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Excerpted From: Ekow N. Yankah, Whose Burden to Bear? Privilege, Lawbreaking and Race, 16 Criminal Law and Philosophy 13 (April, 2022)(65 Footnotes) (Full Document)


EkowNYankahWhether there is a prima facia obligation to obey the law is of enduring interest in political theory, one that philosophers have had a surprisingly hard time answering without some imposing theoretical machinery. Yet most agree, almost in passing, that whatever duty there is to obey the law turns on being included in a reasonably just and reciprocal system of legal obligations and benefits. Thus, one important, if little explored, insight is that the duty to obey may apply unevenly across society. Without much elaboration, a range of scholars have thought it a serious question if seriously disadvantaged racial minorities, African Americans in particular, have a standing obligation to obey the law in America.

Yet, there is little in the philosophical literature taking up the consequences of the failure of the American legal system to obligate racial minorities. Even critical race theory has rarely taken the further step of spelling out what follows from a failure of legitimacy. The standard position proposes that each citizen has a (Rawlsian) general obligation to support basically just institutions. Yet this answer feels unsatisfyingly thin because it posits a vague, imperfect duty aimed at general improvement without any indication of how one might be required or permitted to behave in the indefinitely long period without reasonably just institutions.

More importantly, the standard answer is inapt because it avoids the important claim, i.e., that different groups of citizens may have different duties towards our legal institutions. Even if all citizens have a duty to support just institutions, there may be much to learn in thinking through how those duties differ depending on one's relationship with the state during periods of injustice. In any case, there is no reason to read the Rawlsian injunction either literally or flatly; a general duty to support just political institutions need not equate to a duty to acquiesce to whatever current political institutions we have.

If underexplored in philosophy, the claim that minority groups have lesser (or no) obligations to the state has a long social and intellectual history. African-American communities have long held a contentious relationship with the state (and states) with at least a low-level distrust of the state's legitimacy being a near cultural birthright. For generations, Black “radical” political movements have advocated some version of Black independence. Rejection of the state's claims of fealty is among the central messages of contemporary hip-hop, rooted firmly in Black urban culture. In other areas of criminal law, scholars such as Paul Butler have explored how these rebuttals may be translated into legal demands.


Into this void, Tommie Shelby's Dark Ghettos: Injustice, Dissent, and Reform inserts a thoughtful exploration of concentrated poverty, particularly in Black communities, and its implications for political theory. Shelby's work is rooted in philosophical liberalism, imposing a Rawlsian framework on the intractable problems of contemporary ghettos. Admirably, Shelby applies his lens broadly, from culture, labor and family relations, to criminal law and punishment and even hip-hop as a form of dissent. In a book full of much to admire, two things deserve particular note. First, Shelby diagnoses the persistence of the ghetto as not merely due to poor behavior by residents or imperfections of a just system. That generations of African Americans and other minorities have been structurally limited to areas of intense poverty is an indictment of the basic structure of American institutions. Shelby indicts the “medical model” of social reform, which views ghetto residents as “pathological,” permitting the state to not only assist or intervene but interfere massively in their lives in order to impose order, capitalist virtues or social hygiene. Most importantly, this means claims by ghetto residents for greater shares of social resources to remake and abolish the ghetto itself are not calls for grace, favor or pity. They are calls for what is rightfully owed to equal citizens; they are calls for justice.

Shelby focuses specifically on what persistent injustice means for the obligation of ghetto residents to obey the criminal law in particular. A quick summary of Shelby's subtle points does them no justice. At bottom, Shelby argues that ghetto residents are ultimately not obligated (or less obligated) to obey the criminal law given that it systematically disadvantages them. Of course, disadvantaged ghetto residents, like all persons, have a natural duty not to commit serious wrongdoing; no one is permitted to attack, rape or kill others. Outside of their natural duties, however, exclusion from a system of reciprocal legal benefits abrogates the civic obligations that ground global legal obligation.

Bracketing acts of serious violence does not diminish the importance of claiming that the criminal law fails to bind ghetto citizens. In poor, dense urban centers, there are illegal van drivers operating shadow transportation networks; tenants illegally sharing apartments in large numbers; illegal bars, restaurants and daycares without proper licensing. Significant percentages of some neighborhoods make a living on the gray market. In some cases, the criminal prohibitions on these acts are unjustified or punishments disproportionately harsh. But in many others, the prohibitions themselves are justified and important. It is sensible to require public van drivers be certified and carry insurance, that housing and daycares meets minimum standards and so on. To underestimate the claim that the criminal law fails to bind the systemically disadvantaged because it does not posit a dystopian freedom to kill and pillage is to view the criminal law with childish cinematic thrall.

Shelby's picture is yet still more complicated; that ghetto residents do not have a general obligation obey criminal law does not fully resolve whether the state may enforce its laws. The State may lack the legitimacy and yet still retain an “enforcement right” to coercively sanction much lawbreaking. This is because the state is uniquely placed to protect others--particularly other ghetto residents who are the most likely to be victims of crime--from injury.

Moreover, it is unrealistic to imagine that even the rightful disregard of the criminal law will remain neatly cabined to illegitimate laws. Among the dangers of recognizing the law as illegitimate is precisely that it bleeds from the illegitimate to the legitimate, undermining legal claims more generally, destabilizing citizens' respect for criminal law, compromising cooperation with officials and leaving vulnerable ghetto citizens at greater risk of harm. This is especially worrying because it poses a special risk to women and other victims of gendered violence. Describing this tragic situation, Shelby gives philosophical shape to the widely held sentiment in many ghetto communities that the police are little more than an occupation force.

There is much in Shelby's analysis from which I learned and with which I agree, even if I approach such questions from a different philosophical foundation. More important than minute points of disagreement, I appreciate Shelby's commitment to non-ideal theory and unflinching consideration of how structural oppression corrodes that which binds us. Highlighting these demands is a welcome change from the usual vague, drive-by treatment.

Despite the importance of Shelby's analysis, an important feature remains puzzling--not just of this book but of the thinking more generally in this area. There is an important and growing philosophical literature on the duties of the oppressed to resist their oppressors. As gratifying as it is to see serious consideration of the obligations of those oppressed, I cannot shake the feeling that we have the glass the wrong way round. Rather than asking how ghetto residents should understand their relationship to the state, it is more important to ask how those advantaged, by race or by class, should understand their duties under an unjust system of criminal punishment.

Real-world examples make clear why we naturally, mistakenly, focus on the ethics of the oppressed. We are fascinated by how slaves maintained their dignity and preserved threads of their culture under brutal conditions. We are awestruck at the enormous moral complications of Jews in the Warsaw ghetto or in death camps. But the most serious demands of political morality do not rest on the victims of injustice. Rather, the demands weigh on the slave-owner, Polish and German officials, on their families, their wider communities and even the nation in whose name the oppression is carried out. We need not imagine that modern day American injustice reaches such levels to see the point. Outside our admiration for resilience, the question ought not be how ghetto residents should view the criminal law but how ordinary advantaged Americans, in whose name the state oppresses, should relate to a substantially illegitimate criminal justice system. While Shelby makes clear that the advantaged have the most pressing duties to reform injustice, even he instinctively shifts his focus to the obligations of ghetto residents when inspecting the criminal law.

In what follows, I inspect the relationship between advantaged citizens and the institutions of the criminal law. Though my thoughts are exploratory, even speculative, my goal is to offer more than the hand-waving gesture that one owes a political duty to support basically just institutions. My imagined addressee is a comfortable Manhattanite, an academic living in Ann Arbor or the middle-class worker in the suburbs, probably (but not exclusively) White, who understands the criminal law system to be illegitimate across class and race lines but is herself not unfairly treated by the law. Indeed, this citizen recognizes that the criminal law is unjust in her favor. How should such a citizen view her relationship to police, courts and other institutions of criminal justice?

[. . .]

These examples invite contemplation of how advantaged citizens can reject the criminal law's claims of obedience in ways that are not self-serving but rather lessen unjust advantages under our current system. Each example is a way of lending material support and evidencing political resistance against systemic injustice and racial discrimination in the criminal law. The examples sit on a spectrum from exercising legal rights in ways that cause friction, violating minor laws in support of those unjustly punished to defiant lawbreaking. They are tied together in a unifying spirit, each an instance of advantaged citizens rejecting obligations under the criminal law to reduce their own unfair advantage and champion greater equality.

The examples here are particular to obligations under the criminal law. Many of the injustices imposed by law occur because of a complex matrix of legal structures across all fields and a long history of destructive discrimination. A rich literature on the use of civil disobedience necessarily supplements thinking on how lawbreaking can protest social injustice. But it is independently important to examine the demands that the criminal law makes on citizens, the unique racial damage that the criminal law imposes and the duties of advantaged citizens to explicitly repudiate its illegitimacy.

In closing, it is important to note that the duty of all citizens-- particularly citizens with the advantages of race and class--to press against the claims of the criminal law is not academic fancy. As noted, it is overly simplistic to think of political legitimacy as binary. The criminal law and many of the individual actors within it do tremendous good, protecting citizens and in particular many in the poorest communities. Criminal law institutions are practically justified to the extent sharing common lives in pursuit of civic goods would be impossible without them. Symbolically, just criminal law signifies that each must treat others with a minimum of equal civic respect. Yet the very power criminal punishment wields to hold us together threatens immense damage. To the extent that it reproduces our history of racial trauma, unravels lives, banishes individuals to second-class citizenship and imposes a stigma of criminality along racial lines, citizens are obligated to demand that criminal law institutions remake themselves into something legitimate.

I do not pretend that this is an easy task. Intellectually, it is demanding to think of productive methods of lawbreaking that equalize the disadvantages of those unjustly treated by the criminal law. The examples I forward are speculative, though their spirit serves as a useful guide. Psychologically, it is no easier to require those with advantage to take a skeptical view of the criminal law and focus on unpleasant truths too easily pushed from view. Taking a stand against unjust law requires time, energy and making oneself vulnerable to unhappy experiences. It means moments of tolerable but unpleasant social disorder. It may mean defying police officers after years of inculcated obedience or submitting to arrest, knowing that one's position will affect criminal justice in the long term. As we often recognize with historical perspective, there is nothing unjust about laying these demands on certain citizens. It is the advantaged that have the financial and social resources to both withstand such inconveniences and to have their inconveniences spur political change. Most importantly, by recognizing that advantaged citizens are equally--indeed more--obligated to decry the illegitimacy of the criminal law, we avoid our natural temptation to make the injustices of the criminal law system the burden of those who already bear it daily.

Cardozo School of Law, 55 Fifth Avenue, Rm. 504, New York, NY 10003, USA

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