PreprintPDF Available

What if Critical Race Theory Were Just a Legal Theory? A Christian Critique

Authors:
Preprints and early-stage research may not have been peer reviewed yet.

Abstract

17 Liberty University Law Review (forthcoming, Fall 2022)
DRAFT
June 2022
17 Liberty University Law Review (forthcoming 2022)
1
What if Critical Race Theory Were Just a Legal Theory? A Christian Critique
Timon Cline and Neil Shenvi
Introduction
The national debate, both inside and outside the church, over the merits and demerits of Critical Race
Theory (CRT) continues to grow.
1
The authors of this paper are Christians and staunch critics of CRT, but
nevertheless regularly engage with Christians who find CRT legitimate, useful, and non-threatening to
Christian theological commitments.
One retort that we have repeatedly encountered in this setting is the claim that CRT is just a legal theory
developed by certain scholars in the late 1970s and 1980s to examine the interaction of racism and law.
The intent of this "just a legal theory" quip is often to show that our criticisms of CRT are overblown or
misplaced, and that our concerns are due to a misunderstanding of the essence and purpose of CRT--
namely, that it’s merely a variant mode of legal analysis. The further insinuation is that --as an esoteric
legal theory-- CRT cannot possibly present a clear and present threat to the church, or to the doctrine and
life of her members.
It is, of course, true that CRT originated within legal scholarship. However, it did not stay there for long,
nor was it intended to. CRT was meant to defy disciplinary lines, and its early advocates hoped it would
have an impact beyond the scope of legal theory: "Critical Race Theory does not simply seek to
understand the complex condominia of law, racial ideology, and political power. We believe that our
work can provide a useful theoretical vocabulary for the practice of progressive racial politics in
contemporary America."
2
In truth, CRT scholarship increasingly traverses disciplinary boundaries and spawns new disciplines. In
the introduction of Richard Delgado’s and Jean Stefancic’s seminal text CRT: An Introduction, Angela
Harris boasts that CRT literature is “read in departments of education, cultural studies, English, sociology,
comparative literature, political science, history, and anthropology.
3
Delgado and Stefancic add that its
ideas are deployed by “political scientists… women’s studies professors…sociologists, theologians, and
health care specialists.”
4
New applications for its commitments, insights, and fundamental worldview are
seemingly endless. Accordingly, the "just a legal theory" rejoinder is a remarkable oversimplification of
CRT, one that contradicts the interdisciplinary dynamics and intents of critical social theory scholarship
itself, and erroneously ignores the undeniable outgrowth of CRT in popular culture and national politics.
But granting, for the sake of argument, that CRT is just a legal theory, our opinion regarding CRT does
not change. The assumptions and central tenets of CRT regarding law present myriad problems,
especially for Christians. In this paper, we will show that CRT, even narrowly construed as a merely legal
discipline, is still in fundamental conflict with Christianity and is based on misguided and deleterious
views of law, morality, truth, and justice.
1
For a summary of CRT commonplaces, see Tara J. Yosso, "Whose culture has capital? A critical race theory
discussion of community cultural wealth," Race Ethnicity and Education 8(1) (2005), pp. 73-74; Aja Y. Martinez,
"Critical Race Theory: Its Origins, History, and Importance to the Discourses and Rhetorics of Race," Frame 27(2)
(Nov. 2014), pp. 9-27; Mari J. Matsuda, et al., Words That Wound (Boulder, CO: Westview Press, 1993), pp. 6-7.
2
Kimberlé Crenshaw, et al., Critical Race Theory: The Key Writings That Formed the Movement (New York: The
New Press, 1995), p. xxvii.
3
Richard Delgado & Jean Stefancic, Critical Race Theory: An Introduction, 3rd ed. (New York: New York
University Press, 1984), p. xx.
4
CRT: An Introduction, pp. 7-8.
DRAFT
June 2022
17 Liberty University Law Review (forthcoming 2022)
2
Our paper is organized as follows: Part 1 sketches the origin of CRT. Understanding the historic
antecedents of CRT is important for fully grasping its unique pathologies. Part 2 will articulate CRT's
view of law and the outcomes (intended and untended) that follow therefrom. Part 3 will provide several
examples of how the ideas of CRT play out in practice. In these sections, we’ll provide minimal critique,
aiming instead to accurately describe CRT, drawing heavily on the writings of CRTs themselves. Part 4
will present a Christian critique of the crits, paying particular attention to CRTs denial of a divine moral
grounding for the law, its cynicism, its rejection of procedural justice, and its views of gender and
sexuality. Finally, Part 5 will offer brief conclusions.
Part 1: Origin Story
From Formalism to Realism: Law as Fiat
The story of CRT begins with the legal realism movement of the early twentieth century. Legal realism
rejected what it called "formalism," the idea that legal rules could be gleaned from self-evident first
principles, and that stable, repeatable answers to legal controversies could be deduced from agreed upon
premises.
5
"Formalism" or traditional legal thought presumed that law could, at least potentially, be
rational, apolitical, and fairly technical, operating as a sort of "institutional regulative principle."
6
The
realists argued that formalists erroneously pretended that law was isolated from parallel social
phenomena, a naïve dependence on the myth of apolitical, neutral methodologies..
Put another way, contra the classical tradition which endured into the nineteenth century, law was no
longer reason plus will, but will only. Obligation to legal commands is derived simply from the coercion
of a recognized authority. As Brian McCall has said reflecting on modern legal movements, "If law is
merely an artificial fabrication of men, then it can be whatever men want it to be."
7
On this view, law
need not be reasonable in the classical sense. Law is binding if those in power ordain it. And politics is
reduced to little more than a contest for the levers of power.
Realists engaged in this "debunkingexercise to expose inconsistencies in legal holdings and prove that
something other than impartial fealty to transcendent principles and neutral procedural rules was
governing the adjudication process.
8
Interacting political interests were the true drivers of legal regimes,
with law itself being little more than a facade.
From Realism to CLS: Law as Politics
Critical legal studies (CLS), the direct precursor of critical race theory, picked up where the realists left
off, adopting its cynicism towards legal reasoning while pushing it farther. Drawing on emerging social
5
See generally Karl Llewellyn, "A Realistic JurisprudenceThe Next Step," 30 Colum. L. Rev. 431 (1930). C.f.
Roscoe Pound, "The Call for a Realist Jurisprudence," 44 Harv. L. Rev. 697 (1931); Llewellyn, "Some Realism
about Realism: Responding to Dean Pound," 44 Harv. L. Rev. 1222 (1931).
6
Key Writings, p. xviii.
7
McCall, The Architecture of Law: Rebuilding Law in the Classical Tradition (Notre Dame University Press, 2018),
p. 4. "[The] relationship between law and reason is clearly distinguished from positivism, which accepts as law
anything that merely meets the currently reigning procedural requirements for making a law. For the natural law
system, such is not sufficient; to be a law, the rule and measure must agree with or stand in the faculty of reason, not
merely the will." Ibid., pp. 12-13. In this context, inter alia, "reason" refers to means being fitted to justifiable ends
by a proper authority for the common good. Furthermore, law, to be reasonable, must be "rooted in the metaphysical
realities of human nature." Ibid., p. 21.
8
G. Edward White, "From Realism to Critical Legal Studies: A Truncated Intellectual History," 40 Sw L.J. 819, 823
(1986).
DRAFT
June 2022
17 Liberty University Law Review (forthcoming 2022)
3
theories of the New Left and Critical Marxist scholarship from the continent,
9
CLS presupposed that the
legal system is tilted in favor of the powerful.
10
Law, like everything else, is not insulated from human
power dynamics; judges were glorified policy makers, as the realists had held. But unlike the "vulgar" or
"scientific" Marxists,
11
CLS appreciated that law is not merely an "ideological reflection" of concrete
socio-economic reality, but rather that law acts to constitute the power dynamics and social interests that
it, in turn, reflects.
12
Stated differently and in the spirit of Antonio Gramsci,
13
law masks the fact that we could choose or act
differently. Law is a justification for the way things are and, by extension, a mere mechanism of
coercion.
14
As the unofficial CLS mantra goes, law is politics by another means.
15
Under a CLS paradigm,
law is "ideology." As Emilios Christodoulidis helpfully explains, whereas colloquially ideology refers to
a set of ideas or beliefs, "in the understanding of critical theory it is related to a function. This function is
to sustain relations of domination."
16
The larger point is that law is not based in transcendent principles
predicated on human nature but rather functions as a mechanism of coercion in service of preexisting
structures of domination, both reflecting and contributing to them.
CRT sprang from certain intramural conflicts within Critical Legal Studies, which reached its zenith in
the 1960s and 1970s.
17
But as we will see, the emergence of CRT from CLS did not imply that CRT
rejected the basic outlook of CLS. Far from it.
From CLS to CRT: The Great Divorce
9
See generally James Boyle, "The Politics of Reason: Critical Legal Theory and Local Social Thought," 133 U.
Penn. L. Rev. 685 (1985). White, "From Realism to Critical Legal Studies," p. 837 n 86 (citing Theodore Adorno,
Jurgen Habermas, Max Horkheimer, and Herbert Marcuse of the Frankfurt School, Michael Foucault and Jacques
Derrida of the "French linguistic philosophers," and the renewed interest in Antonio Gramsci, George Lukacs, and
Jean-Paul Sartre on the New Left).
10
Mark V. Tushnet, "Critical Legal Theory," in The Blackwell Guide to the Philosophy of Law and Legal Theory,
eds. Martin P. Golding & William A. Edmundson (Malden: Blackwell, 2005), p. 81. On the relationship between
CLS and Marxism, see Akbar Rasulov, "CLS and Marxism: A History of an Affair," 5 Transnational Legal Theory
622 (2014).
11
John Henry Schlegel, "Notes Toward and Intimate, Opinionated, and Affectionate History of the Conference on
Critical Legal Studies," 36 Stanford L. Rev. 391, 393-394 n 9 (1984).
12
See generally Raymond Williams, Problems in Materialism and Culture: Selected Essays (Brooklyn, NY: Verso,
1980), pp. 31-63.
13
Whilst most CLS scholars would not identify with classical Marxism, the influence of the neo-Marxist tradition
and later continental movements is evident. See generally James Boyle, "The Politics of Reason: Critical Legal
Theory and Local Social Thought," 133 U. Penn. L. Rev. 685 (1985). C.f. John Stick, "Review: Charting the
Development of Critical Legal Studies," 88 Columbia L. Rev. 407 (1988).
14
Alan Hunt, "The Theory of Critical Legal Studies," Oxford Journal of Legal Studies 6 (1986), p. 1. "Critical Legal
Studies, Critical Race Theory, and Feminist Theory," in Arguing About Law, eds. Aileen Kavanagh & John
Oberdiek (New York: Routledge, 2009), p. 572. See also Roberto Unger, "The Critical Legal Studies Movement,"
96 Harv. L. Rev. 561, 578-584 (1983).
15
Mark V. Tushnet, "Critical Legal Theory," in The Blackwell Guide to the Philosophy of Law and Legal Theory,
eds. Martin P. Golding & William A. Edmundson (Malden: Blackwell, 2005), p. 80. Schlegel, "Notes Toward and
Intimate, Opinionated, and Affectionate History of the Conference on Critical Legal Studies," 36 Stanford L. Rev. at
398.
16
Christodoulidis, "Critical theory and the law," in Research Handbook on Critical Legal Theory, eds. Emilios
Christodoulidis, Ruth Dukes, & Marco Goldoni (Cheltenham, U.K.: Edward Elgar, 2019), p. 12. See also Ibid., p. 2
17
See generally G. Edward White, "From Realism to Critical Legal Studies: A Truncated Intellectual History," 40
Sw. L.J. 819 (1986). Kimberlé Crenshaw, "Twenty Years of Critical Race Theory: Looking back to Move Forward
Commentary: Critical Race Theory: A Commemoration: Lead Article," Conn. L. Rev. 117 (2011). Tushnet, "Critical
Legal Studies: A Political History," 100 Yale L. J. 1515 (1991).
DRAFT
June 2022
17 Liberty University Law Review (forthcoming 2022)
4
Just as CLS adopted and developed many of the same principles as the legal realist movement, CRT
adopted and developed many of the same principles as CLS. What, then, led CRTs to create a discipline
that would separate from and eventually overshadow CLS?
First, CRTs felt that CLS was too abstract and too purely deconstructive. CLS had a penchant for
"trashing" western legal regimeswith special disdain for the "myths" of the law's determinacy,
coherence, intelligibility, and legitimacy. Given that CLS envisioned law as inescapably political, it
sought to expose the political presuppositions behind purportedly neutral procedures and adjudicatory
methods.
18
However, the "trashing" exercise, in part, created friction between racial minority and white scholars
within the movement and eventually led to the CLS-CRT divorce. Not only did CLS scholarship not
sufficiently incorporate a critique of racial power,
19
but it also failed to recognize the at least pragmatic
(political) use of "rights discourse"which CLS argued was too individualistic, indeterminate, and
artificial, and, therefore, alienating
20
and other "liberal" legal mechanisms.
21
In the lived experience of
the "crits of color," rights discourse held immense, if merely instrumental, subversive and transformative
power that went beyond the decidedly less urgent question of whether legal results were determinate.
To illustrate imperfectly, CRT might posit that the entire American electoral system is engineered to
suppress black participation, but it is nevertheless willing to employ existing democratic means to subvert
and dismantle it, where CLS (in this example) would elect to totally abstain from participation.
Accordingly, to many sympathetic racial minority scholars, the CLS paradigm was limiting rather than
enabling liberation. Cynicism overwhelmed activism. While CLS mastered the art of "negation" and the
"immanent critique,"
22
it failed to turn critique into a force for change, especially for the racially
marginalized. From the perspective of the then-emergent CRT cadre, CLS was producing little more than
the armchair philosophy Marx so detested.
Second, CRTs believed that CLS did not take race seriously enough. From the CRT perspective, CLS
failed to acknowledge the "particularity of race" and the "racial character of social interests" within a
"racialized state."
23
In other words, CLS lacked "color-consciousness." By affirming that race is a social
construction, as CRT does, CLS went too faror not far enoughby insisting that race should be
irrelevant to law and policy. By contrast, CRT affirmed that race is not a biological category but insisted
that race is "real" in that it does matter for law and policy in a "racialized society" wherein people are
"raced." Race consciousness, then, argued CRT, was essential for social change.
24
CLS's problem was
that, like most liberals in the late 1980s, it exhibited a general indifference to questions of racial ideology
and racialized systems of domination; it paid no attention to how the law worked to crystalize racial
18
Alan Freeman, "Truth and Mystification in Legal Scholarship," 90 Yale L.J. 1229, 1230-31 (1981).
19
Key Writings, p. xxv. See also Kimberlé Crenshaw, "Twenty Years of Critical Race Theory: Looking Back to
Move Forward," 43 Conn. L. Rev. 155, 164 (2011).
20
Peter Gabel, "The Phenomenology of Rights-Consciousness and the Pact of the Withdrawn Selves," 62 Texas L
Rev. 1563 (1984); Mark Tushnet, "An Essay on Rights," 62 Texas L. Rev. 1363, 1371-1382 (1984.
21
See e.g., Richard Delgado, "The Ethereal Scholar: Does Critical Legal Studies Have What Minorities Want?" 22
Harv. Civ. Rights-Civ. Liberties L. Rev. 301 (1987). Tushnet, "Critical Legal Theory," pp. 88-89. For Delgado's
account of the three-fold genesis of CRT, see "Liberal McCarthyism and the Origins of Critical Race Theory," 94
Iowa L. Rev. 1505 (2009).
22
Christodoulidis, "Critical theory and the law," p. 26.
23
Key Writings, p. xxvi.
24
Ibid., p. xxvi.
DRAFT
June 2022
17 Liberty University Law Review (forthcoming 2022)
5
domination (i.e., white supremacy). The liberalism of CLS instigated resistance to the "race turn" within
the movement and presented an impasse.
25
Though CRT distanced itself from CLS's deconstructivist excesses,
26
none of this narrative suggests that
CRT forsook the basic assumptions and convictions of CLS, viz., its outlook on law.
27
On the contrary,
28
CRT repurposed (and expanded) said fundamentals for their allegedly neglected concerns. Indeed, the
"critical perspective" of law pioneered by CLS provided the "basic building blocks" for CRT,
29
so that the
political commitments of "traditional civil rights scholarship"while maintaining its distinctions from
the same
30
could be linked with the methods of CLS.
31
CRT continued to critique the liberal
("traditional") legal language of objectivity and neutrality, etc.
32
To summarize thus far, the key move made by CRT in its formal break with CLS was the introduction of
"racial ideology as a necessary component of hegemony."
33
CRT also coupled "race consciousness" with
"legal consciousness"how CLS described its awareness of the traditional legal norms, ideas, and
traditions that provided law with its veneer of neutrality, objectivity, and "process perspective."
34
Part 2: Race and Law
Having sketched the history of CRT, we turn next to its core themes, as they relate to law and legal
theory. We’ll mention four: radical reconstruction, law as Eurocentrism, the call to context, and
skepticism towards truth.
"Jurisprudence of Reconstruction"
As mentioned above, CRT did not represent an outright rejection of CLS. Rather, as Kimberlé Crenshaw
puts it, race crits were initially "attracted and repelled by certain elements of liberal civil rights
discourses, and at the same time, attracted to and repelled by certain discursive elements within CLS."
35
Accordingly, CRT combined “radical,” "modernist," and "postmodernist" narratives.
First, the "radical" critiquelocating problems deep within the structure of American law rather than the
surface level doctrines that typically occupy legal theoristslived on in conjunction with a conviction
that racism was "an inescapable feature of western culture, and [that] race is always already inscribed in
the most innocent and neutral-seeming concepts," and the traditional civil rights goal of emancipation.
36
25
See Crenshaw, "Twenty Years of Critical Race Theory," pp. 1291-1292.
26
See generally Jack Balkin, "Deconstruction's Legal Career," 27 Cardozo L. Rev. 719 (2005).
27
Key Writings, pp. xxvi-xxvii. Angela P. Harris, "Forward: The Jurisprudence of Reconstruction," 82 California
Law Review 741-745 (1994).
28
Harris, "Jurisprudence of Reconstruction," p. 751.
29
Key Writings, p. xxii.
30
See e.g., Daniel Farber, "The Outmoded Debate Over Affirmative Action," 82 California Law Review 893-894
(1994).
31
Harris, "Jurisprudence of Reconstruction," pp. 741-742. See also Kimberlé Crenshaw, "Mapping the Margins:
Intersectionality, Identity Politics, and Violence against Women of Color," 43 Stanford Law Review, 1241, 1253
(1991).
32
See e.g., Richard Delgado & Jean Stefancic, "Hateful Speech, Loving Communities: Why Our Notion of 'Just
Balance' Changes So Slowly," 82 California Law Review 851, 861 (1994).
33
Key Writings, p. xxx.
34
Barbara Flagg, "Enduring Principle: On Race, Process, and Constitutional Law," 82 California Law Review 935
(1994).
35
Crenshaw, "Twenty Years of Critical Race Theory," p. 1287.
36
Harris, Jurisprudence of Reconstruction, p. 743.
DRAFT
June 2022
17 Liberty University Law Review (forthcoming 2022)
6
Second, the "modernist" critique assumed that dominant groups engage in ideological obfuscation,
eschewing "the way it really is" in favor of comforting myths. The modernist critique also aimed to
combat false consciousness by challenging what it sees as false conceptions of "racism." CRTs believe
that dominant groups tend to wrongly define racism as intentional, isolated, and individual phenomena
akin to prejudice rather than as a structural flaw of society writ large. The immediate end goal here, often
accomplished through "storytelling," is "ideological transformation," a subversion of the "confident
certainties" of liberal society.
37
Though CRTs are often accused of relativism (more below), they are
thoroughgoing modernists with respect to the objective immorality of racism, oppression, domination,
etc.
Finally, the postmodernist narrative questioned whether any "way it really is" exists behind the status
quo, opting rather to embrace the "politics of difference," and submit to the perpetual competition of
competing ideologies. Instead of subverting the "modernist" critique, the postmodern posture of CRT
enables deeper questioning. Per Angela Harris, "Even ideas like 'truth' and 'justice' themselves are open to
interrogations that reveal their complicity with power."
38
As Gary Peller describes postmodernism in
critical legal scholarship,
"[Postmodernism] suggest[s] that what has been presented in our social-political and our
intellectual traditions as knowledge, truth, objectivity, and reason are actually merely the
effects of a particular form of social power, the victory of a particular way of representing
the world that then presents itself as beyond mere interpretation, as truth itself."
39
Equipped with this postmodern sensibility, CRTs questioned the extent to which any "real reality"
underlying the ideology of law exists at all. Perhaps, "ideology is all there is."
40
And ideology, at all
times, is merely a mechanism of constraint.
One might think that the tension between these various competing strands would be unbearable: how does
one synthesize radical, modernist, and postmodernist tendencies within a single movement? The simple
answer is that CRT is intensely pragmatic. The motive force behind CRT is and has always been the
antiracist, liberatory impulse. When modernist ideas further their goals, crits are happy to embrace them.
But they are just as happy to discard these ideas when postmodernist or radical tools work better.
"Law as Eurocentric Enterprise"
Gazing at law through a newly affixed lens of racial power, CRT reconceived it as fundamentally
Eurocentric, white, and male, and, therefore, racist, misogynist, and patriarchal.
41
From this perspective,
law is simply one piece of ideology in the hegemonic apparatus that promotes white values and interests,
not just a class tilt, over and against the "Other." Indeed, the presupposition here, drawn from postcolonial
theory, is that white, western culture cannot define itself absent this process of negating whatever is
deemed not western.
42
Per Kenneth Nunn, law contributes to the white hegemony by directing cultural and institutional
practices, determining which ideas and practices are valued, and by providing a veneer of legitimacy, and
37
Ibid., p. 759.
38
Ibid., p. 743.
39
Gary Peller, "Reason and the Mob: The Politics of Representation," 2 Tikkun 28, 30 (July/Aug/ 1987).
40
Harris, "Jurisprudence of Reconstruction," p. 749.
41
On the uses and misuses of Gramsci see Douglas Litowitz, "Gramsci, Hegemony, and the Law," 2000 B.Y.U L.
Rev. 515 (2000).
42
On post-colonial theory generally, see Ania Loomba, Colonialism/Postcolonialism 3rd ed. (Routledge: London,
215).
DRAFT
June 2022
17 Liberty University Law Review (forthcoming 2022)
7
a mechanism of normalization, to white dominance.
43
Nunn explicitly refers to law as "an instrument of
cultural domination."
44
In short, it is the fault of law, not "misguided or venal individuals," that sexism, racism, classism, and all
other ailments allegedly endemic to western societies exist. Appeals to the natural law and the like as a
metaphysical and moral basis for law are interpreted by Nunn and other race crits as false narratives of
justification, legal myths that legitimize oppression. In truth, no such higher law exists and, therefore,
western law is even more untrustworthy. For Nunn and others of his persuasion,
45
"Law is an artifact of
Eurocentric culture, and as such it reflects the cultural logic, epistemology, axiology, ontology, ethos and
aesthetic choice of Eurocentric culture."
46
Accordingly, fundamental concepts like "property" and
"consideration" (in contract formation) are mere reifications of Eurocentric preferred social order and
values, which necessarily subjugates the non-white "Other."
Not only does law elevate whites by codifying their preferences and preserving their cultural dominance,
but it is also a constitutive element of race itself.
"Racial power, in our view, was not simplyor even primarilya product of biased
decision-making on the part of judges, but instead, the sum total of the pervasive ways in
which law shapes and is shaped by 'race relations' across the social plane."
47
To go a step further, Tommy Curry suggests that even the act of reasoning about law,
"[D]istracts the subject from thinking about the White cultural hegemony and supremacy
of European traditions implied in encountering law through this very Western thought.
Legal reasoning, in convincing the subject that there is an applied and objective method
found through European philosophical analysis, persuades the subject that 'reasoning' is
not a particular cultural enterprise."
48
To engage in this reasoning is to engage in "Eurocentricity," which the law supports "through its
false universalism and privileging of the European historical experience. Euro-centric law
presents itself as rational, transcendent, objective without ideological content and applicable to
all."
49
In other words, for a black person to accept traditional legal reasoning is to assimilate to
her own oppression.
Situational Jurisprudence
This shift in hegemonic analysis from CLS to CRT produced new presuppositions and strategies for
critiquing (and "re-imagining") law. As CRT developed, several identifying elements came into view.
First is the belief that racism is endemic to western society, especially in America. "Thus, the question is
not how racial discrimination can be eliminated while maintaining the integrity of other interests
implicated in the status quo"; instead, CRTs ask "how these traditional interests and values serve as
vessels of racial subordination."
43
Kenneth B. Nunn, "Law as a Eurocentric Enterprise," 15 Law & Ineq. 323, 351 (1997).
44
Ibid., p. 328.
45
See e.g., Tommy Curry, "Shut Your Mouth When You're Talking to Me: Silencing the Idealist School of Critical
Race Theory through a Culturalogical Turn in Jurisprudence," 3 Geo. J. L. & Mod. Crit. Race. Persp. 1 (2012).
46
Nunn, "Law as a Eurocentric Enterprise," p. 350-351.
47
Key Writings, p. xxv.
48
Curry, "Shut Your Mouth," p. 23.
49
Nunn, "Law as Eurocentric Enterprise," p. 358.
DRAFT
June 2022
17 Liberty University Law Review (forthcoming 2022)
8
Second, CRT is skeptical of "dominant legal claims of neutrality, objectivity, color blindness, and
meritocracy."
Third, CRT "insists on a contextual/historical analysis of the law."
And fourth, CRT demands "recognition of the experiential knowledge of people of color… in analyzing
law and society."
50
Each of these theses reinforces and assumes the others. At bottom, and from the get-go,
"Critical Race Theorists argued that law reinforces racial hierarchy, reflects the views of
privileged classes, serves as a weak vehicle for social change, is indeterminate and unable
to provide fixed predictable outcomes for civil rights litigants, and is inherently non-
neutral (and biased toward the protection of social privilege)."
51
CRTs insist that a problem of "traditional scholarship" is that it opts for universalism over particularity. In
response, CRT issues a "call to context" and advocates a situational approach to evaluating cases and
controversies. CRT argues that the traditional framing of cases under some rubric of general rules
established by precedence muddles the moral calculus. To CRTs, no situation is sufficiently like another
to be decided under a general rule derived from the former. "Political and moral analysis is situational,"
says Richard Delgado. "[T]ruths only exist for this person in this predicament at this time in history."
52
To combat artificial claims of universality and the like, Delgado advocates a situational approach to
controversies. For example, most people may believe that fraud, intentional deception for monetary or
personal gain, is everywhere and always wrong. But critical race scholars would rebut this assumption by
insisting that rights, wrongs, and truths (plural) only exist in, and are defined by, the historical moment;
they are purely contextual.
53
Therefore, whether it is wrong (and justiciable) that someone lied for profit in a particular situation is
dependent on the context of that particular situation. That is, everything but the actual act itself must be
considered to determine whether a wrong, a crime, was actually committed and, in turn, whether it should
be punished. A key, and predictable, question for CRTs in this scenario will be the relative, racialized
power dynamics in play. The moral (and legal) calculus, per CRT, is determined by the relative power
dynamics and the aim of their subversion.
"What is Truth?"
Given the above, it is predictable that we find Delgado opining "[F]or the critical race theorist, objective
truth, like merit, does not exist, at least in social science and politics. In these realms, truth is a social
construct created to suit the purposes of the dominant group."
54
Early on, critical race scholars like
Charles Lawrence decried the "ideology" of objective truth as a "dominant account of social reality."
55
This is a feature, not a bug, of CRT. If knowledges are socially constructed and there is no "there" "out
there," then, by definition, truth is subjectiveat least socio-political truth, the only actionable variety.
56
50
Mari Matsuda, et. al., Words That Wound: Critical Race Theory, Assaultive Speech, and The First Amendment
(Boulder: Westview Press, 1993), p. 6.
51
Darren Hutchinson, "Critical Race Histories: In and Out," 53 Am. U. L. Rev. 1187, 1193 (2003).
52
Delgado, "Brewer's Plea: Critical Thoughts on Common Cause," 44 Vanderbilt L. Rev. 1, 11 (1991).
53
Gloria Ladson-Billings, “Just What Is Critical Race Theory” in Foundations of Critical Race Theory in
Education, ed. Edward Taylor, David Gillborn, and Gloria Ladson-Billings (New York: Routledge, 2016), p. 20-21.
54
CRT: An Introduction, p. 104.
55
Charles Lawrence, The Word and the River: Pedagogy as Scholarship as Struggle," in Key Writings, p. 340.
56
Key Writings, p. xiii
DRAFT
June 2022
17 Liberty University Law Review (forthcoming 2022)
9
Skepticism of objective truthor ascertainable transcendent moral knowledgeobviously impacts CRT's
view of law, as already partially demonstrated.
CRT scholars deny that law constitutes, or is derived from, "a moral order ordained by God (natural
law)." Instead, CRT holds "as the legal realists before them, that the law comes about through the
personal and political articulations of values that judges, policy-makers, and decision-makers take as
truth." The result, as Curry rightly decerns, is that jurisprudence, the study of law, is transformed into "a
sociology of law" taken up with uncovering "how subjects create the values and knowledge we call
law."
57
This claim is distinguished from the simple fact that human law receives its moral content from outside of
itself. Historically, in the classical and Christian tradition, this meant that jurisprudence was
epistemologically ordered to higher sciences, viz., theology and metaphysics. From thence human law
received its fundamental principles and assumptions from scripture and nature. On this basis, jurists are to
prudently apply rules to context such that the legal system can be properly ordered to the common good
as defined by the higher sciences, the external regulative principles of law.
58
But if there is no God's-eye view, then, indeed, the crits are right. If value, virtue, and vice are all dictated
by politically negotiated human whims then there is no point in imagining a transcendent basis for any of
it. "Truth," under the "postmodern" narrative of CRT, is an ideological construct in service of power.
59
Furthermore, there is no basis for adjudication other than one's own political commitments, one's own
interests, and legal confrontation merely becomes one site of political conflict, one site of power
distribution, one site of oppression. Law is but another way for the powerful to limit the utopian
imaginations of the powerless, ensuring that no other ways of organizing human life can be imagined.
But, as Jeffrey Pyle has rightly observed, "[W]hen critical race theorists treat civil rights law as a species
of interest-group politics, they surrender the moral high ground of constitutional principle and risk being
seen as just another group clamoring for benefits."
60
In other words, if law is simply race-infused group
politics, what incentive do dominant racial groups have to listen and cater to subdominant ones?
What CRT does know, for sure, is that oppression exists, oppression is bad, and a future state of "equity"
is desirable. These things are repeatedly asserted a priori in CRT literature. The result of a legal theory
that mocks "formalist" and "proceduralist" practices, and that is governed by a single analytical metric
(i.e., racial power dynamics) with the goal of (redefined) "equity" is a purely outcome-based legal theory.
In the next section, we’ll provide several examples of the kinds of positions and policies that are the
inevitable outworking of CRT’s ideological framework.
Part 3: Law and Praxis
To summarize the last section, CRT’s basic outlook entails that law is a mechanism for subordination.
Law is not based on universal principles of justice, but is instead a tool by which the ruling class
(specifically, whites) justify and protect their dominant social position. The role of the CRT is therefore
two-fold: 1) to expose the ways in which seemingly neutral and objective legal reasoning masks the
defense of white interests and 2) to dismantle and reconstruct the law in ways that promote racial equity.
57
Curry, "Shut Your Mouth," p. 19.
58
See Rafael de Arízaga, "Jurisprudence as a Subaltern Science," Ius & Iustitium (Sept. 7, 2020),
https://iusetiustitium.com/jurisprudence-as-a-subaltern-science/.
59
See generally Harris, "Jurisprudence of Reconstruction."
60
Pyle, "Race, Equality and the Rule of Law: Critical Race Theory's Attack on the Promises of Liberalism," 40
Boston College Law Review 787, 791 (1999).
DRAFT
June 2022
17 Liberty University Law Review (forthcoming 2022)
10
As legal scholars Daniel Farber and Suzanna Sherry have pointed out, CRT's stated goal has always been
to transform law post haste. "If literary theorists, historians, and philosophers are like theoretical
physicists, then [CRTs] are the equivalent of the engineers who convert scientific theory into operating
machinery."
61
This is self-evidently the case, not a point of derision but an accurate representation of CRT
aspirations. For decades, CRT scholarship has not only espoused a transformation of legal theory and the
fundamental basis of law, but of legal practice and law itself. In this section, we’ll provide several
examples of what this transformation looks like. Within each example, the unifying tenets of CRT can be
spotted in operation.
Impact over Intent
One slogan from popular culture that is rooted in CRT is “impact over intent.” In other words, the impact
of a law, or policy, or action is more significant that the intent behind that law, policy, or action. In
popular discourse, this mantra is often applied to accusations of interpersonal racism,
62
but the same
reasoning has long been applied by critical scholars to legal decisions.
In general, critical race theorists have argued that because racism is ubiquitous, ordinary, and
unconscious, courts cannot ascertain whether the purpose behind a policy is racist. Intentional
discriminatory action, they claim, is nigh impossible to prove. To get at real equity, then, courts should
ditch the purpose-based test in favor of an impact-based approach focusing only on harm to victims.
63
Implicit in the CRT response is the outcome emphasis of equity, and at a real cost. The element of
intention is integral to many areas of American laweven evaluations of common-law marriages require
a showing of intentbut most obviously in criminal law. To convict an accused of a crime, a subjective
state of mind (i.e., mens rea) must accompany criminal acts. To put it bluntly, intention is what separates
murder from involuntary manslaughter. This standard, applied and satisfied in various ways throughout
criminal law, is an expression of the western legal system's concern that, insofar as is possible, only guilty
people are punished.
Knowledge, purposefulness, or willfulnessin criminal law, malicein wrongdoing is paramount in
establishing culpability, and thereby justification for punishment. Foresight, recklessness, and, yes, result
or impact are all evidence of intent, but not necessarily definitive. Obviously, the context of
antidiscrimination law, the stakes are much lower. The "punishment" for a discriminatory law is its
invalidation, not prison or execution. Nevertheless, the logic of intent and guilt in criminal law pervades
legal reasoning across subjects and, in a sense, holds them together. Without intent as an element of a
violation, mistake, self-defense, and other justifications for wrongdoing have no place. Neither is the
happenstance of life accounted for.
Under the theory of near-mono-causality of CRT, however, this is no matter. When society is racialized,
and disparate impact is a result of racism simpliciter, then the purpose or intent of a law has no place in
the calculus.
64
Impact is everything. Indeed, some theorists argue that intent requirements stabilize rather
61
Farber & Sherry, Beyond All Reason: The Radical Assault on Truth in American Law (New York: Oxford
University Press, 1997), p. 35.
62
See e.g., Layla Saad, Me and White Supremacy, (Sourcebooks, 2020), pp.162-168 or Ijeoma Oluo, So You Want to
Talk About Race (Seal Press, 2019), pp. 162-178.
63
Richard Delgado, The Coming Race War? And Other Apocalyptic Tales of America After Affirmative Action and
Welfare (New York University Press, 1996), pp. 21-22. Charles Lawrence, "The Id, the Ego, and Equal Protection:
Reckoning with Unconscious Racism," in Key Writings, p. 237ff.
64
See e.g., Erin Roycroft, "The Fiction of Intent: Why the Equal Protection Clause is Incapable of Remedying
Inequality in the Criminal Justice System," 1 Social Justice & Equity Law Journal 182 (2018).
DRAFT
June 2022
17 Liberty University Law Review (forthcoming 2022)
11
than dismantle "the raced and gendered social order."
65
In the end, the intent element is just another
vestige of white dominance and, therefore, disposable for the sake of equity. As Kimberlé Crenshaw and
Catherine MacKinnon have noted in their proposed "Equality Amendment," intent should not be a
requirement "because discrimination is not a moral failing of individuals but a pervasive social practice of
powerepistemic, practical, and structural. No one need intend to perpetuate discrimination for it to
persist."
66
Race-based jury nullification
In a 1995 Yale Law Journal article, Paul Butler argued for racially based jury nullification. In other
words, "the race of a black defendant is sometimes a legally and morally appropriate factor for jurors to
consider in reaching a verdict… for pragmatic and political reasons, the black community is better off
when some nonviolent lawbreakers remain in the community rather than go to prison."
67
Butler says this because he believes that the American criminal justice system, being that it is "controlled
by white lawmakers and white law enforcers," is irreparably corrupt. For Butler, jury nullification on the
basis of the racial makeup of the jurors is a means to, contra Audre Lorde, "dismantle the master's house
with the master's tools." Objections to Butler's obviously controversial thesis are dismissed because
"Criminal conduct among African-Americans is often a predictable reaction to oppression. Sometimes
black crime 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."
68
Accordingly, black jurors
should sometimes acquit the black accused because "Punishing black people for the fruits of racism [i.e.,
crime-inducing internalized oppression] is wrong if that punishment is premised on the idea that it is the
black criminal's 'just deserts.'"
69
Throughout the article, Butler is not considering falsely accused black
citizens. He is presuming criminal guilt but nevertheless arguing that other black citizens are dutybound
to acquit them at trial because the fault of the crime truly lies with white supremacy.
This is not overstating the case. Butler explicitly says that "[C]riminal law is racist because, like other
American law, it is an instrument of white supremacy. Law is made by white elites to protect their
interests and, especially, to preserve the economic status quo."
70
Free Speech or Free Hate?
"We do not separate cross burning from police brutality nor epithets from infant mortality
rates. We believe there are systems of culture, of privilege, and of power that intertwine
in complex ways to tell a sad and continuing story of insider/outside… racist speech
constructs the social reality that constrains the liberty of nonwhites because of their
race."
71
Within CRT literature, the primary function of protected or free speech is as a shield for racist hate
speech, however subtle, that constructs and reinforces the racist social reality. It is, therefore, supremely
violent and oppressive. The method of evaluation of any speech inevitably descends into analysis of
65
MacKinnon & Crenshaw, "Reconstituting the Future: An Equality Amendment," 129 Yale Law Forum 343, 350
(2019).
66
Ibid., p. 361.
67
Butler, "Racially Based Jury Nullification: Black Power in the Criminal Justice System," 105 Yale L. J. 677, 679
(1995).
68
Ibid., p. 680 (emphasis added).
69
Ibid., p. 680.
70
Ibid., p. 693-694.
71
Matsuda, et al., Words That Wound, pp. 136. See also Ibid., pp. 62, 129, 68-74, 91-93.
DRAFT
June 2022
17 Liberty University Law Review (forthcoming 2022)
12
relative power dynamics, not truth as such, for "truth" is itself a problematic, socially constructed
category, a form of "power-knowledge" by which "discourse" is dictated.
To return to an earlier point, at bottom, the conflict with CRT is one over truth itself. Faber and Sherry
concur: "One possibility would be to debate the truth of [CRT] ideas. The problem, of course, is that the
two sides espouse different theories of truth and commitments to different forms of persuasion. It is the
very concept of 'truth' that is in dispute."
72
The entire theory behind a culture of free speech, from Milton's
Areopagitica (1644) onward, is predicated on a stable conception of truth "out there," that there is a "there
out there." If "truth" is reduced to a product of social construction in service of the powerful, then Stanley
Fish is right, there is no such thing as free speech, and, maybe, it’s a good thing too.
73
All there is, is group
preference backed by power. The root question raised by CRT is the perennial inquiry of Pontius Pilate.
Department of Antiracism
A more recent example of problematic CRT-inspired proposals has been posited by the most popular
purveyor of antiracism, Ibram Kendi.
74
In a 2019 interview with Politico, Kendi suggested a new
constitutional amendment, the contents of which would be the principle that "[r]acial inequity is evidence
of racist policy," making racial inequity unconstitutional.
75
The same amendment, in turn, would establish
a Department of Antiracism (DOA) "comprised of formally trained experts on racism and no political
appointees." The DOA would have carte blanche authority to preclear all local, state, and federal policies
"to ensure they won't yield racial inequity," and to furthermore "monitor public officials for expressions
of racist ideas""racist ideas" presumably being any ideas that would yield racial inequity in theory or
practice.
Most obviously, Kendi's proposed omnicompetent DOA would run roughshod over key legal doctrines
established to combat corruption and misuse of power including separation of powers, judicial review,
accountability, and equal sovereignty (i.e., federalism). Given relevant precedent as it stands, the
deference afforded to such an administrative agency would be boundless, so too then would its actions, as
Kendi makes no effort to denythat is the whole point. And since the pursuit of antiracist "equity" is
perpetualracism, remember, is assumed to be normal, permanent, and pervasiveso too would be the
purview and duration of the DOA. Perhaps, no one is taking Kendi's policy ideas seriously, but the fact
they can be seriously espoused in an outlet like Politico without being laughed out of print is concerning.
In any case, the point is that CRT-inspired legal policy can lead to Kendi's concerning conclusions.
Other examples of the policy outgrowth of CRT could be added to the abbreviated list above. Policing
and the like are, of course, of interest to CRT scholars, and have been long before #DefundThePolice
caught fire.
76
However, this small subset is sufficient to show that the ideas of CRT are not purely
theoretical. Like all critical social theories, CRT was always intended to unite theory with praxis.
Therefore, anyone who embraces CRT as an analytic framework will be driven to apply it. And because
72
Faber & Sherry, Beyond All Reason, p. 50.
73
Fish, There's No Such Thing as Free Speech and It's a Good Thing, Too (Oxford University Press, 1994).
74
We acknowledge that Kendi is not a self-professed practitioner of CRT, though he has acknowledged his
admiration of, and indebtedness to, CRT thinkers. Yet, there is clear affinity between certain ideas employed by
Kendi and those of CRT, as is the case with the proposal highlighted above. It is entirely consistent with CRT
assumptions and tenets. We are persuaded by the intellectual genealogy (and crosspollination) narrative recently
presented by Aaron Sibarium, "How Critical Race Theory Led to Kendi," Washington Free Beacon (July 14, 2021),
https://freebeacon.com/culture/how-critical-race-theory-led-to-kendi/.
75
Kendi, "Pass an Anti-Racist Constitutional Amendment," Politico Magazine (2019),
https://www.politico.com/interactives/2019/how-to-fix-politics-in-america/inequality/pass-an-anti-racist-
constitutional-amendment/.
76
See e.g., I Bennett Capers, "Afrofuturism, Critical Race Theory, and Policing in the Year 2044," 94 N.Y.U. Law
Review 1 (2019).
DRAFT
June 2022
17 Liberty University Law Review (forthcoming 2022)
13
CRT is not, in reality, limited to the law, its application will likewise be broad. The principles of CRT
will shape how we view education, history, politics, philosophy, and theology.
However, in keeping with our main thesis, we will turn next to how CRT conflicts with Christianity even
when it is so artificially restricted to its legal origins. We will call attention to this conflict in four areas:
CRT’s rejection of divine or natural law as the basis for human law, its intense cynicism, its rejection of
procedural justice, and its views on gender and sexuality.
Part 4: CRT and Christianity
Careful readers will likely have already anticipated the many conflicts between critical race theory and
Christianity. However, in this section, we’ll lay them out explicitly. Our contention is that at the most
fundamental level, critical race theory misunderstands the interaction of law, morality, and justice.
Consequently, the conflicts we highlight are deep and irreparable. Moreover, these conflicts will
inevitably spill into our theology, even if we are stubbornly committed to erecting an arbitrary barrier
between CRT as a legal theory and the rest of our lives.
CRT and Divine Law
First, CRT's convictions about law not only fail to explain but actively undermine the idea that there
exists some universal moral standard or divine law which human laws are meant to reflect. We already
noted that CLS and CRT deny the transcendence of law itself. To them, law is no more than an artifact of
human agency, a purely contingent, socially and historically determined construct with no basis in the
natural order. Indeed, no natural, creational order exists.
To quote CRT Tommy Curry once again at greater length,
Instead of the law being a moral order ordained by God (natural law), or the general will of a
society, CLS and CRT believe, as the legal realists before them, that the law comes about through
the personal and political articulations of values that judges, policymakers, and decision-makers
take as truth. This theory takes issue with Langdellian formalism which holds that the law is an
autonomous system of truths that endure beyond the intervention of culture or social context. As a
result, jurisprudence became a sociology of law that focused on how subjects create the values
and knowledge we call law.
77
Note here what Curry is not doing. He is not merely claiming that fallible humans have incorrectly
discerned or implemented God’s moral law accessible through natural law. Nor is he only claiming that
all concrete instantiations of law are necessarily influenced by underlying moral standards and directed to
substantive moral ends. Rather, he is saying that moral values themselves are the creation of humans and
that law is nothing more than these creations, all of which are negotiable.
As alluded to already, human lawmaking must receive data from superior sources of knowledge. A
Christian theory of law understands that human law must draw its morality from the natural law outside
of itself. Just as the will follows the last judgment of the intellect, the law adheres to the moral principles
discovered, examined, and made cogent by philosophy and theology and applies them to concrete human
circumstances as a rule of right (or moral) action.
78
This view understands that one’s basic conception of
morality and the world will inevitably dictate the function of law on the ground. If a source of
transcendent moral order is lacking, then law’s purpose will be corrupted; it will become a rule of
expedience rather than a rule of righteousness. It will be pure will and no reason (i.e., pure positivism).
77
Curry, "Shut Your Mouth," p. 19.
78
See generally Thomas Aquinas, Summa Theologiae, Ia-IIae, Q. 90, a. 1-4.
DRAFT
June 2022
17 Liberty University Law Review (forthcoming 2022)
14
Ironically, because of its failure to connect human law to a hierarchy of law ultimately rooted in God’s
character, reason, and will, CRT provides no basis for an obligation to fight inequality or injustice
decidedly moral categoriesat all. No authority transcendent of human legal regimes exists to demand
responsibility. Under CRT's approach, there is no real obligation to advocate for anyone or anything apart
from one's own interests within the relative power relations of society. In short, CRT presents the rule of
men, not the rule of law, because it does not believe there is a difference.
CRT and Cynicism
Second, CRT examines law and legal theory with a hermeneutic of suspicion and casts law as another
form of power-grabbing politics, a fundamentally Marxist outlook.
79
What is left of law, after CRT has
reoriented it, isand it must be said, ironicallyunstable, unworkable, and, in effect, amoral. In this
way, CRTs cynical attitude toward law is a self-fulfilling prophecy: if we begin to treat law merely as a
device for imposing our political will on others, it will not be long before our political opponents return
the favor. If law cannot obligate, then power must: might makes right.
Moreover, the rule of law requires some measure of confidence in law. If law (not some laws, but all law)
is reduced to a reflection or instigator of relative power dynamics, why does anyone have any reason to
obey it? In insisting that law is no more than group self-interest, CRT discards basic Christian principles
and resorts to pure political pragmatism to the great detriment of the common good. If no higher law
stands behind human law regimes, then it is impossible to orient law to substantive moral ends or human
goods outside of the lawmaking process itself. Law becomes redundant.
Two retorts are possible, one secular and one religious, both of which we have encountered regularly.
First, given our country’s horrific racial history, isn’t some cynicism warranted? Given the ways in which
our nation’s laws did, indeed, function to preserve white supremacy, shouldn’t we be skeptical of their
supposed objectivity? Second, shouldn’t the Christian doctrine of total depravity incline us toward CRT’s
cynicism? Aren’t lofty statements about the law’s nobility more a product of Enlightenment optimism
about the nature of man than a realistic assessment of its construction at the hands of sinful humans? In
this way, isn’t CRT congruent with a biblical worldview?
In response to the first claim, we’d note that theorists of all stripes recognize the potential for bigotry,
self-interest, and greed to influence laws and legal reasoning. Absolutely no one believes that the
particular laws which humans enact are free from all stain or blemish. What CRT is proposing is
something far more radical and qualitatively distinct, namely, that the regime of law just is a mechanism
for subordination. This is not just healthy skepticism but a universal acid that will eat away the
foundations of a functional body politic. In the same way, all parents recognize that their children may
sometimes behave well in order to secure extra dessert, screen-time, or presents. But a parent who
assumes that good behavior just is self-interest concealed beneath a thin veneer of virtue is headed
towards a dysfunctional family.
Our critique is not based on the idea that all instantiations of human law are, in fact, just, equitable, or
oriented to the common good. Rather, we simply insist that each instance of an unjust law must be
demonstrated, and that the occurrence of unjust laws is not cause for rabid cynicism about law as such.
Furthermore, as Christians, we believe that law is not inescapably indeterminate because the natural law
can, in fact, be apprehended and just, reasonable applications made. Additionally, heinous as it is, racism
is one sin among many. A biblical view would be attuned not only to the influence of the sin of racism on
legal decisions, but also to the influence of the sins of idolatry, sexual immorality, pride, etc. We would
79
Alan Hunt, "Marxist theory of law," in A Companion to Philosophy of Law and Legal Theory, ed. Dennis
Patterson (Blackwell, 1996), pp. 355-366.
DRAFT
June 2022
17 Liberty University Law Review (forthcoming 2022)
15
ask, then, whether it is reasonable to think that a jurisprudence affixed with a singular lens of racial
powermono-causalitycan truly offer the comprehensive and just adjudicatory model it claims.
With regard to the second claim, that total depravity should lead us to expect self-interest at the heart of
every human action, the simplest response is that CRTs are highly selective in their application of this
principle. After all, if self-interest drives all legal reasoning, what of their own legal reasoning? Shouldn’t
we ask cui bono when it comes to the CRTs own activism (and the hefty salaries that often accompany
it)? This is the Achilles’ heel of CRT’s cynicism. Any true application of the doctrine of total depravity
cannot exempt the speaker from its analysis. Additionally, the biblical doctrine is best limited to the
motives of the human heart, not every result of our actions. A contractor may build a house with the
singular, selfish motive of personal gain, yet it doesn’t follow that the house is poorly built and needs to
be demolished. In the same way, a good law is a good law whether or not the human lawgiver instituted it
out of self-interest. This, again, recalls the necessity of a transcendent basis on which law can be assessed.
Where CRT directs our attention to the subtle ways in which laws supposedly reify white supremacy,
Christians should instead focus on the laws themselves. Laws need to be judged on the basis of their
actual content, not on the basis of the supposed but undemonstrated motives of the men and women who
wrote them or interpreted them. Albeit, methodologically, discerning the intended purpose of a law may
help interpreters discern its proper and equitable application or use, its ratio legis. This is not, however,
the same exercise as delving into the hidden motives and desires of the drafter as if those too had been
written into law.
CRT’s cynicism ought to be a non-starter for Christians who recognize that the legitimacy of human laws
is dependent on the degree to which they reflect God’s eternal moral law apprehended through the natural
law and, in turn, its republication in Scripture.
80
Laws can, of course, be ill-formed. This does not imply
that law qua law is a Eurocentric means of oppression.
CRT and Equity
A third problem with CRT is its rejection of “procedural justice,” i.e. systems of rules impartially applied.
As a basically outcome-based legal theory, CRT has no real patience for traditional mechanisms of
friction, so to speak, in human adjudication. It pledges no fealty to, but rather decries, procedural fairness
and interpretive consistencyboth of which are integral to the rule of law and anything approximating a
justice system of equality. It decries allegedly outdated standards of procedural fairness and interpretative
consistency as "formalist" and counterproductive. We think this attitude creates problems for Christians
who are called to impartiality in their dealings and are provided with wise and advisory procedural
models for settling disputes in Scripture itself.
One problem with outcome-based theories is that, paradoxically, whilst methodologically streamlined
they are difficult to hold accountable. An outcome-based legal theory must still contain within it some
metric for measuring outcomes and, by extension, the viability of the theory itself. Said metric is
increasingly defined as equity, or equality of outcome controlling for past, present, and future (racial)
injustices.
The CRT paradigm, with the above metric and theory of law in mind, necessitates a range of morally and
procedurally unaccountable policies. And here we can begin to see the deleterious effects of CRT as just a
legal theory. If the sole metric of policy and adjudication is CRT "equity," then other legal standards and
processes previously relied upon to establish guilt are jettisoned. The outcome-based, "equity"-governed
80
See David Haines & Andrew Fulford, Natural Law: A Brief Introduction and Biblical Defense (Landrum:
Davenant Press, 2017).
DRAFT
June 2022
17 Liberty University Law Review (forthcoming 2022)
16
jurisprudence (i.e., "equality of results"
81
) of CRT yields certain, sometimes shocking, results.
82
Christians
should -at a minimum- recognize that, lacking omnipotence, equality of outcome cannot be the sole
criterion by which “justice” is measured. If it were, then wealth inequality could be immediately solved
by looting the property of the wealthy and disparate incarceration rates could be solved by imprisoning
the innocent. These procrustean solutions are obviously outside the bounds of any sane, Christian
approach to justice.
But more realistically, any out-come based, "law in context" theory threatens the rule of law, the
fundamental ideal of impartiality in our legal system. CRT as legal theory subverts this principle in the
most egregious of ways by respecting persons, so to speak, according to both (perceived) status and
immutable characteristics, just in the converse of what is typically contemplated. The oppressed person is
favored over the oppressor, the poor person over the rich person, and so on. Butler’s article on race-based
jury nullification, discussed above, is a case in point.
CRTs justify their rejection of legal impartiality on the grounds that 1) it doesn’t actually exist and 2) it
prevents them from righting wrongs. Yet embracing partiality for the sake of social reengineering elevates
human capacity beyond its capabilityironic for a theory marked by its cynicism. That is, it assumes a
pseudo-omniscience of the theory at the outset by presuming motives, intent, and causality as
fundamentally racist and further presumes to know the solution thereto. This is the kind of folly of fallen
human judgment that standards like the rule of law are meant to mitigate against, if imperfectly.
What is more, given that CRT is self-consciously activist, and governed by an alternative vision of
society, all means become justified by the end, and the metaphysical and epistemological limitations of
human beings are ignored, or rather denied, in the pursuit of said vision. This is an arid and, dare we say,
dangerous, approach to law, one that is incompatible with basic Christian beliefs that undergird much of
western legal thought. What is more, the CRT vision, paradoxically, frustrates the pursuit of earthly
justice, which all Christians are called to do.
83
CRT and sex/gender
Because we have chosen to focus on CRT’s use as a legal framework, we will only briefly touch on a
final area of conflict: CRT’s conceptualization of gender and sexuality. This subject is less pertinent to
legal issues but is the source of one of the most profound conflicts between CRT and Christianity.
From its inception, CRT recognized that race was only one of many sites of social and legal
subordination. For example, in 1989, at the very start of the CRT movement, Kimberlé Crenshaw coined
the term “intersectionality” to describe how race and gender interacted to produce unique forms of
marginalization.
84
Just four years later, she co-edited Words that Wound along with Mari Matsuda,
Charles Lawrence, and Richard Delgado, all co-founders of CRT. That work offers one of the earliest lists
of the “defining elements” of CRT and the final item on their list states that
6. Critical race theory works toward the end of eliminating racial oppression as part of the
broader goal of ending all forms of oppression. Racial oppression is experienced by many
in tandem with oppressions on grounds of gender, class, or sexual orientation. Critical
race theory measures progress by a yardstick that looks to fundamental social
81
Delgado, The Rodrigo Chronicles: Conversations About America and Race (New York University Press, 1995), p.
71.
82
Bell, "Racial Realism," 24 Connecticut Law Review 363, 377 (1992).
83
E.g., Isaiah 1:17; Micah 6:8.
84
Crenshaw, Kimberle. “Demarginalizing the Intersection of Race and Sex” University of Chicago Legal Forum
1989, no. 1 (1989): 139-167.
DRAFT
June 2022
17 Liberty University Law Review (forthcoming 2022)
17
transformation. The interests of all people of color necessarily require not just
adjustments within the established hierarchies, but a challenge to hierarchy itself.
85
This same emphasis on gender roles and heterosexism as forms of oppression suffuses the CRT literature,
especially within subfields such as Critical Race Feminism and Queer-Crit. Obviously, these assumptions
clash with the historic Christian belief that gender roles and sexual norms, rightly understood, are not
oppressive social constructs, but are God-ordained.
Part 5: Conclusions
In this article, we’ve limited our discussion of critical race theory to its use as a legal framework.
Nonetheless, we’ve shown how the basic assumptions of critical race theory clash with a Christian view
of law, power, justice, morality, and truth. To the extent that Christians embrace CRT as a tool to analyze
law and race, they are embracing a tool that will obscure as much as it illuminates and will distort
whatever truths it does discover. It should go without saying that critical race theorists can and do
occasionally offer insights that Christians can affirm and appreciate. Nonetheless, at a fundamental level,
Christians must reject CRTs core tenets, even when their scope is restricted to purely legal questions.
That said, one of the greatest dangers of critical race theory in practice is that it is not restricted to purely
legal questions but naturally bleeds into other areas of inquiry. For example, a cynical view of legal
interpretation flows seamlessly into a cynical view of biblical interpretation. Can we plausibly insist that
jurists routinely and unconsciously manipulate the law to protect their white, male privilege yet insist that
white, male theologians do not do the same? Can we insist that law is unavoidably Eurocentric and needs
to be decolonized while continuing to subscribe to the Eurocentric creeds of the Reformation? Can we
complain that universal legal values are an illusion while simultaneously insisting that God’s moral law is
universally binding on all human beings across time and culture? Can we insist that gender roles and
sexual norms are the oppressive product of the white supremacist heteropatriarchy while attending a
church that supports traditional marriage and male eldership?
We believe that the kind of schizophrenic thinking required to maintain such distinctions is not only a
theoretical but a practical impossibility. The doctrinal drift visible within some segments of the church
today is a testament to how the assumptions of CRT will slowly (or quickly) erode basic biblical
commitments. CRT will hinder, not help, efforts towards racial unity, justice, and healing. While we can
appreciate truth when CRTs affirm it, we must firmly reject the ideology.
85
Matsuda et al. Words That Wound, pp. 6-7.
ResearchGate has not been able to resolve any citations for this publication.
Twenty Years of Critical Race Theory: Looking Back to Move Forward
  • Key Writings
Key Writings, p. xxv. See also Kimberlé Crenshaw, "Twenty Years of Critical Race Theory: Looking Back to Move Forward," 43 Conn. L. Rev. 155, 164 (2011).
The Phenomenology of Rights-Consciousness and the Pact of the Withdrawn Selves
  • Peter Gabel
Peter Gabel, "The Phenomenology of Rights-Consciousness and the Pact of the Withdrawn Selves," 62 Texas L Rev. 1563 (1984); Mark Tushnet, "An Essay on Rights," 62 Texas L. Rev. 1363, 1371-1382 (1984.