Excerpted from: Amna A. Akbar, Toward a Radical Imagination of Law, 93 New York University Law Review 405 (June, 2018) (347 Footnotes) (Full Document)
James Hayes sat on a stool amid a semi-circle of desks inside a law school classroom. I'd first met Hayes at an Ohio vigil for Mike Brown during the Ferguson uprising. At the time, he was organizing with the Ohio Student Association. I came to know him as a radical intellectual, an inspired local racial justice organizer, and a national voice in the Black Lives Matter ecosystem. On the streets and in meetings, he was easy to spot: always in the middle of the action in his red-hooded sweatshirt, skinny pants, and goatee.
Around the same time, I had begun teaching a law and social movements seminar. We studied the Black Panthers and Young Lords, Len Holt, Assata Shakur, and Ella Baker. I worried my students found the questions faced by these movements to be abstract and faraway. I wanted them to understand that contemporary movements struggled with questions similar to those in the texts we labored over. That's how an organizer found himself surrounded by future lawyers. Hayes, along with his comrades in the contemporary Black liberation and immigrant justice movements, confronted many of the same strategic and tactical choices every day. As I had hoped, his presence transformed our conversation.
Our intellectual distance from the texts vanished, and our lively conversation ended with a question: What is the proper role of lawyers within the movement? After a short pause, Hayes praised the technical chops and procedural expertise lawyers bring to the table. But that is not enough, he said. "Most lawyers see a problem and think, ‘How can I fix this law?"' This view is too narrow: it obscures the stakes and concedes to status quo arrangements. "The role of the law is to protect the state," Hayes reasoned. "Lawyers must work with movements to imagine with us the kind of state we want to live in. Only from there can we work together to think about the laws we need."
In conversations with intellectuals and organizers around the country, I realized the Movement for Black Lives (M4BL or Movement) larger movement configuration in which the chapter- based Black Lives Matter network functions--was having a far richer and more imaginative conversation about law reform than lawyers and law faculty. The Movement for Black Lives was situating their critique in Black history and intellectual traditions, and their imagination of alternate futures in Black freedom movements. Their critique was more expansive at the same time as it was more grounded, and their imagination more radical.
Legal scholars often assume the movement's fight is over policing: indictments for police killings, independent prosecutors to investigate police shootings, better training and supervision for police, more diverse police forces, and so on. But, as Hayes suggested, the most imaginative voices within contemporary racial justice movements are fighting for much more than body cameras and police convictions.
The movement is focused on shifting power into Black and other marginalized communities; shrinking the space of governance now reserved for policing, surveillance, and mass incarceration; and fundamentally transforming the relationship among state, market, and society. Movement actors have made policy proposals and engaged in law reform campaigns at the same time they have prominently contested law and politics as usual. In the few years after Ferguson police officer Darren Wilson's killing of Michael Brown, there were shutdowns of bridges and highways; die-ins at courthouses and statehouses; occupations of police stations, police unions, and universities; arrests and curfews; tear gas and riot gear. But the movement's highprofile campaigns have not been waged by lawyers or via litigation. Indeed, the movement has largely refrained from fighting to strengthen preexisting rights or demanding legal recognition of new ones. The focus is not on investing even-handedness to law or the police, not on restoring criminal justice to some imaginary constitutional or pre-raced status quo, and not on increasing resources for community policing. But it would be wrong to think the movement has given up on law. The movement is not attempting to operate outside of law, but rather to reimagine its possibilities within a broader attempt to reimagine the state. Law is fundamental to what movement actors are fighting against and for.
To illustrate how the movement approach reorients traditional criminal law reform conversations, I examine the 2016 policy platform of the Movement for Black Lives, "A Vision for Black Lives: Policy Demands for Black Power, Freedom, and Justice" (the Vision). I put the Vision in conversation with the Ferguson and Baltimore reports by the Department of Justice represent more traditional liberal approaches to criminal law reform. The Vision and the DOJ reports offer some of the most damning critiques of policing in recent memory, but differ fundamentally in their analysis and conclusions. The contrast reflects the limitations of liberal law reform at the same time that it opens up a more imaginative set of possibilities about reorganizing the very structure of our society. By studying the convergences and divergences between these texts, this Article highlights how radical social movements reimagine the very same social problems with which significant bodies of legal scholarship engage.
The Vision and DOJ reports offer alternate conceptualizations of the problem of policing and the appropriate approach to law reform. Reflective of liberal law reform projects on police, the DOJ reports identify policing as a fundamental tool of law and order that serves the collective interests of society, and locate the problems of police in a failure to adhere to constitutional law. As a corrective, the DOJ reports advocate for investing more resources in police: more trainings, better supervision, community policing. In contrast, the Vision identifies policing as a historical and violent force in Black communities, underpinning a system of racial capitalism and limiting the possibilities of Black life. As such, policing as we now know it cannot be fixed. Thus, the Vision's reimagination of policing--rooted in Black history and Black intellectual traditions--transforms mainstream approaches to reform. In forwarding a decarceral agenda rooted in an abolitionist imagination, the Vision demands shrinking the large footprint of policing, surveillance, and incarceration, and shifting resources into social programs in Black communities: housing, health care, jobs, and schools. The Vision focuses on building power in Black communities, and fundamentally transforming the relationships among state, market, and society. In so doing, the movement offers transformative, affirmative visions for change designed to address the structures of inequality--something legal scholarship has lacked for far too long.
The DOJ reports document the problems endemic to policing. While presenting a critical view of Ferguson's and Baltimore's police departments, the reports are committed to the legal status quo, to a mode of governance that relies on criminal law enforcement to deal with a broad set of deep-seated social problems, and to rules and authorities that are historically and functionally oppressive. As a result, the reports double down on traditional reforms that reinvest in law and police. This approach cedes more legitimacy--not to mention more resources--to the police and the legal frameworks in which they operate without a meaningful consideration of alternatives.
Of course, the reports emerge from a particular time and social location: a prosecutorial agency, the Civil Rights Division, embedded within the executive branch during the Obama administration. As with any social location, there are possibilities, pressures, and constraints on what the DOJ may say or do as a law enforcement agency under a particular administration. But framed in a different understanding, accountable to different constituencies, the DOJ could have taken an approach to reform more aligned with the Vision, suggesting a realignment of resources from policing to the underlying social problems stemming from structural inequality in Ferguson and Baltimore. The additional importance of the DOJ reports lies in how they reflect how legal institutions-- and, in turn, law scholarship--approach long-standing structural problems while firmly committed to the status quo and restoring legitimacy thereto. In this way, the DOJ reports expose a central dilemma of liberal law reform projects, caught between a commitment to the rule of law and status quo arrangements on the one hand, and the desire for substantive justice and social, economic, and political transformation on the other.
But our political moment is defined by crisis and polarization, with insurgencies on the left and right calling for reform, transformation, and even revolution. Amid the electoral triumph of Trump, protest and people-of-color-led anti-capitalist movements have surged in activity. These radical movements mark the revival of anti-capitalist racial justice politics in the United States in a way that we have not seen since the civil rights, Black power, and Chicano movements of the 1960s and 1970s. Contemporary racial justice movements are not simply arguing the state has created a fundamentally unequal criminal legal system. They are identifying policing, jail, and prison as the primary mode of governing Black, poor, and other communities of color in the United States, and pointing to law as the scaffolding. They are working to build another state--another world even--organized differently than the one we have inherited. They are aiming to use the law as a tool to build that alternative future. We can ignore their deep critiques and visionary alternatives, or we can embrace the possibilities of a more searching inquiry. This is a moment calling for a radical imagination, where the scale of deep critique is matched with a scale of grand vision.
While many progressive and left legal scholars reach for meaningful change, most of us lack alternative frameworks. Like the DOJ reports, even when the scale of our critique is large, our visions for change are often too small. We have focused on a narrow picture of law and law reform while sidestepping questions about the structure of the society, the state, and the market. These movements make these questions central to their work. They do not have it all worked out. But they are making powerful sketches of much-needed alternative frameworks.
Imagining with social movements seeking to transform the state would invest law scholarship in a project of reconstruction and transformation. For radical racial justice movements, the primary commitment is not to law, its legitimacy, rationality, or stability: It is to people. The motivations are to protest an enduring set of social structures rooted in European and settler colonialism and the Atlantic slave trade; to fight for transformative change, justice, and liberation; and to invest in a redistributive and transformative project, one demanding a more equal distribution of resources and life chances, with a focus on the most intersectionally marginalized people.
Imagining with social movements acknowledges how social change occurs beyond the courts. Social change happens on the streets and in formal and informal domains where power and legitimacy circulate. Most law scholarship is invested in centering rationality and reason as the terrain for decision-making, and courts, executives, and legislatures as the places where reform happens. Law scholarship generates a world that relies on law-making and enforcing bodies as the repositories of understanding law's functioning and meaning, and as the central targets for change. The way to reform law, law scholarship suggests in form and substance, is to convince these legal institutions through superior argumentation and appeals to rationality. This comports with the predominant marketplace-of-ideas metaphor, which in turn borrows from capitalism's ideological commitments to the superiority of the market in producing optimal results: The best arguments will rise to the top. In this way, law scholarship minimizes the relationship between power and the ideas that govern; erases how power circulates through and benefits from formal law-making and law-executing channels; and ignores the disconnect between legal institutions and the public, from which power and legitimacy should flow in a democratic society. Moreover, it is this framework that propels the law professor as a legitimate, free-standing expert. Imagining with social movements creates an alternative practice of contestation and solidarity, pointing to the different vectors through which ideas are formulated, and the terrain on and means through which they are fought over.
The Article proceeds as follows.
Part I provides a brief sketch of the Ferguson and Baltimore rebellions, the movements they spawned, and the DOJ reports they provoked.
Part II explains how the Vision for Black Lives reorients violence and inequality as a constitutive aspect of policing that cannot be fixed through traditional approaches to law reform. First, the Vision expands the frame for police violence beyond criminal process, to the interlocking systems that propel and draw from anti-Black racism, and forwards a vision for addressing the material realities of Black communities, and building power therein. Second, the Vision centers how law and the police enact and sanction--now and in the past--concentrated violence and inequality in Black communities. Third, it forwards an account of police violence accounting for intersectional violence and inequality, with a focus on the enduring structures of racial capitalism.
Part III shifts to the Vision's imaginative project, laying out its transformative, abolitionist ethic. The Vision seeks fundamental, structural reform that moves beyond constitutional rights, reconceiving the proper relationship between state, market, and society. Instead of striving to improve the police and criminal law, the Vision focuses on reducing its large social and fiscal footprint, and shifting resources elsewhere.
While Parts II and III touch on how the Vision contributes to criminal law and critical legal scholarship, Part IV explains how radical social movement visions enrich the social movement's scholarship. Studying movement visions complicates our study of social movements, the social problems they address, the law, and the state; and invests us in a creative, imaginative project missing from law scholarship.
Before wading further into my argument that law scholars have much to learn from the Movement for Black Lives, a few notes are in order. Just like any political project, movements are complicated and messy, ever changing and full of contradictions. I've made a choice to focus on a particular movement formation--the Movement for Black Lives--and a particular articulation of its political project--as embodied in the Vision for Black Lives. While the Vision is the most comprehensive, collectively authored and widely endorsed articulation of movement demands, it is not the only articulation of movement demands, and it tells more than one story. In making my argument, I am grounded in the Vision's text at the same time that I am providing one read on the text. My read is not meant to be authoritative or final--it is my read, designed to pay homage to a brilliant political project, and to provoke study and conversation. There is much more to say and to learn. The Vision's substantial feminist commitments, for example, go altogether underexplored here, as do the demands for economic justice or reparations, and much, much more.
As a non-Black woman of color, I approach this effort with love and respect for a long freedom struggle, in which I am implicated, but not centered.
. . .
The Movement for Black Lives wants more than a few less police killings of Black people. It wants those killings to end. It wants to build another world, organized very differently than the one we have inherited. It is not just deconstructive and critical; it is reconstructive and visionary, pushing for a radical reimagination of the state and the law that serves it. It is here that legal scholars may have the most to learn from, and the most to contribute, if we imagine collaboratively with these movements.
What if law reform was not targeted towards seeing what kind of improvements we can make to the current system, but was instead geared toward building a state governed by different logics, as Hayes suggested? As legal scholars, we are too often unwitting volunteers in a project of law reform that addresses racial capitalism's brutal excesses, effectively extending its lifespan. These movements, and the histories they point to, suggest this is a fool's errand. It is time to turn to something new, time for a radical reimagination of the state and of law--time to imagine with social movements.
Amna A. Akbar, Assistant Professor, Moritz College of Law, The Ohio State University.