Critical race theory
Encyclopedia
Critical Race Theory is an academic discipline focused upon the intersection of race, law
and power.
Although no set of canonical doctrines or methodologies defines CRT, the movement is loosely unified by two common areas of inquiry. First, CRT has analyzed the way in which white supremacy and racial power are reproduced over time, and in particular, the role that law plays in this process. Second, CRT work has investigated the possibility of transforming the relationship between law and racial power, and more broadly, the possibility of achieving racial emancipation and anti-subordination.
Appearing in US law schools in the mid- to late 1980s, Critical Race Theory inherited many of its political and intellectual commitments from civil rights scholarship and Critical Legal Studies
, even as the movement departed significantly from both. Scholars like Derrick Bell
applauded the focus of civil rights scholarship on race, but were deeply critical of civil rights scholars' commitment to colorblindness and their focus on intentional discrimination, rather than a broader focus on the conditions of racial inequality. Likewise, scholars like Patricia Williams, Kimberlé Williams Crenshaw
and Mari Matsuda
embraced the focus on the reproduction of hierarchy in Critical Legal Studies
, but criticized CLS scholars for failing to focus on racial domination and on the particular sources of racial oppression.
As a movement that draws heavily from critical theory, critical race theory shares many intellectual commitments with CLS and critical theory
, feminist jurisprudence
, and postcolonial theory.
Recent developments in critical race theory include work relying on updated social psychology research on unconscious bias, to justify affirmative action; and work relying on law and economics methodology to examine Structural Inequality
and discrimination in the workplace.
case of R. A. V. v. City of St. Paul
(1992), in which the Court struck down an anti-bias ordinance as applied to a teenager who had burned a cross, Mari Matsuda and Charles Lawrence
argued that the Court had paid insufficient attention to the history of racist speech and the actual injury produced by such speech. The Court has since adopted this historicist position in Virginia v. Black
(2003), finding that cross-burning with an intent to intimidate can be legally prohibited.
Critical race theorists have also paid particular attention to the issue of affirmative action. Many scholars have argued in favor of affirmative action on the argument that so-called merit standards for hiring and educational admissions are not race-neutral for a variety of reasons, and that such standards are part of the rhetoric of neutrality through which whites justify their disproportionate share of resources and social benefits.
of the United States Court of Appeals for the Seventh Circuit
in Chicago has “label[ed] critical race theorists and postmodernists the ‘lunatic core’ of ‘radical legal egalitarianism.’” He writes,
Judge Alex Kozinski
, United States Court of Appeals for the Ninth Circuit
, writes that Critical Race Theorists have constructed a philosophy which makes a valid exchange of ideas between the various disciplines unattainable.
Henry Louis Gates Jr. has written a critical evaluation of CRT. Gates emphasizes how campus speech codes and anti-hate speech laws have been applied contrary to the intentions of CRT theorists: "During the year in which Michigan's speech code was enforced, more than twenty blacks were charged - by whites - with racist speech. As Trossen notes, not a single instance of white racist speech was punished." Gates gives several further examples such as this one: "What you don't hear from the hate speech theorists is that the first casualty of the MacKinnonite anti-obscenity ruling was a gay and lesbian bookshop in Toronto, which was raided by the police because of a lesbian magazine it carried."
Critical Race Theory has also begun to spawn research that looks at understandings of race outside the United States.
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
and power.
Although no set of canonical doctrines or methodologies defines CRT, the movement is loosely unified by two common areas of inquiry. First, CRT has analyzed the way in which white supremacy and racial power are reproduced over time, and in particular, the role that law plays in this process. Second, CRT work has investigated the possibility of transforming the relationship between law and racial power, and more broadly, the possibility of achieving racial emancipation and anti-subordination.
Appearing in US law schools in the mid- to late 1980s, Critical Race Theory inherited many of its political and intellectual commitments from civil rights scholarship and Critical Legal Studies
Critical legal studies
Critical legal studies is a movement in legal thought that applied methods similar to those of critical theory to law. The abbreviations "CLS" and "Crit" are sometimes used to refer to the movement and its adherents....
, even as the movement departed significantly from both. Scholars like Derrick Bell
Derrick Bell
Derrick Albert Bell, Jr. was the first tenured African-American professor of Law at Harvard University, and largely credited as the originator of Critical Race Theory. He was the former dean of the University of Oregon School of Law.- Education and early career :Born in the Hill District of...
applauded the focus of civil rights scholarship on race, but were deeply critical of civil rights scholars' commitment to colorblindness and their focus on intentional discrimination, rather than a broader focus on the conditions of racial inequality. Likewise, scholars like Patricia Williams, Kimberlé Williams Crenshaw
Kimberlé Williams Crenshaw
Kimberlé Williams Crenshaw is a prominent figure in Critical Race Theory and currently a professor at UCLA School of Law and Columbia Law School specializing in race and gender issues....
and Mari Matsuda
Mari Matsuda
Mari J. Matsuda is an American lawyer, activist, and law professor at the William S. Richardson School of Law. Matsuda returned to Richardson in the fall of 2008...
embraced the focus on the reproduction of hierarchy in Critical Legal Studies
Critical legal studies
Critical legal studies is a movement in legal thought that applied methods similar to those of critical theory to law. The abbreviations "CLS" and "Crit" are sometimes used to refer to the movement and its adherents....
, but criticized CLS scholars for failing to focus on racial domination and on the particular sources of racial oppression.
Key theoretical elements
Richard Delgado and Jean Stefancic have documented the following major themes as characteristic of work in critical race theory:- A critique of liberalismLiberalismLiberalism is the belief in the importance of liberty and equal rights. Liberals espouse a wide array of views depending on their understanding of these principles, but generally, liberals support ideas such as constitutionalism, liberal democracy, free and fair elections, human rights,...
: CRT scholars favor a more aggressive approach to social transformation as opposed to liberalism's more cautious approach, favor a race conscious approach to transformation rather than liberalism's embrace of color blindness, and favor an approach that relies more on political organizing, in contrast to liberalism's reliance on rights-based remedies. - StorytellingStorytellingStorytelling is the conveying of events in words, images and sounds, often by improvisation or embellishment. Stories or narratives have been shared in every culture as a means of entertainment, education, cultural preservation and in order to instill moral values...
/counterstorytelling and "naming one's own reality"--using narrative to illuminate and explore experiences of racial oppression. - RevisionistHistorical revisionismIn historiography, historical revisionism is the reinterpretation of orthodox views on evidence, motivations, and decision-making processes surrounding a historical event...
interpretations of American civil rightsCivil rightsCivil and political rights are a class of rights that protect individuals' freedom from unwarranted infringement by governments and private organizations, and ensure one's ability to participate in the civil and political life of the state without discrimination or repression.Civil rights include...
law and progress—criticizing civil rights scholarship and anti-discrimination law. - Applying insights from social science writing on race and racism to legal problems.
- Structural determinism, or how "the structure of legal thought or culture influences its content."
- The intersectionsIntersectionalityIntersectionality is a feminist sociological theory first highlighted by Kimberlé Crenshaw . Intersectionality is a methodology of studying "the relationships among multiple dimensions and modalities of social relationships and subject formations"...
of race, sexGenderGender is a range of characteristics used to distinguish between males and females, particularly in the cases of men and women and the masculine and feminine attributes assigned to them. Depending on the context, the discriminating characteristics vary from sex to social role to gender identity...
, and classSocial classSocial classes are economic or cultural arrangements of groups in society. Class is an essential object of analysis for sociologists, political scientists, economists, anthropologists and social historians. In the social sciences, social class is often discussed in terms of 'social stratification'...
--e.g., how poor Latinas' experience of domestic violence needs distinctive remedies. - EssentialismEssentialismIn philosophy, essentialism is the view that, for any specific kind of entity, there is a set of characteristics or properties all of which any entity of that kind must possess. Therefore all things can be precisely defined or described...
and anti-essentialism—reducing the experience of a category (like gender or race) to the experience of one sub-group (like white women or African-Americans). - Cultural nationalismNationalismNationalism is a political ideology that involves a strong identification of a group of individuals with a political entity defined in national terms, i.e. a nation. In the 'modernist' image of the nation, it is nationalism that creates national identity. There are various definitions for what...
/separatismSeparatismSeparatism is the advocacy of a state of cultural, ethnic, tribal, religious, racial, governmental or gender separation from the larger group. While it often refers to full political secession, separatist groups may seek nothing more than greater autonomy...
, Black nationalismBlack nationalismBlack nationalism advocates a racial definition of indigenous national identity, as opposed to multiculturalism. There are different indigenous nationalist philosophies but the principles of all African nationalist ideologies are unity, and self-determination or independence from European society...
--exploring more radical views arguing for separation and reparations as a form of foreign aid. - Legal institutions, critical pedagogyCritical pedagogyCritical pedagogy is a philosophy of education described by Henry Giroux as an "educational movement, guided by passion and principle, to help students develop consciousness of freedom, recognize authoritarian tendencies, and connect knowledge to power and the ability to take constructive...
, and minority lawyers in the bar.
As a movement that draws heavily from critical theory, critical race theory shares many intellectual commitments with CLS and critical theory
Critical theory
Critical theory is an examination and critique of society and culture, drawing from knowledge across the social sciences and humanities. The term has two different meanings with different origins and histories: one originating in sociology and the other in literary criticism...
, feminist jurisprudence
Feminist legal theory
Feminist legal theory is based on the belief that the law has been instrumental in women's historical subordination. The project of feminist legal theory is twofold. First, feminist jurisprudence seeks to explain ways in which the law played a role in women's former subordinate status...
, and postcolonial theory.
Recent developments in critical race theory include work relying on updated social psychology research on unconscious bias, to justify affirmative action; and work relying on law and economics methodology to examine Structural Inequality
Structural inequality
Structural inequality is defined as a condition that arises out of attributing an unequal status to a category of people in relation to one or more other categories, a relationship that is perpetuated and reinforced by a confluence of unequal relations in roles, functions, decisions rights, and...
and discrimination in the workplace.
Applications
Scholars in Critical Race Theory have focused with some particularity on the issues of hate crime and hate speech. In response to the US Supreme Court's opinion in the hate speechHate speech
Hate speech is, outside the law, any communication that disparages a person or a group on the basis of some characteristic such as race, color, ethnicity, gender, sexual orientation, nationality, religion, or other characteristic....
case of R. A. V. v. City of St. Paul
R. A. V. v. City of St. Paul
R.A.V. v. City of St. Paul, was a United States Supreme Court case involving hate speech and the free speech clause of the First Amendment to the Constitution of the United States. A unanimous Court struck down St...
(1992), in which the Court struck down an anti-bias ordinance as applied to a teenager who had burned a cross, Mari Matsuda and Charles Lawrence
Charles Lawrence
Brigadier-General Charles Lawrence was a British military officer who, as lieutenant governor and subsequently governor of Nova Scotia. He is perhaps best known for overseeing the Expulsion of the Acadians and settling the New England Planters in Nova Scotia. He was born in Plymouth, England and...
argued that the Court had paid insufficient attention to the history of racist speech and the actual injury produced by such speech. The Court has since adopted this historicist position in Virginia v. Black
Virginia v. Black
Virginia v. Black, 538 U.S. 343 , was a First Amendment case decided in the Supreme Court of the United States. Three defendants were convicted in two separate cases of violating a Virginia statute against cross burning. In this case, the Court struck down that statute to the extent that it...
(2003), finding that cross-burning with an intent to intimidate can be legally prohibited.
Critical race theorists have also paid particular attention to the issue of affirmative action. Many scholars have argued in favor of affirmative action on the argument that so-called merit standards for hiring and educational admissions are not race-neutral for a variety of reasons, and that such standards are part of the rhetoric of neutrality through which whites justify their disproportionate share of resources and social benefits.
Criticisms
Many mainstream legal scholars have criticized CRT on a number of grounds, including some scholars' use of narrative and storytelling, as well as the critique of objectivity adopted by critical race theorists in connection with the critique of merit. Daniel Farber and Suzanna Sherry have argued that critical race theory, along with critical feminism and critical legal studies, has anti-Semitic and anti-Asian implications, has worked to undermine notions of democratic community and has impeded dialogue. Judge Richard PosnerRichard Posner
Richard Allen Posner is an American jurist, legal theorist, and economist who is currently a judge on the United States Court of Appeals for the Seventh Circuit in Chicago and a Senior Lecturer at the University of Chicago Law School...
of the United States Court of Appeals for the Seventh Circuit
United States Court of Appeals for the Seventh Circuit
The United States Court of Appeals for the Seventh Circuit is a federal court with appellate jurisdiction over the courts in the following districts:* Central District of Illinois* Northern District of Illinois...
in Chicago has “label[ed] critical race theorists and postmodernists the ‘lunatic core’ of ‘radical legal egalitarianism.’” He writes,
What is most arresting about critical race theory is that...it turns its back on the Western tradition of rational inquiry, forswearing analysis for narrative. Rather than marshal logical arguments and empirical data, critical race theorists tell stories — fictional, science-fictional, quasi-fictional, autobiographical, anecdotal — designed to expose the pervasive and debilitating racism of America today. By repudiating reasoned argumentation, the storytellers reinforce stereotypes about the intellectual capacities of nonwhites.
Judge Alex Kozinski
Alex Kozinski
Alex Kozinski is Chief Judge of the United States Court of Appeals for the Ninth Circuit, an essayist, and a judicial commentator.-Biography:...
, United States Court of Appeals for the Ninth Circuit
United States Court of Appeals for the Ninth Circuit
The United States Court of Appeals for the Ninth Circuit is a U.S. federal court with appellate jurisdiction over the district courts in the following districts:* District of Alaska* District of Arizona...
, writes that Critical Race Theorists have constructed a philosophy which makes a valid exchange of ideas between the various disciplines unattainable.
The radical multiculturalists' views raise insuperable barriers to mutual understanding. Consider the Space Traders story. How does one have a meaningful dialogue with Derrick Bell? Because his thesis is utterly untestable, one quickly reaches a dead end after either accepting or rejecting his assertion that white Americans would cheerfully sell all blacks to the aliens. The story is also a poke in the eye of American Jews, particularly those who risked life and limb by actively participating in the civil rights protests of the 1960s. Bell clearly implies that this was done out of tawdry self-interest. Perhaps most galling is Bell's insensitivity in making the symbol of Jewish hypocrisy the little girl who perished in the Holocaust — as close to a saint as Jews have. A Jewish professor who invoked the name of Rosa Parks so derisively would be bitterly condemned — and rightly so.
Henry Louis Gates Jr. has written a critical evaluation of CRT. Gates emphasizes how campus speech codes and anti-hate speech laws have been applied contrary to the intentions of CRT theorists: "During the year in which Michigan's speech code was enforced, more than twenty blacks were charged - by whites - with racist speech. As Trossen notes, not a single instance of white racist speech was punished." Gates gives several further examples such as this one: "What you don't hear from the hate speech theorists is that the first casualty of the MacKinnonite anti-obscenity ruling was a gay and lesbian bookshop in Toronto, which was raided by the police because of a lesbian magazine it carried."
Offshoot fields
Within Critical Race Theory, various sub-groupings have emerged to focus on issues that fall outside the black-white paradigm of race relations as well as issues that relate to the intersection of race with issues of gender, sexuality, class and other social structures. See for example, Critical Race Feminism (CRF), Latino Critical Race Studies (LatCrit) Asian American Critical Race Studies (AsianCrit) and American Indian Critical Race Studies (sometimes called TribalCrit).Critical Race Theory has also begun to spawn research that looks at understandings of race outside the United States.