John Ernest, Eberly Distinguished Professor of American Literature at West Virginia University, has written a new book, Chaotic Justice, that should appeal to lawyers and law professors alike. Ernest’s project began with basic research on Frances E. W. Harper’s Iola Leroy (1892), but over time Ernest realized that, in his words, “I did not know nearly enough about the literary and cultural history on which, according to my doctorate and professional experience, I was supposed to be an expert.” Ernest found himself “increasingly convinced that we cannot appreciate American literary and cultural history without a deep understanding of nineteenth-century African American literature,” so he set out to gain that understanding and to convey his findings to a wide audience. Some of the articles he published along the way—in such journals as PMLA, African American Review, American Literature, and Arizona Quarterly—appear in the book, albeit in slightly different form.
Examining a vast network of authors who shaped the African American literary corpus, Ernest, a critical race theorist, has strong words for those who teach histories and theories about race as a nod toward idealized multiculturalism. “Too often,” he says, “social progress relating to race is considered to be an approach toward an imagined horizon by which either the color line gradually disappears or an imagined multiculturalist ideal emerges—an escape, in effect, from a social world largely constructed by and long devoted to racial theories and racist practices.” More harm than good, in other words, will come of a curriculum that celebrates a quixotic post-racial future while overlooking—or, worse, generalizing—about America’s fraught history of racism.
For Ernest, the institutionalization of African American studies is problematic because it risks settling the story—via canonization of texts and figures—before the story has really ended. The field will become marginalized if it continues to simplify and de-contextualize race by treating African American writings and figures as solely inspirational without attending to their endless complexities, contradictions, ambivalence, and geneses. Race as a meaningful category of discourse will also lose currency if scholars continue to overlook the role that white identity plays in works by white authors, to stereotype African American identity as always bound up with oppression, and to dabble in trendy currents of African American studies without attending to the broader history of Black studies.
Rejecting a chronological approach to African American history, Ernest means to explore its activist roots in the nineteenth-century. He seeks “an understanding of literature devoted to interrogating the social order constructing community, and promoting concepts of justice beyond those imagined by most white sympathizers.” Here the legal community could learn much from Ernest, especially from his argument that in the face of unimaginable injustice, nineteenth-century African Americans turned to literature to negotiate the parameters—often legal—of racist society. Put differently, African Americans used law to correct injustices, even though law itself was rarely just.
Justice is an ancient concept. It’s the skeleton of our legal system. It frames legal education. What law student hasn’t heard of the distinction between redistributive and restorative justice? What prosecutor, defense attorney, or judge hasn’t considered just theories of punishment from deterrence to rehabilitation? Ernest’s book is not an examination of justice per se but an investigation of how African Americans balanced and made sense of competing claims of justice during the most complicated years of American history.
What is chaotic justice? Basically it’s a theory of complex design, a process of recovering, revisiting, and revising texts. It is ordered almost paradoxically by the disorder within. It is a rigorous study of (mis)representations and a piecing together of that which cannot add up to a comprehensive whole. The history of Black Studies, African American literature, literary criticism, critical race studies and so on consists of various schools of theory that often work at cross-purposes but that nevertheless seem to influence each other. Taken together, these schools make up a dynamic and sometimes confusing body of work. As this body has expanded, the history of theorizing about primary texts (legal codes, autobiographies, slave narratives, etc.) has become as telling as the primary texts themselves, especially as secondary texts have become primary texts in their own right—i.e., as secondary texts have become sites of future theory and study. In a way, Ernest’s book is a critical look at secondary texts, an evaluation of earlier evaluations.
“I am interested,” Ernest remarks, “in the scattered materials, the gaps, the holes that are also a vital presence in this literary tradition.” Such lacunae are evident in legal documents such as Chief Justice Roger B. Taney’s opinion in Dred Scott v. Sandford,[i] although Ernest’s focus is more on purely literary texts. Legal texts are, however, central to Ernest’s argument. Chapter four, for instance, deals principally with law and legal institutions. “Nineteenth century African American literature,” Ernest explains, “is characterized fundamentally by the need to consider the legal realities of African American life and by various attempts to realize the possibilities of the instabilities in American legal and social practice.” Ernest goes on to suggest that a full understanding of race in America is incomplete without a study of law: “To explore the systemic manifestations and operations of race, one would need to examine laws whose effects or limitations led to additional laws, institutions that inspired or enforced certain modes of public behavior, shifting discourses that followed from legal and institutional experience, and the ways in which the cultural scripts (and the human resistance to such scripts) shaped by legal, institutional, and social life led to shifts or revisions in various laws, institutions, and social practices.” I would add to Ernest’s observation that a full understanding of law in America is incomplete without a study of the literature that molded, undermined, or otherwise called into question the established legal order.
Readers who are unfamiliar with Henry Box Brown, Frederick Douglass, Harriet Wilson, and, among others, William Wells Brown, may have difficulty following Ernest’s analyses, which rely heavily on these authors’ narratives. That is all the more reason for the legal community to turn to these authors. Nineteenth-century African American literary culture is largely responsible for the many faces of law as we know it today. If Ernest’s book is not an exhaustive account of how literature troubled or affirmed American notions of law, it is at least an insightful introduction.
[i] See, e.g., Allen Mendenhall, “Haunted by History’s Ghostly Gaps: A Literary Critique of the Dred Scott Decision and Its Historical Implications,” The Georgetown Journal of Law and Modern Critical Race Perspectives, Vol. 1, No. 1 (2009: 259-287).
This review appeared in the July-September issue of The West Virginia Lawyer. View that version here.