The judicial act of dismissal in discrimination cases involving diasporic or minority populations is part of a larger cultural approach to diasporic subjects. Racial dismissal includes judicial as well as larger cultural forms of dismissal, whereby an authority judges a speaker’s grievances as implausible or unworthy of consideration, often due to cases of misrecognition or illegibility to a hegemonic culture or authority. Here the author draws on Kristie Dotson’s notion of epistemic silencing, which illustrates that grievances from diasporic subjects are dismissed because they fall outside settler-colonial norms, and are apprehended as trivial or illegitimate. Hence, dismissal is based on a sustained and protected misrecognition of diasporic populations.
Paul J. Paruk, Transcript, Motion to Dismiss Muhammad v Paruk, No. 06-41896-GC (31st District Court, Michigan, 16 April 2007).
2.
John Feikens, Muhammad v Paruk, 553 F. Supp 893 (District Court, E. D. Michigan 2008).
3.
Karyl Moss, James Rodbard and Mark Granzotto, ‘ACLU Comment on Proposed Changes to Michigan Rules of Evidence 611’, April 2009. On file with author.
4.
Falguni Sheth, Unruly Women: race, neocolonialism and the hijab (New York: Oxford University Press, 2022), p. 27.
5.
Sara Ahmed, Complaint! (Durham: Duke University Press, 2021), p. 18.
6.
Elsewhere, I have sketched a preliminary concept of dismissal to describe a colonial attitude towards members of diasporic populations. Here, I develop the concept in robust detail as a cultural and judicial phenomenon.
7.
Racial address is a term developed by Monique Roelofs. Roelofs draws on a range of sources, including Maria Lugones’ work and Jamaica Kinkaid’s short story, ‘Girl’, to extrapolate a series of imperatives and prohibitions that serve to circumscribe and impress the subject of those imperatives/prohibitions regarding how to comport herself within a ‘plane harboring reader and text’. Monique Roelofs, ‘Navigating frames of address: Maria Lugones on language, bodies, things, and places’, Hypatia 31, no. 2 (2016): pp. 370–87; Monique Roelofs, ‘Addressing address’, in Arts of Address: being alive to language and the world (New York: Columbia University Press, 2020), p. 37.
8.
Erin Tarver, ‘The dismissal of feminist philosophy and hostility to women in the profession’, APA Newsletter 12, no. 2 (Spring 2013): p. 9.
The salience of this question is confirmed by H. L. A. Hart’s take on judicial discretion: he argues that judicial decisions are informed by a judge’s personal morality or sense of discretion. (H. L. A. Hart, The Concept of Law, Oxford University Press, 1994, Postscript, par. 6.) ‘If in such cases the judge is to reach a decision . . . he must exercise his discretion and make law for the case instead of merely applying already pre-existing settled law’ (Hart, p. 272). As he argues, ‘In any large group general rules, standards, and principles must be the main instrument of social control, and not particular directions given to each individual separately’ (Hart, p. 123). Hart dubs this a ‘rule of recognition’ (Hart, p. 94). We will see that Hart’s reading of judicial opinion is a more apt description of the courts’ positions in the Muhammad v Paruk case under discussion. See also Scott Shapiro’s review of this disagreement between Dworkin and Hart. Scott J. Shapiro, ‘The ‘“Hart–Dworkin” debate: a short guide for the perplexed’, in Ronald Dworkin, Arthur Ripstein (ed.) (Cambridge: Cambridge University Press, 2007), pp. 22–55.
11.
Kristie Dotson, ‘Tracking epistemic violence, tracking practices of silencing’, Hypatia 26, no. 2 (Spring 2011): pp. 236–57.
12.
Dotson, ‘Tracking epistemic violence, tracking practices of silencing’, p. 238.
13.
Dotson, ‘Tracking epistemic violence, tracking practices of silencing’, p. 238, citing Jennifer Hornsby. We could also understand this ‘refusal to communicatively reciprocate a linguistic exchange’ as a hermeneutical impasse. See Luvell Anderson, ‘Hermeneutical impasses’, Philosophical Topica 45, no. 2 (Fall 2017).
14.
Nerissa Balce, ‘The filipina’s breast: savagery, docility, and the erotics of the American empire’, Social Text 24, no. 2 (2006): pp. 89–110; Ronald Sintos Coloma, ‘White gazes, brown breasts: imperial feminism and disciplining desires and bodies in colonial encounters’, Paedagogica Historica 48, no. 2 (April 2012): pp. 243–61; Uma Narayan, Dislocating Cultures: identities, traditions, and third world feminisms (New York: Routledge, 1997), chap. 2; Laura Briggs, Reproducing Empire: race, sex, science, and U.S. imperialism in Puerto Rico (Berkeley: University of California Press, 2002), chap. 5; Durba Mitra, Indian Sex Life: sexuality and the colonial origins of modern social thought (Princeton: Princeton University Press, 2020); Anjali R. Arondekar, For the Record: on sexuality and the colonial archive in India, Next Wave (Durham: Duke University Press, 2009); Nayan Shah, Stranger Intimacy: contesting race, sexuality and the law in the North American West (Berkeley: University of California Press, 2012).
15.
Dotson, ‘Tracking epistemic violence, tracking practices of silencing’, p. 245.
16.
Feikens, Muhammad v Paruk, 553 F. Supp at 553.
17.
Dotson, ‘Tracking epistemic violence, tracking practices of silencing’, p. 249.
18.
Narayan, Dislocating Cultures, chap. 3; Dotson, ‘Tracking epistemic violence, tracking practices of silencing’, p. 249.
19.
Sahar Amer, What Is Veiling? (Chapel Hill: University of North Carolina Press, 2014); Saba Mahmood, The Politics of Piety: the Islamic revival and the feminist subject (Princeton: Princeton University Press, 2005); Fatima Mernissi, Beyond the Veil: male-female dynamics in modern Muslim society, rev. ed., 1st Midland Book ed. (Bloomington: Indiana University Press, 1987); Homa Hoodfar, ‘More than clothing: veiling as an adaptive strategy’, in The Muslim Veil in North America: issues and debates, Sajida Alvi, Homa Hoodfar and Sheila McDonough (eds) (Toronto: Women’s Press, 2003).
20.
Feikens, Muhammad v Paruk, 553 F. Supp.
21.
Différend is an injustice that emerges from the incommensurability of regimes that render a claimant (a ‘victim’) silent, unable to have her claims redressed. However, according to Lyotard, the incommensurability can occur in any range of cases, where there is not one rule that can be applied to the claim at hand. Jean-François Lyotard and Georges Van Den Abbeele (trans.), The Différend: Phrases in Dispute (Manchester: Manchester University Press, 1988), para. 12. However, whereas Lyotard implies that the regulation is not brought on by any particular regime, I argue that the rule that is applied is presented as impartial, but it has already been weighted to favour the colonising regime, as are most applications of power under settler-colonial administrations.
22.
Feikens, Muhammad v Paruk, 553 F. Supp 893 at 15; italics mine.
23.
Because Paruk entered a summary judgment in the initial small claims case, filed by Enterprise Rental for $2800 against Muhammad, she appealed in Wayne County Circuit Court, an appellate court in the Michigan State System. The District Court concluded that the third element of the Rooker-Feldman Doctrine, namely ‘whether Paruk’s choice to prohibit Muhammad from testifying while wearing her veil violated her constitutional rights’, ‘does not preclude’ the court ‘from exercising jurisdiction over the matter’.
24.
Again, the District Court found that ‘the Younger Abstention Doctrine did not require’ the court ‘from exercising jurisdiction over the matter’, Feikens, Muhammad v Paruk, 553 F. Supp at 7.
Remedies are usually declarative, injunctive, or monetary (‘damages’).
27.
I thank Saneta devuono-powell for providing the language that reveals the central problem in the court’s response.
28.
Thanks to Saneta devuono-powell for helping me frame this conceptual point.
29.
Dotson, ‘Tracking epistemic violence, tracking practices of silencing’, p. 248.
30.
John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971).
31.
Susan Neiman, Left Is Not Woke (Medford: Polity Press, 2023).
32.
Nancy Fraser and Alex Honneth, Redistribution or Recognition?: A Political-Philosophical Exchange (London; New York: Verso, 2003), p. 29.
33.
Fraser and Honneth, Redistribution or Recognition?, p. 30.
34.
Glenn Sean Coulthard, Red Skin, White Masks: rejecting the colonial politics of recognition (Minneapolis: University of Minnesota Press, 2014), p. 36.
35.
Roxanne Dunbar-Ortiz, An Indigenous People’s History of the United States (Boston: Beacon Press, 2014), p. 8; Kevin Bruyneel, Settler Memory: the disavowal of indigeneity and the politics of race in the United States, Critical Indigeneities (Chapel Hill: University of North Carolina Press, 2021); Roxanne Dunbar-Ortiz, Not ‘a Nation of Immigrants’: settler colonialism, white supremacy, and a history of erasure and exclusion (Boston: Beacon Press, 2022), chap. 2.
36.
Dunbar-Ortiz, An Indigenous People’s History of the United States, p. 8; Dunbar-Ortiz, Not ‘a Nation of Immigrants’, chaps. 2 and 3.
37.
Bruyneel, Settler Memory, p. 2.
38.
A. Shotwell, ‘Unforgetting as a collective tactic’, in White Self-Criticality beyond Anti-racism: how does it feel to be a White problem?, George Yancy (ed.) (New York: Lexington Books, 2015), pp. 58–59.
39.
Shotwell offers many more details; here I can only summarise.
40.
Shotwell, ‘Unforgetting’, p. 61.
41.
Kimberle Crenshaw, ‘Demarginalizing the Intersection of race and sex: a Black feminist critique of antidiscrimination doctrine, feminist theory and antiracist politics’, The University of Chicago Legal Forum 1989, no. 1 (1989), pp. 139–167.
42.
M. Jacqui Alexander and Chandra Talpade Mohanty, Feminist Genealogies, Colonial Legacies, Democratic Futures, Thinking Gender (New York: Routledge, 1997), introduction.
43.
I am not able to develop this concept fully here, but see Falguni Sheth, ‘The epistemology of violence and the narrative of self-defense’ (Working paper, April 2022).
44.
Charles Mills, The Racial Contract (Ithaca: Cornell University Press, 1997).
45.
Charles Mills, ‘White ignorance’, in Race and Epistemologies of Ignorance, ed. Shannon Sullivan and Nancy Tuana (Albany: SUNY, 2007), p. 34.
46.
All citations to this case that are from the following resource will have no page numbers. Raquel Rutledge and Ken Armstrong, ‘The landlord & the tenant’, ProPublica, November 2022, at https://www.propublica.org/article/milwaukee-fire-brunner-belen-landlord-tenant. Unattributed quotations are also from this source.
47.
Rutledge and Armstrong, ‘The landlord & the tenant’.
48.
Rutledge and Armstrong, ‘The landlord & the tenant’.
49.
Rutledge and Armstrong, ‘The landlord & the tenant’.
50.
Rutledge and Armstrong, ‘The landlord & the tenant’.
51.
Rutledge and Armstrong, ‘The landlord & the tenant’.
