The Online Journal of Contour biennale

April 11 2017

Speculations on a Transformative Theory of Justice

By Denise Ferreira da Silva

Scene 1—International Airport, Departure area: the writer, the only black person in the scene, is waiting to board a plane to KL on her way to Melbourne. Two security officers, one black and one colored, approach her and ask for her passport, then ask what she was doing in Cape Town, she answers, they ask where she was going, she answers, then they ask what she was going to do in Australia, she answers. They were perhaps too many answers for them. They wished her a good trip and left without approaching anyone else at the crowded gate.

Scene 2—The Bronx, United States, A vestibule: A young black man stands outside his apartment building in The Bronx. An unmarked police car approaches; it stops. The cops get out of the car and tell him to put his hands up. He reaches for his wallet where he keeps his immigrant papers. They shoot him forty-one times, in less than ten seconds.

How to read such scenes? What becomes of justice in the face of racial events that violate with and without words? What are the facts of racial violence? Where are the signs of the violation of a right or of the perpetration of a crime? Who is to tell what knowing about these scenes does to how we deal with what comes next, the aftermath of daily racial violence: the banal violations of rights or of the always already justified murder? Who cares? Does it matter? If justice, conceived as a thing, does exist; if, as Jacques Derrida states, justice exceeds representation, if deconstruction is justice,11Jacques Derrida, “Force of Law: ‘The Mystical Foundation of Authority,’” in Deconstruction and the Possibility of Justice, eds. David Gray Carlson, Drucilla Cornell, and Michael Rosenfeld (New York: Routledge, 1992), 14. a proposal for a transformative theory of justice makes no sense because that which can receive another form, a different form, that is, that which can be transformed must have content. To be sure, it must be content, that is, a material to which a different form will be given. That is not, however, how justice has been figured in modern thought: always already in reference (as reverence) to Law, Form, and Rules, justice is assigned to juridical architectures. At first, it is given as a task to the administrative machinery responsible for the determination and management of punitive and remunerative measures as mandated in the books of law. Later, justice, as a task, is extended to the executive machinery, the function of which becomes the designing and deployment of corrective instruments in the hope to address demands from the majority who do not benefit from the social (economic) ameliorations produced with that parcel of the value capital appropriated from labor it does not directly invest in its own reproduction or in the luxuries enjoyed by its owners and their beneficiaries. The question becomes, then, if the existing mechanisms of justice, namely the administrative and the executive—both of which have prevailed for the whole life span of the liberal architectures that sustain capital, in its latest iterations—have been oblivious to racial violence, what would justice become if raciality entered its formulation? Would it yield a program for the realizing of justice—a plan for forcing it to deal with the violations, the injustices, proliferating in global existence—that does not rest on the obscuration of how the total value expropriated from slave labor and native lands exists now as global capital? My thesis is: global justice designates a plan for decolonization, that is, it both attends to and aims beyond the modern matrix of power (juridic, economic, and symbolic) architectures that are responsible for the pervasiveness of racial (total, institutional, symbolic) violence in the global present. From the urgency given by the evidence that the disregard for the political significance of raciality is the most powerful impediment for the realization of the liberal program of justice, I move to offer in this short essay an outline of a thesis and a praxis as a contribution to the preparatory unthinking work necessary for figuring decolonization as the aim of a transformative theory of justice.


Whenever I consider writing as if answering what-if questions, I find my thinking at that juncture where speculation disappears along with the distinctions between thinking and imagining, philosophy and fantasy, and the like. Asking what-if question is necessary precisely because any plan for decolonization that aims at global justice—that is, the return of the total value expropriated from native lands and slave labor under the regime of total violence—cannot depend on modern knowledge and its tools. Why? From the outset, the prevailing plan for social or executive justice has relied on social-scientific knowledge projects that rest on formalization and efficacy, a process that is modeled after a scientific program’s stipulation that knowing requires demonstration (theoretical or practical)—both mathematical and experimental. For this reason scientific universality now dominates discourses on social justice, as social-scientific findings have provided the ammunition needed for social justice movements since at least the Civil Rights Movements in the first half of last century. Because the tools of social-scientific knowledge play such a crucial role in the justification of racial violence and the attendant ethical indifference with which it is met, what-if questions seem to me the only appropriate point of departure for considerations of justice and projects for its realization which take seriously how the racial structures modern liberal architectures. For the most part, this text is a speculative exercise, in which I identify but do not develop a thesis of global justice and its companion praxis (a way of knowing and doing).

What distinguishes global justice from existing formulations of justice is that it forces an account of racial violence as well as of its relation to colonial violence. My view is that because it refers to the colony—that is, the modern juridical framework ruled by the liberal figuring of the state as a self-preserving force—racial violence escapes the formal mechanisms of the realization of justice operating in the polity.22For an elaboration of this distinction between the colony and the polity see: Denise Ferreira da Silva, “Blacklight,” in Otobong Nkanga-Luster and Lucre, eds. Clare Molloy, Philippe Pirotte, and Fabian Schöneich (Berlin: Sternberg Press, 2016). How? Let me briefly describe the context of emergence of these mechanisms of justice, which I will call administrative (courts) and executive (the state). Very early formulations of the modern polity include accounts of administrative justice. When describing the body politic, the liberal polity, in his Two Treatises of Government, John Locke postulates that it is held together because its members agree on, among other things, a legal system (of rewards and punishments) designed to control and regulate their relationships, and prevent the stronger and selfish among them from violating the others’ property (life, limbs, and things).33John Locke, Two Treatises of Government (Cambridge: Cambridge University Press, 1988). In his Philosophy of Right, G. W. F. Hegel’s description of the polity includes the postulate that the task of administering punishment belongs to a particular sector of the civil society, the courts or the institutions of the administration of justice.44G. W. F. Hegel, Philosophy of Right (London: Oxford University Press, 1967). Most, if not all modern philosophers writing between Locke’s seventeenth-century text and Hegel’s nineteenth-century text dedicate some time to the specification of the properly modern juridical architecture. However, as Jeremy Bentham’s writings on morality and punishment indicate, for the most part, their conceptualizations of justice, in so far as it is related to the polity, focus on a punitive (constraining, controlling, regulative) mandate. 55For a classic discussion of Bentham’s theses of punishment see: Michel Foucault, Discipline and Punish (New York: Vintage Books 1995). To be sure, even to this day, the administration of justice—the job of the judiciary—refers to this punitive or retributive mandate, whether in regard to persons and corporations who have been found guilty on the commission of a crime or breach of contract, or in regard of states, who are found guilty of crimes against their citizenry (or humanity, in the twentieth century) or of failing to protect the rights, either civil or human, of those residing on its territory. Very recently, since the latter part of the twentieth century, there emerged alternative visions for administrative justice, in regard to persons and states—respectively restorative and transitional justice—which, instead of punishment, seek remedies that focus on the social context and aim to heal the relationships threatened or severed by the crime: in restorative justice, it includes programs designed to promote reconciliation between the victim and the perpetrator; in transitional justice, it includes truth and reconciliation commissions as well as other formats, that seek to reconcile the state and groups (victims and perpetrators) involved in genocides, crimes against humanity, torture, and the like.

From the outset, the plan for executive (or social) justice has relied on social-scientific descriptions of modern social existence, which identified the economic, juridical, and symbolic processes creating inequality and subjugation in spaces said to be governed by the principles of liberty and equality. When assembling their explanatory frameworks, these fields of knowledge also plotted onto these spaces social categories, such as class, race, ethnicity, gender, etc., that name hierarchically positioned social subjects. Throughout the twentieth century, those occupying the bottom of these hierarchical formations have frequently organized political programs for justice—such as unions, civil rights, and social movements—that called on the state to intervene and create mechanisms for the elimination of social inequality, exclusion, and subjugation. Unarguably social justice enters the official social-scientific and political vocabulary in the mid-twentieth century with T. H. Marshall’s genealogy of rights, which locates the emergence of social rights in twentieth-century England’s welfare state. Possibly, however, there were many prior iterations of the phrase since its early post-Enlightenment articulation in John Stuart Mill’s Utilitarianism and other writings. In any event, social equality has a full philosophical articulation in John Rawls’ distributive theory of justice. His theory of justice as fairness begins with the recognition that modern capitalist configurations are fraught with economic inequalities and it provides an elaboration of corrective principles, which would not so much redress but prevent inequalities without violating the supremacy of the modern principle of liberty.66 John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971). Not surprisingly, in the 1970s and 1980s, his reduction of the social to an economic dimension led to feminist critiques of his distributive theory of justice. Besides challenging his delineation of social injustice as solely a matter of unfair distribution, they also point out the color-blind and gender-blind basis of his original position, thereby undermining his postulate that the veil of ignorance would assure the fairness of the principles of justice. From their engagement with Rawls’ theory of justice these critical scholars have devised concepts, which expand the plan for the realization of social justice beyond the distribution of goods, opportunities, positions, etc. They propose concepts that acknowledge historical oppression and domination by a white heteropatriarchal state and social institutions as well as remedies—such as inclusion, recognition, and reparations—that address the symbolic, economic, and juridical effects of exclusionary and discriminatory discourses and practices that mark the trajectories of socially (racial, ethnic, gender, sexual) subjugated collectives.77See, for instance: Iris Marion Young, Justice and the Politics of Difference (Princeton: Princeton University Press, 1990).

Though administrative and executive justice differ in many regards, in addition to the assumption that law and the state are responsible for the protection of (the principle of) liberty, they share the presupposition that equality operates in the polity as a formal principle. This has several important consequences. Here I am only interested in how it works in tandem with scientific forms. In particular, I am interested in what happens in the pairing of formal equality guiding juridic (of the law and the state) determinations and the formalization of violence operated by scientific (racial) knowledge. Because racial knowledge has treated the effects of colonial expropriation (as well as racial subjugation) as data to be handled with the proper analytical economic, juridic, or ethic concepts, it yields explanations for racial subjugation which resolve colonial violence as a natural (moral or intellectual) deficit of racially subjugated collectives, that is, violence becomes their inherent trait.88For an elaboration of this argument see: Denise Ferreira da Silva. “Toward a Black Feminist Poethics or The Quest(ion) of Blackness Toward the End of the World,” The Black Scholar 44, no. 2 (2014). Not surprisingly, when these explanations are deployed in instances of administrative or executive justice what we see consistently is that justice fails them in/as its realization. For instance, (a) administrative justice—the many not-guilty verdicts in cases of the police killing unarmed black persons, in which jurors and judges accept the culprits’ justification that they act out of excessive fear; and (b) executive justice—the perverse irony of anti-affirmative action decisions in the US American courts, in which white claimants recur to the same element in law that has been the basis for racial justice claims, equal protection, and attendant ethical principles of non-discrimination and equality of opportunity.99Denise Ferreira da Silva, “The Racial Limits of the Law: The Ruse of Equality of Opportunity and the Global Affirmative Action Mandate,” Critical Ethnic Studies 2, no. 2 (2015). My point here is that, in both cases, the formal principle of equality combined with raciality (that is, its formalization of colonial violence as natural defect) renders racial subjugation (its moments of total, institutional, symbolic, and everyday violence), as well as the effects of colonial violence it transubstantiates, irrelevant to the plan for their realization. This is so because both moments of formalization—which refers to the workings of determinacy in juridical universality (in the courts) and in scientific universality (in knowledge)—are contingent upon the movements of occlusion, namely, of the colony as a modern juridical framework and of raciality as a modern ethical and political concept.1010For an expanded discussion of juridic universality and scientific universality see: Denise Ferreira da Silva, “The Scene of Nature,” in Contemporary Legal Thought, eds. Christopher Tomlins and Justice Desautels-Stein (Cambridge: Harvard University Press, forthcoming). Put differently, racial subjugation inhabits the fissure separating/mediating two determinations of the modern subject: (a) properly juridical (as the modern subject of rights entitled to the equal protection of the law) and (b) properly social (as the only existent governed by the principles of equality and liberty)—put differently, raciality signals the limits of justice. A transformative theory of justice that attends to racial violence is a theory of global justice, as the global space is the juridic-economic context mapped by the tools of raciality. Such a thesis needs a plan for action that includes the dissolution of these determinations of the subject and of everything they rest on.


My contribution to the preparation of a plan for decolonization, that is the realization of the only possible transformative theory of justice—namely, a global justice—is a Black Feminist poethical practice, whose method consists in a compositional practice that involves at least three figuring movements—decomposition, composition, and recomposition—which are designed to identify and unravel the workings of separability, determinacy, and sequentiality.1111For an elaboration of these terms see: Denise Ferreira da Silva, “On Difference Without Separability,” in 32nd Bienal de São Paulo—Incerteza Viva, eds. Jochen Volz and Júlia Rebouças (São Paulo: Fundação Bienal de São Paulo, 2016). Lately I have been experimenting with all three figurings,1212See: Denise Ferreira da Silva, “Fractal Thinking,” aCCeSsions 2 (April 27, 2016), https://accessions.org/article2/fractal-thinking/. but here I focus on decomposition or the confrontational movement. Engaging black radical praxis, in a mode of knowing and doing that targets the very underground of modern thought, is a first and crucial decompositional step in the preparation of a plan for the realization of justice that aims at decolonization. I come to it, as I present elsewhere,1313Denise Ferreira da Silva, “To be Announced: Radical Praxis or Knowing (at) the Limits of Justice,” Social Text 31 (2013). through an exploration of the work of Black Radical and Black Feminist scholars. My path begins with the equation of racial violence in reading the category of Blackness as Racial Body = Value (Form + Force) + Excess, and ends with the dissembling Excess = Form + Force + (Racial) Violence. For Black Feminists, radical praxis refers to the decompositional (confrontational) moment of seizure of this very Excess to use it as a tool for dismantling the determining gestures in the scenes of economic and ethic value, out of which the form of justice emerges and in which it guides administrative and executive decisions and plans for the realization of justice. Such dissolution is crucial for reassembling the scene of ethical value without the Subject (the thing of determinacy) and its formalizations. For instance, it is only after the racial category of blackness is fractured that it is possible to even begin to consider the wherefrom of the violence it never fails to signify, which is that which provides justification for otherwise ethically untenable and illegal deployments of lethal force by law enforcement agents. It will also allow for a refiguring of the scene of economic value, after the recognition that the total value created by slave labor is not included in the classic historical materialist theory of value because it was appropriated through the deployment of total violence. A decomposition of the theory of value exposes how the total value created by slave labor is obscured in classic accounts of capital accumulation and forces a redesign of the scene of economic value, which will then have to consider global capital as the congealment of the total value expropriated from slave labor and native lands—including expropriations taking place right now by mining, drug, and mega-agricultural corporations.

As a contribution for a transformative theory of justice, this Black Feminist poethical mode of intervention, which I call a radical praxis, among other things, offers a guide for descriptions and a method of intervention toward global justice. For instance, most accounts of justice focus on its formal (abstract) nature, such as the characterizations of social justice as doomed precisely because its realization requires substantive social reforms and not only an extension of formal (legal) protection, as in the case of civil rights claims. A transformative theory of justice that begins by fracturing the forms of modern thought (and with this releasing the mind from the rules of understanding) welcomes imagings of existents and events that do not need ontological pillars (separability, determinacy, and sequentiality). Such a transformative theory of justice envisions global justice as a radical material transformation, that is, the aftermath of decolonization or what the world will have become after it has been known anew.



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Speculations on a Transformative Theory of Justice

By Denise Ferreira da Silva