Yuvraj Joshi (Doctoral Candidate, SSHRC Fellow, ISPS Fellow, Yale Law School) has posted to SSRN his article Racial Justice and Peace, forthcoming in the Georgetown Law Journal (2022). Here is the abstract:
The United States recently saw the largest racial justice protests in its history. An estimated 15 to 26 million people took to the streets over the killings of Breonna Taylor, Tony McDade, George Floyd, and countless other Black people. This Article explores how these protests and their chants of “no justice, no peace” should lead us to reconsider American equality law.
The Article surfaces legal claims—here called “peace-justice claims”—that address the relationship between ameliorating inequality and achieving peace. Using unpublished archival documents, it tells the story of how Americans embroiled in early desegregation debates sought competing visions of peace that either included or excluded justice, and how the Supreme Court’s decision in Cooper v. Aaron arbitrated those claims to promote integration despite massive resistance. The Article also traces how those claims have evolved and how the Court has used peace and justice considerations to limit rather than advance minority rights. This analysis shows that intertwined arguments about justice and peace, not just equality and dignity, lie at the heart of equal protection doctrine.
By using sources of both legal and social history to capture the peace-justice claims of policymakers, social activists, and lay people, this Article contributes to a “new civil rights history,” expanding the scope of legal actors beyond lawyers and judges. Juxtaposing minority claims with court-developed legal doctrine highlights the Supreme Court’s inadequate recognition of the peace-justice interests at stake. Taking “no justice, no peace” seriously, courts should recognize the exclusion and estrangement of Black people as a basis for minority-protective interpretations of the Constitution.
This attention to peace-justice claims is enriched by insights from transitional justice, a field that helps societies to overcome histories of oppression. Although societies require both peace and justice, these values sometimes appear in tension, leading to what is internationally known as the “peace versus justice dilemma.” Viewing legal cases as sites of this dilemma draws attention to whether Americans seek a “negative peace” based on the suppression of social conflict or a “positive peace” grounded in the pursuit of social justice. American law and legal institutions should strive for positive peace by addressing structural inequalities.
The full article is available here.
