Critical race theory began as a scholarly movement in the early 1970s because of the writings of an African American civil rights lawyer Derrick Bell who presented a theory to understand Western racial history as well as the conflict of interest in civil rights litigation (Delgado & Stefancic, 1998, p. 467). As years passed new critical themes to this theory were presented by critical scholars such as; Delgado, Matsuda, and Crenshaw who discussed interested convergence, while focusing on the social construction of race and the critique of liberalism and critical legal studies (Delgado & Stefancic, 1998). This paper will examine the history of critical race theory; I will argue that the key components of this theory are legal liberalism and the basic tenets of critical race theory (Delgado & Stefancic, 2017). I will also be critically examining the key debates and elements of the sociological theory of intersectionality and anti-essentialism (Hodes, 2017).
The analysis of the critical legal studies movement has led scholars to the birth of critical race theory (Aylward, 1999). Theorists of critical legal studies have analyzed the five tenets of legal liberalism which include; the rule of law, formalism, neutrality, abstraction, and individual rights (Aylward, 1999). The rule of law believes that the government should be bound by laws without distinction in their application to certain individuals or groups (Aylward, 1999). The critical legal studies movement challenges this concept by stating that the rule of law is a “myth” as it is used by those in power to oppress others in society to preserve the existing status quo (Aylward, 1999, p. 20). The concept of formalism is founded upon the basis that legal rules create a consistent whole from which the answer to any legal questions can be logically analyzed by finding the applicable rule and implementing it to the facts of the case (Aylward, 1999, p. 21). While neutrality is upheld by liberals and it focuses on the conflict that laws are not founded on any group's understanding of moral right or good (Aylward, 1999). For example, this concept allows groups of power in society to control the definition of the political ideas of the good based on theories of domination and their own political biases (Aylward, 1999, p. 22). Legal liberalism also focuses on individual rights because it believes that the state and law should work to give the citizens as much space as possible to follow their self-interests without being held back because of their identity (Aylward, 1999). These tenets are important to understanding the relationship between law and society because, through critical legal studies critique of legal liberalism, we can acknowledge how rights regulate society’s unequal arrangements of power to create injustice (Aylward, 1999). Scholars of color like Kimberle Crenshaw were drawn to critical legal studies because it was a movement that ignored the realities of colored people and how they were obliged to live in a society constructed and controlled by others (Aylward, 1999).
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The critical race theory movement when blacks and scholars of color attended the 1986 Conference on Critical Legal Studies annual meeting in Los Angeles held by organizers who picked race and racism as the core theme (Delgado & Stefancic, 1998). Many of the scholars felt colored people were divided from legal discourse and Richard Delgado who attended the conference voiced his beliefs on the failure of critical legal studies discourse (Aylward, 1999). He critiqued this movement by stating that it did not pay attention to minorities and that it was unrealistically idealistic because it held society back through racism, threats, and indifference (Aylward, 1999). At the core of critical race theory is that legal discourse does not properly take into account the reality of race and racism and it has neglected the truth of how the law “is both a product and a promoter of racism” (Aylward, 1999, p. 30). Delgado sets out the basic tenets of critical race theory as well as analyzes the key elements that critical race theorists believe (Delgado & Stefancic, 2017). First, is that racism is ordinary and is a common everyday experience for most colored people (Delgado & Stefancic, 2017). This feature argues that racism is hard to address since it is not recognized but it also expresses that color-blind and formal conceptions of equality can provide a remedy to obvious modes of discrimination (Delgado & Stefancic, 2017). The concept of racism is a way for society to assign privilege and status through racial hierarchies to decide who gets the best benefits, jobs, and schools (Delgado & Stefancic, 2017). Through the eyes of liberals, the idea of color blindness is evident in society and they believe in equal treatment for all no matter what their history or current situation is (Delgado & Stefancic, 2017). The idea of racial integration over racial separation enforces formal equal chances through a policy such as color-blindness (Aylward, 1999). Color-blind constitutionalism is critiqued by many scholars and it is said that to move past racial beliefs, we need to be race-conscious (Aylward, 1999). An example of color-blindness is within the law presented in Supreme Court opinions which state; “that is wrong for the law to take any note of race, even to remedy a historical wrong” (Delgado & Stefancic, 2017, p. 27). The problem is that if there is racism fixed in our thought and social structures then the practices and institutions within society that citizens and the law rely on will keep minorities in inferior positions (Delgado & Stefancic, 2017). A second feature is that our system functions as white over color to serve the dominant group (Delgado & Stefancic, 2017). The second element can be described as interest convergence or material determinism because racism pushes forward the interests of white elites and working-class whites. An example that is used to describe this feature is Derrick Bell’s idea that Brown v. Board of Education is seen as a triumph of civil rights litigation which emerged from the self-interest of elite whites rather than from an eagerness to help black people (Delgado & Stefancic, 2017). Interest convergence connected to Bell because he argued that civil rights advances for black people seemed to be aligned with changing economic conditions and the self-interest of elite whites (Delgado & Stefancic, 2017, p. 22). When the case of Brown was decided in American it was during the end of their role in World War 2 and many black servicemen and women had to come back home after fighting against fascism (Delgado & Stefancic, 1998). For the first time, these soldiers came home to the United States thrived cooperation and survival took priority over racism (Delgado & Stefancic, 2017). This case was important not only for socio-legal studies but for critical race theorists to have it integrated into understanding the ins and outs of minority legal history especially those of Latinos (Delgado & Stefancic, 2017). This was a case of interest convergence because it came at a time to boost America’s self-image to show its allies that they were creating racial progress (Delgado & Stefancic, 1998). The third key component is the social construction that upholds that race and race are the results of social thought and relations (Delgado & Stefancic, 2017). This feature allows us to understand that races are categories that society creates, manipulates, and resigns when beneficial (Delgado & Stefancic, 2017). Societies ignore the scientific truths that people who share common physical traits like skin color do not play a role in higher traits like personality and intelligence (Delgado & Stefancic, 2017). The legal construction of race emerges out of cases like Hernandez v. State in which Mexican-Americans were constructed as white. In this jury participation case, a Chicano was convicted of murder and wanted to reverse his conviction on the basis that Mexican Americans like himself were excluded from the jury (Delgado & Stefancic, 1998). The court did not want to see that Mexican Americans were a non-white group and since the Hernandez jury contained numerous white members he was therefore not being denied a fair trial (Delgado & Stefancic, 1998). Chicanos are a primary example whose identity plays a role in troubling the legal system while the law takes part in constructing the white race (Delgado & Stefancic, 1998).
The concepts of intersectionality and anti-essentialism are key themes in critical race theory literature and focus on the role of categories in assigning power and authority (Delgado & Stefancic, 1998). Many critical scholars have been utilizing the intersectional and anti-essentialist analysis to study how race, class, and other categories associate with each other (Delgado & Stefancic, 1998). The notion of anti-essentialism stems from acknowledging the role of small groups like black women within larger ones that work for social change such as the feminist movement (Delgado & Stefancic, 1998). Many women of color have occupied white feminism because of the absence of colored women and giving them a voice (Crenshaw, 1995). Through the anti-essentialist analysis, feminism essentializes the category “woman” and gives credit to the postmodernist belief that categories we see as natural are in reality socially constructed (Crenshaw, 1995, p. 375). The term intersectionality on the other hand was formulated by Kimberle Crenshaw in 1989 to signify the numerous ways in which race and gender interact to shape the many dimensions of Black women’s experiences (Crenshaw, 1995, p. 358). Critics like Carol Aylward (2010) believe that this concept is “an offshoot of critical race theory which originated with Black and other scholars of color who felt that existing legal discourse was alienating to all people of color” (Hodes, 2017, p. 72). Crenshaw acknowledges that intersectionality allows us to understand the relationship between law and society as it is used as a metaphor to interrogate everyday social life as well as appear within legal jurisdictions (Hodes, 2017). This concept has become the groundwork of feminist theory as it has been applied to the idea of how the intersection of race and gender operate separately within anti-discrimination law (Hodes, 2017). She argues that anti-discrimination law will work to recreate the essentialism and violence that intersectional resistance tried to obstruct (Hodes, 2017). Crenshaw’s work is significant in socio-legal studies as she lays out what happens to intersectionality when it is present in the court of Canada (Hodes, 2017). Through legal and social policy in the U.S. and Canada, intersectionality functions as a tool of diversity management with intersecting categories (Hodes, 2017). These intersecting identity categories of race and gender or race and sex create different experiences of discrimination (Hodes, 2017). The violence that women face is shaped by their identity for example, “many women of color are burdened by poverty, childcare responsibilities, and the lack of job skills” (Crenshaw, 1995, p. 358). This is a form of structural intersectionality in which the intersection of race and gender makes experiences of domestic violence, rape, and poverty different from one of a white woman (Crenshaw, 1995). Within Crenshaw’s research she focuses on the methods of identity construction, which is needed by the grounds approach within Canada (Hodes, 2017). This approach states the different categories of identity have become a set of fixed physical characteristics, which further creates a fact of being (Hodes, 2017). The rules that create the context of the grounds approach alter anti-discrimination claims into interpretations of colonial modernity through the application of Lockean principles about the body and identity (Hodes, 2017, p. 73). The conception of identity carries ontological beliefs, which are mirrored by John Locke’s thoughts about difference and diversity (Hodes, 2017). Locke argued the significance of categorizing identity and that identity was used to define something that is confined inside the body (Hodes, 2017). These ideas of the body and categories are crucial to earlier expressions of intersectionality in Canadian law (Hodes, 2017). She also discusses the additive approach presented by Kamini Steinberg (2009), which produces a hierarchy of oppression in which claimants experience more types of discrimination (Hodes, 2017). Steinberg’s approach contradicts Crenshaw’s later analysis of discrimination that cannot be discussed through the separation of identity categories or types of oppression (Hodes, 2017). Kamini Steinberg pays attention to the application of intersectionality by arguing the need for more comprehensive analysis within Canadian courts (Hodes, 2017). An example of identity construction in Canadian courts is the McIvor case, which challenges Bill C- 31’s amendments to the Indian Act as it did not include both sex and race as means of discrimination (Hodes, 2017). This anti-discrimination case is not only founded on the cruelty of settler colonialism but of sex discrimination between men and women (Hodes, 2017). For example, women who had Indian status but married non-Indian men would lose their status meanwhile Indian women who got married to Indian men would obtain status (Hodes, 2017, p. 75). The Indian Act creates rules that control identity formation in Canadian anti-discrimination law due to the patrilineal descent rules that were to assimilate Aboriginal people into Canadian society (Hodes, 2017). Through these cases, it becomes evident that in Canadian anti-discrimination law, to be more than an identity it becomes a fault that needs to be studied through scientific inquiry (Hodes, 2017, p. 76). This needs to be further examined because identity becomes a prison for the body (Hodes, 2017). Intersectional analysis is significant in socio-legal studies because it allows us to understand the multiple systems of oppression and the various identities that place people in diverse social groups (Crenshaw, 1995).
Works Cited
- Aylward, C. A. (1999). Critical Race Theory. In Canadian critical race theory: racism and the law (pp. 19-49). Retrieved from https://books.scholarsportal.info/uri/ebooks/ebooks0/gibson_crkn/2010-12-16/1/10192244
- Crenshaw, K. (1995). Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color. In K. Crenshaw, N. Gotana, G. Peller & K. Thomas (Eds.), Critical Race Theory: The Key Writings That Formed The Movement (pp. 357-383). New York, NY: The New Press.
- Delgado, R., & Stefancic, J. (1998). Critical Race Theory: Past, Present, and Future. Current Legal Problems 51(1), 467-491. Retrieved from https://doi-org.ezproxy.library.yorku.ca/10.1093/clp/51.1.467
- Delgado, R., & Stefancic, J. (2017). Basic Tenets of Critical Race Theory. Critical Race Theory (3rd ed., pp. 8-11). New York, NY: New York University Press.
- Delgado, R., & Stefancic, J. (2017). Hallmark Critical Race Theory Themes. Critical Race Theory (3rd ed., pp. 19-39). New York, NY: New York University Press.
- Hodes, C. (2017). Intersectionality in the Canadian Courts: In Search of a Decolonial Politics of Possibility. Atlantis 38(1), 71-81.
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