"Nigger": A Critical Race Realist Analysis of the N-Word within Hate Crimes Law

By Parks, Gregory S.; Jones, Shayne E. | Journal of Criminal Law and Criminology, Summer 2008 | Go to article overview

"Nigger": A Critical Race Realist Analysis of the N-Word within Hate Crimes Law


Parks, Gregory S., Jones, Shayne E., Journal of Criminal Law and Criminology


A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.

--Oliver Wendell Holmes (1)

Although the slang epithet "nigger" may once have been in common usage ... [it] has become particularly abusive and insulting ... as it pertains to the American Negro.

--Louis H. Burke (2)

[C]rimes motivated by bigotry usually arise not out of the pathological rantings and ravings of a few deviant types in organized hate groups, but out of the very mainstream of society.

--Jack Levin and Jack McDevitt (3)

I. INTRODUCTION

Critical Race Realism is neither a novel term nor a novel concept. As early as 1992 and as recently as 2005, legal scholars Derrick Bell and Emily Houh, respectively, propounded this idea. According to Bell, "Black people need reform of our civil rights strategies as badly as those in the law needed a new way to consider American jurisprudence prior to the advent of the Legal Realists.... Racial Realism ... is a legal and social mechanism on which [B]lacks can rely to have their voice and outrage heard." (4) For Houh, "critical race realism encompasses not only the goals and methodologies of the broader critical race ... projects, but also some of the shared goals and methodologies of legal realism...." (5)

From our vantage point, Critical Race Realism is an amalgamation of Critical Race Theory and Legal Realism. As Critical Race Theory is the jurisprudential grandchild of Legal Realism, (6) both share similarities, but are yet quite different. Critical Race Theory was founded as "a race-based, systematic critique of legal reasoning and legal institutions." (7) Critical Race Theory was born out of the Critical Legal Studies movement. (8) Not only did it take part of its name from the adherents of Critical Legal Studies (crits), it took part of its ideology from the crits as well. For one, critical race theorists are "critical," quite like crits, in that they engage in a version of "trashing"--a hallmark of the crits. In this approach, they (1) take legal arguments seriously in their own terms, (2) discover that the arguments are "foolish," and (3) look for some order in the "internally contradictory, incoherent chaos [they have] exposed." (9) Critical Race Theorists do not endorse rights-trashing, like the crits. (10) Nonetheless, both sets of scholars engage in a "full frontal assault" on modern jurisprudence. (11) Earlier, the realists employed a similar technique called debunking. (12) This entailed subjecting questionable judicial opinions to logical analysis in order to expose their inconsistencies, unsubstantiated premises, and tendency to "pass off contingent judgments as inexorable." (13) Debunking flowed from two methods of attack: rule and fact skepticism. Rule skeptics argued that case decisions do not necessarily flow from general legal propositions--that logic did not govern judicial thought processes. (14) Other features were argued to have factored into the equation, (15) such as policy considerations. (16) Fact skeptics either argued that the facts found by the judge or jury are inconsistent with the actual facts (17) or that the reactions of judges and juries to facts are unpredictable. (18)

Despite these similarities, Critical Race Theorists are arguably distinguished from the realists in that the latter, and not the former, made the synthesis of law and social science a hallmark of their agenda. (19) The empirical exploits of Realists such as Charles E. Clark and William O. Douglas at Yale, (20) Underhill Moore at Yale, (21) and Walter Wheeler Cook and colleagues at Johns Hopkins (22) are well-documented. Many of the Critical Race Theory founders were formerly active in the law and society movement, which had its roots with the realists. (23) The crits, however, ultimately disagreed with their law and society colleagues on key issues. …

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