What Use Is Hope in Grief? Despair, Racial Injustice, and the Law School

I had no idea where this essay was headed when I started writing. I tried to make it thematic, but I suspected that it would probably end up as a stream of consciousness with no conclusion. This mirrors the various ways in which we are impelled to model hope, optimism, and self-congratulatory language in the face of racial injustice in the neoliberal university. And so we move with the waves that crash into us… unexpectedly… a stream. Thus, in this post, I will be using some stories and thoughts of hope – in the classroom, in the course of research, and beyond – to question the nature and value of the nebulous thing called ‘hope’ as we grapple in myriad ways with waves of racial injustice.

It was Day 2 at the Law and Society Association 2024 Annual Meeting in Denver, Colorado, in the USA. My book was the subject of an Author Meets Reader session on Friday, the 7th of June, and I was in conversation with Professors Chaumtoli Huq and Joel Modiri. It was a really lovely conversation. Then Joel posed a question. To paraphrase, Power and Possibility is a hopeful book, and this seems to be in a similar vein among books of this genre. But… why exactly do we have to ensure that our work on racial injustice and the horror of the imperial machine ends on a hopeful note? Can we not sit with the trauma a bit? I have been thinking about that question a lot since that day. Though, the entire conversation was one I will soon not forget. When you are in conversation with people who have lived and theorised the colonial conditions they were born in, the talk hits different. There is no easy glossing over the actual horrors that we must “move on” from. There is no pretending that now they are all the past and no longer haunt us daily. Here, hope seems redundant. The harm is there. It has happened. Is happening. What use is hope in grief? Can we not just sit with it a second? Be quiet a second?

This imperative to move quickly past the horror reminds me of an incident that happened after a talk I gave about the teaching, research and experience of racial injustice in law schools in the UK. As an aside, these types of talks always produce very “interesting” experiences for the speaker, especially when such a speaker is intimately aware of the subject of which they speak. I often think that a special category of hazard pay should accompany this task. The gaslighting—intentional and unintentional—is “wonderful” to behold! For some people, the very notion that “progressive” institutions such as universities could possibly harbour any form of racism is such an outlandish prospect. It often feels that they would rather believe that all their colleagues and students of colour were lying! Anyway, I finish my (quite mild, I think) talk. A colleague pops up; almost immediately my mouth closes. They thank me for the talk and then point out that I failed to mention all the “diversity” advances that have been made. Sigh. We are forced to be hopeful, or else some people may feel uncomfortable. Deep. Ancestral. Sigh.

On the 6th of November 2024, I was in conversation with Bharat Malkani at a book launch for the monograph Racial Justice and the Limits of Law. An aside: What a fantastic book!!! I really recommend that you read it as soon and as often as possible. In the book, Bharat very skilfully demonstrates the ways in which the law has been used to execute racial injustice and thus excavates how the ontology of the law is not tailored to produce racial justice. Euromodern law’s very character is steeped in the production of inequality—in many ways, but specifically racial inequality. While Bharat illustrates the many ways the character of the law prevents the achievement of true racial justice, the final chapter, “Antiracist Lawyering”, contains some examples of how racial justice can be achieved from within the practice of law. I echoed Joel’s question to him: Why must we be forced to produce imperfect but hopeful responses to the law’s intractable relationship with racial injustice? Can we just sit with the trauma? What use is hope in the face of all this history weighing down on us? His response was to express similar sentiments to mine: Especially for those born into the shadow of the imperial machine, the trauma is there, often more than we can bear. But it is that unbearability that pushes us to do something; doing nothing is not an option left open to those of us born into the shadow of empire. Hope, however imperfect, oils the wheels of our action. He also quoted James Baldwin:

I can’t be a pessimist because I’m alive. To be a pessimist means that you have agreed that human life is an academic matter. So, I’m forced to be an optimist. I’m forced to believe that we can survive whatever we must survive.

Legal Pedagogy, Racial Injustice and Disenganging from the Affective Domain

Can we translate this imperfect image of hope into what we do in the law school classroom? I sometimes feel that law students have almost always existed in a state of despair. The demands of the discipline and the job market it provides produce particular forms of despair for them. For those students who have experienced racial injustice, that despair gets compounded. As I mention below, the paradox that law presents as producer of and solution to racial injustice is one we often contend with as scholars of law:

“I, like many others before and after me, came to the law school, because I heard freedom and justice and peace in its name. However, in time we all learn, though often not so explicitly, that the coloniser’s justice is not justice for the colonised. We learn that ‘the claim of the universal translatability of the English word “justice” … is an extraordinarily presumptive one’ (Gordon 2013: 70). We all learn that peace is not equally distributed. We all learn, eventually, that freedom for those racialised below the abyssal line is not the
same for those racialised above it.” Adébísí, Folúkẹ́. Decolonisation and legal knowledge: reflections on power and possibility. Bristol University Press, 2023. iv

Very often, students come to the law school hoping to change the world—make it better. We tell them, in so many words, the world cannot be changed; it can be governed; it can be ruled. You can rule with the law, but you can never overrule the law. This is the law; the law is paramount. Abandon hope, all ye who enter here. Racial injustice is here to stay.

As teachers of law who also engage with its paradoxical relationship with racial injustice, one must often strike a delicate balance between teaching the absolute traumatic realities of law’s complicity with racial injustice and holding forth hope that something better can come from all this chaos. Too far in either direction leads always to inaction. Too much detailed trauma, and we are left drowning in our sorrow, unable to move. Too much “hope” and self-congratulation, and nothing is done, because we think it is all done. In legal education, in particular, this balance is hard to strike, because too little attention is paid to the affective domain of teaching and learning.

Writing in 1956, Benjamin Bloom identified three domains where learning happens: cognitive (mental), psychomotor (manual), and the affective (emotional). While HE pedagogy broadly seems to focus on the first two, legal education mostly focuses on the first. Yet, according to Bloom, the affective is vital to forming understanding. It describes the manner in which we deal with things emotionally, such as feelings, values, appreciation, enthusiasms, motivations, and attitudes.

Especially for law students who know deep in their bones that racial injustice is a problem, a failure to sit with the trauma means that law requires and mandates them to disengage from their feelings. In fact, for racialised students, it is often the case that to do well academically, they have to leave themselves outside of the classroom. Emotions have no place in legal analysis. And even factually acknowledging the way the law upholds racial injustice would be considered emotional and un-lawyerlike.

As Crenshaw explains in relation to legal analysis, the prism of the analysis one is expected to adopt is an approach of “perspectivelessness”. In other words, a mode of analysis that proceeds “without directly addressing conflicts of individual values, experiences, and world views.” The problem with this, of course, is that the dominant view that racialised scholars must adhere to is a perspective that inherently does not see them… cannot see them. Any student who chooses to mention the existence of racial injustice “would risk being regarded as an emotional—perhaps even an hysterical—Black person railing against the law in an obviously biased, unlawyerlike manner.” Crenshaw (1988): 1. 

There is an interesting contradiction here. On the one hand, many educational specialists like Bloom (and many others, e.g., Green & Batool [2017]; Brett et al. [2003]) have demonstrated to us, backed by research, that active learning requires engagement. For students to be engaged in the learning process, they would need to bring their whole selves into the classroom. But legal reasoning requires students that belong to marginalised/minoritised groups to immediately heave most of their selves out the windows of the law school classroom to engage in “proper” legal analysis. Especially in Higher Education, there is great reluctance to enter into educational activities that border on the “touchy feely”. Nevertheless, what we are doing by failing to acknowledge the experiences that our students bring with them is turning our back on reality. The exact opposite of what an education institution is meant to be doing. We are failing to engage with our students’ fears, hopes, despair, motivations, and ultimately the futures that they could possibly help to bring about. Education should strive to produce the best future possible for our world by equipping our students to be the best versions of themselves, no? No. Apparently.

Abandon hope. Abandon yourself, all ye who enter here.

The Uses of Despair

I remember a colleague and I, a couple of years ago now, asking a classroom of students how they thought the law could help produce a better future for the world. After a few half-hearted answers, the class quickly agreed that they saw no hope for the future of the world. I was surprised at how collective that despair seemed to be. There is an overwhelming sense of hopelessness that has pervaded my conversations with students over the last few years that we would do well to take on board. I also remember another colleague who loudly lampooned the idea of acknowledging our students’ trauma. ‘That would be mollycoddling and spoon-feeding them!’ this person derided. Yet, in my experience, academic work that acknowledges racism and inequality and oppression and the impending destruction of the earth is in no way easier than any other form of learning. It is oftentimes harder, more complex, as it is fighting against the grain, and that is exactly why we need to bring care to our teaching.

Acknowledging despair means that we must do something in the face of all *gestures wildly at everything* this. That something must always start by honestly (and painfully) acknowledging the truth of where we all are and how we got here. Very, jumping quickly to expressions of hopeful futures only serves to obscure the depth of trauma and harm in the past and the present. Trauma and harm that we are yet to contend with. Those who have been harmed, are being harmed, are yelling—see me! SEE ME! What is the use of telling a student who has just lost family members to racial violence that our awarding gap has crept up by a whole 5% and we have blasted past our diversity targets by 10%? What. Is. That?

The despair is real; it is here; it is felt. So, we must start with despair. But then we should act. For me, hope is the action. Hope is not benign, passive wishful thinking, but radical action grounded in an acknowledgement that for many the world is unlivable and something must be done about that. We who believe in freedom cannot rest; we must act on what we hope for. Even when, like Harriet Bailey, we don’t know what that action may bring. We do what we do because we are alive. As long as we have breath, we try. When tomorrow’s sun rises, maybe we will have made some difference – no matter how small.

But who was Harriet Bailey?

In or around 1817 in Maryland, a Black enslaved woman, Harriet Bailey, gave birth to a baby boy whom she named Frederick. Shortly after her son was born, Harriet was sold to a plantation 12 miles away from Frederick. She died 7 years later but tried to visit Frederick as often as she could. These visits are described in the opening paragraphs of The Narrative Life of Frederick Douglass – her son.

I never saw my mother to know her as such more than four or five times in my life; and each of these times was short in duration and at night…She made her journeys to see me in the night, travelling the whole distance on foot, after the performance of her day’s work…I do not recollect ever seeing my mother by the light of day. She would lie down with me, and get me to sleep, but long before I waked she was gone.

Frederick Douglass is described as a social reformer, abolitionist, orator, writer, statesman, and one of the most important leaders of the early civil rights movement in the USA. Harriet poured all her love into her son, even though she didn’t know what that action would bring. That is the type of hope that matters. There is still despair. There is still pain. But we do something. Because we are still alive. While we are still alive.

References

Adébísí, Folúkẹ́. Decolonisation and legal knowledge: reflections on power and possibility. Policy Press, 2023.

Bloom, Benjamin S., ed. Taxonomy of Educational Objectives: The Classification of Educational Goals: Handbook I, Cognitive Domain. New York: Longmans, 1956.

Brett, Amy, Melissa Smith, Edward Price, and William Huitt. “Overview of the affective domain.” Educational Psychology Interactive (2003): 1-21.

Crenshaw, Kimberlé Williams. “Toward a race-conscious pedagogy in legal education.” Nat’l Black LJ 11 (1988): 1.

Douglass, Frederick. Narrative of the life of Frederick Douglass, an American slave. Random House, Incorporated, 1845.

Green, Zane Asher, and Sadia Batool. “Emotionalized learning experiences: Tapping into the affective domain.” Evaluation and program planning 62 (2017): 35-48.