SOSC 2350 Note 16
Critical Race Theory: Identity, Racial Classifications and Law
- Forged in oppositional reaction to visions of race, racism, and law dominated
in a post-civil rights period (originally an American Movement)
o It’s an intellectually-politically committed movement
o Note – CLS is a movement, not a theory. It’s an American movement
because its origins are in American law schools.
- Evolved from and in critical response to the CLS movement
o Feelings of alienation, marginalization and inattention by Critical Race
o What does CLS have that offer racial minorities in their quest for
- CLS is now a part of ethnic studies, social science, and expanded into a range
of scholarly movements
- There is no specific methodology that defines critical race theory
o Instead, it is unified by two common areas of inquiry that provides the
framework for understanding CLS
First: it analyzes the way in which supremacy and white power
is reproduced over time – what is the role of law in this
Second: It has investigated certain possibilities of transforming
the relationship between law and social power
The broader agenda is finding the possibility of achieve
o Freeing us from dualisms, and loosening
- Critical Race theory forms in critical response to the Critical Legal Studies
o It inherits a lot from CLS – it’s a reaction but at the same time there is
a technology to build upon the main precepts and tenants of CLS
o Appears first in mid-to late 1980s
Already benefits political commitments
- This movement moves away from the CLS direction though.
o Inheritance is there, but at the same time this movement (CRT)
departs significantly from the general approach
For example, in regards to civil rights activism and
jurisprudence, yet critical race theory is reformist. Also it’s
trying to do something very similar to activist.
This point of similarity is the fact that CRT seeks to
galvanize (direct moral outrage that was experiences
during the civil rights movement)
It tries to direct this outrage into constructive legal
change. There is a difference: CRT wants to move further, so scholars
like Derrick Bell are critical of civil rights scholars and their
commitment to colour blindness.
They’re critical on intentional discrimination rather
than focusing on the broader conditions. Instead of
being attached to one single idea, you should have cast a
broader focus to conditions of racial inequality.
In 1980s scholars experienced a conservative backlash – all of
the gains in the 60s and 70s had a step back in the 80s.
The scholars who later described themselves
CRScholars were looking for particular explanation –
why formal legal equality had produced very modest
success in terms of improving the lived experiences of
blacks and others in the US
Consider through Intersectionality what was deficient
in the 1980s
- In the 1980s there’s a sense of alienation, marginalization, and inattention
for critical race theorists.
- CRT embrace focuses of how hierarchy is reproduced – the idea that the
project of CLS was to focus on how hierarchy was reproduced
o They also promoted the idea of paying attention to the underlying
conditions of inequality.
o This was very useful.
- Most theorists had the concerns of CRT to address other fundamental issues.
- What more can CLS offer racial minorities in their quest for social justice?
CLS – a starting point
- CRT Scholars take a certain position
- This is the idea that racism is ordinary, and it’s quite common in American
- Racism can be rooted in values, and in some cases all of these beliefs are
unconsciously maintained by individuals and in our systems and institutions
o How is it that contemporary law and contemporary anti-
discrimination law accommodate or facilitate racism?
o The Critical Race theory project pulls in some fundamental
assumptions about such institutions and things like legal reasoning
and judicial decision making
o It considers American history and the nature of injustice.
o It’s a very broad project
- CRT builds up and elaborates from CLS, particularly from the critique of
o It challenges on the basis of the five tenets
o CLS criticizes five basic and interrelated tenets of Liberal Legalism
Rule of law
o It’s these criticism that provides the foundation for CRT
CLS and Individual Rights
- Individual rights: fundamental to legal liberalism
o Each person should have equal right to pursue their self-interest
without formal restraints by state or law – although key role of law is
facilitative (to referee social interaction to produce a neutral
o The law exists to mediate conflicts that are going to emerge as we
pursue our self-interest
- Critique: rights aid in legitimating and maintain inequitable power
imbalances in society
- Affirmative action is to take all forms of principles to give equality to groups
who have been historically oppressed.
o From a liberal legalism approach, this is highly problematic
o To enforce this like affirmative action strategies infringes on my self-
interests and creates an unfair climate. It’s handicapping some groups
How would critical race theory respond?
Asserting that people have the right to pursue our self
interest is going to aid legitimating a balanced power in
o Particular social structures already serve to
disadvantage and exclude members of society
o Therefore, affirmative action isn’t benefiting
others; there were always actions that were
o As a remedial approach this is okay – but at what
point do you say that enough is enough?
What about a socialist approach?
CRT critiques of CLS
- CLS failed to recognize that the minority experience of duel consciousness
was capable of accommodating both the idea of legal indeterminacy as well
as the core belief in a liberating law that transcends indeterminacy
o Legal study should both involve a deep criticism of law with an
inspirational vision of law
The duality of law
o What does Matsuda mean? The notion that law should have a criticism
or law with an inspiration of law.
Could it be related to Dworkin?
- CRT favours a more race-conscious approach o CLS favours a more colour-blind approach
- It relies on political organizing in contrast to CLS where the emphasis was to
use the courts – race based remedies.
o CRT goes further than that in terms of trying to see as a movement –
it’s all about political organizing.
Issue of Rights
- For CRT, rights are invigorating cloaks of safety that unite us in a common
o He means that rights are wonderful – who doesn’t want rights?
o Invigorating is energizing and vitalizing, but at the same time “cloak”
You wear a cloak to shield your identity. It masks “reality”
Delgado’s cloak that hides rights – it is often an illusion.
Therefore, the common bond is also illusory. It’s
comforting more in theory than in reality.
o But rights remedies (often formal equality measures) often only
produce another form of discrimination, though more subtle.
- Formal equal opportunity – to treat groups, including historically excluded
groups, in the same manner without reference to race (colour-blindness)
o This is problematic from CRT
Formalism isn’t enough.
o But race permeates society on both ideological and material levels
o In order to get beyond racism, we must first take account of race
Substantive equality – affirmative action
- To summarize, according to CRScholars, we must first take account of race
(substantive equality), and assert that colour blindness is the problem; not
the solution. It is not enough to provide opportunity; you also have to have
strategies in place for opportunities to antidiscrimination. You have to do
Basic Tenants of CRT
- Legal discourse has not adequately taken into account the social reality of
race and racism and has ignored the fact that law is both a product and
promoter of racism
o This isn’t hopeless
Mobilization is necessary. You must galvanize moral outrage,
channeling it for progressive changes to law. (This is
o This is also a critique of civil right struggles – did the end of one type
of discrimination, just obscure other ones?
o But struggle can change law and law can aid struggle
- A critique of civil rights struggles: did the cessation of one overt form of
discrimination merely obscure subtler, though no less discriminatory, form
o Did the end of segregation laws in the states end racism? - There is a need to assert a distinctive voice of colour into our national
o Antidiscrimination laws are fine, but they’re not going to undo
o There’s a worry for CRScholars that many of the gains made are under
attack – they’re becoming challenged (especially in the US)
Conservatives in the US are waging a war against affirmative
action policies at the level of universities.
During the last 35 years the war on drugs has locked up blacks
We have witnessed social panic about Asian and
Mexican immigrants to the US
The obvious argument is that just because segregation
laws are repealed, it doesn’t mean that discrimination
- For CRScholars it is very urgent and pressing to get passed the idea that the
law ever should be based on formal equality
- There is a critique of formal equality and colour blindness
o “In order to get beyond racism, we must first take account of race”
- Note the importance of race-consciousness – “race will not be eliminated
through the simple expedient of refusing to talk about it Race permeates our
society on both ideological and material levels (Lopez)
o Why is formal equality such a concern for CRS?
- Colour blindness as a legal doctrine allows the court to strike down
substantive justice policies like affirmative action
o This would be very problematic in contemporary society
- Black feminists scholars have noted the absence of intersectional oppression
o Feminism must take into account race and racism when critiquing
ender relations, just as they must account for the intersection of class,
ability, sexual orientation and other types of identity
o Similarly, CRT must take into account gender and seism when
critiquing racism and racialization, just as they must account for the
intersection of class, ability, sexual orientation and other types of
E.g. Kendall Thomas, a queer CRT and his analysis