Permitted Harm

How can we begin to withdraw the cultural permission for racism, misogyny, and other forms of bigotry that seems to be prevailing as the law of the land?

Thousands of words have been written about the recent election, from every perspective imaginable. How did we get here? What next? What does this mean?

Twenty years ago, one of my law school professors wrote: “Whenever society permits a particular act, it is simultaneously authorizing all consequences of that act.” This is a principle of tort law, and the example usually given is fairly simple. If I am playing a game, and I know the rules when I enter the game, and I am injured in the game but no one broke the rules, it is a permitted harm and I have no claim to damages.

How do I make the leap from tort law to this election? I have no easy answers, but I am sure of one thing. This election gave permission for thoughts, words, and actions that have not been acceptable or mainstream for more than 50 years. The “rules” have changed.

When I teach Gender and International Security, I ask students to look at UN Security Council Resolution 1325. That resolution expresses concern that, in response to conflicts in Rwanda and in the former Yugoslavia, “civilians particularly women and children, account for the vast majority of those adversely affected by armed conflict, including as refuges and internally displaced persons, and increasingly are targeted by combatants and armed elements….”

The crucial recognition here is that women and children were being deliberately targeted by combatants. If that was true, and if we assume that the combatants were in some form representatives of the state, which was certainly true in both Rwanda and the former Yugoslavia, then the state essentially permitted this targeting and thus permitted every act that resulted from this targeting — the murders and rapes, the tortures and humiliations, the forced pregnancies. All were caused by the society’s permission (no doubt unofficial, but permission nonetheless) for them to be targeted as a strategy of warfare.

What is remarkable about UNSC 1325 is that by affirming the condemnation of such strategies in strong language, and “affirming the need to …protect the rights of women and girls during and after conflicts,” the U.N. and the international community have effectively withdrawn permission for this kind of targeting. And that withdrawal has notable implications. In times of war and in times of recovery from war, women who have been victims of an un-permitted harm have a right of redress.

While this election gave permission for certain negative acts and words by virtue of electing Donald Trump, a large percentage of citizens rejected him. We rejected the mocking of the disabled, the open call to racism and nationalism, the advocacy of war crimes like torture, indiscriminate bombing, perhaps even with nuclear weapons. We rejected the cruel and outrageous treatment of women with words and deeds.

But we lost. We lost the election and the next president of the United States will be in office as a reminder of all of the permitted harms he represents.

So what do we do? How can we respond? How can we begin to withdraw the cultural permission that seems to be prevailing as the law of the land?

First, we can remind ourselves and our friends and those who voted for Trump that in fact, discrimination and bigotry are NOT the law of the land. We have legislation and court decisions that call for equal rights, for non-discrimination, for accessibility for all. Those are the values we support and stand behind.

Any attempt by the Republican majority congress to overturn those laws or to impose new laws that are not consistent with those values must be met with resistance. Acquiescence means that we are giving permission for the violations contained in that legislation.

Second, we need to remember that the Trump victory is not a mandate to install his version of the social contract. He did not win the popular vote. There are more of us than of him, and resistance is our necessity. We can resist the way citizens in this democracy have always resisted — with speech, with demonstrations of disagreement, with art and theater and literature, and when necessary with nonviolent civil disobedience.

Finally, we need to recognize that apathy has been a form of permission that we must withdraw. Widespread failure to educate ourselves about the issues, to express our opinions, to vote — in this way many of us have given permission for the opposition to create a powerful, nearly impregnable, minority. We can take care of those we love in our families and communities, and at the same time we can be aware of the needs of those in communities who are not our intimates.

We are in a whole new game, one in which the Republicans have pursued a long strategy to change the rules. Voting rights have been restricted by voter ID, limited early voting, and limited absentee ballots. Redistricting has given incumbents the ability to be re-elected time after time. “Throw them out” of office seems a quaint idea now. And drawing election districts so that most minority voters or Democrats are in a single district limits the number of representatives they can elect. A district that is competitive is rare indeed.

But the most disturbing effect of the 2016 election is the permission that the Trump campaign gave to expressions of racism, misogyny, perverted nationalism, and religious extremism. Some of us remember being horrified when the Bush campaign of 1988 ran an ad about a convicted felon who had committed murder while on furlough under a program in Massachusetts when Michael Dukakis was governor. Horton’s race was never mentioned, but his picture told the tale. Arguably the Willie Horton ad cost Dukakis the election. How tame that seems today when compared to “Mexican rapists” or appeals to white supremacy.

The challenge for progressives today is not to play by the new rules, but to oppose them.

There is work to do. It is not easy work. But not to work is to give our permission for the words and deeds that horrify us.

Judith McDaniel, PhD, JD, teaches Law and Social Change at the University of Arizona. Her book, Sanctuary: A Journey, was published by Firebrand Books in 1986

Judith McDaniel, PhD, JD, teaches Law and Social Change at the University of Arizona. Her book, Sanctuary: A Journey, was published by Firebrand Books in 1986