Looking to the Bottom: Critical Legal Studies and Reparations

"Looking to the Bottom: Critical Legal Studies and Reparations"
Mari Matsuda
Part 2: Critical Race Theory and Critical Legal Studies: Contestation and Coalition from Critical Race Theory: The Key Writings that Formed the Movement

Above is a bumper sticker I encountered in what billed itself as the World's Largest As-Seen-on-T.V. Store, in Pigeon Forge, Tennessee. I'm not sure what the "this" is that it's referring to; my best guess is the loss and subsequent subordination of the Confederate States to the Union. But I wasn't raised in the South, I'm not white, and the norms that would allow for a "correct" interpretation of that bumper sticker are ones I'm not familiar with; I'm not even sure where I would begin to look or who I would begin to ask for an interpretation, although I'm betting that people driving cars with Confederate flags would be most likely to buy that bumper sticker and thus a good start (assuming they'd be willing to talk to me, which doesn't seem likely). On the other hand, those most likely to encounter and disagree with the bumper sticker—like, say, descendants of slaves in the South—would almost certainly have a different interpretation.

In Matsuda's article, she notes that while critical legal theory rejects the idea of a universally-accepted, ideologically-neutral method of addressing conflicts, or, in other words, repudiates Enlightenment ideals of instrumental reason as a way to solve all problems, critical legal scholars have not yet established any other method. The solution Matsuda suggests is examining problems from the perspective of those who historically have been disadvantaged and oppressed. She first discusses ways in which those "on the bottom" have found a double consciousness that acts as a strength, allowing them to combat injustice "through the process of appropriation and transformation" (64), then goes on to examine reparations claims as an extended example of how to apply this approach. The analysis Matsuda does of the ways that people of color have used their double consciousness as a strength is both compelling and interesting, but might have benefited more from a lengthier explanation of how exactly "looking to the bottom" functions in practice prior to delving into a somewhat lengthy example as an illustration.

The point Matsuda is arguing here is one of the critical issues that debates in feminist standpoint theory revolve around, because even having concluded that prioritizing the voices of those who have previously been silenced, that does not provide a clear path forward. Matsuda claims that when value conflicts "are examined…from the position of groups who have suffered through history, moral relativism recedes and identifiable normative priorities emerge" (63). However, this seems dangerously close to promoting the idea that people of color all share the same priorities. How do we resolve value conflicts within an oppressed group? Additionally, individual experiences differ; for instance, the experience of a black middle-class straight woman is different from the experience of a Latina working-class lesbian woman. Should we play oppression Olympics and award the winner the prize of being heard?

I should note here that I do not say this as an indictment of standpoint theory or "looking to the bottom"; regardless of the problems that lie within the looking-to-the-bottom paradigm, it remains one more likely to lead to lessening injustice than the paradigm of meritocracy that supports, justifies, and perpetuates racism. That said, both models suffer from the flaw of assuming that the path to justice is simple—we just need to figure out who to listen to, listen to them, and all will be clear. But it's not as easy as Indiana Jones rejecting the pretty, shiny cup in favor of the battered and dented Grail. In that setup, we are already buying into the assumption that Indy has to choose a cup; the only question is whether he can choose the correct one.

This is the issue that I have with Matsuda's argument: It does not go far enough in questioning the base assumptions. Matsuda points out that "the standard legal claim" looks like this:

"Plaintiff A (individual victim)
v.
Defendant B (perpetrator of recent wrong-doing)"

whereas "a claim in reparations looks like this:

Plaintiff Class A (victim group members)
v.
Defendant Class B (perpetrator descendants and current beneficiaries of past injustice)"

and goes on to explain how despite this difference, it is still possible to conceive of the second example as a valid legal claim (70). However, in building this argument, Matsuda relies on the assumption that the dominant class, i.e., the "current beneficiaries," owes the "victim group." To a significant degree, this relies on the scenario of perpetrator/victim, and this is one of the difficulties with discussing racism overall—when what we look at is "business as usual," it is very hard to clearly define a "perpetrator." This is why we run into discussions of intentionality, why "playing the race card" is an accusation that somehow is supposed to negate the validity of racism, why a defense against reparations is that it would increase racism: we're always looking for who is at fault and how much fault there is, with the assumption that we need to prove sufficient fault to justify punishing the perp; if we don't have enough fault for that, then victims ought to "let it go."

Particularly in the cases that Matsuda discusses, though, of reparations to native Hawaiians (for the American theft of Hawaiian land and overthrow of its government) and to Japanese-Americans (for their brutal internment during World War 2), we have a clearly identified perpetrator: the United States government. Framing it as an issue of "perpetrator descendants" obscures that fact, which is problematic for two reasons. First, it suggests that payments for reparations would come directly from the perpetrator descendants, leading us into a murky labyrinth of arguments about who exactly qualifies as a perpetrator descendant. Second, and more importantly, it suggests that the government is somehow not responsible for providing justice to all of its citizens, in direct contradiction to the Preamble to the Constitution: "We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity…"

The "ideological traps of traditional rights thinking" that Matsuda refers to still lie within the premise of the argument she presents (75), because that argument assumes that we need an outside justification and perpetrator to justify the remedying of injustice. We don't. We already have the justification, we already have the perpetrator, and the perpetrator already is responsible, by the very document that created its existence, for righting these wrongs. Statistics clearly indicate that by any measure, neither justice, wellbeing, nor the blessings of liberty are possessed in equal measure by all citizens. Reparation* is owed not as retribution against the beneficiaries or the dominant class, but because we have a positive right to governmental intervention in the case of systemic and systematically-perpetrated inequity.

* I'm dodging part of this argument; I think that actual cash reparations the way that they usually seem to be conceived of would not be particularly helpful, so by "reparation," I mean "repair" rather than specifically "reparations" in the sense of "making amends."