by Richard A. Jones
Critical Race Theory (CRT), in its most influential form, was initiated at Harvard Law School by Derrick Bell’s early critique of Critical Legal Studies (CLS). CLS developed the idea that the letter of the law—despite its noble intentions—did not spell out justice for African Americans.
Subsequently, because of Harvard’s inability to resolve ongoing debates surrounding race and law, “The Alternative Course” was organized in 1980 by Harvard students. This course was, as recounted by Kimberlé Crenshaw, “the first institutional expression of Critical Race Theory…. Among the guest speakers were Charles Lawrence, Linda Greene, Neil Gotanda, and Richard Delgado, all of whom were already in law teaching.”
Proponents of CRT—“race crits”—argue that despite the hard won political and legal victories of the Civil Rights Era, the U.S. justice system continues to systematically underserve many racialized groups. In his foreword to Critical Race Theory: The Key Writings That Formed the Movement, Cornel West writes, “Critical Race Theorists have…not only challenged the basic assumptions and presuppositions of the prevailing paradigms among mainstream liberals and conservatives in the legal academy, but also confronted the relative silence of legal radicals—namely critical legal studies writers—who ‘deconstructed’ liberalism, yet seldom addressed the role of deep-seated racism in American life.”
Further, adds Crenshaw in her introduction to the same volume, in distinguishing itself from Critical Legal Studies, CRT as a discipline cross-bred from philosophical influences, “rejects the prevailing orthodoxy that scholarship should be or could be ‘neutral’ and ‘objective.’”
CRT has crossed disciplinary boundaries. CRT is being taught not only in law schools but also in philosophy departments of universities such as The Grad Center of CUNY, George Mason, Howard, Penn State University, Texas A&M, the University of Connecticut, the University of Michigan, and the University of Memphis, among others.
In crossing these boundaries, innovations by African American philosophers have created new methodological tools. As taught in philosophy departments, CRT draws from many philosophical currents, especially the genealogical method. The following discursive practices emanate from this method: (1) storytelling; (2) the dialogical versus the monological; (3) standpoint epistemologies; and (4) evolving new forms of socialism. Before examining the contributions of this methodology to the analyticity of CRT, a few insights should be given on the adaptations of CRT by African American philosophers as race crits.
African American Philosophers and Critical Race Theory
In 2018, American Philosophical Association reported 8,266 members. Of the 4,581 members who supplied the APA with data on race and ethnicity, 127 identified as Black/African-American. Thus, the number of African American “academic” philosophers is notably small (about 2.8% according to APA statistics.) In 2014, Tina Fernandes Botts et al reported that 1.3% of U.S. philosophers are black.* Because of the paucity of the number of African American philosophers, their roles in mainstream (that is, predominantly white) Western canonical philosophy are marginalized. At many philosophy conferences, “the good old boys” point toward feminist and African American philosophers disdainfully with, “They are not philosophers … they’re sociologists.” This wrangling over what is and what is not philosophy qua philosophy has resulted in a crisis in academic philosophy. African American philosopher Lewis R. Gordon writes:
…an exciting development in contemporary philosophy: Africana philosophy and critical race theory. What is interesting about both these movements is that they are dominated by philosophers of color and their histories have always been on the periphery of universities and communities outside the academy.…They did not…use the liberal discursive practice of writing texts that would stimulate white guilt…. They built up small institutions that eventually grew to the point of making the dialectics of recognition between antiracist and liberal racist organizations irrelevant. Put differently, white guilt or the white conscience of white analytical philosophers didn’t lead to the demographic of there being more than one hundred black philosophers in North America at the end of the twentieth century….
The import of Gordon’s words is clearly that African American philosophers, marginalized and underrepresented in the academy, sought to transgress disciplinary boundaries from within the disciplinary decadence of existing canonical formulations. Africana philosophy and CRT represent just such a reformulation. According to Gordon, it is those who attempt to maintain disciplinary boundaries who are decadent. Those who would elide the disciplinary borders between, say, law and politics or law and race, are marginalized.
This new paradigm, created in the interstices of a failed racial jurisprudence, a decadent academy, and the “stagnation” (Disciplinary Decadence, 112) of analytic philosophy, was primarily the work of marginalized black scholars. Hence, critical race theory emerges as an oppositional transformational discourse: it is at once, in Crenshaw’s words from her introduction to Critical Race Theory, Edward Said’s “antithetical knowledge, the development of counter-accounts of social reality by subversive and subaltern elements of the reigning order” (xiii). CRT’s oppositional and subversive dialectic is a “left intervention into race discourse and a race intervention into left discourse” (xix).
But because CRT is created by the objects of racism, outside the justificatory frameworks of the legal, educational, and political institutions that maintain racism itself, CRT represents a radical departure from all that has gone before. As a radical critique of disciplinary decadence that strives to maintain fixed categories, CRT is a meta-disciplinary excellence. Yet, traditional discursive philosophical practices have resulted in an analytical critique of CRT as too historicized and a counter-critique by crits that analytical philosophy is stagnantly de trop in its pretensions to universality.
Given the adaptations from CRT by African American philosophers, the nature of analytical methods Anglo-analytical philosophy imposes on CRT must be reexamined. The paradox of how CRT, as a critique of canonical philosophy, can be used methodologically (across disciplinary boundaries) by philosophers is a question worth examining.
Critical Race Theory’s Philosophical Methodologies
Western academic, analytical philosophy can be broadly construed as consisting of five major areas: metaphysics (“reality”), epistemology (“knowledge”), axiology (“value”), social and political philosophy (“how we can know the value of living together that we cannot know living alone”), and the philosophy of (e.g. law, physics, education, mathematics, etc.).
Each traditional philosophical subdivision has its own substantive, methodological, and normative elements. The substantive consists of the historical facts on who, what, where, when, and how. In other words, the substantive aspects include not only who wrote what but also the central conceptual relations to other philosophical historical developments. The methodological for each sub-disciplinary area in philosophy consists of the logical, analytical, or other discursive tools used in problem solving, for like any other discipline, to be relevant, philosophy sees itself as a “problem solving” activity. Finally, the normative dimension in philosophy—and its sub-disciplines—is represented in the oughtness of things. This oughtness is best understood as the meta-philosophical, speculative, utopian, or prescriptive (as opposed to proscriptive) aspect of philosophy.
I am here interested primarily in the methodological aspects philosophers have derived from CRT, for it is in the methodological that CRT attempts to gain a dialectical foothold for African Americans and other marginalized groups. Recall that CRT primarily uses: (1) the genealogical method; (2) storytelling; (3) the dialogical vs. monological; (4) standpoint epistemologies; and (5) the “new” socialism as a more humanly collaborative practice.
The Genealogical Method
Philosopher Michel Foucault developed the genealogical method in his from Friedrich Nietzsche’s Genealogy of Morals. Foucault’s emphases on the production of epistemes and how power influences the production of knowledge forced a reevaluation of the contingent historical production of knowledge. Knowledge and truth are thereby historicized in how power is used by reason—itself a production of power—in maintaining its own privilege. When that privilege necessitates racial subjugation, legislation, government, and jurisprudence are unconsciously deformed accordingly. Philosopher Rick Roderick describes this method as “reversal, take the perspective of the standard history and reverse it; marginality, take the focus off what has been thought to be central and look at the excluded; discontinuity, drop the idea of necessary progress and look for breaks and catastrophes; materiality, look at practices more than at ideologies; specificity, take single instances to illuminate larger points.”
These five genealogical methodologies—reversal, marginality, discontinuity, materiality, and specificity—derived from Nietzsche by Foucault, have become contemporary CRT’s regnant modalities.
Reversal
By reversal, crits interpret history as a process that creates power as the construction of a powerful elite. For example, in Plessy v. Ferguson (1896), the reversal in historical perspective stresses the construction by enfranchised Whites of the value of whiteness as a protectable commodity. Thus Plessy does not simply result from post-Civil War racism, as much as from the need to construct a property right in whiteness from John Locke’s ideals from the Second Treatise on Government concerning ownership: Whites supposedly have the right to legally protect the “property they have improved,” in themselves. Where are the margins of this reversed discourse located?
Marginality
CRT deploys the concept of marginality by taking what is given in canonical accounts as displaced from the center and bringing it back to the center in a reversal of structuring powers. Again, originally located in Nietzsche’s reversal of Christianity from “morality” to an immoral religion of the herd and Foucault’s building on this idea in Discipline and Punish, the reversal of the center to the marginal is central to the genealogical method. Foucault’s use of reversal is subtle, as he deploys the public disciplinary space of kings in a historical reversal to the private disciplinary space of individual guilt. On Foucault’s analysis, the objective Benthamite panopticon (all-seeing external gaze) is reversed into a subjective, self-carceral, punitive space where we are all guilty (if yet to be diagnosed or indicted). This reversal animates Foucault’s “micro-power” which circulates in ever-finer capillaries.
As Charles Mills emphasizes in “The Racial Polity,” the feminist strategy of taking what is marginal and bringing it to center as a form of political analysis is a transformational radical methodology. Mills correctly analyzes how “masked power” presenting itself as theory, when marginalized from centralized posturing—be they gendered, racial, or jurisprudential—allows inconsistencies to be revealed as more than historically contingent. Note that canonical analytic philosophers continually criticize Africana philosophy (including CRT) as being no more than contingently historical. Reversal and marginality show how theories have conceptual biases shaped by class power built into their structures. In the case for CRT, the U.S. legal and economic systems have structural majoritarian biases that can only be analyzed and subverted by de-centering.
Discontinuity
Methodologically central to CRT, discontinuity, is another important postmodern philosophical trope. Continuity refers to the assumptions flowing from the European renaissance that progress is a uniform attribute of historical processes. For much of Euromodernity, there was little suspicion that “progress” itself was a human invention. Thus a monotonically increasing scientific paradigm encouraged an overly optimistic view of human rationality. There was little suspicion that reason was “instrumental,” that is, if reason of any sort produced the desired power-conditioned outcomes it was considered legitimate. When the structural ideal of “progress” creates a uniformity of interpretation, interpretation is predetermined.
So-called progress is built into such views of evolution; a “teleological” view supervenes on historical interpretations. In the structural determination of precedent law, where progress is defined by the logical derivations of stare decisis, “to stand by that which is decided,” in the principle that the precedent decisions are to be followed by the courts, (The Lectric Law Library’s Lexicon, accessed July 10, 2007) a stultifying continuity is created which gives the impression of legal progress without actual progress: the idea of progress is built-in. This reality goes to the heart of CRT as a critique of failures of the Civil Rights Era’s legal promises for equality; where the laws indicated progress, there was a discontinuity in practice. Passing the laws represents progress in-itself, enforcing them produces a discontinuity. But discontinuities, like potholes in the road, are easily passed over by structures determined to make self-perceived uniformity in structural progress. The nexus connecting historicity and reversal, rupture, or what I’ve referred to as the genealogical method’s discontinuity, is a key to not only innovative legal processes, but also transformative racial justice.
Two of the most discontinuous legal cases in recent memory include those of O. J. Simpson and former Washington, D. C. Mayor Marion Barry. Both cases were perceived by the majority community as egregious breeches of the ability of the legal system to administer justice to the obviously guilty. CRT methodology insists that rather than trying to explain these occurrences as “anomalies” in otherwise continuous, progressively logical legal tableaux, they should be construed as sites for transformatively creative paradigm shifts. This discontinuity—a radical breech—is an expression of a judgment by jurors against the legal process itself. If a political system’s legislative processes, which sustains its legal processes, which sustains its economic structures fails to isolate its own structural biases, then jury nullification can become an effective subversive tactic.
By subverting the jurisprudential, the people are enabled to judge the judges, which, occurring frequently enough, can result in legislative processes aimed at structural legal readjustments. But this process can only occur in a context where there is a serious discontinuity—a break in the unacknowledged background sense of progress (or its lack)—that allows quantum transitions to different levels of discourse. Paul Butler’s invocation of jury nullification is not only a reaction to a discontinuity, but also a palliative:
Through jury nullification, I want to dismantle the master’s house with the master’s tools. My intent, however, is not purely destructive; this project is also constructive, because I hope that the destruction of the status quo will not lead to anarchy, but rather to development of non-criminal ways of addressing antisocial conduct. Criminal conduct among African-Americans is often a predictable reaction to oppression. Sometimes it is a symptom of internalized white supremacy; other times it is a reasonable response to the racial and economic subordination every African American faces every day.
Thus, as Paul Butler maintains, jury nullification as a radical reversal can be used to expose the discontinuities structured into global white supremacy. “Jury nullification,” he explains, “occurs when a jury acquits a defendant who it believes to be guilty of the crime charged.” After the O. J. Simpson acquittal, images of young blacks cheering produced a crisis in U.S. race relations. For many African Americans this acquittal was an indictment of the massive racist corruption of the Los Angeles police department. To begin to tell different stories concerning the law, race, and politics—not to even mention justice, fairness, and equality—ruptures (produces discontinuities) the ongoing normative accounts. These different stories must not only be told, but also provoked. In telling different stories disruptive practices are more important than structuring ideologies.
Materiality
CRT’s use of materiality as a trope for methodological analyses has deep philosophical roots. From Karl Marx’s “Eleven Theses on Feuerbach,” materiality comes to the fore when he concludes in the eleventh thesis: “Philosophers have hitherto only interpreted the world in various ways; the point is to change it.”
Rather than theorizing about how racial and legal concepts structure the realities of justice and equality, crits deploy a material analysis, where ordinary human practices structure and maintain ideologies. Materiality, as a device for understanding the production of things, ideas, commodities, and social constructs, as well as human beings themselves, is a “concrete” concept that offers a foundation for analyzing dominance and subordinance relations.
Sandra Bartky writes, “When workers lose control of the products of their labor or of their own productive activity, they have undergone fragmentation within their own persons, a kind of inner impoverishment; parts of their being have fallen under the control of another.” This Marxian alienation of self through material expropriation, by way of dominance/subordination relations, is a widely deployed CRT methodology. Race crits deploy the material expropriation of “sex” in maintaining patriarchy, “race” in the maintenance of white supremacy, and the “law” for maintaining “white privilege.” By alienating human subjects from the products of their labor by means of commodification, they are fragmented. In this resulting fragmentation, human subjects are more easily dominated. To be “gendered” is to have “sexuality” expropriated for purposes of fragmentation, alienation, and material exploitation. In Western societies, legal conceptions play structural roles in determining the boundaries of these dominance/subordinance relations.
Similarly, to be “raced” is to be exploited. Thus any dominance/subordination relation requires material expropriations and the mechanism to enforce the asymmetry. Marx understood that political systems purporting to be deducible from necessary first principles are, in actuality, contingent mechanisms resulting from protecting the practices of material productions. CRT practitioners understand that jurisprudence is not objectively separable from the structural materiality of production of the society in which it is practiced. Making these dominance/subordinance relations visible, and showing how they are imbricated in the material constructs of power, is Marx’s dictum “to change it.”
Specificity
When CRT methodologically deploys specificity, it goes to the heart of postmodern philosophical dilemmas. Historically, Western analytical philosophers have privileged the universal case over the particular case. The reasons for this go back to the beginnings of philosophy, where philosophy was conceived as a “fight against relativism.” Early Greek philosophers reacting to Protagoras’ “Man is the measure of all things,” sought to demonstrate that there was truth, beauty, knowledge, and goodness beyond the individual’s conception of them. Thus philosophers dismissed the specific and historical particularities of reality—William James’ “buzzing, blooming, confusion” of one thing after another—for regular, law-like nomological generalizations. In building philosophical systems, the universal became ascendant.
Proponents of postmodernity (“pomo”) locate one of the most egregious failures of modernity in this philosophical system building. Paul Rabinow writing on Foucault in his introduction to The Foucault Reader:
Foucault is highly suspicious of claims to universal truths. He doesn’t refute them; instead, his consistent response is to historicize grand abstractions…. For Foucault, there is no internal position of certainty, no universal understanding that is beyond history and society. His main tactic is to historicize such supposedly universal categories as human nature each time he encounters them.
Postmodern tensions between the relative importance of the universal and particular are resolved in the vaunting of the particular case. Ludwig Wittgenstein’s analysis that it is “our craving for generality…the contemptuous attitude toward the particular case” that leads us into error because of “our occupation with the method of science.”
Philosophers, blinded by the successes of science and believing that philosophy is science, invoke the universal at the expense of the particular. The universal subsumes the particular.
However, postmodern philosophers in insisting that there are “no grand narratives”—that is, no totalizing, systematic, explanatory systems—reverse the discursive practice of privileging the universal over the particular. Because there is no universal historicity, specificity trumps the general case. And in so doing crits are cognizant that, by doing so, they produce a paradox—the limits of language—in offering a universal judgement to deny universals. This “paradox” prevents crits from being overly enamored with ideologies and enables them to become overly enamored with people. What this means for practioners of CRT is that the voice of the individual is privileged over any canonical systemizations.
This methodology has deep resonances in philosophy. From many traditions—from Kantian deontology to the Frankfurt School—the move from universal totalizing axiological judgments to individuating, singular human perspectives is de rigueur: from the universal god’s eye view from everywhere sub specie aeternitatis, to the perspectival view of someone from somewhere in an historically situated structurally determined and socially constructed reality. Specificity requires that human particularity is more important than the totalizing theorizing of any systemizations.
Conclusion
Formalized in law schools and philosophy departments, CRT was schematized from several philosophical currents, among these: (1) the critical tradition (Frankfurt School), (2) the existential tradition, (3) traditional and contemporary continental philosophy, including deconstructionist French philosophies, and (4) emerging attempts to reconstruct liberal and socialist political ideologies. Thus, CRT is an analysis of “race” in its appearances as conceptual, political, economic, and/or ontological realities.
CRT is being taught in philosophy departments, African American studies programs, and Feminist Studies. As I have presented CRT methodologies—the genealogical method, storytelling, a critique of capitalism—epistemic and thus legal neutrality is questioned.
Yet, the realization by postmodern philosophers, including race crits, that there are no “grand narratives” prevents CRT from being elevated above other discourses; hence, it does not barricade itself behind “disciplinary boundaries.” CRT is an engagement, an immanent engagement with legal and political institutions and race, in the intersectionalities of the specificities that create individual identities and collective communities.
The methodological elements of CRT are thereby analytically useful beyond law school lecture halls. These methodological tools are useful in many areas of inquiry.
… critical race theorists address a broad span of issues having to do with race, and from a variety of perspectives. Most pay close attention to context and historical situation, valuing the individual over the universal in social and legal analysis. They also credit multiplicity, for example of narratives and identities, over broad generalization. They emphasize how legal rules and regimes look from the perspective of the disempowered and outsider groups—in Matsuda’s memorable phrase, “looking to the bottom.”
https://science.jrank.org/pages/8888/Critical-Race-Theory-Methodology.html, accessed July 10, 2007
The collaborative nature of CRT, in its cross disciplinarity, situates CRT in the interstices of standpoint epistemologies. Because there are many ways of knowing, there are racial, gendered, and class-centered truths that can only speak for themselves. CRT, as an attempt to legitimate the perspectival lived-realities of differently situated persons, is a humanism for not only racial, but also global, justice.
An earlier version of this article was published in the Georgetown Journal of Law & Modern Critical Race Perspectives Vol. 1, Number 1, Spring, 2009.
- These statistics have been updated to reflect APA statistics for 2018. The difference between the two statistics reflects a number of factors, including a difference in methodology. The statistics in the Critical Philosophy of Race article draw upon 2014 APA Member data as well as statistics for U.S. Ph.D. students in philosophy, according to the 2012 Grad Guide.
