Etienne C. Toussaint

This Article uses the origin story of hip-hop music to advance this thesis, making three claims about law and culture. First, it argues that cultural theories of poverty and crime (embedded with racial stereotypes and cultural biases) shaped the political response to the growth of Black urban ghettos in New York City during the 1970s and 1980s. Second, via a textual analysis of Grandmaster Flash & The Furious Five’s 1982 hip-hop song The Message, this Article contends that early hip-hop cultural views of democratic life were in rivalry with the dominant cultural discourse of conservative politicians and leading public intellectuals. Third, this Article breaks new ground by conceptualizing the socioeconomic inequities that plague Black urban ghettos as “tragedies of the cultural commons.” Building upon Garrett Hardin’s famous Tragedy of the Commons allegory, this framing employs the concept of the commons to illuminate how racism can mold the symbiotic relationship between law and democratic culture.

Taken together, this Article’s critical legal history of the rise of early hip-hop culture suggests that if law is in fact both constitutive of and constituted by dominant cultural views, then in the United States, Black cultural expressions of democratic life have historically labored under the hegemonic rivalry of a White supremacist vision of law and order. Further, hip-hop culture emerges as a counter-cultural vision of democratic life—an example of what Sheila R. Foster calls “urban collective action” or what Lisa T. Alexander calls “cultural collective efficacy.” If racial injustice in America is indeed the byproduct of law’s flawed empire, then perhaps reforming law’s empire demands a reconstruction of the democratic cultural commons.