Law as a Socially Conditioned Instrument of Injustice

“Equal in Paris” calls into question the presumed function of French law as an instrument of neutral justice and implicitly strips the law of any pretensions it may have of transcending the prejudices and anxieties that exist in the broader society in which it is administered. Although not, according to Baldwin, a “despised black man” in the eyes of the officers who arrested him, Baldwin was poor—a member of “that precarious group of people of whatever age, race, country, calling, or intention which Paris recognizes as les étudiants and sometimes, more ironically and precisely, as les nonconformists” (104). He observes that French society wishes to remain ignorant of the fact that it “could be counted on to produce, probably in greater and greater numbers, a whole body of people for whom crime was the only possible career” (114), instead criminalizing the poor through the petty offenses to which poverty inexorably leads. In this way, Baldwin intimates, French society could conceal even from itself the oppressive nature of the poverty to which some are fated. But rather than confronting the injustice of economic oppression, French law transmutes poverty into crime, rendering the condition of poverty a moral failure among the poor rather than a moral failure of the society that produces a whole body of people “for whom crime is the only possible career” (114). Thus, by implication, the French legal system serves to legitimate and facilitate injustice rather than justice.

Baldwin’s arrest for possession of a stolen bedsheet serves as a synecdoche for how, rather than administering justice, French law facilitates and perpetrates injustice. Baldwin remained at a hotel that failed to change his bed sheets because he (presumably) could not afford accommodations that would reliably deliver the basic and expected service of clean linens. In other words, due to his poverty, Baldwin was subject to the hotel equivalent of a slumlord. The poverty and powerlessness of its patrons undoubtedly enabled the hotel’s practice of failing to provide clean linens. Rather than addressing the injustice inherent in the hotel’s failure to provide basic services, French law focuses on Baldwin’s criminal possession of a stolen sheet. The law leaves unexamined the oppressive conditions that led Baldwin to borrow the sheet in the first place.

Baldwin’s description of the courtroom proceedings he observes while awaiting trial tells us that his arrest and imprisonment for a petty crime of necessity was not unique. In the dead of winter, for example, a boy receives a six-month sentence for stealing a sweater, a “crime” that shares with the stolen sheet an origin in a larger, more serious crime that goes unremarked and unreferenced: an economic system that denies basic necessities to the poor (113).

Despite the pettiness of their crimes, it seems to Baldwin that everyone in the courtroom, including the judge, the lawyers, and the prisoners themselves believed “that all the people who were sentenced that day had made, or clearly were going to make, crime their career” (113). In other words, the pettiness of the crimes does not immunize the defendants from the perception of a more deeply rooted tendency toward criminality but actually serves to confirm it: trapped at the bottom of French society, surviving on the economic margins, the impoverished offenders belonged “to a whole body of people for whom crime was the only possible career” (114).

According to Baldwin, pride and lack of sentimentality made it difficult for the French to seriously entertain the possibility that these petty offenders could be rehabilitated and diverted from a life of “crime.” Seriously pursuing their rehabilitation would, after all, entail dealing with the true cause of their criminality—social structures that made crime their only possible career. Thus, as Baldwin strongly implies, the French studiously avoid a genuine confrontation with the moral crisis inherent in criminalizing a whole body of people; the offenders are placed in a part of the courtroom “where they could not be seen—and not because they [the French] were offended at the crimes, unless, indeed they were offended that the crimes were so petty, but because they did not wish to know” that it was not individual moral failures, but instead their whole society, that manufactured an underclass for whom crime was a fait accompli (114).

Baldwin encounters willful ignorance of the true nature of petty crime among the poor in the form of laughter. Rather than a mood commensurate with the agony he experienced during his eight days of incarceration, “great merriment” and laughter accompany the dismissal of his case (116). Although the laughter was intended to “warm” him, it had the opposite effect, chilling him (116). It reminded Baldwin of “the laughter that [he] often heard at home … of those who consider themselves to be at a safe remove from all the wretched, for whom the pain of the living is not real” (116). Moreover, as literary scholar Adam Kaiserman comments, the laughter of the courtroom does not reflect self-knowledge but the “recogni[tion] that someone else’s misfortunes, while comprehensible, will never happen to oneself.”Footnote ⁶ If the privileged believed that they could suffer the same “misfortune,” rather than laughter, perhaps the deadly seriousness of the situation would fill them with fear.

In the concluding lines of “Equal in Paris,” Baldwin remarks that, despite his wish to find in Paris a refuge from the same laughter that he heard so often in Harlem, his life began “that first year in Paris, when it was borne in on [him] that this laughter is universal and never can be stilled” (116). In Paris, Baldwin discovers that white American laughter at Black oppression is not unique. It is instead the universal response of the safe and the privileged who refuse to confront collective moral failure. Thus, as Kaiserman notes, while not an apology for anti-Black racism in America, in Paris, Baldwin came to understand the universal problem underlying the cruelty of white American indifference to Black suffering.Footnote ⁷

Hypocrisy and Whiteness

Baldwin’s decision to title his essay “Equal in Paris” conveys a certain irony. If the laughter of the French courtroom is correctly understood in terms of the universal failure of the privileged to extend equal regard to the humanity of the oppressed, Baldwin’s ostensible experience of equality in Paris—recall that “evening in the commissariat [Baldwin] was not a despised black man … [he] was an American”—raises the question of whether achieving formal equality would end the subordination of Blacks in America (106–07). In particular, the French system of justice facilitates the moral failure to empathize with and extend equal regard to the poor. In rendering the French underclass—the true victims—as criminals, French law serves to conceal, perpetuate, and foreclose confrontation with the injustice inherent in the social structures that force the poor into crime.

A similar phenomenon of legitimation and concealment is at work in the United States when white supremacy manufactures Black criminality and thereby transforms victims of injustice into its perpetrators. The year prior to the publication of “Equal in Paris,” Brown v. Board of Education Footnote ⁸ ended “separate but equal” and disestablished white supremacy as the normative value of American life. As Baldwin’s experience in France anticipates, however, formal legal equality does not spell the end of racial subordination. Brown was met with widespread southern resistance to the command of formal equality, but more insidiously, it was met by appeals to “law and order” that criminalized Black people and birthed the era of mass incarceration.Footnote ⁹ The law after Brown purports to guarantee equality while maintaining racial oppression now concealed from view by the criminalization of Black people. Indeed, just as France makes crime the only career for a whole body of people, Baldwin elsewhere intimates that the same is true for Blacks in America: “Crime became real, for example—for the first time [upon understanding the injustice that white supremacy causes in virtually every facet of Black life]—not as a possibility but as the possibility. ”Footnote ¹⁰

Given the parallel criminalization of victims of injustice in France and the United States, it is perhaps unsurprising when Baldwin writes that the laughter of the French court “remind[ed] [him] of the laughter [he] had often heard at home, laughter which [he] had sometimes deliberately elicited” (116). While Baldwin does not tell us the circumstances or reasons he would deliberately elicit such laughter, we can infer that he did so to enable whites to relieve their anxiety and discomfort in confronting racial oppression. Writing about his tendency to manipulate white reactions, Baldwin says, “I had become very accomplished in New York at guessing and, therefore, to a limited extent manipulating to my advantage the reactions of the white world … . I knew that it was, for them, of the utmost importance that they never be confronted with what, in their own personalities, made [my] role so necessary and gratifying to them, I knew that they could never call my hand or, indeed, afford to know what I was doing” (106). Although he believed Paris would offer escape from such laughter, he nevertheless encounters the same laughter at his trial. The implications are clear. Like their American counterparts, the French use laughter to avoid confrontation with the true nature of themselves and their society. Thus, avoidance of moral failure is the “universal” that Baldwin identifies in the practice of inappropriate laughter, which averts confrontation with the grotesque barbarity of normalizing and even legitimizing the practice of dehumanizing whole groups of people, in France the poor and in America, Black people.

For Baldwin, the pretension that law organizes society in a moral direction when, in reality, it is used to perpetrate and perpetuate injustice in the interests of the powerful reflects the fact that law inevitably expresses the moral character of the society in which it is administered. As literary scholar Quentin Miller has said in his analysis of Baldwin’s play Blues for Mister Charlie, Baldwin argues that “the justice system operates according to the common biases of the land,” so that in practice justice is not administered fairly.Footnote ¹¹ Notwithstanding the moral principles a legal system may purport to uphold, Baldwin believes that “[e]very society is really governed by hidden laws, by unspoken but profound assumptions on the part of the people, and [American] society is no exception.”Footnote ¹² In the United States, anti-Black racism constitutes such a hidden law.Footnote ¹³

The difference between the United State’s professed ideals and the hidden laws that actually govern America is aptly captured by what Princeton University professor Eddie Glaude, Jr. calls the “value gap,” a term that captures the chasm between U.S. democracy as an ideal and American democracy as practiced.Footnote ¹⁴ In Glaude’s view, the tendency to deny or ignore the contradiction between American ideals and practice constitutes “the lie” that as a writer Baldwin strove to face and expose.Footnote ¹⁵

Habits of “denial” and “avoidance” are necessary to maintain the “lie” that is implicit in the practice of a racist democracy.Footnote ¹⁶ As Glaude contends, “[f]or Baldwin, the accumulation of lies suffocated the white southerner,” who “had to lie continuously to justify his world.[Footnote ¹⁷] Lie that the Black people around him were inferior. Lie about what he was doing under the cover of night. Lie that he was a Christian.”Footnote ¹⁸ In other words, lying was central to the maintenance of white supremacy.Footnote ¹⁹ Reflecting the centrality of “the lie” for white supremacy, Baldwin writes:

In other words, white identity is intimately bound up with white supremacy and therefore with the degradation and dehumanization of Black people. In this way, much racial oppression reflects the effort of whites to assign Black people an identity and place consistent with white supremacy. But doing so required resort to lies, including the maintenance of various contradictions, such as the existence of a legal system that purports to do justice even as “lynch law” allowed Blacks to be murdered with impunity, a doctrine of separate but equal that was in fact inherently unequal, and the concession to terrorism in the form of the Klu Klux Klan even while professing a commitment to a moral order.

Despite the obviousness of such contradictions, lies about the alleged inferiority of Black people operated to deny the reality of racial oppression.Footnote ²¹ Thus, for example, many whites insisted that racial differences justified segregation, thereby denying, as Brown recognized, that separate is inherently unequal and therefore oppressive. In this regard, the interplay between segregation and lies about Black inferiority as a means of maintaining white supremacy resembles France’s use of petty crimes to criminalize the poor in the interests of justifying a society that leaves some so destitute that crime is their only career. Moreover, just as the privileged who made up the audience at Baldwin’s trial in France knew they were at no risk of suffering a misfortune like the one Baldwin did, white Americans have been able and willing to deny racial domination because (being white) they are immune from it. Hence Baldwin’s statement that the laughter of the courtroom reminded him of the “laughter that he often heard at home … of those who consider themselves to be at a safe remove from all the wretched, for whom the pain of the living is not real” (116).

Hypocrisy and Injustice in Christian Civilization

For Baldwin denial and avoidance of confrontation are key themes in sustaining the dialectic between the oppressor (whites in the United States, the privileged classes in France) and the oppressed (Blacks in the United States, the poor in France). But a question arises regarding why American or French oppressors insist on denying and avoiding their domination of the oppressed. Not every dominant group across space and time has suffered from such double-mindedness. For example, the ancient Romans do not appear to have suffered moral scruples from their domination of others but seem to have celebrated their power to subjugate and inflict pain upon others, even associating oppression with divinity.Footnote ²² Indeed, for the ancient world it appears that the poor or the weak altogether lacked the value that we assign by virtue of their humanity.Footnote ²³

Philosopher Friedrich Nietzsche famously captured the vast moral difference between antiquity and the contemporary world in his identification with the former as master-morality and the latter as slave-morality. The master-morality of the ancient Greeks and Romans celebrates the strong and the victorious. In contrast, slave-morality, which emerges with the advent of Christianity, attributes value to the weak and the oppressed, exalting victimhood in the figure of Christ-crucified.Footnote ²⁴ Whatever one makes of Nietzsche’s criticism of Christianity as a subversive ploy by the weak to dupe the strong, Christianity’s immense influence on the moral and legal traditions of the West is hard to overstate.Footnote ²⁵ It is reasonable to postulate that Christianity and the norm of the equal dignity of all people that it directly or indirectly inspired is the reason that, unlike the ancient Greeks and Romans, the United States and France do not celebrate domination but instead work to deny and conceal it.

Notwithstanding professions of Christian morality and the cognate ideal of the moral worth and equality of all persons, the degree to which Christianity’s moral commitments have taken deep root in the everyday mores, as opposed to the professed norms, of Western life is another matter. Thus, although Christianity is arguably the ultimate origin of Western legal concepts of universal equality, as well as everyday contemporary professions of moral concern for the poor, the weak, and the vulnerable,Footnote ²⁶ there is a wide gap between the standards of Christian morality and the history of Western societies. Thus, the United States practiced a brutal form of chattel slavery while the overwhelming majority of Americans simultaneously professed to be Christians. The same contradiction between Christian moral norms and American life continued through the Jim Crow era. In many ways the same contradiction continues today.Footnote ²⁷

Baldwin, like many of his contemporaries, was fiercely critical of the hypocrisy of America as a nation whose people strongly identified with Christianity, while simultaneously practicing and sanctioning white supremacy and racial oppression.Footnote ²⁸ In “Equal in Paris,” Baldwin subtly but powerfully captures the irony of Western Christian civilization. Imprisoned in Paris on Christmas day, Baldwin receives permission to attend mass. Baldwin instead finds himself “[f]or a freezing hour and a half, locked in exactly the same kind of cubicle as in the wagon which had first brought [him] to prison, peering through a slot placed at the level of the eye at an old Frenchman, hatted, overcoated, muffled, and gloved, preaching in this language which [he] did not understand, to this row of wood boxes, the story of Jesus Christ’s love for men” (116). Whereas Christianity teaches love and compassion for the imprisoned and condemns oppression of the poor, the French preach the love of Christ to prisoners suffering in the depth of winter for what in many cases amounts to the crime of poverty. The French thereby manage to conceal their oppression of the poor—and transgression of Christian morality—even while their hypocrisy lies in plain sight.

The justificatory role of Christianity in France’s oppression of the poor is also seen in America. Baldwin observes nearly a decade later in “The Fire Next Time” that “legend and theology, which are designed to sanctify our fears, crimes, and aspirations, also reveals them for what they are.”Footnote ²⁹ Thus, as Miller notes, for Baldwin, organized religion serves as a means of making crimes against humanity—such as teaching the poor to be content with their poverty—holy.Footnote ³⁰ For Baldwin the criminalization of poverty or, in the American context, blackness is accompanied by denial and avoidance of the hypocrisy that defines the professed commitments of the moral inheritance of Christian civilization and its actual practices, including two institutions that constitute the chief sources of morality in Western civilization: the church and the law.Footnote ³¹

Baldwin, Racial Illiteracy, and Bans on Critical Race Theory

In “The Fire Next Time,” Baldwin writes, “whoever wishes to become a truly moral human being … must first divorce himself from all the prohibitions, crimes, and hypocrisies of the Christian church.”Footnote ³² Moreover, as Miller contends, for Baldwin abuse of power “under the pretext of the law” can mean “a hypocrisy much deeper” than the hypocrisy of religion.Footnote ³³ If a society is to be truly moral, it must break free of not just religious but legal hypocrisy.

Critical race theory is the dominant form of race and law scholarship. Its influence now extends far beyond the legal academy. As a scholarly movement, one of critical race theory’s central aims is to uncover how the law purports to be race-neutral and colorblind, while in fact maintaining, furthering, and enacting racial subordination.Footnote ³⁴ In particular, critical race theory excavates the law’s role in maintaining racial hierarchy by demonstrating that, contrary to mainstream legal thought, the law does not function autonomously and according to objective standards of rationality. The legal system is instead pervaded and constituted by the bias, power-relations, and racial hierarchies that exist in American life as a whole, which in turn shape and reinforce racial subordination in the society at large. In this respect, critical race theory holds a mirror up to American law that reveals the racialized structures of injustice that colorblind standards of legal justice serve to conceal.

From a Baldwinian perspective, critical race theory can thus be understood as constituting a “confrontation” with the collective act of “avoidance” that colorblind jurisprudence implicitly represents.Footnote ³⁵ Indeed, insofar as colorblindness in the law purports to be free of racial bias when it in fact reflects and furthers such bias, critical race theory exposes the hypocrisy of American law on issues of racial justice. In this respect, critical race theory and Baldwin share a concern with searching out the deeper motivations of the law, discovering the gap between professed and practiced values, and exposing hypocrisy.Footnote ³⁶

Although critical race theory has long been controversial within the legal academy,Footnote ³⁷ it became controversial on a much larger, indeed nationwide, scale when in September 2020 the Trump administration condemned diversity trainings based on critical race theory and cognate ideas as “divisive, un-American propaganda.”Footnote ³⁸ By executive order, the Trump administration directed federal agencies to end diversity training sessions that, among other things, employ “divisive concepts,” such as “race or sex stereotyping,” and “race or sex scapegoating.”Footnote ³⁹ Notwithstanding the foregoing executive order’s failure to reference the term “critical race theory,” the order has been widely understood as targeting critical race theory and cognate concepts.Footnote ⁴⁰

Critical race theorist Kendall Thomas has observed that the Trump administration “weaponiz[ed]” critical race theory through an “aggressive and active misrepresentation of [it].”Footnote ⁴¹ According to Thomas, the administration’s real target was not critical race theory, but ensuring continued “compulsory racial illiteracy” through using a “cultural fantasy” of critical race theory to impede critical race theory’s project of fostering racial literacy.Footnote ⁴² In other words, the Trump administration weaponized and actively misrepresented critical race theory to prevent the distribution of knowledge about the function of race in American society.Footnote ⁴³ From a Baldwinian perspective, we can understand the Trump administration’s effort to maintain racial ignorance in terms of a larger tendency to deny and avoid confrontation with the reality of racial oppression in America.

In addition, the executive order’s claims that the diversity trainings it bans constitute a “destructive ideology … grounded in misrepresentations of our country’s history and its role in the world” would not surprise Baldwin.Footnote ⁴⁴ Baldwin would see the foregoing claim as a familiar example of the American tendency to refuse knowledge about racial subordination—an innocence which for Baldwin “constitutes the crime.”Footnote ⁴⁵ For Baldwin, the innocence achieved by the refusal of knowledge is the crime because it entails that Black people will continue to suffer dehumanization. Thus, for Baldwin, Trump’s attack on critical race theory as a means of maintaining racial illiteracy would “constitute[] the crime” that typifies the problem of racial oppression in America.Footnote ⁴⁶

Baldwin would be unsurprised to learn that Trump’s effort to perpetuate racial illiteracy has inspired multiple states to ban critical race theory in public schools.Footnote ⁴⁷ Indeed, the existence of widespread efforts to avoid interrogating racial subordination reflects Equal in Paris’s theme that societies work hard to avoid knowledge of the oppressive practices that structure their collective lives. In other words, the recent reaction and controversy over critical race theory strongly reflects Baldwin’s view of the centrality of denial in maintaining subordinating and dehumanizing social practices.

Baldwin and Critical Race Theory: The Problem of Love and Power

Baldwin assigned great importance to the role of denial and avoidance in perpetuating subordinating practices that are inconsistent with a society’s professed commitments. To overcome collective injustice, Baldwin believed it was essential to bring to light the “hidden laws” that actually govern a society, thereby exposing its hypocrisies.Footnote ⁴⁸ In addition to exposing hypocrisy, Baldwin emphasized the importance of power and love to achieving a truly just and free society.

Although Baldwin emphasized the importance of exposing hypocrisy, he does not appear to have believed such exposure would be enough to secure justice. Nor did Baldwin believe appeals to Christian love sufficient to dissolve the gap between professed beliefs and the reality of racial oppression. Thus, Baldwin writes, “[n]either civilized reason nor Christian love would cause any of those people to treat you as they presumably wanted to be treated; only the fear of your power to retaliate would cause them to do that, or to seem to do it, which was (and is) good enough.”Footnote ⁴⁹ In so elevating the power of consequences over the efficacy of reason or love, Baldwin reflects a sweeping move away from the appeal to conscience and morality that characterized the early civil rights movement. As Baldwin writes, “the Negro himself no longer believes in the good faith of white Americans.”Footnote ⁵⁰ With the loss of faith in the possibility of morally reforming the white majority, Baldwin could arrive at the conviction that, “there is simply no possibility of a real change in the Negro’s situation without the most radical and far-reaching changes in the American political and social structure.”Footnote ⁵¹ In other words, like critical race theorists, Baldwin emphasizes the necessity of structural reform.Footnote ⁵²

In light of the contradictions between the white majority’s moral professions and its oppression of Black people, Baldwin writes that “[t]he only thing that white people have that black people need, or should want is power,” the implication being that with power Blacks could resist white domination.Footnote ⁵³ But he quickly adds that “no one holds power forever.”Footnote ⁵⁴ Baldwin also emphasizes that power alone is insufficient to secure a moral way of life.Footnote ⁵⁵ Indeed, he warns that those who rely on power alone to change the world always make it worse, writing “[f]or it would seem that a certain category of exceptions never failed to make the world worse—that category, precisely, for whom power is more real than love.”Footnote ⁵⁶ Baldwin therefore implicitly suggests that love is essential to making the world a better place, and that preoccupation with power alone is dangerous.

Although Baldwin emphasizes the necessity of structural reform and the insufficiency of moral appeals for achieving real change, Baldwin maintains that love is indispensable for achieving a truly moral and free society.Footnote ⁵⁷ He also believes love essential for confronting the truth of white supremacy and overcoming the hypocrisy inherent in the gap between professed and lived values. As Baldwin writes,

Thus, according to Baldwin, love can peel away the mask of white society’s false self-image, thus liberating society from the oppressive hypocrisies that contribute to and reinforce racial oppression. Baldwin makes clear that he does not have in mind “love” in “the personal sense but as a state of being, or a state of grace—not in the infantile American sense of being made happy but in the tough and universal sense of quest and daring growth.”Footnote ⁵⁹

In contrast to Baldwin, in the main, critical race theorists are silent on the relevance of “love” to resolving the gap between the legal system’s commitment to the ideal of colorblindness and racial equality and the lived reality of racial subordination. Indeed, critical race theory’s anti-subordinationist agenda is almost exclusively carried out through critique of “racial power” and the subordinating social structures in which racial power is expressed. Critical race theory’s focus on power and its general failure to put forward a strong and positive vision are perhaps rooted in a current within it of skepticism toward objective standards of justice. Critical race theory’s detractors and opponents have latched on to this failure, having long criticized critical race theory’s repudiation of Enlightenment standards of rationality and repudiation of objective truth as reducing law to politics and power.Footnote ⁶⁰

For reasons that would take us too far afield, many of critical race theory’s opponents are guilty of critiquing a strawman.Footnote ⁶¹ Nonetheless, it is difficult for critical race theory to convincingly respond to the allegation that, in rejecting objective truth, critical race theory reduces law to politics and power.Footnote ⁶² In this respect, critical race theory leaves itself vulnerable to the charge that its overwhelming focus on critiquing law as an instrument of racial power together with its rejection of truth leaves it bereft of a positive vision of society.

In addition to the above critiques, critical race theory has been accused of being hostile to whites.Footnote ⁶³ Although such critiques strawman critical race theory, its anti-subordination work has entailed relatively little attention to how such work is redemptive for whites.Footnote ⁶⁴ In fact, concern with redeeming the white majority not only is not a prominent theme in critical race theory literature but it may even be seen as reinforcing racial subordination.Footnote ⁶⁵ Indeed, concern with saving whites from the harm of white supremacy may be thought to implicitly conflict with critical race theory’s tendency to represent racial subordination primarily in terms of a conflict between oppressors and oppressed that is driven by the interests of the oppressor.Footnote ⁶⁶ In contrast to this view, the ideal of love and concern with white redemption insist that oppression does not actually serve the true interests of oppressors.Footnote ⁶⁷

In my estimation, the uncomfortable truth about what might be described as a general lack in critical race theory of emphasis on redeeming, liberating, or saving whites from the harm caused to them by Black oppression reflects the historical legacy of the Black power era, which assumed a militant posture that entailed a turn away from love.Footnote ⁶⁸ However, that critical race theory in the main continues the historical turn away from love in favor of militancy does not entail that Baldwin was wrong to insist, alongside his emphasis that the oppressed must gain power in society, on the necessity of love for true liberation of both Blacks and whites. Indeed, we may—in fact, ethically I believe we must—ask whether the immense contributions of critical race theory in excavating and examining the many-sided hypocrisies and, in Baldwin’s phrase, the “hidden laws” that perpetuate racial subordination in the United States is sufficient to secure a truly human society, where power is exercised to safeguard the dignity of the human person as opposed to defending and protecting the privilege of some at the expense of others.