In our last post, we considered Dr. Trueman’s claim that CRT “relies on the concept of false consciousness—the notion that the oppressors control society so completely that the oppressed believe their own interests are served by the status quo,” concluding that CRT has taught much the opposite. We further suggested that Trueman might be succumbing to the same Eurocentric reading of the Civil Rights inspired critical tradition that led CLS to “trash” rights discourse. The unique voice of color, due to “double consciousness,” was suggested as remedy.
Today we move onto his fourth claim. (I will note that these posts are intended to be read in order; please see Part 1 for the general introduction to the series.)
(4) “Critical race theory is the Marxist horse, ridden by the jockey of identity politics rather than the jockey of class warfare”; that is, CRT simply replaced the role of “class” in Marxism with “race” (as Trueman’s offensive Mao example is supposed to illustrate).
Carl Trueman’s claim here is all too familiar to CRT theorists. One of the first major critiques of CRT came from within the ranks of Critical Legal Studies (CLS), the movement from which CRT emerged in the late 1980s, and it was precisely this claim.
CLS and “Vulgar Marxism”
According to CLS scholars, the law—including the legal code, court holdings, and ongoing discourse—is not best understood as a stable and transcendent arbiter of Justice which only needs to be technically and scientifically applied. It is, rather (1) “an evolving statement of acceptable public morality” that, (2) “serves largely to legitimize the existing social structure,” (3) is indeterminate, “for virtually every ‘rule’ there is a counter-rule, an exception, of some other lawyerly gambit available to the legal question at issue in equipoise,” and, therefore, (4) judicial decisions’ “ultimate constraints are outside the legal system,” viz., are cultural, sociological, psychological, institutional, moral, etc. (for points 1, 2, and 4, see “Legitimizing Racial Discrimination Through Antidiscrimination Law,” p. 1051; for point 3, see “Some Realism About Critical Legal Studies,” p. 513).
Accordingly, CLS scholars openly rejected what many called “vulgar Marxism” (“scientific Marxism,” “traditional Marxism”)—that is, the Marxism of Marx himself—class essentialism, the “base”/“superstructure” paradigm, historical, material, and economic determinism, a strict labor theory of value, and the like. Richard Michael Fischl voiced a common CLS sentiment in the 1980s:
Many of us do work in an intellectual tradition in which Marx plays an important role; indeed, his core insight that human belief systems are social constructs is the starting point for much modern social theory. But that hardly makes us Marxists. Indeed, to the extent that that reckless charge suggests that we favor totalitarianism and/or thought control, it describes a set of ideological commitments that are the polar opposite of those held by CLS. (“Some Realism About Critical Legal Studies,” p. 530)
But most importantly for our purposes, they rejected Marx’s supposedly “instrumental” understanding of law. In Karl Marx’s own words:
My view is that each particular mode of production, and the relations of production corresponding to it at each given moment, in short ‘the economic structure of society’, is ‘the real foundation, on which arises a legal and political superstructure and to which correspond definite forms of social consciousness’, and that ‘the mode of production of material life conditions the general process of social, political and intellectual life.’ (as quoted by Duncan Kennedy, “The Role of Law in Economic Thought,” p. 979)
Marx argues from history that the means of production—tools, materials, labor—determine the mode of production, i.e., the organization of labor and productive methods, like slavery, feudalism, capitalism, socialism, etc. Further, the “ideology” or “superstructure” of social existence is both born of and determined by this “base,” the mode of production. Thus, religion, philosophy, science, mathematics, and art all exist as necessary products of the mode and organization of production in one’s given place in history. And this, as Marx states above, includes law. The legal structure itself “arises” from “the real foundation,” the current mode of production: capitalism, including for Marx the dialectic of class warfare. To put it very crudely, the law is a mere “instrument” or tool of bourgeois interests.
CLS Objections to “Instrumentalism”
1. The Indeterminacy of Law
One obvious objection to this instrumental view, on CLS assumptions, is that the law is simply too indeterminate to function as a determined instrument or tool of any group’s interests.
Most of us no more believe that economic power “determines” the law than we believe that legal reasoning determines it; indeed, a rejection of such vulgar Marxist determinism is a major contribution of CLS scholarship to progressive legal thought. (Fischl, p. 530)
Or in CLS scholar Mark Tushnet’s words,
Most Marxists seem to want to say that a rule of law … serves class interests. Yet the legal realists taught us that there never was a [legal rule] that could be a dependent variable to be explained in terms of its links to the economic base. There were and always are rules and counterrules, rules with exceptions of such scope as to threaten the rule itself, rules whose force can be eliminated by drawing creatively on analogies to apparently unrelated areas of law, and so on. (“Marxism as Metaphor,” p. 281)
2. The Circularity of Instrumentalism
Next, a second objection to Marxist instrumentalism opens up a much deeper discussion, a discussion that directly relates to our own. Tushnet explains this common CLS objection as well:
How can one simultaneously believe all of the following propositions to be true: (1) The base determines (in some strong or weak sense) the superstructure; (2) law is an element of the superstructure; (3) the base consists of the relations of production; and (4) relations of production are defined in terms of ownership of the means of production? Legal terms seem to constitute the base, but that is what supposedly determines them. (p. 285)
In other words, the mode/relations of production, including class structure, cannot be constitutive of the law because the law is itself constitutive of the relations of production and class structure. Marxist instrumentalism is viciously circular. Tushnet uses the example of “ownership” to explicate:
In its simplest version, the problem arises because class relations are defined in terms of which class owns the means of production, and, yet, ownership is a legal category that takes on its meaning only because of its relation to all other available legal categories. Law thus seems to define or constitute class relations, in which case it is circular to say that the relations of production somewhat determine the law. (p. 281)
3. There Can Be No Jockey
But this second objection hinges on a third much broader objection—an objection that gets right to the heart of what makes CLS what it is. To use Trueman’s metaphor, CLS objects to the very existence of a jockey. Not only does CLS reject the idea that “law appears as merely an instrument of class interests that are rooted outside of law,” but CLS rejects the claim that law can be understood as an “ideological reflection” of any “concrete social reality” rooted outside of law (Crenshaw et al., Critical Race Theory, p. XXIV). According to CLS scholars, any possible jockey is itself constructed by law and legal discourse, in conjunction with other socio-political factors, and therefore cannot serve as a “base” to any “superstructure”; that is, they rejected any form of instrumentalism, adopting social constructivism in its place.
Many critics sought to distinguish themselves from these “instrumentalist” accounts on the grounds that they embodied a constricted view of the range and sites of the production of social power, and hence of politics. By defining class in terms of one’s position in the material production process, and viewing law and all other “superstructural” phenomena as merely reflections of interests rooted in social class identification, vulgar Marxism, crits argued, ignored the ways that law and other merely “superstructural” arenas helped to constitute the very interests that law was supposed to merely reflect. (p. XXIV; emphasis mine)
For CLS—as for the critical theory of race which emerged from CLS—“the legal system is not simply or mainly a biased referee of social and political conflict whose origins and effects occur elsewhere”; rather, “the law is shown to be thoroughly involved in constructing the rules of the game, in selecting the eligible players, and in choosing the field on which the game must be played” (p. XXV). Neither class, nor gender, nor race, etc., exist “out there,” “outside of or prior to law,” such that law and other “superstructural arenas” might be understood as mere instruments of these socio-politico identitarian interests.
CLS Levels the “No Jockey” Objection to CRT
In the early stages of CRT’s development, CLS scholars leveled this very attack on “race-crits” as the latter began to question the very White, wealthy, male perspectives of the Conference on Critical Legal Studies, suggesting that race and racism needed to be included in fundamental discussions of legal theory. In response, some CLS scholars accused these emerging race-crits of both “essentialism”—the idea that “race” exists as a natural fact apart from law, and “racialism”—the idea that complex legal and social phenomena can be explained as mere reflections of the “fact” of race, with “White interests” jockeying in place of “class interests.” In other words, CLS scholars early objected that CRT simply offered a new rider for the same Marxist horse, viz., “racialism,” a force and entity outside of and unconstrained by law and other “superstructural” elements, functioning much as Marxists had hoped class would.
CRT’s Response to CLS’s Objection
1. The Social Construction of Race
As CRT scholars worked to reject this charge, to disabuse their fellow legal scholars of their misunderstanding, they were forced to become very clear on their understanding of race, racism, and law. In fact, this dispute was formative for CRT. Their principal response was to argue that they had not, in fact, presumed “race” to be a natural fact, separate from the constitutive nature of law, such that race could thereby be used as an independent means to explain legal phenomena. Crenshaw, et al. explained:
[W]e began to think of our project as uncovering how law was a constitutive element in race itself: in other words, how law constructed race. Racial power, in our view, was not simply—or even primarily—a product of biased decision-making on the part of judges, but instead, the sum total of the pervasive ways in which law shapes and is shaped by “race relations” across the social plane. Laws produced racial power not simply through narrowing the scope of, say, of antidiscrimination remedies, nor through racially biased decision-making, but instead, through myriad legal rules, many of them having nothing to do with rules against discrimination, that continued to reproduce structures and practices of racial domination. In short, we accepted the crit [CLS] emphasis on how law produces and is the product of social power and we cross-cut this theme with an effort to understand this dynamic in the context of race and racism. (p. XXV)
Thus, CRT scholars leveraged CLS’s rider-less critique to understand race and racism; they did not essentialize “race” and “racism” to serve as “base” to Marx’s “superstructure.” In fact, central to CRT is the premise that race is legally and socially constructed—one of the commonplaces noted in Part 1 of this miniseries.
CRT scholar Devon Carbado explains well:
CRT rejects the view that race precedes law, ideology, and social relations. Instead, Critical Race Theorists conceptualize race as a product of law, ideology, and social relations. According to CRT, the law does not simply reflect ideas about race. The law constructs race: Law has historically employed race as a basis for group differentiation, entrenching the idea that there are “in fact” different races; law has helped to determine the racial categories (e.g., Black, White, Yellow) into which institutions and individuals place people; law sets forth criteria or rules (e.g., phenotype and ancestry) by which we map people into those racial categories; law has assigned social meaning to the categories (e.g., Whites are superior; Blacks are inferiors; Japanese Americans are disloyal); law has employed those meanings to structure hierarchical arrangements (e.g., legalized slavery for inferior people (Blacks) and legalized internment for people who are disloyal (people of Japanese descent)); and those legal arrangements, in turn, have functioned to confirm the social meanings that law helped to create (e.g., the people who are enslaved must be inferior; that is why they are enslaved; the people who are interned must be disloyal; that is why they are interned). (“Critical What What,” p. 1610)
In sum, along with CLS, Critical Race Theory has rejected vulgar Marxism. Accordingly, CRT has likewise rejected the jockey. Central to CRT is the assertion that race is legally and socially constructed, not an independent “out there” natural entity capable of “riding” a “Marxist horse.” And, in reality, a jockey-less Marxism is really no Marxism at all, just a long tradition of critical social theory employed by theorists from many different socio-political perspectives.
Finally, the concept of Intersectionality, another central component of CRT, further troubles Trueman’s characterization. According to Patricia Hill Collins,
intersectionality references the critical insight that race, class, gender, sexuality, ethnicity, nation, ability, and age operate not as unitary, mutually exclusive entities, but rather as reciprocally constructing phenomena. (“Intersectionality’s Definitional Dilemmas,” p. 1; emphasis mine)
The fact that, for example, neither race, gender, nor class can alone determine anyone’s social location implies that either every possible group identity combined in every possible way rides Trueman’s horse, or—and with equal legal and sociological value—none at all. According to intersectionality, race alone cannot be the jockey, for race is inescapably gendered and classed; gender likewise cannot be the jockey, for gender is inescapably raced and classed; etc. None of these possible social identities, according to CRT, nor any combination of them, exist “out there” as “facts” independently capable of explaining complex legal and social phenomena. None are capable of operating as Marx’s “base” to Marx’s “superstructure.” They are, as Collins suggests, “reciprocally constructing phenomena.”
Adding this component to the above discussion leaves me confident that Dr. Trueman was more than likely just taking a pot-shot, engaging in the time-honored tradition of Red Scare, with very little attention to—or maybe even interest in—what Critical Race Theory actually is.
Next time we will consider Trueman’s fifth claim, “Critical race theory rests on simple, therapeutic premises,” including that life is a “zero-sum game”: “Some people do not have power. They struggle and do not flourish. This happens because somebody else has seized power from them and oppresses them in an ongoing and unrelenting way.”