Dismissal,legibility and the normalising of colonial misrecognition

Introduction

In 2008, Ginnah Muhammad, an African American Muslim woman, appeared for a hearing in a small claims court in Hamtramck, Michigan concerning a car rental company. The presiding judge, Paul Paruk, refused to hear her case unless she removed her niqab (described as a ‘veil’ in the case summary and transcript), on the grounds that it prevented him from judging her facial expressions to verify her claims. Muhammad, citing religious principles, declined to remove it before a male judge but offered to do so in front of a woman judge. However, Paruk refused to accommodate Muhammad, informing her that her niqab is a cultural and not a religious decision (‘a custom thing’):

Soon after this exchange, Paruk dismissed the case. Muhammad sued Paruk for violating her right to religious expression and her ‘civil right to access to the court system’. ² Her suit was supported by the Michigan American Civil Liberties Union (ACLU), which wrote a letter offering multiple instances of testimony without full visible transparency that have been accepted in court − citing visually-impaired judges, recorded testimony and witness protection programmes. ³ The State Supreme Court of Michigan, which had jurisdiction authority over Paruk’s court, amplified his decision by passing an expanded authorisation for Michigan judges to have complete autonomy over their courtroom, including regulating witnesses’ clothing, regardless of religious commitments.

Meanwhile, Muhammad and Paruk countersued each other in the federal court system; the US District Court of Eastern Michigan also dismissed Ginnah Muhammad’s claims to be able to present her case in court because she refused to take off her niqab.

In conventional usage, dismissal is a technical legal term that is used to terminate someone from their employment, or alternately to evacuate court cases from a judge’s docket. In juridical contexts, dismissal is exercised to disqualify certain claims or grievances due to insufficient or inaccurate grounds. Dismissal brushes off ‘the possibility that there is any validity to . . . concerns’ of discrimination. ⁴ As Sara Ahmed describes, the implications of dismissal against subjects of colour perform the very charge that is being dismissed: ‘Racism is often enacted by the dismissal of racism as complaint.’ ⁵

Here I argue that ‘dismissal’ describes a certain colonial attitude diminishing, misrecognising, and legitimating the cultural and judicial neglect of cultural grievances from members of diasporic populations. ⁶ We might consider it a form of racial address ⁷ or a racial comportment directed against populations of colour by the arbiters of proper moral and legal norms and behaviour: judges, police, state agents and functionaries who descend from settler-colonial populations. I will discuss this further below.

Legal dismissal has its counterpart in dismissal as a moral judgement. As Erin Tarver argues,

On the other hand, one may ‘dismiss’ a position in the sense of rejecting it as misguided, untenable, or otherwise wrong after careful consideration of the arguments supporting it. This latter sense of dismissal is weaker than the former − so much so, indeed, that the word ‘dismissal’ seems an unusual choice to describe it. ⁸

Tarver’s analysis frames dismissal as a judgement. This is a crucial insight regarding the ways that, for example, feminist philosophy has been devalued by conventional philosophers, as Tarver’s article discusses. Legal philosophers like Ronald Dworkin argue, against legal positivists like H. L. A. Hart, that in liberal juridical frameworks, moral judgement derives its legitimacy from its constituency on the grounds that the institution or culture accurately interprets a political or cultural position held by a group or population. ⁹ Yet, such a model, when applied to members of diasporic populations or populations of colour, raises the question of how accurate that recognition is when dismissing the claims made by them. ¹⁰

In what follows, I will take up the question of accurate recognition through its obverse: by considering misrecognition in relation to Kristie Dotson’s notion of epistemic silencing, to argue that the dismissal of claims made by diasporic populations constitutes a form of misrecognition that is presented as a lack of credibility on the part of the speaker who is asserting claims or grievances about their identity. In that context, misrecognition is enacted as a form of incapacity or disavowal on the part of the audience (or institutional authority) that is assessing the claim. ¹¹

The flip side of this incapacity is illegibility − the inability to evoke categories that can accommodate the grievances/speakers in question. As a result, dismissal, which results from the absence of credibility or legibility, is a symptom of a larger cultural form of epistemic management − namely the refusal to redress the grievances of diasporic populations unless they conform to long-standing forms of abstraction and formal principles. Such epistemic gatekeeping reflects a long-standing colonial dynamic that is still present in the wake of the formal ‘end’ of colonialism.

Misrecognition and epistemic silencing

In ‘Tracking epistemic violence, tracking practices of silencing’, Dotson argues that silencing the testimony of members of oppressed groups is a form of epistemic violence, namely the ‘refusal, intentional or unintentional, of an audience to communicatively reciprocate a linguistic exchange owing to pernicious ignorance’. ¹² This occurs when audiences are unwilling or unable ‘“to meet” a speaker “halfway” in a linguistic exchange’, i.e., to hear/listen, interpret and offer goodwill and trust that speakers are competent in their testimony. She traces epistemic violence as it occurs in contexts where speakers are dependent upon their audiences in order ‘to be heard’. ¹³ Dotson emphasises the dependent relationships that testimony-bearers (speakers) have with their audiences, which is especially relevant in judicial contexts, since claimants must be able to demonstrate their credibility in order to be heard.

While Dotson’s analysis pertains to a contemporary moment, her depiction of epistemic silencing can be seen in a range of examples under colonialism − indeed, we could argue that epistemic silencing is one of the main stories of colonialism: whether the British missionaries’ shaming of native women for being bare-breasted; or the banning of ‘sati’ as if it were a widespread practice among Indians in the eighteenth century, which it was decidedly not; or the regulation of women’s sexuality under a range of colonised territories, whether from fears of prostitution, overpopulation, or other forms of the colonial regulation of sexuality. ¹⁴

The example of Muhammad’s encounter with the Michigan judiciary is part of a long history of the epistemic silencing of Black women and women of colour with regard to cultural and religious practices. This form of epistemic silencing involves the refusal to consider seriously the grievances or discrimination claims of BIPOC women by judicial or cultural authorities. There has been a decades-old literature in political theory and philosophy that argues strongly in favour of the expansion of liberal rights to minority populations. In the judicial context, there is a counterpart discourse of ‘procedure’ that relies on principles of order − deadlines, scope of cases, burden of proof, strict scrutiny, and the nature of claims, in order to assure members of a liberal juridical polity that justice is the prevailing outcome if principles of order and procedure are followed. Here is how ‘procedure’ worked in the case of Ginnah Muhammad:

Judge Paruk’s response to Muhammad’s refusal to remove her niqab, that it was a cultural choice (‘custom’), evokes what Kristie Dotson names ‘testimonial quieting’. That is, he failed to identify Muhammad as having epistemic authority over her religious comportment. Paruk’s response revealed his own ‘inaccurate intelligibility’, as characterised by Dotson, who describes it as reflecting an audience’s ability to find a speaker’s remarks ‘comprehensible and defeasibly intelligible’. ¹⁵ In the above example, Paruk was unable (or refused) to understand that Muhammad’s refusal to remove her niqab was an expression of her religious commitments as a practising Muslim. Paruk’s stance suggested that, despite his testimony that he had spoken to Muslims who had told him that the niqab was a cultural choice, and not a religious commitment − he was unfamiliar with a suitable range of (gendered) Islamic practices that would have enabled him to locate her comments in a broader, more varied context of Islamic commitments and practices − hence, his inaccurate intelligibility.

To make matters worse, the US District Court for the Eastern District of Michigan, which received Muhammad’s lawsuit against Paruk, acknowledged that it had the authority to intervene in order to reinstate her rights to access a courtroom, but decided not to do so, indeed dismissing her suit on the grounds that they believed there should be ‘respect for the relationship between state and courts’, a sentiment that overrode their ‘desire’ to intervene. ¹⁶ Both the judge (John Feikens) and the US District Court effectively dismissed Muhammad’s case.

Paruk’s response, like the US District Court’s judgment, was part of a ‘situated ignorance’ − namely his inability to understand that the practice of wearing a hijab or a niqab was culturally specific to Muhammad and other Muslim women. The term ‘situated ignorance’ is Dotson’s; she uses it to explain Uma Narayan’s account of cross-cultural understanding that uses an inadequate national or cultural framing of certain events to arrive at inaccurate judgements of the practice. ¹⁷ Narayan points to the US/western framing of ‘dowry murders’ as a culturally specific phenomenon, even though it is a form of domestic violence. Through such inaccurate framing − a form of misrecognition predicated on a situated ignorance, the larger cross-cultural context as a form of domestic violence is ignored, thereby inaccurately amplifying its status as a culturally specific practice that is ‘backward’ or ‘primitive’. As Narayan frames it, the West views such instances of domestic violence as ‘death by culture’. ¹⁸

Paruk’s situated ignorance occurs as follows: though he explained that he had concluded that it was a ‘custom thing’ by asking ‘practicing Muslims’, he was not able to re-orient his (outsider, non-Muslim) view to understand Muhammad’s niqab was an application of her Islamic religious tenets. Beyond Islam, he might have considered that all religions have variations by practitioner, level of adherence and various norms. The variations in how Muslim women decide to express their faith is a well-documented phenomenon. As many intellectually curious non-Muslims have been made aware − through academic literature, news programmes that discuss controversies over the veil, and feminist debates, there are many positions on what constitutes proper religious observance of Muslim women. ¹⁹ As not every practising Catholic abides by the Catholic Church’s strict prohibition of abortions or divorce, neither do all Muslims engage in expressing their faith identically.

The US District Court upheld Paruk’s decision and demonstrated its own variation of engaging in racial dismissal by insisting that

Because Muhammad’s free exercise claim is against a state actor and is not subject to RLUIPA, the standard set forth in Smith would apply. Under this standard, if Paruk has a valid, neutral and generally applicable policy of requiring witnesses to keep their faces visible while giving testimony, that policy would not violate Muhammad’s right to free exercise of her religion.

How did the court engage in racial dismissal? By pivoting to avoid the more fraught issue of how Paruk handled his courtroom.

Determining if Paruk has such a policy and, if he does, deciding whether it is valid, neutral and generally applicable would necessitate a detailed examination of how Paruk manages his court room as a state court judge. Conducting this type of review as a federal judge would undoubtably increase friction in the relationship between our state and federal courts. I find, therefore, that respect for the relationship between our state and federal courts weighs heavily against exercising jurisdiction over Muhammad’s declaratory judgment action for violation. ²⁰

The court’s respect for the judicial relationship overrode a commitment to the principle of religious freedom. In so overriding this freedom, which maintains a high priority in the mythology of American freedom, the court evaded Muhammad’s entitlement to have her case taken up in a court through a series of procedural grounds. As importantly, the court deprioritised Muhammad’s entitlement to have her case taken up in order to respect the sovereignty of state juridical contexts. In effect, Paruk’s policing of Muhammad’s visibly religious expression is upheld through two layers of dismissal: Paruk’s dismissal of Muhammad’s attempt to have her case heard; and the Federal Court’s agreement to vacate Muhammad’s suit against Paruk. The Federal Court’s decision underscores and accommodates Paruk’s misrecognition of Muhammad’s right to wear her niqab and it reinforces the epistemic silencing of Muhammad in the process.

Procedure and the evasion of the substantive grievance

The constraints listed by the District Court above facilitate a surface-level discourse that reflects a race-neutral, unbiased approach to protecting rights and obtaining justice for all complainants, regardless of background and facial visage. Yet, as anyone who has observed a court proceeding knows, there are multiple points where lawyers and judges reflect biases and assumptions. For lawyers, these biases are often intentional − to appeal to a jury or presiding judge. With regard to judges, those biases are often located as part of a ‘correctional’ or ‘scolding’ or ‘wise’ judicial authority to help a ‘troubled defendant’ see the light/straighten out. These are thought to be the prerogative of the presiding judge, rather than an indication of a certain set of assumptions behind seeing a defendant as ‘needing guidance’ rather than unjustly charged or unfairly tried.

This resort to procedure, the technical application of ‘rules’ and, ironically, ‘discretion’, amounts to what Jean-François Lyotard describes as the différend. ²¹ When the District Court is asked to take up the central question at hand, namely whether Muhammad’s first amendment rights were violated, it evades the question by resorting to procedural formality: on the grounds that Muhammad filed a suit against the judge, which effectively is a suit against the state. To offer a decision would have required that the court scrutinise Paruk’s relationship with others in his courtroom, which might ‘increase the friction’ between the local and higher courts.

Conducting this type of review as a federal judge would undoubtably increase friction in the relationship between our state and federal courts. I find, therefore, that respect for the relationship between our state and federal courts weighs heavily against exercising jurisdiction over Muhammad’s declaratory judgment action for violation of her right to free exercise of her religion. ²² (emphasis added)

In this case, the court admitted that it could weigh in on the substance of grievance. However, it decided to deprioritise Muhammad’s right to free exercise of her religion in favour of protecting the relationship between the state and federal courts. Here we see procedural, jurisdictional concerns being invoked in order to avoid the challenge of trying to evaluate Muhammad’s right to keep her niqab on in a Michigan courtroom.

Close attention to the District Court of Eastern Michigan’s reading reveals a number of procedural grounds which led to the court’s dismissal of Muhammad’s claim. A strictly legal analysis would go into lengthy detail, but since this is a feminist/critical race theoretical paper, I will offer a synopsis of those grounds: when Muhammad filed a civil rights suit against Paruk on the grounds that he refused to allow her to access his court, Paruk in turn filed a motion to have Muhammad’s claims dismissed on four grounds: 1) the Rooker-Feldman doctrine, which disallows federal courts from applying jurisdiction over the decisions of state courts; ²³ 2) the Younger abstention doctrine, which prohibits federal courts from taking up cases that are still going up through the state (of Michigan) court system; ²⁴ 3) judicial immunity, which would protect Paruk from liability for dismissing Muhammad’s case in his official judicial capacity − unless he engaged non-judicially, or he is being sued in his official capacity, on Eleventh Amendment grounds; ²⁵ and 4) Muhammad’s failure to state a claim.

The footnotes to the above paragraph provide some clarification of the District Court’s decisions: the first three grounds, according to the court, did not preclude it from exercising jurisdiction, that is, from weighing in on Muhammad’s case. Nevertheless, it decided not to pursue the route of exploring how Paruk ran his courtroom in the interests of preserving a respectful distance from intervening in a state court judge’s autonomy.

This demurral on the part of the District Court is notable: a failure to state a claim is actually a failure to state a claim where relief can be granted; regardless of whether the facts as presented by the party are true, there is no remedy at the court’s disposal. ²⁶ The question a court usually asks before proceeding to investigate the facts of a case is whether the parties have standing (are allowed to make the claim they want) and if there is a claim (e.g., if the court could do anything to respond to what the petitioners are presenting). ²⁷

What is striking here and central to my argument about the colonialist framework of racial dismissal is how easily the District Court engages in recourse to procedure, deadline and jurisdiction so as to evade the substance of Muhammad’s grievance. It refuses to explore whether Paruk was applying his policies neutrally across the board. This evasion is at the heart of racial dismissal. As opposed to Tarver’s account, which holds that dismissal is constituted by dismissing a position as untenable or misguided after giving it serious consideration, racial dismissal occurs without having considered the claim seriously, if at all, and instead evades the substance of the issue by resorting to technical, jurisdictional or deadline driven issues.

Procedure, incompetence and legibility

When the District Court is asked to take up the central question at hand, namely whether Muhammad’s first amendment rights were violated, the court refuses to accept the challenge of scrutinising the judge’s courtroom. Instead, the court suggests that Muhammad had other ways of pursuing her claims, whether by refiling her suit ‘in the general civil division’, which would have afforded her ‘an appellate review’, that is, a review by an appeals court, or by filing a cross-claim against the Enterprise rental company (the original subject of Muhammad’s court case). The District Court evades the challenge that Muhammad presents through a veneer of technical alternate avenues. They are − technically − technicalities. By arguing that Muhammad failed to state a claim, the court meant Muhammad failed to state a claim where relief could be granted. ²⁸ In sidestepping Muhammad’s request to weigh in on Paruk’s judgment, the court dismissed the legitimacy of Muhammad’s grievance − and, in effect, ‘blamed the victim’ by asserting the very claim that is under scrutiny: was Muhammad actually treated unfairly? Was she discriminated against because of her religious commitment? Was it really a religious commitment, or just a ‘custom’ thing?

But there is something else at stake: in begging the question, the court is affirming Ginnah Muhammad’s illegibility. Whether as a Black American, as a Muslim, as a woman, Muhammad does not fit into any of the pre-given categories that would have enabled her to be legible. Her racial, gendered, religious − intersectional − status remains juridically irrelevant because two of those lenses are not acknowledged. Yet, it is Muhammad’s intersectional status, in its very implicit presence, that weighed heavily against her − not because she sued in the wrong court (as the District Court implies), but because she was misrecognised by the state as someone whose religious commitments are either irrelevant or not a compelling priority.

When Paruk refused to accept Muhammad’s explanation for declining to remove her niqab, he demonstrated an instance of incompetence − that is, testimonial incompetence, as Dotson defines it, and I would add − juridical incompetence. ²⁹ Paruk invalidated Muhammad’s claim by insisting that her claim was cultural and not religious because he was unable to discern its context or substance. He was also religiously (and culturally) ignorant of the range of practices taken up by Muslim women in their commitment to their faith. He was therefore unable (or unwilling?) to take up the burden of hearing the speaker, either learning further or giving the benefit of any doubt to Muhammad, and revising his interpretation in light of Muhammad’s pushback.

Through his incompetence, Paruk misrecognises Muhammad. Testimonial incompetence is a form of misrecognition. And the other side of misrecognition, again due to the asymmetries of power, is the absence of legibility. The nature of juridical institutions requires claimants to be legible through the categories of law and justice that are already available to them.

The absence of legibility of marginalised populations emerges from a liberal-cultural juridical tradition whose proponents herald the notion of judgement from a lens of impartiality and objectivity. Impartiality is exemplified both by the Lockean legacy of the neutral magistrate, as well as the Rawlsian ‘veil of ignorance’, where certain exigencies or vicissitudes of the speaker are sidelined in favour of those commonalities between the speaker and audience. ³⁰ Scholars who prioritise common traits as the basis of judgement believe that the attention to such traits runs the risk of reducing the issue of cultural or other ‘identity’-oriented features to social categories, i.e. a kind of surface identity politics. ³¹ For different reasons, Nancy Fraser has also expressed concern about the essentialism of identity politics, and tries to reconcile her commitment to just redistribution with questions of recognition by suggesting the misrecognition is less about harm than about ‘institutionalized patterns of value that affect one’s ability to participate as a peer in social life’. ³² In other words, Fraser points to misrecognition as expressed through institutions that reflect certain cultural attitudes that impact a group’s social status. Thus, norms that delegitimate certain populations through the outlawing of same-sex marriage, or of state aid to populations based on race or gender, serve to obstruct ‘parity of participation’. ³³ Redress of these grievances occurs through claims of recognition, which is about rebalancing social status rather than addressing the psychic harm of such policies. However, for Glen Coulthard, Fraser’s argument tries to reconcile distribution and recognition as part of institutionalised value at the expense of addressing ‘the problematic background assumption that the settler-state constitutes a legitimate framework within which Indigenous peoples might be more justly included, or from which they could be further excluded’ (a similar criticism applies to BIPOC populations as well). ³⁴

Scholars such as Roxanne Dunbar-Ortiz and Kevin Bruyneel trace the origins of the contemporary norms of liberal society to the history of white supremacy and settler-colonial structures that were established in North America several centuries ago. ³⁵ These settler-colonial institutions such as criminal law, public security and protection of private property are camouflaged as neutral laws that justify police violence, mass incarceration and racial capitalism. As Dunbar-Ortiz argues,

Settler colonialism, as an institution or system, requires violence or the threat of violence to attain its goals. People do not hand over their land, resources, children, and futures without a fight, and that fight is met with violence. In employing the force necessary to accomplish its expansionist goals, a colonizing regime institutionalizes violence. ³⁶

As Bruyneel illustrates, these early practices, institutionalised as ‘law and order’, are conveniently forgotten as genocidal tactics that erase indigenous populations, and remembered as ‘absorbing (and thereby eliminating) Indigeneity into whiteness in a manner that does not diminish whiteness; it strengthens it as a fundamental settler identity’. ³⁷

As Alexis Shotwell argues, such forgetting is re-metabolised as an ahistorical politics and an apolitical history. Shotwell describes her family’s move from Boulder, Colorado to Canada when she was a teen. She identifies the attitude surrounding their move: while seemingly neutral and free of any ‘specific racial content’, it was infused with active ignorance and forgetting. Such ignorance and forgetting is crucial to ‘white settler-colonial subjectivity’. ³⁸ Shotwell’s ‘unforgetting’ was awakened through her attempts to understand the context surrounding an armed conflict led by an indigenous group (the Kanien’kehá:ka) to resist the attempts of the local Canadian government to expand the land (already stolen from the Kanien’kehá:ka over three hundred years before) onto a Mohawk graveyard. ³⁹ Shotwell ties this not-knowing/forgetting of settler-colonial violence to the forgetting of the genocidal context of Boulder, Colorado, which is re-metabolised in the contemporary moment as the site of healthy living and spiritual re-centring. As she says, building on Dunbar-Ortiz’s notion of unforgetting, not knowing/remembering the circumstances of such conflicts, and even the apolitical act of ‘living healthy and getting in touch with one’s spiritual side . . . [are] practices densely rooted in non-white communities anti-colonial struggles, and contexts . . . this is a white problem . . . this is about history and . . . the social organizing of forgetting’. ⁴⁰ Such social organisation of forgetting is transformed into an epistemology of ignorance, as Charles Mills has coined the term, and a reification of whiteness and associated practices as the default neutral objective position that undergirds the seeming neutrality of liberal-juridical laws and norms.

As such, Fraser claims that attempting to rebalance norms to privilege or prioritise ends up, unfortunately, becoming another transient liberal norm that conveniently forgets the primary foundation for contemporary racial capitalism, i.e., the white settler-colonial frameworks that create the structure, make the rules, and judge racialised subjects much more harshly, or with condescension or the absence of the same empathy that they extend to ‘Others like themselves’. In other words, populations that are subject to the ‘objective’ or ‘race-neutral’ frameworks involuntarily − either through dissent, visible (racial/ethnic) appearance or other deviation from white settler colonial norms − will most often be treated ‘as if’ they appear as equals while, in practice, they are treated as children, savages or imbeciles − continuing the civilising mission of various European empires from three hundred years ago.

Other structural differences such as class are addressed through certain principles that reconfigure radical economic differences as instances of personal achievement or culpability. Thus, legibility depends upon speakers/claimants being able to make themselves ‘readable’ by resorting to already existing categories. Kimberlé Crenshaw points to the absence of legibility in her famous early work on intersectionality: hence, her attempts to resolve the invisibility of populations who fell through the cracks because they did not conform to the comparison categories (gender, race, class). ⁴¹

What does it mean to be legible institutionally and culturally? Chandra Mohanty and Jacqui Alexander each discuss how their move to the US from India and Trinidad, respectively, remade them as ‘women of colour’, part of a category that already existed to capture a cross-section of non-European women. As they say,

We were not born women of colour, but became women of colour here. From African American and U.S. women of colour, we learned the peculiar brand of U.S. North American racism and its constricted boundaries of race. ⁴²

Institutional-juridical legibility is not a category that requires mutual dependence or recognition as described above. Moreover, the form of recognition that is extended to subjects of colour in such contexts is predicated on a form of epistemic impunity: it is a kind of harm that is extended to subjects of colour − whether domestic populations or migrant populations, because there is simultaneously no accountability from the dominant culture whose imaginary encompasses that misrecognition, nor redress from the consequences of that harm, as we saw from Muhammad’s encounters with Paruk, precisely because it is couched in an institutional context that prides itself on the enactment of procedure as a guarantee of neutrality or objectivity. As such, misrecognition is a kind of epistemic violence that emerges from a colonial ignorance that performs, through the discourse of impartiality, jurisdictional autonomy and neutral norms: these are the discursive terms that denote fairness and justice, but which in fact absorb and conceal its ignorance through those very terms, while expressing what Kristie Dotson calls ‘epistemic silencing’.

Dismissal as the normalising of colonial misrecognition

In the juridical context, misrecognition and illegibility are two sides of the same coin: they are expressions of the colonial dual monopoly on power and authority – without accountability, but still with a veneer of neutrality, as procedure. These two elements – power without accountability and neutral procedures – are what camouflages the violence, rendering it plausibly deniable. It is a dimension of settler-colonial structures, designed to produce certain kinds of outcomes predicated on a set of rules and lenses that locate claimants on a binary of ‘reasonable’ or ‘unreasonable’.

This binary can be seen clearly in one of the ‘foundational’ texts of early modern political theory: John Locke’s Second Treatise of Government. The Second Treatise lays out the framework that enables a colonial-juridical structure to create certain rules that can only render certain claimants legible as lawful members of society or criminals, while leaving those who are outsiders vulnerable to the exigencies of the ‘laws of nature’, and therefore most certainly neither legible nor lawful. ⁴³ Elsewhere, I develop this analysis more fully, and refer to it as an ‘Epistemology of Violence’. With this phrase, I build on Charles Mills’s notion of the epistemology of ignorance. ⁴⁴ For Mills, the epistemology of ignorance, namely whites’ ‘inability’ to understand the world they have established, produces a soothing logic that explains ruptures, injustice and violence to the benefit of whites or other dominant groups. This is the world of white ignorance, in which the ‘dynamic role of white group interests needs to be recognised and acknowledged as a central causal factor in generating and sustaining white ignorance’. ⁴⁵ With that need in mind, I suggest that an Epistemology of Violence helps to cement those ‘white group interests’ in a formal, formulaic fashion: drawing on law to produce a world that exploits colonised populations, but through a discourse that insists on neutrality.

The epistemology of violence is a cognitive worldview held by whites or dominant populations which addresses racial, diasporic, ‘minority’ populations through a range of encounters such as settler-colonialism. It can be understood as a political device and a latent form of self-understanding, which metabolises certain populations into threats to the existence of that dominant population. This comportment can be expressed through legal, and political, discourses and frameworks that are often utilised and defended by ‘law-abiding citizens’ and their representatives – recourses that often utilise strategic amnesia or wilful ignorance.

The epistemology of violence is a framework that induces misrecognition. It is the foundation of racial dismissal, both in its iteration as a juridical expression as well as a worldly/cultural comportment directed against racial/gendered/sexual minorities whose complaints of ill-treatment or harm are thought to be insubstantial, and hence dismissed, and subject to vulnerability or precarity. Under this analysis, the judgment that Ginnah Muhammad faced was an instance of an epistemological violence: the insistent illegibility, the disbelief and sidestepping of a responsibility to evaluate her claims, by resorting to an accepted logic of neutral procedure. Dismissal, in Muhammad’s case, was the technical term. But it is also a term that can be applied to other similar instances involving other members of BIPOC populations.

A sovereign framework sets up the conditions and criteria of recognition, that is, the terms by which a claimant will not only have their claims heard, but also confirmed. To have one’s claims rejected does not necessarily constitute full-fledged misrecognition, but to have one’s claims dismissed altogether does. Similarly, racial (or diasporic) dismissal can be understood as a legacy practice that sustains and re-inscribes colonial relations through a continued and often heralded impunity: that is, legal and cultural sources, in the form of asymmetrical recognition, reject the grievances/claims of subjects of colour through their continual, perhaps inevitable, misrecognition. The normalising of colonial misrecognition, which I have traced through the close scrutiny of Ginnah Muhamnad’s situation, can be extended to other diasporic populations in dominant cultures.

Consider the following case: Angelica Belen, a woman of Puerto Rican and Menominee descent, was sentenced to three consecutive sentences of eight years for child neglect – for the deaths of three of her children in an electrical fire in a run-down rental house with faulty wiring. Because she was unable to find childcare, she had left her children at home alone while she went to her job. The landlord of her building, Todd Brunner, was sentenced to two years’ probation, even though he had numerous housing code violations on his record. As ProPublica, which explored the case at length, noted:

Known around Milwaukee as the foreclosure king, Brunner collects properties others have lost to banks. He’s a familiar figure to building-code inspectors for his long list of violations. ⁴⁶

Brunner had long been on record as being indifferent to life-endangering housing violations, well before Belen had moved into the house. She had asked the property manager to have the wiring fixed, but it was never addressed.

Thelma Nash, who rented the house before Belen, says the wiring throughout was ‘a mess’. ‘The lights were going on and off all the time’, Nash says. ‘I thought there were ghosts in there.’ She complained to property managers but got no response, she says. She never saw an electrician make repairs.

A month or so after moving out, Nash meets Belen while returning to pick up mail. Nash asks if the electrical wiring has been fixed, and when Belen says no, Nash tells her, ‘Baby, they shouldn’t have let you move in.’ ⁴⁷

The judge, Jeffrey Wagner, who presided over her case, conceded that she clearly loved her children, but ultimately rested the blame on her shoulders.

It should be noted that Brunner was infamous in Milwaukee circles for filing for bankruptcy protections, foreclosures, and housing code violations. He transferred his various rundown properties to his son’s name in order to hide his different holdings in real estate and various ‘cool toys’.

As ProPublica reported again,

A federal grand jury returns an 11-page indictment against Todd Brunner and his son Shawn for financial misdeeds. To reach this point, the government has expended enormous resources. Here’s the investigation and charges, by the numbers:

Agencies involved in the investigation: 4 (FBI, IRS, U.S. Department of Housing and Urban Development, Milwaukee Police Department)

Boxes of evidence collected in search of Todd Brunner’s home: 22

Documents collected: nearly 46,000

Felony charges against Shawn Brunner: 4

Maximum years he could face (all charges, combined): 95

Felony charges against Todd Brunner: 15

Maximum years he could face (all charges, combined): 350

And yet, Brunner is able to dodge federal officials for some time, until he is finally arrested under a large group of armed US marshals and police officials from three other agencies. Posting $2000 cash bail, he walks away until his trial. He is number two on a list of ‘Egregious Defendants’ kept by the Milwaukee Municipal Court – a list of landlords with delinquent fines for code violations. Brunner owed $161,019. He is convicted of three felonies. At his sentencing hearing, the prosecutor asks for a two-year prison sentence. The judge’s assessment, according to ProPublica:

The judge says, ‘Obviously, the core facts of this case are not much more than a very simple fraud.’

Brunner is ‘barely, barely ambulatory’, the judge says. He now weighs more than 600 pounds. To put him in prison, the judge says, ‘borders on the unconscionable’.

Earning profound sympathy from the judge where Belen did not, because of Brunner’s morbid obesity and related ill health and seemingly benign crimes, Brunner received two years of probation for each felony count – six years in total – to be served concurrently, with no fines, because as the judge stated, ‘He doesn’t even begin to have the resources to pay.’ ⁴⁸ All felony fraud charges against the son are dropped, since he only engaged in fraud ‘because he loved his father’, according to one of the prosecutors. ⁴⁹ Brunner’s tale does not end there, but there is not enough space to detail it in this article.

While she was in prison, Belen, representing herself, sued Todd Brunner. According to ProPublica:

Belen writes her seven-page complaint by hand, in block letters. She attaches exhibits: the notice of code violations sent to Brunner (‘two outlets east side of house’) and investigative reports that describe the basement’s exposed wiring and conclude the fire’s cause was electrical.

Belen also sues Guardian Investment, the real estate company put in charge of managing the house, and Tri City National Bank. After Tri City foreclosed on the house, a bank representative, accompanied by a Guardian employee, did a walk-through inspection, Belen writes. Neither ‘expressed any concerns’ to Belen about the house’s condition, her lawsuit says. This was in February 2013, two months before the fire.

However, the judge – who had also presided over an earlier case of Brunner’s involving fraud and subsequently sentenced him to probation with no fine – dismissed her suit for lack of jurisdiction. He ordered Belen to pay Brunner’s $350 filing fee and required that it be withdrawn from her prison account. Belen challenged this decision, but six months later, in November 2020, had her case dismissed on the grounds that she had filed her challenge in the wrong jurisdiction, and when offered an opportunity to withdraw it, did not do so.

How do we understand Belen’s treatment? As Charles Mills and Kristie Dotson argue, white ignorance or testimonial incompetence is the other side of misrecognition: both ignorance and incompetence are the exculpatory stances of institutions and populations with power: ‘We don’t know’ or ‘we are not interested/capable/prepared to listen’ are authoritative positions that become camouflaged in the neutral logics of procedure and impartial or disinterested principles that sustain and reproduce white supremacist liberal logics. To dismiss then – to dismiss a position, a minority grievance, a disenfranchised claimant, a diasporic population – appears to be an ordinary judgment after consideration. But it is often, rather, the ability – the impunity – to neglect claims of injustice in the name of preserving the cultural or ethical status quo in a dominant culture. Such neglect as a judicial, cultural or institutional comportment can often be a dangerous and violent outcome.

The contrast in the treatment between Todd Brunner and Angelica Belen, or her mother Dawn Sosa, or Sosa’s mother (see below), is striking and reveals the ontological disposition of dismissal: namely its function as a racial comportment. Consider the following details surrounding the way Belen and Brunner are interpellated by the US social and judicial systems:

Belen’s mother, Dawn Sosa, was convicted for the death of Belen’s younger sister Marisol in 1992. Malnourished and weighing only seven pounds at her death, Marisol was determined to have been beaten and starved by Sosa and her boyfriend, Ramon Velez. Velez, who estimated that he hit Marisol twice daily before her ultimate death at seventeen months, received fifteen years in prison. Sosa’s own history had also been filled with violence: she had been abused as a child by her mother and raised in foster homes.

Sosa was sentenced to eight years in prison by judge Michael Guolee, who characterised her as ‘weak’. In contrast, on the very same day that Sosa was convicted, Brunner ‘declare[d] bankruptcy in federal court in Milwaukee, using Chapter 13, a way to preserve property while slow-paying creditors’. ⁵⁰ Bankruptcy, as Kenneth Armstrong notes, can be seen either as a failure or a new beginning. ⁵¹ Brunner selected the more positive reading, later proudly declaring triple bankruptcy as a prerequisite to a man’s financial success.

This declaration of bankruptcy marked the beginning of Brunner’s encounters with courtrooms for the next several decades, where, thanks to his attorneys and the sympathy of the judges, he often received minimal convictions and penalties for crimes ranging from drunk driving (receiving thirty-five days, and released early for his third conviction), to filing successfully for bankruptcy even after owing $18 million to creditors, to minimal convictions for housing violations, including those that led to the house fire that killed three of Belen’s children – and ultimately led to Belen’s consecutive sentences leading to twenty-four years in prison.

Brunner’s crimes, which have affected many more victims than Belen’s or Sosa’s, and, arguably, whose negligence also played a large part in the death of Belen’s three children, is mostly treated with sympathy, care and concern. In marked contrast, Belen and her mother Dawn Sosa are received as child-like adults who need to be chastised, guided and corrected. These attitudes are revealed in the comments of the prosecutors and judges who presided over their cases:

‘There’s “got to be incarceration”. How a mother could do this to her child, “I don’t understand it.’” (Assistant District Attorney Mark Williams in reference to Dawn Sosa’s case).

‘You came from a terrible background. I feel for you . . . your mother was mentally ill. Are you mentally ill? I don’t think so. You are weak.’ (The judge in Sosa’s case.)

‘It’s beyond comprehension.’ (Mark Williams – the same prosecutor who tried Dawn Sosa, Angelica Belen’s mother – of Angelica Belen’s actions, while asking for substantial prison time for each of the three counts that faced Angelica Belen). Williams’s comment comes after he berates the Bureau of Child Welfare for not removing Belen’s children, despite past reports of negligence.

‘I don’t think there’s anybody in this courtroom that would disagree that you loved your children very much.’

‘I understand your – your terrible, terrible upbringing. I know that you’ve been victimized yourself growing up . . . But there shouldn’t be this cycle.’ (Judge Jeffrey Wagner to Angelica Belen before sentencing her to three consecutive sentences of eight years each.)

Consider, by contrast, the presiding judge’s remarks to Todd Brunner already listed as an ‘Egregious Defendant’, at his sentencing hearing for delinquent fines for violations of housing codes. This is after years of numerous violations, laughed off by Brunner. To the prosecutor’s statement that he remorselessly created false invoices and found ways to hide money during his bankruptcy filings, hiding ‘so much cash . . . that a bank employee had to help Brunner’s son shove a stuffed safety deposit box back into place’, the judge in Brunner’s case, J. P. Stadtmueller, responded:

You’ve got to put this case in context . . . Brunner committed his crimes during a time of lax financial oversight, when it was go, go, go, go, go, and we don’t need to get verification for anything.

The judge’s comments before sentencing Brunner to six years of probation (two each on three felonies, reduced to two years (serving all three concurrently):

‘Obviously, the core facts of this case are not much more than a very simple fraud.’ Brunner is ‘barely, barely ambulatory,’ the judge says. He now weighs more than 600 pounds. To put him in prison, the judge says, ‘borders on the unconscionable.’ The judge sentences Brunner to probation – two years on each of the three felony convictions. Rather than lasting six years, Brunner’s probation will last two. The judge orders the probationary periods to run concurrently instead of back-to back. The judge says: ‘Obviously, there is no fine. He doesn’t even begin to have the resources to pay.’

We see here a consistent practice of testimonial silencing on the parts of the prosecutors and judges involved in Angelica Belen’s case. It involves, in Dotson’s terms, pernicious ignorance – ignorance that causes harm to Belen due to the refusal or inability to discern the context of Belen’s situation. Compare the institution’s treatment of Belen with its approach to Brunner, whose remarkable record of fraud, criminal neglect, and constant evasion and deceptiveness is met with extraordinary sympathy by the judge in his case. Can there be any doubt that the remarkable contrast is due to the legacies of colonial misrecognition of diasporic populations, based on the strong legacy of forgetting of practices of institutional violence, and its metabolisation as neutral laws or deceptive objective juridical frameworks that ‘treat everyone the same’? The institutional violence of ignorance and the social organisation of forgetting, as Shotwell calls it, is folded in to a convenient discourse of ‘responsibility’ or ‘accountability’, which ironically facilitates the lack of accountability on the part of the court itself – both in its embrace of Brunner and its punishment of Belen, despite Brunner’s heinous actions which led to the loss of Belen’s children and her subsequent imprisonment.

Conclusion

Contemporary misrecognition, as I have illustrated, reflects the legacies of settler-colonial norms governing various colonised populations. These norms are racial and gendered, and are camouflaged in a discourse of impartiality, procedure and neutrality, when, in fact, they are deployed as forms of management and the regulation of subordinated groups. Such epistemic violence can be seen in the practice of racial dismissal, testimonial silencing, and testimonial incompetence. The juridical treatment of Ginnah Muhammad and Angelica Belen accidentally reveals those forms of colonial misrecognition, even as such treatment is upheld through complex and sturdy institutional foundations. We might argue that this epistemic violence is channelled through a form of cultural gatekeeping, in which subordinated populations are supposed to ‘know their place’, and are checked through the camouflage of neutrality when they step out of those places. Misrecognition can also be understood as a form of racial management, whereby populations must conform to the norms by which they are legible in order to be eligible for just treatment.