Defeating White Jurisprudence: Towards a New Era of International Law
Vol. 38 Associate Editor
Can white extremists be challenged, without challenging the role of white ideology in international law? As white nationalism achieves international visibility once more, this is a crucial question for all those interested in using international law to a craft a world that transcends, at the very least, race, gender, and class. In the past few weeks, white extremists across the world felicitated the results of the American presidential election as a sign of global resurgence of white nationalism. While white supremacist ties to the American president-elect have sent shockwaves throughout the world, the result and the widespread global presence of these forces should not come as a shock, but rather, must be properly understood as the product of the dominance of white supremacist jurisprudence in international law. This discussion presents an overview of the origins and development of white jurisprudence, a description of its relationship to international law, an overview of the intellectual forces that resist it, as well as some thoughts on the role of international law in breaking cycles of supremacy. White supremacy is the belief that the white ‘race’ is superior to all races, and that white ideologies and systems derived from the histories and methodologies of white people are superior, and therefore, should dominate. White supremacy has a variety of overlapping forms. This discussion invokes two, in particular: white nationalism and white ideology. White nationalism is the belief that white people must dominate over all other groups everywhere because of inherent superiority. White ideology, on the other hand, is the belief that white people derive their power through the dominance of their laws and legal system, which are superior to all others. While white ideology allows for anyone, of any race, to achieve power by promoting white ideas, white nationalism assumes only white people can hold power. “White jurisprudence,” is a term of art that embeds a broad set of assumptions in the law–about the superiority of white men, the superiority of men in general, the superiority of certain kinds of property holders, as well as the superiority of the laws and procedures that protect the interest of white men and their property—in the law. Over the course of centuries, these assumptions have evolved into a jurisprudence that has produced a legal system that is fundamentally organized by methods of adversarial exclusion—legal and otherwise–with result-oriented, systematic, and regularized patterns of mutual competition. Rule of law based on white jurisprudence creates a winner-takes-all combative culture, which can lead to increased balkanization and polarization in society and cyclical resurgence of white nationalism. International Law and White Jurisprudence: The first stage of international law (15th century to the 17th century) manifested as a neutral dissemination of positivist European public law, promulgated in favor of new financial systems of international investment. During this period, philosophers and jurists expounded, post hoc, positivist principles that justified and empowered imperialist activities. For example, Thomas Hobbes developed ideas that assumed that Europeans had the right to capture insufficiently populated lands and to “push the native inhabitants onto whatever undesirable land was left.” Similarly, as a matter of customary European law, the Americas, for example, were defined as unclaimed and available territories, and claims made there by Europeans, often as a matter of international treaty law, were treated as legitimate. Thus, the foundations of contemporary international law developed, in the court of colonial conquerors, ab initio, rejecting the personhood and property rights and interests of women and all non-white inhabitants of conquered lands. International law, therefore, became a forum primarily for resolving disputes of contested claims of capture between white settlers, rather than a forum for contesting the very claims that white men laid to the so-called capture of the lands of non-whites. Jurist Hugo Grotius is often identified as one of the founders of contemporary international law. In his seminal text from 1625, On the Law of War and Peace, for example, he wrote:
“[I]t is plain, that ships and other things taken at sea cannot be considered as really the property of the captors, till they have been carried into some of their ports, or to some place where their whole fleet is stationed. For in that case all hope of recovery seems to have vanished….Now land will be considered as completely conquered, when it is inclosed or secured by permanent fortifications, so that no other state or sovereign can have free access to it, without first making themselves masters of those fortifications.”
The force of the language is subtle, with no explicit mention of race. Nonetheless, this early articulation of international law clearly favored Europeans, who had the largest and fastest fleets, a long-standing tradition of building enclosures to fence off land, and sizeable occupying military forces. By the end of this early stage of international law, assumptions favoring European acquisition of wealth were hard-ground into international law, and Europeans had laid–normatively questionable—claims on property and resources across the world that were made lawful through the construction of their own terms. As European conquest expanded its reach, a common identity formed around whiteness that resulted in the very project of conquest being articulated in increasingly racial terms. International law supported these claims of identity–that quickly developed currency amongst Europeans—by creating racialized laws that justified exploitation. This led to the second wave of international law, marked by colonialism and imperialism. Rules and customs of international law were no longer simply asserted as a matter of natural law, rather in this second stage of international law, pro-European legal norms were advocated with focus on the superiority of white people to all others. In the Americas, this contributed to, and facilitated, the international slave trade. These developments marked the second stage of white jurisprudence–the explicitly racial stage. This stage proved to be most unstable for colonialism. Prior to this, white jurisprudence placed little value on accounting for differences between whites and non-whites. However, the creation of an unambiguous and glorified whiteness made it easy for non-whites to identify their oppressors, and come together around a common enemy. With a shared enemy, fierce resistance was fomented against white jurisprudence that would eventually lead to the development of an alternative jurisprudence approach to law. This “subaltern jurisprudence” developed as a broad set of values, political struggles, ethical goals, and doctrines that sought to direct law, covertly and/or overtly, to counter white jurisprudence. In opposition to white jurisprudence, the fundamental mode of subaltern jurisprudence is cooperative, with insistence, amongst other things, on cooperative dispute resolution, uncategorical human equality (the non-existence of any differences racial or otherwise between human beings), cooperative and equitable ownership arrangements, and compassionate and restorative approaches to wrongdoing. Much like white jurisprudence, subaltern jurisprudence is one of self-dealing, but it is a self-dealing bent on self-liberation, as opposed to conquest and subjugation. Subaltern jurisprudence began to formally enter international law at the height of colonial resistance with the abolition of slavery. As subaltern jurisprudence developed, white jurisprudence evolved to counter it. As a result, the stark and explicit black versus white rhetoric of the second stage of white jurisprudence was watered down in a third subtle stage of white jurisprudence. Whiteness was made increasingly invisible, as white jurisprudence shifted attention to dividing and denigrating non-whites to dilute resistance. This resulted in intense psychological and political study of non-whites, as influential thinkers, like Immanuel Kant, began to develop detailed theories on the differences between various non-white groups. Entire fields of study, anthropology and philology for example, developed. In this subtle phase of white jurisprudence, formerly discounted cultures and peoples became the subject of intense study, as history itself was re-written to create a nuanced order that reverberated throughout the law. Thus, phase one of white jurisprudence entailed legitimizing predatory practices in property law, in favor of Europeans. Phase two galvanized European identity through the articulation of white identity. Phase three sought to break apart the solidarity of anti-colonial resistance by establishing a graded hierarchy to divide non-whites by inviting those willing to comply to embraced white ideology in exchange for new positions of power and privilege. In the aftermath of World War II, with charismatic resistance in the form of an ever-expanding list of Black leaders, as Europe sought to rebuild itself and defend itself against the rise of fascism, there was little apology for either the historic discrimination against Jews and other non-whites in Europe, or for the incredible brutality Europeans visited on non-white territories. Despite centuries of brutality against millions and millions of non-white bodies, Western allies rebuilt themselves on the same humanitarian platform that subaltern resistance used to defeat them. Thus, the fundamental project of the first phase of international law: the projection of European public law onto the world, remained essentially unchanged—merely expanded to include the United States–as white jurisprudence entered its fourth and contemporary stage: the stage of co-optation. During this period, white jurisprudence turned to a strategy of mimicry—creating an international regime of laws that facially mimicked the political demands of resistors, but with little substantive change in the rule of law. This current phase is perhaps the most unstable for subaltern jurisprudence, as it is becoming increasingly difficult to facially distinguish laws that protect marginalized communities from those that seek to disempower them.  Once again, can white extremists be challenged, without a challenging to the role of white ideology in international law? The clear answer is no. The question that follows then is how does one challenge ideology? Lawyers must know their history. Legal history can no longer serve as a luxury, or an academic indulgence. It must be an important foundation of every law student’s basic education in the law. This study of history must be open and critical. In this age of ambiguity, when white nationalism itself is coopting the language of resistance against white supremacy, it becomes crucial for international lawyers to engage in a legal and historical study of colonialism to define, trace, and expose the subtle roots of white jurisprudence and other forms of legal supremacy–to be cognizant of legal history beyond standard curriculum. White jurisprudence has long benefited from the supposed ahistorical posture of law. Law, especially international law, can no longer pretend to be above history. Thus, lawyers must know their history and have clarity about the vision for the future. One of the greatest weaknesses of the law is that it is fought one case at a time. This inherent shortsightedness often leaves bigger questions unanswered, such as, what type of society are we building with the doctrine set in each case, or the values committed to with each treaty. While thinking about short-term outcomes, lawyers also need to develop greater focus on working towards a shared set of values or objectives. The greatest value of international law is that its success depends on its ability to build law that aims neither at supremacy, nor at resistance—but instead aims to create structures of cooperation and mutual support. Despite the domestic nature of the resurgence of white nationalism, international law, as a forum primarily based on cooperation, has a moral duty and a responsibility to find ways to attack all forms of supremacy at the international level. This is not the occasion for a discussion of exactly what such an attack might involve. The purpose of this current discussion is to assert affirmatively that international law must face up its roots in white supremacy, undo its own legacy of white jurisprudence, and, moving forward, play a key role in preventing cyclical resurgence of white nationalism.
 Before proceeding any further, it is important to highlight that the racial terms in this post do not refer to individuals or groups, but rather to legal and political strategies deployed by a diversity of actors of all skin tones and ethnic origins. These strategies especially as reflected in the law–doubtlessly, impacted the identity and political posture of a vast majority of people to the extent that some generalization is possible. However, these generalizations should not obscure the complexities of the contestation: Just as many so-called whites participated in and perpetuated resistance against white supremacy, many so-called non-whites participated in and perpetuated white supremacy and supremacies of other kinds. Here, the discussion is about a uniquely aberrant phenomenon: the global and international spread of a singular supremacist political practice.  See, e.g., Lucy Pasha-Robinson, Swedish neo-Nazis stage biggest ever march in wake of Donald Trump victory, The Independent, Nov. 13, 2016, http://www.ndependent.co.uk/news/world/europe/donald-trump-win-swedish-neo-nazis-stage-biggest-march-celebrate-a7414676.html; Rise of proudly-neo-Nazi party unnerves a European Nation, CBS News, Nov. 18, 2016, http://www.cbsnews.com/news/slovakia-far-right-peoples-party-embraces-nazi-past/; Daniel Lombroso and Yoni Applebaum, ‘Hail Trump!’: White Nationalists Salute the President Elect, Atlantic Monthly, Nov. 21, 2005, https://www.theatlantic.com/politics/archive/2016/11/richard-spencer-speech-npi/508379/?utm_source=atlfbcomment; Abigail Tracy, Trump Responds to Amorous Neo-Nazi Supporters: Nothing to See Here, Vanity Fair, Nov. 22, 2016, http://www.vanityfair.com/news/2016/11/donald-trump-national-policy-institute-response.  See, e.g., Morris Dees & J. Richard Cohen, White Supremacists Without Borders, The New York Times, Jun. 22, 2015, http://www.nytimes.com/2015/06/22/opinion/white-supremacists-without-borders.html?ref=opinion&_r=0; Lindy West, White nationalist? Alt-right? If you see a Nazi, say Nazi, The Guardian, Nov. 22, 2016, https://www.theguardian.com/commentisfree/2016/nov/22/white-nationalists-alt-right-nazi-language-trump; Germany concerned over US neo-Nazi growth, Sky News Australia, Nov. 23, 2016, http://www.skynews.com.au/news/world/europe/2016/11/23/germany-concerned-over-us-neo-nazi-growth.html.  See, e.g., Anthony Anghie, Imperialism, Sovereignty, and the Making of International Law (2007); Sundhya Pahuja, The Postcoloniality of International Law, 46 Harv. Int’l L.J. 459 (2005); S. James Anaya, Indigenous Peoples in International Law (2004).  See Robert A. Williams, Jr., Columbus’s Legacy: Law as an Instrument of Racial Discrimination Against Indigenous People’s Rights of Self-Determination, 8 Ariz. J. Int’l & Comp. L. 51 (1991).  Simone de Beauvoir, The Second Sex (2015).  See Paula S. Rothenberg, White Privilege (2008).  Robert A. Kagan, Adversarial Legalism (2003).  Thomas W. Merrill, Property and the Right to Exclude, 77 Neb. L. Rev. 730 (1998).  See Kagan, supra note 8.  See Frederic Megret, Globalization and International Law, Max Plank Encyclopedia of International Law (2009). Megret identifies three stages of international law: The early stage, marked by the emergence of classical international law as a “vehicle by which European public law was projected onto the world.” The second wave, that was marked by colonial imperialism. Finally, the third stage, shaped in the context of international wars. This discussion borrows from, and adapts Megret’s framework.  See Charles A. Conant, The Economic Basis of Imperialism, 167 The N. Am. Rev. 326 (1898).  Barbara Hall, Race in Hobbes, in Race and Racism in Modern Philosophy 43, 51 (Andrew Valls ed., 2005).  Id.  Jesse Dukeminier et al. Property 3-36 (8th ed. 2014).  Id. at 18.  Hugo Grotius, On the Law of War and Peace 296 (1624), http://socserv.mcmaster.ca/econ/ugcm/3ll3/grotius/Law2.pdf.  The construction of the terms of conquest privileged Europeans in direct contrast to the precise strengths they held over most indigenous populations that, by and large, did not build large scale naval vessels, did not engage in exclusionary land practices, and did not mobilize in large scale mechanized armies. For a detailed treatment of this argument, see Jared Diamond, Guns, Germs, and Steel (1997).  Siba N’zatioula Grovogui, Sovereigns, Quasi Sovereigns, and Africans: Race and Self-Determination in International Law (1996) (discussing the way in which international law bears the imprint of the hierarchical nature of relationships between Europeans and non-Europeans over time).  For a detailed discussion of the relationship between race, law and the formation of colonial identity, see Mahmood Mamdani, Define and Rule (2012).  See Frederic Megret, Globalization and International Law, Max Plank Encyclopedia of International Law (2009).  See, e.g., Code Noire [The Black Code] (Fr.) (1685) (comprehensive legislation signed by the Emperor of France and applied to the whole population of the Antilles, both black and white).  For a discussion of the instability of this period, see James Thuo Gathii, International Law and Eurocentricity, 9 Eur. J. of Int’l L. 184, 184-186 (1998).  See e.g., Code Noire, supra note 16; Mamdani, supra note 14, at 6-8.  See, e.g., David Nicholls, From Dessalines to Duvalier: Race, Color, and National Independence in Haiti (1996).  On alternate jurisprudential traditions, see, M.J. Matsuda, Public Response to Racist Speech: Considering the Victim’s Story, 87 Mich. L. Rev. 2320, 2323-26 (1989); Robin West, Progressive and Conservative Constitutionalism, 88 Mich L. Rev. 641; K. Mckinnon, Feminism, Marxism, Method, and the State: Towards Feminist Jurisprudence: An Essay, 95 Yale L. J., 1373 (1986); Nico Slate, Colored Cosmopolitanism (2012).  Subaltern is a term, used in post-colonial studies, to describe people who are at the greatest distance from decision making power, used in this context, as a term of law, it describes those communities that become victims of the epistemic violence generated by a given system of laws–violence induced by cognitive assumptions, for example violence against minority communities based on the white nationalist idea that America belongs to the white Americans. For a more in-depth argument, see, Gayatri Chakravorty Spivak, Can the Subaltern Speak? (2010).  See, e.g., Anthony E. Cook, Beyond Critical Legal Studies: The Reconstructive Theology of Dr. Martin Luther King, Jr., 103 Harv. L. Rev., 985 (1990).  See, e.g., W.E.B. Dubois, Negro Suffrage (1899); Garth E. Pauley, W.E.B. Du Bois on Woman Suffrage: A Critical Analysis of His Crisis Writings, 30 J. of Black Studies 383 (2000). Narayana Guru, Atmopadesa Satakam (1888).  See, e.g., M.K. Gandhi, Trusteeship (1960).  See, e.g., Michelle Alexander, The New Jim Crow: Mass Incarceration (2010), Angela y. Davis, Are Prisons Obsolete? (2003).  This jurisprudence developed through African-American Abolitionists, anti-colonialist resistors throughout Africa, labor agitators and anti-caste revolutionaries in South Asia. It also thrived within European/European-origin communities—particularly amongst the working class and religious minorities. Such pockets of resistance, through mutually intertwined chains of inspiration spreading across the world, developed into consistent and persistent challenge to white jurisprudence. For a full discussion of this interconnected development, see, Slate, supra note 20.  Mamdani, supra note 14.  Immanuel Kant, Anthropology from a Pragmatic Point of View (1798).  See, e.g., Herbert Spencer,“A Theory of Population, deduced from the General Law of Animal Fertility,” Westminster and Foreign Q. Rev. 17 (1852); Charles Darwin, The Origin of Species (1859); G.W.F. Hegel, Elements of Philosophy of the Right (1820).  Mamdani, supra note 14, at 43-84.  See Mamdani, supra note 14, at 85-126 (for a more nuanced discussion on the impact of this colonial strategy on colonized social order); See, also, Thomas Babington Macaulay, Minute by the Hon’ble T. B. Macaulay (February 2, 1835) in Bureau of Education. Selections from Educational Records, Part I (1781-1839), National Archives of India, (1965) (claiming that “We must at present do our best to form a class who may be interpreters between us and the millions whom we govern–a class of persons Indian in blood and colour, but English in tastes, in opinions, in morals and in intellect”).  E.g., Rosa Parks, Martin Luther King Jr., Malcolm X, Frantz Fanon, Jawaharlal Nehru, Leopold Senghor, M.K. Gandhi, Kathleen Cleaver, Stokely Carmicheal, Muhammad Ali. See also Antoinette Burton and Isabel Hofmeyr, Ten Books That Shaped the British Empire: Creating an Imperial Commons (2014).  See The Schuman Declaration of May 9, 1950, http://europa.eu/european-union/about-eu/symbols/europe-day/schuman-declaration_en (founding document of the European Economic Community, declaring the indispensable contribution that an organized and living Europe can bring to the maintenance of peaceful relations across the globe, and highlighting the centrality of the pursuit of one of Europe’s “essential tasks, namely, the development of the African continent” in the interest of establishing a common economic system).  See, e.g., The Bretton Woods Agreement of July 22, 1944.  See B.S. Chimni, A Just World Under Law: A View From the South, 22 Am. U. Int’l L. Rev. 199 (2007).  See, e.g., Michael McGough, Could there be a benign ‘European American’ group? No, Los Angeles Times, January 1, 2015, http://www.latimes.com/opinion/opinion-la/la-ol-scalise-race-whites-20141231-story.html