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This conversation was recorded on 12th June 2020. Speakers: Paul Gilroy, SPRC Director // Patricia J. Williams, University Distinguished Professor of Law & Humanities at Northeastern University Boston
Apologies for the noise of a smoke alarm in the background.
Paul Gilroy: I'm Paul Gilroy, the Director of the Sarah Parker Remond Centre for the study of Racism and Racialisation at University College in London. My guest for a conversation and discussion is the distinguished writer, commentator and lawyer, jurist, Patricia J. Williams. Professor Williams is University Distinguished Professor of Law and Humanities at Northeastern University in Boston; author of the epoch-making Alchemy of Race and Rights amongst other books: The Rooster's Egg, of course Seeing a Colour-Blind Future. Professor Williams was the 1997 Reith Lecturer and gave some very memorable lectures, The Genealogy of Race, and of course is known very widely as the author of the Diary of a Mad Law Professor column in The Nation magazine. For me, Professor Williams typifies that rather abstract and sometimes frustrating phrase 'the public intellectual' and brings that phrase alive in a really concrete, vivid and important way. So, thank you so much Patricia for joining me for this conversation today.
Patricia J. Williams: It's my pleasure.
Paul: I've been thinking a lot about where our conversation might begin, and I thought we could talk initially about the legacies of Critical Race Theory because I know that that something that you were associated with in a sense; I must say I never really read you in the mainstream of that, I always felt you'd created your own path, if I may say. But the reason I'm asking about critical race theory in the moment that we're in, is because I think the legacies of Professor Derrick Bell and so on, have really been so much the foundation of the dominant views of African American political predicament in the last few years; and of course those ideas, though they're not always traced back to Professor Bell, have circulated very widely in the world. So, I wondered if we could just start off with critical race theory; if that's not a good place to start we can start wherever you'd like.
Patricia: No, certainly. Professor Bell was my mentor, my teacher; I was his research assistant in law school, he was enormously influential upon me. I always associate him with the civil rights movement and that he was a civil rights activist, he was a civil rights lawyer and he brought the case law - the jurisprudence of the civil rights movement - into academic conversation at a time when- when I was in law school people taught constitutional law and it was all about the Commerce Clause; and they would leave out the most important jurisprudence of the 20th century, which was, and most of constitutional jurisprudence during the 20th century was, about civil rights. So I think he was an enormously important figure. At the same time, the term critical race theory was first used in the wake of a group of largely white and largely male scholars who put together what they called - and they really meant as an ideologically coherent group of critical legal studies, that included people like Duncan Kennedy, Mark Tushnet, Pete Gable and Roberto Unger - and they philosophically were descendants of a kind of Frankfurt School continental philosophy conversation. The term critical race theory came about, or was first used, after a conference which at their invitation invited a group of women and people of colour to ask, 'why aren't you joining us'. I think it was it was an attempt to be open ended or an invitational, but the response to that, many of us published in a series of law review articles, became loosely called critical race theory. In that sense, to answer the gist of your initial question, I don't think that anybody embodies critical race theory because we were in that sense at the initial heart of it simply responsive to a particular moment in time: a conference, it was a very particular conversation and what has happened since is so ideologically diverse. It is as diverse as everybody who was associated under that label and the label has been used very carelessly by media during the culture wars to include everybody from Al Sharpton to anybody who writes about race. And so, in that sense I don't use the term as much as I might if we had a more coherent core of an originary idea.
Paul: I don't use the term much myself either, but I was really thinking of the later works of Professor Bell, Faces at the Bottom of the Well, And we are not saved and so on, which have been incredibly influential, and which pioneered a different way of communicating politically; communicating historically and sociologically about the law, about the racial nomos of American society, if I can call it that. And those are the things that have been I guess picked up by succeeding generations and turned maybe into a more apparently systematic critical project in the academy; certainly in this environment- in the environment where I am; so that's the reason. And it was in my mind because I was thinking about your recent Guardian article, and thinking too of course about the- I suppose I would call it a mesh, the complex legal mesh which has been deployed around the Covid pandemic crisis here, one which includes Section 60 of the Criminal Justice Act, bits of anti-terror legislation, disproportionate figures showing that black and other ethnic minority groups are being fined for breaches of the lockdown legislation here in London at an incredibly- I would say embarrassingly discrepant rate; and then of course behind that, our government issued in March, just as the lockdown was beginning, the stop and search statistics for the last year which tell the predictable story that there were 4 stop and searches for every 1,000 white people in our country, compared to 38 for every 1,000 black people. So there's a complex legal mesh and it's really clear that black people here, and another visible minority people here too - we use this thing BAME which again I don't like and needs unpacking of course - but these discrepancies, these evident and obvious patterns, suggest a whole legal regime which is really worth trying to address as a condition; so it's not something which is being added to the Coronavirus pandemic crisis, but is part of what explains how the pandemic crisis has articulated with and connected to the larger crisis- what's perceived to be a crisis- around racial justice in our country. So, this mesh is part of what joins these things together.
Patricia: Yeah, and thus it has always been. I think the heart of race relations is a eugenic project, which we have been fighting for the better part of hundreds of years, and in that eugenic program the notion of health as opposed to illness has always been prepped that race has been marked as a disease, or a body that is lesser than, that is weak or is contagious. And so in a time of actual contagion, it's not a surprise that the fear of the embodiment of so many other fears, including criminalised fears, that this would be an extra layer or that thread of history would manifest itself again.
Paul: Do you find we're just now beginning to see the first legal initiatives and that the struggle of the people whose deaths have been precipitated by government conduct, in the sense that we know from the modellers and the voice of the scientist that if certain measures had been introduced earlier then the numbers of dead would be considerably and significantly smaller, and of course that too expresses the discrepant nature of access to healthcare, access to clinical treatment and so on, which condition this environment. So now we're beginning to see the families of the bereaved - the families of the bereaved, the communities of the bereaved - to begin to initiate legal action here, review government conduct and so on; I'm wondering if there are similar things underway in the States and what's your view of those strategies.
Patricia: I think that the demonstrations in the street are expressions of that bereavement. It is certainly about excessive state action, police-citizen encounters, but it is also people who say, 'I have nothing left to lose'. Please remember with the United States, what you're describing in Britain, is so much more complicated by the general lack of insurance. And so those people who are at the lower end of the socioeconomic spectrum are not only working essential jobs, but may have no health insurance whatsoever even if they are working; and this has created a sense of desperation that is entirely predictable and adds to the tragedy. The last several months of mourning in isolation is exploding out of doorways now, for better or for worse.
Paul: The problem we have here with this is that very often the politico juridical demand is for government inquiry into the conduct of government and the traditional- the British state has evolved its own extremely problematic and often cruel habits in response to that demand even when it's conceded. So, when there's mass death at a football match that results from the conduct of the police, it takes 30 years to get to a place where that judgement can be publicly acknowledged. And of course we have in our minds very vividly at the moment, because it's the third anniversary on Sunday, of the Grenfell tower fire, seen by many as an active social murder and entirely unnecessary tragedy that is compounded by the patterns of racial inequality and injustice that characterise the normal operations of government in some areas at local level - particularly around the questions of cladding that's appropriate to public housing and so on. So of course I recognise this- what you're saying about the difference in terms of public health because my experience of living in the US was there wasn't really any public health at all, and of course the question of linking medical access to employment and so on has all kinds of other policy outcomes associated with it. But I'm worried that the way that people juggle here the relationship between law and political action is always aimed at this goal of a public inquiry, and whilst I absolutely think that that kind of scrutiny is essential, the record of those devices and those processes is extremely poor and typically governments of all stripes, not just right wing governments - and we have not only the most diverse, according to the jargon, government at the moment, but the most right wing government that we've had for something like- well, getting on for 100 years actually now - what they tend to do is they tend to use time as a weapon. They use time as a weapon so they rely on you dying off, losing your will, losing your agency, your strength and your commitment inevitably ebbing away with the constant frustrating drip of the pressure they place on you. Three years into Grenfell, we all know more or less what happened, we all know more what factors involved, and I just I'm terribly worried that looking at the Covid crisis, and looking the responses of bereaved to that, we're going to end up in the same old pattern that we recognise.
Patricia: Yeah, I do worry about the role of time. Everything you describe is true in the United States. I think it is even more exacerbated because at this moment we have an administration which has disassembled the mechanisms of oversight; and so even if we were to have an inquiry, what is happening is that evidence or statistics are simply not being kept or they're being hidden. And you may have heard that our president has actually said that it wouldn't be so bad if we weren't counting so many, it is literally that if you can keep the numbers down, if you just limit the amount of- the only reason we have so many is that there's so much testing, there have been many configurations of what should or shouldn't be counted that come from the highest levels of our federal government that defy mathematics, defy epidiology, and are as nonsensical as swallowing sunlight to cure this. And it is enormously frustrating, but it has also been accompanied by actual administrative interventions like defunding and firing the bodies that track such statistics: the Centers for Disease Control are being robbed of their authority. And so as you point out, I mentioned insurance which is the literal ability to go to a doctor and be cared for, but the entire public health structure in the United States has been diminished, over a period of years, but since this presidency in a dramatic and tragic outcome. So then there are the on-the-ground policies because with the lack of direction from the federal government it has been carelessly handed over to the states: 'do what you like, see what happens', and those states are competing against each other, so some states are competing against foreign governments for things like ventilators- the prices have skyrocketed, competition has been a model in a situation of public health where distribution of costs clearly is much more desirable- is a much more desirable metric. You often have statistics- a really shocking statistic that, and again this was only a week ago when we only - only - had 100,000 deaths - as of this date we have 114,000 deaths in the United States - but last week when we were only at 100,000, 40,000 of those were people who were in nursing homes or in long-term care facilities; and that tended to be older citizens. And the entire explanation, that this is a disease which clearly impacts the elderly, is undercut by the reality that if we were warehousing people and putting them in confined spaces that are nothing but petri dishes for this disease, that you are again placing all the blame on the body of those who are dying and not the structural inequalities or the policy decisions that takes them out of hospitals and puts them in long-term care facilities to die. And if 40% of our deaths are in those kinds of institutions, then this is a kind of criminal neglect even before we get to the question of how we are counting those deaths.
Paul: Yeah, you made this powerful point earlier on about the eugenic character of racialised governance, of course the eugenic mentality, the sort of Malthusianism of this, is also evident in the way in which the aged - the elders - appear in the calculus of the civic- the health of the nation against the wealth of the nation, to borrow an old imperial motif. So yeah that's very, very striking and of course, one doesn't use the language of tyranny lightly, but there are number of tyrants in the world at the moment to think that managing the numbers is going to be the key to maintaining their hold on the machinery of power; one thinks of what's been going on in Brazil too, which corresponds very closely to the other things that you're saying; not to let the Brits off the hook, but of course we know that they're past masters of destroying historical and governmental records and archives that have a bearing upon the possibility of legal action in the present and that's an ongoing problem for us here, so absolutely agree with that too. I wonder really about what we are going to do and whether you think, looking at the situation in the streets as much as the situation in the institutions, this incredible mobilisation that we've seen, often amongst the very young actually, whether that mobilisation has a chance to become something like a movement in the period ahead.
Patricia: I hope so. Again, I am very cautious about this moment. I think that there is enormous energy, a circulation of ideas and calling to account that I have not seen ever, and I am getting up there in years, and I have seen riot after riot, from the '60s through to this moment. I don't know where this will go. I am always quite worried about large expressions of emotion because they can be redirected and so I think that they are founded and grounded by re-examinations of history, looking at the structure of police departments, looking at the history of- or the patterns of things like stop and frisk, and revisiting the history of the confederacy, for example; I think all of this is so good. But I also am as worried as I was when Barack Obama was elected, that we actually have been here if not in our lifetimes, and the post-reconstruction moment was a moment of such tremendous backlash that we ended up with Jim Crow. And part of that was mobilised by these enormous washes of fear. I think that the election of Donald Trump was one such reactionary electoral response, and I think that Donald Trump still has enormous power - that he's not exercising when it comes to some things - but quite a bit of power in terms of how to use media and use the power of his voice to direct the extraordinary emotions which are this ocean of a sense of loss, and an ocean of a sense of fear, and an ocean of economic crisis. I'm also very very aware of the precarity of this moment and the potential danger of redirecting all of this mass action.
Paul: Yeah, I think you're right, and I'm not putting words in your mouth - these are things that have been disturbing me too and I wonder how much the history of fascism or the appearance of fascist political movements and leadership and charisma in the past is something that is useful to thinking about these things today, and the contempt for oversight, the contempt for the normal routines of the liberal democratic elements in governance and statecraft - I'm not saying that's all that there is going on, but actually at the moment my appetite for all of those things has rather increased in the face of the dangers that you just listed.
Patricia: The language - to put it aside historical and present fascists - he finds the use of state force beautiful, the violent use against peaceful protesters, he uses the word 'beautiful, beautiful, beautiful'. He made a group phone call to all 50 governors of all 50 states; during that phone call the word 'dominate' was used 18 times and it wasn't that long a phone call. The image that he came up with yesterday of 'loving to see the troops slice like butter, it's like a knife going through butter' is what he's seeing when state force breaks up peaceful gatherings. And so his vocabulary is one of not just wanting to impose peace, but having a kind of jouissance- he's really happy, it excites him to see the vicious dogs as he described it and the ominous weapons as he put it. There's a sadism underlying some of the vocabulary that I associate with the very worst forms of fascism, not merely authoritarianism.
Paul: And yet hopefully, looking for shards of hope, the demand to defund the militarised face of government at local level seems to be picking up some momentum at the moment. How do you view that?
Patricia: I think it's a moment of very delicate balance. I think that this is a good thing that we are talking about restructuring the police. And I worry that the word 'defund' the police is - and Spike Lee made a public statement about this within the last few days - that it is misleading to some people who don't bother to understand what that academic writing has been about, which is that you reposition the social services that the police have been expected to provide in places like schools or in mental health, and you hire more people who are experts in mental health or in education, and this really- it spreads the burden of all kinds of social emergency that now police, because we have just been so over policed, are expected to do and it makes their job almost impossible. Defunding as a term worries me a little bit because police unions and Mr Trump have been using that to signify 'okay well you don't need police, we'll just back off and let's watch chaos reign'; and that's why we're going to need the National Guard and potentially that's why we'll need the military - even as the military are saying 'woah step back over here'. But what worries me more is whether or not Trump wins that fight at the federal level, what we're beginning to see is that the code of Trump's willingness to deploy something like militaristic action is inciting some militia groups and some heavily armed individuals on the right to step forward and, exercising their Second Amendment rights, reportedly they are stepping up to quote 'monitor' peaceful demonstrations; and so you're beginning to see lines of people with military grade weapons and no state authority - they are just 'citizen saviours' lining the streets. That is a very toxic and dangerous group. And aside from the demonstrations at the present moment, one of the ongoing great worries we have is what this will mean for people going to polling places. If you're having individual self-appointed vigilantes line the streets, asking people for their identification, for example, or confronting them in ways- 'are you here fraudulently?', 'are you from the state?' - that's been part of our discourse of whether they're outside agitators crossing state lines; I mean, we are the European- we are the original United States, we crossed boundaries with no issue, but it has been from certain on the far right crossing state lines has now become a political issue of so-called outside agitators - but then even that term going back to the worst of the segregationist rhetoric of the '50s-60s.
Paul: Right, of course that's very very interesting. Here the new interest in the institution - the history of carceral and policing institutions, the relationship between policing and political critical economy - is similarly resonant but very little known. I'm sure- I always when I used to teach the history of the police as a- the science of police and so on, very few of the students came to classroom knowing that the first police force, the preventive police force of London was paid for by the West India Interest to protect the docks, and that Patrick Colquhoun was a friend of Adam Smith, and that so much of what came into our country, this fruits of our imperial and colonial potency in the world, was absolutely bound up not just with the West Indies but with the formation of the police force as a preventive agent. And maybe lawyers read this because they read the History of English Criminal Law by Radzinowicz, but the rest of the student body was entirely oblivious to the fact that this was the ground on which they were standing, on the ground on which we were meeting.
Patricia: Well good parts of this conversation in the United States is that the specific history of the police, the formation in every state of who the police are, really derives from plantation regulation in slave states which was exported throughout the north to control immigrants and operations of large; and so I think people are now much more acquainted with that history than ever.
Paul: Now I've noticed that, and I've been really delighted to see that unfold, especially as part of the argument, or discussion, about the tactics involved in the crisis of the prison system and the prison institutions in the USA. Here we have a version of that which is also of course connected to the Covid crisis too, but at the moment we haven't yet been able to ventilate those institutions in the way that our circumstances demand. Well, Patricia Williams thank you so very much for making the time to speak with me this afternoon, I'm really really grateful and delighted that you could make the time to do this I do hope that we can keep this conversation going and perhaps as we get closer to the election, if you are able to have an election, we'll be able to draw you into the conversation again if you would be so so gracious, I'd really appreciate it.
Patricia: I would be more than happy, it's wonderful to talk to you Paul.
Paul: Thank you Patricia.