Critical Race Theory has a Justice Problem
It’s ironic that Critical Race Theory (CRT) developed out of a desire to liberate people from oppression and promote justice. Yet, one of its major issues is that it does the opposite. A bit of history is necessary as well as the introduction of a term that may be somewhat unfamiliar though the idea it conveys has become a mantra to those in the social justice movement.
CRT as we know it today arose in the field of legal studies. Most look to a workshop held in Madison, Wisconsin in 1989 as the inauguration of modern CRT. One of the main proponents of CRT in legal studies was and is Kimberle Crenshaw. She developed the idea of intersectionality. In a paper entitled “Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics” written in 1989 she first introduced this idea to the world. In other works Crenshaw expands on this idea but essentially intersectionality is,
The crisscrossing of categories of oppression in society, including race, class, gender, sexuality, age ability, citizenship, and body type. (cf Strachan)
Crenshaw uses the analogy of, not surprisingly, an intersection to show how intersectionality works.
Consider an analogy to traffic in an intersection, coming and going in all four directions. Discrimination, like traffic through an intersection, may flow in one direction, and it may flow in another. If an accident happens in an intersection, it can be caused by cars traveling from any number of directions and, sometimes, from all of them. Similarly, if a Black woman is harmed because she is in the intersection, her injury could result from sex discrimination or race discrimination.
In the work cited above Crenshaw examined how black women are treated in the legal system in cases of discrimination. She looked at three legal cases and in all of them she concluded that the courts demonstrated a narrow view of discrimination according to a “single-axis framework.” Her point in the paper was to contrast a “multidimensionality of Black women’s experience with the single-axis analysis that distorts these experiences.” In other words, when the courts deal with cases of discrimination against black women they tend to view them as either black or women but never both. So sex discrimination is based on the woman, but forgets about the race of the individual and racial discrimination is based on the black aspect of the person but forgets about the woman part. But, Crenshaw argued, often discrimination is a result of a combination of the two. Thus the treatment of black women in the courts has ignored the issues that face black women as a unique group.
In particular, courts seem to think that race discrimination was what happened to all black people across gender and sex discrimination was what happened to all women, and if that is your framework, of course, what happens to black women and other women of color is going to be difficult to see.
The way Crenshaw has outlined this theory it is easy to see that it offers a valuable insight into understanding the individual station of a person. We are all more than a single identifier whether that be gender, race, sexuality, body type, financial status, etc. We are all a product of the intersection of multiple factors that make us who we are. Crenshaw has stated elsewhere that intersectionality is not “an effort to create the world in an inverted image of what it is now” but to create space “for more advocacy and remedial practices” in order to create a level playing field for all. Simply put, Crenshaw has recognized that people experience the world differently because we are all different and recognizing that is an important part of how we treat individuals. This is really a commonsense notion so no problems here.
The problems arose when this concept went viral and became a part of the social commentary of people who are “woke” or who pursue “social justice” but have no concept of what Crenshaw actually said. She has stated that she has no desire to create a “new caste system” or to have her theory used as anything other than an observational prism for the legal system to recognize their blind spots.
The problem, as usual, is in the execution. Two examples from Crenshaw's own works reveal that she herself has contributed to misunderstandings of her original theory despite her objections to the contrary. First, she has said in her essay, “Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color,” (1991) that, We all can recognize the distinction between the claims ‘I am Black’ and the claim ‘I am a person who happens to be black.’ In other words, for Crenshaw being black is more central to her identity than being human or even being a woman. (cf Demarginalizing, 154) Second, a facile reading of her essay “Mapping the Margins,” reveals that despite her desire to see people at the intersection of numerous identities she is fixated on seeing people according to bifurcated categories - the oppressed and the oppressor. These terms occur frequently throughout her essay.
It is no wonder, then, that her idea of intersectionality has taken on a new life she may have never intended.
Many groups, be they feminists, Black Lives Matter, fat theorists, gender studies, the LGBTQ+ community, etc., have taken her idea and applied it to their group identities and have emphasized the intersection of all sorts of oppressions for their group which create a unique oppressive lived experience for their particular group. Again, if we are asked only to recognize that people experience things differently and we need to be aware of that fact as we interact with them, no problems.
But this is not what most of the above theorists have done with CRT and intersectionality. Instead, Crenshaw’s insights are used as an inverted pyramid to subjugate those beneath them. Those who have the most opportunity to be oppressed due to their intersectional existence are at the top and those who have the least opportunity to be oppressed are at the bottom. This has been called a “hierarchy of victimhood.” (Shapiro) What happens in this hierarchy is those who have more intersections of oppression, the higher you are up the pyramid, are granted the right to speak and they are the ones to whom those who are lower on the pyramid must listen. (This is called “standpoint epistemology.”) Those of us who are at the bottom of this inverted pyramid must ‘check our privilege’ and listen to the victims of intersectional oppression above us and make reparations for our past offenses against them.
Let me give a simple example. If you have ever been on Facebook, or Instagram, or Tik Tok, or any other social media platform, (or been in a University classroom) and have heard a person introduce themselves thus - ‘My name is Jared and I am a straight, white, middle-aged, male and my pronouns are he/him’ - you have come face to face with CRT in general and with intersectionality in particular. This type of introduction explains to you what kind of ‘intersection’ I am at as a person and warns you of the myriad ways in which you could oppress me if you disregard any aspect of this information. [By the way since I am a straight, white, middle-aged, male with heteronormative pronouns I am an oppressor and cannot be oppressed; I am at the point of the inverted pyramid. So say what you want about me and all of my privileges. I deserve all of the negativity you can heap on me!]
Herein lies the justice problem CRT faces. Against what Crenshaw has desired her theory has become a new caste system and it is reshaping the way we are asked to think about justice. Let me identify only 5 ways in which CRT has a justice problem.
There is the assumption that oppression is occurring everywhere to just about everyone with limited if any proof of said oppression. This is not to deny that there is oppression in our world. There is. But to suggest that racism is systemic, that it is a part of the culture and society in which we live (Ibram Kendi and Robin DiAngelo have built very lucrative careers on this assumption) needs to be demonstrated. Statistics are not good enough; they are too easily manipulated. If intersectionality teaches us anything it is that the kinds of single-factor conclusions regarding race that Kendi and DiAngelo ask us to believe are presuppositions that color our view of the world. [We could include the kinds of single-factor conclusions that many of the above mentioned groups offer as well.] Whenever our view of people is narrowed into the oppressed and the oppressor, justice is not possible.
Further, social disparities are not injustices. As we noted above, this is an assumption which requires demonstration. Such phrases as “white privilege,” “systemic racism,” “standpoint epistemology,” and the like, need to be proven to exist, not just rhetorically created. We cannot simply declare something and have it be a reality, as Michael Scott discovered about bankruptcy. As we will discover in our next blog, truth matters. Specifically, propositional truth matters. Truth grounds us. It provides the standard against which our lived experience is tested. If social disparities are indeed unjust, well that changes things. But until such time as they are we must reject this assumption as created by rhetoric and defended by the faulty interpretation of selectively chosen statistics.
CRT claims to be an advocate of those who pursue justice, but what it creates is a victimhood mentality that works against justice. The inverted pyramid of CRT simply flips the so-called oppressor and oppressed. It gives those who have intersectional reasons to feel oppressed the power to make their former oppressors pay for what they have done. As many have observed, CRT does not create peace, safety and objective justice but division, rage, hostility and resentment that masquerades as justice. For example when many took to the streets to ‘protest’ in the name of Black Lives Matter their destruction, violence and breaking of COVID mandates were brushed off by the authorities as justified since they were the oppressed fighting against their oppression. The law, in short, was set aside because the perceived victims had the ‘right’ to fight their ‘oppressors.’ Victimhood as a subjective category cannot be the basis of a justice system.
When ‘justice’ becomes distributive rather than retributive there is no justice at all. Retributive justice is rendering to each what they deserve. Distributive justice is flattening the privilege amongst all people. (cf Strachan) Essentially this is the application of a desire for equality of outcome (equity) rather than equality of opportunity applied to justice. An example of this type of thinking can be seen on display in the desire of our Canadian government to offer reparations to Native Canadians for past actions dating back, in some cases, centuries. This attitude tells us that we today are judicially guilty of the failures of our ancestors who may or may not have actually broken any laws. “Said differently, in CRT thinking, the fundamental concern of civil law is not to apply justice proportionate to human actions, but to enact “social justice” based on cultural considerations.” (Strachan) This contradicts what the Bible says regarding the function of secular law. (see Romans 13:3-4) It is also not true justice in any meaningful way.
Socialism, which is the foundation upon which CRT is built, has proven to be an enemy of justice. We don’t want to commit the genetic fallacy here but there are enough explicit Marxist principles within CRT writings that we can very easily connect the fundamentals of Marxism with the foundations of CRT. Here’s the rub. Any system that believes our society is divided into the oppressed and the oppressors based on an inverted pyramid of intersectional realities is one that supports a hierarchy that works against justice. In fact, it becomes more unjust than the system which it is opposing. Further, the desire to level society in order to provide ‘justice’ is a failed socialist principle that has led to increased injustice. There is simply no way to level society in such a way that all people are granted the same starting point. Attempts to do so have always gone awry.
Despite Crenshaw’s objections her exposition of intersectionality damages the pursuit of justice. We need another principle to inform our pursuit of justice. Those principles are found in Scripture and are demonstrated in the gospel. In the gospel we see that God’s justice is based on truth, not felt experiences or perceived injustices or racial dynamics. All people are level at the foot of the cross. In the gospel we see that justice is designed to be exclusively retributive - giving people what they deserve regardless of what their intersectional existence may have been. In the gospel we see that God will one day set all things right and without his view of justice we will always mess up its legal application. But praise God that one day all of our misapplications of justice will be righted. He will give to all as they truly deserve. In the gospel we also see that justice and mercy are not the same thing; they are distinct. Justice is giving people what they deserve and mercy is God not giving us what we deserve. Praise God that in his mercy he has chosen to lay the sins of his elect upon his Son thereby satisfying his justice.
Soli Deo Gloria