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SOSC 2350 Study Guide - Final Guide: Critical Race Theory, Scientific Racism, Patricia J. Williams

Social Science
Course Code
SOSC 2350
Amelie Barras
Study Guide

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SOSC 2350 Law & Society
Final Examination on April 17, 2016
1) Drawing on examples provided in readings and lectures on feminism, critical
race theory, and/or citizenship discuss Patricia William’s quote:
“The phantom room is to me symbolic of the emptiness of what formal equal
opportunity as promised has actually turned out to be […] What is required
in the law of opportunity is some acknowledgement of the room as an empty
room before we can stop filling the void with the perpetuated racism of the
What Patricia Williams is essentially asserting is although there is formal equality in our
legal system; this legal ideology does not recognize the historical oppressions and in turn
perpetuates on going racism
Thesis: In this essay I will define and explain what formal equality is and why the
phantom room is an analogy to it. Through this I will explain why critical legal theories
like race theory should be used in recognizing that the legal system is like that phantom
room and how this theory can amend the legal system so it becomes for fair and equal.
Definition of formal equality:
In simple terms, the concept of formal equality is that everyone should be treated
equally under the law.
This type of equality was put in place so that the legal system did not
explicitly/overtly discriminate against visible minorities like people of colour and
Through this type of ideology, racist and sexist laws (like not allowing women or
black people to vote) were eradicated.
However, despite its intentions of treating all people equally, formal equality
continues the systemic racism in our socio-legal sphere because it fails for
recognize the disadvantages that minorities face that obviously do not make them
equal to their privileged counterparts.
Contrasting formal equality is subjective equality and this legal ideology is
recognized by critical legal approaches like critical race and feminist theory.
Critical Race Theory:
Developed in the 1970s by lawyers who wanted to advance the civil rights
movement in America
Critics this notion of liberalism formal equality, rule of law, neutrality of law
and colour blindness of the law
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Racism must be understood in social and historical context (Bell calls this
racial realism) so that it understood that it is a pattern that is continued by
institutions (like the legal system) and not isolated actions
because racism is deeply embedded in the socio-legal sphere, there is
inequality in the legal system
this racism is (re)produced in the racially neutral language of the law as it
treats “race” as the phantom word.
By doing so, it does not recognize that racialized people are not socially equal
as white citizens to begin with.
So now even though the law says that everyone is equal under the law, not
recognizing the social disadvantages, it has an adverse impact
Essentially, this undermines the spirit of rule of law, which states that no one
is above the law.
Critical race theory is arguing that we must recognize that the law promises
equality but does not deliver on that promise, because they don’t consider
social context and disadvantages
What is required to fix this is for the law is to recognize this disadvantage and
implement substantive equality
Substantive takes into account the complexity of inequality, its systematic
nature and the way it is entrenched in social values and behaviours, mostly
without the knowledge of the dominant group
Critical Race Theory and the phantom room analysis
Thus, like the phantom room is, the law is empty in its deliverance of equality
The law must see the disadvantages of its society created by its prior
oppressions before it can make any effective changes in the socio-legal system
After recognizing these disadvantages, than the law can attempt to make laws
(or fill the room) with laws that take a critical and substantive approach in
order to lift its historically disadvantaged citizens to the same level as its
privileged ones.
An example of this would be the Gladue case and principles
oThis is an example of substantive equality because in sentencing it
implements social education which looks at that social context of the
colonized Aboriginals peoples and its detrimental effects it has today
By adding the “phantom” word, race, in the law in this manner, has a positive
effect rather than a negative one because it recognizes the social/historical of
racial realism and addresses that directly
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2) Vago states that the “the extent to which law can provide an effective
impetus for social change varies according to the conditions present in a
particular situation” (p 312). Discuss her statement drawing on at least two
examples developed in the following readings: Backhouse, Bell, Napoleon,
Isin and Siemiatycki, Niezen and/or Brayson and Swain.
What is Social Change?
Large numbers of people are engaging in group activities & relationships that are
different from those in which they or their parents engaged in previously.
oA multitude of complex factors that are often interdependent
E.g. technology, conflict, political & economic factors, etc.
There contesting views of the relationship between law and social change in that
some people believe that law effects social change and others believe that social
change influences the law.
Durkheim argues that as society becomes more complex and diverse, so does law.
The 1st main different view:
oBentham: Law can (& should) lead society
oLegal reforms should respond to new social needs & restructure society.
oArgues that the law should create the greatest good for the greatest number
of people
oTherefore, the law should intervene in society to make positive changes
where these are required
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