The Souls of Black Folk, by W.E.B. Du Bois

Bharat Malkani

Introduction

This chapter explores the influence of W.E.B. Du Bois’ 1903 text, The Souls of Black Folk, on the topic of race and law. Du Bois was a celebrated academic and racial justice activist in the first half the 20th century, and although his work was primarily sociological, the ideas and concepts that he developed in Souls have had a profound influence on how legal scholars and activists have understood the paradoxical relationship between racism and the legal system. Du Bois’ work sheds light on how the law is a tool of both racism and anti-racism, and his work has shaped the discipline of Critical Race Theory (CRT) as well as the work of social justice movements such as the National Association for the Advancement of Colored People, and Black Lives Matter. Even though Souls was published over a century ago, its central concern is still of importance today, and Du Bois’ ideas continue to shape and influence advocates of racial justice.

Racism - the idea that ‘one racial group [is] inferior or superior to another racial group in any way’ (Kendi, 2016: 5) - has historically been one of the most enduring social injustices across the globe, and the topic has inevitably attracted considerable attention from scholars of a wide variety of disciplines: from the natural sciences to the social sciences and from historians to academic lawyers. There are several texts that could be described as a ‘leading work’ in the field of racial injustice and law, and in this chapter, I explain why The Souls of Black Folk, written by the African American William Edward Burghardt Du Bois, and published in 1903, can be considered one such text.

The Souls of Black Folk was just one of the many works of Du Bois, who was a prolific scholar and activist. Comprising 14 essays, the book defies easy categorisation. It includes a series of autobiographical reflections of Du Bois’ experiences with racism in the United States, as well as a dramatised account of racial injustices. It is variously a political manifesto for how to combat racism; a historical record of racial injustices; a sociological study of the lives of African Americans; and a cultural commentary on the state of America at the turn of the 20th century (Gates Jr and Oliver, 1999: xvii). However, while the influence of Souls on the discipline of sociology has been scrutinised (Morris, 2015), its contribution to legal academia has received less attention. This is perhaps because Du Bois does not explicitly focus on the legal system in ways that other writers have done, and perhaps because he is considered to have been a social scientist rather than an academic lawyer. Nonetheless, the themes and concepts that he introduces in Souls (and indeed his other works) have had a profound influence on how later scholars and activists have understood the complex relationship between racism and law.

The influence of Souls on the field of racial justice and law is threefold. First, it set the foundations for how social justice movements concerned with racism have used the law to further their cause, from the civil rights movement of the mid-20th century, through to the Black Lives Matter movement of more recent times. Second, the book provided the intellectual groundwork for subsequent academic scholarship on race, social justice, and law, most notably the field of Critical Race Theory’ that emerged in the 1980s. Third, Souls marked Du Bois as a prominent scholar-activist, and his approach to marrying academia with social justice activism has inspired future generations of scholar-activists, particularly those concerned with racial injustices.

To explain how Souls has contributed to scholarly and activist understandings of race and law, the historical and contemporary context in which Souls was written is set out first, explaining that the central concern of the book is as pertinent today as it was at the turn of the 20th century. The significance of Souls in terms of the study of race and law is then considered. In particular, I explain how the ideas contained in Souls have contributed to contemporary' understandings about the paradoxical relationship between race and law. The relationship is paradoxical, we shall see, because, on the one hand, legal systems have been sites of racial oppression, yet on the other hand, legal systems have been important and effective tools of anti-racism. In the final section on the legacy’ of Souls, we shall see how Du Bois’ insistence on combining his scholarly’ work with activism has inspired later generations of scholar-activists and social justice activists and could be of greater influence to socio-legal academics interested in racism and the legal sy'stem.

Before explaining the context, significance, and legacy’ of Souls for the field of race and law, a brief biography of the author is in order. Born in 1868 in Massachusetts, Du Bois devoted his life to fighting racism both in the United States and abroad. He was a celebrated academic: he was the first African American to be awarded a PhD from Harvard University, and he received critical acclaim for adopting innovative and rigorous research methods in the social sciences when documenting the social injustices that Black communities faced in an era of racial segregation in the United States. He was also an activist and organiser, playing a central role in the founding of the National Association for the Advancement of Colored People (NAACP) in 1909, which is still one of the nation’s pre-eminent civil rights organisations. He was a journalist too and was editor of the NAACP’s monthly’ magazine, The Crisis, which drew popular attention to the injustices of racism. Du Bois’ popularity' and influence worried US authorities, and in the 1950s, he was investigated by’ the Federal Bureau of Investigations (FBI) as part of Senator McCarthy’s anti-communist campaign. While he was working in Ghana in 1963, the United States refused to renew his

The Souls of Black Folk, by W.E.B. Du Bois 193 passport, and so he took up Ghanaian citizenship. His health deteriorated, and he died in Accra in August 1963, at the age of 95. Over half a century since his death, Du Bois is still regarded internationally as one of the leading figures in the perpetual fight against racism.

Souls in Context

To appreciate the impact of Souls on scholarly and popular understandings of race and law, it is necessary to understand the political, legal, social, and cultural contexts in which Du Bois was writing. The turn of the 20th century was a tumultuous time in race relations in America. On the one hand, supporters of racial equality had been buoyed by the enactment of the Thirteenth Amendment to the Constitution in 1865, which ended slavery in all circumstances except as punishment for crime. They had been hopeful that emancipation would herald political, legal, and social changes in America which would ameliorate the effects of racebased slavery and lead to racial equality. At first, their hopes seemed achievable. The Fourteenth Amendment was passed just three years later, in 1868, which guaranteed ‘equal protection under the law’ regardless of race. Many other political, legal, and social initiatives took place during the era that came to be known as Reconstruction which promoted racial equality. However, this ultimately proved to be something of a false dawn for African Americans. Those who believed in the superiority of people classified as ‘White’ were not willing to accept anything resembling equal opportunities or rights for those that they classed as ‘non-white’. Despite various attempts to ensure that Black Americans were treated fairly and with equal respect, Reconstruction came to an end in 1877, just 12 years after the passage of the Thirteenth Amendment, as laws and customs were developed to ensure the continued subjugation of Black Americans (Du Bois, 1998; Foner, 2015). This is the political, legal, and social context in which Du Bois was writing during the late 1800s. He was drawing attention to the numerous and overlapping social injustices that people not classified as ‘White’ continued to face in the United States.

Readers of Souls should also be mindful of the cultural context in which Du Bois was writing. For several decades, Frederick Douglass had been considered the leading voice for Black Americans. Douglass has escaped from slaver}' in 1838 and had become a prominent abolitionist through his rousing speeches and three widely acclaimed autobiographies (Blight, 2018). He continued to lead the fight against racial and other social injustices in the years after emancipation, but died of heart attack on 20 February 1895, after speaking at an event for women’s rights. At the time, Booker T. Washington was emerging as the heir apparent to Douglass. Although Du Bois was initially supportive of Washington, in Souls he set out his opposition to Washington’s approach to tackling racial injustices. Whereas Douglass wanted nothing less than equal civil and political rights for Black Americans, Washington was willing to cede political rights and power to whites, preferring instead to focus on securing educational and entrepreneurship opportunities for Blacks. Du Bois’ criticisms of Washington’s approach aredetailed later in this chapter, but for now, it is important to appreciate that Du Bois was inspired to write Souls in the aftermath of Douglass’ death and in light of Washington’s emergence. Souls was therefore published at something of a critical time within Black communities, as people diverged over strategies and tactics for advancing the cause of racial justice. In positioning himself against Washington, and by trying to convince readers of the merits of his own position, the publication of Souls established Du Bois as one of the de facto leaders of the African American community. And whereas Douglass and Washington had tended to rely on their oratorical skills, Du Bois was contemporarily regarded as ‘one of the few men in history who was hurled on the throne of leadership by the dynamic force of the written word’ (Ferris, 1985: 128). This, then, is the cultural context of Souls: it marked the emergence of a new leader for African Americans, and it opened the door to the use of the written word as a tool for advocating for equal civil and political rights.

It is difficult to understate just how popular Du Bois was at the turn of the 20th century. His first major work The Philadelphia Negro: A Social Study had been published in 1899, and this was followed by numerous essays for a variety of prominent publications which shed light on the continuing social injustices that ‘non-whites’ faced in an era of Jim Crow laws and practices. These publications established Du Bois as ‘the public written “voice” of the Negro American intellectual’ (Gates Jr and Oliver, 1999: xvii). It was perhaps unsurprising, then, that Souls was well received upon publication, but it is worth emphasising the popularity of the book. It sold at a rate beyond all expectations, with the publisher having to print a third run of copies by June 1903. By October, about 200 copies were being sold each week (Ixwis, 1993: 291). It is not sales alone that make a text a ‘leading work’, though, the critical acclaim that Souls received upon publication should also be noted, as documented in David Levering Lewis’ biography of Du Bois (Lewis, 1993). And it should be noted that while Du Bois was primarily concerned with racism in the United States, he fervently believed that racism in one country’ was not analytically’ distinct to racism in other countries. In this respect, in Souls and his other work, Du Bois was one of the first to encourage an internationalist approach to tackling racial injustices and to advancing the cause of those not considered to be ‘white’. Again, this provides some important context for the work: it was contemporarily’ considered to be a groundbreaking and leading work on racism.

The appreciation of Souls has not waned in the years since its publication. In 2012, it featured in a list of‘Books That Shaped America’, compiled by the Library’ of Congress. Its inclusion was justified on the grounds that ‘it is impossible to consider the civil rights movement’s roots without first looking to this groundbreaking work’ (Library’ of Congress, 2012). Similarly, Du Bois’ biographer, Manning Marable, has written that ‘[f]ew books make history’ and fewer still become foundational texts for the movements and struggles of an entire people. The “Souls of Black Folk” occupies this rare position’ (Marable, 2016: 26).

Souls continues to act as a foundational text for movements concerned with racial justice, such as the Black Lives Matter movement which was formed in

2013, because the issues addressed by Du Bois have not disappeared. Although Souls was published over a century ago and was written in an ostensibly very different sociopolitical and legal climate, the central concern of the book - racism against those who are not considered to be ‘white’ - is an issue that is widespread and flourishing today. Souls was primarily focused on racism in the United States, and the former President of the United States, Donald Trump, has expressed racist views on occasions far too numerous to list here (CNN, 2019). Moreover, it has been argued that Trump’s public support for racism has emboldened those who have committed acts of racial violence, many of which have resulted in fatalities such as in Charlottesville and El Paso (Wagner and Itkowitz, 2019). Activists and scholars continue to document racial discrimination in employment, housing, the provision of healthcare, the criminal justice system, and so on (NAACP, 2018).

Just as Du Bois did not exclusively focus on the United States, so racism is, of course, not confined to the United States. The current Prime Minister of the United Kingdom, Boris Johnson, has referred to Black people as ‘piccaninnies’ with ‘watermelon smiles’ (Busari, 2019) and has not spared brown-skinned women of Muslim faith from denigrating comments (BBC News, 2018). The Prime Minister of Australia, Scott Morrison, has deployed racist rhetoric against immigrants and asylum seekers (Pearson, 2019), and Italy’s former Deputy Prime Minister, Matteo Salvini has consistently embraced racist ideologies (Kennedy, 2019). By virtue of their positions of power, these political leaders have implemented laws and policies that have had a profound impact on the lives of people not considered to be ‘white’ and have emboldened others to act on racial animosity. Countering these racist narratives, ideologies, practices, and legal structures, then, is just as vital today as it was when Souls was published in 1903.

The Significance of Souls

There are of course many works that address the relationship between race and law. A. Leon Higginbotham Jr’s two books on race and the American legal system (1978; 1996), for example, are comprehensive accounts of the myriad ways in which Black Americans have been disadvantaged and subjugated by legal norms and processes. Stuart Hall’s Policing the Crisis (1978) provides an analysis of the racialised image of‘criminals’ in Britain. And there are the numerous works of Critical Race theorists, which emerged in the 1980s, and which squarely address the ways in which the legal system creates and enforces the notion of white supremacy. All these works, though, owe something to the key themes and concepts that Du Bois addresses in The Souls of Black Folk. This section sets out some of these themes and concepts and then explains how these ideas have helped scholars and activists address the relationship between race and law.

The Color-line, the Veil, and Double-Consciousness

Du Bois was prescient when he wrote, in both the Forethought and Chapter Two, that ‘the problem of the Twentieth Century is the problem of the color-line’ (Du

Bois, 1999: 5). Souls is concerned with this problem, which refers to the ‘line’ that separates ‘the darker to the lighter races’ (Du Bois, 1999: 17) in virtually all aspects of political and social life. In the first chapters of Souls, Du Bois documents how the ‘color-line’ operates at both an individual and structural level. Documenting the years immediately after President Lincoln’s Emancipation Proclamation in 1861, Du Bois highlights the prevalence of racist attitudes among whites: ‘there was scarcely a white man in the South who did not honestly regard Emancipation as a crime’ (Du Bois, 1999: 32). This type ofindividual animosity towards Blacks is symbiotic with structural constraints on the freedom of Blacks: ‘black farmers are peons, bound by law and custom to an economic slaver}' ... In the most cultured sections and cities of the South the Negroes are a segregated servile caste, with restricted rights and privileges’ (Du Bois, 1999: 33). Later scholars concerned with ‘the color-line’ have made similar observations. For example, in Black Power (1967), Stokely Carmichael and Charles Hamilton provide a similar, albeit more explicit, account of ‘individual racism and institutional racism’ (Carmichael and Hamilton, 1992: 4). Like Du Bois, they recognise the laws and policies which create conditions of poverty among Blacks, leading to systemic discrimination and subjugation, and rely on ‘the active and pervasive operation of anti-black attitudes and practices’ among individual members of society (Carmichael and Hamilton, 1992: 5).

In documenting the sufferings of Black people in late-19th-century America, at both the individual and institutional level, Du Bois introduces the reader to the concepts of‘the veil’ and ‘double-consciousness’ (Du Bois, 1999: 10-11). He provides a personal example of being excluded from a childhood activity on the basis of his skin colour and explains how he was ‘shut out from their world by a vast veil’ (10). The veil, Du Bois continues, hides Black people so they can never fully participate in social and political life. But ‘the veil’ also creates and shapes the way in which Black people view themselves and the outside world. The veil ‘only lets [a Black person] see himself through the revelation of the other world’ (Du Bois, 1999: 11), namely, the world as construed by whites. From this, Du Bois notes how Blacks have a ‘double-consciousness [in the] sense of always looking at one’s self through the eyes of others’ (Du Bois, 1999: 11). The idea of‘doubleconsciousness’ has multiple meanings. First, Du Bois was referring to idea that racism was so pervasive that Blacks would invariably judge themselves and understand themselves through the lens and frameworks constructed by white people. Second, Du Bois used the term to highlight how the dual identities of Black Americans pull in opposite directions. In his words, a Black person ‘ever feels his two-ness, - an American, a Negro; two souls, two thoughts, two unreconciled strivings; two warring ideals in one dark body, whose dogged strength alone keeps it from being torn asunder’ (Du Bois, 1999: 11). For example, a Black American feels American by virtue of being born in America, yet simultaneously knows they are not as ‘American’ as white Americans because barriers to voting hinder their participation in the democratic process (Flynn et al, 2017).

In Souls, Du Bois does not explicitly connect the concepts of ‘the veil’ and ‘double-consciousness’ to the relationship between race and law, but the concepts are nonetheless useful analytical tools for understanding this relationship, particularly within the context of the criminal justice system.

The ‘Double-Consciousness’ of the Legal System

The law has a complex relationship with racial justice and racial equality. On the one hand, legal systems around the world have been sites of racial oppression, with laws being used to construct and enforce white supremacy and the subjugation of those not classed as ‘white’. Colonialism and racial slavery are perhaps the prime examples of this, though there are many more. On the other hand, the legal system has been a tool of anti-racism, used to remedy and prevent racial injustices. In the United States, legislation such as the Civil Rights Act of 1964 and judicial decisions such as in Brown v Board of Education (1954) are examples of the law as a tool of anti-racism. This is not made entirely clear in Souls, but a close reading of the text reveals just how Du Bois’ terminology’ can help us understand this paradoxical relationship between race and law.

The Law as a Tool of Racism

In the second essay in Souls, titled ‘On the Dawn of Freedom’, Du Bois explains how political, legal, and social events from 1861 to 1872 conspired to entrench and deepen ‘the problem of the color-line’. As he writes, ‘the War Amendments [chiefly the Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution] made the Negro problems of to-day’ (Du Bois, 1999: 17). Put another way, Du Bois recognised that the law can construct and perpetuate racism. It is hardly surprising that Du Bois recognised this, since he was writing at a time when the legal system was explicitly used by white supremacists to subjugate Blacks. Just seven years before Souls was published, the US Supreme Court had given legal sanction to racial segregation in Plessy v Ferguson (1896). Even the Thirteenth Amendment to the Constitution, which was ostensibly anti-racist, had expressly reserved the legality of slavery as a punishment for crime, thus leading supporters of slavery and racial inequality to turn to the criminal justice system as a replacement means of controlling the Black population (Blackmon, 2009; Malkani, 2018). In the essay titled ‘Of the Sons of Master and Man’, Du Bois notes: ‘(1) that the inevitable result of Emancipation was to increase crime and criminals, and (2) that the police system of the South was primarily designed to control slaves’ (Du Bois, 1999: 113). As a result, there grew

a double system of justice, which erred on the white side by undue leniency and the practical immunity of red-handed criminals, and erred on the black side by undue severity, injustice, and lack of discrimination. For, as I have said, the police system of the South was originally designed to keep track of all Negroes, not simply of criminals; and when the Negroes were freed and the whole South was convinced of the impossibility of free Negro labor, the first and almost universal device was to use the courts as a means of reenslaving the blacks. (Du Bois, 1999: 113)

The ‘practical immunity’ of whites that Du Bois writes about is manifested today in the routine ways in which whites are excused for killing Black people, whether it be the acquittal of George Zimmerman for the murder of Trayvon Martin or the failure to charge and convict police officers for the deaths of, among others, Tamar Rice, Eric Garner, Michael Brown, and Philandro Castille (Taylor, 2019; Lebron, 2017). The ‘undue severity’ that Du Bois writes about is manifested contemporarily by the disproportionately harsh sentences that are meted out to Black people accused of crimes, particularly in cases where the victim is identified as ‘White’ (Malkani, 2018). According to figures from the Death Penalty Information Center, 21 white people have been executed for the murder of a Black person since the death penalty was reinstated in 1976 in the United States. In that same time period, 294 Black people have been executed for the murder of a white person (Death Penalty Information Center, 2020).

Racial discrimination in the criminal justice system that has developed since the partial abolition of slavery can be understood through Du Bois’ concept of ‘double-consciousness’. The Thirteenth Amendment encouraged white supremacists to develop a narrative of ‘black criminality’, and this has seeped into the consciousness of Black Americans. For example, in 1993, the Reverend Jesse Jackson, one of the most prominent Black leaders in America at the time, made a comment that reflected this type of double-consciousness:

There is nothing more painful for me at this stage of my life than to walk down the street and hear footsteps and start to think about robbery and then look around and see it’s somebody white and feel relieved. How humiliating. (DiLulio Jr., 2015: 84)

Put another way, white-constructions of Black-criminality have been so pervasive that even some Black people judge themselves ‘through the eyes’ of this white-constructed narrative.

Michelle Alexander and James Forman Jr have both recently addressed the extent to which Black Americans have adopted white-constructed notions of Black-criminality, and their analysis lends more nuance to Du Bois’ concept of ‘double-consciousness’. If we were to take Du Bois’ and Reverend Jackson’s statements at face value, we would expect Black Americans to expressly support policies and laws that target (perceived) Black criminality. However, in different ways, Alexander and Forman Jr explain how the issue is more complex than this. In The New Jim Crow, Alexander (2010) explains how the criminal justice system is set up to discriminate against Black people, primarily through the War on Drugs which has had a disproportionate effect on Blacks in the way this policy has been implemented. Alexander’s thesis is that the recent phenomenon of the mass incarceration of mostly young Black men should be understood as a modern iteration of Jim Crow: both can be understood as racial caste systems. She addresses the view that Black people support ‘get tough’ policies on crime and drugs (Du Bois, 1999: 208) but dismisses this as a misunderstanding. In her view, Blacks are at worst complicit in the system of mass incarceration because

The Souls of Black Folk, by W.E.B. Du Bois 199 they consider themselves to have very little choice. In her words, Black Americans ‘experience an intense dual frustration regarding crime and law enforcement’ (Du Bois, 1999: 209). In their view, they either accept ‘get tough’ criminal justice policies or they accept more rampant violent crime (Du Bois, 1999: 210). This is not to say, though, that they necessarily see Black people as inherently criminal, but rather they recognise that because of socio-economic conditions, involvement in the drugs trade is often the only means available to young, poor Blacks to make a living.

Forman Jr takes the analysis a step further. In Locking Up Our Own, Forman Jr (2017) points out that Black leaders - mayors, police chiefs, prosecutors, and so on - were actually architects of several ‘tough on crime’ policies during the 1990s which had a disproportionate impact on Black people. However, Forman Jr does not believe that they developed these policies because they agreed that Black people were prone to criminality and needed ‘locking up’. Rather, their adoption of‘get tough’ policies stemmed from the struggle for civil rights. Fearing that the gains of the civil rights era were at risk by rising drug addiction and crime, Black leaders called for a package of measures including initiatives to tackle poverty, to address the lack of jobs and suitable education opportunities, as well as more law enforcement and tougher sentencing. Because Black people lacked political power, though, and because the calls came at a time when there was no desire for social justice programmes run by the government, only the ‘tough on crime’ policies and measures were forthcoming. This leads us to the second type of ‘double-consciousness’ identified above. Black Americans now see themselves as ‘American’ in that they benefit from greater legal protection following the civil rights era, but they are simultaneously the primary targets of the criminal justice system and law enforcement agencies by virtue of their classification as ‘Black’. Again, without expressly referring to Du Bois, this idea of‘double-consciousness’ appears in Carmichael and Hamilton’s Black Power, when they write: ‘Black people are legal citizens of the United States with, for the most part, the same legal rights as other citizens. Yet they stand as colonial subjects in relation to the white society’ (Carmichael and Hamilton, 1992: 5), arguing that Blacks in America are treated much like how colonial subjects were treated by colonial powers. Put another way, the law provides equal protection to Black people in a literal sense, but is simultaneously geared towards subjugating Black people, particularly through the criminal justice system, in practice.

The Law as a Tool of Anti-racism

As noted above, Du Bois was writing shortly after the US Supreme Court decision in Plessy v Ferguson, which gave legal sanction to racial segregation and social practices that were aimed at subjugating Black people. It is perhaps unsurprising then to find that Du Bois does not appear to consider the legal system as a site for combatting racism. However, in his critique of Booker T. Washington, Du Bois hints at a belief that the legal system might be used as a tool of anti-racism. Moreover, his critique formed the basis for the approach of the NAACP towardsusing the legal system to strike down racist laws and policies during the mid-20th century and beyond. In this sense, it was Du Bois’ critique of Washington in Souls that shaped the litigation strategy of anti-racists.

Du Bois’ criticisms of Booker T. Washington appear in the third essay in Souls. Towards the end of the 1800s, Washington was widely regarded as the pre-eminent spokesperson for Black Americans. On 18 September 1895, Washington delivered his ‘Atlanta Exposition Address’, now usually referred to as the ‘Atlanta Compromise’, in which he espoused industrial education for Black Americans, while accepting racial segregation and the denial of certain civil and political rights, such as voting rights. Washington’s view was that Blacks should accept and integrate with the normative frameworks constructed by whites. The thrust of his speech was distilled in the following lines: Tn all things purely social we can be as separate as the five fingers, and yet one as the hand in all things essential to mutual progress’ (Du Bois, 1999: 35). As Du Bois notes, the speech elevated Washington to the position of ‘most distinguished Southerner since Jefferson Davis, and the one with the largest personal following’ (Du Bois, 1999: 35). But although Du Bois retained respect for Washington, he did not hesitate in criticising Washington’s accommodationist and integrationist position.

Du Bois argues that ‘history’ and reason’ compel him to reject Washington’s thesis that Black Americans will make effective economic progress if they give up the demand for voting rights and political power and accept ‘industrial training’ over higher education (Du Bois, 1999: 41). In Du Bois’ words, Washington’s approach creates a ‘triple paradox’ (Du Bois, 1999: 41). First, Du Bois points out that Washington desires Black Americans to become successful businesspeople and property owners, but his approach simultaneously removes any opportunity for them to defend their rights and interests through the political process. Second, Washington insists that Black Americans should strive for self-respect, yet simultaneously ‘counsels a silent submission to civic inferiority' such as is bound to sap the manhood of any' race in the long run’ (Du Bois, 1999: 41). Third, Washington ‘deprecates institutions of higher learning’ for Black Americans, yet surely such institutions are required if Black Americans are to undergo the sort of industrial training that Washington urges. It is in light of this triple paradox that Du Bois endorses the more radical demands of a completely' reformed society', one which does not place the burden of social uplift on Black Americans but which instead demands that white Americans take responsibility for the degradation of those classified as ‘non-white’. In Du Bois’ words:

[Mr. Washington’s] doctrine has tended to make whites, North and South, shift the burden of the Negro problem to the Negro’s shoulders and stand aside as critical and rather pessimistic spectators; when in fact the burden belongs to the nation, and the hands of none of us are clean if we bend not our energies to righting these great wrongs. (Du Bois, 1999: 45)

As explained below, this passage anticipates the modern focus on ‘white privilege’ and the call for white communities to take responsibility' for addressing racism.

Du Bois’ rejection of Washington’s integrationist approach led him to form the Niagara Movement, set up three years after the publication of Souls. The Niagara Movement called for an end to segregation and disenfranchisement, but although the movement largely disbanded after just a few years due to internal disagreements, in 1911, Du Bois recommended its members join the fledgling National Association for the Advancement of Colored People (NAACP), which had been founded in 1909. Crucially for our purposes, the NAACP adopted a legal strategy to end segregation. One of the architects of that strategy, Robert Carter, recalls how Du Bois supported the NAACP’s plan for an all-out and direct attack on segregation in schools, whereas some others in the movement recommended that they should focus on fighting for equal education, not necessarily an end to segregation (Carter and Tushnet, 1988). Although by the mid-1930s, Du Bois had diverged from the views of the leadership of the NAACP because he believed that they had become too accommodationist, the NAACP’s legal strategy came to fruition in 1954, when the US Supreme Court reversed course and ruled in Brown v Board of Education that segregated schools contravened the Equal Protection Clause of the Fourteenth Amendment, even when the segregated schools were equal in quality. Put another way, Du Bois articulated in Souls that he disagreed with Washington’s acceptance of segregation; this view contributed to the NAACP’s decision to adopt a legal strategy to attack the constitutionality of segregation, and this strategy gave rise to the more general litigation strategy that was adopted during the civil rights era of the 1950s and 1960s.

The civil rights movement made gains beyond ending school segregation. In particular, the Civil Rights Act of 1964 and the Voting Rights Act of 1965 were the sorts of measures that Du Bois had been calling for in Souls. The impact of Souls on the pursuit of legislation and litigation as tools of anti-racism, then, is clear. However, as outlined in the next section, in many ways, the legal successes of the civil rights era were more apparent than real. That is, while the civil rights movement won discrete battles in the legislative and judicial arenas, activists and lawyers had less success in tackling the more systemic and institutionalised forms of racism. This realisation has formed the basis of more contemporary scholarship on race and law, a scholarship which is influenced by Souls.

Scholarship on Race and Law

By the end of the 1960s, segregation de jure had been declared unconstitutional by the courts, and other legal measures had been adopted to address racial inequalities. However, social practices and inherent biases still led to de facto segregation, as Blacks continued to face unequal treatment in all facets of social life, from employment and housing to the criminal justice system (Cook, 2015). The perceived limitations to the civil rights movement and the litigation strategy of the 1950s and 1960s fuelled the rise of Critical Race Theory in legal academia in the 1980s, and traces of Du Bois’ writings can still be found throughout Critical Race scholarship.

Although Critical Race Theory spans many disciplines, one of the central tenets of such scholarship is that racism is systemic and intrinsic to all facets of American society, including the legal system (Bell, 1992). For Critical Race theorists, the shortcomings of the civil rights era suggested that racism is not a tumour that can be excised from institutions and broader society by judicial decisions and legislation, but is rather intrinsic and endemic to all institutions and society, including the courts and legislatures. Although scholars had been developing the central tenets of Critical Race Theory for some years following the backlash to the civil rights era, the term itself was not coined until 1989, by Kimberle Crenshaw (Crenshaw, 2002). However, the ideas behind Critical Race Theory were articulated by Du Bois many decades earlier. In 1944, Du Bois published an essay in which he wrote: ‘when legal inequalities pass from the statute books, a rock wall of social discrimination between human beings will long persist in human intercourse’ (Du Bois, 2004: 64). It is not hard to see why Reiland Rabaka argues that

[m]any, if not all, of the key concerns of contemporary critical race theory are prefigured in Du Bois’s discourse on race and racism in ways that makes one wonder whether contemporary critical race theory is simply a continuation, or a contemporary version of Du Bois’s classical critical theory of race circulating under a new name. (Cited in Rashid, 2011: 585)

Rashid agrees: ‘Du Bois anticipates many aspects of CRT with his ... thesis that “The problem of the twentieth century is the problem of the color line”’ (Rashid, 2011: 590). Mdschel also concurs with this view:

W.E.B. Du Bois [is] considered as having exerted a major influence on CRT. [His] influence is directly visible in CRT writings, either through explicit reference by using, referring, and alluding to his concepts, metaphors, or images of‘double conscsiousness’ and the ‘color line’. (Mdschel, 2014: 89)

Du Bois’ influence runs through various stands of CRT scholarship. For example, Du Bois noted the interaction between social class and race in Socialism and the Negro Problem (Rashid, 2011: 593) and emphasised that acknowledging the interactions between class, race, and gender was central to any attempt to explain and understand social inequalities. In this sense, his approach anticipated the work of Kimberle Crenshaw on intersectionality (Morris, 2015). Beyond the United States, we see British writers taking up the themes of Souls in explaining racism in the context of the United Kingdom. The title of Nikesh Shukla’s The Good Immigrant, an edited collection about the lives of immigrants in the United Kingdom, is a reference to

the biggest burden facing people of colour in this country [which] is that society deems us bad immigrants - job-stealers, benefit-scroungers, girl-friend-thieves, refugees - until we cross over in their consciousness, through

The Souls of Black Folk, by W.E.B. Du Bois 203 popular culture, winning races, baking good cakes, being conscientious doctors, to become good immigrants. (Shukla, 2016)

The influence of Du Bois’ concept of‘double-consciousness’ and his admonition of Booker T. Washington’s endorsement of accommodation is clear. The idea that immigrants must see and judge themselves through the lens and frameworks of whites also has echoes of Du Bois’ concept of‘the veil’. Reni Eddo-Lodge has also written about the structural inequalities that non-whites face today in the United Kingdom. Eddo-Lodge explains that racism should not be a burden that Blacks and other ethnic minorities should bear, arguing instead that white people need to take responsibility for understanding their role in creating and maintaining racial injustices. Discussing this idea of‘white privilege’, Eddo-Lodge defines such privilege as an ‘absence of structural discrimination ... an absence of funny looks ... an absence of cultural expectations ...’ (Eddo-Lodge, 2017: 86). Again, the influence of Du Bois is clear. Indeed, Eddo-Lodge traces the term ‘white privilege’ to the writings of Theodore W. Allen and notes the influence of Du Bois on Allen’s writing: ‘Deeply affected by the American civil rights movement in the 1960s, his reading of black writers like W.E.B. Du Bois led him to start exploring what he called “white-skin privilege”’ (Eddo-Lodge, 2017: 86-7).

The Influence of Souls on ‘Scholar-Activism’

It has perennially been argued that academics should avoid engaging in social justice or political activism, on the grounds that such activism leads to scholarship that is biased and which lacks objectivity. Du Bois, though, was insistent that academics can and should engage in practical efforts to bring about social change. In 1968, just one month before he was assassinated, Martin Luther King Jr wrote about Du Bois’ role as both a scholar and an activist: ‘It was never possible to know where the scholar Du Bois ended and the organizer Du Bois began. The two qualities in him were a single, united force’ (King, 1968). Moreover, as Morris writes: ‘Du Bois provided a new model for scholars wishing to understand and change the world. He demonstrated it was possible to be a first rank scholar and a prodigious activist’ (Morris, 2015). Du Bois’ position as a ‘scholar-activist’ was cemented when Souls was published, since it was this work that laid the foundations for civil rights movements such as the NAACP. Du Bois encouraged students to engage in civil protests, believing that the very purpose of scholarship was to produce knowledge that would be helpful for liberation struggles (Morris, 2015).

Today, there is a burgeoning understanding of the ethical and practical dimensions of scholar-activism, particularly among those concerned with racial justice (Scholar-Activism, 2018). Kehinde Andrews, a professor of Black Studies, has highlighted a particular problem facing those who see themselves as ‘scholaractivists’. Universities, he writes, have historically been culpable of producing the sorts of racism that today’s scholars are now fighting against (Andrews, 2018: xxvi). As such, it is difficult for a scholar to claim to be anti-racist, since they are perpetuating the ven’ systems that produce racism. In particular, Andrewstakes issue with what he calls ‘liberal radicalism, where academics embrace radical theory' but reject revolutionary practice, calling out the system as inherently racist and then pretending there is nothing we can do about it’ (Andrews, 2018: xxvi). Du Bois, though, provides an answer to the predicament raised by Andrews. That is, he provides scholar-activists with a framework for how to combine scholarship with activism without the risk of bias or perpetuating racist institutions. Du Bois was one of the first scholars to develop a ‘sociology' of the oppressed’ (Morris, 2015), in that he shed light on the agency' of Black people by' interviewing them and giving them a voice through his scholarship. As Morris writes, through his scholarship, Du Bois ‘created a new scientific brand of rigorous and emancipatory' sociology'’ (Morris, 2015: 10). This empirical methodology' is relevant to socio-legal studies, too, and provides socio-legal scholars with a framework for using their position within universities to give a voice to the marginalised and oppressed.

The Legacy of Souls

The Souls of Black Folk has had a profound influence on a number of disciplines, including cultural studies, literary' studies, political theory', and sociology. To date, the impact of Souls in legal studies has received less attention. However, it is clear that the ideas and concepts that Du Bois explicates in Souls have shaped how successive racial justice movements have used the legal system and have influenced the discipline of Critical Race Theory' and the ways in which legal scholars concerned with race have developed more nuanced understandings of the ways in which legal systems create and reinforce racism. Du Bois’ insistence on marrying academia with social justice activism also provides legal scholars with a framework for engaging in activism without sacrificing academic rigour.

Souls should not be read in isolation to Du Bois’ other works. He develops his ideas in later works such as Black Reconstruction (1935) and The World and Africa (1946), in which he expressed even more radical views than those put forward in Souls. Du Bois increasingly' took up the cause of Pan-Africanism and emphasised the role of internationalism in the global fight against racism, developing the thesis that capitalism today' cannot be understood without reference to its origins in race-based slavery' (Johnson, 2018). This is a theme developed by Du Bois’ own biographer, Manning Marable (1983), and Malcolm X (1992). In making these arguments, Du Bois again emphasised the need for a bottom-up methodology', one which takes as its starting point the views and experiences of the affected. This sort of empirical methodology' is often missing from legal analyses, but Souls and Du Bois’ body of work remind legal scholars of the importance of predicating any' work on the experiences and views of those who such scholars are writing about. It is unfortunate that Du Bois’ work is still of relevance and practical importance today, but the concepts and ideas that he developed in Souls have enriched academia and social justice activism.

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