Document Type

Article

Publication Date

2002

Abstract

Doctrinal analyses help us understand what law does. Identity theory helps us understand why law operates in certain ways. Cultural studies can help us understand that where law operates is crucial to both how it operates, and on whom.

Nancy Ehrenreich's Subordination and Symbiosis: Mechanisms of Mutual Support Between Subordinating Systems is especially valuable because her symbiosis theory expands identity theory. Ehrenreich turns our attention to the subjectivities of those who are partly subordinated but mostly privileged-those who accept their own oppression in return for the "compensation" of being able to use the law to subordinate others. Nonetheless, symbiosis theory cannot fully explain why a practice develops in some places but not others even though the relevant identities are the same. To understand the difference context makes, we must use cultural studies to analyze how discourses were constructed and translated into practices in particular contexts. We need a "critical cultural theory" methodology that synthesizes doctrinal, identity theory, and cultural studies tools.

In this article, Professor Frank Rudy Cooper advocates for a doctrinal analysis that reveals implicit assumptions about identity, as a beginning to a critical cultural theory methodology. He argues that we should use identity theories to show how enforcement practices vary when applied by particular social groups and/or to particular social groups. We should then use cultural studies to show how a particular context led to a particular social consensus about the appropriateness of a particular enforcement practice. Those analyses should be organized by considering the construction ("encoding") and reception ("decoding") of the discourses about the relationship between law and identity that were in play in a specific cultural context.

In Part I of this essay Professor Cooper defines and analyzes the practice of "depolicing"-the withdrawal of proactive crime investigation in racial minority neighborhoods. In Part II, he reviews insights gained from Nancy Ehrenreich's symbiosis theory of identity and applies them to depolicing. In Part III, he argues that we need to join cultural studies analysis to identity theory in order to form a more comprehensive "critical cultural theory" methodology. He then briefly applies the methodology to the practice of depolicing. In Part IV, Professor Cooper concludes.

Publication Citation

71 UMKC L. Rev. 355 (2002).

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