Critical Race Theory

Background

In the aftermath of the initial burst of change that sprang from the civil rights movement of the 1960s, a movement of like-thinking scholars, many of them scholars of color, began arguing that law and power could not be separated and indeed must be examined in conjunction to gain a true understanding of legal policies and procedures. This led to an examination of how race and racial power are constructed and represented in American culture. As many of the initial scholars who examined these issues were from law schools, the movement initially concentrated upon the deep structure of categories and tensions at play in legal texts. Adopting methods used in other disciplines, such as structuralism in linguistics or deconstruction in philosophy, the field of critical legal studies (CLS) developed to explore how best to examine intuitive and formal ways of reasoning, to make these explicit, and to determine both their meaning and relative merit.

In many ways, the roots of CLS can be traced to American legal realism, a school of political philosophy that emerged in the early 20th century to challenge classical legal thought. Unlike the traditional belief that legal institutions made available an autonomous and self-executing system of law untainted by politics, proponents of American legal realism embraced the moral, political, and social conflicts that comprise the legal field. Indeed, the American legal realism movement insisted that the legal system was anything but neutral, apolitical, and impartial. This greatly influenced other schools of thought related to social theory. The Frankfurt school, for example, centered on the beliefs of neo-Marxists, who disagreed with the dogma embraced by traditional communist parties and traditional capitalism and sought an alternative explanation of social development. CLS borrowed the process of looking at many issues through the lens of “enforced opposites,” such as control and freedom, objective and subjective, and private and public. Such binary pairs force the examination of both the meaning and the relative value of each of the constructs.

CLS has not produced a single, monolithic narrative but instead has generated a series of common themes that permeate the literature. Adherents of the CLS school assert that wealth protects individuals and organizations against the demands of the poor and those in subordinate positions, such as women, the disabled, ethnic minorities, indigenous peoples, gay/lesbian/bisexual/transgendered individuals, and the like. Second, CLS explores how legal documents, such as statutes and case law, do not alone determine the outcome of legal disputes but asserts that outside influences place significant constraints upon judges and juries. Third, CLS embraces the concept that all law is politics and that many statutes and legal decisions focus on constructing and maintaining a certain type of social order. Fourth, CLS forces an examination of many of the law's central assumptions, suggesting that individual petitioners lack full agency but instead act or fail to act because of certain economic, political, or social constraints as they remain tied to class, communities, gender, race, and other life conditions. Finally, CLS sometimes maintains that the law produces a series of rules that are inherently contradictory, based on the opposition between the preference for strict rules that protect individuals and the need for broad standards that provide flexibility. All of these themes have influenced CRT.

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