Shut Your Mouth when You're Talking to Me: Silencing the Idealist School of Critical Race Theory through a Culturalogical Turn in Jurisprudence

ARTICLES Shut Your Mouth When You’re Talking to Me: Silencing the Idealist School of Critical Race Theory through a Culturalogical Turn in Jurisprudence TOMMY J. CURRY* INTRODUCTION No intellectual historian can deny the impact of Critical Race Theory (CRT) on the discourse of race and racism in the later part of the 20th century. Critical Race Theory began in the late 1960s, in the aftermath of the civil rights movement, with a series of writings by Derrick Bell. These writings focused specifically on the arrest of civil rights era gains thought to be won in 1964 and the roll back of the political Fn1 guarantees of desegregation set forth in Brown v. Board of Education (1954).1 In its inception, CRT offered a withering critique of integrationism and exposed the hope of racial equality for Blacks in America as nothing more than a mere illusion. Largely inspired by the Black Nationalist movements of pre-integrationist Amer- ica and revolutionary Black authors like W.E.B. Dubois and Frantz Fanon, Bell developed two theories which laid the theoretical foundations of the CRT move- ment. The first, racial realism, recognized the onerous racial reality of the United States and held that “Black Americans are by no means equal . . . and that racial Fn2 equality is in fact not a realistic goal.”2 For Bell, the law is an instrument that Whites use to preserve and perpetuate a racial caste system. Under a racial realist account, law only periodically served to protect oppressed peoples, and only then when minority gains aligned themselves with dominant White interests. Interest convergence, Bell’s second foundational theory of CRT, explained not only the futility of Blacks’ efforts to gain legal rights through the law, but also the slow-paced social and political * © 2011, Tommy J. Curry, Ph.D. Tommy J. Curry is an Assistant Professor of Philosophy and Affiliate Professor of Africana Studies at Texas A&M University, College Station, TX. I would like to thank the following legal scholars that made various comments on this article: Richard Delgado, Derrick Bell, Al Brophy, and Peter Alexander. I would also like to thank Gwenetta D. Curry for her reading of previous drafts, Ken Stikkers for his suggestions, and James Haile and O’donovan Johnson for their many conversations about Critical Race Theory and the emergent theory of culturalogics. 1. See RICHARD DELGADO & JEAN STEFANCIC, CRITICAL RACE THEORY: THE CUTTING EDGE, at xv (2d ed. 2000) (1999). Critical Race Theory sprang up in the mid-1970s with the early work of Derrick Bell (an African American) and Alan Freeman (a White), both of whom were deeply distressed over the slow pace of racial reform in the United States. It seemed to them—and they were quickly joined by others—that the civil rights movement of the 1960s had stalled, and indeed that many of its gains were being rolled back. New approaches were needed to understand and come to grips with the more subtle, but just as deeply entrenched, varieties of racism that characterize our times. Old approaches—filing amicus briefs, marching, coining new litigation strategies, writing articles in legal and popular journals exhorting our fellow citizens to exercise moral leadership in the search for racial justice—were yielding smaller and smaller returns. Id. at xvi. 2. Derrick Bell, Racial Realism, 24 CONN. L. REV. 363 (1992). 1  2 GEO. J. L. & MOD. CRIT. RACE PERSP. [Vol. 3:1 reforms dictated by legal doctrine in the name of racial progress. From the theoretical groundwork laid by Bell and others, CRT became a pioneering critical perspective in jurisprudence. It maintained that both race, as a social construct made by the history of European domination, and racism, “which translates into a societal vulnerability of black people . . . in which the ‘racial bonding’ of whites would always commit to Fn3 the practice of using Blacks as scapegoats for failed economic, political policies,”3 were permanent features of the American landscape. For Bell and the racial realists that followed, the historical contingency of the social construction of race did not change the sempiternal reality of anti-Black racism in America. Unfortunately, the tide of CRT soon turned. Though the philosophical perspec- tives that eventually came to define CRT as a movement were well-developed and debated among scholars of color in the early 1980s, it was not until 1989 at the first CRT conference in Madison, Wisconsin that Kimberle Crenshaw officially named the work started by her Harvard mentor, Derrick Bell, Critical Race Theory. The Madison Conference, consisting of 24 legal scholars of color dissatisfied with the distortion of race discourse in traditional legal scholarship and the absence of dis- course about racism in the emerging field of Critical Legal Studies, was the first organized attempt to define the movement. Ironically, however, this conference would also popularize what until that point had largely been underground and nationalist movements in law schools, and create new disciplinary challenges in legal scholarship. Because CRT exhibited mordant polemics against and an earnest disregard toward White standards of merit, reason and legal education, it quickly became the target of a major academic campaign to de-radicalize the movement. What had been merely a mild discomfort caused by CRT’s popularization in the legal academy had pro- gressed by the mid-1990s into a full-fledged allergic reaction against the movement’s theoretical perspectives. This reaction to CRT took the form of an ideologically charged backlash in intentionally well publicized forums over the intellectual integ- rity and legitimacy of the movement. A further difficulty arose when Critical Race Theory’s notoriety led to attempts by various disciplines to incorporate CRT as a “cutting edge” perspective without fully embracing CRT’s fundamental supposi- tions. For example, the notoriety of CRT caused many educators to accept that race was an issue that deserved greater attention, but those educators ignored the role that White privilege and the social reification of individual White identities played in maintaining White supremacy when speaking about and analogizing race. By the mid-1990s, it was apparent that CRT had started to abandon its racial realist roots— leaving structural critiques of American racism and its grounding pessimism of auto- matic progress under American liberal democracy by the wayside. A new, younger, (more moderate) generation of scholars, amicable to Ivy League deans and tenure committees, began writing works that “carried into the study of race, habits of speech and analysis that they had learned elsewhere [in their undergraduate and graduate studies] and that placed texts, narratives, scripts, stereotypes, and Freudian entities at 3. Id. at 377.  2012] SILENCING IDEALISM IN CRITICAL RACE JURISPRUDENCE 3 Fn4 the center of analysis.”4 This idealist turn, in no small part influenced by the charges against CRT a decade earlier, was largely the result of CRT’s cooptation by White elite institutions and resulted in the ideological thinning of Critical Race Theory, both in jurisprudence and areas outside legal institutions, such as philosophy. The realist school holds a colonial perspective of race, according to which “racism is a means by which our system allocates privilege, status and wealth,” and acknowl- edges that the “West did not demonize black or native populations until it deter- mined to conquer and exploit them and that media images in every period shift to Fn5 accommodate the interests of the majority group.”5 The idealist school holds that: Race and discrimination are largely functions of attitude and social formation. For these thinkers, race is a social construction created out of words, symbols, stereo- types and categories. As such, we may purge discrimination by ridding ourselves of the texts, narrative, ideas, and meanings that give rise to it and that convey the Fn6 message that people of other racial groups are unworthy, lazy, and dangerous.6 This division in CRT created a tension in the study of law and the socio-political contexts that give rise to it. Unfortunately, the resolution of this tension has not progressed from Angela P. Harris’s The Jurisprudence of Reconstruction, which sought to carve out a theory of possibility that would lay to rest the charges from “critics of Critical Race Theory” that CRT is more concerned with deconstruction than recon- struction. This debate prompted Harris to acknowledge, “A tension . . . exists within CRT . . . that, properly understood, is a source of strength. The success,” says Harris, “of what I call a ‘jurisprudence of reconstruction’ lies in CRT’s ability to recognize Fn7 this tension and use it in ways that are creative rather than paralyzing.”7 Sadly, the choice to inhabit what Harris calls the tension between modernity and post- modernity only results in a sequestrated vision of Black subjectivity; a vision that will inevitably be thrown back on the autonomous White rationalizations of modern philosophers, who think about race in such a way that it demands Black subjectivity be replaced by the free thinking reason of White humanity. While the idealist school is aware of the danger in appealing to “reason,” these theorists have nonetheless assumed that “universal reason,” rooted in the anthropos of the European persona and reared on the bosom of modernity, can, in expressing its postmodern discontent with itself through deconstruction, be a critical instrument in distancing “reason” from its White imperial past—a past driven by the very racialized reasoning CRT seeks to combat. What is at stake in this analysis is not the concept of reason itself, but rather the constructions of the world to which the cultural manifestations of “reason” are committed. 4. Richard Delgado, Crossroads and Blind Alleys: A Critical Examination of Recent Writing About Race, 82 TEX. L. REV. 121, 145 (2003) (book review). 5. Id. at 124. 6. Id. at 123. For a more in-depth discussion of the realist-idealist split in CRT and its origins, see Richard Delgado, Two Ways to Think About Race: Reflections on the Id, the Ego, and Other Reformist Theories of Equal Protection, 89 GEO. L.J. 2279 (2000). 7. Angela Harris, The Jurisprudence of Reconstruction, 82 CAL. L. REV. 741, 743 (1994). 4 GEO. J. L. & MOD. CRIT. RACE PERSP. [Vol. 3:1 This essay is an attempt to resolve the tensions that arise in CRT, from its conversa- tion with Continental Philosophy and Critical Legal Studies (CLS), over the “prob- lem of the subject.” In an attempt to respond both to Angela P. Harris’s call for a “jurisprudence of reconstruction” and her reliance on inadequate Eurocentric concep- tualizations of subjectivity that lay between a modern and postmodern racial schizo- phrenia, I argue that CRT, while skeptical of “reason,” fails to take seriously the role that Eurocentric anthropology plays in determining the inclinations of the thinking individual. By failing to acknowledge the inextricable cultural determinism of “rea- son,” CRT commits itself to the same modern dispositions of European thought it seeks to criticize, effectually reducing Black subjectivity to “polemics of discontent,” instead of supporting the movement as a sustainable critique against Euro-centrism. The acknowledgment that reason is nothing more than a particular reflection upon the world rather than an innate universal human faculty can potentially help CRT recognize the possible theoretical contributions of Derrick Bell’s Robesonian view of culture. Both Bell and Paul Robeson believe that Black self-reliance and African cultural continuity should form the epistemic basis of Blacks’ worldview. Bell’s recognition that one’s process of thinking about the world cannot be separated from the racial interest one has in constructing it is a valuable philosophical insight ignored by many racial idealists. In an attempt to develop a plausible notion of cultural subjectivity in the racial realist tradition that initially grounded CRT, I propose a theory of culturalogics which argues that constructs, like race, law, and the alleged transcendental values that sustain them, are modified— contoured—through infusions of cultural meaning. By creating a conversation between the metaphysical possibilities of cultural constructivism and the structural analysis of American rac- ism, so prominent in the realist tradition of CRT, I hope to sustain both a radical social theory and culturalogical perspective that will invigorate the realist contribu- tion to CRT. This article proceeds in three parts. In part I, I will discuss the flaws of the idealist turn in CRT. Recent idealist literature in CRT has called both for the abandonment of race and for the contemplation of a freer, non-raced subjectivity, what I call an “anthropological dependence,” rooted either in Kant’s autonomous subject, Hegel’s self-conscious self, or Freudian psychoanalysis. This tendency ultimately relegates Black authors to mute guides who merely point White philosophical techniques like deconstruction to the problem of race without earnestly considering how Black authors have thought historically about that problem. In Part II, I consider the role of the subject in jurisprudence which remains the dominant question in the CRT and CLS tradition. Contemporary debates in jurisprudence have become dominated by theories that focus on how individuals determined by their culture and their society use laws to reinvent their own values and reify the social meanings of their life world. Unfortunately, the idealist emergence has failed to clarify both what is meant by a “rational actor” and the implications of thinking about race under the theories given through the prior work of CLS, inevitably falling back on transcendental values rooted in the legal and social matrices of Euro-centricity. In Part III, I propose culturalogics, as a theory aiming to establish a coherent social account of how people  2012] SILENCING IDEALISM IN CRITICAL RACE JURISPRUDENCE 5 of African descent think about the relationship between the raw materials of reality used in the construction of society and the constructions of society left before us as reminders of colonial modernity. The utilization of this theory in jurisprudence, or what I am referring to as the culturalogical turn, could free the subject in contempo- rary Critical Race Theory. A decade ago, Kenneth B. Nunn said, “To successfully resist Euro-centricity, African-descended people must interpret law in light of their Fn8 own cultural perspectives.”8 Unfortunately, this call to action has not been heeded by race-crits, and in most circles, it has been ignored pursuant to the growing idealist traditions that have come to dominate CRT. Culturalogics is an attempt to answer Nunn’s urge for a new interpretive perspec- tive in law by calling into question the relationship that race-crits currently have to the revelation that “race” is indeed a social construct. By devising a different ap- proach to racial constructivism and epistemology, I argue for a cultural particularism through which the culturalogical (the epistemological relationship people of African descent have taken up with the world and the process by which African descended people actively are constructing the world) can modify the dilapidated social construc- tions of European modernity. As a system, culturalogics proposes a way of thinking about the world holding that that the law is a social construction of European Fn9 culture,9 whose goals, processes and structure would be different given a different cultural location. Because society entails the relationships a people have historically Fn10 expressed as knowledge within the world,10 the challenging of a European world- view must begin with the articulation of specific culturally subversive ways of know- ing, constructing, and accounting for the world outside the West’s metaphysical Fn11 purview.11 PART I. THE FLAWS OF THE IDEALIST SCHOOL The originators of Critical Race Theory held that CRT could not be understood as an abstract set of ideas or principles, because “among its basic theoretical themes is 8. Kenneth B. Nunn, Law as Eurocentric Enterprise, 15 LAW & INEQ. 323, 370 (1997). 9. See JOEL KOVEL, WHITE RACISM: A PSYCHOHISTORY (1970). Kovel makes a compelling historical argument that analyzes White racism as part of a larger cultural world-view that creates distinctions and dichotomies in the world. This world-view is fraught with an over concern for materialism, property, and superiority. See also CHARLES MILLS, THE RACIAL CONTRACT (1997) (where Mills discusses the link between Euro-centrism and the establishment of the racial contract. Instead of following his descriptive analysis to its logical conclusion, Mills reverts to an unjustified faith in reason and philosophy to adjudicate the issue of race). 10. Social constructionism is the new kid on the block for many disciplines. My work grants that tradi- tional concepts like race, law, freedom, etc. are socially constructed; however, I believe there is a more fundamental question in social construction that has not yet been asked. That question is “what are the ways that historical groups of people create their social reality?” The social manifests the relations of what is known in the world, and it is the relations that support this social reality that I am interested in looking at through a culturalogics lens. 11. For a full discussion of the distinction between the European world-view and the African world-view in its social manifestations, see MARIMBA ANI, YUGURU: AN AFRICAN-CENTERED CRITIQUE OF EUROPEAN CULTURAL THOUGHT AND BEHAVIOR (1994).  6 GEO. J. L. & MOD. CRIT. RACE PERSP. [Vol. 3:1 that of privileging contextual and historical descriptions over transhistorical or purely Fn12 abstract ones.”12 For these theorists, CRT consists of six identifying elements: (1) CRT recognizes that racism is endemic to American life. Thus the question is not how racial discrimination can be eliminated while maintaining the integrity of other interests implicated in the status quo . . . Instead we ask how these traditional interests and values serve as vessels of racial subordination, (2) CRT expresses skepticism toward dominate legal claims of neutrality, objectivity, color blindness, and meritocracy, (3) CRT challenges ahistoricism and insists on a contextual/ historical analysis of the law, (4) CRT insists on the recognition of the experiential knowledge of people of color and our communities of origin in analyzing law and society, (5) CRT is interdisciplinary and eclectic, and (6) CRT works toward the end of eliminating Fn13 racial oppression as part of the broader goal of ending all forms of oppression.13 Based in the experiences of People of Color, these criteria have guided the move- ment’s growth over the years under a system of racism and domination. The realist tradition sought to mark boundaries that would both protect and learn from the perspectives of Blacks and other People of Color unapologetically. This was not the case for the idealist scholars. This new generation of race-crits saw the promise of CRT “as a theory that would link the methods of CLS with the political commitments of ‘traditional civil rights scholarship’ in a way that would Fn14 both revitalize legal scholarship on race and the deconstructive excesses of CLS.”14 Many “old school” theorists acknowledge that the movement had predecessors in CLS and Continental social/political thought, but point out that CRT “derives its inspiration from the American civil rights tradition, as represented by such leaders as Martin Luther King, W.E.B. DuBois, Rosa Parks, Cesar Chavez, and from national- ist movements, as manifested by such figures as Malcolm X and the Black Pan- Fn15 thers.”15 This shift away from the deconstructivist tendencies of CLS allowed Black scholars to develop a deeper understanding of Black experience and focus on the theoretical consequences that experience had on jurisprudence. Unfortunately, the tide changed before the realist theories of subjectivity took hold, and a true culturalist perspective emerged. This shift exposes two problems in the current movement. The first is the idealists’ focus on the critical methods employed by CLS, especially deconstruction, in their study of race. The second and somewhat more dangerous problem resides in the use of White philosophical figures as the basis of idealist scholarship in both philosophy and contemporary CRT literature on jurisprudence which urges Blacks to become liberated thinkers, molded by the inclinations of Hegelian, Kantian or Freudian 12. MARI MATSUDA ET. AL., WORDS THAT WOUND: CRITICAL RACE THEORY, ASSAULTIVE SPEECH, AND THE FIRST AMENDMENT 3 (1993). 13. Id. at 6. 14. Harris, supra note 7, at 741. 15. CRENSHAW, supra note 1, at xvi.  2012] SILENCING IDEALISM IN CRITICAL RACE JURISPRUDENCE 7 personalities, in an attempt to balance modernist faith with post-modern discon- Fn16 tent.16 A. The Baggage of the CLS Bandwagon Under the “idealist turn,” a new problem quickly emerged: How can Black schol- ars justify using White philosophers to speak about the problems of race and racism, when these philosophers both believed that the Negro was inferior and that only the White race possessed reason? The focus once again turned to deconstruction for an answer. Deconstruction began as a series of rhetorical techniques in the writings of Jacques Derrida. “Although deconstructive arguments appear in critical race theory, feminist, and post-modern legal scholarship, deconstruction first emerged most clearly Fn17 in the work of the Critical Legal Studies movement.”17 Deconstruction held that all texts and social structures were unstable, indeterminate, and largely rooted in the contexts of societies and the language societies use to speak about the world. These techniques mapped out ways in which philosophy could both examine the role language plays in determining our thoughts about the world and the relationship thought has in contouring the meaning of language through philosophical engage- ment with text and cultural contexts. CLS utilized deconstruction to show that “something other than legal reasoning—like political judgment—lay behind legal decision-making,” that “legal consciousness was based on the ‘false necessity’ of social and legal structures that seemed reasonable in theory but were oppressive in prac- tice,” and that “texts undermined their own logic and had multiple conflicting Fn18 meanings.”18 Having a home primarily in Continental philosophy and literature, deconstruc- tion sought to expand its horizons and eventually won acceptance in law schools across the country. These two arenas applied deconstruction to the laws, texts, and the language one uses to speak about the world. Unfortunately in its transitions between disciplines, “deconstruction became wrongly associated with the improb- Fn19 able claim that texts mean whatever readers want them to mean.”19 As such, decon- struction has been used as the “wonder drug” by White authors to claim that they now think differently about their Whiteness and want to use their enlightenment for the betterment of the Black race, and by Black thinkers to claim that simply not thinking about race or transcending its social construct altogether will eliminate racism. 16. There is a wide body of evidence that speaks to the failure of CLS and post-modernism when dealing with the problems created by modernity. See Jerry Leonard, Foucault and (the Ideology of) Genealogical Legal Theory, in LEGAL STUDIES AS CULTURAL STUDIES: A READER IN (POST) MODERN CRITICAL THEORY 133 (Jerry Leonard ed. 1995); Costas Douzinas & Ronnie Washington, A Well-founded Fear of Justice: Law and Ethics in Postmodernity, in LEGAL STUDIES AS CULTURAL STUDIES: A READER IN (POST) MODERN CRITICAL THEORY 197 (Jerry Leonard ed. 1995); Peter Goodrich, Sleeping with the Enemy: An Essay on the Politics of Critical Legal Studies in America, in LEGAL STUDIES AS CULTURAL STUDIES: A READER IN (POST) MODERN CRITICAL THEORY 299 (Jerry Leonard ed. 1995). 17. J. M. Balkin, Deconstruction’s Legal Career, 27 CARDOZO L. REV. 719, 734 (2005). 18. Id. 19. Id. at 719.  8 GEO. J. L. & MOD. CRIT. RACE PERSP. [Vol. 3:1 This is a misguided faith in deconstruction’s usefulness in CRT. To date, decon- struction has only asked burdening questions that inevitably collapse at the feet of Enlightenment thinkers. Deconstructionist thought holds that people are products of language and socio-cultural circumstances, and thus the meanings we attach to the world are largely contingent and socially constructed. But to then assume that one can change the features of the very structures that make an individual whole is presumptuous to say the least. “Social structures and legal doctrines might be ‘contin- gent’ in the sense that they did not have to take any particular form, but once they Fn20 were in play they would not melt away by an act of will.”20 The social constructions in place would appear legitimate to the individuals in the given social settings, “moreover, changes and reforms would have to be implemented using the social Fn21 meanings and social structures already in place,”21 reifying the idea that these con- structed structures actually describe something real in society. It is not as easy as deconstructionist rhetoric makes it seem; “individuals who had been socially condi- tioned to see existing social structures and legal categories would not easily be able to Fn22 transcend the limits of their perspectives,”22 since it is their perspectives of the existing social and legal categories that form the world and allow them to frame and possibly address the social practices in need of change. One cannot escape from the social situations that form the very templates of thought and the very basis of critical thinking about a particular problem. And no matter how many times “idealists” throw around the rhetorical stratagem that “race is a social construction,” we must remember “social construction caused individuals to understand the world in ways that made it difficult for them to envision alternative Fn23 ways of ordering law and society.”23 In regards to race, it has created the mechanism in society that not only preserves and enforces the dominance over minorities, but perpetuates the conditions that seek to justify the dogmas of racial inferiority. Although CLS purports to be a radical theory, minorities have not flocked to it because it has failed to seriously consider the role that racial identity plays in the lives of People of Color. According to Richard Delgado, “CLS lacks a political and psycho- Fn24 logical theory of racism,”24 because “the principle approaches are psychoanalytic theories, which explain prejudice in terms of unconscious forces and deep-seated Fn25 syndromes, such as the authoritarian personality.”25 For CLS authors wholeheart- edly devoted to social constructionism, race is merely a socially constructed identity that should have no bearing on the fundamental nature of the human personality, which for most of these scholars is largely rooted in Freud’s Oedipal Complex. What Critical Legal scholars fail to understand is that the recognition of race as a social construct is a demonstration of the veiled operations of privilege and power that 20. Id. at 735. 21. Id. 22. Id. 23. Id. at 737. 24. Richard Delgado, The Ethereal Scholar: Does Critical Legal Studies have What Minorities Want, 22 HARV. C.R.— C.L. REV. 301, 315 (1987). 25. Id. at 316.  2012] SILENCING IDEALISM IN CRITICAL RACE JURISPRUDENCE 9 determine most American social practices. In fact, it is this veiled dynamic that sustains the privilege of CLS not to have developed explanations of race and to propose egalitarian solutions that envision a utopia with no safeguards for racial minorities. “The CLS choice of structure for the post-revolutionary community is neutral and based on those arrangements with the greatest potential for humanity. However, that choice is not value free. Utopian society would empower whites, giving them satisfaction currently denied and disempower blacks, making life even Fn26 less secure that it is today.”26 B. The Idealist School in “Doped Up on White Smack”—The Anthropological Dependence of the Idealist School Under the idealist tradition, Black thinkers emerge as inadequate philosophical sources of insight about race. The idealist school assumes that the reasoning of Black thinkers is cloudy because these thinkers are struggling under the weight of racial oppression. Their “being” is burdened to such an extent that it becomes impossible to think about race as a free soul and lucid reasoner. Thus idealists turn to White (European) thinkers outside of and unaffected by the racial problematic to lend their unbiased (untainted) views to Black problems, since their free, rational lives depict Fn27 the ideal conditions of an unwretched Black experience.27 This is what I am calling an “anthropological dependency.” Because Blackness is thought by idealists to de- rationalize the people under the racial label, these idealist scholars turn to European theories of humanity that claim to be freer than the reason of the oppressed. Over the last decade, various writings have appeared contesting the method of idealist versus realist conceptualizations of the subject. The idealist school in drawing theoretical legitimacy from philosophy has sought to reinvent itself in the mirror image of its intellectual heroes by giving accounts of subjects (thinking “I’s”) that are based in the works of Hegel, Kant and the French deconstructionists. “In its commit- ment to the liberation of people of color, CRT work demonstrates a deep commit- ment to concepts of reason and truth, transcendental subjects, and ‘really-out-there’ Fn28 objects. Thus, in its optimistic moments, CRT engages in ‘modernist narratives.’”28 26. Id. at 314. 27. See Robert Bernasconi, African Philosophy’s Challenge to Continental Philosophy, in POSTCOLONIAL AFRICAN PHILOSOPHY: A CRITICAL READER 183 (Emmanuel Eze, ed. 1997). According to Bernasconi, . . . the question of “who is speaking?” is one that has been outlawed from philosophy because it seemed to set up an opposition between the authority of the author and universal reason. The deafness of neutral reason arises from its proud boast that it refuses to give weight to the identity of the speaker or writer. However, the powerful critiques of Western philosophy by African and African American philosophers exceed Western philosophy and cannot be simply reinscribed within it, even when they rely on the idiom of Western philosophy for their presentation. This is because these critiques spring from the pre-philosophical experience of racism and colonialism to which neutral reason is inevitably deaf, just as it is deaf to the role of tradition within philosophy. If Continental philosophers would open themselves to a tradition seen from the outside, they would find that the hegemonic concept of reason had been displaced, and they would be better placed to learn to respect other traditions, including those that are not African. Id. at 192. 28. Harris, supra note 7, at 751.  10 GEO. J. L. & MOD. CRIT. RACE PERSP. [Vol. 3:1 This modernist thought is the background of the idealist tradition, and is only questioned when these authors cannot reconcile the contradictions between the European traditions and their racist legacy. “A faith in reason has sustained efforts to Fn29 educate people into critical thinking and to engage in debate rather than violence”29 and it is this commitment by CRT that “aims not to topple enlightenment, but to Fn30 make its promises real.”30 Because the idealist perspective fails to attack the philo- sophic practices that sustain, perpetuate and empower White thinking, the reconstruc- tive elements of CRT remain limited. Having failed to name, describe and attack the conceptual entities of White supremacy, critical race theories, utilized in CRT, re- main ignorant of the cultural drives sustaining “reason” and the concretization of these cultural dispositions in politics. As long as CRT continues to act as if the theoretical obstacles Blacks encounter are not manifested as the obstacles to the advancement of our social revolt, CRT will remain theoretically impotent and philo- sophically insipid. C. Reggie, Please Reggie don’t go into the WHITE!: Why Robinson’s Articulation of a Kantian Subject Fails to Escape Racialization No Critical Race Theorist embodies the delusion in the promises of Enlighten- ment thought more than Reginald Robinson. In holding that Blacks should tran- scend race and embrace a universal reason, Robinson maintains that liberation is ultimately to be found in a Kantian notion of subjectivity: . . . [P]owerfully ordinary people are like Kant’s autonomous subject, and they are not too different from the latest find in physics and neuroscience. Kant’s autono- mous subject legislates for herself. Not minding human anthropology, this subject acts according to her idea of law. Accordingly, this subject guides herself according to principles that can be universally valid for every rational agent. By acting accord- ing to these self-given but universally valid rules, an ordinary person becomes Fn31 Kant’s autonomous subject.31 For Robinson and other idealists like him, the rejection of race and the contempla- tion of a universal humanity is ultimately the path to liberation. These authors hold that the universal values discovered by human reason are the same for everyone. Robinson’s position is a product of the modernist/post-modernist split. In saying that his readers should transcend race, Robinson’s work is post-modern, but in liberating the racialized subject he seeks to replace it with a Kantian subjectivity that is a little more autonomous and a great deal Whiter. Robinson’s reading of Im- manuel Kant is ultimately a misreading. Autonomous subjects are only so to the extent that they can pragmatically develop themselves as moral beings, and in a Kantian view, this moral development is necessarily determined by a people’s physi- 29. Id. at 754. 30. Id. 31. Reginald Robinson, Human Agency, Negated Subjectivity, and White Structural Oppression: An Analysis of Critical Race Practice/Praxis, AM. U. L. REV. 1361, 1414 (2003).  2012] SILENCING IDEALISM IN CRITICAL RACE JURISPRUDENCE 11 Fn32 cal geography and their pragmatic anthropology, or race.32 For Kant, Blackness was Fn33 an indication of stupidity.33 As he put it, “the Negroes of Africa have by nature no feeling that rises above the trifling . . . although many of them have been set free, still not a single one was ever found who presented anything great in art or science or any Fn34 other praise worthy quality.”34 Robinson’s utilization of Kant as a pure, rational philosopher without the mar of the race concept is quite puzzling. Robinson consistently ignores both Kant’s role in the development of the race concept and Kant’s belief that reason was exclusively and essentially connected to European Whiteness. In Kant’s first attempt to give a scientifi- cally and philosophical sound definition of race in Of Different Human Races, he argued that “[r]aces are deviations that are constantly preserved over many genera- tions and come about as a consequence of migration . . . or interbreeding with other deviations of the same line of descent, which always produces half-breed off- Fn35 spring.”35 Though Kant believes that Blacks and Whites do not comprise different Fn36 species of human beings, he does believe that “they comprise two different races,”36 which owe their origins to different capacities made permanent by their climate— what he describes as seeds. According to Kant, . . . [H]uman beings were created in such a way that they might live in every climate and endure each and every condition of the land. Consequently, numerous seeds and natural dispositions must lie ready in human beings either to be devel- oped or held back in such a way that we might become fitted to a particular place in 32. It is important to recognize the role Enlightenment (modern) philosophers play in Robinson’s work. In choosing to disregard race as a cultural marker and epistemological determinate, Robinson wants to claim that European philosophy speaks to a truer human self. As a consequence of this thinking Robinson will argue that Kant describes a true human self that is free to create and understand the world as he or she pleases. This interpretation of Kant is incorrect and thin in light of his work on pragmatic anthropology and the historical fact that Kant was instrumental in the creation of the modern concept of race. Kant’s view of race is at the center of the general move of enlightenment thinkers to develop philosophically rigorous notions of race that move beyond description towards metaphysics and scientism, see RACE AND THE ENLIGHTENMENT: A READER (Emmanuel Eze ed., Blackwell Publishers 1997). Kant was especially important in this development, as he was the originator of the modern concept of race, see Robert Bernasconi, Who Invented the Concept of Race? Kant’s role in the Enlightenment Construction of Race, in RACE 11-36 (Robert Bernasconi ed., Blackwell Publishers 2001). This notion of race developed by Kant was a teleological principle (see Immanuel Kant, On the Use of Teleological Principles in Philosophy (1788), in RACE 37-56 (Robert Bernasconi eds., Blackwell Publishers 2001) that was specifically defined by a geographical people’s keime or original seed. For a further discussion, see Kant, supra note 35, at 8-22. In recent years, there has been an explosion of scholarship that has reversed the cosmopolitan humanism of Kant and revealed the undeniable fact that Kant’s anthropological writings on race created the context of reason’s attention to itself and morality, see Emmanuel Eze, The Color of Reason: the Idea of Race in Kant’s Anthropology, in POSTCOLONIAL AFRICAN PHILOSOPHY: A CRITICAL READER 103-40 (Emmanuel Eze, ed. Blackwell Publishers 1997); see also THE GERMAN INVENTION OF RACE (Sara Eigen and Mark Larrimore eds., SUNY Press 2006). A reading of Kant’s, ANTHOPOLOGY FROM A PRAGMATIC POINT OF VIEW, supra note 38, which is his original work on the question of race and anthropology, would also show that the ability of an individual to make themselves moral beings and truly free is tied to character and race. 33. Immanuel Kant, OBSERVATIONS ON THE FEELING OF THE BEAUTIFUL AND SUBLIME 113 (John T. Goldwraith trans., Univ. of Cal. Press 1960) (1764). 34. Id. at 110-11. 35. Immanuel Kant, Of the Different Human Races (1775), in THE IDEA OF RACE 9 (Robert Bernasconi & Tommy Lott eds. Hackett Publishing 2000). 36. Id.  12 GEO. J. L. & MOD. CRIT. RACE PERSP. [Vol. 3:1 the world. These seeds and natural predispositions appear to be inborn and made Fn37 for these conditions through an ongoing process of reproduction.37 Robinson may reply that Kant’s anthropological writings on race have little to do with his critical philosophy, but Kant’s critical philosophy, especially his Critique of Judgment are largely framed by his philosophical perspectives on race. While many scholars, including Robinson, use Kant’s first critique—the Critique of Pure Reason, and Kant’s second critique—the Critique of Practical Reason, to mark his contribu- tions to Enlightenment thinking, it is no longer deniable that Kant’s pre-Critical philosophy, and his third critique—the Critique of Judgment, are inextricably tied to his anthropological research on race and racial characteristics conducted throughout his career. In fact, Kant’s last work, his Anthropology from a Pragmatic Point of View, written in 1798, argues that all knowledge of the world (philosophy included) is acquired through anthropology and serves to develop the human being, because “the Fn38 human being is his own final end.”38 For Kant, all knowledge starts with the observa- tion of natural phenomena and the theorization of what that phenomena means for the human being. Philosophy is merely the act of thinking about this phenomena and itself falls under his ideas of a pragmatic anthropology. In this regard Robinson grossly misunderstands the idea of an “autonomous sub- ject” in Kant’s philosophy. A subject is autonomous only in the sense that the human being (Robinson’s ordinary person) is pragmatic, and this pragmatic capacity, which is “the investigation of what man as a free-acting being makes of himself, or can and Fn39 should make of himself”39 belongs to pragmatic anthropology— critical teleological judgments concerning the goal of humanity and the moral steps individuals take to fulfill that goal. Not surprisingly, the use of reason as an autonomous subject is racial, since the patterns of thinking that are reproduced from one generation to the next aim to perpetuate the mentality of specific geographic peoples. In man (as the sole rational creature on earth) those natural capacities directed toward the use of his reason are to be completely developed only in the species, not in the individual. Reason in a creature is a faculty to extend the rules and objectives of the use of all of its powers far beyond natural instinct, and it knows no limits to its projects. However, reason itself does not operate on instinct, but requires trial, practice, and instruction in order gradually to progress from one stage of insight to another. Therefore, each individual man would have to live excessively long if he were to make complete use of all of his natural capacities; or if nature has given him only a short lease on life (as is actually the case), she requires a perhaps incalculable sequence of generations, each passing its enlightenment on to the next, to bring its 37. Id. at 14. 38. Immanuel Kant, ANTHROPOLOGY FROM A PRAGMATIC POINT OF VIEW 3 (Robert B. Louden trans., 2006). 39. Id.  2012] SILENCING IDEALISM IN CRITICAL RACE JURISPRUDENCE 13 seeds in our species to the stage of development that completely fulfills nature’s Fn40 objective.40 This quote, taken from Kant’s Idea for a Universal History with a Cosmopolitan Intent, reflects Kant’s long-standing belief that races, or the “seeds in our species,” utilize reason to fulfill nature’s objective. This is not a universal reason with one unalterable aim but a reason molded to the capacities of a race and fixed by its environment. Unfortunately, however, Kant believed that Africa only permitted Blacks to be “lazy, Fn41 indolent and dawdling,”41 and incapable of the rational inclinations possessed by the more temperately balanced European. This faith in modernity and the possibility of an un-raced pure thinker inevitably leads to attacks on the competence of Black authors who spoke honestly about the role that race and culture play in our thinking about the world. For example, Robin- son argues DuBois’ double consciousness becomes a racial identity, which under- mines self-awareness and freedom, through which African Americans “reject their Fn43 essential selves”42 and bypass their true self-conscious as “divine humans.”43 Simply put, double consciousness is not consciousness for Robinson in the truer, Whiter, more Hegelian sense of the word. As a result, Robinson is willing to cast aside the genuine contributions of a Black scholar for the Hegelian dialectic, but in Hegel’s use of the master/slave dialectic, subjects become self-conscious through domination. Hegel used this justification unapologetically as a justification for colonization, pro- claiming, “Negroes are to be regarded as a race of children who remain immersed in their state of uninterested naivete´. They are sold and let themselves be sold without Fn44 any reflection on the rights or wrongs of the matter.”44 Similarly to Kant, Hegel believed it was only Whites who “have for their principle and character the concrete universal, [s]elf-determining thought . . .” After all, “the principle of the European Fn45 mind is . . . self-conscious Reason.”45 No matter the extent of Black scholars’ revision- ism, Hegel’s original thoughts on the matter of race will remain unchanged. For Hegel, Africans and their descendents simply were not capable of becoming self- conscious human beings. Ultimately, the recent embracing of a transcendental subject by race-crits is mis- placed. This appeal to the knowing forces oppressed people of African descent to think of themselves as if they possessed the reason and values of those who created the systems that oppress them. This revisionism asks Blacks to think of themselves as possessing the same fundamental nature as those who have created, justified, and perpetuated colonialism, as if these inclinations are what determine the basis of 40. Immanuel Kant, Idea for a Universal History with a Cosmopolitan Intent (1784), in PERPETUAL PEACE AND OTHER ESSAYS 30 (Ted Humphrey trans., Hackett Publishing Company 1983). 41. Kant, supra note 35, at 17. 42. Reginald Robinson, The Shifting Race Conscious Matrix and the Multiracial Category Movement: A Critical Reply to Professor Hernandez, 20 B.C. THIRD WORLD L.J. 231, 245 (2000). 43. Id. at 246. 44. G.W.F. Hegel, Anthropology from the Encyclopedia of Philosophical Sciences, in THE IDEA OF RACE 41 (Robert Bernasconi & Tommy Lott eds., Hackett Publishing 2000). 45. Id. at 43.  14 GEO. J. L. & MOD. CRIT. RACE PERSP. [Vol. 3:1 Blacks’ humanity. At best, Robinson’s valorizations of Enlightenment philosophy make him a heretical Critical Race Theorist; at worst, his reading and interpretation of these Enlightenment thinkers are ideologically driven and simply dishonest. D. Misplaced Loyalties: The Errant Association of Racial Discontent with Post-Modernity Angela Harris admits that CRT is pessimistic about “reason,” and turns to post- modern narratives to express CRT’s discontent and suspicion of the very “reason” that is presumed to unveil the racism of modernist constructions. However, her adoption of the post-structural disposition, whereby “intellectual movements are practices: games where rules are always evolving, played by communities with fuzzy Fn46 boundaries,”46 limits CRT to discursive gambles whereby various rhetorical flares are utilized in a struggle for social recognition. This mood, instead of bolstering CRT’s ability to overthrow dominant forms of imperial thinking, makes the movement vulnerable to them. This vying for discursive currency is perhaps the best explanation for why Harris and other idealists choose to read CRT into the tradition of postmod- ern discontent. Harris contends that postmodernism, as law professors understand the term, . . . suggests that what has been presented in our social, political and our intellec- tual traditions as knowledge, truth, objectivity, and reason are actually merely the effects of a particular form of social power, the victory of a particular way of representing the world that then presents itself as beyond mere interpretation, as Fn47 truth itself.47 It is interesting that Harris describes postmodernism as a “mood of profound doubt Fn48 and skepticism,”48 rather than as a specific movement that arose in response to the Fn49 advances of modernity, instead of its collapse.49 Insofar as CRT adopts this mood, Harris believes that CRT takes up the postmodern charge. This position, however, is extremely limiting given the historical discontent people of African descent have 46. Harris, supra note 7, at 745. 47. Id. at 748. 48. Id. 49. While postmodernism was a revolutionary idea in the western metaphysical tradition, CRT must admit that it was in the western metaphysical tradition, and thus separate itself from the racialized isolation of Africa and the thought that developed from the enslavement of African-descended people. In Lyotard’s first explorations of postmodernism, which at that time he called paganism, there was an anti-universalism that sought to root all judgment in plurality and particularity. This movement was a reaction to the dominance of categorical knowledge in the West, a reaction rooted in the philosophical traditions of knowledge that grounds transcendental knowledge and an attempt to abandon formal rules in judgment. JEAN FRANCOIS LYOTARD, JUST GAMING (Wlad Godzick trans., Univ. of Minnesota Press 1985). However, it was not until the JEAN FRANCOIS, POSTMODERN CONDITION: A REPORT ON KNOWLEDGE (Geoff Bennington & Brian Massumi trans., Manchester Univ. Press 1984) that Lyotard introduces the term postmodernism, which he understood as “incredulity towards metanarratives” as a resistance to the technological dominance of human knowledge. In both cases, the alienation from modernity is an intellectualization of the crisis phenomenology, and transcendentalism have in speaking to reality, whereas the alienation that people of African descent experience comes from the inability of modernity to explain or account for Black existence.  2012] SILENCING IDEALISM IN CRITICAL RACE JURISPRUDENCE 15 expressed against Europe at the apex of modernity. In choosing to place Black discontent under the rubric of postmodernism, Harris reads people of African de- scent into a tradition quite separate from their historical position. The events of slavery, segregation, lynching and the continuation of racism into the 21st century are the demonstrative failures of Enlightenment thinking—the concrete demonstration, rather than the abstract hypothesization, of modernity’s failure. Under Harris’s read- ing we cannot meaningfully distinguish among the different reasons various histori- cal subjects may have for being discontent with the products of modernity, since Fn50 Harris assumes that all modern discontent belongs to postmodern concern.50 For people of African descent, what has been termed the “postmodern crisis,” exists for quite a different reason. According to DuBois: The collapse of Europe is to us the more astounding because of the boundless faith which we have had in European civilization. We have long believed without argu- ment or reflection that the cultural status of the people of Europe and of North America represented not only the best civilization which the world had ever known, but also a goal of human effort destined to go on from triumph to triumph until the perfect accomplishment was reached. Our present nervous breakdown, name- less fear, and often despair, comes from the sudden facing of this faith with calam- ity. In such a case, what we need above all is calm appraisal of the situation, the application of cold common sense. What in reality is the nature of the catastrophe? To what pattern of human culture does it apply? And, finally, why did it happen? In this search for reason we must seek not simply current facts or facts within the memory of living men, but we must also, and especially in this case, seek lessons from history . . . [T]he habit, long fostered of forgetting and detracting from the 50. Angela Harris’ work demonstrates a serious misunderstanding of postmodernism and what her alleged postmodern commitments commit her too. Harris errantly wants to isolate postmodernism to a mood, a disposition that questions fixed modern principles, whereas postmodernism behaves as a dynamic seeking to introduce the inenarrable into narrative. According to Jean-Francois Lyotard, “A work can become modern only if it is first postmodern. Postmodernism thus understood is not modernism at its end but in the nascent state, and this state is constant.” LYOTARD, POSTMODERN CONDITION, supra note 49, at 79. What Harris takes to be a movement that overthrows modernity is merely the assertion of new narratives against the grand meta-narrative in an effort to become the new modernity. This commitment to postmodernism as a birthing of modernism is also explicitly communicated by Lyotard: The postmodern would be that which, in the modern, puts forward the inpresentable in presenta- tion itself . . . it must be clear that it is our business not to supply reality but to invent allusions to the conceivable which cannot be presented. And it is not to be expected that this task will effect the last reconciliation between language games (which, under the name of faculties, Kant knew to be separated by a chasm), and that only the transcendental illusion (that of Hegel) can hope to totalize them into a real unity. But Kant also knew that the price to pay for such an illusion is terror. The nineteenth and twentieth centuries have given us as much terror as we can take. We have paid a high enough price for the nostalgia of the whole and the one, for the reconciliation of the concept and the sensible, of the transparent and the communicable experience. Under the general demand for slackening and for appeasement, we can hear the mutterings of the desire for a return of terror, for the realization of the fantasy to seize reality. The answer is: Let us wage a war on totality, let us be witnesses to the unpresentable; let us activate the differences and save the honor of the name. Id. at 81-83.  16 GEO. J. L. & MOD. CRIT. RACE PERSP. [Vol. 3:1 thought and acts of the people of Africa is not only a direct cause of our present Fn51 plight, but will continue to cause trouble until we face the facts.51 Unlike Harris, DuBois understands that a loss in faith of Europe’s anthropological certainty cannot be restored by an appeal to Europe’s rethinking of man. DuBois asks, “To what pattern of human culture does it apply?” calling out, so to speak, the limitations of Europe’s historical record and its anthropological reach, recognizing that Europe’s thoughts on humanity are just that—Europe’s thought. In looking to Africa, DuBois communicates a very clear division between the myth that emerged as Fn52 “the doctrine of the Superior Race”52 and the new anthropology in the cultural knowledge of African-descended peoples. The failures of Europe’s ideas tell us nothing about the state of human knowledge, only where European thinking is false. Because the ideas of knowledge, truth, and objectivity are sustained by the illusion of White superiority and European anthropo- logical legitimacy, the erosion of Europe’s presumed universality exposes its inad- equacy. This crisis has nothing to do with knowledge, but everything to do with myth. Because the historical production of knowledge by Europe aimed to sustain the “doctrine of the Superior Race,” or “the theory that a minority of people of Europe are by birth and natural gift the rulers of mankind” which lead to “rulers of their own suppress[ing] labor classes and, without doubt, heaven-sent rulers of yel- Fn53 low, brown, and black people.”53 Because of this theory, the postmodern crisis of knowledge is nothing more than the failure of Europe’s claim that its knowledge is the template for humanity. Reading DuBois beyond his traditional appropriation of double consciousness reveals a much deeper understanding of modernity’s collapse—an understanding of modernity that implicates all European forms of knowledge in its perpetuation. DuBois understood, “in order to establish the righteousness of this [European] point Fn54 of view, science and religion, government and industry, were wheeled into line,”54 where knowledge was no longer a question of seeking truth but was of sustaining myth. Modernity then arose from the distortion of the European mind—its culture— from the deleterious effects of African slavery and the intellectual and spiritual ener- gies put forth to solidify the legitimacy of the African slave trade. According to DuBois, this convenient fiction was totalizing: Everything great, everything fine, everything really successful in human culture, was white . . . Without the winking of an eye, printing, gunpowder, the smelting of iron, the beginnings of social organization, not to mention political life and democracy were attributed exclusively to the white race and to Nordic Europe. 51. W.E.B. DUBOIS, THE WORLD AND AFRICA 1-2 (1946). 52. Id. at 17. 53. Id. at 17. 54. Id. at 20.  2012] SILENCING IDEALISM IN CRITICAL RACE JURISPRUDENCE 17 Religion sighed with relief when it could base its denial of the ethics of Christ and Fn55 the brotherhood of men upon the science of Darwin, Gobineau and Reisner. 55 DuBois understood that European thought always existed as an entanglement of contradictions that could not be answered by the appeal to reason and a culture immersed in crisis. He continues, This way of thinking gave rise to many paradoxes, and it was characteristic of the era that men did not face paradoxes with any plan to solve them. There was the religious paradox: the contradiction between the Golden Rule and the use of force to keep human beings in their appointed places the doctrine of the White Man’s Burden and the conversion of the heathen, faced by the actuality of famine, pesti- lence, and caste. There was the assumption of the absolute necessity of poverty for the majority of men in order to save civilization for the minority, for that aristoc- racy of mankind which was at the same time the chief beneficiary of culture. There was the frustration of democracy: lip service was paid to the idea of the rule of the people; but at the same time the mass of people were kept so poor, and through their poverty so diseased and ignorant, that they could not carry on successfully a modern state or modern industry. There was the paradox peace: I remember before World War I stopping in at the Hotel Astar to hear Andrew Carnegie talk to his peace society. War had begun between Italy and Turkey but, said Mr. Carnegie blandly, we are not talking about peace among unimportant people; we are talking about peace among the great states of the world . . . Here I knew lay tragedy . . . for the great states went to war in jealousy over the ownership Fn56 of the little people.56 The concern for knowledge and the inquiry into knowledge’s limitations were never resolved against the cultural inclination of Europe to dominate. There always re- mained a clear racial division among the voices of discontent. People of African descent had long realized that the historical accumulation of the myth of European superiority created paradoxes that could not be sustained by a blanket appeal to reason, regardless of the attempts of science, religion, history, and philosophy to substantiate Whites’ unquestioned access to the foundations of reality. Because people birthed from Africa were not viewed as human, their dissent and resistance to modernity’s colonial domination went unheard and remained un- named. Throughout the 1800s, Black thinkers resisted modernity, rebuking the idea Fn57 that European civilization was in fact the apotheosis of humanity.57 What is unset- tling about Harris’s approach is that she mistakes the historical moment at which the dissent of Black people in America coincides with the concerns of Whites as the 55. Id. 56. Id. at 18. 57. For examples of prominent Black dissents to European thinking, see MARTIN R. DELANEY, THE CONDITION, ELEVATION, EMIGRATION AND DESTINY OF THE COLORED PEOPLE OF THE UNITED STATES AND OFFICIAL REP. OF THE NIGER VALLEY EXPLORING PARTY (2000) (1852); Martin R. Delaney, THE ORIGINS OF RACES AND COLOR (1991) (1879); EDWARD W. BLYDEN, CHRISTIANITY, ISLAM, AND THE NEGRO RACE ch.4 (1994) (1888); ANTENOR FIRMIN, THE EQUALITY OF THE HUMAN RACES (Asselin Charles trans., Univ. Ill. Press 2002) (1895).  18 GEO. J. L. & MOD. CRIT. RACE PERSP. [Vol. 3:1 valorization of postmodernism, when in fact postmodernity is nothing more than Europeans’ discontent with Europe not living up to its hype. CRT must resist the inclination to take advantage of its current historical position where Whites are willing to tolerate Black voices among its dissident cries against modernity. White acknowledgement of Black discontent does not form the basis of, or give legitimacy, to the historical and intellectual presence of Black resistance. This situation that has emerged as “the crisis of human knowledge” is built on the fiction of European superiority—its failure to fulfill the promises of its White narra- tion. Thus the problem of contemporary theoretical positions in CRT, and Harris’s in particular, is that they are reacting to the failure of European thought as if it were a universal problem of human knowledge, rather than Europe’s realization that its story was a lie. What CRT needs is an acknowledgment that race is not at the periphery of modern discontent like class or gender, as Harris would have us believe, but rather that race and European domination are the organizing force directing and seeking to reclaim the plot of Western intellectual hegemony. This acknowledgment particularizes Europe’s failure and allows a necessary separation between European thought and the actual crisis of knowledge as it affects African-descended peoples. This postmodern tendency to view the theoretical aspect of knowledge (postmod- ernism) as separate from the materialization of knowledge (the colonial conditions that spurred and supported the technological and industrial advances of Europe) reinforces the idea that CRT can utilize the thinking of the colonizer without embrac- ing the manifestations of colonial thought. This quandary is where Harris’s criticism falls flat. “For race-crits,” Harris argues, “racism is not only a matter of individual prejudice and everyday practice; rather race is deeply imbedded in language, percep- Fn58 tions, and perhaps even ‘reason’ itself.”58 However, we never really get to see how this suspicion of reason’s role in racism is ever addressed in the course of a “jurisprudence of reconstruction.” Harris continues, “The postmodernist critique is congenial to race-crits, who had already drawn from history the lesson that ‘racism’ is no superfi- cial matter of ignorance, conscious error or bigotry, but rather lies at the heart of Fn59 American—and western— culture.”59 Yet, this argument fails to distinguish the privilege and ontological status of Whiteness necessary to criticize the forms of knowledge endemic to the postmodern critique and fails to explain why postmodern- ism is immune to criticism. Is post-modernity, as the outgrowth of modernity, not just as susceptible to the racism of Western culture? Instead of creating a founda- tional theory, Harris opts for a theoretical schizophrenia between modern and post- modern narratives. In fact, Harris calls these mood swings the definitive characteristic of a jurisprudence of reconstruction, whose “task should not be to try to somehow resolve the philosophical tension between modernism and postmodernism, but rather Fn60 consciously inhabit that very tension.”60 But that inhabitation locates CRT between two traditions, neither of which was created with racial experience or Africana cul- 58. Harris, supra note 7, at 743. 59. Id. at 749. 60. Id. at 760.  2012] SILENCING IDEALISM IN CRITICAL RACE JURISPRUDENCE 19 tural dispositions in mind. Over a decade later, we can see Harris’s project failed as contemporary critical race theorists are still trying to figure out exactly what it means to “inhabit that very tension” that results from CRT’s “desire to integrate post- Fn61 modern skepticism within a modern framework of law and reason.”61 The critical perspective of reason initiated by a jurisprudence of reconstruction is unfortunately as shallow as it is vague. It is not possible to build a cohesive theory of Black subjectivity through modernism by insisting that all humans are part of the same transcendental subjectivity, endowed with the same gifts of reason and values, and then claiming a post-modern slant when the theories of European philosophers do not speak to a crucial part of Black people’s experience. As it stands now, CRT has placed the fate of Black people’s account of the world squarely on the backs of European philosophers through a revisionism that seeks to lure European theorists into a conversation on the condition of Blacks and other People of Color in America, a world in which CRT is only post-modern when its scholars are discontent with the lack of attention given to the issues of racism in modern philosophical discourse. CRT cannot continue to satisfy itself with participating in colonial discourse and complain only when it is not allowed to partake. PART II. THE JURISPRUDENCE OF THE SUBJECT; THE “PROBLEM OF THE SUBJECT AS JURISPRUDENCE” IN POST-MODERN CRITIQUES OF LAW In contemporary CLS and CRT circles, it is largely agreed that what we know as “the law” is nothing more than politics. Instead of the law being a moral order ordained by God (natural law), or the general will of a society, CLS and CRT scholars believe, as the legal realists before them, that the law comes about through the personal and political articulations of values that judges, policy-makers, and decision-makers take as truth. This theory takes issue with Langdellian formalism, which holds that the law is an autonomous system of truths that endure beyond the Fn62 intervention of culture or social context.62 As a result of questioning formalistic notions of law, jurisprudence became a sociology of law that focused on how subjects create the values and knowledge we call law. This breakthrough forced scholars to think about jurisprudence as the ways sub- jects think about “thinking about law.” “Crits argued that legal categories, by creat- ing and maintaining certain descriptions of social and legal arrangements, foreclose Fn63 other ways of thinking about and organizing human life.”63 CRT was not far behind this line of thinking. 61. Darren Hutchinson, Critical Race Histories: In and Out, 53 AM. U. L. REV. 1187, 1193 (2003). 62. Positive law was the result of Enlightenment thinking and placed reason, objectivity, and transcen- dence at the heart of jurisprudence and legal thinking. According to Kenneth B. Nunn, “Positivism super- seded natural law as the culture of Europe took a more rationalistic, modern turn. The Eurocentric mindset demanded a positive concept of law. It was the European urge for unity, coherence and closure that produced positive law.” Nunn, supra note 8, at 341. This should be contextualized against the emerging “law as context” schools of thought, which would include post-modern and critical movements like CRT, CLS and Feminist Jurisprudence. Id. at 339-44. 63. Harris, supra note 7, at 746.  20 GEO. J. L. & MOD. CRIT. RACE PERSP. [Vol. 3:1 Echoing themes in other progressive legal discourses, primarily CLS, Critical Race Theorists argued that law reinforces racial hierarchy, reflects the views of privileged classes, serves as a weak vehicle for social change, is indeterminate and unable to provide fixed predictable outcomes for civil rights litigants, and is inherently non- Fn64 neutral (and biased toward the protection of social privilege).64 CRT, however, broke with CLS when the members of the movement could not ignore the “historical role that law has played in the advancement of the material and Fn65 social status of persons of color.”65 Under CRT, this has been referred to as a “dual consciousness,” in which People of Color who are discontent with the legal institu- tions and the dispersement of legal rights nonetheless hold a faith in the ultimate promise of the system’s idea of justice and equality. In current CRT scholarship, this dual consciousness embodies a “dual commitment to anti-racist critique and the Fn66 distinctive cultures formed in part by the concepts of race,”66 or what Harris calls a Fn67 “politics of difference.”67 This commitment both to the ideal and unrealized prin- ciples of the legal system and the experiences of oppression by People of Color at the hands of the same system suggests a problem too large to be handled merely at the level of how one chooses to engage the politics of the legal system. The “politics of difference” fails to explain how identity politics can change the constraints placed on oppressed people and does not address how this contradiction affects the psychology of oppressed people. These scholars want to maintain that identity is a “complex and Fn68 changing interaction between individual agency and structures of power,”68 but fail to clarify what is at work in individuals’ conception of the world that allows them to construct actions, or determine the value of those actions in a hostile world. Are all oppressed people really sexually repressed Oedipal subjects who turn their attention to racism? Or, are they really Hegelian personalities who seek to dominate the other for recognition of their position as master, and are just discontent with their political marginalization as the slave? Either way, CRT has failed to define the racial personal- ity and the metaphysical commitments of that racial personality in its attempts to speak of a racialized subjectivity. A. The Transcendental Path of Legal Subjectivity CLS ran into a problem of the subject well before it became an issue for CRT, but J. M. Balkin’s essay Understanding Legal Understanding, brought Critical Theorists one step closer to a solution. In the early 1990s, Balkin developed a theory of subjectivity that would take into account the motivations and ideological disposi- tions of a socially constructed individual in law. Balkin sought to transform “the subject of jurisprudence into a jurisprudence of the subject—a jurisprudence that 64. Hutchinson, supra note 61, at 1192. 65. Id. 66. Harris, supra note 7, at 760. For a discussion of dual consciousness in CRT, see Robin D. Barnes, Race Consciousness: The Thematic Content of Racial Distinctiveness in Critical Race Scholarship, 103 HARV. L. REV 1864 (1990). 67. Harris, supra note 7, at 744. 68. Id. at 761.  2012] SILENCING IDEALISM IN CRITICAL RACE JURISPRUDENCE 21 recognizes that questions about the nature of law must equally be concerned with the ideological, sociological, and psychological feature of our understanding the legal Fn69 system.”69 For Balkin, the recognition that the subject is socially constructed changed the concerns he had with the traditional understanding of “subject” and “subjectiv- ity.” Surely each of us brings something distinctive to our experience of the social world. Yet any theory of ideology presumes that many individuals will share a great deal in their beliefs, attitudes and modes of understanding. Thus ‘subjectivity’ involves an individual experience that results in part from internalization of cultural norms and shared frameworks of understanding. These cultural norms and frameworks are not simply superimposed on an individual’s preexisting beliefs; they constitute her and form part of what makes her an individual. Subjectivity is what the individual subject brings to the act of understanding; it is what allows her to Fn70 construct the object of her interpretation so she can understand it.70 Balkin calls this process “rational reconstruction,” the particular activity of under- Fn71 standing that creates judgments of legal coherence.71 Subjects create a world, specifi- cally a legal world, by making principles, objects and goals cohere in their eyes. For Balkin, a subject is persistently constructing the world. “Because judgments of coher- ence and incoherence rest upon the nature of the self, they are also shaped by the Fn72 self’s psychological needs.”72 But what if an external constraint on both the ability to create the necessary principles to make the law cohere as well as constraints limits the ability to satisfy one’s psychological needs? Unfortunately, Balkin’s theory cannot account for cultural constructs that act independently of the individual minds that legitimate their existence. Our subjectivity contributes to, but does not create the cultural objects we compre- hend. This is the dialectic between the subjective and objective aspects of social life— between individual thought, belief, and action on the one hand and lan- guage, ideology, culture, conventions, and social institutions on the other . . . Language, ideology, culture, conventions, and social institutions construct and constitute the individual’s subjectivity; yet language, ideology, culture, conven- tions, and social institutions exist only as instantiated in the thoughts, beliefs and Fn73 actions of individuals.73 Balkin’s account is too rationalist to consider the effects of socio-cultural contexts on the ways in which one knows objects in the world. For Balkin, race or culture would be a secondary identity ordered by the rational reconstruction of the social landscape. Reason would make the world cohere in ways that would address the needs of the 69. J. M. Balkin, Understanding Legal Understanding: The Legal Subject and the Problem of Legal Coherence, 103 YALE L.J. 105, 105 (1993). 70. Id. at 106. 71. Id. at 112. 72. Id. at 109. 73. Id. at 107.  22 GEO. J. L. & MOD. CRIT. RACE PERSP. [Vol. 3:1 self, but that creation is a rational encounter with social factors that have nothing to do with cultural identity as an epistemological source. Even if we take the race-crits seriously, none of their accounts of subjectivity could work as a postmodern or modernist project, or answer the questions raised from a serious encounter with Balkin’s theory of the subject. Even though certain kinds of objects exist only as thoughts, beliefs, and actions of individuals, Balkin fails to give an explanation of what happens when groups, societies, and institutions, moved by their subjective belief and individual actions, have determined a course of law, society, and thought, not as competing individuals but as racialized groups. Only recently has Balkin clarified his stance and developed a theory of transcendental deconstruction that presupposes “the existence of transcendental human values articulated in culture but Fn74 never adequately captured by culture;”74 but, again, this account rests on the assump- tion that all people share the same ontological perspectives as a consequence of their innate rationality and that this rational humanism serves as the basis for social and legal construction. Clearly, CRT needs a fundamental overhaul to eliminate the pretension of this “one size fits all” transcendentalism. B. The Problem of Euro-centric Reification—Law as the Expression of European Cultural Constructivism Any attempt to escape the philosophical problem of “thinking” in the jurispru- dence of the subject is doomed, because the subject, in seeking to create, is creating on a canvas that is historically and insidiously Eurocentric. “Law is the creation of a Fn75 particular type of culture;”75 it is “a creation of a particular set of historical and Fn76 political realities and of a particular mindset or world-view.”76 This particular world- view is fundamentally Euro-centric. Law and the rationalizations that sustain the legal enterprise are the result of the specific historical and cultural relations European peoples have taken up with the world. These relations—mistakenly understood as manifestations of a universal and transcendental reason— define, create, and repro- duce the cultural landscape that we know as law and has constructed American Fn77 society around “law as a Euro-centric enterprise.”77 According to Arthur De Gobineau, “A people obviously adapts its institutions to its wants and instincts; and will beware of laying down any rule which may thwart Fn78 the one or the other.”78 Beyond the realist description that law is political lays a historic dynamic of racialized culture. This impetus forces the Critical Race Theorist to concede that at its essence, the law is rooted in the logics of cultural despotism; and that politics, the name given to the science of government, is driven by the impetus to dominate the cultural other. Gobineau is adamant that “the laws . . . always ema- nate from the people; not generally because it has a direct power of making them, but 74. Balkin, supra note 17, at 740. 75. Nunn, supra note 8, at 324. 76. Id. at 325. 77. Id. at 325-27. 78. ARTHUR DE GOBINEAU, THE INEQUALITY OF RACES (Adrian Collins trans., G.P. Putnam 1915) (1855).  2012] SILENCING IDEALISM IN CRITICAL RACE JURISPRUDENCE 23 because, in order to be good laws, they must be based upon a people’s point of Fn79 view.”79 The point of view people have of the world determines the normative perspectives of those governed by that people. Thus, resistance against social reality is also the revolt against the perspective that ruling people impose on the world. Inevita- bly, this revolt is a contestation of the existence and historical legacy of the ruling Fn80 people involved.80 The American concept of law, because of its intimate European ideological kin- Fn81 ship,81 colonizes critical race theorizations of subjectivity. The very act of legal reasoning reduces the subject to their purposive deployment of reason in its universal and unitary capacity to comprehend that which is external and object-ed. Thus, the subject’s search for rational coherence in the social world, which stands in symbiotic contrast to its legal counterpart, and incarcerates what one takes to be rational thought in a penitentiary of European ontology, where the objects in the world are taken to be sempiternal rather than “White,” and culturally contingent. Reasoning about law then distracts the subject from thinking about the White cultural hege- mony and supremacy of European traditions implied in encountering law through Fn82 this very Western thought.82 Legal reasoning, in convincing the subject that there is an applied and objective method found through European philosophical analysis, persuades the subject that “reasoning” is not a particular cultural enterprise. In this process, modern subjectivity—that subjectivity intimately constituted by a transcen- dental reason—lacks the resources to question Euro-centrism, since it is Euro- centrism and its cultural predominance that bestows reason upon the subject. Inevitably, operating under the illusion of a transcendental or universal reason dooms the subject to take up the cultural relations that Europeans have established with the world; in doing so, the racialized (Black) subject dismisses the cultural potentiality of Fn83 Africanity,83 choosing to be colonized once again by the seduction of Euro-centric norms masquerading as universal. “The law supports Euro-centricity through its false universalism and privileging of the European historical experience. Euro-centric law presents itself as rational, transcendent, objective without ideological content Fn84 and applicable to all.”84 Thus, subjective jurisprudence is the rediscovery of law’s ethereal quality through reason, a reason that establishes rational coherence in the construction of reality, which under the European worldviews, in turn, establishes a rational justification for dehumanizing people of African descent. How, then, do we make reason Black-friendly? A subject’s attempts to sort out the 79. Id. 80. For a further discussion of this matter, see Tommy J. Curry, Please Don’t Make Touch Em: Towards a Critical Race Fanonianism as a Possible Justification for Violence against Whiteness, 5 RADICAL PHIL. TODAY 133 (2007). 81. See Nunn, supra note 8, at 358-63 (where he argues that American law is a cultural derivative of European Enlightenment and common law traditions). 82. Id. at 364 83. The idea that African culture can modify and contour modernity is reflected in JOHN MBITI, AFRICAN RELIGIONS AND PHILOSOPHY (1969), and KWAME NKRUMAH, CONSCIENCISM: PHILOSOPHY AND IDEOLOGY FOR DECOLONIZATION (1964). 84. Nunn, supra note 8, at 358.  24 GEO. J. L. & MOD. CRIT. RACE PERSP. [Vol. 3:1 post-modern problems of race that emerge from a politics of difference, and the discontents that arise from the essentialized racial label, inevitably fall back upon a modernist reason—a universal human reason—to negotiate and clarify the relation- ship of the untainted self to the historically mired self encased in Blackness. The task for CRT lies not in the continual deconstruction of European modes of thinking as inadequate methods for Black subjectivity—we already know that to be the case. The task for CRT is to create new ways to think about the thought of an anthropologi- cally different people who possess a fundamentally different culture. PART III. TOWARDS THE CULTURALOGICAL TURN IN CRITICAL RACE THEORY Derrick Bell has taken up a conspicuous place among Black thinkers in history. As one of the few Black thinkers adamant about preferring Black thinkers on the subject of race like Paul Robeson, W.E.B. DuBois, Ralph Bunche, and Frantz Fanon over Fn85 the insipid White thinkers like Marx, Nietzsche, or Foucault,85 Bell demonstrates an intellectual acuity perfected in the historical ruminations of African-descended people over Blackness. As a legal theorist, a philosopher, and the renowned father of Critical Race Theory, Bell’s work fills a profound lacuna between Black reality and African American philosophy. Bell insists that Blacks can and should sustain a cultural and racial engagement with the world beyond the promises of equality rooted in White delusions of America’s racial landscape. Thus, Bell’s Robesonian and DuBoisian influences are rich starting points for philosophical inquiry into his declarations of Fn86 cultural independence.86 While Bell’s writings do not possess the vocabulary of a 85. This interpretation of Bell’s work is supported by Bell himself. In correspondence between Derrick Bell and I, in which I claimed that his work should be understood as a continuation of Black thought, exclusive of White influence, Bell replied: [Tommy] You have it exactly right. I consider myself the academic counterpart of Errol Garner, the late jazz pianist from my hometown, Pittsburgh, who never learned to read music fearing, as I understand it, that it would ruin his style. I think there must be value in Marxist and other writings, but I did not really read them in college and have had little time since. I am writing this in Pittsburgh where I have been celebrating my 50th law school reunion from Pitt Law School. I do care more about the thought and writings and actions of DuBois, Robeson, Douglass, et al. I think during my talk at UCLA, I read from the 1935 essay by Ralph Bunche about the futility of using law to overcome racism. It made more sense than so much of the theoretical writings on law, past and present, that I can barely understand and have great difficulty connecting with my experience. And you are right. At almost 77, I do not care to write in ways that whites can vindicate. My view is like that of a dear friend, Jean Fairfax. I told her back in the 1960s that she looked like a black Joan Crawford. She replied, I think you mean that Joan Crawford looks like a white Jean Fairfax. Email from Derrick Bell, Professor of Law, NYU Law School, to Tommy J. Curry (Oct. 2, 2007) (on file with author). Notice how Bell resolves the looming existential question so prevalent in current phenomenological investiga- tions of race. In Jean Fairfax’s reply, what many philosophers and legal thinkers would call subjectivity is already conceptualized in the redefinition of her White counterpart. Jean’s subjectivity is and asserts itself in redefining and challenging the incongruency of the White world. In her Blackness, there is a necessary impetus to describe the world from that standpoint. Bell’s narrative demonstrates, just as his corpus, that there is a fundamentally Black and cultural standpoint from which to theorize the world absent White commentary: a standpoint that stands to be corrupted if influenced by White thought. 86. Bell has constantly affirmed his admiration of W.E.B. DuBois and Paul Robeson. In ETHICAL AMBI- TIONS: LIVING A LIFE OF MEANING AND WORTH ch. 5 Ethical Inspirations 127 (2002), where Bell talks about  2012] SILENCING IDEALISM IN CRITICAL RACE JURISPRUDENCE 25 culturalogical perspective, his works nonetheless point to a need to name these critical reflections on American jurisprudence. A. Bell’s Articulation of Cultural Distinctiveness Cultural independence and mental decolonization have always been a central Fn87 concern of Bell’s thought on American racism.87 In utilizing the term “cultural independence” I mean to convey that Bell has always conceptualized African culture in America as capable of creating, governing, and sustaining its own civilization. Much like Robeson and DuBois before him, Bell has maintained the survival and Fn88 perseverance of African culture in Black American thinking since slavery.88 Through- his reason for naming his sons Carter Robeson Bell and Douglass DuBois Bell. In AFROLANTICA LEGACIES (1998), Bell dedicates an entire chapter to Robeson, arguing, “Paul Robeson’s life, like great art, is treasured as much for the images it evokes as for the story it portrays. At one level, one can view the obvious parallel of Robeson’s contributions with those of other well-known [B]lacks who paid a large price for their outspoken challenges to racial injustice. At another level, with Robeson’s life as model, [emphasis added] the significant but less well-known sacrifice of other [B]lacks can be more easily recognized and appreciated.” Id. at 111. In another lesser known work, Bell has argued that “Paul Robeson’s life, like great art, is treasured as much for the images it evokes as for the story it portrays.” Derrick Bell, Doing the State Some Service: Paul Robeson and the Endless Quest for Racial Justice, in ROBESON: ARTIST AND CITIZEN 49, 49 (Jeffrey Stewart ed., Rutgers Univ. Press 1998). 87. Bell’s most thorough treatments of decolonization can be found in AFROLANTICA LEGACIES ch. 9, The Black Sedition Papers 137 (1998); AND WE ARE NOT SAVED ch.9, The Right to Decolonize Black Minds: The Chronicles of the Slave Scrolls 215 (1987). 88. Derrick Bell’s protests against racism and his Black pride have always been sustained by his religiosity and valorization of his African heritage. In the prologue of AFROLANTICA LEGACIES (1998), Bell writes: The determined humanity of our enslaved forebears is the foundation of the Afrolantica Legacies. It is not a gift that came with their color. It is the hard earned efforts to make their way in a culture everlastingly hostile to their color. It is the quest for freedom and equality that has made survival possible and salvation achievable. An aspect of that survival one that stretches toward the divine, is a perspective, an insight, and for some a prophetic power about this land and its people that is unique, a component of black art, an element of black character, a mainstay of black lives. Id. at xiii. Bell’s belief in the legacy of African humanity is asserted throughout his writings. In AND WE ARE NOT SAVED ch. 9, The Right to Decolonize Black Minds, Bell speaks of the lesson learned in the “Chronicles of the Slave Scrolls.” These scrolls are the legacies of perseverance passed down from our African ancestors to guide Blacks in America through times of seemingly unbearable racism and oppression at the hands of Whites. Mainly the scrolls taught the readily available but seldom read history of slavery in America—a history gory, brutal, filled with more murder, mutilation, rape, and brutality than most of us can imagine or easily comprehend. But the humanity of our ancestors survived, as the spirituals prove [emphasis added]. In the healing group sessions, black people discovered this proud survival and experienced the secular equivalent of being “born again.” Those who completed the healing process began to wear wide metal bands on their right wrist to help them remember what their forebears had endured and survived. Blacks left the healing groups fired with a determination to achieve in ways that would forever justify the faith of the slaves who hoped when there was no reason for hope. If revenge was a component of their drive, it was not the retaliatory “we will get them” but the competitive “we will show them.” Id. at 217. Bell’s religiosity and belief in the survival of Africanisms in America is nothing new in Black thought. For Bell’s most detailed treatments of Black religiosity and its effect on his political outlooks, see DERRICK BELL, GOSPEL CHOIRS: PSALMS OF SURVIVAL IN AN ALIEN LAND CALLED HOME (1996); DERRICK BELL, ETHICAL 26 GEO. J. L. & MOD. CRIT. RACE PERSP. [Vol. 3:1 out Bell’s corpus, Bell has paid careful attention to the idea that Africans stolen from Africa and brought to America formed a new people, and that this new people, who, in their struggle and dedication to live, fundamentally altered (contoured) the land- scapes around them. The mythical island of Afrolantica is Bell’s representation of Black’s cultural independence and distinction from the colonial world sustained by Whiteness. Bell describes: . . . a new land. . . with tall mountains . . . fertile valley and rich plains . . . and sub- stantial deposits of precious minerals, including gold and silver. The United States and several other countries wasted no time in dispatching delegations to claim the land or portions of it. The first explorers, an American force . . . landed by helicopter. They barely escaped with their lives. The crewmem- bers had a hard time breathing and managed to take off just as they were beginning to lose consciousness . . . On the new continent, the air pressure— estimated at twice the levels existing at the bottom of the sea—threatened human life . . . AMBITIONS, ch. 3, supra note 86. For a contemporary discussion of Bell’s religiosity, see George H. Taylor, Racism as ‘The Nation’s Crucial Sin’: Theology and Derrick Bell 9 MICH. J. RACE & L. 1 (2004). Bell’s position should be look at through the long tradition of Black thought before him. As early as 1897, W.E.B. DuBois maintained: We are Americans, not only by birth and citizenship, but by our political ideals, our language, and our religion. Farther than that, out Americanism does not go. At that point, we are Negroes, members of a vast historic race that from the very dawn of creation has slept, but half awakening in the dark forests of it African fatherland. We are the first fruits of this new nation, the harbinger of that black to-morrow which is yet destined to soften the whiteness of the Teutonic today. We are that people whose subtle sense of son has given America its only American music, its only American fairy tales, its only touch of pathos and humor amide its mad money getting plutocracy. As such, it is our duty to conserve our physical powers, our intellectual endowments, and our spiritual ideals; as a race we must strive by race organization, by race solidarity, by race unity to the realization for that broader humanity which freely recognizes differences in men, but sternly deprecates inequality in their opportunities of development. W.E.B. DuBois, The Conservation of Races, in W.E.B. DUBOIS: THE OXFORD READER 44 (Eric J. Sundquist, ed., Oxford Univ. Press 1996). DuBois continued almost 30 years later, writing: Above and beyond all that we have mentioned, perhaps least tangible but just as true, is the peculiar spiritual quality which the Negro has injected into American life and civilization. It is hard to define or characterize it—a certain spiritual joyousness; a sensuous, tropical love of, in vivid contrast to the cool and cautious New England reason; a slow and dreamful conception of the universe; a drawling and slurring of speech, an intense sensitiveness to spiritual values—all these things and others like to them, tell of the imprint of Africa on Europe in America. W.E.B. DUBOIS, THE GIFT OF BLACK FOLKS 320 (1971) (1924). Paul Robeson, much like DuBois, also saw the spirituality of African-descended people in America through the spirituals. In the 1930s Robeson became adamant that Negro spirituals were the religious sensibility of the Negro made manifest and insisted on performing these exemplifications of Black art and intellect throughout the world. He remarks: [Negro spirituals] are to [N]egro culture what the works of the great poets are to English culture: they are the soul of the race made manifest. No matter in what part of the world you may find him the [N]egro has retained his direct emotional response to outside stimuli— he is constantly aware of an external power which guides his destiny. Paul Robeson, The Culture of the Negro, in PAUL ROBESON SPEAKS: WRITINGS, SPEECHES, INTERVIEWS, 1918 –1974, 86 (Philip S. Foner ed., Citadel Press 1978).  2012] SILENCING IDEALISM IN CRITICAL RACE JURISPRUDENCE 27 Not even the world’s most advanced technology allowed human beings to survive on those strange shores. Then a team of four U.S. Navy divers tried to reach the new land under wa- ter. . . All seemed to go well until, a few hundred yards up the river the divers suddenly began to experience the breathing difficulties that had thwarted earlier explorers . . . and began to lose consciousness. The crew chief, Ensign Martin Shufford, managed to link the three groggy team members together with a slender cable and to tow them back to the submarine. When the divers recovered, they hailed Shufford as a hero. He declined the honor, insisting that he had not had trouble breathing—that, in fact, he’d felt really invigorated by the new land’s waters. The only difference between Shufford and the other members of the crew (and, indeed, all those who had tried previously to land on Atlantis) was race. Martin Shufford was an American Black man. Initially, neither the military nor government officials viewed this fact as signifi- cant. After all, peoples of color from other countries, including Africa, had tried to land on the new land with the usual near-fatal results . . . African Americans did appear immune to the strange air pressures that rendered impossible other human life on the new Atlantis. In an effort to determine whether other African Americans could survive on Atlantis—a possibility man believed, given the new land’s importance, highly inappropriate—the next helicopter expedition carried on board three African- American men and, as pilot, an African American woman . . . After a cautious first few steps, . . . the party felt exhilarated and euphoric—feelings they explained upon their reluctant return (in defiance of orders, they spent several days exploring the new land) as unlike any alcohol-or-drug induced sensations of escape. Rather, it was an invigorating experience of heightened self esteem, of liberation, of waking up. All four agreed that, while exploring what the media were now referring to as Fn89 “Afrolantica,” they felt free.89 Afrolantica, the Black Atlantis, is the land given to Blacks in America by divinity—a land where only Black Americans can live. Bell uses this geography to represent the potential to be found in a world where Blacks conceptualize their freedom, first, as their ability to leave behind the White world of America and embrace their Blackness culturally, and second, as the ability to conceptualize an America that they them- selves have the power to create. For Bell, this represents a possibility of self- realization, a world that challenges Blacks to rethink their allegiance to the normal burdens of race that branded them Americans. In Bell’s narrative, the appearance of Afrolantica unveiled the dormant debates over Black emigration and Black American- ism. This awakening, as Bell refers to it, should not be understood to represent the physical release from the oppressive bounds of the country we call America. Rather, the Afrolantica awakening should be understood as the psychic break from the dependency of Blacks on the sustaining ethic of White America—an awakening of the Black understanding’s power to create its own reality. 89. This abridged narrative of Bell’s is from a chapter entitled Afrolantica Awakening, in FACES AT THE BOTTOM OF THE WELL: THE PERMANENCE OF RACISM 32 (1992).  28 GEO. J. L. & MOD. CRIT. RACE PERSP. [Vol. 3:1 According to Bell, African-descended people have always maintained their human- ity and exemplified that humanity in their contouring of the American environment. Even during their enslavement, “knowing there was no escape, no way out, the slaves, nonetheless continued to engage themselves. To carve out a humanity. To defy the murder of self-hood. Their lives were brutally shackled, certainly— but not Fn90 without meaning despite their imprisonment.”90 In their living, the lives of Blacks were rooted in the various innovations spawned through the cultural engagement of their own African pluralities. “Though they lived and died as captives within a system of slave labor, they produced worlds of music, poetry and art. They reshaped a Christian cosmology to fit their spirits and their needs, transforming Protestantism Fn91 along the way. They produced a single people out of what had been many.”91 Just as Robeson before him, Bell realized that in creating a people, Blacks sustained a type of cultural thinking—a thinking indelibly marked by its steadfast orientation towards cultural freedom. “If I strive as a Negro, am I not perpetuating the very cleft that threatens and Fn92 separates Black and White America?”92 DuBois asked this question over a hundred years ago and even today its answer remains just as ideologically charged. The advo- cacy of Black cultural racial empowerment is almost always certain to bring about White backlash and the charging of Blacks with perpetuating racism. Insofar as Blacks claim to be Americans, they are expected to jettison their pride in race and disassociate themselves with any notion of an African cultural legacy, despite the clear connection between African colonization and Black enslavement and oppres- sion in America. Today, even in light of the contradictions held in accepting an African American identity, Blacks’ Americanism is ethicized and performed as an endless series of racial identity etiquettes that strive to reconcile the racist brutaliza- tion of African descended people in America’s past, and their continuing exploitation in the present. In bringing Africa back into Black discussion of racism, Bell reintro- duces a necessary skepticism of the wholesale American identity currently held by many Blacks. Because Bell draws from the later writings of DuBois, his (Bell’s) thinking is not clouded by the dominate mis-readings of DuBois’ thought under contemporary phenomenological or pragmatist/humanist inclinations that empha- size political equality, and offers a testament to Dubois’ prophetic insight into integra- tion’s cultural threat to Blacks. Bell, like DuBois, understands that the struggle of Blacks is not a struggle for equality, but the struggle for “the possibility of black folk Fn93 and their cultural patterns existing in America without discrimination.”93 DuBois recognized that integration was just the beginning of more serious contes- tations over the saliency of Black culture, in which the desire to become American would fuel Blacks’ complacency over their African heritage and the assimilation of White ideals. “What will be our aims and ideals,” asked DuBois, “and what will we 90. DERRICK BELL, FACES AT THE BOTTOM OF THE WELL: THE PERMANENCE OF RACISM 197 (1992). 91. Id. 92. DuBois, The Conservation of Races, supra note 86, at 43. 93. Bell, The Legacy of W.E.B. DuBois: A Rational Model for Achieving Public School Equity for America’s Black Children, 11 CREIGHTON L. REV. 409, 417 (1978).  2012] SILENCING IDEALISM IN CRITICAL RACE JURISPRUDENCE 29 have to do with the selecting of these aims and ideals. Are we to assume that we would simply adopt the ideals of Americans, and become what they are or want to Fn94 be? Will we have in this process no ideals of our own?”94 DuBois understood that the journey of Blacks towards equal citizenship had a socializing effect on how Blacks thought about themselves in relation to Africa. As Blacks strive to live up to the American ideal, they learn “from their environment to think less and less of their Fn95 fatherland and its folk.”95 To the extent that we embrace Black culture’s imitation of Whites we encourage its self-destructiveness. “We would lose our memory of Negro Fn96 history, and of those racial peculiarities with which we have been long associated,”96 ceasing to acknowledge “any greater tie with Africa than with England or Ger- Fn97 many.”97 For DuBois and subsequent generations of Blacks, the quest for political equality in America comes at too high a price. Thus, Bell’s racial realism compels his call for an Afrolantica awakening. But what would such an awakening entail? To answer this question Bell leaves DuBois’s critical assessments of integration to embrace Paul Robeson’s cultural ideal- Fn98 ism.98 In connecting the status of Africa in the minds of American Blacks to the imperial conquests of non-European peoples, Bell creates a point of rupture in the classic Black American narrative. Bell urges Blacks to see that insofar as there is an acknowledgement of the anti-Black nature of American politics, there should also be an acknowledgement of the anti-African nature of American imperialism. To chal- lenge Whiteness, Blacks must conceptually disengage the dominant European narra- 94. W.E.B. DuBois, An Address to the Black Academic Community, 60 J. OF NEGRO HIST. 45 (1975). 95. W.E.B. DuBois, American Negroes and Africa’s Rise to Freedom, in THE WORLD AND AFRICA: AN INQUIRY INTO THE PART WHICH THE AFRICAN HAS PLAYED IN WORLD HISTORY 334, 334 (2003) (1961). 96. DuBois, supra note 94, at 46. 97. Id. 98. I use the term cultural idealism here to indicate the development of Robeson’s ideas set forth in his 1919 commencement speech entitled “The New Idealism.” In that essay he writes: We of this less favored race realize that our future lies chiefly in our own hands. On ourselves alone will depend the preservation of our liberties and the transmission of them in their integrity to those who will come after us . . . neither the old-time slavery, nor continued prejudice need extinguish self-respect, crush manly ambition or paralyze effort . . . no power outside himself can prevent man from sustaining an honorable character and a useful relation to his day and generation. We know that neither institutions nor friends can make a race stand unless it has strength in its own founda- tions; that races like individuals must stand or fall by their own merit; that to fully succeed they must practice their virtues of self-reliance, self-respect, industry, perseverance and economy. . . . We, too, of this younger race have a part in this new American Idealism. We too have felt the great thrill of what it means to sacrifice for other than the material. We revere our honored ones as belonging to the martyrs who died, not for personal gain, but for adherence to moral principles, principles which through the baptism of their blood reached a fruitage otherwise impossible, giving as they did a broader conception to our national life. Each one of us will endeavor to catch their noble spirit and together in the consciousness of their great sacrifice consecrate ourselves with whatever power we may possess to the furtherance of the great motives for which they gave their lives. Paul Robeson, The New Idealism in PAUL ROBESON SPEAKS, supra note 88, at 62, 65. For a discussion of Paul Robeson’s discovery of Africa, its languages, cultures, and philosophy, and how this knowledge sustained his cultural idealism and nationalism, see Sterling Stuckey, I Want to be African: Paul Robeson and the Ends of Nationalist Theory and Practice, 1919 –1945, 6 AFRO-AMERICAN STUDIES MONO- GRAPH 1 (1976).  30 GEO. J. L. & MOD. CRIT. RACE PERSP. [Vol. 3:1 tive. This disengagement is not to be confused with a theoretical polemicization of Whiteness or Euro-centrism, rather it is the demand for a cultural struggle waged against the legitimacy of the European narration of logocentrism. For Bell, this disengagement is a call for the non-recognition of Whiteness. It is Black recognition of Whiteness that gives Whiteness its legitimacy; “without Fn99 black people in America, what would it mean to be white?”99 Bell’s conceptual disengagement from the racial themes that sustain the White American narrative indicates an earnest and philosophically interesting Robesonian moment in the devel- opment of Bell’s cultural philosophy. For Robeson, Africa is the cultural locus of the Black race. It’s languages, music and arts provided the cultural foundations for a Fn100 radically different version of humanity completely outside of Europe’s legacy.100 While Robeson did believe in the self-sufficiency of African knowledge and a genuine Black culture, it should not be assumed that this was a categorical or essentialist description. In fact, it was very much a culturalogical articulation of Black culture, whereby the cultural essence of a people can grasp onto the world and ergonomically contour the chaos of modernity to its historical consciousness. As Robeson says, “mechanical technique can be borrowed because it is an external thing— but culture Fn101 is the essence and expression of a man’s own soul.”101 Robeson recognized that “there was a logic to this cultural struggle . . . For the question loomed of itself: If African culture was what I insisted it was, what happens Fn102 to the claim that it would take 1,000 years for Africans to be capable of self rule.”102 If African culture can satisfy the intellectual, social, and spiritual demands of African- descended people in America, why do Blacks have such faith in liberalism, Enlighten- ment rationality, and White goodwill? Robeson’s answer is that Blacks are kept ignorant of who the real primitives are. Africa, like the countries of the East, has a culture—a distinctive culture—which is ancient, but not barbarous . . . In the past, African communities developed along their own lines, in their own way, to reach a point of order and stability which may be the envy of the world to-day. 99. BELL, supra note 89, at xi. 100. It is interesting that Robeson looks to Asian philosophical traditions, specifically Chinese thought, as sharing in the emotive elements that describe the African psyche. Robeson also believes that Black people would find a spiritual and intellectual kinship in Asian philosophy. I believe that Negro students who wrestle vainly with Plato would find a spiritual father in Con- fucius of Lao-tze. I believe that when they find cultures which command world-wide respect, yet which do not deny the emotional and intuitive approach which is typically Eastern and African, there will not only be world-famous Negro sculptors, writers, and musicians, but you will have a race which understands the whole art of living—fully, deeply, and efficiently. Paul Robeson, Negroes Don’t Ape the Whites, in PAUL ROBESON SPEAKS, supra note 88, at 91, 93. In other essays published throughout his life, Robinson articulated what he saw as the kinship between African and Asian thought. For a discussion of these views, see Paul Robeson, Primitives, in PAUL ROBESON SPEAKS, supra note 88, at 109; see also PAUL ROBESON, HERE I STAND ch.1 (1958). 101. Paul Robeson, I Want Negro Culture, in PAUL ROBESON SPEAKS, supra note 88, at 96-7. 102. Id. at 35.  2012] SILENCING IDEALISM IN CRITICAL RACE JURISPRUDENCE 31 . . . the whole system was balance and simplified to an extent quite unknown to the White world . . . In my people there is a fundamental quality, a kind of inner logic I call it . . . a trait common to the older nations of the world. A quality by which they ignore, or take little account of, the Western ideals of intellect and science and the power to reason logically, and depend on emotionalism and feel- ing. I, as an African, feel things rather than comprehend them, and this instinct . . . has convinced me that our race is utterly wrong in its tendency to become Western- Fn103 ized.103 This is the cultural realization had in the Afrolantica awakening: the belief in cultural sufficiency. In recognizing the inadequacy of European thought to speak to their reality, Blacks simultaneously admit their power to create a new reality. Whereas postmodernism aims to reform the dehumanizing addiction of Western thought, culturalogics simply dismisses the idea that Western thinking could ever contribute to Black knowledge. In preserving the possibility, or rather the necessity of cultural and social creativity, culturalogics admit the potential of radical social transforma- tion at the hands of Black peoples. When the mythical island disappears, Blacks are transformed. Instead of seeing America as the glaring White republic of old, America is illuminated by the shadows of its Blackness, which inspires not only the empowerment of Blacks, but their capacities of creation—a realization that Black culture can sustain America. Even without the land known as Afrolantica, Bell maintains that the vision of a place ruled Fn104 and inhabited only by Blacks inspires “a liberation, not of place, but of mind.”104 As the armada steamed back to America, people recalled the words of Fredrick Douglass that opponents of emigration had cited to support their position: “We are Americans. We are not aliens. We are a component of the nation. We have no disposition to renounce our nationality.” Even though they had rejected that argument, it had its truth. And it was possible to affirm it, and return to America, because they understood they need no longer act as the victims of centuries of oppression. They could act on their own, as their own people [emphasis added], as they had demonstrated to themselves and other blacks in their preparations to settle Afrolantica. Their faces glowed with self-confidence, as they walked erect and proud, down the gangplanks the next day when the ships returned to their home ports. The black men and women waiting to greet them, expecting to commiserate with them, were instead inspired. The spirit of cooperation that had engaged a few hundred thousand blacks spread to others, as they recalled the tenacity for human life, which had enabled generations of blacks to survive all efforts to dehumanize or obliterate them. Infectious, their renewed tenacity reinforced their sense of possess- ing themselves. Blacks held fast, like a talisman, the quiet conviction that Afrolan- 103. Paul Robeson, An Exclusive Interview with Paul Robeson, in PAUL ROBESON SPEAKS, supra note 88, at 113-14. 104. BELL, supra note 89, at 46.  32 GEO. J. L. & MOD. CRIT. RACE PERSP. [Vol. 3:1 tica had not been mere mirage—that somewhere in the word America, somewhere Fn105 irrevocable and profound, there is as well the word Afrolantica.105 Just as Blacks possess the raw materials for resistance, they also possess the raw materials for the constructing of cultural realities. Just as Robeson before him, Bell believes he is American, but a citizen of an America that is Black through and through; an America whose systems of thought and spirit is defined not by its blind allegiance to its imperial legacy but guided by the fully recognized cultural freedom of its African descendants. But how do we achieve a conceptualization of America founded on Blacks thinking for and creating from themselves? What effect would this cultural freedom have on the constructing of social, political, and legal systems in America? B. From Culture to Culturalogic Logic has long been defined as the science of reasoning and outlining the prin- Fn106 ciples by which this science may proceed to think correctly about thought.106 Unfor- tunately, however, there is very little scholarship that speaks to activity by which Fn107 culture logically births reality upon the world,107 and absolutely none that discusses 105. Id. 106. This common usage of the term “logic” should not be controversial to the reader. Various philoso- phers have defined logic along the lines of scientism and systemization for quite some time. Joseph G. Anderson, for example, defined logic as “the science of things; that is in an objective and not a subjective science; that it treats of things, and not of the thoughts or ideas, or notion of them in the human mind.” Joseph Anderson, What is Logic, 9 THE J. OF SPECULATIVE PHIL. 417. John Stuart Mill, in wavering between considerations of logic as an art or a science, defined logic as the “science of operations of the understanding which are subservient to the estimation of evidence: both the process of advancing from known truths to unknown, and all other intellectual operations insofar as auxiliary to this.” John Stuart Mill, A SYSTEM OF LOGIC: RATIOCINATIVE AND INDUCTIVE: BEING A CONNECTIVE VIEW OF THE PRINCIPLES OF EVIDENCE AND METHODS OF SCIENTIFIC INVESTIGATION (1889). R.W. Sellers is another example of this scientification of logic, since he defines logic as “the science of the principles of correct thinking.” R.W. SELLARS, THE ESSENTIALS OF LOGIC 1 (1917). 107. The debate over logical relativism is considered passe´, among many logicians. This dispute has routinely been a conversation around the Azande and whether their culture adheres to the three primary laws of logic: 1) The Law of Identity: X is X; 2) The Law of Non-Contradiction: X is not both X and not X; and The Law of Excluded Middle: X or Not X. This debate arose from the various challenges to western metaphysics and the advocacy of cultural relativism in various fields like anthropology, sociology and psychol- ogy. In philosophy, however, these debates over logical relativism are very isolated. For a discussion of the logical relativism and culture debates, see Timm Triplett, Azade Logic vs. Western Logics?, 39 THE BRITISH J. FOR THE PHIL. OF SCI. 361 (1988); for a reply to Triplett, see Richard C. Jennings, Zande Logic and Western Logic, 40 THE BRITISH J. FOR THE PHIL. OF SCI. 275 (1989). For more contemporary revisions to the origin arguments, see Timm Triplett, Is There Anthropological Evidence that Logic is Culturally Relative? Remarks on Bloor, Jennings and Evans-Pritchard, 45 THE BRITISH J. FOR THE PHIL. OF SCI. 746 (1994). For a discussion of whether there is psychological evidence against the universal adherence to the law of non-contradiction, see Bill Huss, Cultural Difference and the Law of Non-Contradiction: Some Criteria for Further Research, 17 PHIL. PSYCHOL. 325 (2004). African philosophers have also taken up this debate. For a discussion of several prominent ideas by African authors on the matter of culture and logic, see THE AFRICAN PHILOSOPHY READER chs. 1, 5 (P.H. Coetzee & A.P.J. Roux eds., Routledge 1998). It would also be helpful for those interested in this problem to look at KWASI WIREDU, CULTURAL UNIVERSALS AND PARTICULARS: AN AFRICAN PERSPECTIVE chs. 1, 2, 3, 4 (1996) (which deal with the existence of cultural universals). 2012] SILENCING IDEALISM IN CRITICAL RACE JURISPRUDENCE 33 the roles that Africana culture plays in organizing concepts and bringing about the materialization of those concepts under a social constructivist lens. Unlike previous thinkers on the matter of logic(s) and culture, I contend that logic(s) refers to a systemic way of thinking about the relationship concepts share in such a way that the actions, values and meanings that extend from these relations appear to naturally follow. In a world that is a product of a culture’s social construc- tion, these logic(s) refer to the ways in which the concepts of a people’s thinking are reflected in the structures, and more importantly, the relationships they take up with the structures they create in their society. In the social constructivist era, it is impor- tant to realize that people create the structures, institutions and values that sustain their social life. The process reflects the beliefs and historical consciousness of that people. And in the process, they determine a rational way of seeing the world and their logical structure. Giving culture this type of epistemological weight fundamentally alters how CRT conceptualizes the historical contingency of race, the meaning of freedom, the value justice, or the existence of law itself. It changes the rules of the game, so to speak. Even as victims of physical and psychical subjugation, Blacks have historically acted against the stories that Whites have told themselves. Instead of admitting to being murderous rapists and lynchers, Whites maintain that they were civilizing African barbarism. This narrative, while known to be false, is rarely challenged in the routine discussions of American rule of law. While CRT has reminded social, political and legal theorists of this historical fact, the movement has ignored the conceptual alterna- tives revealed in Black resistance to the idea that Black culture (African barbarism) is not capable of producing civilization. Propelled by the cultural impetus of its own realization, Black resistance possesses a prescriptive dimension, one that concretely demonstrates how a people’s cultural action can contour the seemingly objective (social) constructions of America. This unveils the possibility that resistance is not only the refusal to submit to dominance but the constitution of alternative realities amidst domination. Because CRT concerns itself with the contestation of European objectivism, rather than simply dismissing it as irrelevant myth, CRT has overlooked the possibility that the various modes of consciousness grounded in racial experience are actually the prolepses of various cultural realities that have escaped the grasp of European thinking. A culturalogical perspective aims to theorize about legal subjectivity beyond the decadence of contemporary conversations dedicated to the ego-logical capacity of self to attain rational transcendence. Despite the critical inclinations of CLS and the idealist tradition of CRT, the individual’s motivations for understanding the world This statement is not to ignore the work done by historical figures like Max Scheler, Karl Manneheim, and Karl Marx in the sociology of knowledge, or the more popular works of PETER L. BERGER & THOMAS LUCKMANN, THE SOCIAL CONSTRUCTION OF REALITY (1966); THOMAS S. KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS (1996), or the recent anthology SOCIALIZING METAPHYSICS: THE NATURE OF SOCIAL REALITY (Fredrick F. Schmitt ed., Rowman & Littlefield 2003). However, it is important to point out that these works are descriptive analyses of how “social and historical patterns of life” become knowledge. My arguments differ in that I am interested in how cultures constitute the world under racialized systems in such a way that reality emerges amidst colonial dominance. 34 GEO. J. L. & MOD. CRIT. RACE PERSP. [Vol. 3:1 rely on the imperatives of rational engagement. For Blacks, however, their encoun- ters with American jurisprudence and the politics that have sustained their legal disadvantage cannot be characterized as simply choices that any rational person would make given the same situations. There has to be recognition that what is rational is also culturally normative, insofar as all rationally justified or logical actions necessarily imply the fulfillment of their teleological or purposive aims. For Blacks in America, rational choices are made on the basis of considerations outside of the self. The struggle for Civil Rights, for example, was not made for the advantages it gave to the individual during the struggle, but for the generations of the Blacks that would come after. As a Black person, am I interested in the elimination of a particular harm or the conditions that sustain that harm, the injury or the dispositions that perpetu- ate it? Because of race and the historical targeting of African-descended people in America, the logics involved in reaching a rational conclusion in any socio-legal situation involves the acknowledging of the historico-political reality of legal oppres- sion towards Blacks. European reason, in its compulsive obsession with absolutes and universals, can- not adequately describe the historical inductions of Black people. The change in Blacks’ understanding of concepts like justice, fairness, and equality from generation to generation confounds such reason. Unable to comprehend this Black logic, be- cause of its generational situatedness, European reason deems it contingent and irrelevant. But it is reason’s imperialism that prevents it from examining itself. What CRT has come to know as “reason” is nothing more than a normative conscience— the universalization of the European historical consciousness as all that is good, ethical, and proper—where a particular people’s consciousness, or the awareness that people have historically taken up with the world, become conscience by sustaining laws of logic that command the members of that people to perpetuate the relation- ships they have with the world as their duty of group membership. The quaint skepticism of reason sustained by race-crits is simply not enough to remove fully colonial rationality. Within the critical tradition, any discussion of jurisprudence will necessarily in- volve a discussion about the role that the subject plays in rationally forming and interpreting the social world. Culturalogical jurisprudence, in this discussion, not only suggests that jurisprudence should take into consideration the realist mantra that law is politics, but adds that a true understanding of law requires understanding the cultural dynamics involved in the creation and the reification of law’s associations with social entities. Culturalogical jurisprudence contributions to CRT, then, lay in presenting a meaningful social theory that tells us how African-descended people in America formulate their social environment based on the nature and psychological needs of their cultural selves, beyond the polemics of systemic racism. As a social theory, culturalogical jurisprudence tells us how the subject sees all socially con- structed phenomenon, including law, and gives us a description of what African subjects in America bring to the objects they seek to interpret. If Balkin is correct, that “. . . the coherence of law is ultimately based on the coherence of the world and that the coherence of the world is ultimately based upon the coherence of our-  2012] SILENCING IDEALISM IN CRITICAL RACE JURISPRUDENCE 35 Fn108 selves,”108 then the implication of culturalogics extends beyond the mere consider- ation of cultural norms in understanding values and the meaning of concepts. It is how one’s cultural orientation writes into the world the aims towards which one creates or constructs entities. Thus, it is the earnestness one devotes toward creating structures, environments, and narratives that socialize other populations to uphold the values and perspective that ground the individual and make the world cohere; this phenomenon cannot be limited to a singular function of the individual’s transcen- dental reason. The use of the culturalogical subject presents a fundamental shift in debates centered on the problem of the subject. CRT should not retreat from the glimpse of illumination held in the aisles of sterile European theories, especially when the last decade of such experiments have only yielded more external attacks and postulations from scholars like Robinson. Centering the discourse of subjectivity on culture allows CRT to better respond to the postmodern/modern tension by packing up that tension’s bags and moving. There no longer needs to be an account that asks a hypothetical “How would a dialectical or autonomous subject deal with racism?” Under a culturalogical perspective the subject is already dealing with racism. To view a people under a social construct is to view the theory of a people’s strategies for negotiation and survival in their practice. C. The Culturalogical as Social Theory The analysis of a people’s social theory, namely, “those principles that determine the relationship of a people to one another (i.e. collective self), to other humans, (i.e., Fn109 those who are other than “self”), and to nature,”109 is an analysis of the particular logics a people use to mediate and direct the socio-historical context toward their own understanding. Race, then, as a socio-historical and legal construct lends itself to an analysis of how African-descended people in America mediate the social context of the race construct toward an understanding of themselves and their survival. According to Dr. Daudi Azibo: A people’s social theory is, in turn reflected and realized in their “survival thrust,” which may be defined as the characteristic ways a people negotiate the environ- ment (i.e., to extract material sustenance from the physical universe). A more erudite definition is that survival thrust is the condition and process of survival maintenance that is indigenous to and thus characterizes a racial-cultural group’s Fn110 genetic and geo-historical pattern under gird by their Cosmology.110 The manipulation of a social construct, then, is a guided modification. This modification reflects a culturalogical theory of the social (how a people see society as the reflection of their culture’s historical relations), and “establishes a people’s guide- lines of life including their values, rituals and ways of dealing with ‘the other.’ 108. Balkin, supra note 69, at 143. 109. Daudi Azibo, Africentric Conceptualization as the Pathway to African Liberation, 5 INT’L J. OF AFRI- CANA STUDIES 1, 1 (1999). 110. Id.  36 GEO. J. L. & MOD. CRIT. RACE PERSP. [Vol. 3:1 Therefore, a people’s authentic social theory is essential to their basic philosophical Fn111 and consequent psychological orientations.”111 Current investigations in philosophy proper and CRT have failed to understand how cultures use conceptual constructs not only in identity politics but also as a means to articulate and protect their cultural properties in a racist and anti-Black society. An analysis of race cannot then look at race outside of its inherent cultural fusion with African-descended people’s cultural and philosophical tenets. Blacks, as a people, understand themselves differently than mainstream investigations that look at race as a social construct reveal, because those “racial investigations” are not looking at how “race, specifically Blackness” functions as a cultural construction. Black is beautiful. Why? Because the oppressive and inescapable burden of the label, “Black,” has been placed on a people despite their resistance. But this group of people, utilizing their cultural conscience and historical memory, has contoured the term so that it can be fitted to meet and address their contemporary needs and Fn112 narrations.112 Simply stated, a people’s engagements with the world (their construc- tions in it) are meant not only to satisfy their material needs, but also the psychical demands of their historical consciousness. This analysis is particularly relevant in our attempt to understand how a racialized subject can take hold of a racial construct placed upon him and transform that construct toward the goals of his particular cultural community. This involves the ability of the African to meet the world in a process that co-authors meaning, as well as formulates the best available strategies for cultural survival. Even in the confrontation of European constructions like race, culture infuses and transforms the construct. The problem of philosophical investigations of racial subjectivity resides in the inability of authors, despite what they see before them, to attribute functionality to both the racial constructs and the relations those racial constructs entail. For some, it seems close to impossible to think of racial beliefs as the product of the racialized and oppressed cultural communities that have been burdened by racism. Black subjectiv- ity is not the way a thinking “I” navigates the racialized social landscape as a ratio- nally motivated “self.” Black subjectivity is not ego-logically driven; it is a culturally (communally) enduring existence, but entails a historical conscience articulating itself through an individual identity and attempting to fulfill its cultural aims. If it is true that legal theories of coherence are based on how subjects see the world, then it seems reasonable to suggest that a racial subject responding to racism through its cultural subjectivity would give both 1) the most effective account of the condi- tions that give rise to racism and 2) the agendas that culture determines it needs as remedies. In this regard, struggle is not and cannot be extra-cultural nor outside the realm of subjectivity for African-descended people, because it is the necessary act by which Blacks can socially exist, since it is the distance gained in the process of culturally defining race for one’s people—in an effort to survive against the constant 111. Id. 112. While distinct from my project, there is very interesting and recent literature on cultural trauma that speaks about the role of memory and narration in African American identity formation. See RON EYERMAN, CULTURAL TRAUMA: SLAVERY AND THE FORMATION OF AFRICAN AMERICAN IDENTITY ch.1 (2001). 2012] SILENCING IDEALISM IN CRITICAL RACE JURISPRUDENCE 37 onslaught of White supremacy, which holds Blackness to be evil, immoral, etc.— that makes social existence possible. Politics, then, becomes fundamental to a socially constructed and culturally respondent actor, since it is the act of the political—the assertion of power to change or direct society—that makes the community generally referred to as the “Black community” possible. Because this action is necessitated, and is the historical view of Blackness that would be the social and communal activism of the oppressed culture as a whole, or what the culturalogist would say “holds the place of” or substitutes for what we now call “the subject,” it is perhaps the best theoretical foundation from which jurisprudential questions about legal “subjec- tivity” can be launched. Since there are no fixed and objective social entities outside of the cultural and social perspectives responsible for their construction, this view commits race-crits and legal theorists alike to think of “cultural difference” as the test of theoretical rigor on these matters. CONCLUSION It’s not modern, it’s not postmodern; it’s culturalogic. Because racial realism accepts without hesitation the incongruity between the social reality before Blacks and the reality Blacks wish to create for themselves, an account of the process through which African-descended people struggle against the permanence of racial subordina- tion is needed. The derelictions of present scholars in the movement to develop a theory of a subject and prevent the conceptual incarceration of Black experience through discourses of progress and transcendence demands a new theoretical course of action. We can no longer believe the characters played by historical European philosophers covered in “Blackface,” as if their playing dressup speaks to the “lived experience” of Blackness. CRT must draw the line somewhere; it can no longer afford to give credence to philosophers like Kant, Hegel, and en vogue French deconstructionists who have to be modified and absolved of acts that were anti- Black. Black thinkers have always been struggling against racism just as we (Blacks) are today. There is no need to resurrect the ideas of a dilapidated and diseased European thought to attempt to rectify a situation that is outside of its cultural and conceptual frame. CRT can no longer take comfort in “inhabiting the tension of modern/postmodern” traditions. The African subject under Blackness (the race con- struct) is not a subject torn, but a subject in struggle—this is the strength of locating a functioning cultural subject in the lived experience of the Black rather than claim- ing it is produced dialectically from the lived experience of the Black. The subject is always culturally orienting Black life toward a culturally meaningful product, whereas European thought treats the subject as if it is in conflict with itself over its own existence. European conceptualizations of subjectivity are simply inadequate when dealing with the complexities of cultural realities, especially when those realities are counter-hegemonic struggles against the very epistemological processes that under- gird the socially constructed reality of the European world-view. The shift to culturalogics in jurisprudence can never happen as a result of the accumulations of arguments or subsequent moments of revelation, but what this theory can do in its affirmation is empower the culturalogical agenda of African  38 GEO. J. L. & MOD. CRIT. RACE PERSP. [Vol. 3:1 descended people as the most serious attempt at systematic and conceptual rupture from Eurocentric accounts of social and legal reality, moving African-descended people one step closer towards liberation. As Kenneth Nunn says, “contesting Euro- centricity is a primarily cultural struggle. It calls for the creation of a separate cultural base that values and responds to a different cultural logic than does Euro-centric- Fn113 ity.”113 This contestation is not a question of how we think about the world, but rather the assertion of new questioning that creates its answers in the how of African- descended people’s thinking in the world. Values like freedom, liberty, individuality, democracy, fairness, justice, or concepts of reason, humanity, or life itself are the products of a specific people’s culturalogical orientation. To the extent that the world is socially constructed, so to are the entities in the world that represent the finished productions of the concretization of a people’s ideals. A reconstruction of jurispru- dence, then, should focus not on the amelioration of Black conditions under coloniza- tion, but the creation of a social landscape separate from the colonial condition, on which African-descended people can create. Though the journey through America’s colonial wilderness requires race, the cultural aspect of how Blacks think of them- selves and how they (Blacks) conceptualize their world without Whites is the vision toward which CRT should strive. What is most central to this theoretical orientation is the understanding that amidst the social construction era, the world before us is not only socially constructed, but through the lives and endurance of the people within it, being constructed before our very eyes. 113. Nunn, supra note 8, at 365.