Kimberlé Crenshaw, ‘Demarginalizing the intersection of race and sex: A Black feminist critique of antidiscrimination doctrine, feminist theory and antiracist politics.’ University of Chicago Legal Forum (1989) 139;
Patricia J. Williams, The Alchemy of Race and Rights. (Harvard 1991).
Sometimes our language fails us. We observe things in daily life—about our social interactions, our institutions, or the ways that laws are written and applied—and when we do not have the language to describe or measure these observations, then we innovate. We develop a vocabulary to express the experiences and patterns that we can substantiate but cannot yet name. This is the very essence of critical thought, and it means the difference between learning and mimicry.
Two writers who have been formative in my thinking about law’s role in society have argued that conventionally, law is imagined to provide a neutral playing field in terms of race and gender, and that an unquestioned acceptance of that neutrality leads to a deep misunderstanding of how the law affects those it is meant to serve.
Kimberlé Crenshaw, in “Demarginalizing the Intersection of Race and Sex” over three decades ago, made a profound critique of anti-discrimination law by examining the lack of protection Black women experienced in cases like Degraffenreid v. General Motors (Ed. Mo. 1976) because their claims were only legible to courts as race or sex claims. The policy in Degraffenreid perpetuated past discrimination against Black women (not Black men or white women) in a seniority scheme, and the court ruled that because Black men were not disadvantaged, Black women had no race discrimination claim, and because white women were not disadvantaged, they also had no sex discrimination claim. They had no discrimination claim at all. The criticism issued by Crenshaw assessed the legal doctrine in a way that really opened up a space to theorise not only how equality law might otherwise be conceived, but it invited a broader critique of single-issue struggles in the context of lawyering and broader social movements, building on the work of Black feminist organisers and scholars.
In a related way, but on a different conceptual point, Patricia Williams, in The Alchemy of Race and Rights, tells the story of renting a flat and insisting on a formal legal contract, even while her colleague, a white man, had been happy to settle on an informal arrangement. She could have mentioned this episode as though it were mere anecdote, but she did the much more difficult thing of exploring what this difference in position between herself and her colleague might reveal about the ways in which race and gender affect our sensibilities about law. Williams was a housing law practitioner, who was familiar with redlining and housing discrimination, which systematically disadvantaged the Black community. In the book, she negotiates the troubled terrain between wanting law to protect the Black community (contrary to some critical legal studies colleagues, who wanted less focus on rights-based approaches) and criticising the use of law, pointing to its ineffectual and sometimes harmful impacts.
Critical race theory, in its commitment to achieve greater understanding of both the global and acute problems that arise from the inability of law to consistently and directly apprehend its own investment in relations of power, is an indispensable part of contemporary legal scholarship.
Eddie Bruce-Jones, Birkbeck College, University of London