Law as a Eurocentric Enterprise PDF

31 Law as a Eurocentric Enterprise Kenneth B. Nunn* Introduction The white man... desires the world and wants it for himself alone. He considers himself predestined to rule the world. He has made it useful to himself. But here are values which do not submit to his rule. - Frantz Fanon' 2 Several sch...

31 Law as a Eurocentric Enterprise Kenneth B. Nunn* Introduction The white man... desires the world and wants it for himself alone. He considers himself predestined to rule the world. He has made it useful to himself. But here are values which do not submit to his rule. - Frantz Fanon' 2 Several schools of legal thought now exist that, in various forms, acknowledge law's relationship to culture.3 But what is of* Professor of Law, University of Florida College of Law; A.B. 1980, Stanford University; J.D. 1984, University of California, Berkeley School of Law (Boalt Hall). An earlier version of this Article was presented at the Critical Legal Conference, "Contested Communities: Critical Legal Perspectives," held at the University of Edinburgh Faculty of Law, Edinburgh, Scotland, September 8-10, 1995. I would like to thank the participants at that conference, in particular Peter Fitzpatrick, for their helpful comments. I would also like to thank Pedro Malavet for lending me materials on comparative international law, Drs. M. Patricia E. Hilliard Nunn and Asa G. Hilliard, III for inspiration and support, and the editors of Law and Inequality: A Journal of Theory and Practice for their diligence, openmindedness and courage. 1. JAHNHEINZ JAHN, MUNTU: AFRICAN CULTURE AND THE WESTERN WORLD 23 (Majorie Grene trans., Grove Weidenfeld 1990) (1958) (exploring the primary assumptions and principles upon which African world-view and culture are based) (quoting FRANTZ FANON, PEAU NOIRE MASQUES BLANCS 125 (1952)). 2. Chief among these are legal realism and its various contemporary descendants. See generally FEMINIST LEGAL THEORY: READINGS IN LAW AND GENDER (Katharine T. Bartlett & Rosanne Kennedy eds., 1991) (feminist jurisprudence); MARK KELMAN, A GUIDE TO CRITICAL LEGAL STUDIES (1987) (critical legal studies); INTERPRETING LAW AND LITERATURE (Sanford Levinson & Steven Mailloux eds., 1988) (law and literature movement); Anthony Chase, Toward a Legal Theory of Popular Culture, 1986 WIS. L. REV. 527 (popular studies and cultural studies); John M. Conley & William M. O'Barr, Legal Anthropology Comes Home: A Brief History of the Ethnographic Study of Law, 27 LOY. L.A. L. REV. 41 (1993) (anthropology); Richard Delgado & Jean Stephancic, Critical Race Theory: An Annotated Bibliography, 79 VA. L. REV. 461 (1993) (critical race theory); Lawrence M. Friedman, The Law and Society Movement, 38 STAN. L. REV. 763 (1986) (law and society movement); Elizabeth Mensch, The History of Mainstream Legal Thought, in THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE 18, 26-29 (David Kairys ed., 1982) [hereinafter THE POLITICS OF LAW] (legal realism). 3. See generally CLIFFORD GEERTZ, LOCAL KNOWLEDGE: FURTHER ESSAYS IN INTERPRETIVE ANTHROPOLOGY 173 (1983) (describing law as a product of a given society and "a distinctive manner of imagining the real"); MARY ANN GLENDON, ABORTION AND DIVORCE IN WESTERN LAW 8 (1987) (law represents the culture "that helped to shape it and which it in turn helps to shape"); Gunter Bierbrauer, 32 Law and Inequality [Vol. 15:323 ten overlooked in the discussion of law's cultural base is that the law is the creation of a particular type of culture. 4 Law, as under- Toward an Understandingof Legal Culture: Variations in Individualism and Collectivism Between Kurds, Lebanese, and Germans, 28 L. & SOC'' REV. 243 (1994) ("Law and legal systems are cultural products like language, music, and marriage arrangements."); Robert M. Cover, Forward: Nomos and Narrative, 97 HARV. L. REV. 1, 11 (1983) ("[The creation of legal meaning... takes place through an essentially cultural medium."); Stewart Macaulay, Images of Law in Everyday Life: The Lessons of School, Entertainment, and Spectator Sports, 21 L. & Soc'Y REV. 185 (1987) ("[Llaw is an important part of culture... [affecting] everyday life in important ways."); Naomi Mezey, Legal Radicals in Madonna's Closet: The Influence of Identity Politics,Popular Culture, and a New Generation on Critical Legal Studies, 46 STAN. L. REV. 1835, 1857 (1994) ("[Clulture is the medium through which law is intimately inscribed in the practices of everyday life and through which legal meaning is contested and created."); Gary Minda, One Hundred Years of Modern Legal Thought: From Langdell and Holmes to Posner and Schlag, 28 IND. L. REV. 353, 370 (1995) (arguing that "a transformative process in jurisprudence" has begun to break down the barriers between law and culture); Symposium: Reweaving the Seamless Web: InterdisciplinaryPerspectives on the Law, 27 LoY. L.A. L. REV. 9 (1993); Symposium: PopularLegal Culture, 98 YALE L.J 1545 (1989); Steven L. Winter, Transcendental Nonsense, Metaphoric Reasoning, and the Cognitive Stakes for Law, 137 U. PA. L. REV. 1105, 1222-23 (1989) (describing law as "a purely human creation," "a cognitive construction from... lived dimensions of experience"); Barbara Yngvesson, Inventing Law in Local Settings: Rethinking PopularLegal Culture, 98 YALE L.J. 1689, 1690 (1989) ('[I]nterpretivists understand the production of law as an ongoing process, dialectically linked to the production of community, which is both a vehicle for and an outcome of the invention of law."). A valuable collection of essays exploring the connections between law and culture may be found in LAW AND THE ORDER OF CULTURE (Robert Post ed., 1991). 4. I am using "culture" here in its broad, anthropological sense, as opposed to a more narrowly focused artistic or "humanistic" definition of the term. See generally CULTURAL STUDIES 4 (Laurence Grossberg et al. eds., 1992) (discussing the distinction between broad and narrow visions of culture). Even so constrained, "culture" is a word susceptible to many meanings. One anthropologist has offered the following helpful definition: Culture consists of patterns, explicit and implicit, of and for behavior acquired and transmitted by symbols, constituting the distinctive achievements of human groups, including their embodiments in artifacts.... [Clulture systems may, on the one hand, be considered as products of action, on the other as conditioning influences upon further action. CULTURE AND BEHAVIOR: COLLECTED ESSAYS OF CLYDE KLUCKHOHN 73 (Richard Kluckhohn ed., 1962) (quoting A.L. Kroeben & Clyde Kluckhohn, Culture:A Critical Review of Concepts and Definitions, in 1 PAPERS OF THE PEABODY MUSEUM OF ARCHAEOLOGY AND ETHNOLOGY (1952)). Culture may be further described in practical terms. John Frohnmayer, former Chairman of the National Endowment for the Arts, has defined culture in the following way: [Culture, to the anthropologist, the folklorist and the archeologist, is part of the immutable web of what a society is and does. It is the tribal dance, the sacred ground, the strain of rice, the herbal remedy, the architecture, the folk wisdom, the flora and the fauna and the oral tradition. In short, it is the best manifestation of what a society has created, what a society values and what a society believes. John Frohnmayer, Gianella Lecture, Should the United States Have a Cultural Policy?, 38 VILL. L. REV. 195 (1993). 33 19971 EUROCENTRIC ENTERPRISE stood in European-derived 5 societies, is not universal. It is the creation of a particular set of historical and political realities and of a particular mind-set or world-view. Understandably, the human enterprise can be envisioned and structured in differing ways. It comes as no surprise, then, that6 Western Europe has developed cultural forms that are distinct. Compared to the world's other cultural traditions,7 Western European culture is highly materialistic, competitive, individualistic, narcissistic and places great emphasis on the consumption of natural resources and material goods.8 In addition, European culture 5. I use "Europe" or "European" to refer to the countries of Western Europe and the United States, Canada and Australia. I use the terms 'Western" or "European-derived" to refer to those countries that have adopted the values and institutions of European culture, no matter where they may be located geographically. Cf. J.M. BLAUT, THE COLONIZER'S MODEL OF THE WORLD: GEOGRAPHIC DIFFUSIONISM AND EUROCENTRIC HISTORY 3 (1993) (referring to "Greater Europe" as the continent of Europe plus the countries of European settlement). This conception, of course, is an oversimplification. It is possible for a country to have adopted some Western values but not others. It is also possible for a country to adopt Western values at some levels, but not at others. For example, while Japan is a Western country at the state level, it retains its own cultural logic at the societal and individual levels. 6. See generally ROBERT S. LOPEZ, THE BIRTH OF EUROPE (1967) (asserting that Europe arose from "the creation of a new and lasting cultural unity"); PAUL MONACO, MODERN EUROPEAN CULTURE AND CONSCIOUSNESS, 1870-1980 2 (1983) (describing a common "Euro-American culture [that] is becoming increasingly the core of... a common global culture"); THE UNITY OF WESTERN CIVILIZATION (F.S. Marvin ed., 3d ed., 1929) (reprinted 1970) (collection of essays arguing the existence of a "great European civilization"); Francois Bourricaud, Modernity, 'Universal Reference' and the Process of Modernization, in 1 PATTERNS OF MODERNITY: THE WEST 12-13 (S.N. Eisenhardt ed., 1987) [hereinafter PATTERNS OF MODERNITY] (listing a systemized science, the constitutional state, the rule of law, democracy and capitalist economy as central, defining characteristics of the West). There is also a growing collection of popular works asserting the existence of a Western culture and celebrating its preeminence. Most of these see the Eurocentric orientation of American culture as a positive trait and view calls for the recognition of non-Western cultures and values as threatening. See, e.g., DINESH D'SOuZA, ILLIBERAL EDUCATION: THE POLITICS OF SEX AND RACE ON CAMPUS (1991); ARTHUR M. SCHLESINGER, JR., THE DISUNITING OF AMERICA (1992). 7. See MARIMBA ANI, YURUGU: AN AFRICAN-CENTERED CRITIQUE OF EUROPEAN CULTURAL THOUGHT AND BEHAVIOR 82, 98, 195 (1994) (comparing European cultures to African, Native American and Oceanic "majority cultures"); RICHARD KATZ, THE STRAIGHT PATH: A STORY OF HEALING AND TRANSFORMATION IN FIJI 16 n.4 (1993) (comparing "Western" with "Indigenous" traditions). 8. See infra Part I. The following description of culture in the United States may be taken as representative of European culture generally: America has inverted... [an] historic value structure and prioritized the values of economic advancement, individual acquisition, and immediacy. The United States has, at its base, accepted a relentless pursuit of economic efficiencies and a related glorification of individualism in order to attain and sustain its material wealth. The distortion of values inherent in this single-minded drive for material dominance has been largely ignored or justified by the financial success which these efficiencies have 34 Law and Inequality [Vol. 15:323 tends to take aggressive, domineering stances toward world inhabitants. 9 Consequently, the driving force behind racism, colonialism and group-based oppression is European and Europeanderived culture.l0 European culture has produced a legal tradition that, while offered as universal," is distinctly its own. 12 John Henry Merryproduced. This distortion has created an America which has embraced a philosophy of result orientation, an evaluation of all actions based on the success of their results-with success being increasingly defined as the attainment of wealth. Phillip J. Closius, Rejecting the Fruits of Action: The Regeneration of the Waste Land's Legal System, 71 NOTRE DAME L. REV. 127 (1995) (citations omitted). 9. See infra Part I. 10. While some would wish to site these negative practices in general human failings, others lay the blame squarely on Western policies and attitudes. See JOHN HENRIK CLARKE, AFRICANS AT THE CROSSROADS: NOTES FOR AN AFRICAN WORLD REVOLUTION 245-67 (1991) (stating that racism, slavery and the destruction of cultures directly result from white nationalist expansion); HAKI R. MADHUBUTI, CLAIMING EARTH: RACE, RAGE, RAPE, REDEMPTION; BLACKS SEEKING A CULTURE OF ENLIGHTENED EMPOWERMENT 169 (1994) ('Racism...is now understood by many people of color worldwide as a European aberration that has wreaked havoc on most cultures."); AMOS N. WILSON, THE FALSIFICATION OF AFRIKAN CONSCIOUSNESS: EUROCENTRIC HISTORY, PSYCHIATRY AND THE POLITICS OF WHITE SUPREMACY 3-4 (1993) (arguing that Eurocentric social order produces self-destructive attitudes and behavior in people of African descent). See also CHINWEIZU, THE WEST AND THE REST OF US: WHITE PREDATORS, BLACK SLAVERS AND THE AFRICAN ELITE (1975) (demonstrating that European relations with Africans were motivated by white nationalism and racism); JOEL KOVEL, WHITE RACISM: A PSYCHOHISTORY (1970) (linking white racism to European historical developments); HAKI R. MADHUBUTI, ENEMIES: THE CLASH OF RACES (1978) (describing white oppression of Blacks as an interrelated economic, political, social and psychological attack); WALTER RODNEY, How EUROPE UNDERDEVELOPED AFRICA (1974) (linking economic and cultural impoverishment of Africa to Western colonial and post-colonial policies); CHANCELLOR WILLIAMS, THE DESTRUCTION OF BLACK CIVILIZATION: GREAT ISSUES OF ARACE FROM 4500 B.C. TO 2000 A.D. (1987) (explaining present low status of Africans world-wide as the result of a centuriesold pattern of white invasion and exploitation). 11. Western law, like Western culture generally, presents a paradox since it claims both universality and uniqueness. For a discussion of the law's false claim to universality, see infra Part IV. Western culture purports to be universal in the sense that it offers itself as an advanced stage in history. See S.N. Eisenstadt, Introduction:Historical Traditions,Modernization and Development, in PATTERNS OF MODERNITY, supra note 6, at 2 (discussing the Western perception that "the European (and perhaps also the American) experience constitutes the major paradigm of...modern society and civilization"); Mogens Trolle Larsen, Orientalism and the Ancient Near East, in THE HUMANITIES BETWEEN ART AND SCIENCE: INTELLECTUAL DEVELOPMENTS 1880-1914, at 183 (Michael Harbsmeier & Mogens Trolle Larsen eds., 1989) [hereinafter BETWEEN ART AND SCIENCE] (describing "a unilinear view of world history which marked out the western civilization as the concluding glory of millennia of development"). Western culture claims to be unique since, it is argued, no other culture has successfully reached the modern phase of development. See Eisenstadt, supra, at 1-2. Curiously, what may be most unique about Western societies is their predilection for assertions of universality. See Bourricaud, supra note 6, at 21 ('Modern societies are characterized less by what they have in common or by their structure... than by the fact of their involvement in the issue of 35 1997] EUROCENTRIC ENTERPRISE man describes "legal tradition"' as "a set of deeply rooted, historically conditioned attitudes about the nature of law, about the role of law in the society and the polity, about the proper organization and operation of a legal system and about the way law is or should be made, applied, studied, perfected and taught. 13 According to Merryman, the civil law, common law and socialist law traditions "are all of European origin."'14 These legal systems, which make up the bulk of what is referred to as "the law,"'15 all "express ideas and embody institutions that have been formed in the European his6 torical and cultural context."' This Article argues that law is a Eurocentric enterprise, universalization."). Marimba Ani, a professor of anthropology at Hunter College, criticizes the European claims of uniqueness and universality. To Ani, these claims are ideologically manipulative instruments of white supremacy. She points out that if we accept the argument "that European culture merely represents what will be the eventual form of all cultures," then: there is no possibility for a viable critique of what Europeans have created, because there is no other ("non-European") perspective. Other ideologies become impotent, because to identify "Europeanness" as an inevitable stage in "non-European" development is to say that they ('nonEuropeans") do not exist-certainly not as directives, as influences, or as agents of change. ANI, supra note 7, at 21. 12. See JOHN H. BARTON ET AL., LAW IN RADICALLY DIFFERENT CULTURES 7 (1983) ("We assume that Western law is an integral expression or part of Western culture and that it differs from law outside the West."). 13. JOHN HENRY MERRYMAN, THE CIVIL LAW TRADITION: AN INTRODUCTION TO THE LEGAL SYSTEMS OF WESTERN EUROPE AND LATIN AMERICA 2 (1969). 14. Id. at 5. See also HAROLD J. BERMAN, LAW AND REVOLUTION: THE FORMATION OF THE WESTERN LEGAL TRADITION 539 (1983): All Western legal systems-the English, the French, the German, the Italian, the Polish, the Hungarian, and others (including since the nineteenth century, the Russian)-have common historical roots, from which they derive not only a common terminology and common techniques but also common concepts, common principles, and common values. 15. To speak of "the law" in this way is to exclude other legal traditions that can be easily dismissed as mere "cauldron[s] of custom and [religious]... influences." MERRYMAN, supra note 13, at 9. This is not meant to suggest that Merryman believes European legal traditions are superior to all others. Elsewhere, in fact, he asserts the opposite: "While it is comforting to think... that one's own legal system is advanced and others are backward or primitive, an alternative possibility is that they are merely different." BARTON ET AL., supra note 12, at 7. A substantial majority of Western jurists, however, do believe that "the law" is the distinct province of the European mind. See, e.g., RENA DAVID & JOHN E.C. BRIERLEY, MAJOR LEGAL SYSTEMS IN THE WORLD TODAY 548-76 (1985) (unfavorably comparing African "custom" with European "law"). See also A.N. ALLOTr, NEW ESSAYS IN AFRICAN LAW 148 (1970) (arguing that the study of African legal concepts more properly the subject of anthropology than law); MAX GLUCKMAN, POLITICS, LAW AND RITUAL IN TRIBAL SOCIETY xxii, 112 (1965) (same). This dichotomy has an ideological slant. See infra notes 140-42 and accompanying text (discussing the hierarchical relationship of "law" to "custom"). 16. MERRYMAN, supra note 13, at 7. 36 Law and Inequality [Vol. 15:323 meaning that law is part of a broader cultural endeavor that attempts to promote European values and interests at the expense of all others. 17 Law carries out a Eurocentric program as it organizes and directs culture. Law does this by reinforcing a Eurocentric way of thinking, promoting Eurocentric values and affirming-indeed celebrating-the Eurocentric cultural experience. In the discussion that follows, this Article adopts the theoretical and philosophical position developed by African-centered scholars in the United States and elsewhere to critique western legal thought.' 8 This point of view, sometimes known as Afrocentricity, requires the scholar to interrogate knowledge from a position that is grounded in African values and the African ethos. 19 An African-centered perspective is employed here to reveal the normally hidden relationship between white supremacy and law in the Western cultural context. This Article will address the Eurocentric nature of law and its use as an instrument of cultural domination. Part I explains the concept of Eurocentricity. Part II explores those attributes of 17. As Professor Peter Manus has argued: Mainstream U.S. culture, including politics, law, and values, has emerged from eurocentric roots. At its simplest, eurocentric culture is based on the mythological notion that individuals should strive to rise above the status quo and to search for, claim, wrest, and possess the scarce valuables, both material and moral, from a great wasteland. The holy grail stories embody the central theme of this tradition, as do the Christian crusades. Incorporating into the theme of quest and individual valor rising out of a wasteland of sin is the notion that the crusading European is "other," or better, than the non-European races. Peter M. Manus, The Owl, the Indian, the Feminist, and the Brother: Environmnentalism Encounters the Social Justice Movements, 23 B.C. ENVTL. AFF. L. REV. 249, 258 (1996). 18. I am drawing upon the work of Na'im Akbar, Molefi Asante, Jacob Carruthers, Cheikh Anta Diop, Asa G. Hilliard, III, Leonard Jeffries, Rosalind Jeffries, Maulana Karenga, Wade Nobles, Theophile Obenga, Frances Cress Welsing, Amos Wilson and others. As Errol Henderson describes it, these African and African American scholars "have attacked the presently fashioned disciplines of history, psychology, sociology, political science, linguistics, archeology, anthropology and philosophy as parochial Europe-centered discourses inundated with a presumption of universality that none of them warrant or demonstrate." ERROL ANTHONY HENDERSON, AFROCENTRISM AND WORLD POLITICS: TOWARDS A NEW PARADIGM xi (1995). I am aware that other, non-Afrocentric scholars have offered culturally based critiques of Western law which, while not African-centered in their analysis, raise similar points. See, e.g., Closius, supra note 8 (arguing that Western culture, as depicted in T.S. Eliot's poem "The Waste Land" has produced result-oriented forms of law that promote capitalism, materialism and economic efficiency over religious, communal and familial values); Jennifer Nedelsky, Law, Boundaries, and the Bounded Self, in LAW AND THE ORDER OF CULTURE 162 (Robert Post ed., 1991) (arguing Western individualism produces a stark and empty vision of civil and political rights). 19. See MOLEFI KETE ASANTE, KEMET, AFROCENTRICITY, AND KNOWLEDGE 5 (1990). 37 1997] EUROCENTRIC ENTERPRISE 329 the law that mark it as Eurocentric and make it a tool for cultural hegemony. Part III explains how law structures institutions of white dominance while legitimating the use of force to protect those institutions. Part IV discloses how law maintains white cultural hegemony through false universal claims and the privileging of the white historical experience. Part V reveals how legal reasoning works to stifle Black 20 creativity and cultural expression. Finally, Part VI addresses the way law and legal structures limit the political program that may be undertaken by African and other cultural activists. This Article concludes that African communities existing within Western societies must envision new strategies and conceptions of the law in order to liberate themselves and transform the oppressive character of Eurocentric culture. I. The Critique of Eurocentricity From an African-centered cultural perspective, 21 racism, sexism, classism and other problems endemic to Western societies are not the product of misguided or venal individuals. 22 Nor are they solely the result of material conditions or predictable social processes. 23 These problems result from the fundamental nature of 20. I use 'Black" and "African American" interchangeably throughout this article to refer to persons residing in the United States who are of African descent. 'Black" denotes racial and cultural identity rather than mere physical appearance and is therefore capitalized. See Kenneth B. Nunn, Rights Held Hostage: Race, Ideology and the Peremptory Challenge, 28 HARV. C.R.-C.L. L. REv. 63, 64 n.7 (1993). 21. See ASANTE, supra note 19, at 5 (Afrocentrist "put[s] African ideals and values at the center of inquiry"); MOLEFI KETE ASANTE, AFROCENTRICITY 6 (rev. ed. 1988) C'Afrocentricity...is [African] history.... mythology.... creative motif, and... ethos exemplifying [African] collective will."). According to Asante, the Afrocentric method is a critical method, grounded in African historical and cultural bases, which takes "the restoration of balance" as its goal. MOLEFI KETE ASANTE, THE AFROCENTRIC IDEA 178 (1987). 22. Afrocentrists, or African-centered scholars, hold a range of ideological positions. See HENDERSON, supra note 18, at 83-96 (comparing and evaluating different takes on Afrocentricity). However, they generally agree that the problems faced by African people are based in the fundamental structure of European culture and that individualist accounts of these problems are superficial. See, e.g., Mwata Kairi X, Sakhu Sheti-ists: The Illuminatorsof the Divine Afrikan Spirit, in TO HEAL A PEOPLE: AFRIKAN SCHOLARS DEFINING A NEW REALITY 129-30 (Erriel Kofi Addae ed., 1996) (arguing Western culture and not individual attributes forces "us to develop compensatory behavioral styles that are, or have been, antithetical to the proper growth and development of the Afrikan Spirit, and ultimately to humanity"); KOBI KAZEMBE KALONGI KAMBON, THE AFRICAN PERSONALITY IN AMERICA: AN AFRICAN-CENTERED FRAMEWORK viii-x (1992) (linking mental disorders, criminality, family problems, etc., to European cosmology or worldview and suggesting these problems cannot be resolved in the absence of the development of an African worldview). 23. See KAMBON, supra note 22, at ix-x. 38 330 Law and Inequality [Vol. 15:323 European society and culture. 24 That is, racism, sexism, etc., flow 24. LINDA JAMES MYERS, UNDERSTANDING AN AFROCENTRIC WORLD VIEW: AN INTRODUCTION TO AN OPTIMAL PSYCHOLOGY 10 (1988) (arguing that "the depth and pervasiveness of racism/sexism go to the very core of the conceptual system and consequent world view that characterize Western thought and Euro-American culture"). This position was first elaborated by the celebrated African-centered scholar, Cheikh Anta Diop, in his famous "two-cradle" theory. Diop argued that "humanity has from the beginning been divided into two geographically distinct 'cradles' one of which was favourable to the flourishing of matriarchy and the other to that of patriarchy." CHEIKH ANTA DIOP, THE CULTURAL UNITY OF BLACK AFRICA: THE DOMAINS OF PATRIARCHY AND OF MATRIARCHY IN CLASSICAL ANTIQUITY 25 (English trans. 1963, reprinted 1978) [hereinafter CULTURAL UNITY]. According to Diop, the Northern cradle was centered on the Eurasian steppes and was characterized by a nomadic life, patriarchical social organization, high individualism, fire worship and cremation of the dead. Id. at 28-33, 72, 144-46. In contrast, the Southern cradle was centered in Africa and was characterized by a sedentary, agricultural way of life, matriarchical social organization, collectivism, ancestor worship and interment of the dead. Id. at 28-33, 41-42, 144. Due to the particularities of its environment, Diop teaches that the Northern cradle developed an intrusive totalitarian state, id. at 148, a general disrespect for and mistreatment of women, id. at 139, individualism and xenophobia, id. at 195, as well as an affinity for "war, violence, crime and conquests," id. at 195. See also CHEIKH ANTA DIOP, CIVILIZATION OR BARBARISM: AN AUTHENTIC ANTHROPOLOGY 112-13 (YaaLengi Meema Ngemi trans., 1991) [hereinafter CIVILIZATION OR BARBARISM] (summarizing and explaining distinctions between two cradles). It should be made clear that neither Diop's position, nor the one that I take here, are founded on racial distinctions as such. I do not make the claim and, as far as I am aware of, no Afrocentric scholar makes the claim that the cultural differences that may be observed between Europeans and others are the results of a genetic predisposition or trait. African-centered scholars argue uniformly that Eurocentric culture is the consequence of environmental and historical factors. As Diop puts it, "I do not plead for a petrified African psychological nature; the sense of solidarity so dear to the African could very well give way to an individualistic, egocentric behavior of the Western type, if conditions were modified." Id. at 362. Following Diop, other works by African-centered scholars have explored the See ANI, supra note 7, at 398, 402 contours of the Eurocentric worldview. (European culture characterized by "separateness, alienation, hostility, competitiveness," and cultural and economic aggression); S.M.E. BENGU, CHASING GODS NOT OUR OWN 33 (1975) ("European culture cause[s] complexes for both... Europeans and... Africans."); ASA G. HILLIARD, III, THE MAROON WITHIN US: SELECTED ESSAYS ON AFRICAN AMERICAN COMMUNITY SOCIALIZATION 50-70 (1995) (arguing adoption of "atomistic-objective" cultural style is stultifying and debilitating to African people); KAMBON, supra note 22, at 12-13 ("the European worldview is defined by basic values of materialism, control, aggression and linearordinal ranking, conflict and opposition"); MYERS, supra, at 9-10 (racism and sexism an inherent part of the European view of the world); WADE W. NOBLES, AFRICAN PSYCHOLOGY: TOWARDS ITS RECLAMATION, REASCENSION AND REVITALIZATION 2-14 (1986) (noting differences between African, spiritually-based psychology and European, objective psychology which supported and encouraged racist views of African and non-European behavior); ELLENI TEDLA, SANKOFA: AFRICAN THOUGHT AND EDUCATION 106-07 (1995) (Western culture has led to the development of racist social theories and exploitative economic and development policies); Na'im Akbar, Africentric Social Sciences for Human Liberation, 14 J. BLACK STUD. 395, 399-403 (1984) (Eurocentric worldview exemplified by individualism, rationalism, and materialism). 39 1997] EUROCENTRIC ENTERPRISE from the world-view and conceptual system that is at the core of European culture. 25 It is the core cultural dynamics of Western societies 26 that produce social structures in which male traits, material 27 possessions and white racial characteristics are so highly privileged. At the center of European culture lies a complex of values that are profoundly materialistic. 28 European culture is materialistic in both the ontological sense that the nature of reality is perceived in material terms 29 and in the sociological/axiological sense that the acquisition of objects is the primary social goal. 30 The term "Eurocentricity" is used in this Article to refer to these core cultural values. Eurocentricity, then, may be briefly defined as a conceptual system or world-view that is grounded in materialism and that exhibits an epistemology, aesthetics and ethos based in material values. 31 Eurocentricity consists of those values, attrib25. MYERS, supra note 24, at 10. Na'im Akbar, a clinical psychologist and professor in the Departments of Psychology and Black Studies at Florida State University has observed: child molestation, rape, bizarre sexual perversions, drug abuse, child abuse, and even racial conflict are virtually unknown occurrences in most parts of the world, but reach epidemic proportions as one approximates the characteristics of the Euro-American model. Akbar, supra note 24, at 403-04. 26. See infra notes 28-30 and accompanying text. 27. MYERS, supra note 24, at 10. 28. See TEDLA, supra note 24, at 81 (1995) (stating that Europeans entertain a mathematical-mechanistic view of the world, wherein nature is separated from God, and mind from matter); Akbar, supra note 24, at 402 (observing that the Eurocentric perspective "assume[s]... outer characteristics are essential characteristics"); KAMBON, supra note 22, at 12 (noting that materialism is one of the basic values of Eurocentricity). 29. MYERS, supra note 24, at 10. 30. See id. (claiming that the highest value in Eurocentric societies is placed on the acquisition of objects). 31. This definition differs from other uses of the term "Eurocentricity." "Eurocentricity" or "Eurocentrism" may be used to suggest a form of ethnocentrism. See BLAUT, supra note 5, at 47 n.8 (suggesting the term originated as contraction of "European ethnocentrism"). Law, in this sense, would be "Eurocentric" to the extent it was a tool of prejudice or bias. "Eurocentrism" may also be used to describe the practice of viewing history, law, science or other human practices, from a European perspective, as if Europe was the point of origin or reference for all human affairs. Blaut takes this position, referring to it as "Eurocentric diffusionism." Id. at 1. Under this definition, law can be called "Eurocentric" because it is conceived of as originating in Europe and spreading out to the rest of the world. Asante, on the other hand, views "Eurocentricity" as the adoption of a particular value center. See ASANTE, THE AFROCENTRIC IDEA, supra note 21, at 6-11 (comparing Afrocentricity with Eurocentricity). See also Jeffrey Lynn Woodyard, Locating Asante: Making Use of the Afrocentric Idea, in MOLEFI KETE ASANTE AND AFROCENTRICITY: IN PRAISE AND CRITICISM 27, 29-32 (Dhyana Ziegler ed., 1995) (describing Asante's Afrocentricity as a perspective from which to view phenomenon). A "Eurocentric" person or enterprise, then, is one that adopts a point of view grounded in European realities. From Asante's position, law is "Eurocentric" be- 40 Law and Inequality [Vol. 15:323 utes and modes of behavior that are at the core of Europeanderived cultures. 32 Consequently, Eurocentricity provides the impetus for human interaction and organization both within Euro34 pean-derived cultures 33 and between them and other cultures. The Eurocentric world-view produces a culture of acquisition and narcissism. Since the Eurocentric perspective conceives of reality in material terms, the amount of resources available for wellbeing and survival are perceived to be finite. 35 This perception that life is a "zero-sum game" leads to the development of social behaviors that are highly competitive and aggressive. 36 Because competition is so critically important to the Eurocentric mind-set, individualism and the accumulation of material things are promoted. 37 As Afrocentric scholar Linda James Myers points out: If we accept the materialist perspective even our very worth as human beings becomes fragile and diminished, for it cause it structures itself around European concerns and interests and because it is part of a broader European project of world management. The preceding definitions seem dependent on another: Eurocentrism as an expression of a specific cultural orientation. This is the position I adopt in this article. Law is "Eurocentric" from this perspective because it expresses attributes that are characteristic of European culture. Cf. ANI, supra note 7, at 4 (describing anthropology as a Eurocentric discipline since it is "a manifestation of the European ethos"). While law may also be Eurocentric according to the other positions I have outlined above, this may be so only because law is most fundamentally an expression of European culture. 32. These core values are defined by Kambon. He states that "the European worldview is defined by the basic values of materialism, control, aggression and linear-ordinal ranking, conflict and opposition." KAMBON, supra note 22, at 12-13. 33. ANI, supra note 7, at 375-88. Within Eurocentric cultures, however, the possibilities for fulfilling human relationships are limited. Eurocentric culture is the only culture that provides little or no source of spiritual or emotional well-being for its members. It carries little tradition of insight into the human spirit and virtually no knowledge of the human soul. It is atrophied toward non-human realities. European culture presents the individual it produces with only the alternatives of materialism, scientism, and rationalism, when what she needs is the inner peace that comes with communion... with others... and emotional identification with other people. Id. at 381. 34. Id. at 473-85. 35. MYERS, supra note 24, at 10. 36. See id.; see also Akbar, supra note 24, at 400. 37. Indeed, the cultural logic of Eurocentricity demands a rampant materialism and excessive acquisitiveness, a point the following comment emphasizes: Individualism, competition, and materialism provide criteria for selfdefinition [in Eurocentric societies] as a natural consequence of a world view in which a finite and limited focus orients us toward such disorder that we fight one another to sustain an illusion. Even so, regardless of the external criteria that automatically make one better than another (in U.S. culture: white skin color and male sex characteristics), the intact suboptimal conceptual system will by its nature, in any culture, lead to forms of societal "isms," or hierarchical valuing of the material. MYERS, supra note 24, at 10. 41 1997] EUROCENTRIC ENTERPRISE teaches that one's worth is equal to what one owns, how 38one looks, the kind of car, house, education one has, and so on. Consequently, Eurocentric culture produces a general sense of insecurity, "an incessant need to control, dominate, or be better 39 than others." The materialistic paradigm of Eurocentric societies produces certain cultural determinates, which shape and direct all social productions within the culture. 40 These cultural determinates manifest themselves mainly in the areas of thought structuring 41 The and processing and include epistemological values and logic. 38. Id. See also Closius, supra note 8, at 127-28 ('[In America], a culture has been established which deifies the individual and the importance of achievementwho won, what university did you get into, how much money did you earn."). Ultimately these attempts to gain fulfillment through material gain are unsuccessful. That basic sense of worth, peace, and security all human beings so desperately need cannot be achieved through material, external criteria. What happens is that we can only get some of what we want, and we want more; we get more, and we want more and more, and so on. MYERS, supra note 24, at 10. 39. MYERS, supra note 24, at 10. See also KAMBON, supra note 22, at 12. 40. Using different terminology, Ani describes this process as the influence of the "asil' (the ideological thrust or core of a culture), on the "utamawazo" (the cognitive style or "culturally structured thought" exhibited by a culture). See ANI, supra note 7, at xxv, 105. Eurocentric societies are governed by an asili that is essentially power-seeking. Id. at 105. She states that "[tihe [socio-cultural] forms that are created within the European cultural experience can then be understood as mechanisms of control in the pursuit of power." Id. 41. Marimba Ani has produced an extremely valuable and detailed study of the cultural processes that have produced Western, Eurocentric thought. In the discussion which follows, I rely significantly on her analysis and categorization of the various components of European culture. Ani lists the following as attributes of the Eurocentric utamawazo: (1) dichotomization, (2) oppositional, confrontational, antagonistic relationships, (3) hierarchical segmentation, (4) analytic, nonsynthetic thought, (5) objectification, (6) absolutist-abstractification, (7) rationalism and scientism, (8) authoritative literate mode and (9) desacralization. See ANI, supro note 7, at 105-07 (describing the manner in which the asili forces selfrealization through the cognitive structure of the utainawazo). Hilliard states that European cultures generally display what he calls the "atomistic-objective" or "analytical, obsessive-compulsive" behavioral style. See HILLIARD, supra note 24, at 13-49, 160-77 (comparing European and African American cognitive and behavior styles using religion, language, and music). Hilliard identifies the following qualities, among others, as part of the cultural style typically preferred in European-dominated cultural settings: "[r]ules," "[s]tandardization," "[miemory for specific facts," "[r]igid order," "[e]gocentric," "[clognitive," "inear," "[h]ierarchical," and "[tihing focused." Id. at 165. There is a fairly extensive psychological literature cataloguing differences between African-American and European-Americans in terms of "cognitive" or "cultural" style. See generally BLACK PSYCHOLOGY (Reginald L. Jones ed., 3d ed. 1991) (focusing on areas including personality, education, psychological assessment, and racism); J.E. BLACKWELL, THE BLACK COMMUNITY (1975) (describing unique attributes of African American culture and behavior); CULTURE, STYLE AND THE EDUCATIVE PROCESS (Barbara J. Robinson Shade ed., 1989) (collection of articles describing how "culturally-induced styles influence academic performance"); 42 Law and Inequality [Vol. 15:323 following European cultural attributes are the most significant for the purposes of this Article. 1. Dichotomous Reasoning. Eurocentric culture embraces a reasoning style that is dichotomous. 42 That is, the world is known 43 and described through the comparison of incompatible opposites. Virtually all of reality is split into paired opposites. 44 According to Marimba Ani, "[t]his begins with the separation of self from 'other,' and is followed by the separation of the self into various dichotomies (reason/emotion, mind/body, intellect/nature)." 45 Dichotomous reasoning leads to "either/or" conclusions and makes it difficult to process information wholistically. 46 The dichotomous reasoning found in Eurocentric cultures may be contrasted to the diunital form of reason prevalent in African and other nonEuropean cultures. 47 Diunital reasoning leads to "both/and" conclusions and permits the consideration of information that is not VARIATIONS IN BLACK AND WHITE PERCEPTIONS OF THE SOCIAL ENVIRONMENT (Harry C. Triandis ed., 1976) (presenting a means for understanding blacks' and whites' way of thinking); John R. Aiello & Stanley E. Jones, Field Study of the Proxemic Behavior of Young School Children in Three Subcultural Groups, 19 J. PERSONALITY & SOC. PSYCHOL. 351 (1971) (discussing the results of a study based on the assertion that lower-income blacks and hispanics are more highly involved during interactions than middle-class white Americans and thus use a closer in- teraction distance); A. George Gitter, H. Black, et al., Race and Sex in the Percep- tion of Emotion, 28 J. SOC. ISSUES 63 (1972) (relating nonverbal communication to perception of emotion); H. A. Witkin & J. Berry, Psychological Differentiation in Cross-CulturalPerspective, 6 J. CROSS-CULTURAL PSYCHOL. 4 (1975) (identifying behavioral and cultural phenomena which bear on psychological differentiation). 42. ANI, supra note 7, at 33. See also TEDLA, supra note 24, at 81 (describing the European world view which separates mind from matter, nature from God and the subjective realm from the objective realm). 43. See ANI, supra note 7, at 33-34 (citing Robert Armstrong who describes the European world view as a system of opposing pairs). 44. Id. at 105. 45. Id. 46. MYERS, supra note 24, at 11. Dichotomous reasoning leads to racist/sexist thought and practice. Dichotomous reasoning enables the European mind to create the non-European "other." See ANI, supra note 7, at 402-03. The separation of self from the other permits the objectification of the other, and consequently the exercise of power over the other. Id. See also EDWARD W. SAID, ORIENTALISM 4-9, 22-23, 108-09 (1978) (describing the "othering" process that produced the Western conception of the Orient and describing that conception as one based on "a relationship of power, of domination, [and] of varying degrees of a complex hegemony"); Kimberl6 Williams Crenshaw, Race, Reform and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 HARV. L. REV. 1331, 1372-76 (1988) (describing how Western thought is characterized by "a structure of polarized categories" and how "the very existence of a clearly subordinated 'other' group is contrasted with the norm in a way that reinforces identification with the dominant group"). Fitzpatrick discusses how "othering" is part of the basic structure of the law. See infra note 94 and accompanying text (quoting Fitzpatrick). 47. MYERS, supra note 24, at 13. See also ANI, supra note 7, at 34, 97-98 (observing that reasoning forms embraced by European culture are non-diunital). 43 1997] EUROCENTRIC ENTERPRISE 335 48 neatly categorized or compartmentalized. 2. Employment of Hierarchies. Having submitted the material world to a process of fragmentation, the Eurocentric mind organizes the resulting dichotomies into hierarchies of greater and lesser value. 49 Within dichotomies, one pole is valued as superior to its opposite. 5° Thus reason is considered to be superior to its opposite, emotion, "that is, when 'reason' rules 'passion."'5' All reality is described in hierarchical terms;5 2 consequently, the Eurocentric mind perceives everything as better or worse than something else. 53 In this way, grounds are established for relationships based on power, "for the dominance of the 'superior' form or phenomenon over that which is perceived to be inferior.... "54 3. Analytical Thought. Analytic reasoning is the familiar cognitive style within Eurocentric cultural spheres.5 5 In analytic reasoning, an item or issue under consideration must first be broken down into its constituent parts before each part is then separately examined.56 While important information may be gleaned through analytic reasoning, "[t]here are some things that cannot be divided without destroying their integrity."5 7 In Eurocentric societies, analytic reasoning is utilized to the exclusion of, and not in addition to, synthetic reasoning processes. 58 Thus, interrelation- 48. MYERS, supra note 24, at 13. Since categorization is unnecessary when diunital reasoning is employed, this form of reasoning tends to avoid discriminatory treatments based on the perceived differences of people or things. See ANI, supra note 7, at 34-35 (explaining the European tendency to see pairs "in polar opposition and exclusive, rather than as complementary and diunitar' basis for the polarizing hierarchy that made European males superior to non-Europeans and females). 49. ANI, supra note 7, at 106. 50. On this point, Ani quotes the anthropologist Robert Armstrong, who notes: We see the world as delicately constituted of both terms in an infinite system of contrasting pairs, and bound together by the tension that exists between them. To be sure one term in each case is, by definition, of greater value than its opposite. ROBERT PLANT ARMSTRONG, WELLSPRING: ON THE MYTH AND SOURCE OF CULTURE 115-16 (1975), quoted in ANI, supra note 7, at 33-34. 51. ANI, supra note 7, at 94. 52. Id. at 106. 53. See Crenshaw, supra note 46, at 1372-73 (quoting JACQUES DERRIDA, DISSEMINATION viii (Barbara Johnson trans., 1981)). 54. ANI, supra note 7, at 106. 55. Id. 56. Id. 57. Id. at 76, 106. 58. Id. at 76. The "synthetic" reasoning process is the affective, participatory and intuitive reasoning style that is often associated with the right hemisphere of the brain. Id. at 77. Rather than dividing information into separate parts, synthetic reasoning approaches information wholistically and seeks to understand it within its context. See id. at 76-78, 81-82. 44 Law and Inequality [Vol. 15:323 ships are more difficult to perceive, and the fragmentation and seeming disconnection of reality is encouraged. 59 4. Objectification. In Eurocentric culture, the world beyond the self is viewed as a collection of objects to be controlled. 60 Indeed, in Eurocentric cultures "[t]he most valued relationship is between person and object." 61 As previously noted, self-worth is often viewed in terms of the objects one has under control. 62 The world in Eurocentric mind, given a choice, prefers to interpret 6the 3 subject-object terms rather than subject-subject terms. 5. Abstraction. Closely related to the process of objectifica64 tion, is a tendency in Eurocentric thought toward abstraction. Distilled excretions of ideas take precedent over ideas in context. While abstraction can be a valuable tool in any society, 65 in Eurocentric societies, it is reified to the extent that it becomes separate from and more important than the concrete experiences from which it originates. 66 Since the abstract is separated from the concrete, its validity cannot be questioned. Thus, abstraction becomes a tool of control. "Its role is to establish epistemological authority and, of course, other kinds of authority can then be derived from and supported by it."67 The preference for written forms of communication over oral forms also derives from 68 Eurocentric culture's reification of the abstract. 6. Extreme Rationalism. It is a foundational Eurocentric be- 59. See id. at 76-78. 60. Id. at 106. It should be emphasized that to perceive of something as an object implies control. See id. at 37 (explaining that "[tlo think properly about an object, to gain knowledge of (mastery over) an object, we must control it."). When people are placed in the subject-object equation as objects, then oppression and human degradation are the natural consequences. See id. at 402-04. 61. MYERS, supra note 24, at 10. 62. See supra note 38 and accompanying text. 63. Although in recent times objectivism has been challenged as the dominant mode of thought in Western societies by interpretive philosophies and other forms of subjective inquiry, the objective account of reality remains dominant and largely See generally RAYMOND A. MORROW, CRITICAL THEORY AND unquestioned. METHODOLOGY 53-60 (1994) (explaining how polarization operates and how critical theory tries to overcome it through ontology, epistology, theory of action and nature of explanation). 64. See ANI, supra note 7, at 70-72. 65. As Ani points out, "the very simple cultural reality [is] that in all societies and cultures people must abstract from experience in order to organize themselves, to build and to create and to develop." Id. at 71. 66. Id. 67. Id. at 71-72. 68. Id. at 51-56. Ani refers to this preference as the "authoritative literate mode." Id. at 107. 45 1997] EUROCENTRIC ENTERPRISE 69 lief that the universe can be explained wholly in rational terms. This means that to the Eurocentric mind everything is connected in an ordered and structured way, organized around the principles of cause and effect.70 The extreme rationalism that is found in Eurocentric societies has been described as an "attempt to explain all of reality as though it has been created by the European mind 71 for the purposes of control." 7. Desacralization. Nature objectified and rationalized leads to the illusion of a despiritualized universe. 7 2 In the Eurocentric world-view there is no room for the operation of sacred forces. Nature is reduced to a mere thing, an object that may be manipulated to suit mankind.7 3 This is a perspective that is almost uniquely European.7 4 Even where God is allowed in Western philosophies, realm where s/he can have s/he is banished to a separate spiritual 75 no effect on quotidian human affairs. 69. See Akbar, supra note 24, at 401. Akbar observes, however, that this effort to explain everything in rational terms is both futile and costly. He notes that due to the limitations of the rationalistic framework, "critical aspects of the human social process are often excluded from consideration." Id. 70. ANI, supra note 7, at 58-59 (describing European codification of reality in terms of linear and sequential relationships). 71. Id. at 107. But, Ani notes that in this European epistemology, "the 'logic' that they are taught cannot explain Zen philosophy, African ontology, or existential phenomenal reality." Id. at 57. Tedla calls this logical, rationalistic mode of thinking "[Western] liberalism." TEDLA, supra note 24, at 80. She observes that "[u]nderlying liberalism is the assumption that people, functioning primarily as individuals can achieve theoretical and practical mastery of nature and human nature." Id. 72. ANI, supra note 7, at 107. 73. Id. at 83-84. Desacralization leads to objectification then to control. Cf. supra note 60. 74. Ani comments on the atypicality of the Western concept of nature and the price of the Eurocentric worldview in the following passage: The African metaphysic, the Native American and Oceanic "majority cultures" (it is safe to generalize here), all presuppose a fundamental unity of reality based on the organic interrelatedness of being; all refuse to objectify nature, and insist on the essential spirituality of a true cosmos. What became known as the "scientific" view was really the European view that assumed a reality precluding psychical or spiritual influThis view also resulted in the ences on physical, material being. elimination of a true "metaphysical" concept and of an authentic cosmology. ANT, supranote 7, at 82. See also id. at 98-99 (comparing and contrasting the Eurocentric world view with "African, Amerindian, and Oceanic majority thought-systems"). 75. An observer of the Western condition has pointed out that: The Creator, separated from nature and humans recedes into the background like an absentee chief mechanic. Society is seen as composed of atomistic individuals bound by no morals, obligations, or duties to others. They simply act based on their own self-interest since "there is no agreement on what is 'moral."' TEDLA, supra note 24, at 83 (citation omitted). 46 Law and Inequality [Vol. 15:323 The attributes listed here grow from and are infused by the Eurocentric materialist perspective. They do not comprise the to76 tality of European culture, nor are they absent in other cultures. When manifested in a culture that is primarily materialistic, the attributes operate collectively to form a matrix of behavior and belief that is relatively unique.7 7 This is not to say that every individual in European culture thinks and acts according to this paradigm, nor is it implying that members of other cultural traditions do not.78 What is presented here is, by necessity, a generalization. Every person who resides within a Eurocentric society, however, will be predisposed to behave and think in Eurocentric ways simply because of the mode of socialization and the reward structure present in the society.7 9 In this way, Eurocentricity reaches out to delineate and direct everything the Eurocentric society produces, within the realm of art, science, economics and social life. All social and cultural productions--even the society's concept of the law-will reflect the materialism, aggression and individualism that Eurocentricity generates. II. Law and the Eurocentric World-View Law in Western societies masquerades as universal,80 but it is really a product of the society from which it derives. 81 Western law is a product of a Eurocentric culture and as such it reflects the consciousness, logic and values of Eurocentricity. 82 The cultural 76. See ANi, supra note 7, at 6, 20. 77. Id. at 20. 78. See MYERS, supra note 24, at 11. 79. Ani attributes this characteristic to the "asili." See ANI, supra note 7, at 12-14. For a definition of"asili," see supra note 40. She states: The asili determines cultural development; then the form that the culture takes acts to maintain the integrity of the asili. It acts as a screen, incorporating or rejecting innovations, depending on their compatibility with its own essential nature. It is as though the asili were a principle of selfrealization. ANI, supra note 7, at 12. Bateson also discusses the process of conformity that operates within cultures: The culture into which an individual is born stresses certain of his potentialities and suppresses others, and it acts selectively, favoring the individuals who are best endowed with the potentialities preferred in the culture and discriminating against those with alien tendencies. In this way the culture standardises the organisation of the emotions of individuals. GREGORY BATESON, NAVEN 115 (1958), quoted in ANI, supra note 7, at 14. 80. See infra Part IV. 81. See supra notes 11-12 and accompanying text. 82. See supra notes 28-39 and accompanying text (noting logic and values of Eurocentricity). 47 EUROCENTRIC ENTERPRISE 1997] 339 attributes that comprise the core of Eurocentricity 3 may be readily discovered in Western jurisprudence. In Eurocentric culture, law is dichotomous, hierarchical, analytical, objective, abstract, rational, complex and secular.8 4 Law not only exhibits these qualities8 5 but also encourages and promotes them as it fosters and is used to foster social relationships within European culture.8 6 A. The Eurocentric View of the Law: Dominant Trends in EuropeanJurisprudence The Western concept of law is typified by three major jurisprudential positions: natural law, positivism and law-rn-context theories. 8 7 Natural law doctrine, the oldest of the three, denies law is a human creation.88 Instead, law is thought to be part of the natural world.8 9 In the older forms of this theory, law derived from the will of God. 90 Natural law was divine law. 91 But the coming of the European Enlightenment separated law from divinity.92 Law was no longer seen as a celestial commandment, but as 93 a necessary consequence of an ordered and structured universe. That is, the laws of mankind became "natural" in the same sense 83. See supra notes 42-75 and accompanying text (discussing the cultural attributes that constitute Eurocentricity). 84. Cf. BARTON ET AL., supra note 12, at 7-14 (arguing similarly that "what is Western about Western law" is its faith in progress; its concern with legalism, secularism, sovereignty and statism, rights, duties, and individualism; and its adoption of "logical formal rationality" as its mode of analysis). 85. Many would argue that law must exhibit these qualities, or else it loses its legitimacy. Wechsler argued that constitutional decisions that were based on policy grounds and not "neutral principles" were suspect. See Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARv. L. REV. 1 (1959). Wechsler's argument was simply an extension of traditional Eurocentric notions of rationality and objectivity. See also Gary Peller, Neutral Principlesin the 1950s, 21 U. MICH. J.L. REFORM 561 (1988) (linking Wechsler's process theory to ration- alist and empiricist epistemology). 86. Law is one of many means through which social relationships within a culture can be shaped. See supra note 3. 87. COSTAS DOUZINAS ET AL., POSTMODERN JURISPRUDENCE: THE LAW OF TEXT IN THE TEXTS OF LAW 19 (1991). 88. See DENNIS LLOYD, THE IDEA OF LAW 70-71 (1976) C'Gods and supernatural spirits direct, if they do not actually embody, the powers and forces governing everything in the universe including man and the conduct of his affairs on earth."). 89. Id. 90. DOUZINAS ET AL., supra note 87, at 4; LLOYD, supra note 88, at 83; Joan C. Williams, Critical Legal Studies: The Death of Transcendence and the Rise of the New Langdells, 62 N.Y.U. L. REV. 429, 434 (1987). 91. See DOUZINAS ET AL., supra note 87, at 19. 92. See Williams, supra note 90, at 434-35; DOUZINAS ETAL., supra note 87, at 4-12. 93. DOUZINAS ET AL., supra note 87, at 19, 75; LLOYD, supranote 88, at 82-83. 48 Law and Inequality [Vol. 15:323 that the laws of science are perceived to be "natural."94 In its postEnlightenment, modern form, "the basis of natural law becomes psychological and sociological."9 5 Modern natural law consists of those norms that are necessary to regulate the "instincts and desires of human nature."96 According to the observation of one state court, natural law is that which so necessarily agrees with the nature and state of man, that without observing its maxims, the peace and happiness of society can never be preserved.... Knowledge of [natural laws] may be attained merely by the light of reason, from the agreeableness with the constitution of facts of their essential 97 human nature. This statement summarizes a distinctly European view of the law. The Eurocentric world-view is revealed in the post-Enlightenment 98 urge to despiritualize and rationalize the law. Natural law theory, however, has been pushed aside by positivistic interpretations of the law. Positivism is viewed as simply the command of the sovereign. 99 Under positivist theory, law no longer needs to appeal to any higher authority or morality. 10 0 Law is objectified and reduced to simply a matter of power.' 0 ' Positivism posits an interlocking system of rules, ordered not by natural02 ism, not by the needs and desires of human beings, but by logic.' 94. Williams, supra note 90, at 435 (explaining how European philosophy made natural law the product of the rational mind); PETER FITZPATRICK, THE MYTHOLOGY OF MODERN LAW 51-53 (1992). 95. DOUZINAS ET AL., supra note 87, at 4. This story of the transference of the realm of law from God to man is recounted in Williams, supra note 90, at 434-37 and Jennifer Lynn Orff, Demanding Justice Without Truth: The Difficulty of Postmodern FeministLegal Theory, 28 LOY. L.A. L. REV. 1197, 1199-2000 (1995). 96. Williams, supranote 90, at 435. See also DOUZINAS ET AL, supra note 87, at 19. 97. Borden v. State, 11 Ark. 519, 527 (1850). 98. Douzinas, Warrington and McVeigh claim that modern natural law is wholly objectified and its denial that law is not a human creation is false: In its self-presentation as natural, modern law mimics [classical natural law]. Its appeal to nature is the sign and desire for order. But its claims are counterfeit. The nature off which the new law feeds is not a lawful universe, but a reasoned construction, not nature as lawful, but as a simulation. DOUZINAS ET AL., supra note 87, at 19. 99. See JOHN AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINED 11 (Isaiah Berlin et al. eds., Curwen Press 1954) (1832). 100. See LLOYD, supra note 88, at 100. 101. See AUSTIN, supra note 99, at 11. See also Philippe Nonet, What is Positive Law?, 100 YALE L.J. 667, 668-70 (1990) (claiming positive law equates authority with the will to power); Rodolfo Sacco, Mute Law, 43 AM. J. COMP. L. 455, 456 (1995) (noting legal positivism reached its apex in totalitarian countries). 102. See Kenneth B. Nunn, The Trial as Text: Allegory, Myth and Symbol in the Adversarial Criminal Process-A Critique of the Role of the Public Defender and a Proposalfor Reform, 32 AM. CRIM. L. REV. 743, 753 (1995) (explaining the scien- 49 1997] EUROCENTRIC ENTERPRISE Positivism came to dominate European jurisprudence during the nineteenth century, 103 under the auspices of the highly influential work of theorists like David Hume, 10 4 Jeremy Bentham' 05 and John Austin. 106 Bentham and Austin conceived of law as a science, 107 consisting of concrete principles that could be "ordered and reordered 'scientifically."' 0 8 Elizabeth Mensch describes their work as a process of abstraction and an expression of the increasingly rational thought of the times: The nineteenth century's process of legal rationalization resulted in the abstraction of law from both particularized social relations and substantive moral standards. By the "rule of law" classical jurists meant quite specifically a structure of positivised, objective, formally defined rights.' 0 9 Positivism superseded natural law as the culture of Europe took a more rationalistic, modernist turn. 110 The Eurocentric mind"urge set demanded a positive concept of law. It was the European 112 '1 law. positive produced that closure"" and coherence for unity, The results were devastating. Where natural law theory imposed limits on the exercise of power, positive law embraced power. 113 Slavery, colonialism and racial genocide had been justified under natural law as well 1 4 (Europeans believed their contific nature of positivism). 103. See LLOYD, supra note 88, at 95-115 (discussing legal positivism, past and present, in relation to physical law-law as it is-and normative law-law as it should be; also discussing the science of law). 104. DAVID HUME, A TREATISE OF HUMAN NATURE (J.M. Dent & Sons, Ltd., 1977) (1911). 105. JEREMY BENTHAM, AN INTRODUCTION TO THE PRINCIPLES OF MORALS AND LEGISLATION (J.H. Burns & H.L.A. Hart eds., 1970). 106. AUSTIN, supra note 99. 107. LLOYD, supra note 88, at 100. 108. Nunn, supra note 102, at 753. 109. Mensch, supra note 2, at 23. 110. According to Habermas: The project of modernity formulated in the 18th century by the philosophers of the Enlightenment consisted in their efforts to develop objective science, universal morality and law, and autonomous art according to their inner logic. Jiurgen Habermas, Modernity-An Incomplete Project, in THE ANTI-AESTHETIC: ESSAYS ON POSTMODERN CULTURE 3, 9 (Hal Foster ed., 1985). 111. DOUZINAS ET AL., supra note 87, at 24. 112. Cf.Thomas C. Grey, Holmes and Legal Pragmatism,41 STAN. L. REV. 787, 807-08 (1989) (arguing that European scholars' quest for reason and order led to the "codifying jurisprudence of the Enlightenment"). 113. See DOUZINAS ET AL., supra note 87, at 24-28. 114. As one legal scholar has observed, natural law jurisprudence has had a checkered past: During its long usage in legal and political scholarship, natural law has been widely invoked, including application in favor of and against slavery, 50 Law and Inequality [Vol. 15:323 quest and subjugation of other races was natural). Still, the avenue remained open to contest the legal system on the grounds of a more enlightened understanding of the natural order. Positivism removed that possibility. Positivism conveyed the message that "actual power relations in the real world are by definition legitimate." 115 Douzinas, Warrington and McVeigh put the power/law equation this way: Dominant jurisprudence has always linked its claims to unity with the legitimation of power. Power is legitimate if it follows the law, nonos, and if notnos follows logos, reason.... Legitimate power is identified exclusively with legally exerof power and power should be cised power. Law is the form 1 6 exercised in the form of law. 1 Positivism's affirmation of power has been challenged during the twentieth century by various groups of critics within the European tradition. 117 The resulting alternatives to positivism can be grouped under the heading of "law-in-context" theories. 118 Law-incontext theories include legal realism, 119 sociology of law120 and literary and postmodernist interpretations. 121 What this eclectic mix and to "prove" the inferiority of blacks. Both the 1850 Kentucky Constitution and the 1857 Kansas Constitution declared the right to own slaves "before and higher than any other constitutional sanction." William Wayne Justice, The New Awakening. JudicialActivism in a Conservative Age, 43 Sw. L.J. 657, 662 (1989) (citations omitted). See also John Hart Ely, Forward: On Discovering Fundamental Values, 92 HARV. L. REV. 5, 28 (1978) (pointing out how in the past natural law "proved' the inferiority of blacks"). 115. Mensch, supra note 2, at 21 (emphasis added). Following the arrival of positivism, legal concepts could no longer be challenged on the basis of an appeal to morality. 116. DOUZINAS ET AL., supra note 87, at 27. 117. See generally Mensch, supra note 2, at 26-37; Minda, supra note 3, at 353 (giving a historical account of legal modernism). 118. DOUZINAS ET AL., supra note 87, at 20. 119. Legal realism asserts judicial decisions were ultimately based on policy decisions and not objectively derived rules. See Edward A. Purcell, Jr., American JurisprudenceBetween the Wars: Legal Realism and the Crisis of Democratic Theory, in AMERICAN LAW AND THE CONSTITUTIONAL ORDER 359, 361 (Lawrence M. Friedman & Harry N. Scheiber eds., 1988). See also Mensch, supra note 2, at 24 ("[The realists claimed that... [tihere was no such thing as an objective legal methodology behind which judges could hide in order to evade responsibility for the social consequences of legal decision making."). 120. The sociology of law treats law's role as a social institution-it examines how law and legal structures affect people and other social institutions. See Alexander Somek, From Kennedy to Balkin: Introducing CriticalLegal Studies from a Continental Perspective, 42 U. KAN. L. REV. 759, 766 (1994) (sociology of law "explain[s] the role and function of law in modern societies"); Frank Munger, Sociology of Law for a PostliberalSociety, 27 LOY. L.A. L. REV. 89 (1993) (listing research agenda for a sociology of law). 121. Postmodernist interpretations of the law embrace postmodernist/poststructuralist philosophies and criticalldeconstructionist methodologies to shape a jurisprudence that is decentered, contingent, counter-theoretical and anti- 51 1997] EUROCENTRIC ENTERPRISE of theories share is the claim that law is a product of society and not something separate and distinct from it.122 Law-in-context theories attacked the positivist claim that the course of the law was a matter of internal logic and not a matter of external power 123 relationships. Law-in-context theories, however, occupy only a marginal position in European jurisprudence. 124 Although intellectually persuasive, they have not won the day because they conflict with the dominant cultural impulses in Eurocentric society. 25 Eurocentric law retains a "mythic" 126 quality that helps it maintain its "purity and autonomy"' 27 no matter what caliber the intellectual or ideological assault. 28 Like all myths, Eurocentric law plays a constitutive role in the organization of society, 29 conferring validity "only authoritarian. See DOUZINAS ET AL., supra note 87, at 28. 122. See id. at 20. See also FITZPATRICK, supra note 94, at 6-7. Douzinas, Warrington and McVeigh would include law and economics in their list of law-incontext theories on the grounds that it too is concerned with the "claim that legal norms are causally linked with empirically observed phenomena," DOUZINAS ET AL., supra note 87, at 20, a position which overlooks the extreme rationalism and abstraction characteristic of law and economic approaches. For like reasons, Douzinas, Warrington and McVeigh would exclude postmodernist interpretations, since these reject the possibility of an objective reality, which are observable through scientific exploration. Id. at 20, 28. 123. See Mensch, supra note 2, at 23-24. 124. See id. at 26 ("[The] basic [positivist] model, although in bankrupt form, is with us still, despite the realist challenge that demolished all its premises."); FITZPATRICK, supra note 94, at 3 ("Numerous, seemingly devastating assaults on [legal positivism] have failed fundamentally to alter it."). 125. For a good discussion of the way that cultures promote some ideas and reject others, see BLAUT, supra note 5, at 31-41 and ANI, supra note 7, at 12-14. Blaut describes how culture works to "validate" certain beliefs. BLAUT, supra note 5, at 34-37. Basically, belief systems held within a culture must be compatible, that is, "not cognitively or culturally dissonant." Id. at 35. New beliefs must also be compatible with pre-existing notions in order to gain acceptance. "[A] new idea, a candidate belief, tends to be judged more on the basis of the way it fits into the existing belief system than on the basis of its directly apprehended meaning." Id. at 37. Thus, culture works to protect beliefs already held in the culture and reproduce those beliefs in subsequent generations of scholarship and intellectual production. Blaut also points out that the beliefs held in a given society must conform to that culture's shared values: "[T]he dominant belief system for a group must in the long run conform to the value system, and when the two fall out of conformality, one or the other will be forced to change." Id. at 38. Ani describes how a culture's "asili"serves as the organizing principle for the culture's development. ANI, supra note 7, at 11-12. The "asili""acts as a screen, incorporating or rejecting innovations depending on their compatibility with its own essential nature." Id. at 12. For a portrayal of the process of cultural standardization brought about by the "asili,"see supra note 79. 126. FITZPATRICK, supra note 94, at 143-45. 127. Id. 128. Id. 129. See RICHARD SLOTKIN, REGENERATION THROUGH VIOLENCE: THE MY- 52 Law and Inequality [Vol. 15:323 on that which comes from the centre."' 30 So far, this discussion has focused on academic approaches to the question "what is the law?" A growing number of legal commentators, however, have recognized the importance of popular conceptions of the law as well. 131 Positivism has impacted not only isolated academic circles, but it has also profoundly colonized popular thought. 132 Most ordinary citizens in the United States believe that the law is a "thing" out there, a corpus of rules, with the ability to influence their lives. 133 Many first-year law students, with their lay attitudes yet intact, expect their legal education to reveal how to manipulate this self-referential body of rules and are extremely impatient with any suggestion that the rules may be socially constructed or the result of policy choices. 3 4 Most laypersons believe that "law" and "morality" are separate concepts, except that there is a general moral obligation to obey the law. 135 In short, the popular conception of the law very closely approximates that of 136 positivist law. Taking both lay attitudes and academic approaches to jurisprudence into account, there is a coherent, dominant European perspective on the law. The remaining part of this discussion exdemonstrates how this mainstream European approach to law 13 7 hibits the cultural traits previously identified as Eurocentric. THOLOGY OF THE AMERICAN FRONTIER, 1600-1860, at 6-14 (1973) ('Myth describes a process... [that] provides a scenario or prescription for action, defining and limiting the possibilities for human response to the universe."). 130. FITZPATRICK, supra note 94, at 145. 131. See, e.g., Macaulay, supra note 3, at 185; Symposium: Popular Legal Culture, supra note 3. 132. See infra note 133 and accompanying text. 133. See Austin Sarat, Studying American Legal Culture: An Assessment of Survey Evidence, 11 L. & SOC'Y REV. 427, 452-53 (1976) (claiming most Americans are socialized to view law as a system of rules from an early age); Silas Wasserstrom, The Empire's New Clothes, 75 GEO. L.J. 199, 225-27 (1986) (book review) (asserting "positivism takes up the layman's plain fact view of the law"). 134. I base this statement on my own personal experience teaching criminal law to first-year law students at the University of Florida. 135. See Sarat, supra note 133, at 453, 457 (reporting a complex, mature view of law that distinguishes legal rules from moral principles and general compliance with norm of law abidingness). 136. See John Hasnas, The Myth of the Rule of Law, 1995 WIS. L. REV. 199, 200 (observing that people commonly regard "the law as a body of definite, politically neutral rules amenable to an impartial application which all citizens have a moral obligation to obey"); Wasserstrom, supra note 133, at 225-27. 137. See supra Part I (explaining the concept of Eurocentricity and how it affects the law). 53 1997]j EUROCENTRIC ENTERPRISE B. The Eurocentric Characterof the Law Dichotomous reasoning is a trait of Eurocentricity. 138 Not only are the usual dichotomies found within the law, 139 but the law itself is one half of a larger dichotomy. Law is set in opposition to "custom," which is then deemed inferior 140 since it is produced by habit and not reason.' 4 ' Although European societies have their customs, they are thought to be superior to non-European societies, which do not have law, at least not in the European sense of the word. The absence of law in non-Western societies implies the absence of reason. While Western "law" is for the civilized, nonWestern "custom" is for "savages" and "brutes."'142 Thus, dichotomy is central to the mythology of modern law. To quote Peter Fitzpatrick: [Miodern law emerges, in a negative exaltation, as universal in opposition to the particular, as unified in opposition to the diverse, as omnicompetent in contrast to the incompetent, and as controlling of what has to be controlled....Law is imbued with this negative transcendence in its own myth of origin who conwhere it is imperiously set against 143 certain "others" centrate the qualities it opposes. The hierarchical structuring 4 4 of the law is readily apparent. Hierarchy is inherent in the very notion of positive law, which views law as a command from a superior to its inferiors. 145 But both positive and natural law 146 have order as their first principle. 147 In the Eurocentric mind, law is equal to order.148 Conse138. See supra notes 42-48 and accompanying text (explaining dichotomous reasoning and its utilization by European culture). 139. These dichotomies include right-wrong, private-public, etc. See Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685, 1685-86 (1976) (describing uses of dichotomies in legal reasoning). 140. See supra notes 49-54 and accompanying text (explaining how Eurocentric reasoning applies hierarchical thinking to dichotomies, valuing one thing to the complete exclusion of its opposite). 141. See FITZPATRICK, supra note 94, at 60 (describing how customs were historically regarded as brutish during the development of the law). 142. Id. "Custom becomes reduced to a peripheral category set in opposition to law through its association with the savage and with those small-scale remnants of a recalcitrant past yet to be transformed in modernity." Id. 143. Id. at 10. 144. See supra notes 49-54 and accompanying text (explaining how Eurocentric thinking employs hierarchical reasoning). 145. See supra note 99 and accompanying text (explaining that under positivism, law is considered the command of the sovereign). 146. See supra notes 92-93 and accompanying text (explaining natural law as a part of an "ordered and structured universe"). 147. See FITZPATRICK, supra note 94, at 52 ("Nature has laws that are not orders but simply order."). 148. See id. at 58 (discussing how equating law with order leads to settling con- 54 Law and Inequality [Vol. 15:323 quently, law takes on a transcendent quality-it exists outside of and within the hierarchy it establishes. 149 There can be no order outside of the law, and law's order is imposed from the top down. Analytic reasoning' 50 and extreme rational thought is also a key part of the law. This can be seen in the way in which court decisions are rendered in the form of some seemingly neutral test. 1 1 For example, in Shaw v. Reno,152 the Supreme Court upheld the challenge of a white voter to North Carolina's legislative redistricting plan on the grounds that the plan violated his equal protection rights. 15 3 The Court held that the majority Black electoral district was a constitutionally impermissible classification on the basis of race by applying a three-part test. 154 The Court asked whether the state's concentration of a dispersed minority population in a single district disregarded traditional districting principles including: (1) "compactness," (2) "contiguity" and (3) "respect 155 for political subdivisions."' In Shaw, it was the Court's reference to an abstracted and allegedly neutral test that enabled it to pick its way through the thickets of racial politics and determine that the North Carolina legislature's attempt to increase African American political representation was presumptively unconstitutional. The Court, in an opinion by Justice O'Connor, stated, "We emphasize that these criteria are important not because they are constitutionally required-they are not-but because they are objective factors that may serve to defeat a claim that a district has been gerrymandered 15 6 on racial lines."' Here the Court privileges objectivity, as such, over subjectivity. The Court, however, fails to establish any connection between flicts in society through legal prescriptions). 149. Id. at 56. 150. See supra notes 55-59 and accompanying text (explaining analytic reasoning and showing how it is privileged in Eurocentric thought). 151. The supposed neutrality of the law has been particularly costly in cases dealing with racial disparities, a point strongly made by the "colorblindness critique" of critical race theory. See generally Nunn, supra note 20, at 70-81 (discussing colorblindness and the colorblindness critique). Critical race theorists argue that race-neutral or colorblind jurisprudence masks racism and makes it impossible to correct racial injustices. Id. 152. 509 U.S. 630 (1993). 153. The plan was submitted under the Voting Rights Act of 1965, which was intended to increase the level of Black and other minority representation in national and state representative bodies. See Scott Gluck, CongressionalReaction to Judicial Construction of Section 5 of the Voting Rights Act of 1965, 29 COLUM. J.L. & SOC. PROBS. 337, 344-45 (1996). 154. 509 U.S. at 647. 155. Id. 156. Id. (emphasis added) (citation omitted). 55 1997] EUROCENTRIC ENTERPRISE the objective nature of the factors it has chosen and the capability of those factors to illuminate whether a district has been gerrymandered on racial grounds. 157 It seems the Court would have accomplished more if it had simply asked the central question posed in the case: 'What role did race play in the decision to create this district?" But such a straightforward approach would not be recognizable as "legal." The objectification 158 of the law is evident in the way that it is possible to talk about the law as an active force or separate and autonomous entity in Western societies. This gives rise to the mistaken belief that there is no law in non-Western societies. 159 In fact there is law, it is simply not objectified to the degree one finds in the West. In African societies the law is understood as part of the seamless web that binds the community together. 160 It is inconceivable to think of the law as an object, separate and distinct from custom, culture and morality. 16 1 Eurocentricity, however, insists on "the elevation of 'the objects' in a sense encompassing not just a separate material thing but also a distinct constellation of 162 action, such as law."' 157. See Pamela S. Karlan, Still Hazy After All These Years: Voting Rights in the Post-Shaw Era, 26 CUMB. L. REV. 287 (1995-96). Professor Karlan notes that "the irregularity of a district's shape may in fact be powerful evidence that racial considerations, while undoubtedly present were subordinated to other values." Id. at 288. See also Andrew J. Clarkowski, Shaw v. Reno and Formal DistrictingCriteria: A Short History of a Jurisprudence that Failed in Wisconsin, 1995 WIS. L. REV. 271, 272 (criticizing rigidity and formalism in Shaw's districting standards). 158. See supranotes 60-63 (explaining objectification as a Eurocentric cultural trait). 159. See Akin Ibidapo-Obe, The Dilemma of African Criminal Law: Tradition versus Modernity, 19 S.U. L. REV. 327, 327 (1992) (noting that "spirited attempts have been made by all manner of social, legal, political philosophers and theorists to posit that law... is an exclusive preserve of certain cultures, geographical areas, or, (to adopt their hackneyed phraseology) 'civilization' of the world"). 160. Id. at 352. See also Max Gluckman, Natural Justice in Africa, 9 NAT. L.F. 25 (1964), reprinted in COMPARATIVE LEGAL CULTURES 173, 179-82 (Csaba Varga ed., 1992) (explaining that seemingly conflicting decisions by traditional African judges are reflective of generally held societal values and not an internally consistent and autonomous body of rules). 161. In traditional African societies, law is not a distinct, separate entity, but "part of religious consciousness" and the culturally-based belief system. IbidapoObe, supra note 159, at 352. Africans believe the spiritual world is connected to and can influence the material world. Id. at 341. This belief in the influence and power of the ancestors and gods generates respect for, and obedience to, the law. Id. at 352. For other descriptions of traditional African legal concepts, see JAHN, supra note 1, at 114-17; DICKSON A. MUNGAZI, GATHERING UNDER THE MANGO TREE: VALUES IN TRADITIONAL CULTURE IN AFRICA 106-08 (1996); J. F. Holleman, Disparities and Uncertainties in African Law and Judicial Authority: A Rhodesian Case Study, 17 AFR. L. STUD. 1 (1979). 162. FITZPATRICK, supra note 94, at 48. See also id. at 107 (describing law as 56 Law and Inequality [Vol. 15:323 Consequently, to legalize is to objectify. From there it is a short step to abstraction. 163 Human cooperation, for example, is objectified in the law of contract. Once objectified, the legal document-the contract-becomes the reality. The contract takes sig16 4 nificance over the social relationships it supposedly represents. It replaces those relationships in the eyes of the court and becomes 1 65 Althe sole or primary basis for the disposition of the case. though there is some room for the "intent of the parties" in contractual interpretation, its influence is limited to mediating between the language on the face of the contract and the underlying 66 rules of contract.1 Another example of the prevalence of abstraction within the in the wide-spread use of such concepts as law may be found "consideration"'' 67 in contracts or "reasonable doubt"'168 in criminal law. The common law itself is an abstraction. It results from the restatement of Anglo-Saxon customs in the opinions of English courts. Once so recorded, what was formerly custom is trans"unitary universal object"). 163. See Mensch, supra note 2, at 23 (describing the nineteenth centruy movement of objectification to "higher and higher levels of rationalization and generalization"). See also J.C. Smith, The Unique Nature of the Concepts of Western Law, 46 CANADIAN B. REV. 191 (1968), reprinted in COMPARATIVE LEGAL CULTURES, supra note 160, at 3-4 (describing most legal concepts as abstractions or constructs having "no existence in the empirical world"). See supra notes 64-68 and accompanying text (discussing abstraction as a Eurocentric cultural trait). 164. See Mensch, supra note 2, at 24-25. 165. Id. 166. Id. As Mensch notes, the actual intent of the parties was further abstracted in the 19th century, through the technique of "implied intent." Id. at 22. She states, 'The emphasis on implied intent did not, however, necessarily evidence concern with the actual, subjective intent of individual parties; instead, it represented a fusion of subjective intent with socially imposed duty." Id. 167. "Consideration" is an abstraction. It represents a tangible, economic benefit that must be exchanged before a promise, or contract, may be held to be valid. Peter Gabel & Jay M. Feinman, Contract Law as Ideology, in THE POLITICS OF LAW, supra note 2, at 172, 177. The promise of a gift, since it lacks consideration, is not enforceable at law. Id. 168. "Reasonable doubt" is the standard of proof ordinarily required in criminal cases. See In re Winship, 397 U.S. 358, 361 (1970). Reasonable doubt represents an idea so abstract that it seemingly resists definition. See Victor v. Nebraska, 114 S. Ct. 1239, 1242 (1994) ("Although [the reasonable doubt] standard is an ancient and honored aspect of our criminal justice system, it defies easy explication."). A common definition of "reasonable doubt" describes it as "that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge." Id. at 1244. The vagueness of this definition has led some courts to disdain instruction on reasonable doubt at all. See Nunn, supra note 102, at 797 n.285. The problem that bedevils courts in their unsuccessful attempts to define reasonable doubt is that they have stubbornly sought to make an objective concept out of an idea that is, in fact, subjective. 57 1997] EUROCENTRIC ENTERPRISE formed into a "transcendent entity"-positive law-"operating and elaborated in officially contained systems which are incompatible 9 with custom, although.., some custom-like modalities, survive."16 So, instead of referring directly to custom, common law jurists refer to something derived from it, an abstraction of it. As law relies on abstraction, it also privileges complexity. Complexity and abstraction go hand in hand. 170 The transformation of English custom into the common law required a new professional class to navigate its complexity.' 71 Indeed, "[it was the extraordinary technicality of the common law that provided lawyers with their claim to expertise and served, by its very artificiality, to distinguish legal reasoning from the "common-sense" reason 72 of the general populace."' Anyone who has ever looked at a law treatise cannot help but be impressed with the complexity of European-centered law. There are sections upon sections in any of the great multi-volumes works, such as Wigmore's Evidence. 173 This complexity is the direct result of the Eurocentric desire to abstract, to rationalize and to objectify. Finally, Eurocentric law is despiritualized and secular. 174 In fact, European positive law was impossible to conceptualize until God had been banished from the material world. 175 The creation of the Eurocentric concept of law was itself a process of desacralization. 176 God was no longer necessary to legitimate post-Enlightenment law: Enlightenment replaces God with nature. In terms of the origin myths of modern science, the deific obstacle to humanity's progress in knowledge is eliminated, constraining superstition gives way to incandescent truth, man unaided at last dares to 177 know, and so on. The development of the law followed this general account of the 169. See FITZPATRICK, supra note 94, at 61. 170. As a system grows more complex, the need to employ abstractions to make sense of it increases, as well. 171. See Mensch, supra note 2, at 21. 172. Id. 173. JOHN H. WIGMORE, EVIDENCE IN TRIALs AT COMMON LAW (James H. Chadbourn ed., rev. ed. 1974). 174. See supra notes 72-75 (explaining "desacralization" and describing it as a trait of the Eurocentric mind-set). 175. See supra notes 99-102 and accompanying text (describing how positive law replaced reliance on God with reliance on logic). 176. See supra notes 92-95 and accompanying text (describing the process of separating law from the divine). 177. See FITZPATRICK, supra note 94, at 51. 58 Law and Inequality [Vol. 15:323 growth of European science. Positive law was viewed as a science, as the application of rational "laws" of jurisprudence. 178 In the post-Enlightenment mind, divinity was as subject to these laws as it was to the laws of physics. 179 Thus, God became "captured by 18 1 'his' creation"'180 and positive law and reason reigned supreme. Consequently, there are no bounds on the Eurocentric rational will. European Man can do what he wants with his law. Within his world, there is no higher authority than that of the law, which is his own creation. With the creation of the law, the European male has become a self-policing entity--one that need answer 182 to no other. Thus far, this Article has demonstrated that what has come to be known as "the law" in Western societies is really a particular social construction that exhibits cultural attributes peculiar to European and European-derived societies. Law is an artifact of a Eurocentric culture, and as such it reflects the cultural logic, epistemology, axiology, ontology, ethos and aesthetic choice of Eurocentric culture. 183 The core attributes of Eurocentricity are readily discernible within the law. But law not only reflects the 178. See supra notes 107-08 and accompanying text (explaining how "European theorists conceived of the law as a science"). 179. See FITZPATRICK, supra note 94, at 52. 180. Id. 181. Fitzpatrick argues convincingly that the desacralization of the law is not entirely complete. The law, in his view, is quasi-religious, since "the characters of God are preserved within [the] law itself." Id. at 62. According to Fitzpatrick, law takes on a mythic character, offering itself as the legitimate successor to God and assimilating God's former power and authority to itself. Id. at 54-63. Of course, law cannot totally cut itself off from divinity. To do so would undercut its legitimacy. See David M. Frankford, The CriticalPotentialof the Comnmon Law Tradition, 94 COLuM. L. REV. 1076, 1078 (1994) (book review) (depicting the history of Western jurisprudence as a search for "a unitary and unifying source of constrained political authority to replace theocracy" that would justify obedience to the law). 182. See TEDLA, supra note 24, at 83 (noting that as Creator "recedes into the background" in Western liberal thought, individuals are free to "act based on their own self-interest"); MUNGAZI, supra note 161, at 106-07 (criticizing law's divorce from morality in the West). 183. In an article arguing for the payment of reparations to African Americans for centuries of slavery and economic exploitation, Professor Verdun shows how Western individualism shapes European notions of the law. Vincene Verdun, If the Shoe Fits, Wear It: An Analysis of Reparationsto African Americans, 67 TUL. L. REV. 597, 600 (1993). She uses tort law as an example: The law of torts provides an excellent example of how the law evolves to reflect the values of the dominant group. In a typical tort action a tortfeasor commits an act that causes an injury, and the tortfeasor becomes responsible to the injured party. Individualism, the big "I," is pervasive in this scheme of liability. The liability premise is simply stated: If "' did not do anything wrong, than "I" should not have to pay for the wrong. Id. at 620. 59 EUROCENTRIC ENTERPRISE 1997] character of Eurocentricity, it carries out the functions of Eurocentricity as well. Law organizes society, and indeed the world, in ways that make it easier for Eurocentric culture to assert its dominance. III. Law, Hegemony and Control Law contributes to Eurocentric hegemony in three concrete ways. First, law "controls the beast" by organizing and directing white institutions and cultural practices. Second, law "polices" white culture. That is, law operates to help determine which ideas and practices are valued in Eurocentric culture and which can be identified as "threats" subject to the use of coercion or force. Third, law works to legitimate white institutions and practices by helping to place the imprimatur of universality on European practices and champion the desirability and inevitability of white dominance. The first two claims, which are fairly straightforward, are discussed in this section. The third claim requires greater explanation and is discussed in Part IV. A. Law as a EurocentricSystem of Control Law functions as the central nervous system of a vast body of 84 social and economic regulation. It is the command and control' mechanism for the modern state and the means through which new enterprises and activities are designed and implemented. 185 184. See Eric W. Orts, Reflexive Environmental Law, 89 NW. U. L. REV. 1227, 1235-41 (1995) (discussing the use of the law to effect command and control strategies of environmental regulation). 185. Max Weber and others refer to this aspect of legal functioning as "substantive law." Id. at 1254-55. According to the Weberian school of thought, "[slubstantive law is used instrumentally for purposive, goal-oriented intervention." Id. at 1256 (citation omitted). Substantive law is opposed, in this scheme, to "formal law," which has no specific goal, but merely moderates disputes between private parties. Id. at 1255. For my purposes this distinction is meaningless. In both instances, law is being used to create a structure of order, whether private or public, that follows Eurocentric principles. Professor Margaret Jane Radin puts the matter more succinctly when she states, "[there] is indeed an instrumental conception of the Rule of Law, which could more colloquially be called 'how to do things with rules."' Margaret Jane Radin, Reconsidering the Rule of Law, 69 B.U. L. REV. 781, 786 (1989). Dennis Lloyd calls this penchant for doing things with rules the creative element in the law. LLOYD, supranote 88, at 288-93. He points out that the effects of instrumental applications of the law can be sweeping: A good many fundamental legal concepts are to a large extent legal creations of their own right with a vitality of their own, which may set off a chain of social and economic reactions much more far-reaching than the initial social impulses which have assisted at the birth of those concepts. Id. at 291. Lloyd points to legal institutions such as the trust and the corporation as examples of this kind of influential legal concept. Id. at 291-92. 60 Law and Inequality [Vol. 15:323 This instrumental function of the law is often overemphasized, 86 but its importance should not be overlooked in the rush to present new interpretations of law's role in society. 187 What law does in this instrumental function is order the world around us. It gives us the illusion of structure and provides a means of control. Of course, the form of this structure will be determined by the cultural determinates-the asil8&---of the society that makes the law. Robert Gordon explains this in a way that is heavily weighted with Eurocentric assumptions: "Law" is just one among many such systems of meaning that people construct in order to deal with one of the most threatening aspects of social existence: the danger posed by other people, whose cooperation is indispensable to us... but who may kill us or enslave us. It seems essential to have a system to sort out positive interactions.., from negative ones.... In the West, legal belief-structures, together with economic and political ones, have been constructed to accomplish this sorting out. The systems, of course, have been built by elites who have... tended to define rights in such a way as to reinforce existing hierarchies of wealth and privilege. 8 9 Law was used at each step in the conquest and enslavement of African and other native peoples. 190 Nothing was done without 186. The critique of instrumentalism in the law has become something of a cottage industry. See ROBERTO M. UNGER, THE CRITICAL LEGAL STUDIES MOVEMENT 3-4 (1986) ("If the criticism of formalism and objectivism is the first characteristic theme of leftist movements in modern legal thought, the purely instrumental use of legal practice and legal doctrine to advance leftist aims is the second."). For a summary of the weaknesses that have been uncovered in instrumental accounts of the law, see Robert W. Gordon, New Developments in Legal Theory, in THE POLITICS OF LAW, supra note 2, at 284-86. 187. Peter Gabel and Jay Feinman fall into this trap. In an essay on contract law, they reject instrumental analyses "which suggest that particular rules of law or particular results "helped" capitalists by providing a framework for legal enforcement of market activity." Gabel & Feinman, supra note 167, at 181. "The law," they argue, "does not enforce anything.... Its purpose is to justify practical norms." Id. In their view: "Social processes like 'free-market capitalism' do not get 'enforced' by 'laws.' Rather, these processes are accepted through social conditioning, through the collective internalization of practical norms that have their foundation in concrete socioeconomic reality." Id. The viewpoint advocated by Gabel and Feinman is in many ways typical of the view of many adherents of critical and postmodernist schools of thought in the legal academy. See Minda, supra note 3, at 353, 367-73, 383 (discussing the postmodern critique of modern legalism). It is, however, a gross oversimplification of the role of law in the service of the st