Befitting the bleaker side of “precedent”, Boston University Law School recently announced its courageous appointment of the first “Critical Race Theory” professor in the nation.
The private university selected Angela Onwuachi-Willig (right), the law school dean, as the first Ryan Roth Gallo and Ernest J. Gallo Professor. The Gallos endowed the position with a $3 million gift, according to the Bostonia, the university’s alumni magazine.
Onwuachi-Willig also is the dean of BU Law School, and some might wonder about the propriety of the university to appoint the dean of the law school to a specially-made professorship that is under the rules and observation of the very same dean. Likewise, some might wonder what role she had in the decision-making process for her own appointment to the professorship.
Burnett and The College Fix attempted to get more info from BU, but, no surprise, the university didn't comment.
The law school dean would not provide comment to The College Fix, instead forwarding requests to media relations staffers who declined to comment on the dean’s appointment.
But Burnett notes:
’This process likely involved the donor and the university president,’ Don Heider told The Fix via a phone interview. Heider is the executive director of the Markkula Center for Applied Ethics at Santa Clara University where he also is a professor of social ethics.
He said it is likely Onwuachi-Willig would have had no say in the process.
And, since this is a position created by BU thanks to a private gift, some folks who embrace the principles of free association and market choices might be averse to criticizing the university’s decision.
But, of course, there are two key points one might consider adding to the mix.
First, Boston University is private, and this position is the result of a grant, but BU is subsidized by government grants, and portions of the university funds go to promoting this new position, to insurance, building maintenance, and more. It’s difficult to call a privately endowed position “private” when it’s set up at a school that is subsidized by tax cash.
Second, we have the substance of the “critical race theory” argument – if it can be called “substance” at all.
That argument is predicated on a postmodernist approach to language, history, and reality, an approach that claims the power to define words in new ways, claims the power to say that users of those words operate according to evil, innate biases, and that the entire “system” in which people exist today is inherently “racist”.
So, as Burnett observes:
’Race and racism are basically baked into everything we do in our society,’ the law school dean told The Boston Globe in September. ‘It’s embedded in our institutions. It’s embedded in our minds and hearts.’
Which is a decorous way of saying you’re racist and you’d better not argue with her.
’There are also the myths that we tell ourselves in law that we’re supposed to be these completely neutral beings and that the law itself is completely neutral,’ Onwuachi-Willig said in an interview with Slate.
Which is supremely naïve, and reflects a profound misunderstanding of the difference between “law” and “statute.”
The term “law” pertains to Natural Law, which is the immutable fashion by which all human interactions operate. Some philosophers, such as John Locke, argue that Natural Law is God-given, while others, such as Immanuel Kant, used rational logic to reach a similar conclusion: that man has the right to be left alone, and such a right is neutral, reciprocal, and universal for all human beings.
Statutes, by contrast, are products of the state. They are orders and prohibitions created by people who receive tax money forcibly taken from citizens and, possibly, from those visiting said locale over which the polis, or political power, “rules.”
All statutes are non-neutral and immoral, because the only way they are written is through the polis, which can only exist via the forced expropriation of other peoples’ money.
The fact that a “law” professor does not recognize this profound, axiomatic distinction is extremely troubling.
And there’s another enormous problem with Onwuachi-Willig’s stance – something that hides in the next statement Burnett quotes – a position that many “law” professors blindly adopt, as well.
People do this ‘[w]ithout recognizing the actors that wrote the laws,’ she said and ‘without recognizing who was left out of the creation of those laws, without recognizing how precedent reifies the exclusion of certain voices from the creation of case law.’
The problem is that, despite her employing a pseudo-intellectual term like “reify,” Onwuachi-Willig’s legal ethic is based on two faulty assumptions.
The first error she embraces is the belief that statutes ever can be separated from the human biases of those who write them. Her displeasure that certain “identity” groups might have been left out of “writing” said statutes overlooks the realities that all statutes are forced on people, that not everyone can be represented by the state writing and imposing the “laws,” and that not everyone will benefit or be harmed equally by those statutes. To insinuate that certain “groups” haven’t been part of the “lawmaking” power of X, Y, or Z generation is to negate individualism, replace it with racism and “racial identity”, and overlook the fact that, today, “systemic” racialism and racism are practiced by every state and by the federal government to “fix” racialism or racism of the past, creating new victims and beneficiaries in a contemporary generation that had no control over decisions made centuries or decades ago.
But, as important, Onwuachi-Willig’s comment reflects a fundamental problem that is endemic in most “law schools”: the inappropriate reliance on “case law” and what is called “stare decisis” (“to stand by things decided”) in jurisprudence and in “law school.”
Simply put, there are no such things as “case laws.” There are rulings, decisions, and opinions on cases involving statutes. Rulings, decisions, and opinions do not change the statutes, statutes do not change constitutions, and constitutions – which are purportedly created to protect natural rights, but keep failing to do so – do not change Natural Law.
In fact, political constitutions, even the US Constitution, because they support the creation of a polis, are all breaches of Natural Law.
But in the American system of jurisprudence, the US Constitution and various state constitutions are supposed to be the “rules” by which the political subdivisions operate, not unconstitutional “statutes” and certainly not the “case laws” professors such as Onwuachi-Willig insinuates have not included enough members of certain “groups.”
The only “law” that is blind to the influence of certain groups is Natural Law, and it is blind to “identity politics” because it is free of the polis. It is God-given, universal, and inherent to mankind.
Don’t expect this to be part of the new BU “Critical Theory” word-salad this postmodernist serves to the next generations of attorneys.