The Race Regarding Critical Race Theory

Truth be told, I was unaware of Critical Race Theory ("CRT") until recently.

It seems it developed not in the Academy, where we expect theories to be raised, but in the legal academy.  That's right, in law school.  Perhaps the fact it originated in law schools explains why I've been ignorant of it--I'm a practicing lawyer, and so have been ignoring my law school days for many years.  Law school as I experienced it had very little to do with the practice of law.

I became aware of CRT when glancing through Google News and saw a headline about it being banned from public schools by the State of Idaho.  Bans imposed by government always interest me.  Bans applied to what is taught in schools are especially intriguing.  When legislatures seek to limit what is learned, red flags should fly.

In fact, flags have been flying, but of a different sort--flags of the chattering armies of what has been called the Culture War.  This is the sort of thing pundits (and pulpits?) delight in, and though I avoid them (both!) I can't help but hear or read of what they say.  What they say about CRT is, like all they say, predictable.  It continues to baffle me that people are paid large sums of money for telling us exactly what it may be expected they will tell us, but it seems we so enjoy people telling us things, in particular things we like to think, that they will continue to do so.

I read on some of the websites dealing with this issue claims to the effect that CRT is somehow based on or related to Marxism.  Idaho in its zeal to ban, or perhaps we should say purge, certain ideas from its schools has also apparently banned Socialism and Marxism.  I don't think Communism was mentioned, but there's time enough to ban many ideas if its legislature is so inclined.

I wonder sometimes what people think Socialism to be.  I doubt they think it has much to do with the government owning the means of production.  What it is imagined Marxism consists of I cannot say.  These are words regularly used to inspire fear in our Great Republic, and have been for some time.  For all I know, CRT may share certain characteristics with the theory behind Marxism.  Whether it does or does not will, of course, depend on what it is, but in the realm of the media and cyberspace, where taking the time to think is discouraged, the tendency is exclaim and declare.  Generally, what is proclaimed is left unchallenged or if it is challenged then we can't be bothered to expend the effort to decide what actually is the case.

It seems that CRT involves the claim that racism is a feature of society, and is embedded in our political and social institutions, including the legal system, resulting in the perpetuation of racial inequality.  In other words, it encompasses the view that racism is systemic in our society.  It seems that it makes the same or similar claims regarding sexuality and gender identification.  Unsurprisingly, it rejects claims that racism is in the nature of an aberration and that acts of racism are isolated events, unrepresentative of society as a whole.

When it comes to the legal system, a legal realist would accept that the laws, their enactment, interpretation and enforcement are influenced by race and other considerations, social and economic.  It seems naive to think otherwise.  For my part, I think it's apparent that racism is a feature of our society.

What seemingly raises concerns in the State of Idaho and elsewhere, however, is the perception that what CRT means in practice is the active denigration of our society, our religion, our government, our nation, and white people in particular.  It's claimed that white students come home or will come home from school wondering if something is wrong with them for being white and therefore oppressive and bigoted, or claiming that their parents are, or belittling our nation.  It's said that CRT generates a kind of reverse racism and condemns efforts made in the law and society to promote equality as inadequate or worse. 

There's nothing more disturbing to a parent than what's taught to their children in school, if it conflicts with what the parent believes.  But it isn't difficult for me to imagine proponents of CRT making such claims, in and out of schools.  Righteousness and zeal are characteristics of those of us who believe they perceive a great injustice and vow to eradicate it, as is the demonization of opponents to the cause.  Such claims are bound to anger and infuriate people who, while trying to live their lives, find themselves considered the successors of evil people, and perpetuators of the terrible consequences of their acts.

It must be acknowledged that it's quite possible to overstate such claims and make generalizations which have little or no basis in fact when it comes to racism, when it comes to most anything for that matter.  Take the 1619 Project, for example.  Personally, I find it unreasonable to assert that  racism and slavery in North America arose when 20 or so enslaved Africans were snatched from a Portuguese ship and brought to what is now Virginia.  Also, I think it unreasonable to claim that slavery was a uniquely American phenomenon. 

It's nice to think the very real problem of racism in our society could be acknowledged and addressed intelligently.  Whether it is the nature of the times or there are other reasons, though, we seem incapable of thoughtfully and pragmatically addressing anything serious.  Resentment and rage are reactions to be expected whenever a criticism is made that suggests there are problems to be solved, or that we're at fault or deficient in some sense.

Which brings me to the figure appearing at the top of this post.  Represented there are Achilles and his nemesis, the tortoise.  The philosopher Zeno imagined a race between the hero and a humble tortoise.  Confidant that he'll win the race, Achilles gives the tortoise a head start.  Zeno claimed that Achilles would never reach the tortoise, however.  Achilles must first reach the spot where the tortoise started.  However, when he does the tortoise has move forward.  However small a distance it has moved, Achilles must reach that point before passing it.  But the tortoise will have moved again before Achilles gets there.  So, he'll never even catch up to the tortoise.  Zeno is famous for his paradoxes, and this is one of them.

Where racism is concerned, are we Achilles pursuing the tortoise?  Will it always be there in front of us?  It has a head start. 

 

There's No Law But The Law

The existence of the law is one thing; it's merit and demerit another.  Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard is a different enquiry.

These are words of John Austin, who is considered to be the founder of a philosophy of law called "legal positivism."  He was a contemporary of Jeremy Bentham.  J.S. Mill attended his lectures on law.

A legal positivist maintains that the law is something that exists regardless of whether it's good or bad.  It is something different and separate from what's described as natural law.  When we study the law as a functioning system, therefore, it's specious to contend, as people too often do, that it isn't really the law because it doesn't meet a particular moral standard, whether that standard be natural law, the commandments of God, or some other standard by which right and wrong, good and bad may be determined.

According to the legal positivist, it's incorrect, therefore, to claim that a law considered wrong or bad according to some such standard isn't a law.  It's a law alright.  It may be a bad one.  We may claim it should be changed, or shouldn't be followed, but a law it is and so it shall remain until changed or revoked.

There are those who have difficulty accepting this view.  They appear to believe that the law must be something else; something higher, something that's just, fair, equitable.   A law must comport with natural law, and recognize and uphold natural rights.  The law according to their point of view isn't the law we humans and our governments may adopt, promulgate and enforce.  The real, true law is otherwise there in some respect, written in the stars as it were, or existing in the mind of God.

The proponents of the American and French Revolution were given to maintaining that the laws they objected to were contrary to natural law and/or natural rights, which were superior to the law imposed by those they rebelled against.  Thus, they were not appropriately law under this conception.  Not being law, there was no obligation to follow them and even a positive duty to defy them.  This apparently was felt necessary to justify rebellion.  It may be it was believed that characterizing them in this fashion created more of a foundation for revolution then characterizing them as merely bad, unjust laws.  A tyrant's laws are more evil if they constitute a violation of the laws of God or Nature than if they only seem bad to other, fallible, humans.

Perhaps this was an understandable view when it was claimed that kings ruled by divine right and governmental authority could not be challenged without being dramatically unjust.  Those times are gone, though.  When man is the measure of all things, appeals to an unwritten law are unavailing, or at least unconvincing.  

Some people tend to believe that the acceptance of legal positivism requires that we believe all laws, all systems of law, are the same in merit, and that any law must be obeyed.  That's not something that follows from the premise that bad laws are laws nonetheless.  It's a conclusion which in its own way is derived from the belief that the only real law is that of nature or nature's God.  In that case, of course, the laws must be obeyed.  Interestingly, those who don't accept legal positivism will also tend to be those who claim that laws they find objectionable need not be followed.  In that case the law is merely a human contrivance which may be violated, when it serves to protect, for example, rights we believe don't exist, laws which protect people we don't believe should be protected, or laws which allow conduct we believe should be eradicated instead of protected.

Legal positivism imposes a most useful distinction.  That distinction is between the existence of the law and its worth, or merit.  Knowing what a law is, why it was adopted, how it functions in a legal system, is far more useful in determining whether it should or should not be changed than some effort at deduction from assumed standards, especially those that are supposed to be embodied in nature or exist in the mind of God.