What’s so bad about critical race theory?

by Sam Kriss

Critical race theory is a fairly small body of texts produced by a splinter faction from a minor intellectual movement within American law schools during the 1980s. The best way to understand critical race theory is to read these texts. Some of these approaches are interesting or persuasive; others are not. But there are two things to keep in mind when approaching them. The first is that these texts were put together by lawyers – who are, as a group, not to be trusted. The second forms the subject of this essay.

The movement that critical race theory broke from is critical legal studies, or CLS. Briefly, CLS argues that the law is not as it presents itself, an impersonal arbiter between equal persons, but instead exists to uphold structures of inequality within society. This is not a particularly novel insight. Anatole France put it best in 1894: ‘The law, in its majestic equality, forbids both rich and poor alike to sleep under bridges.’ You don’t even need to be particularly critical of inequality to notice this – the Chicago jurist Richard Posner writes approvingly that ‘criminal law is designed primarily for the non-affluent; the affluent are kept in line, for the most part, by tort law.’ Where CLS differs from the existing Marxist critique of law is that Marxist approaches tend to see the law as an instrument wielded by the ruling classes to enforce an inequality that already exists in society, whereas critical legal studies supposes that the discourses of law themselves produce this inequality. This is plausible; it’s worth paying attention to the complexities of power, rather than reducing it to a caricature. Still, if we wanted to be unkind, we could say that what’s really going on here is that advocates of CLS are mostly well-paid professors at prestigious law schools, and the core theoretical insight of CLS allows you to pretend that being a well-paid professor at a prestigious law school is actually a deeply revolutionary act.

Critical race theory has its own intellectual roots (more on that shortly), but its history as a movement is usually traced back to the CLS conferences of the mid to late 1980s. At the 1986 conference, a long and panicked spat broke out after participants were asked ‘what is it about the whiteness of CLS that discourages participation by people of colour?’ The following year, Harlon Dalton (Yale) presented his paper The Clouded Prism, which briefly touched on some theoretical issues with CLS (its lack of a positively articulated programme for change, along with its Marxist-inflected critique of the liberal discourse of individual rights, which is ‘oblivious to, and potentially disruptive of, the interests of people of colour’ who had fought quite hard for some of those rights), before getting to the real meat of the issue: white attendees at CLS conferences were rude to black academics; they took all the big speaking slots for themselves, and they wrote papers with Chuck Berry lyrics for epigraphs. Crenshaw (UCLA) et al describe what happened next:

Responding to the critique, another scholar of colour shared with the audience his impression that the absence of much of minority scholarship was attributable to its poor quality, and to the lack of productivity of minority scholars. Scholars of colour were urged to stop complaining and simply to write. Of course, the discussion that followed was animated. But more important than what was said was what was assumed – namely, that the arena of academic discourse was functionally open to any scholar of merit who sought to enter it. Yet the very point that the speakers were trying to reveal (perhaps too subtly, in retrospect) was that the notions of merit that were so glibly employed to determine access and status within the intellectual arena were themselves repositories of racial power.

In other words, critical legal studies was based on the understanding that the law is not a neutral and universal institution – but as soon as that critique was turned around on CLS itself, its advocates suddenly turned into the same squeamish liberals they’d spent their entire careers opposing.

* * *

The basic axiom of critical race theory is that racism is not an irrational deviation from the norm of liberal neutrality – instead, it’s a system of exclusion that operates through those norms. It strikes me that we could avoid a lot of very pointless squabbles if we could just find different words for racism-as-individual-prejudice and racism-as-structural-inequality; clearly, tacking on the modifier ‘systemic’ isn’t doing the job. But semantics aside, the approach has some utility; it’s always worth looking under the surface of things to see if they’re really doing what they claim to do.

This core theory came out of a very specific historical moment. If critical race theory’s organisational history is grounded in the split from CLS, in its intellectual history it begins as a response to the perceived failure of the civil rights movement. Thanks to decades of activism, black Americans were legally identical to whites, formally equal in a system that now claimed to operate on a racially neutral basis – but for millions, things had simply not improved. So the first generation of critical race theorists turned their gaze on Civil Rights itself. Could it be that the demand for formal equality and a neutral public sphere was itself a mask for racism?

One of the foundational texts of CRT, Derrick Bell (Harvard)’s Serving Two Masters, takes the bolt gun to one of civil rights’ sacredest cows: the victory against school segregation. He argues that a desegregated school is not necessarily a better school for black students, noting that black students are often bussed to ‘the poorest and most violent white districts,’ while at the same time black students in majority-white schools can find themselves doing less well academically, and punished by teachers more frequently, than their white classmates. In such schools, ‘the racial subordination of blacks is reasserted in, if anything, a more damaging form.’

Still, Bell doesn’t directly advocate the resegregation of schools. His focus is on the immediate practicalities of legal work; the argument isn’t even that desegregation is necessarily bad in and of itself – just that civil rights lawyers should be able to advocate for the stated interests of their clients, even when they conflict with the doctrines of the NAACP. However, in his later work, he’s far more explicit in his rejection of the Civil Rights programme of reconciliation. In its place, he outlines a position of ‘racial realism.’ (This is by analogy with the theory of legal realism, and not the stance that racial categories are biologically ‘real.’) Realism means abandoning not just incremental change and engagement with the system, but also liberation in general, for the understanding that ‘black people will never gain full equality in this country.’ Instead of political ends, he advocates ‘racial strategies that can bring fulfilment and even triumph’ in the infinite continuation of struggle – or, more simply, ‘to harass white folks.’

Another particular Civil Rights target for CRT scholars is the ideal of race-blindness. In his 1963 debate with Malcolm X, James Baldwin expressed his hope for ‘a world in which there are no blacks, there are no whites, where it does not matter.’ Malcolm X disagreed (‘As a black man, and proud of being a black man, I can’t conceive of myself as having any desire whatsoever to lose my identity’), but one year later he too would disavow racial identitarianism for the ‘Human Family of Mankind.’ Critical race theorists have, by and large, not followed this trajectory. At points, their objections are persuasive. Alan Freeman (Minnesota) argues that using blanket gestures to simultaneously abolish the political categories of ‘black’ and ‘white’ treats these terms as if they were equivalent, rather than parts of a hierarchy. ‘The answers remain easy only so long as the theory remains divorced from its origins in the actuality of black-white relations. By abstracting racial discrimination into a myth world where all problems of race or ethnicity are fungible, the colour-blind theory turns around and denies concrete demands of blacks.’ This, arguably, is a kind of immanent critique. The original critical theorists argued that liberalism was incapable of realising liberal ideals; to achieve them, you need socialism. Here, the goal of race-blindness through universal liberation is hamstrung by race-blindness as a method, the blind assumption that it already exists.

For other theorists, however, colour-blindness is no longer a desiratum at all. Neil Gotanda (WSU) makes the stronger claim that ‘modern colour-blind constitutionalism supports the supremacy of white interests and must therefore be regarded as racist,’ but proposes an interesting remedy. Racial groups are compared to religions within a secular society: both are social constructions, rather than natural facts about a person; at the same time, both can hold meaning for those people. Gotanda argues that the state could allow and encourage ‘the positive expressions of race’ and ‘recognise black and white cultures as legitimate aspects of the American social fabric,’ while forbidding the ‘establishment’ of any one race – that is, ‘the use of either status-race or formal-race to establish domination, hierarchy, and exploitation.’ This is a strangely liberal approach; after all, the usual leftist view has been that race in general is nothing more than the calcification of various histories of domination, hierarchy, and exploitation. Still, it suggests an attractive future: one in which race is present, but, like religion, strictly optional.

But not all approaches are so equanimous. Mari Matsuda (UCLA), for instance, ends up reinventing the notion of ontologically distinct races on the terrain of legal theory. She begins by noting that a standard legal claim pits an individual plaintiff, who has been victimised, against an individual defendant, who has perpetrated harm. In a reparations case, however, the plaintiff is a demographic group, and the defendant includes the descendents of the perpetrators, or even those who have simply been assigned the same racial category. Still, it’s necessary to find those people guilty. She writes:

Of the taxpayers who must pay the reparations, some are direct descendents of perpetrators while others are merely guilty by association. Under a reparations doctrine, the working-class whites whose ancestors never harboured any prejudice or ill will toward the victim group are taxed equally with the perpetrators’ direct descendants for the sins of the past. However, looking to the bottom helps to refute the standard objection to reparations. In response to the problem of horizontal connection among victims and perpetrators, a victim would note that because the experience of discrimination against the group is real, the connection must exist.

‘Looking to the bottom’ refers to her understanding that ‘people who have experienced discrimination speak with a special voice to which we should listen,’ and that their thought and language will necessarily ‘differ from that of the more privileged.’ In other words, racial groups can be understood as coherent, homogenous units sharing a clearly defined set of interests – as ‘horizontally connected,’ and therefore a viable collective subject of law – because they appear that way from the outside. (And what if people who have experienced discrimination sometimes disagree with each other? Does the ‘scholar of colour’ Crenshaw mentions above lose his special voice for failing do differ adequately from the more privileged?) This approach is the opposite of any critical theory worth the name; instead of trying to distinguish between essence and appearance, Matsuda is transfixed by appearances, and uses the tools of theory to prop them up.

* * *

As critical race theory developed, such counter-critical tendencies became more pronounced. Instead of noting that institutions have advanced racist agendas under the cover of universalism, and attempting to correct this, some race theorists started to enter a Schmittian universe in which institutional neutrality is not just unrealised but impossible, and the only task is to direct institutions towards your racial ends and against your enemies. And meanwhile, others strayed further into the reification of race.

Cheryl Harris (UCLA)’s essay Whiteness as Property does pretty much what it says on the tin: rather than a social designation, a part of a code by which people are sorted and separated from each other, she proclaims whiteness as a thing that some people get to own and others do not. How can something human be a form of property? Well, human beings themselves were property, once… Harris argues that whiteness first became established in relation to property because it previously conferred the right to own slaves; the racial line ‘determined the allocation of the benefits and burdens of this form of property.’ Even today, whiteness basically stands in for the ownership of human chattel. This is a deft argument, but unfortunately it’s empirically untrue: there are black slaveowners in American history, many of whom had previously been enslaved themselves.

The argument for whiteness-as-property is basically a series of analogies – property owners are entitled to the ‘use and enjoyment’ of their property, and white people have the ‘use and enjoyment’ of certain privileges conferred by their race; property is something to which the owner has exclusive right of use, and whiteness is formed ‘by the exclusion of others deemed to be not white’… Which is a bit like saying that a dog is really a type of metrical poetry, since they both have feet. (You could also quibble: if we’re going to be structuralists here, isn’t every category based on a differential relation to all other categories?) Besides, for a radical theory this is grounded in a strangely liberal, Lockean, non-critical account of property. Here, property is simply a relation between a person and an object – one ‘has’ whiteness. Meanwhile, the leftist view, which approaches property as a relation between people, is mostly ignored.

But never mind all that: what does thinking of whiteness as property allow you to do that a less wacky account of race would not? What new avenue of thought or action does it open up? Well, you could demand redistribution or collective ownership: whiteness for all! This is not a line that Harris chooses to go down. (The closest she gets is an endorsement of affirmative action.) But plausibly, if whiteness is property, then white people would be united in their relation to private property, and black people in their shared exclusion: suddenly, racial categories are imbued with all the materiality of class

* * *

Clearly, critical race theory is capable of becoming something very silly. Personally, I tend to be quite tolerant of academic silliness, as long as it’s provocative or engaging. I like weird essays about the semiotics of paving stones or spelunking as radical praxis; I think it would be a terrible shame to reduce all thought to dead dull practicality. It means you have to sift through a lot of bullshit, but that’s where the flowers grow. And CRT is, at times, provocative and engaging. Its best feature is probably the one that draws the most complaints: why can’t you just see people as individuals? Why can’t you just imagine people popping into monadic existence, without family, without social ties, without any history, just an isolated and atomised entrepreneurial speck? As Adorno saw, this kind of individuation is actually fatal for the autonomy of human individuals: an individual is more than a free-floating data-point, maximising its utility in the market. Still, it’s hardly better to replace isolated subjects with homogenous races; both reduce the fullness of human life to one small and sordid aspect. I don’t think this kind of essentialism is necessarily inherent in CRT; as I’ve tried to show, many critical race theorists avoid it. But others do not.

The real theoretical weakness of CRT is something far more damaging, and it’s arguably a legacy of its origin in critical legal studies. The mostly-white law school gang didn’t see the law as an expression of unjust power, but as a site in its production; similarly, when the critical race theorists tried to understand why non-white people were less likely to be involved in CLS conferences, they weren’t particularly interested in explanations that ran along the lines of well, black people are more likely to be impoverished, and impoverished people are less likely to become prominent legal theorists. That kind of analysis was dismissed as vulgar Marxism: instead, the obvious conclusion was that the CLS conference was itself engaged in the production of racism.

This dynamic has been noted before – particularly by critics on the right, who argue that it leads to specious accusations of bias. If the theory proceeds by showing how supposedly neutral structures are, in fact, freighted with racial content, then a subtle enough theorist will be able to show that any structure is deeply racist. Is yarn racist? What about the sky? It shouldn’t be any kind of concession to conservatism to accept that some fairly dumb accusations do, in fact, happen. I think a lot about one particular incident in late 2018. From a celebrity academic: ‘I hope one day people will be just as concerned for Black people as they are for the institutions that harm us.’ The harmful institution in question was an aquarium: a place where children go to learn about fish. The harm they had perpetrated was in describing a sea otter as thicc.

But the problem goes deeper than the otter wars: this approach has the strange effect of abstracting critical race theory from the reality of racial injustice. After all, the wage relation and the prison system are no more centrally involved in producing racism than some obscure conference of legal scholars (or an aquarium, or a knitting circle, or whatever’s annoying you on the internet today). If you’re the kind of person who teaches at Harvard or Yale or UCLA, rather than the kind of person who works for a wage (or is unable to work for a wage), this theory is obviously very attractive. But it means that any concrete social struggle – against, say, police violence – is inevitably diluted, until it becomes just another squabble within institutions.

Critical race theory began by decrying the lack of a theory that responded to the direct needs of ordinary non-white people and offered a positively articulated programme for change. Its initial promise, per Richard Delgado (UCLA), was ‘deep discontent with liberalism, a system of civil rights litigation and activism, faith in the legal system, and hope for progress.’ On these criteria, the project has failed. It has jettisoned some of the better aspects of liberalism while retaining the worst. It began by defending the hard-won civil rights of ethnic minorities against a slightly sneering critique of rights-discourse, but soon switched to trashing those same freedoms. Its leading theorists have ended up abandoning liberation and insisting that social change is impossible. The main remedies they propose are affirmative action – which, as both its defenders and its detractors would have to admit, ultimately does far more to affect the ethnic makeup of law schools than to radically restructure society at large – and hate-crime legislation, which penalises expressions of individual prejudice without really striking against systemic racism. While CRT tends to totemically invoke the suffering of non-white people outside academia and the professions, in the end it has very little to offer them.

* * *

This is not really what most people are talking about when they talk about critical race theory.

As I write, seven US states have passed laws banning critical race theory. Politicians and pundits are lining up to denounce it in broadly illiterate terms; CRT is the font of everything evil, a threat to all liberal values. These people are not really referring to the works of Bell, Crenshaw, Delgado, etc (which they have not read), but something much more amorphous; attitudes more than ideas, a set of gestures, a certain tone. Critical race theory has turned into an umbrella term for every kind of new discursive orthodoxy around race: white privilege, white fragility, unconscious bias, intersectionality… Of course this stuff is in the schools; who wouldn’t want their children to be aware of all the important new trends? I’ve written about some of these affects before; I find most of them stupid and deeply unhelpful. And as I’ve outlined, there are theoretical failures in CRT that do pose problems for anti-racist activism. But I simply don’t accept that CRT is the source of all our present neurosis around race, or that the weird gestural politics of the twenty-first century were dreamed up in their entirety by a bunch of lawyers.

It’s true that a lot of concepts like privilege or implicit bias appear within the corpus of CRT texts, but so what? These days, they also appear in geology. Aside from intersectionality, which was first outlined in the Stanford Law Review, these are not specifically legal theories – and many of them significantly predate CRT. Go back to the primal scene: those early struggle sessions at the critical legal studies conferences are basically identical to what’s now happening within major media outlets and public institutions. But this was before critical race theory had constituted itself as a distinct approach or body of work. To adopt the vulgar Marxist position: these incidents are only an expression of something far more fundamental within the structure of society. The problem is not bad ideas, but an unjust world. If you want to understand why people are upset, and why that upset expresses itself in unproductive ways, it’s useless to play around with intellectual genealogies; you have to go to the actual source, to the empirical study of the social.

Obviously, conservatives don’t want to spend too much time thinking about actual social conditions; this is why the moral panic suits them fine. A panic means they’re under no obligation to engage with CRT as a theory; what they’ve developed is just a fancier way of railing against wokeness. (For what it’s worth, I think wokeness is actually a much better name for this thing: it makes clear that what we’re facing is not really a cohesive ideology, but a cluster of postures and affects.) But the exact same flight from theory is taking place on the left, among CRT’s defenders. Many of the people most vocally supporting the theory seem to believe that the sum total of its approach is to say that racism exists and is bad. (The Hill article I link above describes it as ‘the idea that students should learn about how race and racism has affected American society in the past and present day.’) Or, in other formulations, it’s simply an expression of the lived experience of black people. The attempts to censor CRT by law are deranged, obviously, but this has a very particular type of cruelty to it. It does incredible violence to a theory to pretend that all its conclusions are just obvious fact; you’re basically implying that no actual thought has taken place. Something similar happens when the advocates of these theories act as if it’s morally impermissible for any white person to ever subject them to critical scrutiny, because nobody asked for your yt opinion. No: if this stuff is thought, then it enjoys the dignity of critique. If it’s something other than thought, then why shouldn’t I just dismiss it out of hand?

I am a Marxist and a humanist. As such, I believe that ‘the free development of each is the condition of the free development of all.’ This means that racial inequality must never be a side issue, a minority concern, something orthogonal to the major issues in the world: the struggle for each is the struggle for all. At the same time, this means that I have to disagree with any approach that tries to break this unity apart, and for the most part CRT is such an approach. But there’s a kind of recognition in disagreement, even vicious disagreement; something missing in both censorship and canonisation. In 1898, the last year of his life, Alexander Crummell – one of the great American intellectuals, and a lifelong mentor to WEB DuBois, now sadly forgotten – wrote about the ‘denial of intellectuality in the Negro.’ Isn’t the same thing happening now, on both sides of the CRT panic? As a child, Crummell personally overheard the racist senator John C Calhoun declare that ‘if he could find a Negro who knew the Greek syntax, he would then believe that the Negro was a human being.’ A hideous test, obviously – and, as Crummell points out, a rigged one too: Calhoun and his class were sent to white-only universities to learn the classics, but then expected ‘the Greek syntax to grow in Negro brains, by spontaneous generation.’ Still, Crummell became the first black person to earn a degree at Cambridge, and the first black American to learn the Greek syntax. (He beat William Sanders Scarborough by nearly a quarter-century. But obviously he was not the first black person to learn Greek: the black people who actually lived in ancient Greece may have got there first.) He understood very well that the same classical tradition that had been used to justify racism could also be a tool of liberation in black hands. He was also an imperialist, an advocate for ‘devoted racialism’ and the white-nationalist colonial project in Liberia. He’s a testament to how even great thinkers, even those who aim for liberation, can end up reproducing, in an inverted form, the worst and most repressive aspects of their age. Ultimately, I think critical race theory does the same thing; it is neither critical nor radical, but a capitulation to unfreedom. But if you genuinely believe that CRT is good and important, then trying to strip it of its intellectual quality should be something far, far more offensive than simply disagreeing with it.