism is more structural than just something that is interpersonal.
So what happened in America in the 1960s? You have lots of advances in law in favour of racial justice, right? You have the Civil Rights Act, you have lots of laws being passed to help minoritized people and racialized people to give them legal protections. And that’s seen as a big win. That civil rights era. Lots of decisions of the US Supreme Court’s Brown versus Board of Education, where the Supreme Court says that you can’t have racially segregated schools, everyone is equal under the law, everyone is equal access to schools.
So it looks like a lot of the law that is being used to really further the cause of racial justice. Fast forward to the 1980s and there’s still problems, still huge problems with racial discrimination, particularly in the criminal justice system, where black people in America in particular are hugely overrepresented in criminal justice system. So these scholars started asking why if we’ve got the law on our side, why, why is this happening?
And they come up with various explanations and some case in in England and Wales, you know, we have the 1965, we have the Race Relations Act. We have more race relations acts later on in the sixties and 1970s and 1980s and nineties. People start asking why we’ve got these laws to protect against racial discrimination. Why is it still happening?
And the first idea of critical race theory, like I said, is this idea of structural racism. I think for most people when they think of racism, they think of the sort of interpersonal acts of racism. So the employer who obviously discriminates against a black or brown skinned person. Right. Or someone who shouts explicitly racist abuse at a person in the streets.
JM: Yeah, that’s clearly racism.
BM: And all these relates to Race Relations Act in the UK, Civil Rights acts in America. A lot of these laws were developed to tackle that.
JM: Yes.
BM: And so here in England, Wales we have a whole host of laws that criminalize acts of racial hatred. So it looks like the law is on our side, if you like, one on the side of racial justice. But what critical race theory does is it teaches us that these sort of interpersonal acts of racism are better understood as manifestations or symptoms of structural racism.
And I think once we get to grips with this, we see that there are limits and laws, capability to tackle structural racism. It might tackle the symptoms of structural racism and might put a person in prison for an act of racial hatred. But it never tackles the underlying cause, which is structural racism.
JM: Yeah.
BM: I think it’s helpful to use an analogy to explain this. I didn’t actually use this analogy in my book, and maybe with hindsight I should have. But think of a house, right? And you might think of a particular room in that house, like living room with all its furnishings, the sofa, the curtains, the wallpaper, that sort of things.
That’s like interpersonal racism. It’s the stuff that you can see. It’s the stuff that’s really easy to tackle. If there’s a problem, if there’s a stain on a cushion, you can clean it. If the table breaks, you can repair it, you can replace it. If a person racially abused a person, you can arrest them, you can put them on trial, you can punish them.
Yeah, right. So this stuff, you can see the stuff that that is relatively easy to tackle. But there’s more to a house than just the soft furnishings in a room, right? There’s the structure to the house, to foundations, to bricks and mortar, the stuff that you can’t really see. But it’s fundamental to keeping that house upright.
And the same with society, right? There are structures in society that are fundamental to keep society functioning, keep society moving, but it’s stuff that you can’t always see in the background. And likewise, structural racism is the sort of things that it’s the argument that racism is actually central to the functioning of society in the same way that the foundation is central to a house.
Yeah, right. But you can’t always see it. Yeah, right. So it’s not the visible act of overt racism, but it’s the processes and the cultures that reinforce racial stereotypes and disadvantages.
JM: Yeah, the framework that everything’s within, isn’t it?
BM: Yeah, exactly. Yeah, it’s. It’s like the systems, the health system, the criminal justice system, the education system. These are like the gas pipes in the house or the water pipes that run through the house. The stuff that you can’t see kind of keeps it all functioning.
Right. And you can stretch this analogy a bit further. You know, both of them are really difficult to tackle tackling subsidence. So damp is a lot more difficult than tackling a stained cushion or broken table, for example. And likewise, tackling structural racism is a lot more difficult than tackling interpersonal acts of racism. That’s not always that identifiable person.
You can be sued or prosecuted or whatever. And so that’s where I think the idea of structural racism becomes really helpful in understanding the limits of law in tackling racial injustices. Law really struggles to tackle these sort of unseen problems, these sort of procedural problems, cultural problems that are aligned with structural racism. The second idea is this idea of race as a social construct.
So when we look at the history of racism, we see attempts to argue that race is a biological matter and that we are by people of different skin colours are biologically different to each other, and that these differences matter. So scientific arguments, this is particular in the colonial era where countries are trying to justify colonizing places in Africa and other places and Asia and they say, well, scientifically speaking, we can prove that darker skinned people are less intelligent, they’re physically more unattractive and and that sort of stuff.
And so that justifies the use of law to separate the races that people with dark skin are separate, subject to one set of legal processes as legal norms. People with lighter skin enjoy more favourable legal rights and privileges. And so because black people are morally and intellectually black words and then commits inverted commas, they can lawfully be enslaved.
JM: Yeah, right.
BM: It’s a lot more nuanced than that, obviously. But that, you know, white skinned people like Jewish people and people are full of Gypsy Roma for the heritage have suffered horrendous racism through to for centuries. But that’s broadly speaking what happens and critical race theory really debunk this. They point out that actually there are no scientific justifications for racism.
Yes, we have different skin colours, but it’s the same as different colour dyes. There’s just no value to attach to these differences.
So if there’s no value to attach that’s to these differences, then there’s no reason or justification for differential legal treatment. I think that’s important because if we can show that the justification for differential legal treatment has been premised on this fallacy, then that might pave the way too, for tackling racism within the legal system.
The legal system has a long history of being used to reinforce racism throughout the colonial era. Racist. The legal system is used to justify enslavement. It’s used to justify the suppression of those who oppose colonialism. Write really brutal treatment of colonized people. The law is used to deprive colonized people of the land of their property rights, for example, and that is all premised on this fallacy that dark skinned people are inferior.
If we debunk that, that’s belief, that fallacy, then that shows that the whole premise of laws racism is is unfounded.
JM: Yeah, and I suppose even though we may not have as obvious laws about those things now, the laws we are governed by hundred hundreds of years old on the in some cases. So that historical bit really does still have a lot of power.
BM: It does. And I want examples like if in my book is comparisons between the Criminal Tribes Act of 1871 in India, British ruled India and today’s laws on tackling gangs rights, gangs and inverted commas.
Criminal tribes act. So you have a lot of opposition to colonial rule in British India. And so the colonial administrators there starts deploying scientific arguments that certain Indian tribes, these nomadic tribes, that they are inherently criminal.
JM: Right? Yes.
BM: Studies, scientific studies are showing that these nomadic tribes are biologically prone to being criminal. And so that justifies greater monitoring of those tribes, greater use of surveillance powers. And if they do break law, that punish to a much greater extent. All right. And those databases, British, were brilliant at keeping records during colonial rule. They create these databases, and anyone who’s born into these nomadic tribes has to be registered with the authorities.
And that person is assumed to be a criminal because they’re sort of born into this criminal tribe, in inverted commas.
JM: Yeah. Wow. So not much has changed at all.
BM: Not much has changed when we look at how we tackle so-called gang violence, not violence, youth violence, tons and tons of studies to show that black young black men in particular are overrepresented in the criminal justice system in relation to so-called gang violence. We had met some matrix database where people were kept on a database and monitored, and many, many of those had never been convicted of criminal offense at all, not even suspected of a criminal offence.
They might have just known someone who had been a suspect in a criminal offence, and that’s it. They were on a database, something like 80% of people on a database and perhaps even more were black. Joint enterprise. This law that we currently use where, you know, if a group of people have been involved in a criminal offence and committed a criminal offence, prosecutors don’t have to prove who actually pulled the trigger or stopped a person or whatever.
They can just have to show that this whole group of people were loosely involved and all of them are punished to the same extent.
JM: Right? Yeah.
BM: And you’ve got people who weren’t even physically present at the scene of crime. They might have just stopped a text message with someone in the hours before and had nothing to do with the crime at all. The text message could have been something completely different, but they were associated with that person now.
JM: And so they can be given the same.
BM: They can be given the same punishment. Yeah, they can be prosecuted. You know, so obviously prosecutors have to prove that there was a connection. But you can see whether the undetected there racialized undertones of this come into it.
JM: Yes.
BM: And again, lots of studies that show black people being hugely overrepresented when it comes to joint enterprise prosecutions.
There’s very little difference in substance, really between monitoring surveillance and punishment of criminal tribes in British India, the monitoring surveillance and punishments of young black youth, so young black kids of black youth. And then what else do you see?
JM: And it stems from that structural racism.
BM: So yeah, the law today on the database and joint enterprise might not have anything about saying that black people are inherently criminal. But the idea is that came from the Indian Criminal Tribes Act, which did explicitly say brown skinned people are inherently criminal. The values, the culture, those beliefs and assumptions have sort of infiltrated today’s legal order. You know, they’ve they’ve trickled down over the years, over centuries.
People believe that sort of stuff. And it informs that way of acting.
JM: And yeah, even though the words in the law aren’t necessarily the same, it’s structural racism that allows people to apply in the same way, isn’t it, because it’s kind of acceptable to do so. Yeah, yeah, yeah. Other things from critical race theory…
BM: So yeah, as intersectionality I think is a very, very key point. And um, and this is why I think the current legal system is really, really inadequate in England and Wales. Racism isn’t the only ism, if you like, that’s a problem in society right there. Sexism, ageism. 8 billion people are vulnerable to attacks on all sorts of grounds gender, sexuality, religious beliefs, so on.
Law recognizes that right. The Equality Act prohibits discrimination on the basis of nine different protected characteristics racism being just one of them, but it’s sort of siloed them off from each other. And activist scholars, again, British scholars probably predated the American counterparts in identifying this. They just never put the name Intersectionality is Claudia Jones talks about this in the early 1900s.
Kimberlé Crenshaw In America comes up with the name intersectionality 1980s in America. Sociologists have really helpfully explained how people suffer different types of disadvantages in society on the basis of a combination of these characteristics. So black women will face different sorts of abuse to a black man, for example. Yeah, right. It’s this idea that, you know, people aren’t only only persecuted or vulnerable to attacks because of their race, but also their sex, their gender, their age, that disability, their religious beliefs and so on.
Okay. But the really important thing, I’ll just point out, is that you can’t separate these these personal characteristics from each other. Right? So it’s a bit like it’s again, to take another analogy that some that I use in the book, I can’t remember who I credit this to, but it’s some it’s not scholar who comes up with this idea of, of baking a cake.
It’s like all the different ingedients. You bake a cake. Once you bake the cake, you can’t separate out the ingredients. And a human being is like that, right? They can be brown, male or young, disabled. You can’t once you put them together, that’s the person. You can’t separate these things out from that person.
JM: Yeah, right. So I’m guessing you just can’t talk about. Yeah, the law can’t separate them out. No, no. It does separate them out. Separated by the choice to separate them.
BM: So we have cases where a black woman says she has been discriminated on the basis of her skin color and her right and her gender.
JM: Yes.
BM: She’s been discovered because she is a black woman. And the law… the law, the court says, well, we have to look at the racial discrimination separately and then the sex discrimination separately. And there should be evidence for both.
She’s not black and a woman. She’s a black woman. And that’s what you should look at.
The famous case of Shamima Begum. At the moment ongoing cases that that I’m sure a lot of listeners will have heard of. 15 year old girl Muslim girl who is travels to Syria but we know now she was trafficked she was duped into joining ISIS.
She’s taken over and she’s found in a refugee camp four years later. And, you know, she she doesn’t regret joining ISIS, but she wants to come back to England because she realizes that that this is no way to live. And she’s vilified by the British press, she’s vilified by the British political establishment. It’s very interesting because when you look at the news, when she left at 15, when she was 15 years old, you know, there were concerns for her welfare.
There were lots. I think Nicky Morgan, education secretary said, you know, we were hopeful her and her friends who she’d gone with, returned home safely. And there was there was concern that these 15 year old girls had been duped into joining ISIS. Four years later, she’s vilified as a monster. Yeah. And as a the home secretary response to this, Sajid Javid at the time revoked two British citizens citizenship.
And that’s really major.
JM: Yes.
BM: If you think about the right to citizenship is one of the most fundamental rights because in a political community it’s that right that allows you to implement your right and legal rights. It’s the right to have rights. Hunter famously said that the right to citizenship is the right to have rights. Yeah, the US Supreme Court has outlawed the deprivation of citizenship because of how severe it is.
So the Home Secretary has to say that we can deprive our of citizenship because she’s a threat to national security. But recognition that this is a really serious measure. The law says that you can only do that if that person isn’t left stateless.
JM: But she has been left stateless. This hasn’t changed.
BM: In practice, but on paper because her parents are from Bangladesh. So she could she could have got Bangladeshi citizenship. Bangladesh, remember, came out and said, no, we will not give her citizenship. She’s been a member of ISIS. So it’s it’s a right on paper only really as a practical effect. But the point here is, is that the case really highlights the issue of racism here, because you’re effectively saying that only those with due dual citizenship can be deprived of British citizenship.
JM: Yes, that’s true. It can only be applied to some people.
BM: Some people. So if you’re white, British, you’re relatively unlikely to accept dual citizenship. If you’re brown, like myself, you probably do have access to dual citizenship. I don’t know. I you have a British passport, but, you know, I probably could apply for an Indian passport on the basis of my parental lineage.
JM: Okay.
BM: And so I’m more vulnerable to being deprived of my citizenship than someone who has lived in that dead life to me in the UK. I was born and brought up in England. Whilst in England know someone white British person can have lived there identical life to me. But they will not have their citizenship deprived.
JM: There were quite a few moments in your book that made me think differently in that way. So obviously I’d become familiar with the Shamima Begum case. I thought about her citizenship at all, but I hadn’t really thought that that law could only be applied to some people. And also with Shamima Begum as well. It’s this focus on race and I got more into intersectionality bit, but she’s we’ve forgotten all the other aspects about who she is.
BM: Yes, she is a girl, she is Muslim and, and these issues come into play as well.
I think, one of the reasons why she’s vilified so much is she doesn’t sort of that she kind of goes against the stereotype of that, in inverted commas, demure Muslim wife, you know.
You know, and so so all those factors come into play her age as well. Yeah. It’s really vital to this, you know.
JM: Well and the dreadful, dreadful experiences she’s had as well. And there’s just we’re so focused on this one particular legal bit. Yeah. All of that goes by is so easy to discount somehow. The others. Yeah.
BM: Absolutely. And so she’s just to children what she was up to for children dying of malnutrition, you know and there’s there are some sections who just see that as a reason that she’s a bad mother. And so there’s the sexism that comes into play, you know, so hers is a really tragic case of how racial injustice plays out in practice.
And the home secretary just would not see this, just saw her as a monster. Actually, one of the reasons why she’s been portrayed as a monster is because she’s been attacked at all these different angles. She’s not acting as a woman should, as a Brown skinned Muslim woman should as a young person should know better.
JM: Yeah. And here the legal system has actually prevented her from getting any kind of justice. But racial. Racial justice. Yeah. Yeah, exactly. Yeah.
BM: So, yeah, so I think, you know, that’s for all those reasons, it’s low. The issue of intersectionality really highlights the limits of the law. Yes. In a whole string of cases.
JM: Yeah. So we have structural racism, social construct, intersectionality also.
BM: Yeah. I think the fourth, the concept of critical race theory that I think is really interesting for explaining laws relationship with racial justice is this idea of interest convergence. This is an idea put forward by another American scholar called Derek Bell. And he basically looks he asks himself, remember I said at the beginning one of the sort of starting points of critical race theory as well as, well, if we’ve got all these sort of successes in the legal system, these arcs, these laws being passed, these decisions of the US Supreme Court, how do we explain them when there is so much racism in society?
If we’ve got so many examples of law facilitating racial injustices, how do we explain those occasions when the law seems to be on the side of racial justice?
JM: How do we explain that?
BM: And so terrible comes up with this idea of interest convergence, which, as the name suggests, is when the interests of different racial groups converge. And so a decision or legal act in favor of ethnic minorities doesn’t threaten the interests of the dominant racial group.
So something happens that means that actually it’s it doesn’t threaten or it’s actually in the interests of the dominant racial group for this decision to be in favour of racial justice. So to use a British example, take Stephen Lawrence’s murder in 1993.
Very famous case here in England and Wales, obviously. And in the aftermath of his murder, politicians really make this an issue and pass a lot of laws criminalizing acts of racial hatred to make it easier to prosecute people who actually have committed acts of racial hatred.
Why is this just because law makers suddenly had a concern for the welfare of black people in the aftermath of a murder? Or is it because the Daily Mail had taken up this cause? And so politicians knew that they had the support of the Daily Mail’s readership. And so, you know, it was in their interests to take action because they would they would secure the support.
Well, they would they had the support of the Daily Mail’s readership. Think back when the Race Relations Act was passed in 1965, this groundbreaking measure in English law that says racial discrimination is outlawed, it’s limited in its scope, but at the time it’s really groundbreaking. The first time a law piece of the law in England, in mainland England outlawed discrimination.
There had been some in the these earlier, but this was the first time on mainland England. Why is that all of a sudden concerned with the rights of brown and black skinned people?
JM: No.
BM: No. Because when we look at the historical context, we see at the same time that the Race Relations Act has been passed, there’s a whole host of immigration measures that are wholly contrary to the rights of black and brown skinned people. The whole load of immigration measures that are saying to black and brown skinned people who are not welcome in England and Wales.
So what you have here is this this trade off, this kind of like we’re going to make it really hard for you to come to work in Wales, but when you do come here, we’ll give you certain rights, right? But the white British majority were able to swallow the Race Relations Act because they knew that these people were being blocked from coming in to England and Wales in the first place, or from too Great Britain in the first place.
JM: Wow.
BM: So that interest weren’t threatened by the Race Relations Act?
Debates in Parliament make it clear that it was that latter. You know, they say, well, look, we’re going to allow some black and brown skinned people into the country and to manage race relations will will enact these race relations Act to just balance out the interests of them with the white British majority who are worried.
So this idea of interest convergence is this idea that legal progress would only be made when making progress doesn’t really threaten the issue of structural racism. For example.
JM: Yeah. So it’s important not to look at laws in isolation, but look at everything else that’s happening. Everything that’s happening at the same time. Yeah, yeah, yeah, exactly. Yeah. You know.
BM: So again, this goes back to that issue of structuralism. It’s very easy to put of outright racist in prison because that doesn’t really threaten the interests of the white British majority because structural racism isn’t being tackled.
So yeah, so, so that’s the idea of interest convergence. The fifth concept is the idea of lift theory, which I think is really important for centuries in some cases of slavery through to the present day, we often find that in cases involving racialized people, their voices just aren’t heard.
JM: Okay. All right.
BM: So during cases on slavery and slave people were characterized as property for the purpose of legal action. And their voices just weren’t they weren’t even considered to be human beings.
And you have the famous case of Somerset and Stewart, where for yes, people thought that the case outlawed slavery in the British Isles. It didn’t at all. You know, it was just a very narrow ruling. And the judge in that case, Lord Mansfield, there are biographies written about him and what he meant in his ruling, and scores of academic articles poring over what his judgment meant, that.
JM: When you said if you say what the case of Somerset and Stewart is.
BM: Yes, sure. So so Somerset and Stewart and back in the 1700s and a slave owner travels to England from Jamaica, brings his enslaved person with them, James Somerset. And he escapes captivity. He’s recaptured, put on a boat bound for Jamaica. But this comes four comes to the attention of abolitionists like Cranford. So they they invoke a law that is actually meant for people accused of crimes.
The habeas corpus act saying that anybody who is detained, physically detained, has a right to have their case heard before the courts. It can’t be arbitrary. That has to be a legal justification for it. And they argue that this applies to people who are enslaved as well. So this person is shackled to a ship being bound for Jamaica.
He has a right to have to represent his his arguments in court. His owner has to present legal justification for for shackling him.
JM: All right.
BM: And Lord Mansfield rules very begrudgingly that, you know, this particular person, there’s no legal justification for keeping this particular person shackled to a ship.
It doesn’t outlaw slavery, doesn’t say anything about slavery, per se. It’s just in this particular case, there is no legal justification for shackling him. But the cause is celebrated abolition. To see this as a victory, you know, it’s presented as a victory because the slave is set free. This enslaved person rather set free. Granville Sharpe, one of the abolitionist who sort of really leads on this case.
You know, there are biographies about him. There’s nothing that we know about James Somerset. There’s nothing about the actual enslaved person whose bravery in escaping slavery had really won the case.
You know, it was not for him really taking the risk. He’s putting his life on the line by escaping slavery. Yeah, there’s no there’s nothing about no, you know, no written word about him at all. It’s it’s the judges in the case who are celebrated or the abolitionists, the whites, abolitionists to a celebrated.
And so, you know, we have that from centuries ago where we had the black people are at the heart of the case. Their voices aren’t listened to.
JM: Do you think that still happens now?
BM: So 2015 there’s a case is back in 2015 where as recently as 2015 that’s the case that the UK Supreme Court to deal with stop and search powers of the place totally different contexts slavery.
JM: Right.
BM: But we have here a person arguing that she was stopped and searched on the basis of her rights, that stop and search powers are racially discriminatory.
And there’s lots and lots of statistics to prove this, but the court ultimately disagrees with her and says, you know, that although the statistics are that there’s nothing in this particular case to show that she was stopped on the basis of being black.
JM: Okay.
BM: And the court actually says quite explicitly that stop and search powers are beneficial for black communities because it is young black people who are more likely to be victims of knife crime. Right. That’s that’s what the court says. Lady Hale says that’s actually stop and search powers are beneficial for black communities because it’s black people who are more likely to be the victims of knife crime.
And so we need these stop and search powers to protect them.
JM: Wow.
BM: But there is no support for this argument at all. There’s no reference to any person saying that’s yet or anything like that. And when you actually look at what black communities think, when you listen to black to black people about what they think about stop and search powers, knife crime, yeah, there’s so much evidence to show that they would prefer a public health approach to tackling knife crime, not a criminal justice approach, because in their eyes, criminal justice approaches.
There’s just such a lack of trust between black communities and police officers. That criminal justice approach is bound to fail.
A public health approach, more public education approach about the dangers that would be preferable. Okay, So again, what the UK Supreme Court did is it just flat out ignored the voices of black communities?
We know what’s best for you. Stop and search powers are best for you.
JM: So is there is now is an ignoring though isn’t it is being totally comfortable with speaking for whole communities Yeah. Without even thinking about it I mean exactly whether or not the judge thought about it, but it is like these kind of sweeping statements said on behalf of people without possibly even having had conversations with them. It’s Yeah.
And then that goes back to the structural racism as well. Everything comes back to the structural racism because that’s why somehow, yeah, somehow that happens and that’s okay. And we don’t question it because it’s all so embedded, isn’t it?
BM: And that goes to the sixth point I make critical race theory, which is actually law as a process, as a system. Given all those points, I don’t think the law can ever really tackle racial justice adequately or effectively. And because, you know, many legal process, not all, but many are really adversarial in nature, but racial justice requires it requires conversation and a dialog.
There’s a lot in the book about the past isn’t that requires that we’re teaching and learning about the historical reasons for contemporary issues of racism to Britain’s colonial era and the racial injustice, the path it requires. So empathy and understanding people really understand life theory, really understanding someone else’s point of view.
At present our processes, though, tend to involve argumentation and denial, pitting one side against the other, you know, rather than working jointly towards a shared understanding of nature. So the very nature of how we, how we do law. Yeah. Makes it is going to make it impossible as well.
So what I try and show in the book is how these six concepts have reached their head time and time again. Like I said, from the days of slavery right through to the present day, 1500, right through to present day. Yeah. And these six issues go a long way to explain why law has its limits in the struggle for racial justice, because it can’t tackle structural racism.
It’s been it’s been part of the process of biological racism, if you like scientific racism. It’s constructed. The idea of racism, historic hate, can’t tackle intersectionality say no. And, you know, it silences the voices of victims of racism. I thought at the time.
JM: Yeah, gosh, that’s really scary and disheartening and worrying, isn’t it, that the fundamental structure makes it impossible to do anything about racial injustice? Having said that, you talk a bit in the book about anti-racist lawyering. Yes. I think it’s something that’s possibly a bit controversial, but I wanted to ask you a little bit about that. And I suppose given everything else, whether it’s actually possible?
BM: I think that’s yeah, you’re right. There was part of me that I just I didn’t want to end the book, a really depressing note, basically. And I thought, I can’t I can’t give up. You know, I’ve been studying law for decades now, and I just it’s it’s what I do. I didn’t want to come to this realization that actually law is futile or anything like that.
I thought there is there is there have been cases where legal action has been really successful, like the Colston Four case.
And so I was trying to develop this approach to lawyering that is cognizance of these six concepts of critical race theory, really, it takes into account those complex with the struggle for racial justice. So it’s it’s an approach that recognizes those limits but seeks to make the most of these limits just pushes the limits as far as it can.
And so I come up with these sort of four principles, doctrine cap that sort of address those six concepts of of critical race theory.
And so the first is this really speaks to the idea of structural racism. And I argue that an anti-racist lawyer is someone who constantly reflects on their own biases and prejudices and the ways in which the legal system might entrench racial injustice. Right?
Because structural racism is so insidious, invidious that we might not always see in ourselves, Right? We might not understand. When our own actions reinforce structural racism, a lawyer might not understand how legal processes have been informed by centuries worth of racism. So it’s this idea that if you’re going to be anti-racist, you have to be you have to always reflect on your own, your position, your position as a lawyer, your actions, your assumptions.
And then I think the second principle is that idea of creativity. And this kind of speaks to the limits of the law of race. Law has its limits, but it is also flexible. And the concern for cases, a good idea of that is that there’s nothing in the statutes that says the fight for racial justice is a defence to criminal justice, criminal damage explicitly not right.
It just says that, you know, if you’re trying to prevent a more serious crime from occurring and the defence rules were really creative in how they weave the issue of racial justice into the language of that statute. Yeah, right. It said that the struggle for racial justice in this case was a defence to the crime of having this statute statue rather on public display.
JM: Yeah, it’s incredibly smart. Yeah. Yeah.
BM: So it’s that creative law. And then the third is this idea of collaboration. This idea again, of the limits of law. You know, if those … are going to provide a partial solution to any particular issue, if a kid has been discriminated at school on the basis of color, then, you know, they might win their case, but they need help getting back into the educational system, don’t they?
They might not want to go back to that school if their school teachers been discriminating against them. We’ve seen that as I state some examples in the book where this has happened. So maybe Detroit needs to get in touch with an educational specialist to try and get this child’s back into the system, to try to get them to trust teachers Again, know if you’ve been discriminated at work, if you’ve been sacked on the basis of your race or denied promotion on the basis of your race, it’s all very well to win your case.
An employment tribunal. Great. But are you really going to be able to go back to that workplace?
JM: What happens next…
BM: Probably not exactly. You know, you’re not going to trust, so you might want to work somewhere else, but you’re going to be psychologically scarred. So do you need therapy? Do you need an employment agency to help you get back into the workplace? Who has specialist knowledge of of people who’ve been discriminated at work?
That’s really important for lawyers to really recognize that they are not the be all and end all of they’re not going to cure the problem just by winning that. They need to work with other specialists to help that person. And then the fourth is this idea of accountability. And that speaks to the issue of lift theory, this idea that, you know, lawyers are the professionals. They’re the ones with legal skills. Sure. But it’s the person who has suffered racism, who has expert knowledge of what has happened, really.
They’re the ones who are at the heart of the case. And so they have to be listened to constantly.
And like you said, you know, I think there are a lot of people who have rights who think, no, it’s not. That’s that’s totally wrong. As lawyers, these lawyers, they shouldn’t be anti-racist or anything like this. They that they just have to apply the law, right? You know, the law fears and favours nobody. It applies equally to all. If a racist and outright racist person wants to invoke their legal rights, the lawyer is bound to defend them because even they have legal rights.
That might seem antithetical to anti-racist law and because, you know, if you’re defending a known racist, then you’re not exactly promoting anti-racism. I, I accept that that professional ethics duties come first. And yes, even racists have legal rights. Of course they do. You know, everybody has legal rights. But I just think that anti-racist lawyer is this idea of just having that mindset when you’re writing off, always bearing in mind your personal professional prejudices, the way the system works and having your your client at the heart of the case, but recognizing the limits of law, just being as creative as you can be.
So yeah, I think anti-racist law is possible, just if you accept that it has its limitations.
JM: Yeah, I mean, if you acknowledge that there’s it’s the system and the process that can make racial justice worse, you have to provide some balance to that, don’t you? So it’s not just about being anti-racist, it’s about doing things that create more of a balance, I suppose, as well. Those ideas of light, reflection, creativity, collaboration and accountability. I think are really interesting and important because it enables us, those of us who are involved in the law, to kind of think about what we do and how we can apply these ideas to the structures and processes that we work in.
And I had something that I wanted to ask you about equity, diversity and inclusion work following in your work, because we try and do that kind of thing at Bristol and I’m involved in a bit of that. And it’s that it’s the kind of thing that I listen others might be involved in too. And I found your discussion and there’s just one book in the book where you talk about the language of it.
And I found it really interesting, especially around the terms equality, equity, diversity and inclusion and how they’re actually problematic. And it made me think about how there are structural limits in place everywhere, not just in the law, like probably in every organization that we’re in. These are up here somehow. I just wondered if you could say something quickly about that.
BM: I think, like you said, everyone would have had equality, diversity, inclusion. Practically all workplaces and organizations speak of their commitment to those terms, but I think the problems with these terms is that they they’re well intentioned, but they inadvertently maintain this trend, the status quo. Right?
So you can take each of those terms in turn if you like to take equality. Well, equality implies that everyone has the same starting position and they should be treated equally right? That they’re on a level playing field, treat everyone as they did on a level playing field. But that that doesn’t reflect social reality.
People have very different starting points in life on the basis of all their different isms, like I said, of that gender, their class and their race.
JM: Yeah, yeah. Right. Yeah.
BM: And so it’s this idea that, you know, some people will need to need a bit of help get into an equal position with those who’ve had a more advantageous start in life diversity. All right, But diverse from what? When a company says they respect diversity, what are they respect in diversity from?
Diversity from something that answers the status quo. I’m saying that we have a working culture, but we look at people who are diverse from that working culture, you know, and that’s a bit of a problem because it sort of centers this idea of of whiteness, if you like, right. For want of a better phrase, this idea that, okay, if we have a working culture that has been informed by centuries of racial discrimination and racial prejudices and so on, we respect diversity from that.
But it still keeps that. That’s the sense that inclusion is the same. We’ll include you in our spaces. But what are those spaces? Spaces are problematic, Right?
JM: Yeah. And that’s that’s kind of what came over because I’m really interested in this stuff. So that really came over from your book as well. This stuff we do and we think we’re doing good things and that really because of the structural racism, perhaps we are also perpetuating things at the same time. And we need that creativity, accountability, reflexivity, collaboration to we should all be doing that to all like really critique and look at what we’re doing. And I don’t know what the I don’t know how to do it differently.
BM: I make lose suggestion in the book. I did send you a positive reference, but I think writing and speaking of sort of and diverse and inclusive workplace, we should speak of, of sort of an intersectional workplace, one that sort of thrives on the positives of different world views, if you like, you know?
And the idea that, you know, our workplace right, and say in our workplaces, inclusive and diverse, right to say all workplace is intersectional. Say that we really thrive off the different perspectives that people from their different backgrounds, their different personal characteristics, you know, make it a more positive thing.
JM: Which is nice as well, because that focuses on what people do in the workplace rather than who’s in your workplace? Yeah, yeah, yeah.
BM: And the values that people bring to the workplace.
JM: Yeah. Thank you. That was a really, really massively jumped out of me as I was reading, even not as a law person. But yeah, so I have one last question and you’ve spoken to it a bit already. It’s really that looking for a bit of hope in all of it. You quote James Baldwin in the introduction to the book where he says not everything that is faced can be changed, but nothing can be changed until it is faced.
So if we’re concluding that the law is really too limited to achieve racial justice, what is there to learn? And are there any places where change can be made, do you think?
BM: Yeah. So what is that’s learned is that the idea of anti-racist law and it’s that idea of, okay, let’s make the most of these limits, right? And then just want to read it… The struggle for racial justice is fought and I haven’t seen it yet, but I have seen a new TV documentary called Defiance, which I think was on a couple of weeks ago. It traces how South Asians really organized against racism in 1970s and 1980s. England, British Asians, they took to the streets in protest. And protest is a powerful place to force political change.
JM: Do you think it still is?
BM: Yeah, it still is. I think it still is. Yeah that’s that’s one reason why that’s such clamped down on the right to protest. Politicians recognize the power of protest.
Education, I don’t just mean in schools and colleges. I just think in workplace training as well, having leadership from the top private companies can change their policies and their processes, for example. So in Wales, you I’m at Cardiff University in Wales at the moment. The Welsh Government has this anti-racism action plan. Yeah, and right from the very top government agencies are saying we are going to really tackle structural racism head on in criminal justice, in education and health and all these places.
And they’re making an effort to change their policies and processes and, you know, that’s that’s without regard to the law. You know, they’re not thinking, well, are we just doing what we’re legally obliged to do? They’re going beyond that. And that’s because of leadership from the top.
So it’s that kind of cultural change that we need. Um, so I think another way of thinking about it is maybe law is better understood as a last resort. You know, we make resort to law when changes on the streets in politics, in schools, in workplaces haven’t succeeded, then we enact the law.
JM: Okay.
BM: But you know, I’m I’m wary of that being pessimistic.
JM: But then also the law can be invoked in different ways like we’ve seen with the Colston Four case and with that creativity maybe there is space for adapting it and using it, using the law in better ways.
BM: There’s another quote by James Baldwin, which with hindsight I should have put in the book, actually would have been nice to end the book with that. I started with one right. Um, James Baldwin had the quote is “I can’t be a pessimist because I am alive”. And to be a pessimist means you have agreed that human life is an academic matter, so I’m forced to be an optimist. It’s this idea that, you know, if you’re a pessimist in due, what’s the point of doing anything? You’ve basically given up on life. You have to be an optimist if you want to, if you want to live life.
And I think that’s why I end the book with these ideas for anti-racist lawyering and that kind of just to inject a bit of hope. And I’m still optimistic that law can be used to achieve racial justice in certain circumstances.
And, and I am totally supportive of people using the law when whenever they can. But I just think it speaks to that point about collaboration. It’s just I think sometimes there’s a danger that lawyers and academic lawyers think only of the law and they don’t realize that actually law is just one arena. And we need to work in collaboration with politicians, with campaigners, with people on yeah, with other people, with education, educational experts, with health care experts and all those people.
JM: And that’s how things will change. Yeah, I think that’s a fantastic point to end on and thank you because it’s an incredibly thought provoking book. Like I say, even for those of us who …, because we’re all involved in the law, aren’t we all the time? But even those of us who don’t consciously think about the law a lot, it’s it’s really, really interesting.
So thank you for speaking to me. Thank you. Yeah. Pleasure. Racial justice and the limits of the law by that balcony is published by Bristol University Press and is out now. You can find out more about the book on our website. Bristol University Press, Stoke UK. And you can also get 25% of all our books by signing up to our mailing list.
Thank you for listening. If you’ve enjoyed this episode, please follow us wherever you get your podcasts. Thank you for. It’s been a pleasure and really, really interesting. Yeah, Thank you.
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