The Christian and Critical Race Theory, Part 7: A Race Intervention into Critical Legal Studies

As discussed in our LAST POST, CRT co-founder Kimberlé Crenshaw argued in 2011 that “what nourished CRT and facilitated its growth from a collection of institutional and discursive interventions into a sustained intellectual project was a certain dialectical misalignment” (“Twenty Years of Critical Race Theory,” p. 1259). We saw that one central component of this misalignment was the clash between the “integrationist ideology” of the traditionalists within the civil rights establishment (CRE) and the burgeoning young antiracist legal scholars of the late 1980’s. According to these latter scholars, the ideology of integrationism had facilitated the rapid civil rights retrenchment discussed in Part 2 of this series. White liberals, with the support of many within the Black middle class, had successfully reinterpreted the message of the Civil Rights Movement (CRM), dulling its radical edge and sowing the seeds of its rapid demise. Rather than addressing the subordinated circumstances of Black Americans, the CRE centered their continuing civil rights work on the analytics of prejudice, discrimination, and segregation, thereby eschewing race-consciousness in favor of “neutral standards” and idealized “merit.”

Accordingly, both mainstream civil rights conservatives and liberals alike saw (and continue to see) our society somewhere on an arc bending inevitably toward racial harmony as we are increasingly civilized and enlightened. As Derrick Bell, mentor to many of CRT’s founders, has noted,

Unquestioned belief in the eventual resolution of the country’s racial conflicts is an accepted article of American faith. In political terms, there is a national assumption that in several more years (the conservatives), or after the enactment of still more civil rights laws (the liberals), remaining obstacles to liberty and justice for all will finally fade away. (“Racial Remediation,” p. 5)

But, as Kimberlé Crenshaw reported in her 1988, “Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law,” “[c]ommentators on both the Right and the Left … have begun to cast doubt upon the continuing vitality of this shopworn theme” (p. 1334). The civil rights ideologies of both the “New Right”—”developed in the neoconservative ‘think tanks’ during the 1970’s”—and the “New Left”—”presented in the work of scholars associated with the Conference on Critical Legal Studies (‘CLS’)”—alike rejected the “steady and inevitable progress” view of a continuing civil rights movement, with the Right arguing that the work of civil rights had been completed with the reforms of the late 1960’s and the Left arguing that the work of civil rights had been faulty from the start, having been built on the legal canard of “rights” (p. 1337). But, as with the integrationist ideology of the CRE traditionalists, so the civil rights ideologies of both the Left and the Right likewise presented additional points of misalignment for those young legal scholars who would soon form the first conference on Critical Race Theory. Having covered the “New Right” in our last post, we will here cover this alignment and misalignment with the “New Left,” namely, the Critical Legal Studies (CLS) movement.

CRT: A Race Intervention Into CLS

According to CLS scholars, the law—including the legal code, court holdings, and ongoing discourse—is not best understood as a stable and transcendent arbiter of Justice which only needs to be technically and scientifically applied. It is, rather (1) “an evolving statement of acceptable public morality” that, (2) “serves largely to legitimize the existing social structure,” (3) is indeterminate, “for virtually every ‘rule’ there is a counter-rule, an exception, of some other lawyerly gambit available to the legal question at issue in equipoise,” and, therefore, (4) judicial decisions’ “ultimate constraints are outside the legal system,” viz., are cultural, sociological, psychological, institutional, moral, religious, etc.

(For points 1, 2, and 4, see “Legitimizing Racial Discrimination Through Antidiscrimination Law,” p. 1051; for point 3, see “Some Realism About Critical Legal Studies,” p. 513).

In other words, the law generally reflects the changing moral commitments of a society; it does not prescribe them. Law is not neutral but is itself ideology and politics, a contingent artifact of social history. It functions in society to preserve the reigning moral code, the current power structure, and the status quo by making such systems appear natural, neutral, necessary, and ultimately just. Even antidiscrimination law, according to CLS scholars, though sold as a site of reform, is more likely to legitimate racism and racist systems than it is to remedy them, since it is only a reflection of a society’s dominant morality, existing distributive systems, and power structures. That’s just how law functions in real life. And, therefore, there should be no surprise that much of what is presented as remedy only serves in the end as justification for the continuing subordinated circumstances of African Americans. We read the following from Alan Freeman in Part 4 of this series, for example:

[A]s the law has outlawed racial discrimination, it has affirmed that Black Americans can be without jobs, have their children in all black, poorly funded schools, have no opportunities for decent housing, and have very little political power, without any violation of antidiscrimination law. (“Legitimizing Racial Discrimination Through Antidiscrimination Law,” p. 1049)

And CLS scholars not only offered the critical ideas for analysis, they

provided a detailed inventory of the ideological practices by which the legal order actively seeks to persuade those who are subject to it that the law’s uneven distribution of social power is nonetheless “just.” … [I]n their account of legal consciousness, critical legal theorists demonstrated the precise mechanisms by which legal institutions and ideology obscure and thus legitimize their productive, constitutive social role. ( Critical Race Theory: The Key Writings That Formed a Movement, p. XXIV)

Accordingly, the Critical Legal Studies movement was quite attractive to the many young legal scholars of color—particularly those who would soon form a critical theory of race; “because,” as Mari Matsuda has written,

its central descriptive message—that legal ideals are manipulable, and that law serves to legitimate existing maldistributions of wealth and power—rings true for anyone who has experienced life as a nonwhite in America. (p. 3)

In fact, Critical Race Theory might best be understood as a “spin-off” of CLS, having been distinguished and characterized as a movement by its oppositional relationship thereto. Dr. Crenshaw explains:

CRT came to life in the cracks between alignment and misalignment. Early Race Crits were situated in a dialectical loop, attracted to and repelled by certain elements of liberal civil rights discourses, and at the same time, attracted to and repelled by certain discursive elements within CLS. … CRT emerged not only as a critical intervention in a particular institutional contestation over race but also as a race intervention in a critical space, namely CLS. (“Twenty Years of Critical Race Theory: Looking Back to Move Forward,” 1287 – 1288)

Thus, a proper understanding of CLS, coupled with CRT’s major points of departure, is indispensable for telling the story of Critical Race Theory and, ultimately, understanding its commonplaces as more than just untethered intellectual abstractions.

CLS: Offspring of Legal Realism

To begin with, CLS is a direct descendent of Legal Realism, an historical attempt to treat the law and legal outcomes scientifically. Law, Legal Realist argued, was to be treated like any other social artifact, not as a transcendent inscription of right and wrong whose internal logic produced determinate answers for jurists willing to stick to the text and think rationally. Like any other social artifact, the law contained many practically produced contradictions, is subject to multiple interpretations, and should be treated and employed as an object of sociological inquiry rather than a system residing in Plato’s Heaven. These ideas are foundational to the CLS approach. According to one of the most popular CLS proponents, Mark Tushnet,

The legal realists taught us … [t]here were and always are rules and counterrules, rules with exceptions of such scope as to threaten the rule itself, rules whose force can be eliminated by drawing creatively on analogies to apparently unrelated areas of law, and so on. Statutes too have to be interpreted and fit into a whole legal universe, and cannot be understood as a series of words whose meaning is fixed at the time of enactment. (“Marxism as Metaphor,” pp. 281 – 282)

CLS: Not a Marxist Legal Project

Next, contrary to many popular-level opinion makers, CLS scholars openly rejected what many called “vulgar Marxism” (“scientific Marxism,” “traditional Marxism”)—that is, the Marxism of Marx himself—class essentialism, the “base”/“superstructure” paradigm, historical, material, and economic determinism, a strict labor theory of value, etc. Richard Michael Fischl voiced a common CLS sentiment in the 1980s:

Many of us do work in an intellectual tradition in which Marx plays an important role; indeed, his core insight that human belief systems are social constructs is the starting point for much modern social theory. But that hardly makes us Marxists. Indeed, to the extent that that reckless charge suggests that we favor totalitarianism and/or thought control, it describes a set of ideological commitments that are the polar opposite of those held by CLS. (“Some Realism About Critical Legal Studies,” p. 530)

But most importantly for our purposes, they rejected Marx’s “instrumental” understanding of law. In Karl Marx’s own words:

My view is that each particular mode of production, and the relations of production corresponding to it at each given moment, in short ‘the economic structure of society’, is ‘the real foundation, on which arises a legal and political superstructure and to which correspond definite forms of social consciousness’, and that ‘the mode of production of material life conditions the general process of social, political and intellectual life.’ (as quoted by Duncan Kennedy, “The Role of Law in Economic Thought,” p. 979)

Marx argues from history that the means of production—tools, materials, labor—determine the mode of production, i.e., the organization of labor and productive methods, like slavery, feudalism, capitalism, socialism, etc. Further, the “ideology” or “superstructure” of social existence is both born of and determined by this “base,” the mode of production. Thus, religion, philosophy, science, mathematics, and art all exist as necessary products of the mode and organization of production in one’s given place in history. And this, as Marx states above, includes law. The legal structure itself “arises” from “the real foundation,” the current mode of production, specifically, capitalism, including for Marx the dialectic of class warfare. To put it very crudely, the law is a mere “instrument” or tool of bourgeois interests.

One obvious objection of CLS scholars to this instrumental view was that the law is simply too indeterminate to function as a determined instrument or tool of any group’s interests, bourgeois or otherwise.

Most of us no more believe that economic power “determines” the law than we believe that legal reasoning determines it; indeed, a rejection of such vulgar Marxist determinism is a major contribution of CLS scholarship to progressive legal thought. (“Some Realism About Critical Legal Studies,” p. 530)

Or in CLS scholar Mark Tushnet’s words, drawing on the tradition of Legal Realism:

Most Marxists seem to want to say that a rule of law … serves class interests. Yet the legal realists taught us that there never was a [legal rule] that could be a dependent variable to be explained in terms of its links to the economic base. There were and always are rules and counterrules, rules with exceptions of such scope as to threaten the rule itself, rules whose force can be eliminated by drawing creatively on analogies to apparently unrelated areas of law, and so on. (“Marxism as Metaphor,” p. 281)

But a second objection to Marxist instrumentalism opens up a much deeper discussion about the circularity of the base/superstructure paradigm itself, with respect to law. Tushnet outlines this next objection as well:

How can one simultaneously believe all of the following propositions to be true: (1) The base determines (in some strong or weak sense) the superstructure; (2) law is an element of the superstructure; (3) the base consists of the relations of production; and (4) relations of production are defined in terms of ownership of the means of production? Legal terms seem to constitute the base, but that is what supposedly determines them. (p. 285)

In other words, the mode/relations of production, including class structure, cannot be constitutive of the law because the law is itself constitutive of the relations of production and class structure. Marxist instrumentalism is viciously circular. Tushnet uses the example of “ownership” to explicate:

In its simplest version, the problem arises because class relations are defined in terms of which class owns the means of production, and, yet, ownership is a legal category that takes on its meaning only because of its relation to all other available legal categories. Law thus seems to define or constitute class relations, in which case it is circular to say that the relations of production somewhat determine the law. (p. 281)

Further, this second objection hinges on a third much broader objection—an objection that gets right to the heart of what makes CLS what it is. Not only does CLS reject the idea that “law appears as merely an instrument of class interests that are rooted outside of law,” but CLS rejects the claim that law can be understood as an “ideological reflection” of any “concrete social reality” rooted outside of law (Crenshaw et al., Critical Race Theory, p. XXIV). According to CLS scholars, any possible “fact” of social reality is itself constructed by law and legal discourse, in conjunction with other socio-political factors, and therefore cannot serve as a “base” to any “superstructure.” That is, CLS not only rejected Marxist instrumentalism, but likewise rejected any underlying essentialism, viz., the idea that social entities or identities exist as natural facts independent of law. The law, for CLS scholars, is in part constitutive of class, gender, race, etc., and therefore can never be understood as mere instrument.

Many critics sought to distinguish themselves from … “instrumentalist” accounts on the grounds that they embodied a constricted view of the range and sites of the production of social power, and hence of politics. By defining class in terms of one’s position in the material production process, and viewing law and all other “superstructural” phenomena as merely reflections of interests rooted in social class identification, vulgar Marxism, crits argued, ignored the ways that law and other merely “superstructural” arenas helped to constitute the very interests that law was supposed to merely reflect. (p. XXIV; emphasis mine)

For CLS, “the legal system is not simply or mainly a biased referee of social and political conflict whose origins and effects occur elsewhere”; rather, “the law is shown to be thoroughly involved in constructing the rules of the game, in selecting the eligible players, and in choosing the field on which the game must be played” (p. XXV). Neither class, nor gender, nor race, etc., exist “out there,” “outside of or prior to law,” such that law and other “superstructural arenas” might be understood as mere instruments of these socio-politico identitarian interests.

CLS: A Critical Legal Project

Accordingly, CLS scholars saw themselves as working within the “Critical Marxist” tradition of György Lukács, Karl Korsch, and the Frankfurt School, as opposed to the “Scientific Marxist” tradition of the Communists. And rightly so. Historically speaking, the enduring contribution of Karl Marx—that which places him among Weber and Durkheim as the fathers of sociology—was not his specific critique of capitalism, his communist eschatology, or his class dialectic anyhow, but rather his historical materialist critique of the whole; that is, his critical method. Rather than look to this or that injustice or social ill, Marx examined the whole social order from its material roots. As one sees poverty, war, subjugation, oppression, whatever, the cause and solutions are not ultimately to be found in ideology per se, nor even in the believed and stated motivations of social actors, but in the underlying system of relations operating at the brass-tacks level of human existence—the “ensemble of social relations.” Eating, one might say, precedes ideology. But unlike traditional Marxists, Critical Theorists rejected Marx’s specific linear, deterministic explanation of the ills of social life (viz., the means of production necessarily determine the mode of production which together necessarily produce the “ideology” or “superstructure” of social existence, all inexorably propelled along through history by an essentialist class dialectic).

Max Horkheimer, in his 1937 essay “Traditional and Critical Theory,” captures well this sense of the ongoing “critical” tradition, without the trappings of Vulgar or Scientific Marxism, coining the phrase “Critical Theory” in the process:

[T]here is a human activity which has society itself for its object. The aim of this activity is not simply to eliminate one or other abuse, for it regards such abuses as necessarily connected with the way in which the social structure is organized. Although it itself emerges from the social structure, its purpose is not, either in its conscious intention or in its objective significance, the better functioning of any element in the structure. On the contrary, it is suspicious of the very categories of better, useful, appropriate, productive, and valuable, as these are understood in the present order, and refuses to take them as nonscientific presuppositions about which one can do nothing. … [T]he critical attitude of which we are speaking is wholly distrustful of the rules of conduct with which society as presently constituted provides each of its members. The separation between individual and society in virtue of which the individual accepts as natural the limits prescribed for his activity is relativized in critical theory. The latter considers the overall framework which is conditioned by the blind interaction of individual activities (that is, the existent division of labor and the class distinctions) to be a function which originates in human action and therefore is a possible object of planful decision and rational determination of goals. (“Traditional and Critical Theory,” pp. 206-207)

I would argue that for any theory or system of ideas to be considered properly “critical,” it must at least see (1) group-wide inequalities, hierarchical social stratification, and social ills generally as not simply the product of individual policies and individual actors, but deeply ingrained in the socio-historical development of institutions, norms, values, cultural expressions, and relations of power which operate thereby, (2) that these “pathologies” develop through historical processes of social creation and change, and that much of the furniture of social life and knowledge are therefore constructed and conditioned imminently, (3) that remedies require critique of the whole, and that the transformative action required to dismantle the systems and ideas which embody social dominance and pathology is inseparable from knowledge production itself, and, finally, (4) the theory or system of ideas ought to display a “radical reflexivity,” i.e., “reflective accountability concerning critical theory’s own practices” (Patrica Hill Collins, Intersectionality as Critical Social Theory, Location 1314). It is this sense of “critical” of which CRT scholar Angela Harris wrote in 1994:

CRT inherits from CLS a commitment to being “critical,” which in this sense means also to be “radical”—to locate problems not at the surface of doctrine but in the deep structure of American law and culture. (“The Jurisprudence of Reconstruction,” p.743)

CLS: Antonio Gramsci and Hegemony

Next, CLS was greatly influenced by Italian Neo-Marxist Antonio Gramsci. Gramsci, argued CLS scholars, accurately diagnosed and addressed another problem with Marx’s view of law. According to Dr. Crenshaw,

Traditional Marxist accounts present law as a tool of oppression serving to pacify the working class. … The Critics argue that this instrumental view is inadequate because it fails to account for the considerable support that the state and the legal system enjoy from the dominated classes. (“Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law,” p. 1350)

That is, in addition to the objections discussed above, it is difficult to characterize law as a mere instrument of the ruling class when there is visible buy-in from nearly all social and economic classes. Gramsci himself struggled to see how Marx’s view of law could explain the capitalist exploitation he’d experienced in late 1920s Italy. Even those laboring in the worst conditions, earning a starving wage, appeared to accept the system as just, natural, and appropriate, even willing to risk their own lives for its maintenance. From this awareness, Gramsci developed his concept of “hegemony,” “which is the social, cultural, or economic influence exerted by a dominant group over other groups.”

This influence stems from the perception of legitimacy afforded the dominant group by the subordinate groups. Hegemony is an active process whereby legitimacy is sought and maintained by the dominant group through the balancing of consent (that is, tacit support for the dominant group) and coercion (that is, the threat or use of forms of force). (Bradley Levinson, Beyond Critique, pp. 52-53)

It became clear to Gramsci that the ruling class did not maintain control over their subordinates primarily through force, but through ideas, norms, and customs supposing and reinforcing the legitimacy of the current social order. This legitimating system permeated school, church, family, politics, art, economic life, etc.—Marx’s “ensemble of social relations” writ large—thereby eliciting “common sense” support for the dominant group. In short, the ordinary artifacts of social life proved also to be repositories of social power and means of social control. And the law is among these artifacts. The dominated, thereby, willingly granted consent even to social orders which manifestly worked against their own interests. As Critical legal historian Robert Gordon puts it,

the most effective kind of domination takes place when both the dominant and dominated classes believe that the existing order, with perhaps some marginal changes, is satisfactory, or at least represents the most that anyone could expect, because things pretty much have to be the way they are. (“Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law,” p. 1351).

Law, according to CLS scholars, should be seen as integral to hegemony, as constitutive rather than reflective of external class interests, and therefore as an integral aspect of legitimating the status quo—not by physical coercion, but by the general consent of both dominant and subaltern groups, making it difficult for either to “even to imagine that life could be different and better.”

CLS: Postmodernism/Poststructuralism

Another prominent aspect of CLS scholarship is its reliance on the text critical work of poststructuralists and/or postmodernists (PS/M) like Jean-François Lyotard, Jean Baudrillard, Michel Foucault, Jacques Derrida, Gilles Deleuze, etc. CLS scholar Gary Peller summarizes PS/M (at least as used by Critical Legal scholars) well in his 1987 article, “Reason and the Mob: The Politics of Representation.” First, according to Peller, PS/M theorists

share the commitment that there is no possibility of a neutral or objective interpretative practice or of merely representing (as opposed to interpreting) the world. When we attempt simply to represent, free from bias or distortion, we must always do so through language, broadly conceived as a socially created way to categorize perception of and communication about the world.

But language necessarily mediates perception and communication by shaping ways of thinking about the world that are themselves not necessary and natural, but social and contingent. (“Reason and the Mob: The Politics of Representation,” p. 29)

That is, language itself is a socio-historical artifact, a product of culture and politics, and therefore cannot serve as neutral ground to determine “truth from ideology, fact from opinion, or representation from opinion.” As we attempt to peel away the “representations” to get to the neutral ground of the “represented,” we find only more language.

Second, PS/M suggests that “argument” and “rhetoric” are at bottom socio-political maneuvers of power. There is simply no “deeper logic,” “no grand organizing theory or principle with which to justify our social choices as neutral and apolitical, as the products of reason and truth rather than of passion or ideology” (p.29). Therefore, PS/Ms

suggest that what has been presented in our social-political and our intellectual traditions as knowledge, truth, objectivity, and reason are actually merely the effects of a particular form of social power, the victory of a particular way of representing the world that then presents itself as beyond mere interpretation, as truth itself.

In fact,

the deconstructionist wants to challenge reason on its own ground and demonstrate that what gets called reason and knowledge is simply a particular way of organizing perception and communication, a way of organizing and categorizing experience that is social and contingent but whose socially constructed nature and contingency have been suppressed. (p. 30)

From this PS/M perspective, CLS scholars sought to expose the lack of “inner logic” and presumed necessity of the law, to “unmask” the political ideology contained within legal discourse, and demonstrate the law’s ultimate indeterminacy—a legal critique eloquently entitled “trashing.” This, of course, proved useful to race scholars seeking to understand how even antidiscrimination law itself could aid in civil rights retrenchment.

Alignment and Misalignment: Points of Departure

We have, to be sure, spent much of this article so far walking through the ideas of CLS. This, I assure you, is not without warrant. These ideas tell us much about Critical Race Theory, as it was, according to Dr. Crenshaw, an “intervention” into Critical Legal Studies.

In the mid 1980s, CLS was the place to be for progressive, left wing, and other nonconformist law folks. … For a range of left-leaning people of color in the legal academy looking for an ideological home, CLS was attractive. … For progressive-leaning law students and professors, CLS was a professional space where oppositionalist sensibilities that were carried over from the waning days of social justice activism could be articulated and understood. Most importantly, CLS’s critique of law’s neutrality seemed to make perfect sense for any serious student of race in American society. Within CLS spaces, conversations about law and social power started steps ahead of where similar conversations began in other spaces. “Twenty Years of Critical Race Theory: Looking Back to Move Forward,” pp. 1288 – 1289)

But how about the misalignment?

The most common departures noted by CRT scholars are (1) the general Whiteness of CLS, both as a publishing circle and a culture of inclusion/exclusion, (2) CLS’s claim that CRT has essentialized “race” and is thereby guilty of “racialism,” (3) CLS’s overemphasis on the “consent” and “false consciousness,” (4) CLS’s rejection of “rights” discourse, (5) the tension between modernism and PS/M at the heart of Critical Race Theory, and, finally, (6) CLS’s lack of a reconstructive program. But as this post is working toward being one of the longest so far, we won’t be able to cover each of these in detail.

(For what I’ve left unaddressed, please see, for example, “Looking to the Bottom: Critical Legal Studies and Reparations,” by Mari Matsuda and “The Clouded Prism: Minority Critique of the Critical Legal Studies Movement,” by Harlon L. Dalton.)

CLS Charges Race Crits with “Racialism”

In the early stages of CRT’s development, “race-crits” began to question the very White, wealthy, male perspectives of the Conference on Critical Legal Studies, suggesting that race and racism needed to be included in fundamental discussions of legal theory. In response, some CLS scholars accused these emerging race-crits of both “race essentialism”—the idea that “race” exists as a natural fact apart from law, and “racialism”—the idea that complex legal and social phenomena can be explained as mere reflections of the “fact” of race.

[S]ome CLS adherents were resistant to interrogating not only the fact that, as a formation, CLS was primarily white and male but also the extent to which that demographic representation was itself a sign of the pervasive nature of racial power. This dispute over race was particularly pronounced in a CLS conference held in 1987, the “Sounds of Silence” conference, in which scholars of color sought to center race as a set of questions within CLS and highlight the relationship between race and the rule of law as a crucial site of intellectual intervention. The convening produced both further debate and several articles by the emerging race crits about both the salience of race in law and social policy and its erasure in liberal legal ideology. The reaction of some CLS critics reflected their initial “framing of early CRT work as racialist.” This framing at least implicitly suggested that CRT was essentialist in that CRT scholarship reduced “complex phenomena” into a “simple reflection of some underlying ‘facts.’” (Devon Carbado and Cheryl Harris, “Intersectionality at 30: Mapping the Margins of Anti-Essentialism, Intersectionality, and Dominance Theory,” p. 2213)

Thus, some CLS scholars leveled the very same attack against the emerging critical theory of race that they had wielded against Marxist instrumentalism.

To critics of racialism, prevailing theorizations of race and law seemed to represent law as an instrumental reflection of racial interests in much the same way that vulgar Marxists saw the legal arena as reflecting class interests. (Critical Race Theory: The Key Writings That Formed a Movement, p. XXV)

“White interests,” according to CLS critics, simply took the place of “class interests” in Marx’s instrumentalist, essentialist, system.

As CRT scholars worked to disabuse their fellow critical scholars of this misunderstanding, they were forced to become very clear on their understanding of the nexus of race, racism, and law. In fact, this dispute was formative for CRT; “the critique of racialism did help clarify what was ‘critical’ about our race project” (p. XXV). Their principal response was to argue that they had not, in fact, presumed “race” to be a natural fact, separate from the constitutive nature of law, such that race could thereby be used as an independent means to explain legal phenomena. Crenshaw, et al. explained:

[W]e began to think of our project as uncovering how law was a constitutive element in race itself: in other words, how law constructed race. Racial power, in our view, was not simply—or even primarily—a product of biased decision-making on the part of judges, but instead, the sum total of the pervasive ways in which law shapes and is shaped by “race relations” across the social plane. Laws produced racial power not simply through narrowing the scope of, say, of antidiscrimination remedies, nor through racially biased decision-making, but instead, through myriad legal rules, many of them having nothing to do with rules against discrimination, that continued to reproduce structures and practices of racial domination. In short, we accepted the crit [CLS] emphasis on how law produces and is the product of social power and we cross-cut this theme with an effort to understand this dynamic in the context of race and racism. (p. XXV)

Thus, CRT scholars leveraged CLS’s anti-essentialist critique in order to understand race and racism; they did not essentialize “race” and “racism” to serve as “base” to Marx’s “superstructure.” In fact, central to CRT is the premise that race is legally and socially constructed. CRT scholar Devon Carbado and explains well:

CRT rejects the view that race precedes law, ideology, and social relations. Instead, Critical Race Theorists conceptualize race as a product of law, ideology, and social relations. According to CRT, the law does not simply reflect ideas about race. The law constructs race: Law has historically employed race as a basis for group differentiation, entrenching the idea that there are “in fact” different races; law has helped to determine the racial categories (e.g., Black, White, Yellow) into which institutions and individuals place people; law sets forth criteria or rules (e.g., phenotype and ancestry) by which we map people into those racial categories; law has assigned social meaning to the categories (e.g., Whites are superior; Blacks are inferiors; Japanese Americans are disloyal); law has employed those meanings to structure hierarchical arrangements (e.g., legalized slavery for inferior people (Blacks) and legalized internment for people who are disloyal (people of Japanese descent)); and those legal arrangements, in turn, have functioned to confirm the social meanings that law helped to create (e.g., the people who are enslaved must be inferior; that is why they are enslaved; the people who are interned must be disloyal; that is why they are interned). (“Critical What What,” p. 1610)

In sum, along with CLS, Critical Race Theory began as a fundamental rejection of vulgar Marxism. CRT likewise rejected essentialism (or at least “aspires” to, according to Devon Carbado). Central to CRT is the assertion that race is legally and socially constructed, not an independent “out there” natural entity capable of serving as “base” to a social and legal “superstructure.”

Soon after, following Kimberlé Crenshaw’s “Mapping the Margins,” early race-crits also leveraged the concept of Intersectionality against the charge of essentialism—at least as the charge was presented by CLS. According to Patricia Hill Collins,

intersectionality references the critical insight that race, class, gender, sexuality, ethnicity, nation, ability, and age operate not as unitary, mutually exclusive entities, but rather as reciprocally constructing phenomena. (“Intersectionality’s Definitional Dilemmas,” p. 1; emphasis mine)

The fact that, for example, neither race, gender, nor class can alone determine anyone’s social location implies that either every possible group identity combined in every possible way serves as the independent “base” for law and society, or—and with equal legal and sociological value—none at all. According to intersectionality, race alone cannot serve Marx’s essentialist, instrumental function, for race is inescapably gendered and classed; gender likewise cannot serve this function, for gender is inescapably raced and classed; etc. None of these possible social identities, according to race-crits, nor any combination of them, exist “out there” as “facts” independently capable of explaining complex legal and social phenomena. None are capable of serving as “base” to Marx’s “superstructure.” They are, as Collins suggests, “reciprocally constructing phenomena.”

Overemphasis on “Consent” as Opposed to “Coercion”

As discussed above, Critical Legal Studies also relied heavily on Gramsci’s theory of hegemony to explain how the law masks and legitimates social subordination, making it appear natural, inevitable, just, and even advantageous to those exploited.

According to CRT scholar Robert Williams, CLS inherited this emphasis from “European critical social theory” which “has concerned itself with questions of hierarchy, hegemony, contradiction, and false consciousness since its proto-origins in the works of Marx and Nietzsche” (“Taking Rights Aggressively,” p. 118). Consistent with this European trajectory of critical social theory, CLS primarily emphasized the “consent” aspect of hegemony, thus arguing that false consciousness was the means by which exploited groups willingly participated in social orders which manifestly worked against their own interests. As such, it was ideology, ideas, and beliefs in the minds of the subjugated which facilitated and maintained their subjugation.

But this emphasis on consent and false consciousness—while downplaying, even dismissing, more traditionally understood forms of domination—proved to be a major point of departure between the developing CRT and the CLS movement from which it emerged. “Coercion,” argued Dr. Crenshaw in her 1988 “Race, Reform, and Retrenchment,”—the other side of Gramsci’s concept of hegemony—is a much more accurate description of the domination suffered by African Americans over the last 400 years. She takes critical historian Robert Gordon as an exemplar of CLS’s lopsided use of Gramsci, arguing that “Gordon’s explanation of ideological domination illustrates how an exclusive focus on consent leaves gaping holes in his reader’s understanding of hegemony.”

Gordon writes that beliefs are “the main constraints upon making social life more bearable.” Yet how can others understand the fact that Black people, although unable to bring about a world in which they fully participate, can imagine such a world? Clearly, something other than their own structure of thought prevents Blacks from changing their world. This fact suggests that a more complete explanation of domination requires that coercion and consent be considered together.

The coercive power of the state operates to suppress some groups, particularly when there is consensus among others that such coercion is warranted. Racism serves to single out Blacks as one of these groups “worthy” of suppression. Gordon, however, does not offer any way to understand this. If his exclusive focus on ideological domination is to be taken literally, one is left believing that Black Americans are unable to change their world because they accept the dominant ideology and thus cannot imagine an alternative existence. Yet to say that the beliefs of Black Americans have boxed them into a subordinate existence because of what they believe is to ignore the history of coercive racial subordination. Indeed, it would be difficult for Blacks, given the contradiction between American fiction and Black American reality, to believe as much of the American mythology as whites do.

The most significant aspect of Black oppression seems to be what is believed about Black Americans, not what Black Americans believe. Black people are boxed in largely because there is a consensus among many whites that the oppression of Blacks is legitimate. This is where consensus and coercion can be understood together: ideology convinces one group that the coercive domination of another is legitimate. (p. 1358)

In other words, Black Americans were not primarily subordinated by thoughts in their own heads, but by 400 years of legal and de facto marginalization. In fact, in the passage above, Dr. Crenshaw turns CLS scholars’ overemphasis on “consent” and “false consciousness” completely on its head. For Crenshaw, not only was it false that “the main constraints upon making life more bearable” for Black Americans’ was their own beliefs, but, alternatively, the oppressor was more likely to be the party under the spell of ideological false consciousness, believing that continued subordination of African Americans was “legitimate,” even in his own interest.

Minister and CRT scholar Anthony E. Cooke argued similarly in his 1990 “Beyond Critical Legal Studies: The Reconstructive Theology of Dr. Martin Luther King, Jr.” According to his analysis,

CLS consistently deemphasizes the individual and institutional experiences of those who are subjugated. Thus CLS’s theoretical deconstruction of liberalism fails to explain—or even ask—why subordinated individuals, those most disadvantaged by hierarchies of wealth and power, place such faith in the liberal state. (p. 86)

Cooke suggests there are three possible explanations for “this faith on the part of subordinated peoples”: (1) false consciousness, (2) denial, or (3) “individuals may suffer from neither false consciousness nor denial, but may simply be ostracized of marginalized, limited by the existential constraints of enslavement, apartheid, intimidation, or poverty, which make meaningful social struggle difficult if not impossible.” To the first he grants a limited role, noting that there are certainly some that “have not perceived the contradictions of their belief systems and have not confronted the harsh realities of their existence.” As for the second, he suggests that “these people are most in need of constructive goals of social struggle and practical strategies of mobilization.” Last, he writes,

[p]eople in the third grouping suffer neither from false consciousness nor self-denial; rather, the dominant powers’ use of various methods of coercion and social control simply does not provide much space for substantive struggle. Critical activity must focus here on alleviating these existential constraints as well as on exposing the role of ideology in maintaining them.

Unfortunately, CLS only proposed a method of ideological deconstruction capable of addressing the first—false consciousness. CLS simply did not address the peculiar coercive circumstances suffered by historically subordinated peoples in America—circumstances which have gone well beyond ideological legitimation through false consciousness. In fact, in Crenshaw’s words above, “it would be difficult for Blacks, given the contradiction between American fiction and Black American reality, to believe as much of the American mythology as whites do.”

CLS’s Critique of “Rights” Discourse

Further, the divide between early race-crits and the Eurocentric critical tradition of CLS came into clearest view in their very public dispute over the traditional discourse of “rights” and “entitlements.” According to Robert Williams,

CLS raises the possibility that the “rights” “won” under cases such as Brown v. Board of Education or Goldberg v. Kelly are only chimeras, partial makeshift concessions whose principal function is to preserve the intellectual as well as social stability of the dominant order. (“Taking Rights Aggressively,” pp. 117 – 118)

That is, “rights” themselves are a means of social control according to CLS, a means of eliciting willing consent from the exploited by offering legal words of enfranchisement without the corresponding substance. CLS scholar Mark Tushnet explains how this occurs:

(1) Once one identifies what counts as a right in a specific setting, it invariably turns out that the right is unstable; significant but relatively small changes in the social setting can make it difficult to sustain the claim that a right remains implicated. (2) The claim that a right is implicated in some settings produces no determinate consequences. (3) The concept of rights falsely converts into an empty abstraction (reifies) real experiences that we ought to value for their own sake. (4) The use of rights in contemporary discourse impedes advances by progressive social forces …. (as quoted by Crenshaw, “Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law,” p. 1353)

By these means, “rights” discourse itself proves to preserve the status quo, becoming a tool for eliciting hegemonic consent, the very opposite of liberation.

CRT scholars, on the other hand, come to rights discourse with a very different perspective. Again, Robert Williams:

The attack by the Critical Legal Studies movement on rights and entitlement theory discourse can be seen as a counter crusade to the hard campaigns and long marches of minority peoples in this country. Minority people committed themselves to these struggles, not to attain some hegemonically functioning reification leading to false consciousness, but a seat in the front of the bus, repatriation of treaty-guaranteed sacred lands, or a union card to carry into the grape vineyards. (p. 120)

Throughout American history, people of color have suffered and died for the cause of rights, “combatants for a terrain that people of color are now told may have been nothing more than the chimerical construct of a mystified consciousness” (p. 121). It is these very real historical circumstances of very real marginalized people-groups that transforms “rights discourse” from the false consciousness inducing “rights” of the European critical tradition of CLS to the liberating “rights” of the abolitionist and civil rights tradition of the developing Critical Race Theory.

The reason why leftist and neo-leftist law professors feel little remorse or fear over the abandonment of rights discourse is that for them “rights” represent a concept, rather than a phenomenon. It is easy to “trash” a concept. One cannot experience the pervasive, devastating reality of a “right,” however, except in its absence. One must first be denied that seat on the bus, one must see the desecration of one’s tribe’s sacred lands, one must be without sanitary facilities in a farm field, to understand that a “right” can be more than a concept. A right can also be a real, tangible experience. (p. 123)

Accordingly, Dr. Williams diagnoses the ideological source of these distinct views:

CLS’s attack reflects Eurocentric readings of peoples of color’s use of rights rhetoric. A discursive practice of abandonment dismissing minority peoples as irrelevant because of their anachronistic clinging to a false consciousness on rights can easily result from the acts of privileging and delegitimation which ground such Eurocentred readings. CLS’s attacks on rights discourse demonstrate the perils of a disengaged theoretical stance toward discourse unmediated by historical appreciation of the tradition from which a discursive practice is projected. (p. 121)

That is, CLS saw the topic of “rights” and “entitlements” through what Harlon L. Dalton called the “clouded prism.” CLS scholars read and interpreted the issues of rights and entitlements, even hegemony and false consciousness, with a “disengaged theoretical stance” lacking an “appreciation of the tradition” from which the ideas they sought to critique were born. In other words, unlike the scholars of color who would form CRT, CLS scholars viewed “rights” discourse through the perspective of White, male, economically privileged—categories never really in need of “rights” in America to begin with. CRT scholars, on the other hand, saw rights as those for which their fathers marched and bled and sometimes died in order to secure even basic social accommodations.

Of course, this is not to argue that CRT scholars were (or are) in love with “rights” discourse either; they too see the potential legitimating dangers of formal verbiage without substantive action. Nevertheless, CRT scholar Patricia Williams brilliantly summarized the common early CRT sentiment on “rights” in this oft quoted passage:

To say that blacks never fully believed in rights is true. Yet it is also true that blacks believed in them so much and so hard that we gave them life where there was none before; we held onto them, put the hope of them into our wombs, mothered them and not the notion of them. And this was not the dry process of reification, from which life is drained and reality fades as the cement of conceptual determinism hardens round — but its opposite. This was the resurrection of life from ashes four hundred years old. The making of something out of nothing took immense alchemical fire — the fusion of a whole nation and the kindling of several generations. (“The Alchemy of Race and Rights,” Critical Race Theory: The Cutting Edge, p. 87)

Modernism vs. Postmodernism: A Defining CRT Tension

Last, we come to an enduring tension that early set Critical Race Theory apart from its New Left counterparts in CLS and has helped define CRT as a specific antiracist movement. CRT scholar Angela Harris wrote the following in her immensely informative 1994 article, “The Jurisprudence of Reconstruction”:

Even while it exposes racism within seemingly neutral concepts and institutions, however, CRT has not abandoned the fundamental political goal of traditional civil rights scholarship: the liberation of people of color from racial subordination. Although, like [CSL scholars], race-crits [CRT scholars] have questioned concepts of neutrality and objectivity, they have done so from a perspective that places racial oppression at the center of analysis and privileges the racial subject.

This commitment to antiracism over critique as an end in itself has created rifts between CRT and CLS. (p. 750)

From the beginning, Critical Race Theorists have consistently noted the tension between their own set of ideas and the post-structuralism/modernism (PS/M) of Critical Legal Studies. She writes,

a comparison of CRT work with … CLS work … indicates a … serious tension. In its commitment to the liberation of people of color, CRT work demonstrates a deep commitment to concepts of reason and truth, transcendental subjects, and “really-out-there” objects. Thus, in its optimistic moments, CRT engages in “modernist” narratives.

She goes on to explain her meaning of “modernism” as opposed to the “postmodernism” discussed above:

Modernist narratives assume three things: a subject, free to choose, who can be emancipated or not; an objective world of things out there (a world “the way it really is” as opposed to the way things appear to be in a condition of false consciousness); and “reason,” the bridge between the subject and the object that enables subjects to move from their own blindness to “enlightenment.” (p. 751)

She continues:

CRT inherits from traditional civil rights scholarship a commitment to a vision of liberation from racism through right reason. Despite the difficulty of separating legal reasoning and institutions from their racist roots, CRT’s ultimate vision is redemptive, not deconstructive. Justice remains possible, and it is the property of whites and nonwhites alike. In its “modernist narratives,” CRT seems confident that crafting the correct theory of race and racism can help lead to enlightenment, empowerment, and finally to emancipation: that, indeed, the truth shall set you free. (p. 743)

CRT’s commitment to the liberation of people of color … suggest[s] a faith in certain concepts and institutions that postmodernists lack. When race-crits tell modernist stories, they assume that “people of color” describes a coherent category with at least some shared values and interests. They assume that the idea of “liberation” is meaningful-that racism is something that can one day somehow cease to exist, or cease to exert any power over us. Modernist narratives assume a “real” reality out there, and that reason can bring us face to face with it. And modernist narratives have faith that once enough people see the truth, right action will follow: that enlightenment leads to empowerment, and that empowerment leads to emancipation. (p. 753)

Political modernism, more generally, has been a powerful force in the lives of subjugated peoples; as a practical matter, politically liberal societies are vastly preferable to the alternatives. A faith in reason has sustained efforts to educate people into critical thinking and to engage in debate rather than violence. The passionate and constructive energy of modernist narratives of emancipation is also grounded in a moral faith: that human beings are created equal and endowed with certain inalienable rights; that oppression is wrong and resistance to oppression right; that opposing subjugation in the name of liberty, equality, and true community is the obligation of every rational person. In its modernist moments, CRT aims not to topple the Enlightenment, but to make its promises real. (pp. 753 – 754)

Even CRT godfather Derrick Bell concurred:

[C]ritical race theory scholarship is characterized by frequent use of the first person, storytelling, narrative, allegory, interdisciplinary treatment of law, and the unapologetic use of creativity. The work is often disruptive because its commitment to anti-racism goes well beyond civil rights, integration, affirmative action, and other liberal measures. This is not to say that critical race theory adherents automatically or uniformly “trash” liberal ideology and method. Rather, they are highly suspicious of the liberal agenda, distrust its method, and want to retain what they see as a valuable strain of egalitarianism which may exist despite, and not because of, liberalism.

As this description suggests, critical race theory scholarship exhibits a good deal of tension between its commitment to radical critique of the law (which is normatively deconstructionist) and its commitment to radical emancipation by the law (which is normatively reconstructionist). Angela Harris views this tension—between “modernist” and “postmodernist” narrative—as a source of strength because of critical race theorists’ ability to use it in ways that are creative rather than paralyzing. (“Who’s Afraid of Critical Race Theory?,” p. 78)

And nearly 30 years after Harris’s article, Devon Carbado and Cheryl Harris explain much the same, noting the same tension that has continued from CRT’s beginnings:

CRT’s early repudiation of a certain kind of anti-essentialist critique [provided by PS/M] cleared the ground for the articulation of a range of important ideas, among them these: There is something irreducible that we might call race (though the meaning of race shifts over time and place, is historically contingent, and intersects with and is shaped by other axes of social differentiation). There are people we might call “Black” (though the content and experiences of blackness are not static but a function of particular social, legal, cultural, and ideological processes). There is a social force we might call “racism” (though its content and effects, and the technologies through which it is expressed, are neither transhistorical nor predetermined). And there is a phenomenon that we might call whiteness (though its boundaries are never fixed or fully articulated but are constituted and reconstituted in the service of racial power). (“Intersectionality at 30: Mapping the Margins of Anti-Essentialism, Intersectionality, and Dominance Theory,” pp. 2214 – 2215)

Conclusion

Thus, while CLS offered deconstructive prowess, helping to expose the indeterminacy of law, the oppressive ideologies contained within, and helping to explain the inevitable cycle of reform and retrenchment discussed throughout this series, the founding generation of Critical Race Theorists demanded more. They demanded a reconstruction as well, a project of liberation that would go beyond mere ideological “trashing.” And while CLS rejected the concept of rights—even civil rights—as “undermin[ing] efforts to change things by absorbing real demands, experiences, and concerns into a vacuous and indeterminate discourse” (Tushnet via Crenshaw, p. 1353), CRT understood “the concept of rights, both positive and negative, [as] the marker of our citizenship, our participatoriness, our relation to others” (Patricia Williams, p. 88). And while CLS accused CRT of “racialism,” just as they had accused Marxism of “classism,” CRT advocated for real life change in the real-life circumstances of real, though socially constructed, racialized and oppressed people-groups.

Race-crits have rejected the project of “total critique” and are committed to transforming modernist paradigms as well as criticizing them. (Angela Harris, “The Jurisprudence of Reconstruction,” p. 765)

In short, the “race intervention in a critical space” that is Critical Race Theory was deeply and inescapably informed by the tension between the (literal) life and death commitment to traditional Civil Rights ideology and the postmodern critique inherited from Critical Legal Studies.

Further Reading