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Excerpted from: Amy H. Kastely, Out of the Whiteness: On Raced Codes and White Race Consciousness in Some Tort, Criminal, and Contract Law, 63 University of Cincinnati Law Review 269 (Fall 1994) (168 Footnotes) (Full Document Not Available)

AmyHKastelyThis Essay is about white race consciousness in the law. My purpose is to examine some ways that raced coding and embedded narratives of racial domination maintain white racism in law as we inherit, practice, and re-create it.

The Essay begins with a self-reflective reading of Toni Morrison's short story “ Recitatif,” which she has described as an “experiment” regarding racial codes. Through the metaphor of recitatif, this reading exposes some manifestations of white race consciousness in translation, interpretation, and narrative.

In the remainder of the Essay, I examine raced coding in current judicial reasoning and embedded narratives of racial domination in inherited legal doctrine. I offer this Essay on white race consciousness, on racist translation in my reading, and in the law made by white people as my contribution to this Symposium on law and literature.

[. . .]

“Surely a part of socialization ought to include a sense of caring responsibility for the images of others that are reposited within us.” Surely a part of judicial competence has to be an informed concern for the images of race that are maintained within legal discourse. Surely a part of lawyers' professional responsibility has to be caring resolve to give up practices of judgment and argument so deeply infected with white racism.

How can law be just when legal language is permeated with white racial consciousness? How can lawyers speak justly when legal thought is rigidly divided, with one pole informed as danger and ignorance and the other as comfort and innocence?

“Being a writer she thinks of language partly as a system, partly as a living thing over which one has control, but mostly as agency-as an act with consequences.” We lawyers can attend to the consequences of our rhetorical practices.

Oppressive language does more than represent violence; it is violence; does more than represent the limits of knowledge; it limits knowledge. Whether it is obscuring state language or the faux-language of mindless media; whether it is the proud but calcified language of the academy or the commodity-driven language of science; whether it is the malign language of law-without-ethics, or language designed for the estrangement of minorities, hiding its racist plunder in its literary cheek-it must be rejected, altered and exposed.

Lawyers can speak of race; white lawyers and judges can give up the codes and narratives of white racial bonding and subordination, privilege, and hatred that carry the law; and we can dishonor those of us who will not. Lawyers can work to secure power and places for women and men from communities long subordinated by and excluded from the legal profession. Lawyers can reclaim language; can resist translations of life filtered through racist lenses; can listen and create; can hear those who practice law without raced logic and authority; can honor law of many centers; and can yearn for multilingual and multicultured recitatif .

Professor of Law, St. Mary's University School of Law. B.A., 1973, University of Chicago; J.D., 1977, University of Chicago.

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