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“It is crucial to note that, in constructing race, legal rules operate through violence” (Haney Lopez)

It is crucial to note that, in constructing race, legal rules operate through violence. The legal system enforces rules occasionally through rewards but most often through the threat of application of harm. Such potential or actual harm is often difficult to see. For example, the prerequisite cases seem at first glance to be nothing more than dry exegetical readings of ambiguous legal texts in which it is impossible to find even obscure allusions to coercive force. Nevertheless, violence is there. “A judge articulates her understanding of a text, and as a result, somebody loses his freedom, his property, his children, even his life,” Robert Cover correctly insists, adding, “[w]hen [judges] have finished their work, they frequently leave behind victims whose lives have been torn apart by these organized, social practices of violence.”[11] In the prerequisite cases, we may assume violence, probably literally in the corporeal forms of immigration officers and border guards, certainly figuratively in the form of constrained lives and truncated hopes, and occasionally obviously in the form of suicide. [122] In the law of race more generally, violence is manifest in slavery, in Jim Crow segregation, in police brutality, in the discriminatory enforcement of criminal laws, in the dispossession of Native American land rights, in the internment of people of Japanese descent, in the failures of the law to provide equal justice or to protect against discrimination. In all of this violence, the law not only relied on but also constructed racial distinctions. To say that law constructs races is also to say that races are the product of, not just the excuse for, violence. James Baldwin remarks that “no one was white before he/she came to America. It took generations, and a vast amount of coercion, before this became a white country.”[12] Courts may have been the principal institutional forum for that vast coercion, and laws its principal form of civilized expression.

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996) Haney López, White By Law  , 121ff.


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