Abstract
Excerpted From: Lewis R. Gordon, A Black Existential Perspective on Afrofuturity and the Law, 112 Georgetown Law Journal 1409 (June, 2024) (132 Footnotes) (Full Document)
A guiding principle of Afrofuturism is that another world is possible. This possibility is linked to an unusual amount of weight on the imagination, since “possible” in Afrofuturistic literature often means thinkable. This imaginative recourse emerges from understandings that accompanied the Euromodern transformation of African peoples into “blacks.” In this context, there is a double move, for as there have been--and continue to be--many kinds of blacks, the focus here is on Afro-blacks, those concomitant with the rise of the African diaspora. Euromodern societies mark such blacks in specific moments and movements of their history, most of which distinguish those in the “New World” on one side of the Atlantic from those on the “Dark Continent” on the other, with the Indian Ocean on the continent's other side and the Mediterranean to its north. Yet even this demarcation needs elaboration and added complexity, for the diasporic elements outside of Africa have different markers than those within the continent. Even more, the varieties of Euromodern imperial efforts to subjugate Africans also transformed their subjugators. Thus, carried along are multiple converging forces of cosmological, legal, philosophical, and political reflections. The cosmological asks: How did the world or worlds emerge and what world is this? The legal asks: What kind of regulations of power are at play in this or these worlds? The philosophical asks: How do we make sense of what has happened in this or these worlds and how do we evaluate it? And the political, in a nutshell, asks: What is to be done for the health, legitimacy, maintenance, or transformation of this and any other world?
Because it focuses on worlds produced by racialized African peoples and their diaspora, Afrofuturist thought is a species of Africana or African diasporic thought. Africana thought is not identical to Black thought, although it includes elements of it. Black thought focuses on blackness or the circumstances and conditions of people whom Euromodern, Middle Eastern, and Southwest Asian societies “blackened,” and the questions that phenomenon poses. Blacks are, after all, not the same everywhere, although in most places, everyday people and theoreticians often commit the error of thinking their blacks are the blacks. North American blacks, for example, have similar and different histories from blacks in the Caribbean, Central and South America, and Africa, and we should also consider black peoples in South Asia and Oceania. And in some instances, blackness is made so specific that whole continents of black peoples--as is evident in Africa--are erased simply by virtue of not, say, having been kidnapped, subjected to the transatlantic Middle Passage, enslaved, and, even more specifically, Christianized. There are also complicated stories of blackenings in the West Asian peninsula known as “Europe” with which to contend--for example, the racialization of Circassians. There was, however, enslavement without racialization in West Asian or European history; theorists who equate blackness with enslavement should consider the etymological roots of “slave” in the people who became known in Central Asia/Eastern Europe as “Slavs.”
These complexities affect legal interpretations, since the legal systems and rationalizations of enslavers varied from those of, say, common law to code law to those premised on early theological decrees from “Christendom” to caliphates. For purposes of specificity, this reflection will focus on the Anglophone context, in which conceptions of law are mediated by a dialectic between common law and positivist law (or law determined by fiat of an executive, legislative, or official administrative body). These, of course, have a history of their own rationalizations from appeals to so-called divine law to so-called natural law. An irony of such metaphysical assumptions is that legitimation through the divine and the natural often follows the logic of theodicy. The term “theodicy” is a conjunction of the Greek words theos (god) and dik (justice) that addresses the supposed compatibility of the divine's presence in a seemingly unjust world. The rationalization took at least two forms. The first was that the god's will was beyond our comprehension, which made injustice an expression of human limitation. The other was that the benevolence of the god granted human beings freedom, which made the deity not responsible for human actions. In sum, the god's perfection is preserved. Theodicean logic appeals to the intrinsic goodness and absolute power of the god. If we apply this logic to a legal system, the conclusion is that any contradiction of its goodness stands outside of it. This amounts to adherents perceiving or at least appealing to the system as intrinsically good. Anglo-legal rationalizations are not immune to this fallacy, as history has shown through judicial interpretations in which the basic goodness and justice of the system is presumed, whether it be the American, Canadian, Australian, or South African (post-apartheid) constitutions, among many others. In the U.S. context, the presumption of intrinsic goodness is so strong that even the country's most renowned political philosophers and political theorists, the late John Rawls being the most eminent, sought justice in the “basic structure,” which included the legal institutions of U.S. society. There were, of course, jurists, philosophers, and political theorists who thought otherwise. That many were Black, such as Martin Delany, W.E.B. Du Bois, Charles Hamilton Houston, William Patterson, Paul Robeson, and Bayard Rustin, or Native American, such as Vine Deloria, Jr., Sarah Deer, and Glen Coulthard, reveals a system that tends to fall short for African Americans and Native Americans. For them, there is a flawed deep structure at the founding of a legal system that centers enslavement, inequality, exploitation, racism, land theft, and the expulsion of Indigenous peoples at the heart of its juridical aspirations. Appealing to that deep structure as ultimately just is, even in avowed liberal form, conservative and contradictory. Instead, those critics in effect appeal to other sources of authority, which some legal theorists, from Frederick G. McKean in the early twentieth century to Drucilla Cornell in recent times, prefer to call “the law of laws”--in other words, that which brings authority and legitimacy to law beyond mere sovereignty.
To understand the source of these critiques, there are some theoretical resources from Africana philosophy, particularly its Black existential variety, that illuminate discussions of Afrofuturity.
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An aspect of existential thought that is difficult for those invested in a model of action premised on knowing outcomes before performance is that optimism and pessimism are two sides of the same coin. Both optimism and pessimism reduce action to a specific manifestation--advanced or expected knowledge--counting for the whole. Yet there are so many instances of acting without advanced knowledge of outcomes that such a model would render most of human life unintelligible. It is possible to act through existential commitments--namely, what brings coherence and meaning to a human being's life. Where pertaining to institutions of power and their transformation, such action is extended into existential political commitments.
Committed political actions don't offer guarantees. That is one of the conundrums of what has historically distinguished right-wing-oriented actions from left-wing-oriented ones. The former seeks salvation in a past that promises, albeit in a distorted way, immediate satisfactions of order and security, usually by way of traditions, forceful authority, and antipathy to difference. The latter accepts the taking on of responsibility for what is to come as a feature of human existence. I added “historically,” however, because there are forms of avowed leftwing orientations that seek closure in the form of absolute, binary constructions that slide into the logic of the right despite claims of being otherwise. There are many examples, but perhaps none that was made more starkly in the realm of Afrofuturistic representation than the antagonist Killmonger's edict in the film Black Panther, summarized by W'Kabi, the former head of security: “The outside world is catching up and soon it will be the conquerors, or the conquered. I'd rather be the former.” Although there were audience members that extolled Killmonger as the real hero, they may think otherwise if they were to realize that such a position is a false dilemma. Why not fight for a world rid of conquest? Why not recognize, as others have argued from Fanon to Cornell, that “violence” versus “non-violence” is complicit with violence and that one should be actively anti-violence, which requires building better societies? And perhaps more concrete, under whose governance would they prefer to live--T'Challa's, in which one could make fun of the society's most powerful figure, or Killmonger's, in which any challenge would be met by the threat of a broken neck, as he did to a female elder?
There is something of which one must let go to transcend conservatism and the lack of imagination about transcending the status quo, and that is the ego. Not taking oneself too seriously affords relationships with others. Much of the conservative impulse is to forego this through a perceived security in the quest for certainty through returning to an imagined safe place, traditional organization of power, or set of values. Adult life, however, is the realization that no one is ultimately “safe.” There is an extraordinary adult sensibility to this form of thought. It faces, constantly, the human dimensions, the metastability, of its strivings. Realizing that nothing can emerge without action, there is an intimate relationship with conditions by which any future can be built and the often-dreaded truth that the future may not necessarily be a better one. But for a better one to have any chance of coming to fruition, actions by which such conditions are laid must be made. Placed in the context of law, legal conditions are, in the end, part of a story greater than themselves. They are, however, a very important part that offers, in the words of Billy Rose and Edward Eliscu, “more than you know.”
Board of Trustees Distinguished Professor of Philosophy and Global Affairs at the University of Connecticut (
