2007

Introduction: race as a "diagnostic tool"

1. The return of a controversial notion

Recent events, from the banlieue riots in Paris to the Katrina hurricane disaster in the United States, as well as diverse and increasingly widespread processes driven by "security" policies (1), appear to have led to the resurfacing of the ambiguous and feared concept of "race".

If we slightly broaden the scope of our research, using an approach that takes this concept "seriously", we immediately find ourselves entangled in a number of issues - of political, juridical, economic, social, and ethical nature - that arise in multicultural and multiethnic societies: from the case of the United States and that of France and Britain, to societies that are progressively evolving in Europe as a result of migratory movements that are altering the composition and structure of the population in many countries. So-called "Western" societies have to face new challenges (2) that impact on and complicate the boundaries of public space and citizenship, and call radically into question the philosophical, juridical, political and institutional categories used until just a few years ago by Western democracies to interpret social dynamics and the relationships between individuals and among different communities.

Against this transformational backdrop it might seem "paradoxical" to consider using the notion of "race" as an interpretative category and "diagnostic tool" (3). It is a notion (4) which, although it has retained a specific and relevant connotation in the particular context of the United States (where it has been progressively absorbed by neutrality and color-blindness approaches, at least until the powerful emergence, towards the end of the 1980s, of the racial-difference theories of strong-minded African-American scholars), is still overshadowed in the European context by a veil that prevents its resurrection, following the unspeakable tragedies generated by the racism and horrific practices of totalitarian regimes. (5).

This discussion forum, inspired by a spirit of dialogue and pluralism and voicing a range of interpretative analyses and perspectives, will seek out possible answers to a number of important questions, including whether the notion of race can be used to "decode" contemporary societies (6) and their dilemmas, fractures and aphasias on a number of issues. It will also discuss whether, in taking race seriously (thus providing a cautious, affirmative answer to that first question) we need to re-modulate the very vocabulary of practical philosophy in its ethical, political and juridical dimensions.

In order to undertake this complex task of investigation and possible re-shaping of some of the key categories in contemporary debate (including those of citizenship, equality, conflict, discrimination, security, identity and gender difference), we propose using as a focal point a particular history, such as that of critical race theory (CRT).

This proposal is occasioned by the publication of the first anthology in Italy - and the only one in Europe - that gathers together the most significant writings of a movement of intellectuals who combine theoretical reflection with strong civil and political commitment: Legge, razza e diritti. La Critical Race Theory negli Stati Uniti, edited by Kendall Thomas and Gianfrancesco Zanetti (Reggio Emilia, Diabasis, 2005).

2. Critical Race Theory

Originated within the U.S. debate on the complex relations among law, race and rights, and the legitimacy and impact of affirmative action policies (7), and characterized by a constitutive attempt at transforming existing realities, CRT can be included within the varied constellation that Gary Minda has defined with the effective term "postmodern theories of law" (8). The idea of "whiteness" as a property, the calling into question of "color-blind constitutionalism", the pinpointing of "positive actions" as an inescapable tool for fostering concrete equality among unequal individuals - these are the key lines of enquiry and debate for critical theorists of racial difference.

We must surely give them credit for having rehabilitated the radical tradition of race-consciousness, using a liberating rather than repressive approach, and for having built up a general conception of the strategies with which race power and race resistance are represented and mobilized in the political and juridical culture of the United States.

We propose beginning with a look at some of the thorny issues raised by the U.S. debate, starting with the critical race theorists' (or "crits") originally-posed questions, in a scenario where the "peculiar institution" of slavery left a profound mark on power relations. (Over time, starting with the civil rights struggle and the New Left's positions in the 1960s, these issues have involved theorists of various theoretical-political persuasions: from liberals and communitarians to supporters of critical legal studies and of multiculturalist differentialism, as well as, from the other camp, conservatives and supporters of economic theories of law, up to the latest advocates of a return to religion and its profound "values" in the public and legal spheres). We would also like to reflect more extensively on issues of race in the European context, without leaving aside other contexts (such as the important Latin American one, and particularly the unique situation of Brazil (9)).

The contributions to the forum are organized as follows: an intense and multi-faceted debate, conducted using a theoretical, yet multi-perspective and historical/conceptual approach, on the horizons opened through close examination and investigation into race (in other words, into the "relevance" of race - "race matters") is joined by an attempt to accurately define the headwords characterizing the debate on the directories that connect law, race and rights from the perspective of critical race theory. To show how this vocabulary is articulated, using as a reference point the cultural study of law (10), means to contemplate redefining (or rather further complicating) law and all its practices - a redefinition/complication that considers identity, difference, the subjectivity of individuals and groups, and contingency as important aspects (though clearly not the only ones) within the juridical sphere - aspects that the neutralism and unshakable "coldness" of legal systems (within the solid frameworks of juridical positivism (11)) can thus hardly conceal.

3. Beginning with race

Journeys that move along the tracks of race - uneven and non-homogeneous ones, when compared with the apparently smooth surface of the global, and inevitably neutral, space of universalism - make it possible to develop other considerations, which the various contributions to the forum examine in depth.

First of all, from a methodological standpoint, they show how authors who do not really belong to the philosophical/juridical sphere, such as Michel Foucault, Antonio Gramsci (dear to CRT scholars) and Pierre Bourdieu, can be of help in dealing with questions of law, especially if these are intentionally linked with forms of power and social organization (with its hierarchical and dependent relations).

Secondly, they make it possible to examine the status of the democratic form of government and citizenship, especially in areas of tension and "crisis" - and it is here that the comparison between U.S. and European scenarios, aside from the peculiarities of the two contexts, proves particularly fertile (12). Starting from a race perspective, and maintaining a critical outlook, seems to make it possible not only to investigate the present structure of democracy and its real capacity for the inclusion and organization of a society of individuals and groups with specific differences, but also to understand ways of generating new forms of mobilization against mechanisms of domination, and building new spaces of participation "from below" to counter a (generally post-democratic) rule "from above" (13). In other words, reflections that take seriously the question of race lead us, down various pathways, to the broad constellation of problems connected with democracy in the era of globalization (in its institutional, socioeconomic and ethical/cultural dimensions): from a re-thinking of urban spaces (and here the French case of the banlieues offers a significant litmus test, although the layout of U.S. cities also deserves close examination (14)), through forms of social welfare and social life aimed at tackling real-life, everyday problems of the vulnerability of, and respect for, human dignity (something often theorized but even more often denied) (15), up through scenarios where multiple identities live side by side, and hence the possibility of holding together values and lifestyles that are not only different but also "incompatible". (16).

Thirdly, and finally, adopting an approach that takes race seriously, yet avoids reducing it to a "fetish" or macro-category that claims to hold the answers to a whole array of questions, makes possible a keen awareness that refocuses discussions of political philosophy and philosophy of law on long-standing dilemmas (dilemmas that often arise today in new forms) relating to domination: economic and social, or "class", inequalities; new forms of slavery (which plague vast areas of the world and exist even in democratic and liberal Western societies, however they may repress the fact (17)); sex inequality and discrimination (the so-called "gender issues"); the influence of forms of societal organization (including structural organization, in the Marxian sense) on forms of sentencing. These are themes that critical race theorists, and other theorists seeking to come to terms with the latter, urge us to consider crucial.

In conclusion, the "return of race" might signify not only an indication of other problems - problems relating to the origins of the acknowledgement, integration, and cohabitation of diverse individuals that characterize, though in an ambiguous manner, multicultural societies (18), but also the possibility to envision, in a positive and constructive spirit, new scenarios for democracy - a democracy whose very gene-set would incorporate diversity and equality and embrace (as it benefits from) instances of contamination and hybridization.

4. Lifting the veil and changing perspective: the "subversive" consequence of race

The categories elaborated by critical theorists of racial difference have obviously developed in a specific, clearly-situated context. An example is the critique of the concept of equal opportunity (a value that can, however, be a vector for intolerable injustices), which arises from the specific experience of discrimination and insult suffered by American blacks. (19). It can, however, become "a legacy immediately available to anyone interested in presenting normative arguments to critique present-day institutions, based not on abstract and formal concepts but on the actual fact of oppression and inequality" (20). As Charles Luke Harris and Uma Narayan have argued in support of affirmative action, "race, class and gender continue to act as decisive factors in unequal citizenship, depriving people of the opportunity to participate in numerous forms of association and work that are crucial to the development of skills and capacities - skills and capacities which, in turn, enable human beings to contribute in a significant manner to (and benefit from) the collective opportunities of national life" (21).

The decisive step, though, is exposing forms of discrimination. And it is here that critical race theory shows its powerful "subversive" force and ability to explore reality from a different standpoint. As Barbara Flagg notes paradigmatically in her essay in the anthology, the "metaphor of seeing", in contrast to the rhetoric of color-blind constitutionalism, explains that profound insight, based on the calling into question of the "transparency myth" and of whites' blindness with respect to race, that can lead to serious commitment against the various forms of institutional racism and discrimination (22).

"Seeing" also means "looking at with different eyes", and thus thinking in a new manner with respect to the current normative vision of Western societies. Looking with different eyes at issues of rights, power, law, and the legitimizing aspects of current institutional practices, enables us to see the suffering, harshness, and causes of vulnerability, the quest for dignity, as well as the possibility of social projects and hopes for change in the ever-changing spaces of democracy - moving beyond fear, the pursuit of security and market concerns.

Thus race - "the shadow within Western culture" - reveals its "diagnostic", yet potentially "mobilizing", value for helping us positively re-think ways of living together.

(Translated by Maria Carla Bellucci and Sara Benjamin)

Notes

1. On this topic see the contributions to the present forum published by Marco Goldoni, Isabelle Mansuy and Lucia Re.

2. I use this ambiguous metaconcept with great caution. On its recent re-emergence see the monographic issues of "Filosofia politica" (1, 2004) and "Parolechiave" (31, 2004), and, in particular, G. Preterossi's volume L'Occidente contro se stesso, Rome-Bari, Laterza, 2004. See also I. Buruma, A. Margalit, Occidentalism. The West in the Eyes of Its Enemies, New York, Penguin Books, 2004, and C. Pasquinelli (ed.), Occidentalismi, Rome, Carocci, 2005.

3. I borrow this expression from Gerald Torres and Lani Guinier, who use it, in their characteristic "storytelling" method, "to systematically identify and probe the structures of power and of inequality": Il canarino del minatore e la nozione di political race, in K. Thomas, Gf. Zanetti (eds.), Legge, razza e diritti. La Critical Race Theory negli Stati Uniti, Reggio Emilia, Diabasis, 2005, p. 131. Etienne Balibar makes direct reference to this approach in his contribution to the present forum.

4. A precise reconstruction of the categories is contained in the monographic issue of "Filosofia politica" on "ghenos/race" (3/2003).

5. See S. Forti, Biopolitica delle anime, in "Filosofia politica", n. 3/2003, pp. 397-417. More generally on the topic of race in Europe, see the study by A. Burgio, L'invenzione delle razze, Rome, Edizioni Manifesto Libri, 1998. The very notion of race as a taxonomic entity has been strongly challenged by some geneticists: see especially L.L. Cavalli Sforza, Razze, popoli, lingue, Milan, Feltrinelli, 1996.

6. The same goes for those that some sociologists define as "global cities" (an expression that S. Sassen introduced to the debate on themes and scenarios of globalization in her Città globali: New York, Londra, Tokyo [1991], Turin, Utet, 1997).

7. For a broad outline of the controversy see: M. Rosenfeld, Affirmative Action and Justice. A Philosophical and Constitutional Inquiry, New Haven, Yale University Press, 1991; S.M. Cahn, The Affirmative Action Debate, London-New York, Routledge, 1995; F.J. Beckwith, T.E. Jones (eds.), Affirmative Action. Social Justice or Reverse Discrimination?, New York, Prometheus Books, 1997. See, finally, T.H. Anderson, The Pursuit of Fairness: A History of Affirmative Action, Oxford-New York, Oxford University Press, 2004. For Italy see the excellent work by A. D'Aloja, Eguaglianza sostanziale e diritto diseguale. Contributo allo studio delle azioni positive nella prospettiva costituzionale, Padova, Cedam, 2002 (in part. chapter II).

8. G. Minda, Teorie postmoderne del diritto (1995), Bologna, Il Mulino, 2001.

9. See the contributions by Roberto Vecchi and Valeria Ribeiro Corossacz on this topic. Of the latter author's work, see in particular: Razzismo e gerarchia nella società brasiliana, "La società degli individui", 3, 1999; Il corpo della nazione: classificazione razziale e gestione sociale della riproduzione in Brasile, Rome, Cisu, 2004; Razzismo, meticciato, democrazia razziale. Le politiche della razza in Brasile, Rubbettino, Soveria Mannelli (CZ), 2006.

10. See P.K. Kahn, The Cultural Study of Law, University of Chicago Press, Chicago, 1999.

11. Taking the approach of the "geography of differences" leads us to a full acknowledgement of juridical and normative pluralism as an approach to law: on this, see the contribution by A. Facchi, Prospettive attuali del pluralismo normativo.

12. On the transformations being undergone by the notion of "citizenship" under the pressure of migration and globalization dynamics, see the studies by S. Mezzadra: Diritto di fuga: migrazioni, cittadinanza, globalizzazione, Verona, Ombre corte, 2001; I confini della globalizzazione: lavoro, culture, cittadinanza, edited by S. Mezzadra and A. Petrillo, Rome, Manifestolibri, 2000. For an analytical and quite extensive examination of the notion of citizenship, an indispensable reference is the monumental work by P. Costa, Civitas. Storia della cittadinanza in Europa, 4 voll., Rome-Bari, Laterza, 2000-2003.

13. On the re-introduction of forms of democracy "from below" fostered within the new global movement and by the various Social Fora, see the contributions of a "mestizo" thinker like Boaventura de Sousa Santos: Il Forum sociale mondiale: verso una globalizzazione antiegemonica, Troina, Città aperta, 2003; Democratizzare la democrazia: i percorsi della democrazia partecipativa, edited by B. de Sousa Santos; introduction by G. Allegretti, Troina, Città aperta, 2003; Law and Globalization From Below: Towards a Cosmopolitan Legality, ed. by B. de Sousa Santos, C. A. Rodriguez-Garavito, Cambridge, Cambridge University Press, 2005. See also G. Allegretti, L'insegnamento di Porto Alegre: autoprogettualità come paradigma urbano, Firenze, Alinea, 2003.

14. This is the line of studies opened up by authors such as Mike Davis, who, for instance, M. D'Eramo makes reference to in his Il maiale e il grattacielo. Chicago: una storia del nostro futuro, Milan, Feltrinelli, 2004.

15. The notion of human dignity is one of the normative and value bases of the welfare state: from theories on social rights to the numerous forms of aid, up to the most recent basic-incomeproposals, references to human dignity play a strategic role in justifying public policies. On this point see R. Sennett, Rispetto. La dignità umana in un mondo di diseguali (2003), Bologna, Il Mulino, 2004. The Katrina hurricane disaster revealed the pervasiveness of "structural discrimination" (and of its cycle of reproduction), and thus the links among various forms of vulnerability - social, economic and racial - and dignity-deprivation: it is not by accident that among thousands of victims there were elderly, black, poor people living alone. For an extensive analysis of the event see the monographic issue of "Giano", n. 51, 2005: 'Katrina, la bomba "sporca" di Bush'.

16. Of great normative importance is the theoretical survey carried out by an excellent scholar of multiculturalism such as J. Raz: I valori tra attaccamento e rispetto, edited by F. Belvisi, Reggio Emilia, Diabasis, 2003. See also the recent proposal contained in the book by the Ghanaian philosopher K. Appiah, The Ethics of Identity, Princeton, PrincetonUniversity Press, 2005 and further developed in Id., Cosmopolitanism. Ethics in a World of Strangers, New York-London, W.W. Norton & Company, 2006.

17. On the topic of slavery in the global economy see K. Bales, I nuovi schiavi. La merce umana nell'economia globale (1999), Milan, Feltrinelli, 2000. Please also see my own contribution, Schiavitù: le catene della vulnerabilità, in Questioni di vita e di morte, edited by M. La Torre and A. Scerbo, Turin, Giappichelli, 2006.

18. See also M.L. Lanzillo, Il multiculturalismo, Rome-Bari, Laterza, 2005 and C. Galli (ed.), Multiculturalismo, Bologna, Il Mulino, 2006.

19. On the many thorny issues raised by the normative arguments of critical race theorists with regard to the notion of "equality", see Gf. Zanetti, "Ma che razza di pluralismo". Autonomia e "opzioni disponibili alla scelta" dopo gli anni novanta, "Ragion pratica", 1, 2006 (forthcoming).

20. K. Thomas and Gf. Zanetti, Introduzione a Legge, razza e diritti, cit., p. XI.

21. C.L. Harris and U. Narayan, L'azione affermativa e il mito del trattamento preferenziale, in Legge, razza e diritti, cit., p. 177.

22. B. Flagg, Ero cieco, ma ora vedo, in Legge, razza e diritti, cit., pp. 79-83. This metaphor also recalls Ralph Ellison's novel, Invisible Man, which Mario Maffi recently cited in his examination of the Katrina hurricane disaster, arguing that the "racial problem" in America is even today still inseparably connected with the "class problem" (M. Maffi, Blues della morte per acqua. Ricordando New Orleans, published in "Ácoma. Rivista Internazionale di Studi Nord-Americani").