Do the Black Lives Matter Protests Matter?

A Preface to the Book Edition
On Cultural Studies and the Juridical Turn Now

Jaafar Aksikas and Sean Johnson Andrews

We would like to seize the opportunity of the publication of the book edition of this collection to both reassert and revisit some of our key arguments and positions. This move has been prompted in several ways: by reviews of the collection; formal and informal debates and conversations about its assumptions and arguments; feedback from colleagues and students; recent scholarship in this emergent area of study; our own continuing collective and individual critical reflections on cultural studies and the law; and, not least, by the dynamics of the ongoing historical conjuncture itself - a conjuncture that the collection itself sought to highlight, analyze, intervene into, and even help transform. As we discuss below, when we returned to the original project and read it in light of recent social and political events and developments, we were finding that many of the latter were not only clarifying and sharpening the central arguments we were making a few years ago, but also exemplifying several of the trends and tendencies we were identifying then. So while our lead essay and the individual contributions themselves remain unchanged from the earlier edition – and with good reason – we would like to engage some of the new developments in light of our earlier claims about the larger conjuncture; a conjuncture that assigns the law an increasingly more central, more determining role in the social formation as a whole. It is this new, dominant logic penetrating the whole social, political, and cultural formation that we call “the juridical turn.”

The original collection—which was published in 2014, researched and completed between 2011 and 2013, and of course conceived much earlier—was itself part of what we referred as the emergent field of cultural studies of the law. We have been gratified to learn that, in only a couple of years, it has been widely read and positively received, a fact confirmed by Routledge's decision to reprint it as a book, making it available in its totality to a wider audience. This is a welcome acknowledgement of the collection’s two main objectives: first, the presentation of the notion and the hypothesis of the “juridical turn” to describe the current historical conjuncture and the increasingly determining role and place of the law in contemporary capitalist societies, and especially in the United States; and second, the development of a critical contribution to and intervention in the emergent field of the cultural studies of the law. While there is a large body of legal scholarship that employs cultural perspectives and considers law as a cultural phenomenon, there has been very little scholarship that systematically and rigorously deploys the critical tools and contextualist methodologies of cultural studies in order to examine the relationship between law, capital, the state, and culture at the current conjuncture.

We reassert our hypothesis about the centrality of the juridical turn in the social formation, with few qualifications. Since the collection originally went to press in early 2014, we have witnessed both the intensification of the juridical turn, and the renewed energy of culture and social movements as sites for challenging its power. This is probably best illustrated by the U.S. Black Lives Matter protests, by the recent political events that have led to the increased visibility of the juridical state and the juridical turn more generally, and by the dialectical relationship between race, political economy, the law, and the state that determines all these developments.

Before examining these political events and formations, it is important to observe that a major oversight of the collection is its lack of attention to the juridical state and to the criminal legal system in the U.S, particularly the race and class dimensions of the now dominant model of mass incarceration. Some of the original contributions do touch on some of these issues, but only indirectly. Ginsberg, for example, discusses some of the changes that have occurred alongside the expansion of mass incarceration, but only from the perspective of what we might call its ideological doppelganger, namely the victim’s rights movement. The latter serves, at least partially, as a defense of this draconian system of punishment, one that can no longer pretend to rehabilitate criminals. Fuhs discusses the portrayal of the criminal trial on TV, which serves as another site of the ideological construction of justice and the law. Perry and Möller each discuss the racial politics of immigration, gender, labor, and property, while Razzano looks at one of the major discourses used to exacerbate and justify racial inequality. But none of them looks directly at the police and prison institutions, which provide the coercive and repressive arm to the ideological apparatuses of the neoliberal capitalist juridical state.

The events that ignited and continue to animate the Black Lives Matter protests have revealed some dominant and emergent trends and tendencies that the precepts, logics, politics, and modes of the juridical turn have enabled. These trends, as will become clear below, cannot be separated from the precepts, logics, politics, and modes of the neoliberal capitalist state itself. Take for example Florida's now controversial “Stand Your Ground” law, which inspired similar laws in twenty four other states throughout the republic and which clearly structured the context of George Zimmerman’s murder of Trayvon Martin (Currier 2014). This law—and others like it—was the creation of the American Legislative Exchange Council (ALEC), which, as we noted in our original introduction, was also the source of many of the pro-capital laws being introduced in statehouses across the country. But we had to wait for the later murder of Michael Brown in Ferguson, Missouri in the summer of 2014 to bring to the fore what were – at least from the perspective of the dominant culture – hitherto hidden, but alarming, trends and tendencies in the practices and institutions of policing. These included the increasing rarity of criminal indictments of the police for on-duty shootings and the lack of any reliable data on civilians killed by police while on-duty. But perhaps the most alarming trend to be exposed by the fundamentalist reaction of the juridical state to the protests in Ferguson was the increasing militarization of the police and policing.

As protesters filled the streets of Ferguson, the spectacle of police managing the unarmed crowds using military grade equipment was jarring, at least to the hegemonic narrative of juridical legitimacy. Critics like Alex Vitale and Radley Balko have been sounding the alarm on this trend for some time, which became most visible in Boston after the Marathon bombings, where the police quickly shut down the entire city with hardware more often seen in recent footage from the occupation of Iraq; in fact, military grade LRAD devices were used by Detroit police just weeks before the Ferguson protests to disperse crowds gathering to protest against the austerity-imposed water shutoff there (Balko 2014, Boyle, 2014, Vitale 2008). This trend was itself part of number of federal policies and programs, which were flooding local police with grants and, in the case of the now infamous 1033 program, with surplus military equipment left over from foreign wars (Johnson 2015). This is part of the neoliberal state’s mode of governance, one that seeks to barbarously destroy – either literally through their elimination or in effect through their privatization – all social programs and public goods, from public education and healthcare to public transportations and crucial infrastructures and social services, and wage a permanent war on unions, workers, and the poor who bear the brunt of the effects of this form of governance. In a very interesting twist, the metaphor of the permanent, perpetual war is now realized and becomes a reality as the neoliberal state wages war literally not just on other countries, but also on large sections of its own citizens. Such are the priorities of a neoliberal capitalist state in a deep crisis.

Unfortunately, while the sensational coverage of this troubling spectacle did lead to a limited reversal of some of these policies, it also tended to overshadow the systemic everyday terror local police institutions had been meting out for decades, particularly in minority and low-income areas. Military equipment and tactics are also regularly used for serving low-level search warrants, particularly in low-income, and predominantly minority areas, with fatal results (Balko 2013, 2014b). In Chicago, where these lines are being composed, we have gone from police torturing confessions out of African American men in the 1970s and 1980s to the extrajudicial disappearances at the “black site” at Homan Avenue today (Ackerman 2015). And in New York, as chronicled in Matt Taibbi’s popular book, The Divide, the everyday policing has evolved into a highly effective disciplinary mechanism of the juridical state which ruthlessly targets poor, minority populations for low-level crimes like jaywalking or drug possession – or, in the case of Eric Garner, allegedly selling untaxed cigarettes – but takes a hands-off approach to the Wall Street bankers and capitalists responsible for the most socially damaging financial collapse in the history of modern capitalism (Taibbi 2014). The juridical turn is probably best illustrated by the way the broader culture responds to disciplinary programs like New York City's now controversial “stop and frisk” policy and many laws like it and the racialized and classed forms of violence they produce. It is important to note that until the Black Lives Matter protests began drawing attention to these oppressive practices, the mainstream assumption had always been that there was more policing, more deaths, more brutality because of the race, class, or "culture" (assumed to be inherently violent) of the populations being policed.

This discourse reifies centuries-old stereotypes of the biologically-determined criminality of certain subjugated racial groups and classes, many of which originated to justify extrajudicial violence and murder by white supremacist vigilantes. But now it does so using the language and legitimation of the law. So when a Texas police officer assaults a young girl milling around after a pool party was shut down in a gated community or when another in South Carolina violently flips an 18-year-old student out of her desk and drags her across the classroom for failing to put away her cell phone, the apologist response is the same: if only they had followed law enforcement instructions, they would not have faced the wrath of the police. It is the leading edge of the juridical turn in the sense that the police—and with them the law—are seen as inherently legitimate: their brutality, therefore, must be the result of something the recipient of this violence initiated. So it was with Eric Garner and, to return to Ferguson, with Michael Brown. It is only in this context that the most troubling fact of the Ferguson events can be understood: The slain body of Michael Brown lay in the street, guarded but uninvestigated, for hours, while Darren Wilson’s facial lacerations were treated (and photographically documented) immediately. While the image of the dead, black body bleeding in the street is reminiscent of medieval, and, more immediately, post-civil war public executions, the carefully-lighted photos of the minor injuries to the police officer is a clear indication of the privilege given to the force and ideology of the juridical apparatus.

Still, the most relevant detail to emerge out of Ferguson both affirms the dialectical relationship between the juridical turn and the rise of neoliberal capitalism; and highlights one of its more troubling recent iterations. As we point out in the original introduction, one of the key features of what Philip Mirowski and others call “mature neoliberalism” is the way that the revived liberal orthodoxy benefits from the social legitimacy of the institutions of the post-war welfare state, most often turning them into a source of profit through privatization and other forms of what David Harvey has called, “accumulation by dispossession” (Mirowski 2013, Harvey 2005). This is clear enough when we are one step removed from the law as a legitimating narrative for new forms of social regulation, but when we look at the criminal legal system, the juridical turn is truly laid bare. For such a punitive - or as Althusser would call it, repressive - state apparatus is only possible when the ideological legitimacy of the law and legal institutions is presumed to be unquestionable.

All of the above examples illustrate this, but the particular context of Ferguson adds an additional layer. In that context, the pro-capital emphasis of the juridical turn is presumed to be so beyond questioning that its financing and functioning has increasingly been put onto the defendants themselves. Here, the law not only becomes a private market for generating profit, it is also allowed to use the market as a form of punishment. As Joseph Shapiro of National Public Radio has recently chronicled, in the last thirty years, as “states struggled with budget deficits” and politicians “faced new pressure not to raise taxes,” they have increasingly resorted to charging fees to make up the difference, effectively making defendants, overwhelmingly poor, pay for access to the legal system:

These fees — which can add up to hundreds or even thousands of dollars — get charged at every step of the system, from the courtroom, to jail, to probation. Defendants and offenders pay for their own arrest warrants, their court-ordered drug and alcohol-abuse treatment and to have their DNA samples collected. They are billed when courts need to modernize their computers (Shapiro 2014a).

Regardless of the verdict or severity of the case, failure to pay these fees can result in even harsher punishment: more fees and penalties, the loss of a driver's license or social benefits like food stamps or subsidized housing, and, what is more troubling is that there were also hundreds of Americans who were jailed for failure to pay off these very court debts. In some cases, this creates perverse incentives for the police, who are encouraged to ticket and make arrests as a way of generating revenue. Defendants, on the other hand, are encouraged to continue to pay fees, often with steeply increased interest rates, in order to avoid incarceration. As Sarah Stillman reported, these incentives converge in the so-called “Alternatives to Incarceration” movement, which is a product of the already-lucrative privatized prison industry. She writes:

This past February, Human Rights Watch published a report that catalogued problems endemic in private-probation services across the South, including “easy opportunities for corruption,” the wielding of “coercive power” against debtors and their families, and “Kafkaesque” electronic-monitoring sentences for minor crimes, which subject offenders to steep surveillance fees. The report found that these problems were “not a consequence of probation privatization per se” but what comes to pass when “public officials allow probation companies to profit by extracting fees directly from probationers, and then fail to exercise the kind of oversight needed to protect probationers from abusive and extortionate practices” (Stillman 2014).

In a follow up story, Shapiro notes that some of the distrust that fueled the Ferguson protests - and likely the fatal encounter between Wilson and Brown - was the result of this form of so-called defender-funded justice (Shapiro 2014b, Ames 2014). Citing a report by the St. Louis Public Defenders group, The ArchCity Defenders, Shapiro (2014b) noted that, in 2013, Ferguson’s second biggest source of income took the form of court fines and fees, which constituted $2.6 out of a total of $20 million collected in revenues. The same year, the municipal court in Ferguson, a city with a population of 21,135, issued about 32,975 arrest warrants for nonviolent offenses, mostly driving violations. While Blacks, who make up 67 percent of the city's population, constituted 86 percent of motorists stopped by police, whites, who make up 29 percent of the population, constituted only 12.7 percent of vehicle stops. The larger patterns that empirical data such these point to are undeniable.

So, while the Ferguson protests were ignited by Brown’s death, they were not just about it. They were also about a relentless model of a racialized punitive system that not only served to discipline the subject population, but also became a source of revenue. In February 2015, the ArchCity Defenders filed a lawsuit against Ferguson for these practices; in August of the same year, Ferguson appointed a new municipal court judge, who promptly dismissed close to 10,000 outstanding arrest warrants for unpaid traffic violations and other minor offenses (Shapiro 2015a, Shapiro 2015b).

Roger Lancaster and others have described this increased regime of punishment by the state, which often assumes racialized and classed forms, as “the punitive turn,” whose emergence corresponds with the emergence of what we are calling here the juridical turn (Lancaster 2011). But we would argue that it is the juridical turn that makes the punitive turn possible. The juridical turn is the ideological privilege given to the law that legitimates its more repressive turn. At the same the time, the two turns become mutually constitutive - i.e. the more repressive turn in the legal system makes the law also seem more legitimate, especially if it is seen as punishing (and serving) the right subjects and groups, as is evidenced by the rise of the victim’s rights movement.

But in instances like Ferguson, and in municipalities across the country that have adopted this model, it is clear that the fundamental ideological primacy and legitimacy of the law is so unquestionable that the revenue extracted from its execution can be assumed as a legitimate line item in the city’s budget. Likewise, when protesters gather in the street, they increasingly protest not the particular, racialized, punitive practices enabled by this juridical turn, but the totality of the law itself. Thus, while conventional civil rights groups like the ArchCity Defenders continue to work within the existing legal system, it is the pressure or threat of disruptive street protests that ultimately forces the hand of city and state governments into actually introducing reforms, however limited they may be.

In this sense, the Black Lives Matter protests are a crucial turning point in relation to the way progressive and radical movements are responding to the juridical turn. Instead of working to change the law through the legal system or pushing for legislative changes - as documented in Marcus Schulzke and Amanda Caroll’s essay here on the movement for gay rights and gay marriage - it is working to transform the balance of not only culture, but power. In other words, it is working to challenge the legitimacy of the law through authentic democratic action. In our original introduction, we discuss this as a necessary move for people to adequately challenge the increasingly entrenched power of reactionary forces, most of which now have solid control over statehouses and governorships around the U.S. as well as in Congress and the Supreme Court. But as we propose below, this is not enough.

For example, the rapidly emerging culture around the videotaping, distributing, and exposing of violent encounters with the police through social media has generally assigned a sense of urgency to the state’s response to these. While it is still rare to see police officers charged with crimes - as in many cases they should be - police institutions are much quicker to condemn their actions and remove them from the force. The case in McKinney, Texas and two cases in South Carolina - of the student mentioned above, and of Walter Scott (shot by a police officer who then tried to frame him for attempting to steal his Taser) all illustrate the way this new movement could possibly mobilize people to challenge the entrenched neoliberal ideology in our legal system and the race and class supremacist practices that continue to animate its exercise and enforcement.
Perhaps the most relevant feature of the Black Lives Matter protests movement is that it is currently making very few concrete and pragmatic demands in terms of the law and policy. As critics such as Adolph Reed and Glenn Ford have rightly pointed out, there is a significant lack of specific and concrete political demands. In response to the recent moves by members of the movement at the rallies of both Democratic and Republican presidential candidates, Ford articulates this concern very well:

If our only demand is that these Democratic, and I guess Republican, candidates for president declare and recognize that black lives matter, so what if they do? What after that? What is the real demand? Are you then going to vote for these same criminals just because they said the magic words, yes, black lives matter? Movements are defined by their demands. And a year after Michael Brown’s death, a year after the emergence of this incipient movement, this movement needs to be about getting its demands together, and that would be something to strategize about and to move forward (Smith, 2015).

We do not see this as a weakness, or at least, not just as a weakness. We see the whole movement as a large cultural and political formation that seeks, first and foremost, to make the juridical status quo both visible and illegitimate. And it is no accident that it does not have a coherent social-political program. It is an index of and response to a whole racialized (and classed) formation in what Gramsci would call a deep, organic crisis, one without easy or obvious solutions and one that cannot be fixed by a set of pragmatic legal demands and reforms. In a certain sense, therefore, this lack of concrete demands is a strength in that it presents a malleable mobilizing framework for interrogating the most sensational examples of police violence and tracing them to an unspoken racial and racist code and also to a larger capitalist social formation in a deep crisis. The attention generated in each case has led many mainstream and alternative media outlets to look closer at the contexts surrounding each incident. These distinctions make it clear that when critics say it is not all about race, they are not totally wrong. It is about the way race has been articulated to certain local instantiations of the juridical turn in neoliberal capitalism.

Furthermore, there is also a sense in which one could argue that the absence of concrete, pragmatic political demands is precisely what this movement should resist, lest it loses its radical, revolutionary potential. We read this resistance both as a realization of the structural nature of racialized violence of the juridical state and a condemnation of the whole neoliberal capitalist system. In its resistance to the articulation of any specific demands to the state, the Black Lives Matter movement holds the potential of becoming a revolutionary movement that is about more than racism and legal reform, but is in fact about transforming the whole social formation. At the same time, here also lies the most important challenge for the movement: how to turn the legitimate, authentic rage and anger into a positive movement and program, however small it might be, of social and political change; how to turn the spirit and energy of protest into revolution. This cannot be achieved by making this a protest against corruption and against the racism of individual police officers. This is about more than just individual police officers, their attitudes, and behaviors; it is about a whole system that produces these individuals, attitudes and behaviors.

Nor can this be achieved without undoing what Spiro Agnew called back in the 1960s the “positive polarization” of the electorate, which divides the populace by race and culture instead of class and which has guided the ideological defense of both the juridical turn and, consequently, the neoliberal project as a whole (Agnew 1969). As some commentators have recently observed, while there is a clear racial dimension to what is happening, the revolutionary potential of this movement can only be fulfilled if interracial alliances on the basis of class solidarity are minted to fight both the punitive effects of the juridical turn and the broader despair created by the neoliberal model of capitalism, especially for the low-income, high-school educated whites who now appear to be killing themselves in very high numbers, either directly through suicide or indirectly through drug and alcohol overdoses, seemingly as a result of economic dislocation (Kolata 2015). Only a much broader historical bloc of social forces can challenge the law and the state, which legitimatize this hegemonic mode of existence, and with it, the entire social order.

If what is sought here is not mere political and legal reform, but revolutionary systemic change, then the propensity to individualize, moralize, and narrow the scope of these issues must be resisted at all costs. The struggle against the juridical capitalist state does not and should not reside primarily in the formal political sphere itself, but rather in the broader spheres of social relations, especially in the market and the family. After all, the main function of the juridical capitalist state is to ensure the smooth reproduction of the dominant social relations. Understanding the underlying political economic forces that animate these events and trends helps to highlight the necessary and fundamental class solidarity that should exist across racial and class social forces to change this state of affairs.

Important Note:
We would also like to take this opportunity to apologize for and correct the following inaccuracies that appeared in the original intro: On page 12, we implied that the Supreme Court case of Loving v. Virginia was decided in 1973. The case was actually decided in 1967. On the same page, we switched the first names of authors Austin Sarat and Jonathan Simon. The sentence that begins “As Austin Simon and Jonathan Sarat…” should read, “As Austin Sarat and Jonathan Simon …”.

References

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