The problem with this approach is that the battered woman’s beliefs may be decidedly more rational and accurate than the jurors’. The beliefs of ordinary jurors about battering relationships are often based on inexperience and naiveté, or on ideological suppositions that women who remain in battering relationships masochistically enjoy being beaten, deserve to be beaten, or at least assume the risk of beatings. Saying that the wrongheaded beliefs of typical jurors meet the “objective” standard of reasonableness, while the atypical but accurate and rational beliefs of the battered woman are only relevant under a “subjective” standard of reasonableness, disparages the woman’s beliefs and wrenches all recognizable meaning from the term “objective.”
In the end, typical beliefs—in courts and in everyday life—still carry with them a presumption of accuracy. Accordingly, typical beliefs about the propensity of Blacks toward violence are deemed reasonable (i.e., accurate) insofar as we have no reason to doubt them. Often, however, a racially sensitive defender will not be claiming that his fearful reaction to Blacks is rational, but merely excusable. I therefore turn to the legal relation between the typical and the excusable.
Why We Blame Whom We Blame: The Typical, the Reasonable, and the Damnable
Alternatively, typical beliefs may be considered reasonable on the supposition that they are not blameworthy, however inaccurate or even irrational they may be.12 This is the claim of reasonableness invoked by both the Reasonable Racist and, as we will discuss later, the Involuntary Negrophobe. According to this position, even admittedly wrong judgments about a fact or situation should be excused so long as most people would have reached the same wrong conclusions under similar circumstances. A roll of keys that looks just like a gun in the eerily flickering lights of a bank lobby provides a simple illustration of this excuse. The argument rests on the premise that “blame is reserved for the (statistically deviant); we are blamed only for those actions and errors in judgment that others would have avoided.”13 Under a noninstrumental theory of criminal liability (that is, a theory that determines legal liability solely on the basis of an actor’s just deserts, and that gives no weight to social policy in fixing liability), it is unjust to punish someone like the Reasonable Racist since his typical beliefs are by definition not morally blameworthy.14
Speaking to a jury of other seventeenth-century men, the storekeeper who shot the supposed witch would argue that his belief was typical and accurate; speaking to a modern jury, however, he might concede that his beliefs were inaccurate, but still argue that they were typical for someone from his cultural background, and that therefore he was not blameworthy for holding such admittedly inaccurate beliefs. When the reference group for determining whether an attitude or belief is typical is not the majority, this kind of claim is referred to as the “cultural defense.” Thus, a Hmong tribesman from Laos kidnapped his intended bride in California and raped her in order to officiate their marriage, as is the tradition in his native country.15 Also in California, a Chinese mother killed her son in an attempt to commit parent-child suicide after discovering her husband’s adultery.16 Through a “cultural defense,” these defendants could attempt to negate or mitigate their criminal liability by arguing that they believed they were reasonably committing such acts because their cultural background and beliefs permit, and even encourage, such behavior.
Of course, insofar as our courts reject the claims of these cultural minorities, they raise Procrustean bed concerns. But insofar as they recognize such claims, they raise the problems on which the discussion now centers, namely, the problem of showing undue deference—and giving undue normative legitimacy—to the merely typical. Our investigations will uncover more such conundrums as we proceed.
A variant of the cultural defense is often asserted in defense of some of this country’s revered “forefathers.” For example, not long ago I heard a Black alumnus of the University of Virginia singing the illimitable praises of his alma mater’s founder and benefactor, Thomas Jefferson. “You know, Jefferson maintained that Blacks were a naturally inferior race and remained a slave owner until the day he died,” I observed.17 “Oh, but it is unfair to judge him by today’s standards,” my interlocutor shot back. “Lots of people owned slaves back then, and most Americans of that era thought it was all right. Besides, Jefferson was a gentleman slaver.” I was about to respond that a “gentleman slaver” is like a “nice Nazi,” but it occurred to me that such a point would not assail the logic of his position—if anti-Semitism was a typical attitude among Germans in the 1930s and 1940s, how could we by his logic blame individual Germans of that era for holding such typical attitudes?
The problem with the claim that typical attitudes are not blameworthy is easier to recognize in cultural-defense cases, where what is typical for the cultural minority is not typical for the majority, than in cases where what we mean by typical beliefs and values are our very own cherished majoritarian beliefs and values. Acknowledging that our own typical values and beliefs may not reflect absolute truth and justice raises problems of moral and epistemological relativity that many of us would rather avoid honestly confronting. This is why the popular movie Pulp Fiction, though widely touted as iconoclastic, is at its core highly conservative. Early in the movie, the John Travolta character revels in cultural relativity by regaling his cohort in crime, played by Samuel L. Jackson, with stories of the different standards employed in different countries: a different system of weights and measures in France, and different, more permissive drug laws in Amsterdam. Jackson’s character revels in the relativity as well, until he partakes of a burger called The Big Kahuna (Big Kahuna is the Hawaiian phrase for high priest), after which he “gets religion.” When Travolta is invited to partake of The Big Kahuna, however, he declines. Travolta’s refusal to renounce relativism leads to his demise (the price of relativism is death). Jackson, thanks to his espousal of absolutism, dodges the bullet. In the end, Pulp Fiction offers moviegoers relief from the vertiginous relativity of post-modernism via conversion to Judeo-Christian dogma … follow you who can.
But America is a diverse nation, many of whose members do not subscribe to any monolithic code of moral absolutism and harbor healthy skepticism toward those who profess to have a privileged pipeline to some God’s-eye view of truth and justice. Moreover, this country is officially irreligious by constitution. Consequently, are there any coherent grounds upon which to build a critique of the claims of the Reasonable Racist? Is it even possible, let alone just, to discipline a person for beliefs, attitudes, and reactions that they share with most of the people around them, without either appealing to moral absolutes or somehow bootstrapping oneself to a position outside the prevailing belief system and into a God’s-eye perspective?
In contrast to an “externalist” critique, which seeks a God’seye perspective on a set of beliefs and reactions, a more coherent critique draws from an “internalist” perspective by seeking leverage for its critical evaluations from within the belief system itself. An internalist approach criticizes a belief or practice by showing how it contradicts or undermines other important beliefs, practices, values, and convictions within the same belief system. The values of the belief system need not have been handed down from some divine oracle, but rather may evolve gradually from historical processes and political struggles. The high value American culture places on free speech, for example, cannot be deduced from the Ten Commandments, and it took a bloody civil war for antislavery values to take root fully in our cultural belief system.18 Democratic struggle over moral and legal definitions, on the one hand, and exposure of contradiction and hypocrisy, on the other—these are the defining characteristics of the internalist approach.
Legal disputes in our justice system are argued and resolved within an internalist perspective. Parties to a legal dispute, whether over ownership of a parcel of land or school desegregation, couch their contentions in terms of moral norms and social policies for which there is significant support in society’s moral and legal discourse. Thurgood Marshall did not argue Brown v. Board of Education, the landmark school desegregation case, by appealing to some critical morality that lacked roots in the social morality