How to Talk about Critical Race Theory

Critical Race Theory (CRT) is a movement that grew out of Critical Legal Theory.

Critical Legal Theory injects a quality of realism against legal formalism.

What is formalism? Formalism is the notion that there are certain methods that can be legitimately applied, regardless of the object’s content. Formalism is everywhere. Let’s say that you have two boxing contenders, and you apply a method to find out which contender is the better boxer. A formal method is to simply have them fight a match. However, if one person is 115 pounds and the other person is 240 pounds, the formal method will give you a deeply distorted account of contenders’ skills as boxers; rather, the match’s result will be over-determined by the difference between the contenders’ sizes, not the contenders’ boxing skill.

Critical Boxing Theory would introduce the argument for weight classes in boxing because the formal method of setting any and all contenders at each other, regardless of the content of their weight differential, actually confuses any evaluation of their boxing skill. Critical Boxing Theory would critique the formal method by introducing how the formal method abstracts from how the contenders’ size differential is a relevant factor in the content of the participants as boxing contenders, and how a method that is adequate to the content of these individual boxers would yield a result that was determined by their boxing skill, not a result that was singularly determined by differences in size. While this was an account of the shortfall of formalism in boxing, let us consider formalism in law.

The problems of formalism in legal theory find expression in a quote by Anatole France, “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.”

The formal equality promised by the law universally prohibits begging, stealing, or sleeping under bridges, yet this legal equality calcifies real inequality in life insofar as the law disproportionately punishes those whose circumstances do not afford anywhere else to sleep, earn money, or eat. The law’s formal equality actually makes the poor more vulnerable to the power of those with surplus shelter, money, and food. By limiting the activities the poor now have available to them to secure these goods, the law now forms the coercive circumstances within which those with surplus goods asymmetrically determine the conditions of the poor’s access to shelter, money, and food. In this way, formal equality exacerbates inequalities in realized power by making the poor more vulnerable to being tools of the wills of the wealthy. This is how you’ll find that formal legality can offer the appearance of neutrality, even as it gives state support to standing asymmetrical power relationships.

(One reason oligarchs appreciate constitutional regimes is because those regimes preserve property rights. As a rule, oligarchs aren’t in favor of equality before the law; however, they are in favor of the state protecting legally calcified inequalities expressed in antecedent property arrangements.)

Another way that the appearance of neutrality in the legal sphere covers injustice is the illusion that in the process of judging an instance as legal or illegal, judges merely apply a law to an event. But it turns out that judging is a much more active process. One of the most famous critical theorists, Immanuel Kant, appreciated how events come to us as a manifold of sensations and the mind works to categorize them, and what we judge the event to be is a product of the mind’s work resulting in how the event appears in mind, but not some apprehension of how the events are in themselves. In contemporary legal cases, the verdicts aren’t merely determined by facts external to the judges’ minds, since the diversity of facts and precedents can support multiple legal determinations. Judges pick and choose from among a welter of facts and decide which ones to give authority, and the institutional concerns that govern their choices are not merely a matter of law. In this way, if you want to understand verdicts and the legal system, you have to understand how the legal system functions as a source of interest for social and political institutions, and how those social and political institutions sustain themselves by exerting power over the legal system’s operations. If you want to understand how the legal system operates regarding race, you have to understand all of the institutions that have an effective interest in the legal determinations arrived at through the judiciary where race is involved.

The illusion that abstract formalism gets at truth is part of the hustle. Rather, it assumes an unfounded parity regarding the content of the participants, the same way ignoring the weight differentials between the boxers presumes an unfounded parity among boxers. In adopting legal formalism, “the Court effectively made a choice to ignore historical patterns and contemporary statistics” and the fact that race “in fact has power and advantages”. (pg. 74 in the Derrick Bell Reader)

Critical Race Theory

Derrick Bell, one of the most influential Critical Race Theorists in the tradition, argues that the Brown v. Board of Education verdict was the product of a convergence of interest between Black communities who wanted better resources for their schools, and White elites who were fighting the Cold War. The elites saw that Jim Crow legislation degraded the moral authority of America’s anti-Communism efforts. Furthermore, in order to be seen as a model for poorer nations, the US had to cover its more distasteful cultural practices, including anti-Black racism. (For more information about this, look for Mary L. Dudziak’s article “Desegregation as a Cold War Imperative”)

For Bell and Dudziak, the failure to contextualize the relevance of the Cold War for the Brown verdict is akin to the failure to contextualize the differences in the boxers’ weights in evaluating the match. The result is a fundamental distortion of what the event is and what it means.

The primary intervention of Critical Race Theory is in showing the inadequacies of formal legal, political, family, religious, economic, education disciplinary methods, and CRT looks to see how all of these disciplines function as a mutually reinforcing system around race. Forget what you think you know about race and law, and look to see how race actually functions in legal outcomes and the institutions that use those legal outcomes. Forget what you know about families, and look to see how race actually functions in kin selection and resource flows. Forget what you think you know about race and formal economics, and look to see how race actually functions in labor, contracting, and real estate markets.

(By the way, if you find yourself in conversation with someone who reduces race to class, just remind them that race may figure in as a form of property for property-less Whites (and an insurance policy for marginal Whites), which means that racial justice devalues the asset value of their Whiteness.)

There is your material account of how racism won’t be redressed by class based policies, unless those class-based policies are calibrated to address the asset value of Whiteness and the liability value of Blackness.

You can formally ban neighborhood segregation, but if you don’t change the material incentives for real estate agents, and the context within which the agents are incentivized to placate the comfort of racist buyers, then the results will be the same. Or if an exclusive, White country club formally opens its membership to non-White members, that doesn’t mean anything if the membership and agenda are determined by the recommendations of legacy members venerated for their fealty to older traditions.

If you take nothing else from this little explainer, understand that Critical Race Theory introduces the intervention that the results of formal methods of evaluation can abstract relevant, constitutive aspects of the objects of inquiry by ignoring how these objects function in the family, social, and political institutions that have an interest in these objects. Also, consider how the formal method, and its promise to be able to handle all content, is itself an historical artifact that was contrived to cover decisions about how to include or exclude relevant factors in family, social, political, and legal judgments. Lastly, the intervention that Critical Race Theory offers is the notion that the best way to evaluate race in social relations is to see how race actually functions in existing social relationships, rather than get wrapped up in the myth of our institutions without looking to how they actually reproduce systems of racial stratification.

The wholesale acceptance of racial stratification is partially the result of us blithely accepting formal methods that distort the operations of our most meaningful institutions, and Critical Race Theory is an avenue, by explicitly calling us to attend to the functional context of our institutional behavior, to become conscious of and redress many of our world’s ills.

The Critical Race Theory Backlash

Since racism in the United States is a system of mutually reinforcing institutions, any serious anti-racist campaign is going to be, and be seen as, an affront to each of those institutions in their specificity. White supremacists who identify as primarily family members will see it as an attack on the White family. White Christians who identify as primarily Christians, will see it as an attack on the White church. White educators who primarily identify as educators will see it as an attack on the White school system. White legal lawyers, etc. The thing is, all of these specific institutions have been formed in a way that supports anti-Black racism, so their everyday operations will be affected.

Just remember, the picture of the anti-CRT crowd here:

is the cultural descendant of this picture:

For more resources on Critical Race Theory, check out The Derrick Bell Reader and Critical Race Theory: An Introduction both edited by Delgado and Stefancic.

 by the author.




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Irami Osei-Frimpong

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