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The Strengths of CRT

I have argued that CRT is fundamentally flawed with respect to its advocacy of ‘white supremacy’, as a generally applicable descriptor of racism in certain modern societies, and in its prioritizing of ‘race’ over social class. In this chapter, I will assess what I perceive to be some of CRT’s strengths. I will look specifically at the use of the concept of property to explain historically segregation and white supremacy in the US; the importance of voice; the concept of chronicle; the all-pervasive existence of racism in the world; interest convergence theory; contradiction-closing cases, transposition and CRT and the law in the US. I will indicate where I think these strengths can be enhanced by Marxist analysis.

It is a common misconception of many that Marxists argue that the economy determines everything; that nothing else needs to be taken into account; that Marxism draws on nothing other than the workings of the economy. Engels, in fact, challenged this economic determinist view of Marxism over one hundred years ago:

According to the materialist conception of history, the ultimately determining element in history is the production and reproduction of real life. Marx and I have never said more than this.1 Hence if somebody twists this into saying that the economic element is the only determining one, he transforms that proposition into a meaningless, abstract, senseless phrase (Engels 1895).

© The Author(s) 2017

M. Cole, Critical Race Theory and Education, DOI 10.1057/978-1-349-95079-9_4

Indeed, prescient to CRT, Engels was well aware of the law and of ways that legal processes, including internal struggles therein, can influence the course of history. As he put it:

political forms of the class struggle and its results ... juridical forms, and even the reflexes of all these actual struggles in the brains of the participants [my emphasis], political, juristic, philosophical theories, religious views and their further development into systems of dogmas—also exercise their influence upon the course of the historical struggles and in many cases preponderate in determining their form (original emphasis) (Engels 1890).

The Use of the Concept of Property to Explain Historically Segregation and White Supremacy2 in the US

Jessica DeCuir-Gunby (2006, pp. 101-105) gives the example of the case of Josephine DeCuir in the 1870s, a wealthy Creole3 woman who challenged segregation, as practiced on the steamboat Governor Allen. DeCuir- Gunby (2006, p. 102) distinguishes four ‘property rights of whiteness’; rights of disposition (transferability); rights to use and enjoyment; reputation; and right to exclude.

The rights of disposition (transferability) refer to the right to transfer ‘whiteness’. Thus, although DuCuir was not black, neither was she completely white. Indeed ‘her lack of completely white heritage made her Negro’ (ibid., p. 102). This is because of the ‘one drop rule’ which declared any person with one drop of ‘Negro’ blood to be ‘Negro’ regardless of her or his physical appearance (ibid., p. 96). As DeCuir-Gunby (2006, p. 96) explains, ‘[a]ccording to this white supremacist belief system, the “one drop” of Negro blood made such a person contaminated and inferior, unworthy of being labelled white’. Creoles were thus ‘negroes’ who were given some rights afforded by whiteness, but not others, including the right to travel in the upper cabin of the Governor Allen (ibid., pp. 102-3).

The upper cabin of the ship represented the rights to use and enjoyment of a superior location. The upper cabin cost $2 more than ‘the Negro section’ (ibid., p. 103). As DeCuir-Gunby (ibid.) points out, this is significant, since charging white passengers more meant that they would be entitled to a better steamboat experience as well as better accommodation. Charging a higher price made it appear that white passengers were purchasing better services. However, given that ‘negroes’ were not permitted to pay this higher price for a better ticket, ‘[w]hite passengers were benefiting from their right to use and enjoyment based upon their whiteness’ (ibid.). It meant in practice that a poor working class white person (provided s/he could get hold of the extra $2) had more right to utilize the upper cabin than a wealthy Creole person (ibid., p. 104).

With respect to the right of reputation, white passengers would go to great lengths to avoid ‘racial’ mixing and to ensure the reputation of whiteness. As John Benson, the boat’s captain put it, ‘[i]f any boat was to attempt to mix the white and colored persons in the same cabin, I believe they would lose the white travel altogether’ (DeCuir v. Benson 1875, p. 73, cited in DeCuir-Gunby (ibid., p. 104).

The final form of property right is the right to exclude. Benson provides the essence of this exclusion:

The custom is ... to give colored persons accommodation by themselves in a cabin appropriated to them exclusively and where the boats have no such accommodation it is customary to give them rooms by themselves or with the colored employees of the boat and giving them their meals after the white cabin passengers are through (DeCuir v. Benson 1875, p. 73, cited in DeCuir-Gunby (ibid., p. 105)).

Thus the concept of property as used here is useful to explain historical events in pre- ‘civil rights’ USA.4 Perhaps similar tales could be told of other exceptional forms of the capitalist state (Poulantzas 1978, p. 123) such as Nazi Germany or Apartheid South Africa.

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