I have often found Charles Mills' distinction between de jure and de facto racism to be heuristically useful if not not explanatory. It is one of the great merits of The Racial Contract to be an incredibly teachable book, it fits incredibly well in political theory class that has covered Hobbes, Locke, and/or Rousseau, with perhaps some Marx and Machiavelli, putting the very idea of a social contract to a very different use and in doing so, revealing exactly what is excluded from political philosophy, as Mills puts it, "White supremacy is the unnamed political system which has made the world what it is today." Despite this I find the very idea of a rigid division, and a progression, between a de jure racism, the racism of Jim Crow, and segregation, and de facto racism, the racism, of unstated norms and lingering effects to be questionable. This is perhaps because we are living through something else, some third form.
This third form would be less the dialectical aufhebung of the other two, the negation of the negation, than the way in which the law in its supposed universality is utilized to reinforce the particularity of racial exclusions. Lordon, whose own distinction between the instituted nature of capitalist power and the more systemic power of racism hews very close to Mills distinction, briefly addresses this breakdown.
"It is, however, difficult not to see that the present era undermines the clarity of these conceptual distinctions. Because the institutional texts are more infused with racism: anti-immigration laws (which are anti-certain immigrants), for example—or, as is now the case, the "anti-separatism" laws—whose fundamental Islamophobia they believed they could conceal by glossing it over as a "reaffirmation of the principles of the Republic," evidently failing to perceive the "special" coloration that this fine maneuver imparted to the said "Republic." Here the evidence of systemic racism is on the way of taking on an “institutional” consistency. It was likely the inevitable outcome of a continuous drift toward systemic state racism—that it would ultimately produce a discontinuity, paving the way for institutional state racism."
I would argue that one aspect of this drift has to do with the select application of the law itself. We can see this clearly in "stop and frisk" programs, which by setting up in particular neighborhoods, neighborhoods defined by factors that encompass race but never name it, end up finding more illegal substances or unlawful weapons, on the people in those neighborhoods. Thus when people focus on the law itself all they see are the violations, but no one examines the selective nature of the application of the law. Or asks the question what would happen if they searched a different neighborhood. The same could be said for traffic stops. It is part of the nebulous power of the police to selectively apply the law, and this selection gives de facto racism the veneer of de jure legitimation.
The same thing can be said for the plagiarism scandals that have destroyed careers, and now lives. I would like to bracket the question as to whether or not there was plagiarism, or how substantial its was, to focus on one simple matter, the particular scrutiny that people are subject to. It seems to me that if one is a prominent black scholar, at least in the US or UK, then one will have there work scrutinized, often with the aid of technology which can find similarity of phrasing that can turn any work into plagiarism. I want to stress that last point, a lot of scholarship, particularly in the social sciences and in the humanities, involves summarizing past scholarship on an issue. It really seems to me that there are just unavoidable similarities of phrasing that will riddle any work, especially a dissertation or early publication which is dominated by "lit review," with phrases that appear to copy other phrases. I am not saying that the people in question did not plagiarize, nor am I saying that plagiarism is not a bad thing; I think it is a bad thing, which is part of my opposition to its own particular universalization through LLMs ( a point that is never raised in these scandals). I am not really interested in the particulars in the same way that I am not interested in what was in the pockets of someone picked up in a stop and frisk program.
What I am interested is in the selective application of the law, or in this case a norm, itself. The way that some people are subject to scrutiny and others are not. Most importantly I am interested in the way that the selectivity of the scrutiny seems to be completely obscured in the focus on the universality of the norm. I know in my heart of hearts that I have never plagiarized, but what I do not know is what would happen if someone subjected all of my publications to the kind of scrutiny that prominent black scholars are subject to. They could find phrases and even sentences that are the same. I will probably never know. In the same way that I can drive around with expired tags on my plates and a burnt out taillight and not know what it is like to experience those things while black.
As I suggested above, I think that we are living in a moment in which a new racial order is being imposed. I read somewhere the term "resegregation," and that seemed apt, an attempt to remove black people, women, and other minorities from public life, to keep "black people in black jobs." Of course this cannot be done by law, at least not yet, no one will put up a sign and say, "no blacks allowed" at the entrance to those hallowed institutions. Instead everyone who enters, who makes it past a series of de facto discriminations, will be subject to extra scrutiny of their actions, past and present. Whenever someone is caught this will allow their accusers, and plenty who would never openly admit, to themselves or others, that they are participating in such resegregation to hide their de facto segregation behind a de jure rule, which is all the more legitimate since it seems to apply to everyone.
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