1 Fitzpatrick on racial capitalism

Cedric Robinson's compelling 1983 work, Black Marxism: The Making of a Black Radical Tradition (Robinson, Reference Robinson2000), amply demonstrates that the history of capitalism is no less than a history of racism. This, too, is the opening premise of ‘Racism and the innocence of law’ (Fitzpatrick, Reference Fitzpatrick1987, pp. 119–121). From this primary assertion come three elements of a strategy that Fitzpatrick offers to anyone intent on embarking on a legal critique of capitalism. Two of these, to my mind, are prescriptive and the third is intended to sound a note of caution. The first is that racism, understood ‘in an extended way to cover both belief and practice’ (Fitzpatrick, Reference Fitzpatrick1987, p. 119), cannot be assigned to the footnotes or margins of theory. The second is that any such theory must be propelled by the experiences of racialised people, noting, in particular, that racism is manifested in microaggressions: for ‘a multitude of oppressions are effected by the mundane and the obvious’ (Fitzpatrick, Reference Fitzpatrick1987, p. 123) as well as in calamitous acts of violence. The third is that, when studying racial capitalism, scholars must be wary of the impulse to ‘retrieve law and add to the list of obviously desirable variants on how to combat racism through law’ (Fitzpatrick, Reference Fitzpatrick1987, p. 119). Why? Because, of all the various ‘[m]onuments to liberalism’ (Fitzpatrick, Reference Fitzpatrick1987, p. 120), law has been the most adept at concealing the fact that its foundations are rooted in racism.

2 Fitzpatrick on law

To fully appreciate how Fitzpatrick's understanding of European law and legal phenomena is able to encompass racial capitalism is impossible without attention to at least two of his major works: The Mythology of Modern Law (Fitzpatrick, Reference Fitzpatrick1992) and Modernism and the Grounds of Law (Fitzpatrick, Reference Fitzpatrick2001). Nevertheless, the following short paragraph from ‘Racism and the innocence of law’ contains the seeds of a theory of law that, in its elaborated forms, have inspired a generation of scholars committed to analysing law through critical race and post-colonial frameworks. These notes are structured around Fitzpatrick's argument that law can be conceived of as racism – in the sense that

The extract above is just one instance of a series of challenging ideas that Fitzpatrick invites his readers to entertain. One way of engaging with these ideas is to understand from the outset that, although Fitzpatrick provides a situated example (to be discussed later in this note) of the fact that, despite its denial, law is deeply implicated in racism, unearthing such evidence is not his primary aim. As I intimated earlier, it is difficult to do justice to the paper without recognising its investment in the development of strategies or methods of critique. The paper's evocative title indicates – in broad terms – the locus of a legal critique of racial capitalism by calling attention to the myriad ways in which the claim that law is separate from the material forms in which racism exists is stated and restated. To be more precise, the problem that critical engagements with racial capitalism must confront a priori is the problem that Fitzpatrick grapples with within the paper. This problem can be stated in the following terms: how can sense be made of the positivist view that law is a force that is ‘radically separate from’ (Fitzpatrick, Reference Fitzpatrick1987, p. 121) the human and animal life, and the objects and situations, that it purports to regulate in light of the ‘experience of those for whom law is not separate from, much less able to order or correct that part of material life called racism’ (Fitzpatrick, Reference Fitzpatrick1987, p. 121)? For Fitzpatrick, simply to challenge, by way of contrary evidence, the factual basis of the theories that seek to divorce law from ‘material life’ is a necessary but not sufficient task of a legal critique of racial capitalism, for such a limited method, by definition, cannot address the problem that, factual accuracy aside, a ‘powerful closure [has been] erected around liberal legality’ (Fitzpatrick, Reference Fitzpatrick1987, p. 121). Thus, situated examples become ‘telling instances’ (Fitzpatrick, Reference Fitzpatrick1987, p. 120) only when ‘[w]e “respect” the terms of separation, that is … we … attack the foundation and show that those very terms of separation are racist’ (Fitzpatrick, Reference Fitzpatrick1987, p. 122).

Once it is accepted that law's claim to be separate from material life, including the material life of racism, is a claim that is itself rooted in racism, it becomes a relatively easy task to demonstrate how, in order to maintain that separation, law (to paraphrase Fitzpatrick) reconfigures racist beliefs and practices within its own frameworks and vocabularies. The great value of ‘Racism and the innocence of law’ as a teaching tool is that it establishes a framework within which can be inserted a number of instances of how law presents as racism. I would certainly exploit this strength and encourage students to research and write their own situated examples. That being the case, it is only fair that I follow up my brief summary (below) of Fitzpatrick's ‘telling instance’ with one of my own.

3 Race-discrimination legislation as racism

Fitzpatrick's instance of law operating as racism is the application, in the industrial-tribunal setting, of the Race Relations Act 1976Footnote ¹ (Fitzpatrick, Reference Fitzpatrick1987, pp. 123–128). The provisions of the Race Relations Act have since been consolidated into the Equality Act 2010.Footnote ² More than thirty years ago, the example appealed to Fitzpatrick not least because it presented him with the challenging and ‘provocative’ (Fitzpatrick, Reference Fitzpatrick1987, p. 122) task of ‘establishing racism in legislation aimed at countering it’ (Fitzpatrick, Reference Fitzpatrick1987, p. 122). What Fitzpatrick's forensic examination reveals is that, in a seeming paradox, race-discrimination legislation derives its specifically legal character through its very denial of the constitutive link between racism and that part of capitalism that is expressed through human labour. Such a denial is inherent in the legal form, which insists that

Fitzpatrick traces this denial of racism as a systemic, institutionalised form of violence throughout the various stages of the industrial-tribunal process – seeing in it ‘a circumscribed ritual of reassertion of a world in which such oppression is non-existent or rare’ (Fitzpatrick, Reference Fitzpatrick1987, p. 127).

4 Justiciability as racism

My own example is situated within the quasi-legal context of the public inquiry. I use this because it provides a powerful instance of Fitzpatrick's argument that apparently race-neutral concepts – intimately associated with law and the legal process, and, therefore, crucial to law's identity – are composed of ‘elements of racism’ (Fitzpatrick, Reference Fitzpatrick1987, p. 122). The legal concept in question is that of justiciability. It is the technical term used to characterise a question that is capable of being settled in the courts or in a quasi-legal forum, like a public inquiry. Conversely, if a question is deemed to be non-justiciable, it is not suited to legal adjudication. Just over a year ago, I had occasion to read the case of Daniels v. Prime Minister Footnote ³ in which the justiciability concept played a crucial role. The case concerned a judicial-review challenge that was brought in an effort to extend the terms of reference of the public inquiry into the Grenfell Tower fire so as to enable scrutiny of the causes of the Grenfell Tower fire within the broader historical context of Britain's social-housing policy. The challenge was rejected – the High Court having concluded (inter alia) that the chair of the inquiry (Sir Martin Moore-Bick) acted reasonably in deciding that

Disproportionate numbers of racialised people died or were injured or were made homeless as a consequence of the Grenfell Tower fire. Recourse to the justiciability concept meant that arguments to the effect that the ‘fatal mismanagement’ (Shilliam, Reference Shilliam2018, p. 166) of the Grenfell estate building was traceable to ‘longer-term processes of gentrification and social cleansing’ (Shilliam, Reference Shilliam2018, p. 168), which, in turn, were authorised by decisions on the allocation of public housing based on a ‘racialized distinction between deserving and undeserving’ (Shilliam, Reference Shilliam2018, p. 159), could not be heard (Tuitt, Reference Tuitt, Bulley, Edkins and El-Enany2019, pp. 119–129). In short, justiciability is a distinctly legal concept that enables the law to identify with the racial capitalitalist logics at play in the allocation of social housing. In the terms of ‘Racism and the innocence of law’, the decision in Daniels v. Prime Minister is a localised instance that illustrates something of more general significance about law (Fitzpatrick, Reference Fitzpatrick1987, p. 122): precisely that ‘racism marks constitutive boundaries of law, persistent limits on its competence and scope’ (Fitzpatrick, Reference Fitzpatrick1987, p. 122).

5 Concluding thoughts

Fitzpatrick concludes the extract from the section subtitled ‘Racism as law’ (reproduced above) with the point that the peculiar characteristics of law that are described in the extract actually ‘heightens racism’ (Fitzpatrick, Reference Fitzpatrick1987, p. 122). As this note tries to follow the broad structure of the paper, I left this observation to be dealt with in my concluding section because Fitzpatrick fleshes out the claim much more substantially in the paper's fourth section (Fitzpatrick, Reference Fitzpatrick1987, pp. 128–130). If the law that is operating in the present cannot be divorced from its contexts, then, equally, it cannot be divorced from its past. What in particular causes law to ‘heighten racism’ is a ‘specific historical addition’ (Fitzpatrick, Reference Fitzpatrick1987, p. 128) to its purportedly universalistic dimensions. This addition can be found in the ‘imperialist claim’ (Fitzpatrick, Reference Fitzpatrick1987, p. 129) that racialised people across the globe knew no consciousness of law until such law was brought to them by Europeans. For Fitzpatrick, claims of this kind resonate whenever race-equality legislation fails to redress (more often fails to even begin to address!) race discrimination in the workplace. From an imperialist/racist perspective, such failure merely confirms that racialised people remain impervious to the civilising qualities of European law and European legal processes, for ‘[i]f the powerful and persistent ministrations of law do not bring certain racial identities into society that must be because the identities are essentially different and naturally incapable’ (Fitzpatrick, Reference Fitzpatrick1987, p. 130).