Adventures In Racialization: Immigration & Critical Race Theory

Professor Leti Volpp of the Boalt School of Law opened the September 18th, CRG Thursday forum with a discussion on the role that culture, race and gender now play in shaping immigration laws. Citing examples of recent legislation passed around the world, Professor Volpp argues that a rhetoric of “gendered, cultural subordination” is being used to justify discriminatory policies against immigrant populations in the name of helping women. In Denmark for example, the Alien Act of 2000 specifies that in order to sponsor a foreign-born spouse, the native Dane must be 24 years of age. This law was presented to the public as ostensibly protecting the rights of young women by deterring the practice of forced marriages. Several other European countries have proposed similar action plans to deal with the issue of forced marriage.

A closer examination of the Danish law however, reveals further restrictions to foreign marriage based upon one’s attachment to Denmark, economic status, and access to domicile of particular dimensions. These provisions suggest that the motivations for the law are more rooted in concerns about immigrants entering Denmark than with the protection of women.

Also discussed was the French legislative ban against schoolchildren wearing visible religious symbols in schools. This measure is widely believed to specifically target the Muslim practice of wearing headscarves. Consequently, it has been interpreted as a concession to underlying sentiments of racism among the French toward Muslim immigrants, while ostensibly championing ideals of secularism and republicanism. Professor Volpp suggests that the dominant culture’s obsession with the cultural practices of immigrants often overshadows any discussion concerning the material, political, and structural needs and conditions of immigrant communities. Thus, while the Stasi Commission, tasked with outlining a plan for improving racial relations, had recommended many additional measures for the French government to implement—including creating anti-discrimination authorities and rebuilding urban ghettoes—the only issue publicly addressed by the government was the headscarf.

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The forum continued with Professor Angela Harris, also from the Boalt School of Law, describing how a reframing of equality theory has begun to transform legal conceptions about reparations and restorative justice. Critical race, feminist, and other critical legal scholars now believe that a major flaw of equality theory is that it sustains the structures that generate injustice and inequity in the first place. For example, to argue that gender equality will be established once women are treated like men reinforces the legitimacy of male hegemony by positioning the dominant male regime as the standard of measure. But to argue that gender equality requires that women be treated as “different” than men similarly serves to reinforce the gender binary that was the underpinning of male dominance in the first place. The equality approach also cannot fully address historical wrongs inflicted on communities and individuals such as the displacement of indigenous peoples such as the Maori of New Zealand and Native American tribes. These groups seek self-determination, not equality within the conqueror’s society.

One means of attempting to redress historical wrongs has been the reparations movement. The discourse of reparations involves identifying wrongs and then demanding both public recognition and apology and material compensation to the members of historically subordinated groups. A flaw of this approach, however, is that the worse the harm or injustice, the more difficult it is to mete out adequate reparations. It is unrealistic, for example, to believe that the descendents of slaves or dispossessed indigenous peoples will ever be materially compensated in full by the society that benefited from these wrongs. Professor Harris concluded her talk by describing the restorative justice model, an approach that considers crime as a form of harm to individuals and communities. The goal of restorative justice is not solely to punish but rather to identify and correct injustices, paying greater attention to the needs of both crime victims and perpetrators in the communities. A weakness of the restorative justice model, however, is that restorative justice advocates are often reluctant to identify the larger social context of state violence, particularly when they are working from within the state. Furthermore, the metaphor of “restoration” can appear inadequate in light of the historical scope of the injustice.

The “transformative justice” model seeks to address directly the problem of state violence and thus calls for a re-examination and transformation of western law, because of its structural connections to material and economic power. One theme in the conversation was the concept of ‘wholeness.’ Should for instance, questions of cultural, communal, or even spiritual trauma enter into the discussion of justice? Does law have a place within the domain of the social community, emotions, or the self, and if so, how do you repair the subtle, personal wounds inflicted by the state? How can those seeking to describe and transform these injuries avoid the further stigmatization of subordinate groups as having “defective cultures”? A second theme was the need to balance and pursue short-term and long-term goals. How is it possible to work within existing legal and political structures and still keep one’s eye on the prize of ultimately undermining, abolishing, or transforming them?