In this article Haywood in Kairys (1998), observes that past and developed laws in America date back to racial matters and discrimination. He reveals examples of earlier legal cases where race was the major determinant of the jurisdiction to be given by the legal system. Kansas 1855 presents a case where a similar offense by people of different race was granted different penalties. The history in the seventeenth century in colonial America recalls that there was racial equality with no clear definition of slave by race.
Ironically, after colonialism, racial disparity emerged with the founding of the legal system and laws out of the sheer desire to economically benefit from the exploitation of black labor through the creation of institution of American chattel slavery. Law played a major role up to revolution with no major legal changes even after the revolution. The new constitution embossed slave trade, guaranteed the release of fugitive slaves and did not recognize blacks as full human beings in taxation and representation politically.
The post revolutionary laws provided legislation of: slaves, racial interactions of whites/ blacks and provided dominance of the whites over the blacks thus not recognizing the rights of blacks through restrictions to education, employment, and so on. The case of Dred Scott v. Sanford of 1857 brought criticism on the legal injustice and formed the background for civil war which though led to the abolition of slave trade, economic exploitation and racism remained.
The southern states adopted black code laws. The late 1800s were characterized by segregation of races which culminated with the decision of the Supreme Court in 1896 on a case where separation with equality was adopted as the law of the land. The law was racially founded through the constitution revision of 1890. Haywood believes that racism is still rampant in America despite the efforts of the Brown’s movement of the 20th century. (Kairys, 1998) Legal Education as Training for Hierarchy
Kennedy in Kairys (1998) believes that legal training is organized on the lines of dominion and hierarchy which is encouraged by the legal system. He outlines the cultural reactions of the beginners in legal training. He describes the motives of beginners in law as; service, as a tool for established interests, competitive and transforming and for social mobility. The teaching is characterized by white male middle class teachers who have autonomy in the process. The experience shifts to passivity in the attitude to legal content.
Kennedy criticizes the teaching process on the basis of the formality of the curriculum and legal reasoning that ignore value judgments and individual thoughts to adapt a system of conservatism characterized by mutual acceptance. The system is also characterized by mixed conflict of emotions especially in cold and hot case deliberation. The system fails to allow for open criticism that can discourage liberal students. The curriculum is characterized by state elevation with the rights of the oppressed not accorded rightly.
It encourages hierarchy through the teaching of simple skills, arbitral grading and evaluation that is subjective. This limits the number of graduates who proceed with law maintaining the status quo. Students are incapacitated to join the hierarchy system for several reasons such as: requirements of the law school to produce students who graduate and fit in the system since they have no other alternative, the isolation of practice skills in teaching and the suppression of the esteem of students by the educational system.
The system models hierarchical relationships through: teaching by example of teacher modeling, expression of vulnerability, judgments in competence, desire to maintain the status quo through school rank and the treatment of subordinates; affiliations and mentorship, student/ teacher relations that are authoritarian and the placement process in the legal firms.