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CRITICAL RACE THEORY

Critical race theory (CRT) is another highly significant movement in law with hundreds of law review articles and dozens of books directly or indirectly devoted to it (e.g. Browne- Marshall, 2013; Delgado and Stefancic, 2013).

Like feminist legal theory, CRT is concerned with questions of discrimination, oppression, difference, equality, and the lack of diversity in the legal profession. Although CRT’s intellectual origins go back much further, the inception and formal organization of the movement can be traced to a 1989 workshop on CRT in Madison, Wisconsin (Delgado, 1994). Many of its proponents had been involved with critical legal studies or feminist jurisprudence, and the 1989 conference effectively ratified CRT as an important critique of legal theory. The CRT movement, along with Latino-focused critical legal scholarship or LatCrit (Bender, 2004; Valdes et al., 2002), attempts to rectify the wrongs of racism while acknowledging that racism is an inherent part of modern society. Racism is embedded in the legal and political systems, and proponents recognize that its elimination is impossible. However, they insist that an ongoing struggle to countervail racism must be carried out.

In a way, the word critical in “critical race theory” reflects continuity between critical legal studies and critical race studies. Both seek to explore the ways in which law and legal education and the practices of legal institutions work to support and maintain a system of oppressive and inequitable relations. But much more than CLS, CRT highlights the urgency of racial problems and an uncompromising search for real solutions to these problems. The basic premises are that persons of color in the United States are oppressed and that this oppression creates fundamental disadvantages for those who are being oppressed. Because of oppression, people of color perceive the word differently than those who have not had such experience. CRT scholars, many or perhaps most of whom are people of color themselves, can thus bring to legal analyses perspectives that were previously excluded. Through narratives and “story telling,” some scholars share their experiences or the experiences of other people of color to make their presence felt in legal scholarship.

Critical race theorists view racism, not only as a matter of individual prejudice and everyday practice, but also as a phenomenon that is deeply embedded in language and perception. Racism is in a ubiquitous and inescapable feature of modern society, and despite official rhetoric to the contrary, race is always present even in the most neutral and innocent terms. Concepts such as justice, truth, and reason are open to questions that reveal their complicity with power. This extraordinary pervasiveness of unconscious racism is often ignored by the legal system.

As with all the intellectual developments we have discussed, CRT has been criticized on several grounds (Ayres, 2003). Critics say that as a matter of formal law, blacks and other people of color are no longer barred from professional jobs. Evolving laws and social norms have opened the door for employment and other social and economic opportunities. How widely this door has opened is, of course, the subject of debate. Another criticism is that CRT articulates its conception of race as a social construction at the macro level, focusing primarily on legal and sociopolitical processes, and has neglected the micro, interpersonal ways in which racial oppression is produced. Yet another criticism is that CRT is essentially a reformist project, not really new and distinguishable from traditional civil rights scholarship on the law. These criticisms notwithstanding, and as we have said regarding the other sociolegal intellectual movements, CRT has nonetheless had a highly significant impact on the field of law and on the understanding of law and society.

 
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