Excerpted from: Anthony Paul Farley, Johnnie Cochran's Panther: An Essay on Time and Law, 33 Thurgood Marshall Law Review 51 (Fall, 2007) (64 Footnotes) (Full Document) (Symposium Issue)
This is an essay about the time that remains.
1619 was the year of our demise. Our time ran out and their time began. We have struggled and struggled but each time, even with our legal efforts redoubled, we find ourselves back at the beginning.
Let us begin with this prayer for the dead. The end is not yet. Fear not. The end of our confinement will come. Fear not. The commune will be. Fear not. We will all be free. Fear not. The cause is not lost, only not yet won. Fear not. The fallen are not dead, only sleeping. Fear not. The black flag is the end of the state power. Fear not. The red flag is the end of capital power. Fear not. We have nothing to lose but our chains.
Johnnie Cochran was one of the great trial lawyers of our time. Cochran's great abilities were born of a great loss. In 1972, Geronimo Pratt of the Black Panther Party, a veteran of Vietnam with a Purple Heart, was convicted of a 1968 murder and assault with intent to commit murder, a conviction that was affirmed on direct appeal. Geronimo Pratt was innocent and his imprisonment was part of the government's conspiracy against the panthers. Geronimo Pratt's body was caged for twenty-seven years. Cochran felt the loss. Cochran's fellow-feeling created a free space within his mind. Every free space is part of the commune. Every panther is a forever-free citizen of the commune. Geronimo Pratt the man was caged but as a panther he ran free. The freedom that enabled Johnnie Cochran to become one of the great lawyers of our time was the solidaristic freedom within which he conducted an intra-psychic dialogue with his lost-and-found black panther.
Once upon a time there were women and men and children who turned into panthers. “Hunted and penned in an inglorious spot,” the panthers whirled about and ran forward through death in pursuit of their pursuers. I was there when they ran through the razor wire of the state machine. I was there for the parting of black fur and flesh. I had lived only four or five years of our captivity when it happened. I saw with my own eyes the banners of blood. I saw with my own eyes the red flags of our emancipated future. You were also a witness to the commune. Every uprising has the commune as its heart.
The emancipation did not take place. Legal emancipation is not emancipation. Legal emancipation is only the perfection of slavery. Legal emancipation is the repetition and intensification of the original appropriation that created the masters and the slaves, the haves and the have nots, the propertied and the helpless. Slaves, being legal property, know that emancipation requires emancipation from property and from legality. Emancipation is a red and black tomorrow.
The panthers understood our red tomorrow as a relation between time and law. The panthers understood that law carries us back to the place where we, in our loneliest loneliness, were made commodities, made to be worse than senseless things, to be sold and made to labor, and to do so for all time. The panthers understood that we who were born of slaves are ourselves slaves. Our species of property bears the deathly black mark of dispossession. We who inherit this dispossession, and who bear on our bodies the black mark of this lack, know ourselves and each other through our joint condemnation to the undiscovered country, the common sentence we have each been made to serve for all time.
White time is the deferral of black freedom dreams. Each dream deferred is an interval of white time. Law is the measure of white time. As the Black Panther 21 defendants put it, “There is a timeless quality to the unconscious which transforms yesterday into today.”
The slave is traumatized by what she knows-and-does-not-know about the death she has already died. The slave's sleep is threatened by the memory of its Middle Passage. The slave creates a dream kingdom by reworking its Middle Passage until that Middle Passage appears to be a kind of freedom. Psychoanalysis reveals that the surface of the dream is the mask of the thought below. The deep meaning of the slave's freedom dream is emancipation from property and from law, but the surface of the dream, where the reworked Middle Passage appears, appears as the legal emancipation of the very species of property the enslavement of which makes property and law possible. The dream of this impossibility-the impossibility of legally emancipating the species of property whose continued enslavement makes property and law possible-allows the slave to continue to sleep. And continue it does. The slave dreams executive orders, the slave dreams legislative acts, the slave dreams judicial rulings, and each dream ends in the deferral of the slave's freedom and, therefore, another interval of white time. Law is the way that the slave's freedom dreams become white time. The panthers, understanding this in a wide-awake moment, attempted to seize the time.
Capitalism spins the illusions that it needs out of the strivings of the dispossessed. The strivings of the dispossessed are the stuff, the material, with which the tapestry of capitalist illusion is created. Law is the illusion that masters are not masters and that slaves are not slaves and that both classes, master and slave, are legal subjects and therefore not classes at all but individuals and as individuals, paradoxically, all alike and each equally a bearer of rights. There is no rule of law. There are rulers and those whom they rule. Law is the master's house. Fidelity to law is fidelity to the master. Fidelity to the master is slavery. Slavery is the death that we each died in 1619 and that we all die again with every one of our foredoomed attempts at merely legal emancipation.
Our dreams measure the time. We dream of freedom-through-law and our dream is deferred. We dream of law and they defer our emancipation. Dream and deferral, dream and deferral, tick and tock, the time seems to go on and on, but always within 1619.
[. . .]
Johnnie Cochran's heroic and storied career is the subject of this symposium and the instrument with which this tale of time and law will be told. Cochran, I will argue, had a unique ability to succeed as a litigator that was born of loss, a crushing loss that resulted in the 27-year incarceration of his client, Geronimo Pratt of the Black Panther Party. The panthers were the most-conscious section of the dispossessed in the wide-awake world of 1968.
James Campbell Matthews Distinguished Professor of Jurisprudence at Albany Law School.