What Does “Law” Mean to the Powerless?

Richard Delgado and Jean Stefancic, Critical Race Theory: an Introduction, Third Edition

You probably discovered Critical Race Theory recently, like I did, through the news. For some reason, in the late summer of 2020, right-wing media pundits rapidly coalesced around Critical Race Theory as a major force undermining stable American government, threatening to throw society into hasty disarray. As often happens with media-driven moral panics, the great spokespeople never defined the monster they inveighed against. They just screamed bloody murder until their complaints seemed mainstream and commonplace.

University of Alabama law professors Richard Delgado and Jean Stefancic wrote the first edition of their introductory textbook during the Clinton Administration, when CRT (as they abbreviate it) was emerging from the scholarly circles which created it. The third edition dropped as the Obama years transitioned into Donald Trump, which presumably isn’t coincidental. But calling it a “textbook” makes it seem falsely imposing and threatening: it’s little more than a pocket-sized pamphlet with discussion questions.

“Critical theory” carries the whiff of philosophy and important literature. But CRT originated in law schools in the 1970s, and by the 1980s it spread rapidly throughout the social sciences. It dealt specifically with the interaction between law, as an ideal of social order, and the ways ordinary Americans lived their lives. (Its origin was specifically American, though it eventually spread internationally.) That interaction, CRT’s proponents insist, is often harsh, lopsided, and laden with friction.

Delgado and Stefancic trace CRT’s origins to Derrick Bell, the Harvard Law School professor who influenced both Barack Obama and Ian Haney López. Bell asked pointed and timely questions about how the law, an abstract and theoretical entity, interacted with non-White citizens at ground level. Then, having asked such questions, he began proposing answers. His solutions remain often controversial, partly because they involved forms of direct action that had fallen on disfavor by the 1980s.

However, anybody who’s ever studied critical theory knows that no theory is ever unitary and self-contained. Just as Professor Bell proposed important interpretations of law, others, including Haney López, and even Delgado himself, identified other interpretations, valuable inconsistencies, and questions beneath questions. Therefore, this text doesn’t present a list of closed debates and clearly defined right answers. It describes the controversies which define CRT, and the interaction between race issues and the law in general.

Our authors give very brief summaries of what they call CRT’s “hallmark themes,” which largely orbit two questions: how ingrained is racism in American law, and what policy-based remedies should America undertake? In later chapters, they delve into issues like how personal empathy, despite its well-meaning, doesn’t address underlying structural issues, and how the narratives which minority citizens provide can steer policy debate. They also question how to address the partisan backlash CRT has received.

Richard Delgado, left, and Jean Stefancic: official University of Alabama photos

Right-wing opposition to CRT probably derives from two points which Delgado and Stefancic explore. First, CRT assumes that racism is fundamentally constructed into American social structure, and therefore cannot be expunged by persuading individuals to not be bigoted. In other words, racism isn’t an individual behavior or character failing, it’s written instrumentally into American law. Fixing American racism will mean major structural alteration to American law— and exactly what structures need altered isn’t necessarily clear.

Second, CRT is fundamentally deterministic. Yes, our authors use the word “determinism” frequently, a term pinched from philosophy, though they cite legal scholarship to justify it. That is, our authors believe, as CRT does, that human will is circumscribed, and our choices are determined by economics, social pressures, and other external forces. Therefore, people cannot simply choose to obey the law, especially when the law opposes the external forces which determine your scarce available choices.

Again, the authors intend this book for classroom application, though it’s written in non-specialist English and reasonably priced. Therefore, they include discussion topics and classroom exercises. Unlike the main text, the classroom exercises seem more pointedly partisan, written to steer participants toward a determined outcome. As a sometime teacher, I feel squeamish about these exercises, and would probably write my own. However, the provided exercises provide a useful jumping-off point for self-scrutiny and personal study.

CRT isn’t only one subject, our authors remind us. It’s a rubric for historical questions from the latter Civil Rights era, and a guidepost into important burgeoning questions about the differing needs of different races, for instance, or where LGBTQIA+ concerns overlap race. As the title implies, this brief ledger only introduces a more complicated topic. However, for anyone interested in the friction between power and people, it provides a compelling synopsis for future studies.