Grounds for a racial review

The publication of Patricia Tuitt’s collection marks an important moment in the application of postcolonial theory to law in this country. Whereas in the US, scholarship on the relationship between race and law emerged more or less contemporaneously with feminist scholarship, British “critical race theory” has been slow to find a foothold. On this ground alone, Race, Law, Resistance would merit the attention of legal scholars. Its claims are furthered by the fact that Tuitt engages not only with issues of legal theory but also with a number of fields of substantive law, notably torts and the legal regime governing the treatment of refugees.

Though stylistically elegant, this is not a collection that wears its theoretical learning lightly, and several of the essays are challenging reads. My favourites are those that engage most closely with sustained legal examples. These include a thought-provoking analysis of the racial dynamics of supposedly neutral principles of legal causation; a persuasive deconstruction of the “reasonable man” of the law of tortious negligence, in which the argument that reasonableness tests are inevitably imbued with cultural (and hence potentially racist) assumptions is invoked to illuminate cases concerning deaths in custody; and an imaginative interpretation of the hardening of the perimeters of “fortress Europe” against refugees as analogous to the discredited colonial doctrine of terra nullius , in which the claims of indigenous peoples to land rights were dismissed by means of a normative conception of property ownership that excluded non-Western modes of cultivation and occupation.

The ambitious claims of these and other chapters are unfailingly provocative, though I have to confess that I did not always follow Tuitt’s train of thought. For example, she presents a convincing case for thinking that law’s selection of relevant causes on the basis of “common sense” is culturally (and hence racially) marked in such a way as to disadvantage claims for racial harm. But it was not clear to me that this case was strengthened by her further argument, drawn from Frantz Fanon, that the sense of fragmentation attendant on the experience of racism creates a situation of “a-causality”, that is, disrupts the regularities on which causal attributions are based.

Having just finished Andrea Levy’s remarkable Small Island , I needed no persuading of the sense of dislocation produced by the experience of racism. But in the context of legal attributions of causation, the point that needs to be pressed is surely that harm-causing racism is a depressingly robust regularity. The issue, therefore, is the denial of its regularity by the powerful: law’s unreason in its denial of racism.

I was also surprised that Tuitt did not make more of the individualistic, agent-centred nature of legal theories of causation that, as has been persuasively argued by feminist jurists, poses important barriers to the legal articulation of claims of institutional discrimination.

But overall, this stimulating collection exemplifies the best of critical legal scholarship and deserves a wide audience.

Nicola Lacey is professor of criminal law and legal theory, London School of Economics.