Whenever I write about oppression, I can predict one typical response: “What is this mystical “oppression” you speak of? Can you point to it? Are you talking about discriminatory laws? But there are no laws prohibiting this thing – so how can people be oppressed in that arena?” The question, which is so common, seems to assume that unless a prejudice is enshrined in law or has other easily visible institutional manifestations, it cannot have any effects – and that to point to oppression in such a situation is essentially to make an appeal to magic. When activists talk about oppressive power structures, think these critics, they are attempting to justify special rights for a minority group on an illegitimate basis, hand-waving toward invisible non-phenomena to secure their social goodies. According to this view, either discrimination exists in law, organizational policies, or explicitly prejudiced statements, or it doesn’t exist at all. (This is similar to the commonly-held view that someone cannot have racist, sexist, or homophobic attitudes unless they explicitly say obviously prejudiced things.)
This perspective fundamentally misunderstands the relationship between legal and institutional discrimination and social prejudice, to the point of inverting it. Discriminatory laws and policies follow oppressive power relationships, they do not tend to create them. Laws are most often manifestations of power structures already present in a society: they do not represent the entire system of oppression and discrimination in a particular culture on their own. Structures of power and oppression precede and legitimize certain laws, and are not fully described by the laws they spawn.
Think about it this way: unless there already exists a prejudice against a particular group, it would be extremely difficult to pass a law discriminating against them. It would be impossible to pass a law making heterosexual marriage illegal in the USA. A lawmaker who proposed such a law would never be elected (because discrimination against straight people is not considered acceptable in the culture), and the outcry were it to be passed would be unimaginable. Yet until recently same sex marriage was illegal, and in many circles today it is considered perfectly acceptable to advocate that it should still be illegal. Why? Because a structure of oppression exists which privileges straight people and marginalizes gay people, and that network of social prejudices and cultural hierarchies makes it easier – makes it possible – for same sex couples to be targeted by unjust laws. Enough people think there is something morally wrong or icky about gay relationships that we are fair game for legal discrimination and institutional penalties. Laws against same sex marriage didn’t create homophobia – homophobia (a structure of oppression, very real, not at all magic) legitimized laws against same sex marriage. In this way, laws tend to follow and reinforce an oppressive structure which already exists, and which persists long after the laws are repealed.
The metaphor extends. What happens when we repeal a contentious law because society’s attitudes have dramatically changed since it was enacted? What happened, for instance, when laws against homosexual sex we’re finally repealed (remarkably recently) in the USA? Did feelings of disgust and impropriety about gay sex suddenly vanish the moment the law was struck down? Of course not. While we dammed that particular river, the riverbed through which it ran persists still. The oppressive contours of the social landscape which made a particular law seem right to pass still exist even when the law itself is removed.
What happens once a law becomes totally irrelevant to the prejudices of the society which once enacted it? It needn’t even be repealed: we simply ignore it, as laws against blasphemy were ignored for decades in the U.K., because social change had progressed so far that it was never prosecuted. The law becomes cut off from the surrounding cultural terrain, like an oxbow lake, and eventually dries up. The terrain defines the law, not the law the terrain.
Laws are, very often, a reflection of the power structures of the society which creates them, a visible symbol of a deeper reality. When activists and sociologists draw our attention to this deeper reality, we aren’t doing so to win an argument by conjuring up a fairytale. We are illustrating demonstrable, visible features of the society in which we live – features which dramatically shape how people treat each other, for better and for worse. To reduce all discussion of power to a discussion of laws is to miss so many mechanisms by which people are advantaged and disadvantaged. Instead, we need to see all the ways power contours of society, so we can better work toward freedom.