Bradly Mason

Is Critical Race Theory (CRT) Marxist? I see this claim multiple times per day. On the one hand, there’s a sense in which nearly every modern social theory is working within a loosely “Marxist” sociological tradition; sociology itself is the intellectual legacy of, primarily, Karl Marx, Max Weber, and Émile Durkheim. On the other hand, Marxist social theory is far removed from Marx’s own metaphysical, economic, and political ideology—not to mention far removed from Leninism, Stalinism, or Maoism. Further, and as an added complication to answering this question, CRT scholars simply don’t write much about Marx or Marxism, despite being treated like his ideological puppets.

Nevertheless, there is a sense in which contestation with Marxism in the arena of law was formative in the development of Critical Race Theory. But in order to properly tell this story, and hopefully answer our question in the process, it is first necessary to understand how Critical Legal Studies (CLS) related to Marxism; for, as we’ve discussed elsewhere, Critical Race Theory might best be understood as a “spin-off” of CLS, having been distinguished as an unique movement by its alignment and misalignment therewith. In the words of Kimberlé Crenshaw,

CRT came to life in the cracks between alignment and misalignment. Early Race Crits were situated in a dialectical loop, attracted to and repelled by certain elements of liberal civil rights discourses, and at the same time, attracted to and repelled by certain discursive elements within CLS. … CRT emerged not only as a critical intervention in a particular institutional contestation over race but also as a race intervention in a critical space, namely CLS. (“Twenty Years of Critical Race Theory: Looking Back to Move Forward,” pp. 1287 – 1288)

Therefore, to properly understand CRT’s relation to Marxism—especially given the paucity of information on Marx in CRT literature—we must begin with CLS’s much more extensive grappling with Marxism in the realm of law.

CLS and Marxism

Contrary to many popular-level opinion makers, CLS scholars openly rejected what many called “vulgar Marxism” (“orthodox,” “traditional,” “scientific” 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, etc. 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 “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 argued 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—specifically, capitalism, including for Marx the dialectic of class warfare. To put it very crudely, the law, according to Marxism, is a mere “instrument” or tool of bourgeois interests.

CLS’s Critique of Marxism and Law

The most obvious objection, leveled by CLS scholars, to this Marxist instrumental view was that the law is simply too indeterminate to function as an instrument or tool of any group’s interests, bourgeois or otherwise.

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. (“Some Realism About Critical Legal Studies,” p. 530)

Second, CLS charged Marxist instrumentalism with circularity. CLS scholar Mark Tushnet outlines this next objection 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. (“Marxism as Metaphor,” 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)

But this second objection hinges on yet a third—an objection that gets right to the heart of what makes CLS what it is. 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 “fact” of social reality 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, CLS not only rejected Marx’s instrumentalism, CLS rejected Marxism’s underlying essentialism, viz., the idea that any social entity or identity exists as a natural fact independent of law. The law, for CLS scholars, is in part constitutive of class, gender, race, etc., and therefore can never be understood as mere instrument.

Many critics sought to distinguish themselves from … “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, “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. Both the “base”/“superstructure” paradigm and the essentialism which undergirded it were thereby rejected by CLS, not as a side note, but as formative to its legal ideology.

CLS’s Critique of Marxism Leveled on CRT

In the very beginning stages of Critical Race Theory’s development, CLS scholars offered this same set of objections to the emerging of “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 “race 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.

[S]ome CLS adherents were resistant to interrogating not only the fact that, as a formation, CLS was primarily white and male but also the extent to which that demographic representation was itself a sign of the pervasive nature of racial power. This dispute over race was particularly pronounced in a CLS conference held in 1987, the “Sounds of Silence” conference, in which scholars of color sought to center race as a set of questions within CLS and highlight the relationship between race and the rule of law as a crucial site of intellectual intervention. The convening produced both further debate and several articles by the emerging race crits about both the salience of race in law and social policy and its erasure in liberal legal ideology. The reaction of some CLS critics reflected their initial “framing of early CRT work as racialist.” This framing at least implicitly suggested that CRT was essentialist in that CRT scholarship reduced “complex phenomena” into a “simple reflection of some underlying ‘facts.’” (Devon Carbado and Cheryl Harris, “Intersectionality at 30: Mapping the Margins of Anti-Essentialism, Intersectionality, and Dominance Theory,” p. 2213)

Thus, some CLS scholars leveled the very same attack against the emerging critical theory of race that they had wielded against Marxist instrumentalism.

To critics of racialism, prevailing theorizations of race and law seemed to represent law as an instrumental reflection of racial interests in much the same way that vulgar Marxists saw the legal arena as reflecting class interests. (Critical Race Theory, p. XXV)

“White interests,” according to CLS critics, simply took the place of “class interests” in Marx’s instrumentalist, essentialist, system.

CRT’s Formative Response

As CRT scholars worked to disabuse their fellow critical scholars of this misunderstanding, they were forced to become very clear on their understanding of the nexus of race, racism, and law. In fact, this dispute was formative for CRT; “the critique of racialism did help clarify what was ‘critical’ about our race project” (p. XXV). 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 anti-essentialist critique in order to understand race and racism; they did not essentialize “race” and “racism” to serve as “base” to a Marxist “superstructure.” In fact, central to CRT is the premise that race is legally and socially constructed. 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 began as a fundamental rejection of vulgar Marxism. CRT likewise rejected essentialism—or at least “aspired” to, according to Devon Carbado (there is another whole discussion to be had around “vulgar anti-essentialism”). Central to CRT is the assertion that race is legally and socially constructed, not an independent “out there” natural entity capable of serving as “base” to a social and legal “superstructure.”

Additionally, following Kimberlé Crenshaw’s groundbreaking “Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color,” early race-crits also leveraged the concept of Intersectionality against the charge of essentialism—at least as the charge was presented by CLS scholars. 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 serves as the independent “base” for law and society, or—and with equal legal and sociological value—none at all. According to intersectionality, race alone cannot serve Marx’s essentialist, instrumental function, for race is inescapably gendered and classed; gender likewise cannot serve this function, for gender is inescapably raced and classed; etc. None of these possible social identities, according to race-crits, nor any combination of them, exist “out there” as “facts” independently capable of explaining complex legal and social phenomena. None are capable of serving as “base” to Marx’s “superstructure.” They are, as Collins suggests, “reciprocally constructing phenomena.”

CRT is a Properly Critical Project

More appropriately, both CLS and CRT scholars saw themselves as working within the sociological “Critical Marxist” tradition of György Lukács, Karl Korsch, and the Frankfurt School, as opposed to the philosophical, economic, and political “Scientific Marxist” tradition of the Communists. And rightly so. Historically speaking, the enduring contribution of Karl Marx—that which places him among Weber and Durkheim as the fathers of sociology—was not his specific critique of capitalism, his communist eschatology, or his class dialectic anyhow, but rather his historical materialist critique of the whole; that is, his critical method. Rather than look to this or that injustice or social ill, Marx examined the whole social order from its material roots. As one sees poverty, war, subjugation, oppression, whatever, the cause and solutions are not ultimately to be found in ideology per se, nor even in the believed and stated motivations of social actors, but in the underlying system of relations operating at the brass-tacks level of human existence—the “ensemble of social relations.” Eating, one might say, precedes ideology. But unlike traditional Marxists, Critical Theorists rejected Marx’s specific linear, deterministic explanation of the ills of social life, viz., that the means of production necessarily determine the mode of production which together necessarily produce the “ideology” or “superstructure” of social existence, all inexorably propelled along through history by an essentialist class dialectic.

Max Horkheimer, in his 1937 essay, “Traditional and Critical Theory,” captures well this sense of the ongoing “critical” tradition without the trappings of vulgar or scientific Marxism, coining the phrase “Critical Theory” in the process:

[T]here is a human activity which has society itself for its object. The aim of this activity is not simply to eliminate one or other abuse, for it regards such abuses as necessarily connected with the way in which the social structure is organized. Although it itself emerges from the social structure, its purpose is not, either in its conscious intention or in its objective significance, the better functioning of any ele­ment in the structure. On the contrary, it is suspicious of the very categories of better, useful, appropriate, productive, and valuable, as these are understood in the present order, and re­fuses to take them as nonscientific presuppositions about which one can do nothing. … [T]he critical attitude of which we are speaking is wholly distrustful of the rules of conduct with which society as presently constituted provides each of its members. The separation between individ­ual and society in virtue of which the individual accepts as natural the limits prescribed for his activity is relativized in critical theory. The latter considers the overall framework which is conditioned by the blind interaction of individual activities (that is, the existent division of labor and the class distinctions) to be a function which originates in human action and therefore is a possible object of planful decision and rational determina­tion of goals. (“Traditional and Critical Theory,” pp. 206-207)

Patricia Hill Collins further explains this critical project in contrast to Marxist philosophy, economics, and politics:

Horkheimer … drew upon Marxist social theory to highlight the missing dimensions of traditional social theory. The historical materialism of Marxist social thought emphasized narrative traditions of history and philosophy, traditions that investigated the meaning of social phenomena. Yet because Marxist social thought itself advanced structural explanations of social phenomena, and drew upon the same reasoned evidence of traditional social theory, it could be seen as an alternative science of society rather than as a distinctive philosophical tradition. The Frankfurt school intellectuals neither comprised a Marxist school of thought nor aimed to extend Marxism as a philosophy or politics. Instead, Marxist social theory was a visible and important dimension of continental European philosophy, and they adapted this critical theoretical framework for their own project. (Intersectionality as Critical Social Theory, Loc. 1280; emphasis mine)

I would argue, therefore, that for any theory or system of ideas to be considered properly “critical,” it must at least see (1) group-wide inequalities, hierarchical social stratification, or social ills generally as not simply the product of individual policies and individual actors, but deeply ingrained in the socio-historical development of institutions, norms, values, cultural expressions, and relations of power which operate thereby, (2) that these “pathologies” develop through historical processes of social creation and change, and that much of the furniture of social life and knowledge are therefore constructed and conditioned imminently, (3) that remedies require critique of the whole, and that the transformative action required to dismantle the systems and ideas which embody social dominance and pathology is inseparable from knowledge production itself, and, finally, (4) the theory or system of ideas ought to display a “radical reflexivity,” i.e., “reflective accountability concerning critical theory’s own practices” (Hill Collins, Loc. 1314).

It is this sense of “critical” of which CRT scholar Angela Harris wrote in 1994:

CRT inherits from CLS a commitment to being “critical,” which in this sense means also to be “radical”—to locate problems not at the surface of doctrine but in the deep structure of American law and culture. (“The Jurisprudence of Reconstruction,” p.743)

Conclusion

So, is Critical Race Theory Marxist? To be clear, CRT certainly falls within the Critical tradition, at least in the sense just described. But CRT was likewise forged in contestation with traditional Marxism. Marxists, consistent with the essentialism rejected by both CLS and CRT, have always taught that racism is either an instrument or a byproduct of class warfare. In the words of noted Marxist scholar Walter Ben Michaels,

It’s not racism that creates the difference between classes; it’s capitalism. And it’s not anti-racism that can combat the difference; it’s socialism …. You don’t build the left by figuring out which victim has been most victimized; you build it by organizing all the victims. When it comes to the value of universal healthcare, for example, we don’t need to worry for a second about whether the black descendants of slaves are worse off than the white descendants of cole miners. The goal is not to make sure that black people are no sicker than white people; it’s to make everybody healthy. (As quoted in Black Marxism, p. XIV)

While CRT scholars likewise desire the welfare of all races and classes, they, alternatively, recognize that race, racial hierarchy, and racial subordination are as deeply interdependent with law and society as is class. As we discussed in our last post, a race-conscious analysis in conjunction with race-conscious remedies are the only means to contest the “locked in” nature of racism in American society, and to finally change the subordinated circumstances of its people of color. At its root, therefore, CRT rejects Marxist instrumentalism, the “base”/“superstructure” paradigm, and not only rejects class essentialism, but seeks to be anti-essentialist in general. And, in reality, an anti-essentialist Marxism with no “base” or “superstructure” is not much of a Marxism at all, just a long tradition of critical social theory employed by theorists from many different socio-political perspectives.

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