Race in Moral, Political and Legal Philosophy

[hideTwo strands in moral, political, and legal philosophy are pertinent to the concept of race. One strand examines the broader conceptual and methodological questions regarding the moral status of race and how to theorize racial justice; the other strand normatively assesses specific policies or institutional forms that seek to redress racial inequality, such as affirmative action, racially descriptive representation, the general question of colorblindness in law and policy, residential racial segregation, and racism in the criminal justice system and policing.

Lawrence Blum, Anthony Appiah, and Tommie Shelby articulate indispensable positions in addressing the moral status of the concept of race. Blum (2002) examines both the concept of race and the problem of racism. He argues that “racism” be restricted to two referents:inferiorization, or the denigration of a group due to its putative biological inferiority; andantipathy, or the “bigotry, hostility, and hatred” towards another group defined by its putatively inherited physical traits (2002, 8). These two moral sins deserve this heightened level of condemnation associated with the term racism, because they violate moral norms of “respect, equality, and dignity” and because they are historically connected to extreme and overt forms of racial oppression (2002, 27). But because these connections make “racism” so morally loaded a term, it should not be applied to “lesser racial ills and infractions” that suggest mere ignorance, insensitivity or discomfort regarding members of different groups (28), since doing so will apply a disproportionate judgment against the person so named, closing off possible avenues for fruitful moral dialogue.
Due to the historical connection between racism and extreme oppression, Blum argues against using the term race, since he rejects its biological foundation. Instead, he advocates using the term “racialized group” to denote those socially constructed identities whose supposedly inherited common physical traits are used to impose social, political, and economic costs. To Blum, “racialized group” creates distance from the biological conception of race and it admits of degrees, as in the case of Latinos, whom Blum describes as an “incompletely racialized group” (2002, 151). This terminological shift, and its supposed revelation of the socially constructed character of physiognomically defined identities, need not require the rejection of group-specific policies such as affirmative action. Members of sociologically constructed racialized identities suffer real harms, and laws might have to distinguish individuals according to their racialized identities in order to compensate for such harms. Nevertheless, Blum remains ambivalent about such measures, arguing that even when necessary they remain morally suspect (2002, 97).
Similar ambivalence is also expressed by Anthony Appiah, earlier discussed regarding the metaphysics of race. While his metaphysical racial skepticism was cited as grounding his normative position of eliminativism, Appiah is “against races” but “for racial identities” (1996). Because of a wide social consensus that races exist, individuals are ascribed to races regardless of their individual choices or desires. Moreover, racial identity remains far more salient and costly than ethnic identity (1996, 80–81). As a result, mobilization along racial lines is justifiable, in order to combat racism. But even at this point, Appiah still fears that racial identification may constrain individual autonomy by requiring members of racial groups to behave according to certain cultural norms or “scripts” that have become dominant within a specific racial group. Appiah thus concludes, “Racial identity can be the basis of resistance to racism; but even as we struggle against racism…let us not let our racial identities subject us to new tyrannies” (1996, 104). This residual ambivalence, to recall the metaphysical discussions of the last section, perhaps ground Mallon’s contention that Appiah remains an eliminativist rather than a racial constructivist, since ideally Appiah would prefer to be free of all residual constraints entailed by even socially constructed races.
Tommie Shelby responds to the ambivalence of Appiah and Blum by distinguishing classical black nationalism, which rested upon an organic black identity, with pragmatic black nationalism, based on an instrumental concern with combating anti-black racism (2005, 38–52; 2003, 666–668). Pragmatic nationalism allows blacks to generate solidarity across class or cultural lines, not just through the modus vivendi of shared interests but upon a principled commitment to racial equality and justice (2005, 150–154). As a result, black solidarity is grounded upon a principled response to common oppression, rather than some putative shared identity (2002), thus mitigating the dangers of biological essentialism and tyrannical cultural conformity that Appiah associates with race and racial identities. Anna Stubblefield (2005) provides an alternative defense of Black solidarity by comparing it to familial commitments.
Shelby (2005, 7) briefly mentions that his pragmatic, political version of black solidarity is compatible with John Rawls's Political Liberalism, but his more detailed defense of the ideal social contract method of Rawls's A Theory of Justice for theorizing racial justice has drawn substantial controversy (Shelby 2004). Elizabeth Anderson eshews ideal theory for analyzing racial justice because it assumes motivational and cognitive capacities beyond those of ordinary humans; it risks promoting ideal norms (like colorblindness) under unjust conditions that require race-specific policies; and its idealizing assumptions, like an original position in which parties do not know relevant personal and social racial facts, precludes recognition of historical and present racial injustice. She instead uses a normative framework of democratic equality to ground her moral imperative of integration.
Charles Mills, extending his critique of how early modern social contract thinking obfuscates racial injustice (1997), fears that Rawls's ideal theory can similarly serve as an ideology that whitewashes non-white oppression (Mills 2013). But rather than jettisoning a contractarian approach entirely, Mills instead develops a model of a non-ideal contract, in which the parties do not know their own racial identities but are aware of their society's history of racial exploitation and its effects. Because the parties know of racial hierarchy but do not know if they will be its beneficiaries or victims, Mills hypothesizes that they will rationally agree to racial reparations as a form of corrective or rectificatory justice (Pateman and Mills 2007, Chapters 3, 4, 8).
Shelby responds that, while Rawls's ideal theory of justice excludes a theory of rectification because it is not comprehensive, rectificatory justice is not only complementary but in fact presupposes an ideal theory that can clarify when injustices have occurred and need to be rectified. More importantly, Shelby suggests that complying with rectificatory justice through racial reparations could well leave blacks living in a society that nevertheless remains racially unjust in other ways. For this reason, Shelby concludes that ideal theory remains indispensable (2013).
Christopher Lebron (2013, 28–42) also suggests that the approaches of Rawls land Mils are complementary, but in a very different way. He argues that Rawls's focus on the basic structure of society provides explanatory mechanisms through which white supremacy persists, something unspecified in earlier work by Mills (2003). And in sharp contract to Shelby(2013), Lebron criticizes Mills for rehabilitating Rawlsian contract thinking, since even a non-ideal form eliminates the epistemological advantage of a non-white perspective on white supremacy. Instead of reformulating contractarian thinking to fit the needs of racial justice, Lebron instead focuses on analyzing how “historically evolved power” and “socially embedded power” perpetuate racial injustice.
Turning to the second strand of practical philosophy devoted to race, various scholars have addressed policies such as affirmative action, race-conscious electoral districting, and colorblindness in policy and law. The literature on affirmative action is immense, and may be divided into approaches that focus on compensatory justice, distributive justice, critiques of the concept of merit, and diversity of perspective. Alan Goldman (1979) generally argues against affirmative action, since jobs or educational opportunities as a rule should go to those most qualified. Only when a specific individual has been victimized by racial or other discrimination can the otherwise irrelevant factor of race be used as a compensatory measure to award a position or a seat at a university. Ronald Fiscus (1992) rejects the compensatory scheme in favor of a distributive justice argument. He claims that absent the insidious and invidious effects of a racist society, success in achieving admissions to selective universities or attractive jobs would be randomly distributed across racial lines. Thus, he concludes that distributive justice requires the racially proportional distribution of jobs and university seats. Of course, Fiscus’s argument displaces the role of merit in the awarding of jobs or university admissions, but this point is addressed by Iris Young (1990, Chapter 7), who argues that contemporary criteria of merit, such as standardized testing and educational achievement, are biased against disadvantaged racial and other groups, and rarely are functionally related to job performance or academic potential. Finally, Michel Rosenfeld (1991) turns away from substantive theories of justice in favor of a conception of justice as reversibility, a position influenced by the “Discourse Ethics” of Jürgen Habermas (1990), which defines justice not by the proper substantive awarding of goods but as the result of a fair discursive procedure that includes all relevant viewpoints and is free of coercive power relations. Thus, affirmative action is justified as an attempt to include racially diverse viewpoints. All of these positions are summarily discussed in a useful debate format in Cohen and Sterba (2003).
The issues of race-conscious electoral districting and descriptive racial representation have also garnered substantial attention. Race-conscious districting is the practice of drawing geographically based electoral districts in which the majority of voters are Black. Descriptive racial representation holds that Blacks are best represented by Black politicians. Iris Marion Young (1990, 183–191) provides a spirited defense of descriptive representation for racial minorities, grounded in their experiences of “oppression, the institutional constraint on self-determination”, and domination “the institutional constraint on self-determination” (1990, 37). Anne Phillips (1995) furthers this position, arguing that representatives who are members of minority racial groups can enhance legislative deliberation. Melissa Williams (1998) also defends the deliberative contribution of descriptive racial representation, but adds that minority constituents are more likely to trust minority representatives, since both will be affected by laws that overtly or covertly discriminate against minority racial groups. Finally, Jane Mansbridge (1999) carefully demonstrates why a critical mass of minority representatives is needed, in order to adequately advocate for common minority interests as well as to convey the internal diversity within the group. In a later work, Young (2000) addresses critics who argue that descriptive representation relies upon group essentialism, since members of a racial group need not all share the same interests or opinions. In response, Young suggests that members of the same racial group do share the same “social perspective” grounded in common experiences, similar to theinteractive kind variant of racial constructivism discussed earlier. But because it is unclear that Black individuals are more likely to share common experiences than common interests or opinions, Michael James prioritizes using race-conscious districting to create Black racial constituencies which can hold Black or non-Black representatives accountable to Black interests (James 2011). Abigail Thernstrom (1987) condemns race-conscious districting for violating the original principles behind the 1965 Voting Rights Act and the 15th Amendment, by promoting the election of black representatives rather than simply guaranteeing black voters the right to cast ballots. J. Morgan Kousser (1999) responds that race-conscious districting simply reflects the right to cast a “meaningful” vote, as implied by the 15th Amendment protection against not only the denial but also the “abridgment” of the right to vote. Lani Guinier (1994) compellingly suggests that instead of drawing majority black districts, we should adopt more proportional electoral system that facilitate the electoral strength of racial and other minorities. Michael James (2004) suggests that alternative electoral systems facilitate not only descriptive racial representation but also democratic deliberation across racial lines.
A general advantage of using alternative electoral systems to enhance minority racial representation is that they are technically colorblind: they do not require lawmakers or judges to group citizens according to their racial identities. The general value of colorblindness is an ongoing topic of debate within legal philosophy. Drawing on Justice John Marshall Harlan's famous dissent in Plessy v. Ferguson, and a not-uncontroversial interpretation of the origins of the equal protection clause, Andrew Kull (1992) argues that contemporary American statutory and constitutional law should strive to be colorblind and combat racial inequality without dividing citizens into different racial groups. Haney Lopez (2006, 143–162), on the other hand, fears “colorblind white dominance,” whereby facially race-neutral laws leave untouched the race-based inequality that operates within American political, legal, and economic structures. Elizabeth Anderson (2010) provides a trenchant critique of colorblindness as a normative standard for law, policy, or ethics. Moreover, she provides a compelling philosophical analysis of the origins and moral status of contemporary racial segregation, a topic that, apart from the work of Owen Fiss (2003), has garnered much less philosophical attention than affirmative action and racially descriptive representation.

In recent years, the problem of racism within policing and criminal justice in the United States has attracted intense popular and scholarly attention. Michelle Alexander (2010) famously depicted the contemporary American criminal justice system as the “New Jim Crow,” for its intense racial disparities. Naomi Zack (2015) provides a trenchant critique of racial profiling and police homicide. David Boonin (2011), on the other hand, reluctantly defends racial profiling on pragmatic grounds.][/hide]

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Race in Moral, Political and Legal Philosophy

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Race in Moral, Political and Legal Philosophy

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