In his article, the author seeks to use philosophical theory - state of nature theory - as a way to understand American law and issues of race. This project, consistent with a recent trend in legal scholarship, seeks to uncover hidden meanings in law through historical analysis, cultural critique, or philosophical contemplation.
The author argues that there is a tendency for the dominant group to relate to racial minorities as if they were in the state of nature - i.e., a tendency to act as if they were in a situation without legal or moral constraints. The article examines this state of nature theory by discussing new examples that illustrate and provide evidence in support of the theory.
In Part II, a number of new examples are set out to illustrate state of nature theory, including: (1) amoral decision-making in the context of affirmative action; (2) the lifting of constraints from the dominant group in the creation of new federal pleading standards for lawsuits, and in the areas of campaign financing, voting rights, and international law; (3) psychological studies that reveal discriminatory behavior where there are no legal constraints; (4) the exercise of the key state of nature virtues-force and fraud-against Native Americans; (5) the existence of a state-of-nature-like situation in the removal of Native Americans from certain areas of the United States; (6) a state-of-nature-like existence outside of the American polity on the part of African-Americans, Asian-Americans, and Latinos; and (7) the connection between racial neoliberalism and the state of nature.
In Part III, the author argues that acting as if in the state of nature has generated consciousness of guilt in the dominant group. In part IV, the author considers evidence regarding the relative health of racial minorities and suggests that racial minorities may be enduring a state of nature existence. Part V asks whether it is possible to escape from the state of nature. Finally, in Part VI, the author argues that state of nature theory is a way to advance the multiracial paradigm shift in the area of race and law and that scholars working in the area of race should follow the example of science to seek patterns in the area of race and law.
UMKC Law Review
George A. Martinez, Further Thoughts on Race, American Law, and the State of Nature: Advancing the Multiracial Paradigm Shift and Seeking Patterns in the Area of Race and Law, 85 UMKC L. REV. 105 (2016)