The "Critical Race Theory Scare," a bit like the old "Red Scare," has conjured up a bogeyman from a minor movement in academic legal scholarship that goes by the name "Critical Race Theory," and that is associated with law professors like Kimberle Crenshaw, Patricia Williams, the late Derrick Bell, Richard Delgado, and others. As is no doubt well-known to readers of this blog, the current bogeyman "Critical Race Theory" (CRT) has only a little to do with the body of writing by law professors--indeed, as this profile of the creator of the current hysteria makes clear, the real targets are the half-baked "ideas" of Robin DiAngelo and Ibram Kendi that have been put into practice in many workplaces (and some schools): e.g., treating race as the marker of moral and epistemic status, treating disparate impact as evidence of "racism," overgeneralizing about the supposed attributes of "whiteness" (e.g., "objectivity" is white), interpreting effects of the capitalist marketplace as "racial" effects, and so on. The DiAngelo-Kendi schtick makes the other white victims of the capitalist marketplace into agents and instigators of morally reprehensible oppression.
DiAngelo and Kendi, in any case, cite some CRT articles, and the propagandists decided that CRT was a good stand-in for the enemy. DiAngelo and Kendi should be consigned to oblivion, and most of the objections to the CRT bogeyman are really objections to their stupidity, as any Marxist would agree. But CRT is not by any stretch of the imagination a "Marxist" theory (and has little to do with Frankfurt School Critical Theory), so what is it about?
In law schools, CRT emerged initially in response to two general tendencies in legal scholarship: post-Civil Rights legal scholarship by "white" liberals (e.g., Owen Fiss), and an even more ephemeral theoretical fad in law schools, "Critical Legal Studies" (CLS).
The former--to oversimplify considerably--treated the civil rights revolution wrought by legislation and court decisions, as adequate to undo the apartheid regime that had reigned in large parts of the country after the collapse of Reconstruction in the late 19th-century. Against the optimistic story told by liberal civil rights scholars, the CRT writers argued that this ignored "systemic" or "structural" racism, against which the liberal civil rights ideal was largely ineffective. I'll say more about this in a moment.
CLS, by contrast, reenacted Left Hegelianism in the context of legal scholarship (see my paper in Oxford Journal of Legal Studies): just as Lukacs (with his mishmash of Marx and the parts of Hegel that Marx had given up) purported to show in 1923 that liberal thought was incoherent (a critique replicated, without acknowledgment, by law professor Roberto Unger in 1975's Knowledge and Politics), CLS scholars purported to show that doctrinal categories in law were riven with contradictions, at least at a high level of philosophical abstraction--and, therefore, doctrine did not really constrain judges, who made essentially political choices. (CLS associated this argument, unfortunately, with the American Legal Realist critique of law, which, by contrast, focused on the actual arguments of lawyers and judges to demonstrate the malleability of legal doctrine--and not the abstract philosophical theory allegedly under-girding the mundane doctrine; the Realists did not think "politics" explained most judicial decisions either).
Some CLS writers also trafficked in skepticism about "rights," a kind of throwback to a superficial reading of Marx's "On the Jewish Question." My favorite essay in the whole CRT genre is an essay by Patricia Williams arguing, against CLS, the importance of formal rights for racial minorities (very short version: a Black woman renting an apartment damn well knows she had better have a clear written contract that makes clear everyone's rights and obligations, since she can't count on her minimal social capital to help her in a dispute with her landlord).
So what are the main themes of CRT? My recollection may be slightly dated, but I think this summary hits the main points:
1. Racism is "systemic" or "structural," not simply a matter of the racist attitudes of individual bad actors. "Systemic racism," as we have noted before, is ambiguous between different possible meanings, but in one of those senses it is clearly true: a century of de jure and intentional racism (not to mention slavery before that) produced such massive disadvantage for Blacks in America that race-neutral criteria for opportunity in capitalist society tend to reinforce that disadvantage for most Blacks. Affirmative action, in its original conception (before it devolved into "diversity" blather), was a partial remedy for this; reparations to the actual descendants of the victims of de jure segregation would be another. This observation about systemic racism, associated with CRT but hardly distinctive of it, seems to me obviously true.
2. Professor Bell defended the idea that Blacks could only advance when it was in the interest of "Whites." This "interest convergence" thesis presupposed, obviously incorrectly, that there were such things as "White interests" and "Black interests," as opposed to recognizing the divergence in interests within racial groups due to class position. It also did not fit the historical record very well.
3. Some strands of CRT allied themselves with postmodern skepticism about objective knowledge and truth; this resulted in some bad philosophy. The truth of #1 does not depend on this, indeed, is probably incompatible with it.
4. Professor Crenshaw introduced the idea of "intersectionality," i.e., that different socially salient features of people (race, gender, class) can ""intersect" to produce distinct forms of discrimination that yield their own forms of social and economic disadvantage. This seems to me also obviously true, although the crucial egalitarian question is whether some of the socially salient features are still more important than others in explaining the effects. To put it crudely: if most Blacks were in the top 1% by income, would "Blackness" be a trigger for discrimination as it is in the United States? Although the answer to that latter question is, I imagine, obvious, it's striking how little attention this gets.
As this overview suggests, there isn't a lot of "theory" in Critical Race Theory: one of its most distinctive theoretical claims (#2) is implausible; #1 is not proprietary to CRT; #3 is an alliance with bad philosophy that does nothing to advance the central ideas. How the two most important claims--#1 and #4--hang together in a theoretical edifice is not always clear, but they are suggestively complementary.
The contrast with the Critical Theory of the Frankfurt School is stark. The one superficial affinity between CRT and Frankfurt School Critical Theory is the idea that the theory aims to emancipate people from oppression (that simple idea accounts for the proliferation of "critical theory" blather in the humanities and social sciences ever since). But that is where the similarity ends. If one were to mention distinctive theses of Frankfurt School Critical Theory (before the tradition was destroyed by Habermas and turned into bourgeois moral philosophy), they would surely include some or all of the following:
(I) a Critical Theory unites its epistemic and practical (emancipatory) aims in a way foreign to "positivist" conceptions of theories in the natural and social sciences (how it does that is somewhat difficult to specify, and is also one respect in which the Frankfurt School departs significantly from Marx);
(II) a Critical Theory requires more than instrumental rationality (which it diagnoses as part of the ideology of capitalist society); it presupposes a substantive conception of rationality as well as a substantive conception of the good for human beings (based on a certain view of human nature);
(III) a Critical Theory exposes the "dialectical" weaknesses in its targets in the Hegelian sense of that term: it exposes the contradictions immanent in existing society and its ideology (with their constituent parts only intelligible when understood as necessarily part of an [incoherent] whole).
(IV) a Critical Theory is reflexive, asking how the traditional theories it critiques are connected to the class position of their proponents, but also adopting the same posture towards itself. (Applying this to CRT, one might note the privileged class position of its leading contributors. Early on in CRT, Professor Delgado undertook this kind of reflexive critique of the race of liberal Civil Rights scholars.)
As my ridiculously abbreviated summary in the preceding suggests, Frankfurt School Critical Theory embodies a set of ambitious and debatable (including from a Marxist perspective) claims about science, knowledge, rationality, ideology, the nature of society, human nature, and the good: it is very much a philosophically substantial theory, whatever its ultimate merits. By contrast, CRT is obviously more limited in its ambitions, and seems to me less a "theory" than a style of analysis of legal questions or problems, informed by #1 and #4, above, and by a general rejection of the adequacy of the liberal approach to civil rights as adequate to remedy the effects of systemic racism.
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