In 1860 Frederick Douglass was in exile in Glasgow to avoid arrest in connection with John Brown’s raid on Harpers Ferry. No stranger to revolutionary tactics, Douglass had long known Brown and was accused of being a coconspirator in the raid; after his return to the United States, Douglass even gave a speech in support of Brown. But during his exile, at an event before the Scottish Anti-Slavery Society, he had a different subject: a defense of the potential of the Constitution. In his address, Douglass didn’t contest how the Constitution had been crafted and interpreted to protect the institution of slavery. Nonetheless, he argued that the document had antislavery implications—and, in particular, that “the Constitution will afford slavery no protection when it shall cease to be administered by slaveholders.” Contrary to the followers of William Lloyd Garrison, who understood the Constitution as an ineluctably proslavery document and thought that the dissolution of the Union would be necessary to end slavery, the way forward, as Douglass saw it, was to “vote such men into power as will use their powers for the abolition of slavery.”

Those involved in movements for social justice have often questioned whether a focus on law and on legal rights promotes individualistic remedies over group solidarity.

While much of Douglass’s argument hinged on specific constitutional provisions that were inconsistent with slavery and with the legal regime put in place to support it—the Fifth Amendment’s Due Process Clause being the most obvious—it also relied on a claim about the nature of law itself. “Law is not merely an arbitrary enactment with regard to justice, reason, or humanity,” Douglass said. As a matter of “legal interpretation,” he went on,

There must be something more than history—something more than tradition. . . . There is another rule of law. . . . Where a law is susceptible of two meanings, the one making it accomplish an innocent purpose, and the other making it accomplish a wicked purpose, we must in all cases adopt that which makes it accomplish an innocent purpose.

As a matter of legal methodology, Douglass was quite right. There is a long tradition in Anglo-American and Commonwealth courts of deploying aggressively narrow judicial interpretation of positive enactments of law in order to preserve an underlying conception of fundamental legality. David Dyzenhaus, for example, has documented the power of common law courts even in systems of parliamentary supremacy to narrowly interpret privative clauses—those that strip individuals of the right of access to courts—in the interests of more fundamental ideas of legal order. The Fugitive Slave Act of 1850 was itself a privative clause that stripped allegedly escaped slaves of judicial protections with which they might defend their freedom.

This essay is featured in Boston Review’s Rethinking Law.

More broadly, Douglass recognized what we might call the entrepreneurial potential of the law. Because law tends to make its claims in universalistic terms, it provides the intellectual material to ground the demand for inclusion. In the case of the United States, which had in fact deployed the rhetoric of universal rights since its inception, Douglass’s argument amounted to saying: the Constitution does prohibit these forms of oppression—and if you took it seriously, you’d enforce those prohibitions. And in making this argument he could appeal to the universality of law itself, along with a methodological tradition that supported it.

Douglass’s view has been a perennial touchstone in debates about the Constitution, but it is worth revisiting for another reason, as well. In the political sphere, both scholars and activists involved in movements for social justice have often questioned whether a focus on law and on legal rights promotes individualistic remedies over group solidarity. On this point, Douglass’s argument—and the history of Black liberation movements more broadly—reveals how the language of the law can be a basis for collective demands. While skeptics are right to observe that legal victories alone tend to be unstable, the same can be said about other forms of social transformation—as historian David Waldstreicher recently noted in these pages, even “revolutions aren’t all they’re sometimes cracked up to be”—and there is a rich tradition showing how legal and political efforts can reinforce rather than undermine one another. At a moment in which both the rule of law and the progress toward racial and social justice of the last half-century in the United States appear to be under severe threat, this history shows how the law can remain an essential resource in building a more just world.

Douglass’s belief in the emancipatory potential of law—at least in the hands of organized political movements—resonates with socialist historian E. P. Thompson’s defense of the rule of law in Whigs and Hunters: The Origin of the Black Act (1975), a study of the legal conflict over rights to forests in eighteenth-century England. Though best known as the pioneering social historian of The Making of the English Working Class (1963), Thompson also contributed to the development of what might be called left legalism. Addressing structuralist Marxists such as French philosopher Louis Althusser who were skeptical of law’s relation to capitalism, Thompson argued that the very ideological function of law—its layering a veneer of universal justice over capitalist power relations—in fact rendered it useful to movements for justice. “In a context of gross class inequalities,” Thompson concedes, “the equity of the law must always be in some part sham.” Yet even in the case of the law of British imperialism, “the rules and the rhetoric have imposed some inhibitions upon the imperial power. If the rhetoric was a mask, it was a mask which Gandhi and Nehru were to borrow, at the head of a million masked supporters.” In short, the law provided a rhetorical framework for revolutionary demands in the form of universal legal rights.

This subversive capacity of law arguably rests on three distinctive features of law, at least within the Anglo-American common law tradition.

In an unjust society, the law is bound to be double-faced.

The first is as Thompson identified it: the law makes its appeal in terms of universal principles and (particularly in liberal democracies) underlying universal values. Such societies, as Moses Finley explains in his 1971 lecture, “The Ancestral Constitution,” tend to tell valorizing stories about their founders and the ideals which they imbued into their institutions. It is with regard to these kinds of features that legal scholar Tomiko Brown-Nagin has written of “law as a cultural resource.” Campaigns against police brutality from the 1960s through the present Movement for Black Lives have “invoked the national commitment to the rule of law and equal protection” in an effort to “demonstrate hypocrisy by the state or its agents” with the goal of gaining “public recognition and credibility,” Brown-Nagin notes. The tactic of using law to identify and resist the hypocrisy of the powerful can be observed in the practical implementation of law as well—in particular, the legal technique of appealing to precedent. By dint of law’s universality, a rule applied in one case ought to be applied in another. Combining this with the logic of precedent, the extension of rights to one person can serve as a foundation for the extension of rights to others.

Second, the individualized nature of adjudication—as well as the way that appeals to precedent require comparisons across different cases—forces a kind of recognition of shared humanity. Skilled lawyers recognize that the trial is a setting for narrative, in which the interests and characters of those whose behavior are at issue are put on display and organized into a story that will be recognizable—because of the way that the characters in the trial are shown to respond to universal human motives—to juries and judges and the communities at large. In her book Double Character: Slavery and Mastery in the Antebellum Southern Courtroom (2000), for example, historian Ariela Gross shows that the process of applying legal methods to the behavior of enslaved people served a humanizing function at odds with the views of enslavers—embedding into legal doctrine the fact that enslaved people were indeed people, rather than mere property.

Third, to the extent the law offers any constraints on governments and powerful interests, the enforcement of those constraints requires at least the credible threat of coordinated action by ordinary people, even if only by those privileged enough to enjoy the benefits of legal protection. But the need to recruit ordinary people into the law’s defense has significant consequences for campaigns for freedom and equality. For example, it assumes the existence of robust civil society institutions among those who benefit from the law. Of course, such institutions may be vulnerable to copying or outright joining by the subordinated: antebellum Black Americans organized their own churches and Freemason lodges, effectively creating their own civil society out of preexisting forms that whites deployed. Moreover, shifting power balances may well require that the privileged recruit the subordinated to help enforce their legal rights. That, in turn, requires that the substance of the law is, or can be, sufficiently to their advantage to motivate their participation.

These features of law may help explain why Black liberation activists have so often appealed to the law and the idea of individual rights protected by law. They have done so in both subversive and solidarity-building ways, sometimes both at the same time.

The very ideological function of law is to layer a veneer of universal justice over capitalist power relations.

A striking example comes from Black Panthers Bobby Seale and Huey Newton. In his book Seize the Time: The Story of the Black Panther Party (1970), Seale recounts a confrontation between Newton and the police over a demand to search a car full of guns. When Newton vigorously appeals to his constitutional rights, he appears to confound the police, who were clearly used to seeing the Constitution as the patriotic fount of their own authority. He then threatens to back up his appeal to law with an appeal to arms. “When the pig says, ‘You’re just turning the Constitution around,’ Huey says, ‘I’m turning nothing around. I’m exercising my constitutional right. I’ve got the gun to back it up!’” While the threat of violence was of course a key part of this confrontation, the universality of the law and the difficulty of openly saying that it protected police but not Black citizens played an inextricable role in supporting Newton’s resistance. His appeal to law also gave courage to observers, some of whom would later join the movement:

“Don’t go anywhere! These pigs can’t keep you from observing. You have a right to observe an officer carrying out his duty.” And these pigs, they listened to this shit. See, Huey’s citing law and shit.

Newton thus used the law to keep the police from responding effectively to his armed resistance and to prevent them from dispersing his audience. His audience, in turn, was inspired by his capacity to resist a small army of police, a foundational move in the Black Panther’s effort to build a force to protect their community from police violence: “After that,” Seale writes, “we really began to patrol pigs then, because we got righteous recruits.”

The Newton confrontation, like Douglass’s speech, tracks Thompson’s and Brown-Nagin’s account of how law can be used by social movements. Moreover, the way that Newton’s invocation of law confounded the police serves as a vivid illustration of Thompson’s claim that a ruling class can be trapped by its own habit of using law to support its own interests. It was precisely because the Oakland police viewed the law as the normative foundation of their own authority—precisely because it offered the rhetorical terrain in which they tended to win conflicts—that the officers were vulnerable to Newton’s tactic.

Newton fit his appeal to law into his broader movement goals by using the power of law as a recruiting tool. But the universality of law can also serve as a direct element of a political appeal by movement organizations. In 1838, for example, a committee of Black Pennsylvanians met to organize resistance to a new state constitution that would have stripped them of the right to vote. They released a broadside, “Appeal of Forty Thousand Citizens, Threatened with Disenfranchisement, to the People of Pennsylvania,” which emphasized two ideas. First, they argued that disenfranchising Black Pennsylvanians would make everyone’s rights less secure. “It is the safeguard of the strongest that he lives under a government which is obliged to respect the voice of the weakest,” they wrote. They also predicted that taking away their right to vote would undermine their incentive to participate in all kinds of collective projects: it would “starve our patriotism” and “turn into gall and wormwood the friendship we bear to yourselves.” Second, they argued that Black Pennsylvanians were the same in all relevant respects as whites: they had been considered citizens at the time of the state’s founding, they paid taxes, they were working and productive members of society, and they had served along with whites in the Revolutionary War.

It’s easy to argue for social solidarity as a substitute for legal rights when you’ve always enjoyed social recognition and acknowledged membership.

In one particularly interesting passage, the appeal responds to white objections that permitting them the vote would promote “intermixture of the races”:

Then let the indentures, title-deeds, contracts, notes of hand, and all other evidences of bargain, in which colored men have been treated as men, be torn and scattered on the winds. Consistency is a jewel. Let no white man hereafter ask his colored neighbor’s consent when he wants his property or his labor, lest he should endanger the Anglo-Saxon purity of his descendants? Why should not the same principle hold good between neighbor and neighbor, which is deemed necessary, as a fundamental principle, in the Constitution itself?

In its appeal to “consistency,” this passage is a sort of apotheosis of liberal legalism: it points to Black–white parity in market transactions as the basis for a parallel claim about political transactions. Yet, despite its capitalist and individualistic foundation, the actual use to which this claim is put isn’t an individual’s appeal for some kind of right to property but rather a liberation movement’s appeal for the democratic right to vote to pursue shared ends.

Like Douglass, the Panthers and the Pennsylvanians challenge the presumption that law is essentially individualistic—that it “ratifies and legitimates an adversarial, competitive, and atomistic conception of human relations,” as legal historian Morton J. Horwitz has put it—and that in virtue of its individualism it impedes efforts at political organizing. History reveals that law can play a much different role, one focused less on individual litigation or the belief that enlightened judges will save the oppressed and more on collective political action—and yet still be distinctively legal. Douglass recognized that the law could be turned into a force for good in the hands of “abolition statesmen”—that is, as the product of political action that made use of the distinctive and useful tools that law offers. The Panthers recognized that even abusive cops had been conditioned to take appeals to law seriously and used that knowledge to confound police misconduct and inspire acts of organized resistance. And the Pennsylvanians recognized that the logic of the law could be put to service in explaining their claims to full political agency in the first place.

This is not to deny that even successful efforts to use law to promote social progress risk reinforcing unjust power relations. In an unjust society, the law is bound to be double-faced. Consider what I have elsewhere called the “paradox of property” in U.S. law. On the one hand, property rights laid the legal foundation for slavery. (Indeed, the contention that enslaved people were “property” was the only legal argument enslavers had for the persistence and enforcement of their supposed legal rights over the enslaved.) The U.S. legal order’s property defense of slavery reached a peak in Dred Scott v. Sandford (1857), which struck down the Missouri Compromise on the grounds that Congress’s prohibition of slavery in the territories would deprive enslavers of their property. On the other hand, the conception of property embedded in this terrible legacy would ultimately be put to use as part of a campaign for Black inclusion. A century after Dred Scott, the Black-led National Welfare Rights Organization and the lawyers inspired by it scored a significant victory in Goldberg v. Kelly (1970), which expanded the constitutional conception of property in order to provide legal protections to recipients of certain government entitlements.

The individualized nature of adjudication forces a kind of recognition of shared humanity.

One might reasonably inquire about the price of such victories. To what extent, for example, did the manipulation of the concepts of property and entitlement to encompass welfare rights divert attention from challenges to the underlying economic inequality that made welfare necessary in the first place? Is the very enterprise of litigating on behalf of the rights of the poor “enmeshed in a social system—the attorney/client relation—consigning the poor to the status of dependent other,” as Anthony Alfieri has argued?

Again and again the record appears ambivalent. In 1866 Douglass’s vision of an abolitionist Constitution was achieved in the Fourteenth Amendment and its equal protection clause. It took another century and another victory in Brown v. Board of Education before desegregation efforts were implemented, and even that legacy is questionable. Yet still the Fourteenth Amendment was useful to Black freedom movements before Brown. Historians such as Megan Ming Francis and Michael Klarman have observed that the early criminal justice reforms of the Warren Court—including efforts to prevent coerced confessions and make the constitutional right to counsel real and effective—have their origins in the anti-lynching movement. After the NAACP’s efforts to obtain action against lynching in Congress and the White House failed, they turned to the courts, and—making use of the “incorporation” idea that the Fourteenth Amendment applied the criminal procedure protections of the Constitution to the states—won a number of early battles that both undermined lynch law and built some of the foundational precedent for the more robust rights that today’s criminal defendants still enjoy.

These victories seem equivocal at best. The constitutional criminal justice revolution of the mid-twentieth century may have established substantial formal rights for defendants, but the criminal justice system is still visibly and unjustly racialized. Victories within this context can sometimes seem to have mainly symbolic significance. For example, two recent cases, one in the Massachusetts Supreme Judicial Court (2016’s Commonwealth v. Warren) and another in the Ninth Circuit (2019’s United States v. Brown), have ruled that police are not entitled to draw an inference about guilt merely because a Black person runs away from them. The recognition that Black Americans have reason to fear the indignity and danger of racially unjust police attention seems meaningful—a consequence of generations of effort on behalf of Black freedom fighters to combine social movement–style street activism with appeals to law. But are those opinions practically significant? Will they lead to less police racial profiling?

These kinds of questions go to the heart of critical race theory, the leading movement in the U.S. legal academy examining race and the law. While there are many ways to interpret its earliest scholarship, the reading that perhaps best captures its origins sees two poles of thought about the relationship between U.S. law and the liberation of subordinated racial groups, each represented by one of the most prominent scholars in its founding generation.

Derrick Bell represents the first pole. Bell, who famously left Harvard Law School over its failure to employ tenured Black women, spent much of the early part of his career litigating school desegregation cases for the NAACP Legal Defense Fund. The popular narrative of that era held that such litigation made substantial headway against the institutions of U.S. racism. Bell’s experience led him to a far less sanguine conclusion: despite the movement’s legal victories, not much seemed to have changed on the ground. Writing a quarter-century after Brown, he noted that “most black children attend public schools that are both racially isolated and inferior.” (Even today, schools remain highly segregated, even without a government act specifically requiring it.) In light of these facts, Bell suggested that pursuing change through the law was destined to come up short. According to his theory of “interest convergence,” legal victories for Black Americans can only be won when they are also in the interest of whites. When those interests no longer converge—for example, when school desegregation ceased to be useful in winning a propaganda war with the Soviet Union—any gains will erode.

Law can be used to identify and resist the hypocrisy of the powerful.

Patricia Williams represents the second pole of the founding era of critical race theory. Much of her work mounts a defense—complex and nuanced, but a defense nonetheless—of the notion of legal rights. Offering a rejoinder to critical legal studies scholars and Marxists who argued that legal rights reinforced the atomizing tendencies of capitalist liberalism at the expense of a more genuine social solidarity, Williams pointed out that Black Americans had traditionally relied on legal rights–claiming to build a social identity in the first place. In effect, her work identified the white privilege of the legal academic left, even before the term “white privilege” had been coined: it’s a lot easier to argue for social solidarity as a substitute for legal rights, Williams argued, when you’ve always enjoyed social recognition and acknowledged membership. The value of legal rights starts to look very different from the standpoint of Black Americans who have lacked a reserve of social standing to draw on. “While rights may not be ends in themselves,” she writes in her 1987 article “Alchemical Notes: Reconstructing Ideals from Deconstructed Rights,” “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).

There is an obvious tension between the views of Bell and of Williams. But rather than work out that tension, critical race scholars have traditionally embraced it through the idea of “multiple consciousness.” Here is how Mari Matsuda, another prominent early critical race scholar, put it in a 1988 talk, speaking of the Black radical activist and philosopher Angela Davis (who was tried but acquitted for murder in the 1970s):

There are times to stand outside the courtroom door and say “this procedure is a farce, the legal system is corrupt, justice will never prevail in this land as long as privilege rules in the courtroom.” There are times to stand inside the courtroom and say “this is a nation of laws, laws recognizing fundamental values of rights, equality and personhood.” Sometimes, as Angela Davis did, there is a need to make both speeches in one day. Is that crazy? Inconsistent? Not to Professor Davis, a Black woman on trial for her life in racist America. It made perfect sense to her, and to the twelve jurors good and true who heard her when she said “your government lies, but your law is above such lies.”

This ambivalence itself speaks to the liberatory potential of law. Bell’s position recognizes that litigation alone cannot achieve social change—a view defended in a different way in Gerald Rosenberg’s The Hollow Hope: Can Courts Bring About Social Change? (1991). But Williams’s position identifies that the law—the ideals it represents, as well as the concrete outcomes that may be instantiated in legislation—can be integrated into political activism by oppressed groups. This is a key insight of the broader field of “law and social movements” as well. We must emphasize that in being capable of invocation on behalf of the subordinated, law still functions as law. That is, it still encapsulates the appeal to fundamental commitments like equal rights, the control of arbitrary power (whether by enslavers or lynch mobs or police), and the principle of treating like cases alike, but it does so as an element of a quest for collective, not individual, empowerment and liberation.