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Excerpted From: Berta Esperanza Hernández-Truyol, Awakening the Law: A LatCritical Perspective, 20 Seattle Journal for Social Justice 927 (Summer, 2022) (173 Footnotes) (Full Document)


BertaHerndezTruyolThe law is asleep; it needs “awakening”--a concept deployed across myriad disciplines to denote attaining a deep consciousness about and connection with the human condition, human actions, and their consequences. The outcome of an awakening is a realization of raw truths that allows seeing realities otherwise obscured by our perceptual playbooks--learned narratives that create rote scripts in our minds founded upon family, culture, religion, and a skewed majoritarian version of “history and tradition” among other factors. Awakening deconstructs the learned myths that perpetuate the status quo and its false claim to neutrality.

The goal of an awakening is the bettering of human existence. Interestingly, although the law is central to the creation of systems of order that affect humanity, the awakening conversation, so far, is nonexistent in law. Notwithstanding that void, or perhaps because of it, the law, patently, is asleep, a state in which awareness of and vigilance to dignitarian affronts and other injustices is impossible. The slumbering law perpetuates the far-from-just legal status quo and often results in unjust privations and inequitable processes and norms. The law is ripe for an awakening that nourishes dignity and justice for all. This essay strives to start the important conversation about awakening the law.

Throughout history, and still actively in the twenty-first century, every day we encounter intentional but unawakened moves to subordinate, marginalize, and exclude others. The law plays either the protagonist or a lead accomplice role in creating and implementing these unjust hierarchies. Examples of present-day subordination and marginalization for which the law is directly responsible range from the voter suppression movements to the anti-transgender movements, from the attacks on reproductive rights to the assault on Critical Race Theory (CRT), from the killing of George Floyd to the loss of lives, families, and freedoms at the southern border. These realities beg for an awakening of the law, for the introduction, integration, and application of an awakened paradigm to law as well as to legal processes and structures.

This essay utilizes a LatCritical lens to initiate the conversation concerning Awakening the Law. LatCrit principles of anti-subordination, multidimensionality, and rotating centers provide necessary pillars to support the initial stage of the Awakening the Law project. With the purpose of crafting both a theoretical framework and a methodology for such an unchartered undertaking, this essay first addresses the general idea of awakening. Next, it discusses the historically created structural challenges encountered in theorizing awakening the law. To this end, this essay provides a brief overview of the historic creation of power hierarchies, as well as of social and legal movements that, throughout history, have nudged the law to awakening yet have encountered resistance from those who seek to perpetuate the status quo. This essay provides two recent examples that demonstrate the law is asleep: the killing of George Floyd and the disparate burdens of COVID-19 based on race, ethnicity, gender, and sexuality. These narratives provide the background framework to conceptualize an awakened law through a LatCritical lens.

Finally, to provide an example of awakening praxis, this essay closes by applying the proposed paradigm to one of the most contentious constitutional issues of our time: the collision between religious rights on the one hand and liberty rights--particularly, privacy, intimacy, and equality rights--on the other. Specifically, this essay examines the recent and disquieting case of Fulton v. City of Philadelphia to show that notwithstanding much input by interest groups and civil society, the outcome evidences an asleep law. The analysis utilizes the proposed paradigm to illustrate the application of the awakening model. This essay concludes that the time is ripe for Awakening the Law.

[. . .]

Awakening the law is a complex, dynamic, and continuous process. Historically we have experienced cycles that include progress and backlash; we are living it now with the attacks on CRT and on voting rights--attacks that seek to obscure a painful history of racial inequality, marginalization, vulnerability, and subordination. The more the individuals' and institutions' biases are unveiled, together with the revelations of how these biases are embedded in the norms that pose as neutral, the more the perceptual playbooks that pose as nonaligned with any ideology can be critically deconstructed to eliminate their inherent injustice.

Because of the multiple layers of what we call law, any awakening must be analyzed at myriad levels--all the performative spaces of law in family, schools, and in the legal structures in society, the legislative, the executive, and the judicial. At each of these levels, the awakening must occur at individual and structural points. For example, at the legislative level, the individual legislators need to be awakened to the truth of the specific concern, such as racism, and the collective needs to be awakened to the truth to pass an awakened law that can confront racism at the structural level. Similarly, at the executive level, which includes the agencies of the administrative state, the leaders must be awakened before the structures they run can be awakened to deliver justice. The same is true for the judiciary where the individual judges as well as a fair and just interpretation of the law needs to be awakened.

It is a challenging aspect of the awakening the law process that the onus rests largely on those who suffer under the law--the marginable and disempowered--to expose the false truths of the legal playbook that are embedded in the law. Awakening the law is a dynamic and complex matrix that includes unearthing and deconstructing not only the implicit bias of individuals who make, administer, enforce, and interpret the law but also the structural bias in law that has resulted from such implicit biases.

Awakening the law entails multiple phases. First, there needs to be a realization that the law is asleep. Second, it is necessary to unveil the rootedness in law of the biased narratives, the historic inequalities and inequities embedded in the law. Third, to engage in the awakening project, it is imperative that there be an understanding, acceptance of, and deliberation about the social, economic, religious, cultural, and political influences on the prevalent history and legal narratives--the far from neutral climate regarding race, sex, gender, ethnicity, religion, economics, ability, education, etc. that has articulated and entrenched a skewed and biased version of history. The perceptual playbooks of the lawmakers, enforcers, and interpreters have created the legal perceptual playbooks that institutionalize the unjust, unawakened law in the books. Only with an awakened law can the legal system find solutions to the ingrained injustices in the legal perceptual playbooks to pave the way for law to attain its justice potential.

Moreover, those privileged by the existing systems need to recognize their privilege, expose its nature, deliberate on its consequences, and participate in crafting solutions that always include the interests of the marginable-- those who have been disadvantaged and subordinated by the privilege of the few--in resolving injustice. Simultaneously, such awakening allows the shifting of the gaze toward those who, in the eyes of the law, have been disposable or dispossessed, in order to enable a move towards just legal norms and structures.

Awakening is an ongoing process. It is both concrete and aspirational. The outcome of awakening is a system where law is synonymous with justice. Awakening is not perfection; it is openness to a just reality. It is a dynamic way to analyze socioeconomic, political, and legal processes in a quest for justice; an ongoing process of examination and self-examination at every level that involves law that foresees constant change with changed circumstances. Once the legal perceptual playbook is deconstructed, the law will have transformative potential. An awakened law analyzes the levels of consciousness and action that produce the potential for change at one or more socioecosystemic (individual, institutional) levels.

Berta Esperanza Hernández-Truyol, Stephen C. O'Connell Chair, University of Florida Levin College of Law.

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