Tuesday, January 3, 2012

"Neutral" application of the law and racism 1

Ta-Nehisi Coates has a challenging piece up that he calls The Banality of Racism. He has a good point: that racism is rarely the sort of direct attack on a person that first comes to mind. A lot of racism is hidden in process. It's a good point and if Coates goes astray, it is because he doesn't apply it generally enough.

Consider, for example, the case of gun control. The ostensible purpose of gun laws is to stop guns from being used in crimes and from getting into the hands of those who are unable to appreciate the dangers and handle them carefully. In fact, however, the brunt of gun laws comes to bear not on criminals but on legal gun owners who tend to be more law abiding than the public at large. And if you read the opinions of the most vociferous supporters of measures such as the recently abolished Long-gun Registry here in Canada, it quickly becomes obvious that these people tend to be opposed to guns in general and not the specific issues of guns used in crimes and careless handling of firearms. And they push, sometimes successfully, for laws whose real purpose is to make gun ownership difficult or impossible under the guise of preventing criminal or careless use of firearms.

This sort of abuse is possible in virtually any area of the law. A while ago we had a city councilor here who hated dogs. She didn't pass any new bylaws but merely used her influence with the city administration to have existing bylaws enforced in a way that was tantamount to hassling dog owners. Bylaw officers who had better things to do spent hours sitting outside city parks looking for dog owners who leashed their dog ten feet on the wrong side of the sign that designated where the off leash area ended.

It will always be possible to abuse use  seemingly neutral laws or groups of laws to serve discriminatory purposes. The challenge is to determine how to limit this effect while achieving something as close to neutral application as is possible.

One possible solution is the rationalist approach. In this approach, well-drafted laws or additional laws, regulations and precedents can be made to cover every possibility. That, however, is never enough. No text can be self-interpreting and supplying a second text to interpret the first always reaches a limit. Ultimately, we rely on the good faith of the executive arm of government and here there will always be failures.

And there, I think, is the core of Coates' mistake, this being the case, his move to suggest that power be taken away from one level of government and given to a higher level. He wants to regard every single case of neutral laws intended to stop voting fraud as discrimination. He is not alone in this, rationalists always seem to push for more government and more central government (the reductio ad absurdum of which is world government).

Of course, this response is conditioned by history: states rights was used to justify racism. But that is a contingent fact. It could just as easily have happened the other way. A powerful central government combined with a plurality of voters who either support racist measures or don't care enough to do away with them could impose racist laws on local governments eager to do away with same.

The solution is to be less rationalistic and have more faith in rationality.

More to come tomorrow.

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