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Citation: 22 Harv. C.R.-C.L. L. Rev. 401 1987
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ALCHEMICAL NOTES: RECONSTRUCTING IDEALS
FROM DECONSTRUCTED RIGHTS
PatriciaJ. Williams*
I. A Bit of CLS Mythodology
THE BRASS RING AND THE DEEP BLUE SEA
A. The Meta-Story
Once upon a time, there was a society of priests who built
a CelestialCity whose gates were secured by Word-Combination
locks. The priests were masters of the Word, and, within the
City, ascending levels of power and treasure became accessible
to those who could learn ascendingly intricate levels of Word
Magic. At the very top level, the priests became gods; and
because they then had nothing left to seek, they engaged in
games with which to pass the long hours of eternity. In particular, they liked to ride their strong, sure-footed steeds, around
and aroundthe perimeter of heaven: now jumping word-hurdles,
now playing polo with the concepts of the moon and of the
stars, now reaching up to touch that pinnacle, that fragment,
that splinter of Refined Understandingwhich was called Superstanding, the brass ring of their merry-go-round.
In time, some of the priests-turned-godstired of this sport,
denounced it as meaningless. They donned the garb ofpilgrims,
seekers once more, andpassedbeyond the gates of the Celestial
City. In this recursive passage, they acquired the knowledge of
Undoing Words.
Beyond the walls of the City lay a Deep Blue Sea. The
priests built themselves small boats and set sail, determined to
explore the uncharted courses, the open vistas of this new and
undefined domain. They wanderedfor many years in this manner, until at last they reached a place that was half-a-circum* Associate Professor of Law, CUNY Law School at Queens College. I am deeply
indebted to the following people: my sister Carol Williams, whose research into our
family's history gave me the idea for this piece; Richard Delgado, whose enthusiasm
kept me going; the uniquely wonderful community of CUNY, past and present, faculty,
students and staff; and, of course, Derrick and Jewell Bell, teachers, friends and
inspiration to the many of us who are their students.
HeinOnline -- 22 Harv. C.R.-C.L. L. Rev. 401 1987
402
Harvard Civil Rights-Civil Liberties Law Review
[Vol. 22
ference away from the Celestial City. From this point, the City
appearedas a mere shimmering illusion; and the priests knew
that at last they had reached a place which was Beyond the
Power of Words. They let down their anchors, the plumb lines
of their reality, and experienced godhood once more.
B. The Story
Under the CelestialCity, dying mortals called out their rage
and suffering, batteredby a steady rain of sharp hooves whose
thundering, sound-drowning path described the wheel of their
misfortune.
At the bottom of the Deep Blue Sea, drowning mortals
reached silently and desperately for drifting anchors dangling
from short chains far, far overhead, which they thought were
life-lines meant for them.
I wrote "The Brass Ring and The Deep Blue Sea" in response to a friend who asked me what Critical Legal Studies
was really all about; the Meta-Story was my impressionistic
attempt to explain. Then my friend asked me if there weren't
lots of blacks and minorities, organizers and grass-roots types
in an organization so diametrically removed from tradition. Her
question immediately called to mind'my first days on my first
job out of law school: armed with fresh degrees and shiny new
theories, I walked through the halls of the Los Angeles Criminal
and Civil Courthouses, from assigned courtroom to assigned
courtroom. The walls of every hall were lined with waiting
defendants and families of defendants, 1 almost all poor, Hispanic
and/or black. As I passed, they stretched out their arms and
asked me for my card; they asked me if I were a lawyer, they
called me "sister" and "counselor." The power of that memory
is fused with my concern about the disproportionately low grassroots membership in or input to CLS. CLS wields significant
power in shaping legal strategies which affect-literally from on
IFew plaintiffs ever seemed to wait around as much as defendants did. In part,
this was due to the fact that, in the courts in which I practiced, unlike, for example,.a
family court, the plaintiffs were largely invisible entities-like the state or a bank or a
corporate creditor-whose corporeal manifestations were their lawyers.
1987]
Minority Critique of CLS: Alchemical Notes
403
high-the poor and oppressed. The irony of that reproduced
power imbalance prompted me to complete "The Brass Ring
and the Deep Blue Sea" with the Story.
In my experience, most non-corporate clients looked to
lawyers almost as gods. They were frightened, pleading, dependent (and resentful of their dependence), trusting only for the
specific purpose of getting help (because they had no choice)
and distrustful in a global sense (again, because they most often
had no choice). Subservience is one way I have heard the phenomenon described (particularly by harried, well-meaning practitioners who would like to see their clients be more assertive,
more responsible, and more forthcoming), but actually I think
it's something much worse, and more complexly worse.
I think what I saw in the eyes of those who reached out to
me in the hallways of the courthouse was a profoundly accurate
sense of helplessness-a knowledge that without a sympathetically effective lawyer (whether judge, prosecutor or defense
attorney) they would be lining those halls and those of the lockup for a long time to come. I probably got more than my fair
share of outstretched arms because I was one of the few people
of color in the system at that time; but just about every lawyer
who has frequented the courthouse enough has had the experience of being cast as a saviour. I have always tried to take that
casting as a real request-not as a literal message that I am a
god, but as a rational demand that I work the very best of
whatever theory-magic I learned in law school on their behalves.
CLS has a good deal of powerful theory-magic of its own to
offer; but I think it has failed to make its words and un-words
tangible, reach-able and applicable to those in this society who
need its powerful assistance most.
In my Story, the client-mortals reached for help because
they needed help; in CLS, I have sometimes been left with the
sense that lawyers and clients engaged in the pursuit of "rights"
are viewed as foolish, "falsely conscious, ' 2 benighted, or misled. 3 Such an attitude indeed gives the courthouse scenario a
cast not just of subservience but of futility. More important, it
may keep CLS from reaching back; or, more ironically still,
2 A. Hyde, The Concept of Legitimation in the Sociology of Law, 1983 Wis. L.
Rev. 379, 397.
3 See, e.g., Gabel & Kennedy, Roll Over Beethoven, 36 Stan. L. Rev. 1 passim
(1984).
404
[Vol. 22
keep CLS reaching in the wrong direction, locked in refutation
of formalist legal scholarship.
The present paper is an attempt to detail my discomfort
with that part of CLS which rejects rights-based theory, particularly that part of the debate and critique which applies to the
black4 struggle for civil rights. There are many good reasons for
abandoning a system of rights which are premised on inequality
and helplessness; yet despite the acknowledged and compelling
force of such reasons, most blacks have not turned away from
the pursuit of rights even if what CLS scholars say about
rights-that they are contradictory, indeterminate, reified and
marginally decisive in social behavior 5 -is so. I think this has
happened because the so-called "governing narrative," 6 or metalanguage, 7 about the significance of rights is quite different for
whites and blacks. For most whites, including the mostly-white
elite of CLS, social relationships are colored by viewing
achievement as the function of committed self-control, of selfpossession. For blacks, including black lawyers, academics and
41 recognize that the categories of "black" and "white" do not begin to capture the
richness of ethnic and political diversity which the debate actually contains; I do believe,
however, that the simple matter of the color of one's skin so profoundly affects the way
one is treated, so radically shapes what one is allowed to think and feel about this
society, that the decision to generalize from this division is valid. Furthermore, I am at
a loss as to how succinctly to describe the specifically racial perspectives and history
which are my subject. "Disenfranchised" will not do, because part of my point is that
a purely class-based analysis does not comprehend the whole problem. I don't like the
word "minority" (although I use it) because it implies a certain delegitimacy in a
majoritarian system; and if one adds up all the shades of yellow, red and brown which
the term sweeps over, we are in fact not. "Oppressed persons" is rather more inclusive
than I really mean; it would have to include all victims of religious, ethnic and sexual
discrimination. I prefer, and use most frequently, the term "black" in order to accentuate
the unshaded monolithism of color itself as a social force.
5See Trubek, Where the Action Is: CriticalLegal Studies and Empiricism, 36 Stan.
L. Rev. 575, 578 (1984).
6 Governing narratives are "presiding fictions that allow us to behold ourselves and
make sense of the historical world, and by them the status of knowledge is affected in
intimate ways." Des Pres, On Governing Narratives:The Turkish-Armenian Case, 75
Yale Rev. 517, 517 (1986).
Metalanguage is the language:
used to talk about an object language and its component words. Thus if a
treatise on the Russian language is written in English, Russian is the object
language and English the metalanguage. If, however, we write about English
using English, then English is both object language and metalanguage. The
distinction between object language and metalanguage is entirely relative, since
what may be used as a metalanguage in one discussion may become the object
language in another.
A Dictionary of Philosophy 212 (A. Flew ed. 1979) (emphasis in original).
1987]
405
clients, on the other hand, relationships are frequently dominated by historical patterns of physical and psychic dispossession. In a semantic, as well as a substantive sense, then, I think
that CLS has ignored the degree to which rights-assertion and
the benefits of rights have helped blacks, other minorities, and
the poor.
I by no means want to idealize the importance of rights in
a legal system in which rights are so often selectively invoked
to draw boundaries, to isolate, and to limit. 8 At the same time,
it is very hard to watch the idealistic or symbolic importance of
rights being diminished with reference to the disenfranchised,
who experience and express their disempowerment as nothing
more or less than the denial of rights. 9 It is my belief that blacks
and whites do differ in the degree to which rights-assertion is
experienced as empowering or disempowering. The expression
of these differing experiences creates a discourse boundary,
reflecting complex and often contradictory societal understandings. 10 The remainder of this article attempts to show how that
8 Reconstruction cured most blacks of any idealization of property, authority and
diligence:
[Tihe Reverend Henry Highland Garnet, a veteran black abolitionist, assured
a gathering of freedmen, "The more money you make, the lighter your skin
will be. The more land and houses you get, the straighter your hair will be."
Even as they found their economic opportunities sharply curtailed, even as the
deepening agricultural depression of the post-Reconstruction years drove thousands off the land, southern blacks were asked to pay obeisance to the same
materialist deities, values, and goals that motivated the larger society. Success
came ultimately to the hardworking, the sober, the honest, and the educated,
to those who served their employers faithfully, who respected property and
the sanctity of contracts, who cultivated habits of thrift, cleanliness, and temperance, who led moral, virtuous, Christian lives.
In the experience of black southerners, such advice was as naive and
mistaken in its assumptions as it was persistent.
Litwack, "Blues Falling Down Like Hail": The Ordeal Of Black Freedom, in New
Perspectives on Race and Slavery in America, 109, 116 (R. Abzug & S. Maizlish, eds.
1986) (footnote omitted).
9 See D. Bell, Race, Racism and American Law, (2d ed. 1980); Bell, The Supreme
Court, 1984 Term-Foreword:The Civil Rights Chronicles, 99 Harv. L. Rev. 4 (1985);
Bell, Bakke, Minority Admissions, and the Usual Price of Racial Remedies, 67 Calif.
L. Rev. 3 (1979); Edley, Affirmative Action and the Rights Rhetoric Trap, 3 Harv.
Blackletter J. 9 (1986).
10In another context, such a discourse boundary has been described as follows:
[T]he women's movement has raised a fundamental question concerning everyone in complex systems: how communication is possible, how to communicate
with "another" without denying the difference by power relations. Beyond the
demand for equality, beyond the inclusion in the field of masculine rights,
women are yet speaking of the right to difference and to "otherness." That is
406
[Vol. 22
opposition arises. It is my hope that in redescribing the historical
alchemy of rights in black lives, the reader will experience some
reconnection with that part of the self and of society whose
story unfolds beyond the neatly-staked bounds of theoretical
legal understanding.
II. A Tale With Two Stories
A. Mini-Story (In Which Peter Gabel and I Set Out to Teach
Contracts in the Same Boat While Rowing in
Phenomenological Opposition)
Some time ago, Peter-Gabel" and I taught a contracts class
together. Both recent transplants from California to New York,
each of us hunted for apartments in between preparing for class
and ultimately found places within one week of each other.
Inevitably, I suppose, we got into a discussion of trust and
distrust as factors in bargain relations. It turned out that Peter
had handed over a $900 deposit, in cash, with no lease, no
exchange of keys and no receipt, to strangers with whom he
12
had no ties other than a few moments of pleasant conversation.
Peter said that he didn't need to sign a lease because it imposed
too much formality. The handshake and the good vibes were for
him indicators of trust more binding than a distancing form
contract. At the time, I told Peter I thought he was stark raving
mad, but his faith paid off. His sublessors showed up at the
appointed time, keys in hand, to welcome him in. Needless to
say, there was absolutely nothing in my experience to prepare
3
me for such a happy ending.l
I, meanwhile, had friends who found me an apartment in a
building they owned. In my rush to show good faith and trustwhy they sometimes choose silence, because it is difficult to find words other
than those of the dominant language.
Melucci, The Symbolic Challenge of ContemporaryMovements, 52 Soc. Res. 789, 811
(1985).
" Peter Gabel was one of the first to bring critical theory to legal analysis; as such
he is considered one of the "founders" of Critical Legal Studies.
12The people from whom Peter sublet did not want their landlord to know what
they were doing-a not uncommon feature of New York life; they told him they wanted
to minimize the "proof."
,"In fact, I remain convinced that, even if I were of a mind to trust a lessor with
this degree of informality, things would not have worked out so successfully for me;
many Manhattan lessors would not have trusted me, a black person, enough to let me
in the door in the first place-paperwork, references and credit check notwithstanding.
1987]
407
worthiness, I signed a detailed, lengthily-negotiated, finelyprinted lease firmly establishing me as the ideal arm's length
transactor.
As Peter and I discussed our experiences, I was struck by
the similarity of what each of us was seeking, yet in such different terms, and with such polar approaches. We both wanted
to establish enduring relationships with the people in whose
houses we would be living; we both wanted to enhance trust of
ourselves and to allow whatever closeness, whatever friendship,
was possible. This similarity of desire, however, could not reconcile our very different relations to the word of law. Peter, for
example, appeared to be extremely self-conscious of his power
potential (either real or imagistic) as a white or male or lawyer
authority figure. He therefore seemed to go to some lengths to
overcome the wall which that image might impose. The logical
ways of establishing some measure of trust between strangers
were for him an avoidance of conventional expressions of power
14
and a preference for informal processes generally.
I, on the other hand, was raised to be acutely conscious of
the likelihood that, no matter what degree of professional or
professor I became, people would greet and dismiss my black
femaleness as unreliable, untrustworthy, hostile, angry, powerless, irrational and probably destitute. 15 Futility and despair are
very real parts of my response. Thereforeit is helpful for me,
even essential for me, to clarify boundary; to show that I can
speak the language of lease is my way of enhancing trust of me
in my business affairs. As a black, I have been given by this
society a strong sense of myself as already too familiar, too
personal, too subordinate to white people. I have only recently
evolved from being treated as three-fifths of a human, 16 a sub'4
See generally Delgado, Dunn, Brown, Lee & Hubbert, Fairnessand Formality:
Minimizing the Risk of Prejudice in Alternative Dispute Resolution, 1985 Wis. L. Rev.
1359 [hereinafter Fairness and Formality].
15
Whatever else they learned in school, black children came to understand, as
their parents had, that their color marked them as inferior in the eyes of whites,
no matter how they conducted themselves. "We came to understand," a black
woman would recall of her youth, "that no matter how neat and clean, how
law-abiding, submissive and polite, how studious in school, how church-going
and moral, how scrupulous in paying our bills and taxes we were, it made no
essential difference in our place."
Litwack, supra note 8, at 118 (footnote omitted).
16 See U.S. Const. art. I, § 2.
408
[Vol. 22
part of the white estate. 17 I grew up in a neighborhood where
landlords would not sign leases with their poor, black tenants,
and demanded that rent be paid in cash; although superficially
resembling Peter's transaction, such "informality" in most
white-on-black situations signals distrust, not trust. Unlike Peter, I am still engaged in a struggle to set up transactions at
arms' length, as legitimately commercial, and to portray myself
as a bargainer of separate worth, distinct power, sufficient rights
to manipulate commerce, rather than to be manipulated as the
object of commerce.
Peter, I speculate, would say that a lease or any other
formal mechanism would introduce distrust into his relationships and that he would suffer alienation, leading to the commodification of his being and the degradation of his person to
property.' 8 In contrast, the lack of a formal relation to the other
would leave me estranged. It would risk a figurative isolation
from that creative commerce by which I may be recognized as
whole, with which I may feed and clothe and shelter myself, by
which I may be seen as equal--even if I am stranger. For me,
stranger-stranger relations are better than stranger-chattel.
B. Meta-Mini-Story (In Which I Reflect Upon My
Experiences With Peter, Climb to Celestial Heights While
Juggling the Vocabulary of Rights Discourse, and
Simultaneously Undo Not a Few Word-Combination Locks)
The unifying theme of Peter's and my experiences (assuming that my hypothesizing about Peter's end of things has any
17 As
opposed to being a real part of the white estate. The lease of which I speak
was for an apartment in Brooklyn; my search had started in Long Island, where two
realtors had refused even to show me apartments in Port Washington and Roslyn.
18Peter describes "the law" of formalized hierarchical social arrangements as deriving from "externalized" and "totemic source[s] of unification" in which
[e]ach person experiences his or her authentic being as a privatized non-self
that is denied recognition and that is therefore "invisible" or unconscious: it is
known or comprehended only through the experienced bodily tension that
derives from not being-oneself and through a continual obsessive and preconscious fantasy life that reaches a dim awareness in moments of distraction.
... The "visible" or conscious self that is enacted in behavior is experienced
as a "public" or "outer" synthesis of as-if performances which is at once lived
as passively undergone to the degree that it lacks any sense of its own agency
and yet is "owned" to the degree that each person feels this self as "I."
Gabel, The Bank Teller, 2 Tikkun 44, 48 (1987).
1987]
409
validity at all) is that one's sense of empowerment defines one's
relation to the law, in terms of trust-distrust, formality-informality, or rights-no rights (or "needs"). In saying this I am
acknowledging and affirming points central to CLS literature:
that rights may be unstable 9 and indeterminate.20 Despite this
recognition, however, and despite a mutual struggle to reconcile
freedom with alienation, and solidarity with oppression, Peter
and I found the expression of our social disillusionment lodged
on opposite sides of the rights/needs dichotomy.
On a semantic level, Peter's language of circumstantiallydefined need-of informality of solidarity, of overcoming distance-sounded dangerously like the language of oppression to
someone like me who was looking for freedom through the
establishment of identity, the form-ation of an autonomous social self. To Peter, I am sure, my insistence on the protective
distance which rights provide seemed abstract and alienated.
Similarly, while the goals of CLS and of the direct victims
of racism may be very much the same, what is too often missing
from CLS works is the acknowledgment that our experiences
of the same circumstances may be very, very different; the same
symbol2 1 may mean different things to each of us. At this level,
'9 "Can anyone seriously think that it helps either in changing society or in understanding how society changes to discuss whether [someone is] exercising rights pro-
tected by the First Amendment? It matters only whether they engaged in politically
effective action." Tushnet, An Essay on Rights, 62 Tex. L. Rev. 1363, 1370-71 (1984);
see also The Politics of Law: A Progressive Critique (D. Kairys ed. 1982); G. Frug,
The Ideology of Bureaucracy in American Law, 97 Harv. L. Rev. 1276 (1984); Gabel,
Reification in Legal Reasoning, 3 Res. in L. & Soc. 25 (1980); Gabel & Harris, Building
Power and Breaking Images: CriticalLegal Theory and the Practiceof Law, 11 N.Y.U.
Rev. L. & Soc. Change 369 (1982-83); Kennedy, The Structure of Blackstone's Commentaries, 28 Buff. L. Rev. 205 (1979); Kennedy, Form and Substance in PrivateLaw
Adjudication, 89 Harv. L. Rev. 1685 (1976).
20 See Tushnet, supra note 19, at 1375; see also Gordon, Historicism in Legal
Scholarship, 90 Yale L.J. 1017 (1981); Trubek, supra note 5; Unger, The CriticalLegal
Studies Movement, 96 Harv. L. Rev. 561 (1983).
21 1 mean "symbol" in a very straightforward sense. I mean it as well, however, in
its semiological sense:
A Symbol is a sign which refers to the Object that it denoted by virtue of a
law, usually an association of general ideas, which operates to cause the Symbol
to be interpreted as referring to that Object. It is thus itself a general type or
law, that is, a Legisign. As such it acts through a Replica. Not only is it general
itself, but the Object to which it refers is of a general nature.
Peirce, Logic as Semiotics: The Theory of Signs, in Semiotics 1, 8 (R. Innis ed. 1985)
(emphasis in original).
The word "sign," as it is used in linguistics, is a unit of meaning which joins a
concept and a sound-image, which joins idea and form--or, in more mystical words,
410
[Vol. 22
for example, the insistence of Mark Tushnet, Alan Freeman and
others 22 that the "needs" of the oppressed should be emphasized
rather than their "rights" amounts to no more than a word game.
It merely says that the choice has been made to put "needs" in
the mouth of a rights discourse-thus transforming "need" into
a new form of right. "Need" then joins "right" in the pantheon
of reified representations of what it is that you, I and we want
from ourselves and from society.
While rights may not be ends in themselves, it remains that
rights rhetoric has been and continues to be an effective form
of discourse for blacks. The vocabulary of rights speaks to an
establishment that values the guise of stability, and from whom
social change for the better must come (whether it is given,
taken or smuggled). Change argued for in the sheep's clothing
of stability (i.e., "rights") can be effective, even as it destabilizes
certain other establishment values (i.e., segregation). The subtlety of rights' real instability thus does not render unusable
their persona of stability.
What is needed, therefore, is not the abandonment of rights
language for all purposes, but an attempt to become multilingual
in the semantics of each others' rights-valuation. One summer
when I was about six, my family drove to Maine. The highway
was very straight and hot and shimmered darkly in the sun. My
sister and I sat in the back seat of the Studebaker and argued
about what color the road was. I said black. My sister said
purple. After I had successfully harangued her into admitting
that it was indeed black, my father gently pointed out that my
sister still saw it as purple. I was unimpressed with the relevance
of that at the time, but with the passage of years, and much
more observation, I have come to see endless overheated highways as slightly more purpley than black. My sister and I will
probably argue about the hue of life's roads forever. But, the
lesson I learned from listening to her wild perceptions is that it
which joins signified and signifier. "[Tihere is a tendency to interpret sign as signifier
[alone], whereas [sign) is a two-sided Janus-like entity [of both signifier and signifiedi."
R. Barthes, Elements of Semiology 39 (A. Lavers and C. Smith trans. 1964).
22 See Tushnet, supra note 19; Freeman, Legitimizing Racial Discrimination
Through Anti-DiscriminationLaw: A Critical Review of Supreme Court Doctrine, 62
Minn. L. Rev. 1049 (1978); see also D. Hay, P. Linebaugh, J. Rule, E. Thompson & C.
Winslow, Albion's Fatal Tree (1975).
1987]
411
really is possible to see things--even the most concrete thingssimultaneously yet differently; and that seeing simultaneously
yet differently is more easily done by two people than one; but
that one person can get the hang of it with lots of time and
effort.
.
In addition to our differing word usage, Peter and I had
qualitatively different experiences of rights. For example, for
me to understand fully the color my sister saw when she looked
at a road involved more than my simply knowing that her "purple" meant my "black." It required as well a certain "slippage
of perception" that came from my finally experiencing how
much her purple felt like my black:
Wittgenstein's experiments in some of the passages of
his Zettel teach us about multiple perception, ellipsis
and hinging, as well as about seeing and saying. He
speaks of "entering the picture," and indeed his tricks
try out our picture as our thought .... Ambivalence is
assumed. It is as if the imagination were suddenly to
be stretched: "Suppose someone were to say: 'Imagine
this butterfly exactly as it is, but ugly instead of beautiful'?!" The transfer we are called upon to make includes ... stretching not just of the imagination, but
of the transfer point:
. .
. "It is as if I were told: 'Here
is a chair. Can you see it clearly?-Good-now translate it into French!'"23
In Peter's and my case, such a complete transliteration of
each other's experiences is considerably harder to achieve. If it
took years for me to understand fully my own sister, probably
the best that Peter and I can do-as friends and colleagues, but
very different people-is to listen intently to each other so that
maybe our respective children can bridge the experiential distance. Bridging such gaps requires listening at a very deep level
to the uncensored voices of others. To me, therefore, one of
the most troubling positions advanced by some in CLS is that
of rights' actual disutility in political advancement. That position
seems to discount entirely the voice and the experiences of
73Caws, Literal or Liberal: Translating Perception, 13 Crit. Inq. 49, 55 (1986)
(citations omitted).
412
[Vol. 22
blacks in this country, for whom politically effective action has
occurred mainly in connection with asserting or extending
rights.
The CLS disutility argument is premised on the assumption
that rights' rigid systematizing may keep one at a permanent
distance from situations which could profit from closeness and
informality: "It is not just that rights-talk does not do much
good. In the contemporary United States it is positively harmful." 24 Furthermore, any marginal utility to be derived from
rights discourse is perceived as being gained at the expense of
larger issues; rights are pitted against, rather than asserted on
behalf of, the agencies of social reform.25 This reasoning underlies much of the rationale for CLS' abandonment of rights discourse, and for its preference for informality-for restyling, for
example, arguments about rights to shelter for 2the
homeless into
6
arguments about the "needs" of the homeless.
However, such statements about the relative utility of
"needs" over "rights" discourse overlook that blacks have been
describing their needs for generations. They overlook a long
history of legislation against the self-described needs of black
people, the legacy of which remains powerful today. While it is
no longer against the law to teach black people to read, for
example, there is still within the national psyche a deep, selfreplicating strain of denial of the urgent need for a literate black
population ("They're not intellectual;" "they can't. . ."). In
housing, in employment, in public and in private life it is the
same story: the undesired needs of black people transform them
into undesirables or those-without-desire ("They're lazy;" "they
don't want to. ..").
For blacks, describing needs has been a dismal failure as
political activity. It has succeeded only as a literary achievement. The history of our need is certainly moving enough to
have been called poetry, oratory and epic entertainment 2z--but
supra note 19, at 1386.
21"[Tihe image of negative rights overshadows that of positive ones and may
24 Tushnet,
obstruct the expansion of positive rights." Id.
2 Demanding that needs "be satisfied-whether or not satisfying them can today
persuasively be characterized as enforcing a right-strikes me as more likely to succeed
than claiming that existing rights to food and shelter must be enforced." Id. at 1394;
see also Freeman, supra note 22.
271 do not mean to undervalue the liberating power for blacks of such poetry,
oratory and epic; my concern is the degree to which it has been compartmentalized by
1987]
413
it has never been treated by white institutions as a statement of
political priority. Some of our greatest politicians have been
forced to become ministers or blues singers. 28 Even white descriptions of "the blues" tend to remove the day-to-day hunger
and hurt from need and abstract it into a mood. And whoever
would-how ever to-legislate against depression? Particularly
something as rich, soulful and sonorously productive as black
depression.
It may be different when someone white is describing need.
Shorn of the hypnotic rhythmicity which blacks are said to bring
to their woe, white statements of black needs suddenly acquire
the sort of stark statistical authority which lawmakers can listen
to and politicians hear. But from blacks, stark statistical statements of need are heard as "strident," "discordant" and "unharmonious"; heard not as political but only against the backdrop of their erstwhile musicality, they are again abstracted to
29
mood and heard as angry sounds.
For blacks, therefore, the battle is not deconstructing
rights, in a world of no rights; nor of constructing statements of
need, in a world of abundantly apparent need. Rather, the goal
is to find a political mechanism that can confront the denial of
need. The argument that rights are disutile, even harmful, trivializes this aspect of black experience specifically, as well as
that of any person or group whose genuine vulnerability has
been protected by that measure of actual entitlement which
30
rights provide.
whites as something other than political expression. For a discussion of the transformative significance of black music and literature, see Matsuda, Looking to the Bottom,
22 Harv. C.R.-C.L. L. Rev. 323, 335-37 (1987).
28
"The various means of purifying the abject-the various catharses-make up the
history of religions, and end up with that catharsis par excellence called art, both on
the far and near side of religion." J. Kristeva, Powers of Horror 17 (1982) (emphasis in
original).
2
Mythologically speaking, black anger inspires white fear, and fear is the one
mood to which white legislators have responded, but that's a story which has nothing
to do with black need.
30 How helpful, how utile, are deconstructionist observations like the following:
It might be argued that, although busing violates the traditional ...
ideal
relationship of school to neighborhood and is terribly inconvenient and expensive and often promotes only friction, it does do at least three things: (1) it
allows blacks to believe something is being done for them; (2) it allows liberals
to believe they are doing something for blacks; (3) it safeguards the continued
segregation of the neighborhoods by quarantining integration inside the school.
However, when liberals and conservatives quarrel over busing, we have an-
414
[Vol. 22
For many white CLSers, the word "fights" seems to be
overlaid with capitalist connotations of oppression, universalized alienation of the self, and excessive power of an external
and distancing sort. The image of the angry bigot locked behind
the gun-turreted, barbed wire walls of his white-only enclave,
shouting "I have my rights!!" is indeed the rhetorical equivalent
of apartheid. 31 In the face of such a vision, "token
bourgeoisification"3 2 of blacks is probably the best-and the
worst-that can ever be imagined. From such a vantage point,
the structure of fights is akin to that of racism in its power to
constrict thought, to channel broad human experience into narrowly referenced and reified stereotypes. Breaking through such
stereotypes would naturally entail some "unnaming" process.
For most blacks, on the other hand, running the risk-as
well as having the power-of "stereo-typing" (a misuse of the
naming process; a reduction of considered dimension rather than
an expansion) is a lesser historical evil than having been unnamed altogether. The black experience of anonymity, the estrangement of being without a name, has been one of living in
the oblivion of society's inverse, beyond the dimension of any
consideration at all. Thus, the experience of rights-assertion has
been one of both solidarity and freedom, of empowerment of
an internal and very personal sort; it has been a process of
finding the self.
These differences in experience between blacks and whites
are not, I think, solely attributable to such divisions as positive/
negative, bourgeois/proletariat; given our history, they are differences rooted firmly in race, and in the unconsciousness of
racism. 33 It is only in acknowledging this difference, however,
that one can fully appreciate the underlying common ground of
the radical left and the historically oppressed: the desire to heal
other instance of the false squabbles which must precede every illusory reconciliation....
W. Gass, Habitations of the Word 240 (1985). Is the integration of neighborhoods,
classes, societies or ourselves likely to be any less inconvenient, costly, or filled with
"false" squabbling?
31The word "apartheid" is, according to Jacques Derrida, "the archival record of
the unnameable." Derrida, Racism's Last Word, 12 Crit. Inq. 290, 291-92 (P. Kamut
trans. 1985).
32 Freeman, AntidiscriminationLaw: A CriticalReview, in The Politics of Law: A
Progressive Critique 96, 114 (D. Kairys ed. 1982).
3 See Lawrence, The Id, the Ego, and Equal Protection:Reckoning with- Unconscious Racism, 39 Stan. L. Rev. 317 (1987).
1987]
415
a profound existential disillusionment. Wholesale rejection of
rights does not allow for the expression of such essential
difference.
The white left is perhaps in the position of King Lear, when
he discovered in -himself a "poor bare forked animal" 34 who
needed no silks, furs or retinue, only food, water and straw to
sleep on. The insight of this experience also freed him to see
the weight, the constrictions, which his due as king had imposed
upon him. 35 Similarly, the white left may feel that words and
rights "have only the meaning that power wishes them to
have. '36 In this context, relationships of trust (which require
neither speech nor "rights") are replaced by the kind of "sufferance with which force condescends to weakness. ' 37 From this
perspective, the Olympus of rights discourse indeed may be an
appropriate height from which those on the resourced end of
inequality, those already rights-empowered, may wish to jump.
Blacks, however, may symbolize the King Lear who was
pushed to the point of madness, who did not find his essential
humanity while retaining some reference point to an identity as
social being temporarily lost in the wilderness, but who ultimately lost everything, including a sense of self.38 The black
slave experience was that of lost languages, cultures, tribal ties,
kinship bonds, and even of the power to procreate in the image
of oneself and not that of an alien master. That sort of confron34"Is
man no more than this? Consider him well. Thou ow'st the worm no silk, the
beast no hide, the sheep no wool, the cat no perfume .... [T]hou art the thing itself;
unaccommodated man is no more but such a poor, bare, forked animal as thou art." W.
Shakespeare, King Lear, Act III, Scene IV.
35
0! reason not the need; our basest beggars
Are in the poorest things superfluous:
Allow not nature more than nature needs,
Man's life is cheap as beast's. ...
Id. Act II,Scene IV.
36M. Ignatieff, The Needs of Strangers 37 (1984).
37 Id.
38
Through tatter'd clothes small vices do appear;
Robes and furr'd gowns hide all.
Plate sin with gold,
And the strong lance of justice hurtless breaks;
Arm it in rags, a pigmy's straw does pierce it.
W. Shakespeare, supra note 34, Act IV, Scene VI.
416
[Vol. 22
tation with the utter powerlessness of status which is the true
and full condition of the wilderness is what ultimately drove
King Lear from insight into madness. Reduced to the basic
provisions of food, water and a straw pallet, kings may gain
new, perhaps profound, insight into those needs they share with
all humankind. For others, however-for slaves, sharecroppers,
prisoners and mental patients-the experience of poverty and
need is fraught with the realization that they are dependent "on
the uncertain and fitful protection of a world conscience" which
has forgotten them as individuals, a collective mind which considers them (if it considers them at all) "examples of the universal abstraction Man. '39 For the historically disempowered,
the conferring of rights is symbolic of all the denied aspects of
humanity: rights imply a respect which places one within the
referential range of self and others, which elevates one's status
from human body to social being. For blacks, then, the attainment of rights signifies the due, the respectful behavior, the
collective responsibility properly owed by a society to one of
its own.
C. Mega-Story (In Which, by Virtue of My Own Mortality, I
Am Dragged From a Great Height in Order to Examine the
Roots of My Existence)
Another way of describing the dissonance between blacks
and CLS is in terms of the degree of moral utopianism 4 with
which blacks regard rights. I remember, for example, going to
a family funeral in Georgia, where, in the heat of summer and
the small church, fans with pictures of Martin Luther King, Jr.
on them were passed out-as they still are in many black
churches around the country. This icon of King is a testament
to the almost sacred attachment to the transformative promise
39M. Ignatieff, supra note 36, at 53.
40
Every social system contains a certain amount of moral and totalizing expectations toward happiness, justice, truth, and so on. These claims do not have
social attributions, do not involve specific social interests or practical-historical
projects. They live on the borders of great religions or great cultural and
political waves, in the form of small sects, heretical cults, theological circles.
The great collective processes offer a channel to express this moral utopianism,
which otherwise would survive in marginal enclaves.
Melucci, supra note 10, at 803.
1987]
417
of a black-conceived notion of rights, which exists, perhaps,
somewhat apart from the day-to-day reality of their legal enforcement, but which gives rise to their power as a politically
animating, socially cohesive force.
For blacks, the prospect of attaining full rights under the
law has always been a fiercely motivational, almost religious,
source of hope. It is an oversimplification to describe that hope
as merely a "compensation for.., feelings of loss," rights being
a way to "conceal those feelings .... - 41 Black "loss" is not of
the sort that can be "compensated" for or "concealed" by rightsassertion. It must be remembered that from the experiential
perspective of blacks, there was and is no such thing as "slave
law."' 42 The legal system did not provide blacks with structured
expectations, promises, or reasonable reliances of any sort. If
one views "rights" as emanating from either that body of "legal"
history or from that of modern bourgeois legal structures, 43 then
of course rights would mean nothing because blacks have had
virtually nothing under either. And if one envisions "rights" as
economic advantages over others, one might well conclude that
"because this sense of illegitimacy [of incomplete social relation]
is always threatening to erupt into awareness, there is a need
for 'the law.'"44 Where, however, one's experience is rooted not
just in a "sense" of illegitimacy but in being illegitimate, in being
raped, and in the fear of being murdered, then the black adherence to a scheme of negative rights-to the self, to the sanctity
of one's personal boundaries-makes sense. 45
The individual and unifying cultural memory of black people is the helplessness, the uncontrollability of living under slavery. I grew up living in the past: the future, some versions of
41Gabel, supra note 19, at 28.
42M. Tushnet, The American Law of Slavery 37-42 (1981). Tushnet's analysis is
premised, in part, on an understanding of the law of slaveholders as creating a system
of enforceable expectations and limited rights for slaves.
43 Id.
44Gabel, supra note 19, at 29.
.45
In the discussion of law there is an ever-renewed conflict between those who
see it as a functional necessity and others who invest it with hope and promise.
The former accept law as given, as fact, at best as an instrument of practical
problem-solving. For the legal idealist, on the other hand, law connotes a larger
moral achievement.
Selznick, Law, Society and Moral Evolution, in Readings in Jurisprudence and Legal
Philosophy 931, 936 (Schuman ed. 1979).
418
[Vol. 22
which had only the sheerest possibility of happening, was
treated with the respect of the already-happened, seen through
the expansively prismatic lenses of what had already happened.4 6 Thus, when I decided to go to law school, my mother
told me that "the Millers were lawyers so you have it in your
blood. '47 Now the Millers were the slaveholders of my maternal
grandmother's clan. The Millers were also my great-great-grandparents and great-aunts and who knows what else. My greatgreat-grandfather Austin Miller, 48 a thirty-five-year-old lawyer,
bought my eleven-year-old great-great-grandmother, Sophie,
and her parents (being "family Negroes," the previous owner
50
sold them as a matched set). 49 By the time she was twelve,
46"It is by now a trite observation that oppressed peoples have an acute sense of
their past. Well they must: it is the crucible of their identity and their cohesion. Without
it their present oppression becomes either meaningless or natural." Wiecek, Preface To
The HistoricalRace Relations Symposium, 17 Rutgers L. Rev. 412 (1986).
47Of course Mother did not mean that law was literally part of my genetic makeup;
she meant that law was an intimate part of the socially constructed reality into which I
had been born. She meant that dealing with law and lawyers was something with which
my ancestors were all too familiar. Mother was probably aware of the belief that "[tihe
improvement of the blacks in body and mind in the first instance of their mixture with
the whites, has been observed by every one, and proves that their inferiority is not the
effect merely of their condition of life." T. Jefferson, Notes on Virginia 141 (Peden ed.
1955). However, Mother also knew that
[elverything depends therefore on encountering thought at its source. Such
thought is the reality of man's being, which achieved consciousness and understanding of itself through it.... My own being can be judged by the depths
I reach in making these historical origins my own. There is no palpable criterion
for this in outward appearances. Such true thinking goes through history as a
mystery which can reveal itself, however, to everyone with understanding, for
this hidden thinking was once reality. Having been written down, it can be
rediscovered: at any time it can spark a new blaze.
K. Jaspers, On My Philosophy, in Existentialism From Dostoevsky to Sartre 158, 161
(W.Kaufmann ed. 1975).
18In an earlier essay I wrote on this subject, Austin is incorrectly referred to as
"Peter." See P. Williams, A BriefComment, with Footnotes, on the Civil Rights Chroniles, 3 Harv. Blackletter J. 79, 79-80 n.1 (1986). While a great deal is known about the
Miller family (they stayed pretty much in control of my mother's people until my
grandmother's generation), his first name had to be retrieved from a census report that
was both nearly illegible and confusingly organized. See Census of Hardeman Cty.,
Tenn., Aug. 29, 1850 (on file in National Archives, Roll 881, Sched. 2 (Slave Inhabitants
of Bolivar)).
49By way of ironic counterpoint, see M. Tushnet supra note 42, at 15. "We know,
however, that at least some slaves maintained nuclear families over long periods of
time, which indicates that the slave code did not, as Goodel argued, state the best
behavior that could be expected of slaveholders." Id. (footnote omitted).
" Knowledge of her youth enabled me to identify her in the Census listing. My
mother and her siblings and cousins are pretty unanimous that Sophie was a child at
the time she was purchased. On the Census, which of course does not give the names
of slaves, there was only one very young female of childbearing age-younger than all
1987]
419
Austin Miller had made Sophie the mother of a child, my greatgrandmother Mary. 5' He did so, according to family lore, out of
his desire to have a family. Not of course, a family with my
great-great-grandmother, but with a wealthy white widow whom
he in fact married shortly thereafter. He wanted to practice his
sexual talents on my great-great-grandmother. In the bargain,
Sophie bore Mary, who was taken away from her and raised in
the Big House as a house servant, an attendant to his wife Mary
(after whom Sophie's Mary, my great-grandmother, had been
52
named) and to his legitimated white children.
In ironic, perverse obeisance to the rationalizations of this
bitter ancestral mix, the image of this self-centered child molester became the fuel for my survival during the dispossessed
limbo of my years at Harvard; the Bakke years, the years when
everyone was running around telling black people that they were
very happy to have us there, but after all they did have to lower
the standards and readjust the grading system, but Harvard
could afford to do that because Harvard was Harvard. 53 And it
worked. I got through law school, quietly driven by the false
idol of the white-man-within-me, and I absorbed a whole lot of
the knowledge and the values which had enslaved me and my
foremothers.
I learned about images of power in the strong, sure-footed
arms' length transactor. I learned about unique power-enhancing
lands called Whiteacre and Blackacre, and the mystical fairy
rings which encircled them, called restrictive covenants. I
learned that excessive power overlaps generously with what is
seen as successful, good, efficient and desirable in our society.
I learned to undo images of power with images of powerlessness; to clothe the victims of excessive power in utter, bereft
naivet6; to cast them as defenseless supplicants raising-plead-
the others by at least two decades-and she is listed as the mother of a female infant.
Census of Hardeman Cty., Tenn., supra note 48.
51No lesser legal authority than Thomas Jefferson would undoubtedly attribute this
to slaves' "own judgment in favor of the whites, declared by their preference of them,
as uniformly as is the preference of the Oran-ootan for the black women over those of
his own species." T. Jefferson, supra note 47, at 138.
52 This
information comes from my mother, who says that her grandmother told
her. It was confirmed to me separately by my mother's cousin, whose own mother, my
great-aunt (another Mary), was taken from the ages of five to thirteen into the Miller
household to be the (unpaid) servant and companion to the Miller children.
53 I do not mean this as a criticism of affirmative action, but of those who tried to
devalue the presence and contributions of us, the affirmatively active.
420
[Vol. 22
ing-defenses of duress, undue influence and fraud.54 I learned
that the best way to give voice to those whose voice
had been
55
suppressed was to argue that they had no voice.
D. Meta-Mega-Story (In Which I Attempt to Rescue My GreatGreat-Grandmother From the Cruel Word-Bondage in Whose
Circuity She Has Been Held Captive)
Some time ago, a student gave me a copy of Pierson v.
Post5 6 as reinterpreted by her six-year-old, written from the
perspective of the wild fox. In some ways it resembled Peter
Rabbit with an unhappy ending; most importantly it was a tale
retold from the doomed prey's point of view, the hunted reviewing the hunter. I had been given this story the same week that
my sister had gone to the National Archives and found something which may have been the contract of my great-greatgrandmother Sophie's sale (whether hers57 or not, it was someone's) as well as the census accounting which listed her, along
with other, inanimate evidence
of wealth, as the "personal prop58
Miller.
Austin
of
erty"
In reviewing those powerfully impersonal documents, I realized that both she and the fox shared a common lot, were
either owned or unowned, never the owner. And whether owned
5 A quick review of almost any contracts text will show that most successful
defenses feature women, particularly if they are old and widowed; illiterates; blacks
and other minorities; the abjectly poor; and the old and infirm. A white male student
of mine once remarked that he couldn't imagine "reconfiguring his manhood" to live up
to the "publicly craven defenselessness" of defenses like duress and undue influence.
See M.J. Frug, Re-reading Contracts:A FeministAnalysis of a Contracts Casebook,
34 Am. U.L. Rev. 1065 (1985); Klare, Contracts Jurisprudence and the First-Year
Casebook, 54 N.Y.U. L. Rev. 876 (1979).
11See MacKinnon, Feminism, Marxism, Method and the State: An Agenda for
Theory, 7 Signs: J. of women in Cult. and Soc. 515 (1982); Olsen, The Family and the
Market: A Study of Ideology and Legal Reform, 96 Harv. L. Rev. 1497 (1983).
56
Post, being in possession of certain dogs and hounds under his command, did,
"upon a certain wild and uninhabited, unpossessed and waste land, called the
beach, find and start one of those noxious beast called a fox," and whilst there
hunting, chasing and pursuing the same with his dogs and hounds, and when
in view thereof, Pierson, well knowing the fox was so hunted and pursued,
did, in the sight of Post, to prevent his catching the same, kill and carry it off.
3 Cai. R. 175, 175 (N.Y. Sup. Ct. 1805).
17 1 use the term "hers" intentionally, although her object-relation to such a contract
technically would make it other than hers; a record of her, the possessory interest in
others.
58 Census of Hardeman Cty., Tenn., supra note 48.
1987]
421
or unowned, rights over them never filtered down to them; rights
to their persons never vested in them. When owned, issues of
physical, mental and emotional abuse or cruelty were assigned
by the law to the private tolerance, whimsy or insanity of an
external master. 59 And when unowned-i.e., free, freed, or escaped-again their situation was uncontrollably precarious, for
as objects to be owned, they and the game of their conquest
were seen only as potential enhancements to some other self.60
They were fair game from the perspective of those who had
rights; 61 but from their own point of view, they were objects of
a murderous hunt.62
This finding of something which could have been the contract of sale of my great-great-grandmother irretrievably personalized my analysis of the law of her exchange. Repeatedly since
then, I have tried to analyze, rationalize and rescue her fate,
employing the tools I learned in law school: adequacy of valuable consideration, 6 defenses to formation, grounds for discharge and remedies (for whom?). That this was to be a deadend undertaking was all-too obvious, but it was interesting to
59Perhaps this is what Mark Tushnet meant to say in this perplexing passage:
"Cruelty thus was not tolerated in slave society, nor was the relationship of master and
slave truly founded upon force alone. Rather, it was simply that courts could recognize
no foundation other than force, and that control of cruelty must, and did, occur outside
of the law." M. Tushnet, supra note 42, at 62.
60 In Pierson, the dissent described the contest as between the "gentleman" in
pursuit and the "saucy intruder." 3 Cai. R. at 180-81 (Livingston, J., dissenting). The
majority acknowledged that Pierson's behavior was "uncourteous" and "unkind" but
decided the case according to broader principles of "peace and order" in sportsmanship.
Id. at 179.
61 "Although societal acquiescence may be a practical necessity for rights to be
legally respected, no individual or group need consent to .. . appropriation of previously
unowned resources or their use for ... rights to morally vest." Barnett, A Consent
Theory of Contract, 86 Colum. L. Rev. 269, 297 (1986).
62See United States v. The Amistad, 40 U.S. 518 (1841), a suit for, among other
things, the "salvage value" of a shipload of Africans who revolted during their passage
to America. See ulso W. Breyfogle, Make Free: The Story of the Underground Railroad
(1958), for descriptions of the elaborate rituals of slave-hunting, the history of the
Fugitive Slave Act and the Underground Railroad.
63 How much value, I wonder. Just how did the value break down? Did they haggle?
Was it a poker game, a trade, a promissory note? How much was she worth? At one
extreme, the New York Public Library's Shomberg Center (Shivery Papers) has in its
archives a contract in which a young woman was sold for a dollar. In contrast, a review
of the literature on the slave trade from Africa shows that the death of one-fourth to
two-thirds of every cargo ship's population still provided slave traders "a good return
on their investment." P. Finkelman, Slavery in the Courtroom: An Annotated Bibliography of American Cases 211 passim (1985). With what literalism must my philosophizing be alloyed: "There is something in me which might have been great, but due to the
unfavorable market, I'm only worth a little." S. Kierkegaard, quoted in K. Jaspers,
supra note 47, at 203.
422
[Vol. 22
see how the other part of my heritage, Austin Miller, the lawyer,
and his confreres, had constructed their world so as to nip quests
like mine in the bud.
The very best I could do for my great-great-grandmother
was to throw myself, in whimpering supplication, upon the
mercy of an imaginary, patriarchal court and appeal for an exercise of its extraordinary powers of conscionability and "humanitarianism. '"64 1 found that it helped to appeal to that court's
humanity, and not to stress the fullness of her own. I found that
the best way to get, anything for her, whose needs for rights
were so compellingly, overwhelmingly manifest, was to argue
that she, poor thing, had no rights. 65 It is this experience of
having, for survival, to argue our own invisibility in the passive,
unthreatening rhetoric of "no-rights," which, juxtaposed with
the CLS abandonment of rights theory, is both paradoxical and
difficult for minorities to accept.
The discussion thus far may prompt the argument that this
last paradox is the direct product of rights discourse itself. But,
in addition, I tried arguing my great-great-grandmother's fate in
terms more direct, more informal, more descriptive and more
substantive. I begged, pleaded, "acted out" (the New Age way
of describing the New Black Activism66) and cried. I prayed
loudly enough for all to hear, and became superstitious. 67 But I
6 See S. Elkins, Slavery: A Problem in American Institutional and Intellectual Life
237 (2d ed. 1963), in which the "conduct and character" of slave traders is described as
follows: "Between these two extremes [from "unscrupulous" to "guilt-ridden"] must be
postulated a wide variety of acceptable, genteel, semipersonalized, and doubtless relatively humane commercial transactions whereby slaves in large numbers could be
transferred in exchange for money." Id. (emphasis added).
6 See D. Bell, Social Limits on Basic Protectionsfor Blacks, in Race, Racism and
American Law 280 (1980).
6Many
staunch white CLS-ers, attendees of every conference in the past, did not
attend the one in January 1987, whose subject was Racism and Critical Legal Studies,
and at which an earlier version of this paper was presented. In discussion groups
addressing this issue, the low white attendance was reported to be attributable to fears
that minorities would just "act out" their "displaced rage," or "guilt-trip" white participants, or make them feel like they were "in a confessional."
67
When, striving for access to the word and to time, [woman] identifies with the
father, she becomes a support for transcendence. But when she is inspired by
that which the symbolic order repressed, isn't a woman also the most radical
atheist, the most committed anarchist? In the eyes of this society, such a
posture casts her as a victim. But elsewhere?
J. Kristeva, About Chinese Women, in The Kristeva Reader 158 (1986).
1987]
423
didn't get any relief for Sophie's condition; my most silver68
tongued informality got her nothing at all.
The problem, as I have come to see it, is not really one of
choice of rhetoric, of formal over informal, of structure and
certainty over context, of right over need. 69 Rather, it is a problem of appropriately choosing signs within any system of rhetoric. From the object-property's point of view (e.g., that of my
great-great-grandmother and the nameless fox) the rhetoric of
certainty (of rights, formal rules and fixed entitlements) has been
enforced at best as though it were the rhetoric of context (of
fluidity, informal rules, and unpredictability). 70 Yet the fullness
of context, the trust which enhances the use of more fluid systems, is lost in the lawless influence of cultural insensitivity. So
while it appears to jurisdictionally-recognized and invested parties that rights designate outcomes with a clarity akin to wisdom,
to the object-property, the effect is one of existing in a morass
of unbounded irresponsibility.
But this failure of rights discourse, much noted in CLS
scholarship, does not necessarily mean that informal systems
will lead to better outcomes. 7' Some structures are the direct
products of people and social forces who wanted them that
way. 72 If one assumes, as blacks must, not that the larger world
wants to overcome alienation, 73 but that many heartily embrace
it, driven not just by fear but by hatred and taboo, 74 then one is
6 For a succinct summary of the political complexities involved in too-strict adherence to either formalism, informalism or "anti-informalism," see Simon, Legal Informality and Redistributive Politics, 19 Special Issue, Clearinghouse Rev. 384 (1985).
69 Id.; see also, J. Auerbach, Justice Without Law? (1983); Johnson, Jr., The Justice
System of the Future:FourScenariosfor the Twenty-First Century, in Access to Justice
and the Welfare State 183 (M. Cappelletti ed. 1981).
70
See Simon, supra note 68.
"' See R. Abel, The Contradictions of Informal Justice, 1 Politics of Informal
Justice: The American Experience 267 (1982); Fairness and Formality, supra note 14.
72
There are two explanations for the unconscious nature of our racially discriminatory beliefs and ideas. First, Freudian theory states that the human mind
defends itself against the discomfort of guilt by denying or refusing to recognize
those ideas, wishes, and beliefs that conflict with what the individual has
learned is good or right....
Second, the theory of cognitive psychology states that the culture-including, for example, the media and an individual's parents, peers, and authority figures-transmits certain beliefs and preferences. Because these beliefs
are so much a part of the culture, they are not experienced as explicit lessons.
Instead, they seem part of the individual's rational ordering of her perceptions
of the world.
Lawrence, supra note 33, at 322-23 (citations omitted).
7 Cf. Gabel, supra note 19.
74By this I do not mean to suggest a Hobbesian state of nature, but a crust of
424
[Vol. 22
compelled to recognize the degree to which informal systems as
well as formal systems are run by unconscious and/or irrational
forces. "Human nature has an invincible dread of becoming
more conscious of itself." 75
This underscores my sense of the importance of rights:
rights are to law what conscious commitments are to the psyche.
This country's worst historical moments have not been attributable to rights-assertion, but to a failure of rights-commitment. From this perspective, the problem with rights discourse
is not that the discourse is itself constricting, but that it exists
in a constricted referential universe. The body of private laws
epitomized by contract, including slave contracts, for example,
is problematic not only because it endows certain parties with
rights, but because it denies the object of contract any rights at
all.
The quintessential rule of contract interpretation, the parol
evidence rule, illustrates the mechanics by which such constriction is achieved. It says, in relevant part, that "[t]erms with
respect to which the confirmatory memoranda of the parties
agree ... may not be contradicted [by extrinsic evidence]...
but may be explained or supplemented ... by evidence of
consistent additional terms ..
"76 If this rule is understood as
a form of social construction, the words could as well read:
"Terms with respect to which the constructed reality (or governing narrative) of a given power structure agree, may not be
contradicted, but only supplemented or explained."
Such a social construction applied to rights mythology suggests the way in which rights-assertion has been limited by
delimiting certain others as "extrinsic" to rights-entitlement:
"Europe during the Discovery era refused to recognize legal
status or rights for indigenous tribal peoples because 'heathens'
and 'infidels' were legally presumed to lack the rational capacity
necessary to assume an equal status or exercise equal rights
'77
under the European's medievally-derived legal world-view."
The possibility of a broader referential range of considered types
cultural habit and perception whose power shelters as it blinds: "Light am I; ah, that I
were night!" F. Nietzche, Thus Spake Zarathustra 105 (W. Kaufmann ed. 1954).
75 C. Jung, Psyche and Symbol 214 (V. de Laszlo ed. 1958).
76 U.C.C. § 2-202 (9th ed. 1978).
77 R. Williams, Jr., The Algebra of Federal Indian Law: The Hard Trail of DecoIonizing and Amnericanizing the White Man's Indian Jurisprudence, 1986 Wis. L. Rev.
219, 290; see also Dred Scott v. Sandford, 60 U.S. 393, 407 (1857).
1987]
425
of rights may be found by at least adding to, even contradicting,
78
traditional categories of public and private rights-recipients.
Such an expanded reference, first made controversial by
Christopher Stone's famous article, "Should Trees Have Standing? '79 is premised on the degree to which rights do empower
and make visible:
We are inclined to suppose the rightlessness of rightless
"things" to be a decree of Nature, not a legal convention acting in support of some status quo. It is thus
that we defer considering the choices involved in all
their moral, social and economic dimensions.
The fact is that each time there is a movement to confer
rights onto some new "entity," the proposal is bound
to sound odd or frightening or laughable. This is partly
because until the rightless thing receives its rights, we
cannot see it as anything but a thing for the use of
"us"-those who are holding rights at the time.80
One consequence of this broader reconfiguration of rights,
again in the context of contract, is to give voice to those people
or things which, by virtue of their object relation to the contract,
78 Imagine, for example, a world in which a broader range of inanimate objects
(i.e., other than corporations) were given rights-as has not been done with regard to
the looting of American Indian religious objects. Spurred by a booming international
art market and virtually no fear of prosecution, raiders have taken
ceremonial objects and ancient tools ...[as well as] the mummified remains
of Anasazi children. . . . [T]he asking price for quality specimens starts at
$5,000. The best of these are said to have been preserved by casting them into
acrylic blocks, an expensive, high-tech procedure.... The looting has struck
a painful nerve for Native Americans. "To us," says Marcus Sekayouma, a
Hopi employee of the Bureau of Indian Affairs, "the removal of any old object
from the ground is the equivalent of a sacrilege."
Goodwin, Raiders of the Sacred Sites, N.Y. Times, Dec. 7, 1986 (Magazine), at 65.
79Stone, Should Trees Have Standing?-TowardLegal Rightsfor NaturalObjects,
45 So. Cal. L. Rev. 450 (1972).
10Id. at 453, 455.
426
[Vol. 22
historically had no voice. Allowing this sort of empowerment
opens up the 9go'sme d deux of traditional contract, and increases the limited bipolarity of relationship which characterizes
so much of Western civilization. 8' Analogizing from a contractual framework to social constructions generally,
human action is an open work, the meaning of which
is "insuspense." It is because it "opens up" new references and receives fresh relevance from them, that
human deeds are also waiting for fresh interpretations
which decide their meaning. All significant events and
deeds are, in this way, opened to this8 kind
of practical
2
interpretation through present praxis.
Listening to and looking for interests beyond the narrowest
boundaries of linear, dualistically reciprocal encounters is characteristic of gift relationships, networks of encompassing expectation and support.8 3 As my colleague Dinesh Khosla described it, "[i]n the circularity of gift, the wealth of a community
never loses its momentum. It passes from one hand to another;
it does not gather in isolated pools. So all have it, even though
4
they do not possess it and even though they do not own it."
Such an expanded frame of rights-reference is the premise
of a philosophy of more generously extending rights to all crea-
MI
In bourgeois ideology, history is negated by the process of exchange: in the
equalization brought about by the need to determine that one ware is worth
another ware, and everything has its price, that this = that, history is replaced
by an eternal stasis where values remain constant in an ideological tit for tat
where the equal sign ensures a never-ending binary equilibrium in which a
change on one side of the equation is always balanced by the algebraically
obligatory change on the other. Everything becomes a perfect metaphor for
everything else, for in the end all equations say the same thing and all equations
say nothing. The emptiness behind the binary opposition is the emptiness
behind the equation 0 = 0. One thing is opposed to another thing in a two-fold
opposition incapable of accommodating marginalities, third forces, or
syntheses.
Brockman, Bitburg Deconstruction, 7 Phil. For. 159, 160-61 (1986).
12P. Ricoeur, Hermeneutics and the Social Sciences 208 (J. Thompson ed., tr.
1981).
83See L. Hyde, The Gift: Imagination and the Erotic Life of Property (1983).
14Khosla & P. Williams, Economies of Mind: A CollaborativeReflection, 10 Nova
L. Rev. 621 (1986).
1987]
427
tures, whether human 85 or beast.a6 It is the basis of those theories of constantly returning cycles which are at the root of
give "utility" to maintaining
environmental reform, 7 and which
88
the earth in an unexploited form.
III. Conclusion (In Which I Attempt to Rescue From Silence
Feelings for Which There Are No Words)
One lesson I never learned in law school, the one lesson I
had to learn all by myself, was the degree to which black history
in this nation is that of fiercely interwoven patterns of family,
as conceived by white men. Folklore notwithstanding, slaves
were not treated "as though" they were part of the family (for
that implies a drawing near, an overcoming of market-placed
distance): too often the unspoken power of white masters over
slaves was the covert cohesion of family.8 9 Those who were, in
fact or for all purposes, family were held at a distance as strang-
ers and commodities: strangers in the sense that they were
15 Think, for example, how different the outcome might have been in the Tuskegee
Syphilis Experiment, in which illiterate black men were deliberately allowed to go
untreated and uninformed of the nature of their disease from 1932 until 1972, so they
could be observed by doctors from the U.S. Public Health Service. Approximately 400
diseased men, with 200 more serving as controls, were allowed to degenerate and die;
doctors told them only that they had "bad blood." J. Jones, Bad Blood (1981).
86 Every year one reads in the newspapers about millions of cattle who are periodically destroyed for no other purpose than to drive up the price of either milk or beef.
One also reads about the few "bleeding hearts" who wage a mostly losing war to save
the lives of the hapless animals. Yet prior to the time of the Reformation, the bleeding
heart was the Christian symbol of one who could "feel the spirit move inside all property.
Everything on earth is a gift and God is the vessel. Our small bodies may be expanded;
we need not confine the blood." L. Hyde, supra note 83, at 139. Today, on the other
hand, the "'bleeding heart' is ... the man of dubious mettle with an embarrassing
inability to limit his compassion." Id.
87 "Increasingly, the death that occupies each human's imagination is not his own,
but that of the entire life cycle of the planet earth, to which each of us is as but a cell
to a body." Stone, supra note 79, at 500.
8 As ought to have been done in Peevyhouse v. GarlandCoal & Mining Co., 382
P.2d 109 (1962). There, the Oklahoma Supreme Court refused to enforce a contract
provision requiring Garland Coal Company to rehabilitate leased farm and grazing land
destroyed by the process of strip-mining. The court's rationale was that
where the contract provision breached was merely incidental to the main
purpose in view, and where the economic benefit which would result to lessor
by full performance of the work is grossly disproportionate to the cost of
performance, the damages which lessor may recover are limited to the diminution in value resulting to the premises because of the non-performance.
Id. at 114. The restoration of the land, the land's "voice," was viewed as extrinsic,
unimportant; since it was not part of the "main purpose" for which the parties had been
"righted" (i.e., money-making), that "voice" was permanently silenced.
8See K. Stampp, The Peculiar Institution 250-61 (1982).
428
[Vol. 22
excluded from the family circle at the hearth and in the heart,
and commodities in the sense that they could be sold down the
river with no more consideration than the bales of cotton they
accompanied.
In the thicket of those relations, the insignificance of family
connection was consistently achieved through the suppression
of any image of blacks as capable either of being part of the
family of (white) man 9° or of having family of their own. 91 The
recognition of such a threshold is the key to understanding
slavery as a structure of denial-a denial of the generative independence of black people. Instead, a substitution occurred:
rather than black motherhood being the generative source for
black people, master-cloaked white manhood became the generative source. Although the "bad black mother" is even today
an archetypal way of describing what ails the black race, the
historical reality is that of careless white fatherhood. Blacks are
thus, in full culturally imagistic terms, not merely an unmoth90See Dred Scott v. Sandford, 60 U.S. 393 (1857), in which blacks were adjudged
"altogether unfit to associate with the white race, either in social or political relations;
and so far inferior, that they had no rights which the white man was bound to respect;
and that the negro might justly and lawfully be reduced to slavery for his benefit." See
also S.A. Cartwright, The Dred Scott Decision: An Essay on the Natural History of
the Prognathous Race of Mankind (1859) (on file with Harvard Civil Rights-Civil Liberties Law Review), in which blacks were likened to "ourang outangs" and determined
to be the descendants of Canaan.
Noah, a tiller of the soil, was the first to plant the vine. He drank some of the
wine, and while he was drunk he uncovered himself inside his tent. Ham,
Canaan's ancestor, saw his father's nakedness, and told his two brothers
outside. Shem and Japheth took a cloak and they both put it over their father's
nakedness. When Noah awoke from his stupor he learned what his youngest
son had done to him. And he said: "Accursed be Canaan. He shall be his
brothers' meanest slave."
Genesis, 9:20-25 (New Jerusalem Bible, 1985).
91
Since slaves, as chattels, could not make contracts, marriages between them
were not legally binding.... Their condition was compatible only with a form
of concubinage, voluntary on the part of the slaves, and permissive on that of
the master. In law there was no such thing as fornication or adultery between
slaves; nor was there bastardy, for, as a Kentucky judge noted, the father of
a slave was "unknown" to the law. No state legislature ever seriously entertained the thought of encroaching upon the master's rights by legalizing slave
marriages.
K. Stampp, supra note 89, at 198. Anti-miscegenation laws also kept blacks outside the
family of those favored with rights; laws restricting the ability of slaveholders to devise
property or freedom suspended blacks in eternal illegitimacy. See generallyM. Tushnet,
supra note 42.
19871
429
ered race, but a badly fathered race, abused and disowned by
whites .92
I am therefore not one of those who believes that the future
and well-being of blacks lie solely with ourselves. Although I
don't always yet trust this imagery of dependence, I think it is
the reality, and necessity, if balanced coexistence is to occur.
Blacks cannot be alone in this recognition, however. Whites,
too, must learn to appreciate the communion of blacks in more
than body, as more than the perpetually neotenized, mothering
non-mother. 93 They must recognize us as kin. They must want
to confer upon us the property of larger community, the integrated selfhood of owning up to family (as opposed to having,
using and disowning). They must learn to listen and speak to
the grieving, enraged black-people-within-themselves and
within our society.
Conscious realization or the bringing together of the
scattered parts is in one sense an act of the ego's will,
but in another sense it is a spontaneous manifestation
of the self, which was always there. Individuation appears, on the one hand, as the synthesis of a new unity
which previously consisted of scattered particles, and
on the other hand, as the revelation of something which
92 Certainly, the companion myths to this woeful epic are to be found in the
brutalization of the archetypes of black male (as so indiscriminately generative as to
require repression by castration) and of white female (as so discriminatingly virginal as
to wither in idealized asexuality). See generally W. Jordan, White Over Black, 136-78
(1968) ("[C]astration [for blacks] was dignified by specific legislative sanction as a lawful
punishment in Antigua, the Carolinas, Bermuda, Virginia, Pennsylvania, and New
Jersey." Id. at 154); J. Dollard, Caste and Class in a Southern Town, 134-72 (1937)
(Published originally in 1937, the author ominously and ambiguously says that the
"reports" of exaggerated black potency are "further suspect because the same point
seems to be coming up with respect to the Jews in Germany. . . ." Id. at 161); see
generally also J. Mitchell, Woman's Estate (1973); E. Wolgart, Equality and the Rights
of Women (1980).
93For example, the Mammy whom "W.E. B. DuBois... described.., as 'one of
the most pitiful of the world's Christs ... was an embodied Sorrow, an anomaly
crucified on the cross of her own neglected children for the sake of the children of
masters who bought and sold her as they bought and sold cattle."' Genovese, "Don't
Mess with Mammy," Wash. Post, Oct. 27, 1974, at C5, col. 4. Mammy-exploitation
persists-abounds-to this day in the too-familiar image of grossly underpaid but everso-loved black female "help." The going rate for black female full-time live-in babysitter/maids in New York City is as low as $150 a week. "Haitians come cheaper. Their
A Hispanic woman ... is likely
starting salary ranges from $100 to $125 a week ....
to start at $200 a week, since she's white." Laurino, "I'm Nobody's Girl," Village Voice,
Oct. 14, 1986, at 18.
430
[Vol. 22
existed before the ego and is in fact its father or creator
and is also its totality. 94
Whites must confer upon blacks their recognition of black
need and black identity, for is not "what we have in common
precisely what is given to each of us as something exclusively
his?" 95
To say that blacks never fully believed in rights is true; yet
it is also true that blacks believed in them so much and so hard
that we gave them life where there was none before. We held
onto them, put the hope of them into our wombs, and mothered
them-not just the notion of them. We nurtured rights and gave
rights life. And this was not the dry process of reification, from
which life is drained and reality fades as the cement of conceptual determinism hardens round-but its opposite. This was the
resurrection of life from 400-year-old ashes; 96 the parthenogenesis of unfertilized hope.
The making of something out of nothing took immense
alchemical fire: the fusion of a whole nation and the kindling of
several generations. The illusion became real for only a very
few of us; it is still elusive and illusory for most. But if it took
this long to breathe life into a form whose shape had already
been forged by society and which is therefore idealistically if
not ideologically accessible, imagine how long would be the
struggle without even that sense of definition, without the power
of that familiar vision. What hope would there be if the assignment were to pour hope into a timeless, formless futurism? The
desperate psychological and physical oppression suffered by.
black people in this society makes such a prospect either unrealistic (i.e., experienced as unattainable) or other-worldly (as
in the false hopes held out by many religions of the oppressed).
It is true that the constitutional foreground of "rights" was
shaped by whites, parcelled out to blacks in pieces, ordained in
small favors, as random insulting gratuities. Perhaps the predominance of that imbalance obscures the fact that the recursive
94C. Jung, supra note 75, at 214 (footnote omitted).
951.Calvino, Mr. Palomar 14 (W. Weaver trans. 1983).
96"You must teach your children that the ground beneath their feet is the ashes of
our grandfathers. So that they will respect the land, tell your children that the earth is
rich with the lives of our kin. ..." Chief Seattle of the Suquamish, 1854 speech in
response to U.S. offer to enter into treaty for tribal lands, quoted in R. Williams, Jr.
supra note 77, at 292 n.275.
1987]
431
insistence of those rights is also defined by black desire for
them, desire not fueled by the sop of minor enforcement of
major statutory schemes like the Civil Rights Act, but by knowledge of, and generations of existing in, a world without any
meaningful boundaries. And "without boundary" for-blacks has
meant not untrammelled vistas of possibility, but the crushing
weight of totalistic-bodily and spiritual-intrusion."Rights"
feels so new in the mouths of most black peop1e. It is still so
deliciously empowering to say. It is a sign for and a gift of
selfhood that is very hard to contemplate reconstructing (deconstruction is too awful to think about!) at this point in history.
It is the magic wand of visibility and invisibility, of inclusion
and exclusion, of power and no-power. The concept of rights,
both positive and negative, is the marker of our citizenship, our
participatoriness, our relation to others.
In many mythologies, the mask of the sorcerer is also the
source of power. To unmask the sorcerer is to depower. 97 So
CLS' unmasking rights mythology in liberal America is to reveal
the source of much powerlessness masquerading as strength. It
reveals a universalism of need and oppression among whites as
well as blacks.
In those ancient mythologies, however, unmasking the sorcerer was only part of the job. It was impossible to destroy the
mask without destroying the balance of things, without destroying empowerment itself. 98 Therefore, the mask had to be donned
97The "unmasking" can occur in a number of less-than-literal ways: killing the
totemic animal from whom the sorcerer derives power; devaluing the magician as merely
the village psychotic; and, perhaps most familiarly in our culture, incanting sacred spells
backwards. C. Levi-Straus, The Raw and the Cooked 28 (1979); M. Adler, Drawing
Down the Moon 321 (1979); W. La Barre, The Ghost Dance 315-19 (1970). Almost
every culture in the world has its share of such tales: Plains Indian, Eskimo, Celtic,
Siberian, Turkish, Nigerian, Cameroonian, Brazilian, Australian and Malaysian stories-to name a few--describe the phenomenon of the power mask or power object.
See generally L. Andrews, Jaguar Woman and the Wisdom of the Butterfly Tree, 15176 (1985); J. Halifax, Shamanic Voices (1979); Anatolii, Beliefs About Spirits and Souls
of the Dead, in Raven's Bones 67 (A. Hope, III ed. 1982); J. Frazier, The Golden Bough
810 (1963).
9'
The dissolution of the contraries-life and death, light and dark, male and
female-and reconstitution of the fractured forms is one of the most consistent
impulses in the initiation and transformation process as experienced by the
shaman. To bring back to an original state that which was in primordial times
whole and is now broken and dismembered is not only an act of unification
but also a divine remembrance of a time when a complete reality existed.
Halifax, supra note 97, at 22.
432
[Vol. 22
by the acquiring shaman, and put to good ends. As rulers range
from despotic to benign, as anarchy can become syndicalism,
so the power mask in the right hands can transform itself from
burden into blessing. 99
The task for CLS, therefore, is not to discard rights, but to
see through or past them so that they reflect a larger definition
of privacy, and of property: so that privacy is turned from
exclusion based on self-regard, into regard for another's fragile,
mysterious autonomy; 100 and so that property regains its ancient
connotation of being a reflection of that part of the self which
by virtue of its very externalization is universal.'10 The task is
to expand private property rights into a conception of civil
02
rights, into the right to expect civility from others.
Human existence, suffering, and death are rendered by shamans into a system
of philosophical, psychological, spiritual, and sociological symbols that institutes a moral order by resolving ontological paradoxes and dissolving existential barriers, thus eliminating the most painful and unpleasant aspects of human
life, The perfection of the timeless past, the paradise of a mythological era, is
an existential potential in the present. And the shaman, through sacred action,
communicates this potential to all.
Id. at 34.
100
(I]n exactly the same way that the South imagines that it "knows" the Negro,
the North imagines that it has set him free. Both camps are deluded. Human
freedom is a complex, difficult-and private-thing. If we liken life, for a
moment, to a furnace, then freedom is-the fire which burns away illusion.
J, Baldwin, Nobody Knows My Name 116 (1961).
101
The Yehudi and Peretz his disciple were crossing a meadow. Cattle put out to
pasture there were lowing, and where it was watered by a stream a flock of
geese rose from the water with a great cackling and beating of wings. "If only
one could understand what all of them are saying!" cried Peretz. "When you
get to the point of understanding the very core of what you yourself are saying,"
said the rabbi, "you will understand the language of all creatures."
M. Buber, Speech, in Tales of the Hasidim: Later Masters 228-29 (1948).
102
He had to choose. But it was
not a choice
Between excluding things. It was not a
choice
Between, but of. He chose to include the
things
That in each other are included, the whole
The complicate, the amassing harmony.
1987]
433
In discarding rights altogether, one discards a symbol too
deeply enmeshed in the psyche of the oppressed to lose without
trauma and much resistance. Instead, society must give them
03
away. Unlock them from reification by giving them to slaves.1
Give them to trees. Give them to cows. Give them to history.
Give them to rivers and rocks. Give to all of society's objects
and untouchables the rights of privacy, integrity and self-assertion; give them distance and respect. Flood them with the animating spirit which rights mythology fires in this country's most
oppressed psyches, and wash away the shrouds of inanimate
object status, so that we may say not that we own gold, 114 but
10 5
that a luminous golden spirit owns us.
Stevens, Notes Toward a Supreme Fiction, in The Collected Poems of Wallace Stevens
403 (1981).
103"[Tlhough the modem state is too large a group to take its power from bonds of
affection, still, the ideology of the socialist nations begins with the call for community.
'Labor should not be sold like merchandise but offered as a gift to the community,' Che
Guevara used to say." L. Hyde, supra note 83, at 67.
104
If he walked in golden shoes
Cold his heart would be and stony.
Humble folk he would abuse
He wouldn't know me ....
B. Brecht, The Caucasian Chalk Circle, Scene VI.
105
Let him be afraid of hunger
Not of the hungry man's spite
Let him be afraid of darkness
But not fear the light.

Alchemical Notes - Duke University | Gender, Sexuality, and

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