Race Rights Reparations

Institutional Racism and The Law

Fernne Brennan

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781317072249
• Edition: 1
• Topic: Derecho
• Subtopic: Teoría y práctica del derecho

This book considers institutional racism as a problem that exists within modern societies. Its roots lie with the transatlantic slave trade and slavery and the solution involves ridding society of the problem. It is argued here that, first, there needs to be an acceptance of its existence, then developing the tools needed to deal with it and, finally, to implement those tools so that institutional racism can be permanently removed from society. The book has four themes: the first considers the nature of institutional racism, the second theme looks at instances of institutional racism through matters such as deaths in custody and skin lightening, the third considers the concept of reparations and the final area looks at the development of social movements as a way of pushing institutional racism up the political agenda. The development of a social movement is part of a social discourse which would, for example, push mentoring as a form of reparations. There is a need for more research on the manifestations of institutional racism and this book is part of that discourse. It is argued that the legacy of the slave trade and slavery is continuing and contemporary through the presence of institutional racism in society. This problem has not been addressed through legislation and policies devised to combat racial discrimination. Institutional racism needs to be understood as being located in the processes and procedures of societal institutions.

1 Introduction

According to the United Nations Educational, Scientific and Cultural Organisation (UNESCO), the transatlantic slave trade and chattel slavery was a unique event in world history. This is because it was maintained over four centuries, it victimised ‘black African men, women and children’,¹ it intellectualised chattel slavery by creating an anti-black ideology with ‘its legal organisation’ being the infamous ‘code noir’² or the regulation ‘between slaves and colonists’³ and, this book argues, it created a racist ideology that has become institutionalised in the organisations and socio-economic and socio-legal relations of modern society. Moreover, institutional racism has created an intersection where race and gender are relevant to its maintenance. For example, in terms of black men it is deaths in custody. For black women there is skin bleaching and hair straightening.

The main theme of this book is that the transatlantic slave trade and chattel slavery spawned modern day institutional racism. It is argued here that neither the law nor public and private institutions have dealt with institutional racism and that only a fundamental policy change, based on reparations, can provide a solution.

This book is not the first kind to explore institutional racism. Carmichael and Hamilton in Black Power, the Politics of Liberation in America (Vintage Books, 1967) saw institutional racism as ‘acts by the total white community against the black community’, p. 4. In Institutional Racism: A Primer on Theory and Strategies for Social Change (Burnham Publishers Book, 2002), Better argues in Chapter 3 that institutional racism is embedded in institutions. Whilst Law et al. suggest that there is institutional racism in higher education in Institutional Racism in Higher Education (Trentham Books, 2004). Moreover, the Stephen Lawrence Inquiry stated that institutional racism is:

The collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture or ethnic origin. It can be seen or detected in processes, attitudes and behaviour which amount to discrimination through unwitting prejudice, ignorance, thoughtlessness and racist stereotyping which disadvantage minority ethnic people.⁴

However, this book is one the first to link institutional racism as a modern legacy sourced in the transatlantic slave trade and to argue that innovative reparations are due for this legacy.

Institutional racism is prevalent throughout society and can even be found in more recent developments in technology. An example of this is the way Internet service providers (ISPs) provide a service on the Internet that has a detrimental impact on black cyber users who may become cyber victims of cyber racists. It is argued that cyber racists that rely on the free speech label are not advocating free speech but racist speech. The latter is a danger to societal cohesion and should be struck down on that basis since it is argued that stable race relations are more important than the freedom to practise cyber racism. ISPs fall back on the mantra of free speech that they say ties their hands in dealing with cyber racism. It is contended that international law should provide ISPs with the powers to strike down cyber racism. This should be done on the basis that the legislation that abolished the slave trade and chattel slavery did not deal with racist ideology in society when it could and should have done. Furthermore, that current race relations legislation in England and Wales does not deal with ISPs as having some legal responsibility for cyber racism. The argument advanced here is that making ISPs liable should be part of a package of reforms based on reparations for the legacy of the slave trade, that is, institutional racism, which would be aimed at organisations which continue to perpetuate it.

Trade has also come under the spotlight of institutional racism. It is argued that the current Economic Partnership Agreement (EPA) that is aimed at liberalising trade between the European Union (EU) and the Caribbean countries is detrimental to Caribbean economies because their economic markets are vulnerable. This vulnerability is a hangover from the transatlantic slave trade and colonialism, and the failure of the EU to recognise this is an example of institutional racism. The EU has unwittingly provided a service through the EPA that is racially discriminatory in that it assumes economies of equals when this is clearly not the case with the Caribbean. The EU and the Caribbean should have retained the preferential agreements package which was dismissed by the World Trade Organisation on the grounds of being anti-free trade and discriminatory. It is argued that in the light of the transatlantic slave trade, chattel slavery and colonialism the moral thing to do is to bring back preferential agreements. These would be administered by a selected body made up of people from the Caribbean countries and the EU over a 10–15year period with intermittent periodic reviews that would make recommendations and highlight changes to be made that would benefit the Caribbean.

The EU has been active on the race relations front with the adoption of Council Directive 2000/43/EC (Race Directive). The Race Directive is important because it deals with public services and racial/ethnic discrimination. The problem is it has inherent flaws in its terms and in particular it excludes third-country nationals. Since a number of black people will fall into that latter category it is argued that the EU is institutionally racist in excluding them from protection when it comes to services such as housing. It is contended that the Race Directive should be amended to deal with interpretational difficulties and to include third-country nationals in its remit.

Another area in need of reform is the Criminal Justice System. Black custodial deaths where social actors have been involved in the killings and not prosecuted raise serious concerns for any faith in the Criminal Justice System, first for the way black people – primarily men – are restrained by the police until they die, and second in the failure by the Crown Prosecution Service to prosecute the state actors, despite Coroner Court findings of unlawful killings. The issue of restraint-led deaths of black people in custody is of particular concern. There are a disproportionate number of deaths in custody of the BAME community in England and Wales. This is according to a report by the NGO INQUEST.⁵ According to Blaqfair⁶ since 1969 there have been over 1,000 black people who have died in police custody.⁷

The main investigation into BAME custodial deaths in England and Wales was the Butler Inquiry into Crown Prosecution Service Decision-Making in Relation to Deaths in Custody and Related Matters, led by His Honour Gerald Butler QC that reported in August 1999. The inquiry found that there was incompetence in the service and bias but there was no finding of institutional racism, in any event the latter was not part of the brief. It is suggested that controversial black custodial deaths and the failure to prosecute the perpetrators are manifestations of institutional racism. What is needed is radical reform, it is suggested that given the serious nature of this issue, that judges alone (who are taught about institutional racism) deal with these cases and to dispense with the CPS and the jury until there is established a prima facie case against the defendant. This process would be controlled by judges. This is the way to ensure that the Criminal Justice System makes its contribution to the removal of the legacy of the transatlantic slave trade and chattel slavery which is institutional racism.

Institutional racism is not solely the preserve of national and inter/supra-national governments. Advertisers and other commercial enterprises, including multinationals in the beauty business have come under scrutiny for their persistent portrayal of the norm of beauty as being white skin and straight hair. This causes anguish amongst some female members of the black community who are not represented in the imagery on television, in magazines and on the Internet. It came as no surprise to me when in 2015 a friend’s daughter who is eight and is one of the few black children in her local school, asked her mother why she had kinky hair and black skin. Years ago I asked my mother the same thing! This was based on me being some kind of curiosity as was the case with my friend’s child. The solution that some/many black women turn to is to whiten their skin and/or straighten their hair through the use of chemicals. The view taken here is that the sale of white bleaching/hair straightening products should be banned by law. Furthermore, it is argued that there should be a legal requirement that relevant businesses publish annual statements stating how they are dealing with the image of black people in the media. There may also be a role for the Anti-Slavery Commissioner under the Modern Slavery Act 2015 in overseeing this process if the Act were amended to deal with the portrayal of imagery in the media that did not include black people.

The issue of reparations is dealt with in the book to highlight the need to provide a comprehensive programme of reform across the sectors of housing, education, health, criminal justice and other areas where it is argued that black people suffer from institutional racism. Government funds and monies from those businesses who continue to profit from the aftermath of the compensation given to them for the loss of their emancipated slaves, such as the Church of England,⁸ should be used to set up a reparations programme in the UK. This programme would deal with matters such as public apologies and commemoration plaques set up in those areas such as Liverpool and London that dealt in and profited from slavery. These plaques would acknowledge their role played in the transatlantic slave trade and apologise. The reparations agenda could feed into Black History month to raise public awareness of the role of the transatlantic slave trade, chattel slavery, colonialism and institutional racism in the educational sector, targeting in relevant and appropriate ways primary and secondary schools and universities. Similar programmes could be devised in other countries that dealt in and profited from the trade in transatlantic slavery. Reparations would be practically realised by the Caribbean Community’s (CARICOM) ten-point plan. That is a ‘Full formal apology, Repatriation, Indigenous Peoples Development Program, Cultural Institutions, Public Health Crises, Illiteracy Eradication, African Knowledge Program, Psychological Rehabilitation, Technology Transfer [and] Debt Cancellation.’⁹ In Britain reparations would primarily be aimed at raising public awareness on the link between the slave trade, colonialism, Empire and the industrial revolution. Furthermore, awareness raising would include the relationship between the slave trade, chattel slavery and institutional racism, suffered by people of African descent. There would also be campaigns to decolonise public awareness, the educational curricula and museums.

The book also goes on to consider that there is not only a new social movement for reparations but a global one that spans international borders. It has become integral to the process that could be deployed in tackling institutional racism that is locked into organisations. Its geographical focus deals with the African legacy, the Caribbean legacy and the European legacy of the slave trade in terms of its legacy of institutional racism. The African legacy deals with the ripping of African people in the prime of their life from their homes and shipping them to work on the Caribbean plantations leaving a large hole in the African economy and social way of life and turning the Caribbean plantations into a principally mono-crop countries. The Caribbean legacy is derived not only from the existence of the plantations but also from a lack of corrective programmes post-emancipation to right the wrongs wrought by slavery. Instead the Caribbean has consistently been treated unequally in its relations with Western Europe. The European legacy focuses on the psyche of black people in that they suffer trauma that they are not aware of.

The main concepts of the book

The key concepts important for the book are chattel slavery, institutional racism, causation, justice and reparations. When we consider the term chattel slavery it is understood in law as a non-human being, as property. Property is something that is owned, bought and sold, inherited and bequeathed, given away as a present. A chattel slave has no human agency and can be treated as well or as badly as the owner wants. A chattel slave is property and is therefore the subject matter of contract. The essence of property is that it can be controlled and for four centuries this type of control endured. Resistance was put down with brutal force and sometimes with lethal consequences. Unlike Equiano¹⁰ (a freed slave and freedom activist), few slaves were able to buy their freedom. Most worked like beasts of burden on the plantations or worked in the houses of slavers as domestic slaves. What was common amongst the property of the plantation and that of the household was that they were not paid – after all, property does not require payment.

The relationship between chattel slavery and institutional racism can be seen as follows. Chattel slavery was built upon a system of racism where white people were on top and black people were at the very bottom of society (or in the views of some, possibly at the top of the animal chain).¹¹ Institutional racism is also built on a hierarchy where black people are part of society racialised as being at the bottom of human life, the bottom of society. This is despite legislation in many countries aimed at outlawing racial discrimination and racial hostility. Just like the emancipatory legislation that freed slaves but did not do anything about the ideological notion of how they were seen as black people and treated by white society, so to the twentieth and twenty-first-century legislation has so far done nothing to deal with the institutional racism built up in organisations that comprehend and treat black people in unwittingly racist ways.

The relationship between chattel slavery and institutional racism will be explored in relation to controversial deaths in custody and the skin bleaching/hair straightening chapters. In deaths in custody, black people are often treated as animals in the way they are restrained by the police in tense situations. There does not seem to be a policy of ‘talking the alleged defendant down’, of calming the situation. Rather, the police seem to go on the offensive and in some cases the victim has died from the force used to restrain. The use of ‘him’ is intentional here because in almost all cases the deceased is a black man so the gender issue must be raised. It is argued here that there should be legislation to deal with the way in which black men are treated in tense situations where they are held in restraint.

In skin bleaching/hair straightening, some darker skinned black women try to whiten their skin and/or straighten their hair. This is a problem because they do not see that they are playing into the very hands that institutionally and unwittingly see black women as the ‘other’; as something not quite natural. This trait has evolved from chattel slavery and has not been addressed to such an extent that it may be seen as an enduring injury as to why black women would want to ‘disfigure’ themselves. It is a trait that has become internalised and beauty is very much perceived as that normalised by the white world, by white women. However, this is a relationship that has been neglected in discussions of institutional racism. It will be argued that the companies and multinationals that control the beauty industry should be required by legislation not to discriminate in unwitting ways. This would be a way of moving forward on a reparations programme.

Institutional racism and causation are dealt with in Chapter 8 but it would be useful just to discuss them in a preliminary way here. Institutional racism is critical to the book because it tells us part of the story in terms of where we are with respect to race relations today yet it is ignored by policy makers and generally not addressed in legislation. The fact that the problem is ignored in an unwitting, un-deliberate way is critical to our understanding of how racist social relations in institutions have existed down the ages in a tapestry format that has its origin in the slave trade

The link between the slave trade, institutional racism and reparations is one of causation. It is not causation in the narrow traditional legal sense of the term as such understood as ‘but for’ and ‘legal’ or ‘proximate’ cause, or factual cause and responsibility. It is causation in the wider sense. As a tapestry of interconnectedness with threads that are not linear nor are they clearly visible. It consists of strings that hold the institutions that are institutionally racist together. Those strings are made up of strong and weak threads. The strong threads are the social actors that reinforce the tapestry whilst the weaker threads are victims of the tapestry, black people. A section in Chapter 8 is devoted to causation and all the thematic chapters imply or infer causation in this wider sense.

When we discuss institutional racism as the legacy of the slave trade, there are a number of examples of which one will suffice for our purposes: the volatile relationship situated around the policing of people of African descent in Britain. Statistics from Her Majesty’s Inspectorate of Constabulary (HMIC) in a report entitled, T...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Acknowledgements
• Preface
• 1. Introduction
• 2. The nature of institutional racism
• 3. Institutional racism and cyber race hate
• 4. Institutional racism and markets
• 5. The race directive – Recycling the legacy of institutional racism
• 6. Black custodial deaths as an instance of institutional racism
• 7. Institutional racism as a current and continuing legacy of the transatlantic slave trade: Skin bleaching and hair-straightening
• 8. The moral, legal and political case for reparations for the legacy of the transatlantic slave trade and chattel slavery
• 9. Social movements to global movements
• 10. Conclusion
• Index