Dhaliwal on Du Bois as Legal Realist

Sandeep Dhaliwal, St. John's University School of Law, has posted The Legal Realism of W.E.B. Du Bois:

W.E.B. Du Bois, 1907 (wiki)

The great writer, activist, and scholar W.E.B. Du Bois saw his career unfold alongside the development of Legal Realism, an intellectual movement whose rapid rise to prominence in American legal thought was concentrated in the 1920s and 1930s. Though more often remembered as a sociologist or historian, Du Bois's work contained considerable theorizing about law that tracked key Realist insights. 

But this Article shows that Du Bois wasn't simply another legal theorist. He was an outstanding one, whose own theorizing emerged not through colorblind critiques of classical legal thought (what the Realists did), but through thinking, organizing, and propagandizing against race hierarchy. The slave trade, sharecropping, Lynch Law, race riots, and cases like Bailey v. Alabama comprised his distinct objects of study. And Du Bois's embeddedness in domestic and transnational social movements for civil rights, decolonization, and global peace inescapably shaped his constant thinking toward emancipation. All this fueled an extraordinary range of legal theorizing, from experimental notions of "legal violence," to more mature concepts like the "dictatorship of property," to intertwined critiques of rights, capitalism, and the U.S. Constitution. Such theorizing is not only visible in classic texts, like Du Bois's famous Black Reconstruction, but also in underexamined ones, like his 1896 dissertation on the transatlantic slave trade, and his and the NAACP's remarkable 1947 petition to the new United Nations. 

In charting the development of Du Bois's legal thought, this Article advances two main claims. First, that radical commitments to overcoming racial subordination provide critical pathways to understanding American law. Partisans for racial justice, like Du Bois, have produced profound legal-theoretical insights not in spite of, but because of, their normative commitments. 

Second, that Du Bois belongs in the canon of American legal thought. Who and what comprise the canon is a matter of perennial importance. As someone who thought deeply about law's relation to the project of multiracial democracy in the United States, and that project's inextricable connection to the problem of the global color line, now is as good a time as any to confirm Du Bois's place. 

--Dan Ernst