goto Appendx main menu Morton Horwitz :
Kim Anne Savelson
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KAS: I'd like to add another layer to our discussion now by introducing some other legal terms and concepts. I want to ask you now about "stare decisis"—the technique that expects that whatever way courts reach their conclusion, they place the situation they are judging within the class of some existing decision. Correct me if  I'm wrong, but the legal realist critique of stare decisis is that it essentially served as an obstacle to change, right? And that it was politically conservative, as well as being incoherent. 

MJH: As well as being internally incoherent. So there was an internal critique of stare decisis as incoherent, and there was an external critique of stare decisis as conservative. 

KAS: This expectation or rule functioning in legal reasoning seems to suggest a historical consciousness, but along with it the dangers of such a consciousness. In your article you quoted William Douglas, who wrote in 1949 that it is "better that we make our own history than be governed by the dead. We, too, must be dynamic components of history if our institutions are to be vital, directive forces in the light of our age." I guess my question, pared down, is, how can we, symbolically speaking, overturn precedent, or negate the past, but also listen to the past and call up history to support our politics? Is this a contradiction that is hurting progressive movements and policies? It seems the role of race, or the role of law or history, are all difficult to assume at this moment, even though we need to be able to formulate some idea on what roles these things should play in current visionary schemes. If we can't do this, aren't we prey for the thinkers who say it's time to let go�of race and culture as categories to live by? That now is as good a time as any? 

MJH: Well, it may be that we will come to date the moment at which race was no longer a certain kind of litmus test; certainly from the time of the Clarence Thomas confirmation hearing, it has become even clearer that there is developing a group of conservatively oriented black thinkers, not right wing or Hoover Institution, but others who are increasingly taking a race-blind view of the law. 

So when is the time to let go of "race" as a category remains to be seen. Why one wants to separate race from culture, or eliminate race from culture, or downgrade the influence of race on culture, however you put it, why one wants to do that is a problematic question of interpretation. Appendx 3 page break 182 | 183 

At one pole the separation between culture and race can be for the purpose, as I said earlier, of denying or suppressing or rendering nice and antiseptic the notion of race in American history. on the other hand, one could imagine more assimilation in society than we have, that race would gradually become less and less important, as I imagine race has become less and less important for about 15 or 20 percent of blacks at the top of the common social scale in America in the last twenty-five years. But for perhaps 60 percent of blacks at the bottom end of the scale, I imagine race has become more salient in the last twenty years. So again, whether one wants to distinguish A from B or say A and B are alike depends on why you want to do it. And the only question that I have is, why do you want to do it? Why is this a useful way of proceeding? 

KAS: Well, the argument would go, even an anti-essentialist critique of race, an anti-essentialist discussion that understands race as a cultural phenomenon, is re-essentializing race—so whereas many theorists have graduated from discussions of race that revert to the biological, the inherent, or the natural to anti-essentialist accounts, or cultural accounts of race, there now needs to be a post-anti-essentialist conversation. The polemic insists that even if we discuss race in the anti-essentialist paradigm, we're still essentializing it by constantly reiterating racial difference—and racial difference has historically meant racial dominance. next page 

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