by Eve Darian-Smith. Oxford and Portland, Oregon: Hart Publishing, 2010. 332pp. paperback. £17.95/$19.95. ISBN: 9781841137292.
Reviewed by Christopher Malone, Department of Political Science, Pace University. Email: cmalone [at] pace.edu.
Mapping the history of modern western law necessarily means making sense of an endless succession of anomalies, incongruities, and hypocrisies. On one side stands the enduring Enlightenment narrative of law as the protector of inalienable individual rights and the embodiment of western rationalism, secularism, and objectivism. On the other, the realities of five centuries of war and bloody conflicts fought in the name of religion; the legitimation of lifetime, hereditary slavery for people of African descent; colonial plunder and economic exploitation; genocide. Jefferson could pen the words of the Declaration of Independence while holding nearly two hundred human beings in bondage. Americans can revere the First Amendment to the Constitution and then vehemently deny the right of Muslim Americans to place an Islamic community center in lower Manhattan because of its proximity to the site of the September 11th terrorist attacks.
The chasm between the emancipatory assurances of Anglo-American law and its more ominous, less than noble history lies at the center of Eve Darian-Smith’s incredibly ambitious – and in some ways too ambitious – work, RELIGION, RACE RIGHTS: LANDMARKS IN THE HISTORY OF MODERN ANGLO-AMERICAN LAW. Professor Darian-Smith challenges the notion that western modern law is “the source of equal protection and enforceable rights for all” (p.18). Rather, she seeks to “underscore the sacred, irrational and ideological elements embodied in law” (p.2). Darian-Smith demonstrates “that today’s western understanding of the rule of law is historically grounded to the particularities of Christian morality, the institutional exploitation of minorities, and specific conceptions of state and individual rights” (p.2).The work selectively reaches back over five hundred years of Anglo-American law and events – from the emergence of Martin Luther and the onset of the Reformation, to the arrival of Sam Walton and the global capitalist expansion of his Walmart empire.
While Darian-Smith’s thesis is that modern western law is not nor ever has been rational, objective, and secular, she offers a persuasive counter-argument largely backed up through the evidence: the proper norm to view Anglo-American law over the last five centuries is through religious exclusion on the one hand and racial discrimination on the other (the latter of which has been fueled by capitalist exploitation). And while Darian-Smith does not frame the argument directly in this way, RELIGION, RACE, RIGHTS could also be read broadly as a meditation on the debate between the false promises of classical liberalism and the dangerous excesses of communitarianism. While [*15] the former begins with a “methodological individualism” which views societies through the lens of the abstracted individual whose “natural rights” are protected by the social contract, the latter counters that the “individual” cannot and does not exist outside of the groups which historically, culturally, and ideologically circumscribe one’s society. As much as we would like to believe in the existence of a society of free, equal individuals protected by the rule of law, we are consistently met with the reality of an in-group/out-group dynamic, mostly not of our choosing, that both initiates and is exacerbated by a constant power dynamic. At its worst, this dynamic leads to conflict, bloodshed, discrimination, and social upheaval.
Read in this light, Darian-Smith’s work suggests that individual rights promised by the Enlightenment and embodied in modern western law have consistently been overwhelmed by two more potent group forces: Christianity and racial discrimination. At the least, modern western law has witnessed a five-hundred-year game of tug of war whereby the quest for rights are consistently coming into conflict with the reality of religious and racial biases. Yet, Darian-Smith is reluctant to draw any direct causal lines between religion, race, and rights. Rather, she prefers to analyze them within the matrices of their “intersectionality”: “[the] discourses of religion, race and rights are interrelated, dynamic, and co-constitutive of each other” (p.3). It is, at its core, a thoroughly post-modern thesis. Knowledge does not exist outside of power; power is never divorced from the law; the law stubbornly refuses to be uncoupled from cultural and ideological biases.
Darian-Smith neatly divides RELIGION, RACE, RIGHTS into three sections. The first covers the period from the early sixteenth century to French and American Revolutions; the second looks at the development of capitalism and colonialism in the nineteenth century; and the third analyzes events in the “global era” from World War II to the present. In choosing her case studies, Darian-Smith employs a highly selective methodology. To her credit, she anticipates criticisms in the opening chapter:
These landmarks occurred from the sixteenth century through the present day, and have been selected because they are emblematic of greater social, cultural, economic, and political forces that together have shaped (and are shaping) the profile of the modernist era. Some readers may feel that I have missed or ignored equally if not more important legal events, and it is true that other landmarks might serve just as well to illustrate my argument. However, I believe that the topics selected are symptomatic of the jostling among communities and political groups representing various religious, economic, nationalist, ethnic, and humanist interests in any one historical era. Other readers may argue that the discussion presented is too superficial … I agree. That being said, though, I hope that the breadth of the historical narrative conveys an expansive outlook, one that prompts the reader to see links and connections across time (pp.2-3).
It should be pointed out, however, that some parts of the book hold together as a cohesive set of ideas more than others. Part I, which includes chapters on Martin Luther, the execution of Charles I, [*16] and the Revolutionary era experienced through the writings of Thomas Paine, presents a solid historical retelling of how religion, race, and rights played out in Anglo-American law in the pre-Enlightenment and Enlightenment period. Though the subject matter may be familiar, Darian-Smith resets the table for the reader and demonstrates convincingly how the emergence of a discourse of rights from the early sixteenth century on was inextricably linked to discourses on religion and race. And while there are effectively no heroes in this story, Tom Paine clearly emerges as one of the more sympathetic voices for the emancipatory promise of western law: “In a profound sense, [Paine’s] RIGHTS OF MAN represents a turning point in the development of modern Anglo-American law by opening up the minds of ordinary people to thinking about new possibilities and opportunities with respect to representational government and suffrage” (p.106). For Darian-Smith, Paine went further than any Revolutionary thinker in challenging the church-state connection and existing beliefs on racial inferiority, thereby serving as the intellectual paradigm for the connection between Enlightenment and law.
In Part II, Darian-Smith brings the reader into the nineteenth century’s conflicts over capitalism, colonialism, and nationalism. She presents three case studies that, while fascinating in their own right, are difficult to fuse together to form a coherent picture of religion, race, and rights in the nineteenth century. Chapter 4 centers on the little-known Morant Bay ex-slave riot of 1865 in Jamaica, a former British colony. It is without a doubt the most fascinating chapter of the book. The revolt by indigenous Jamaicans, the massacre authorized by the colonial governor Edward John Eyre, and his subsequent trial back in England, all crystallize the limits of racial exclusion in the British Empire at a time when the United States had just emerged from the brutality of the Civil War. Darian-Smith discusses in detail how Eyre’s trial split the elite of English society – with the likes of John Stuart Mill, Charles Darwin, and Herbert Spencer weighing in against Eyre and Thomas Carlyle, Charles Dickens, and Lord Tennyson coming to his defense (p.125).
In Chapters 5 and 6, Darian-Smith brings us back across the pond to look at, respectively, the Haymarket Riots in Chicago in 1886 and the push for the eight-hour work day, and the Dawes Act of 1887 that sought to “civilize” Native Americans by assimilating them into the predominant white, capitalist society which had finally overrun their tribal-based communal societies. Once again, Darian-Smith vividly brings to life and documents in detail the histories of each of these two events; taken together they represent two interesting pieces in a period of American history characterized by industrialization, capitalist expansion, and notions of Manifest Destiny. Yet, it is not explicitly clear from Darian-Smith’s analysis what binds these two case studies together, or both of them to the Morant Bay massacre, other than some general notion of how religion and race are woven into them. Why these examples and not others? Especially in light of the fact that this part of the book immediately follows her chapter on Tom Paine. If Paine’s RIGHTS OF MAN represents an apex of sorts in the history of Anglo-American law, do these three [*17] events occurring within a hundred years of its publication represent a nadir? And if so, why? Why the ostensible two steps forward, one step back march in the history of Anglo-American law as told by Darian-Smith?
In the final part of the book, Darian-Smith turns to the Nuremburg Trials (Chapter 7) which followed World War II, and our current age of globalization which she labels “neo-liberalism and the new crusades” (Chapter 8). The chapter on Nuremburg shows Darian-Smith at her analytical best; there she sketches out the path the western powers took in transforming the post-war handling of Germany by several nation-states into an emerging international human rights regime. All of this, of course, is the product of the Jewish Holocaust – a genocidal event that had both religious and racial dimensions. Similar to the earlier chapter on the execution of Charles I, chapter 7 shrewdly demonstrates how historical events that fundamentally disrupt the social order of things lead to a new legal regime – this time one which seeks to expand the Enlightenment project of universal rights by instantiating their international enforcement.
The final substantive chapter of the book, to put it rather bluntly, is confusing. In one fell swoop, Darian-Smith seeks to combine the emergence of “neo-liberalism” over the last three decades with what Samuel Huntington termed the “clash of civilizations” between Islam and Christianity that emerges after 9/11. It is a tall order for one chapter. But the punch and clarity of the argument get further muddled as Darian-Smith seeks to center the chapter on an analysis of the genesis of Sam Walton’s global empire and Walmart’s discriminatory practices against women. Sam Walton’s fervent Christianity is compared to George W. Bush’s, and Walmart’s discrimination against its female employees is somehow linked to Laura Bush’s calls to save “brown women” in Afghanistan after the invasion (pp.268-271). The outlines of an argument are no doubt here – but that argument feels crowded and forced. Darian-Smith’s introduction is right on the money: this is one chapter which could be an entire book. The effect is a description of events without a deeper explanation. She writes in the conclusion of the chapter:
The degree to which the global south’s anger with respect to economic abuse correlates to the rise of religious fundamentalism and terrorist activity leading up to the events of 9/11 and other terrorist attacks in places such as Spain, Britain, and Indonesia is hard to ascertain. Presumably the two issues are linked but exactly how is not clear (p.283).
There have been many works in the wake of 9/11 by writers on the left which have sought to make that precise argument. But perhaps the most incisive one actually appeared before 9/11 – Benjamin Barber’s JIHAD v. MCWORLD (1996), which brilliantly links global capitalist expansion to the growing fundamentalist resentment to it.
I stated at the outset that the history of modern western law presents us with a series of anomalies where the promise of a rational, objective, secular legal regime has been consistently undermined by the historical record. If RELIGION, RACE, RIGHTS teaches us anything, it is that perhaps, in the end, characterizing [*18] modern Anglo-American law as an anomaly is misguided. It might be more accurate to say that there is a symbiotic relationship between religious and racial discrimination on the one side, and modern western law on the other. The two could not exist without one another simply because at the core of modern western law lies the very religious and racial animus the Enlightenment sought to sweep away.
The history Darian-Smith presents us with bears this out. And the implications of such a thesis are devastating. It means that the three-hundred year Utopian experiment in the law known as the Enlightenment has come to an end, rather unsuccessfully. It means that the model which all modern nation-states are erected on – the inalienable rights of the individual protected by a rational, secular, objective social contract – might become rather quaint. It means, finally, that perhaps we must begin to search for a new paradigm to replace the old one.
RELIGION, RACE, RIGHTS raises these and other intriguing questions about the nature and history of Anglo-American law. It is a book worth reading for anyone whose academic work even remotely touches on the issues of religion, race, and rights. And it would be an invaluable reference for any others interested in the last five hundred years of Anglo-American law.
Barber, Benjamin. 1996. JIHAD. v. MCWORLD. New York: Ballantine Books.
Huntington, Samuel. 1998. THE CLASH OF CIVILIZATIONS AND THE REMAKING OF WORLD ORDER. New York: Simon and Schuster.
© Copyright 2011 by the author, Christopher Malone.