PG DEPARTMENT OF LAW

PATNA UNIVERSITY

CRITICAL RACE THEORY

SUBMITTED TO: M R. GURU PRAKASH

FACULTY OF LAW

SUBMITTED BY: SANDEEP KUMAR

ROLL NO.:13

LL.M. (3 r d Sem.)

SANDEEP KUMAR 1
 ACKNOWLEDGEMENT
The writing a project has one of the most significant academic challenges I have ever faced.
Any attempt at any level can't be satisfactorily completed without the support and guidance of
learned people. Gratitude is a noble response of one’s soul to kindness or help generously
rendered by another and its acknowledgement is the duty and joyance. I am overwhelmed in
all humbleness and gratefulness to acknowledge our depth to all those who have helped us to
put these ideas, well above the level of simplicity and into something concrete effectively and
moreover on time.

My first obligation, irredeemable by the verbal expression, is to our subject teacher Dr. Guru
Prakash who has given me his valuable help in myriad way from the start to the very end. He
was always there to show us the right track when we needed his help. He lent his valuable
suggestions, guidance and encouragement, in different matters regarding the topic. He had been
very kind and patient while suggesting me the outlines of this project and correcting my doubts.
I thank him for his overall supports with the help of which I was able to perform this project
work.

I would like to extend the thanks to my parents for their selfless encouragement and support
given to me at critical junctures during the making to this project.

Last but not the least, I would like to thank my friends who helped a lot in gathering different
information, collecting data and guiding each other from time to time in making this project.

-Sandeep Kumar

3rd Semester

Place- Patna

Date-

SANDEEP KUMAR 2
 Contents
Contents .................................................................................................................................................. 3
1. INTRODUCTION ............................................................................................................................... 4
2. CRITICAL LEGAL STUDIES................................................................................................................. 5
3. CRITICAL RACE THEORY & FEMINISM ............................................................................................. 9
4. CONTRIBUTION OF CRT: A CRITIQUE ............................................................................................ 14
5. CONCLUSION ................................................................................................................................. 18

SANDEEP KUMAR 3
1. INTRODUCTION
At various times and Places, jurists have to the study of law from different angles made their
approaches a They have defined law, and nature and discussed its purpose and ends determined
its sources For the sake of clarity and convenience in understanding their points of view, the
jurists are divided into different schools on the basis of their approaches to law. It is not denied
that any such division may not be comprehensive or exact. There may be jurists who may not
fall within the strict bounds of any one school. Some the schools may be merely a synthesis of
two approaches. However in spite of all this, the division is helpful in understanding the
evolution of legal philosophy. Great attention was given to the study of law the profession of
law by men belonging to, whether as teachers of law or as practising lawyers. They were merely
concerned with positive law which had little to do with vague and abstract notions of natural
law. They started demarcating the proper bounds of law and analysing and systematising it.
They advocated the reform of law in the light of changed social needs and conditions and not
on extraneous considerations. They laid more and more emphasis on the analysis of positive
law and they came to be called “positivists” or “analysts”. Though John Austin is considered
to be the father of the new approach, he owed much to Bentham and on many points his
propositions were no more than a “paraphrasing of Bentham’s theory”.
Critical race theory (it would used as short form ‘CRT’) originated in Madison, Wisconsin, in
1989 as a reaction against what it saw as the deconstructive excesses of CLS. Nevertheless, it
is no less sceptical of Enlightenment ideas such as ‘justice’, ‘truth’; and ‘reason. Its mainspring,
however, is the need to expose the law's pervasive racism; privileged white, middle-class
academics, in its view, cannot fully uncover its nature and extent. Those who have themselves
suffered the indignity and injustice of discrimination are the authentic voices of marginalized
racial minorities. The law’s formal constructs reflect, it is argued, the reality of a privileged,
elite, male, white majority. It is this culture, way of life, attitude, and normative behaviour that

SANDEEP KUMAR 4
combine to form the prevailing ‘neutrality’ of the law. A racial minority is condemned to the
margins of legal existence1.
CRT diverges most radically from full-blown postmodernist accounts in respect of the
recognition by at least some of its members of the importance of conventional rights talk in
pursuit of equality and freedom. Its analysis of society and law therefore seems, in some cases,
to be a partial one. This retreat from the postmodernist antagonism towards rights signifies an
apparent readiness to embrace the ideals of liberty, equality, and justice. Several CRT
adherents, however, evince profound misgivings about liberalism and the formal equality it
aspires to protect, and a distaste for individual rights and other contents of the liberal package2.
CRT scholarship often draws on auto/biography to appraise social and legal relations. Patrica
Williams, for example, amalgamates legal analysis and personal narrative to Criticize legal
subjectivity. CRT regards the hostility of traditional legal scholarship to the auto/biographical
as a method by which to distance the law from the very social relations, especially racial and
gender discrimination. An offshoot of CRT pursues the postcolonial thesis that the dismantling
of colonial governments has failed to end the racial divisions and assumptions of these
societies3.
While critical legal scholars have attacked the quest for consensus which has dominated post-
realist American jurisprudence, their transformative agenda, feminists and critical race
theorists argue, betrays their faith in the possibility of a society founded on some sort of
alternative consensus. Yet this new society, with its alternative consensus, would not
necessarily fare any better than does liberal legalism in accommodating the experiences, values
and concerns of women and minority groups. Taken together, feminist jurisprudence and
critical race theory may be read as a call for an end to the quest for consensus.

2. CRITICAL LEGAL STUDIES

Legal theory reveals the manner in which people in different countries at different times have
speculated about some of the problems concerning law. Speculations about law by past and
present thinkers should be a part of intellectual culture. Even where legal theories are open to
criticism, they possess value and later theories can be better understood in the light of them 4.
It is not enough for a lawyer to understand what law is today but he should also study how

1
Raymond wocks, Philosophy of Law published by Oxford University Press, Ed.-2nd, 2014, Pg. 126-127.
2
V.D. Mahajan, Jurisprudence & Legal Theory published by Eastern Book Company, Ed. 5th-1987.
3
Raymond wocks, Philosophy of Law published by Oxford University Press, Ed.-2nd, 2014, Pg. 126-127.
4
Ibid.
SANDEEP KUMAR 5
people have been thinking about law in the past. That is the only way to stimulate thinking on
law. Hence, the importance of legal theory for students of law Dr. W. Friedmann writes in his
book Legal Theory that all systematic thinking about legal theory is linked at one end with
philosophy and at the other end, with political theory5. Sometimes the starting point is
philosophy and political ideology plays a secondary part and sometimes the starting point is
political ideology as is the case with legal theories of Socialism and Fascism. Sometimes, the
theory of knowledge and political ideology are welded into one coherent system. However, all
legal theory must contain elements of philosophy and gain its colour and specific content from
political theory. All thinking about the end of law is based on conceptions of man both as
thinking individual and a political being. Some legal philosophers have been philosophers first
and foremost and jurists for the sake of the completeness of their philosophical system. Some
legal philosophers have been politicians first and foremost and jurists because they felt the
need to express their political thought in a legal form6. Before the 19th century, legal theory
was essentially a by-product of philosophy, religion, ethics or politics. The great legal thinkers
were primarily philosophers, churchmen and politicians. The shift from the philosopher or
politician’s legal philosophy to lawyer’s analysis of legal philosophy has taken place in recent
times. There have researches in law on a large scale and also changes in the techniques. The
new era of legal philosophy arises mainly from the confrontation of the professional lawyer
with the problems of social justice in his legal work. Earlier, legal theories rested on general
philosophical and political theories but modern legal theories can be discussed in the idiom and
thought of the lawyer. The modern legal theory is based on beliefs whose inspiration comes
from outside law itself. Legal theory stands between philosophy and political theory. It takes
its intellectual categories from philosophy and ideas of justice from political theory. Its
contribution lies in formulating political ideas in terms of legal principles. Legal theory reflects
the fundamental philosophical controversy whether the universe is an intellectual creation of
the ego or the ego is a particle in the universal order of things. All kinds of theories on the
natural law place an objective order of things above the individual. The intellectual priority of
the ego over the world was first established by Descartes and was developed by Kant. The
latter established the individual as the creator of the intelligible world of phenomena. The view
of Fichte was that the world was the result of the self-consciousness of the individual. Hegel
projected the individual into the universe. In the philosophy of Kant, the domain of will is

5
Richard Delgado and Jean Stefancic, Article-‘Critical Race Theory: An Introduction’ published by NYU Press.
6
Prof. J.E. Premer, McCoubrey & White’s JURISPRUDENCE, Ed. 5th, Pg. 225-229.
SANDEEP KUMAR 6
practical reason and the domain of knowledge is pure reason. Ethical and legal ideals are a
matter of will and not of thought. The legal philosophy of Hegel7 established the supremacy of
the will of the State. Relativist legal philosophy as developed by Jellinek and Radbruch
acknowledges the subjective character of legal ideologies by stating the principal ideological
issues and leaving the choice between them to individual decision. There was a cyclical
movement in legal theory8. The “charismatic” law-finder of primitive communities found the
law intuitively. The philosopher-king of Plato knew and applied justice because his personality
gave him insight and virtue. Systematisation of law goes parallel with a more rational attitude.
When a generation is dissatisfied with positivism, instinct and intuition come to the fore. The
Dutch jurist Krabbe appeals to the Rechtsbewusstsein in order to limit the unfettered legislative
sovereignty of the State. Petrazhitsky opposes intuitive law to an objective and positive law.
Del Vecchio establishes a theory of juristic sentiment of right capable of weighing specific
grades of truth. According to Edmond Cahn, the “sense of injustice” is the motive force which
drives the law forward. Geny allocates the principles of reason to the facts of law which are
the object of intellectual perception. Juristic action moulds those facts in accordance with the
needs of life. In modern totalitarian legal theories is emphasis on instinct and feeling and not
on intellect and reason. Legal theory reflects the struggle of law between tradition and progress,
stability and change, certainty and flexibility. Legal theories and lawyers are inclined to put
more emphasis on stability than change. Kelsen9 suspects all natural law theories as devices
for strengthening the existing authorities and suppressing change. Max Weber emphasises the
revolutionary aspect of certain natural law ideologies.
Duguit is an idealist disguised as a materialist, an empiricist by profession and a priori
philosopher at heart. His ‘social solidarity’ is in reality a modern natural law idea. The legal
theory of Herbert Spencer is the expression of the belief in the evolution of man towards greater
freedom through industrial organisation. Legal theories assume one of three attitudes. Either
they subordinate the individual to the community, or they subordinate the community to the
individual or they attempt to blend the two. We find in Plato the supremacy of the community
over the individual. In the Republic of Plato, there is no room for private rights or private
institutions like family and property. These institutions are recognised in the ‘Laws’ of Plato
but they are still under the strict supervision of the State. In the philosophy of Plato, there is no

7
V.D. Mahajan, Jurisprudence & Legal Theory published by Eastern Book Company, Ed. 5 th-1987
8
Dr. Avtar Singh & Dr. Harpreet Kaur, Introduction to Jurisprudence published by Lexis Nexis, Nagpur, Ed. 4th-
2013.
9
Article on topic of Law and Nature.
SANDEEP KUMAR 7
protection for the development of the individual. The Greek conception of life is inseparable
from the development of personality. Under modern totalitarianism, there is supremacy of the
community and the destruction of the rights of the individual. The Catholic theory of society
makes the community supreme over the individual. He has to accept the place and function
into which he is born. Authority over the individual is divided between the Church and the
State. However, the Church is supreme as the authoritative interpreter of divine and natural
law10. Individualism is the basis of the political and legal theory of Locke. Individualism
underlies the legal philosophy of Stammler and Del Vecchio. Bentham’s utilitarian-ism and
the theory of evolution of Spencer embody an individualistic philosophy. The American
Constitution expresses individualistic philosophy of law. The Legal philosophy of Hegel
combines the idea of individual autonomy with the superior power of the community. The
individual of Hegel must will the State or his will is not rational. He has no individual rights
which can be put against the will of the State. According to Hegel, the State will always protect
individual liberty According to Fichte, there is a genuine synthesis of individual autonomy and
needs of the community. Individual liberty is considered in the 'framework of the social and
economic life of the community11. According to Radbruch, while translating the equality of
man in terms of formal and legal rights and social and economic reality, there must not be
absolute subservience of the individual to the community12.
The most important feature of critical legal theory is its rejection of what is taken to be the
natural order of things, be it the free market or meta narratives patriarchy or the conception of
race. These theorists share a profound skepticism about many of the enterprises that have long
been assumed to be at the heart of jurisprudence. The central theme of critical legal theory is
about the prospect of uncovering a universal foundation of law based on reason13. It repudiates
the very project of jurisprudence which it generally perceives as clothing the law and legal
system with a bogus legitimacy. Moreover, its acceptance of law as a distinctive and discrete
discipline but tresses the concept of law as autonomous Independent from politics and morality.
The myth of determinacy is a significant element of the critical assault on law at from being a
determinate, coherent body of rules and doctrine, the law is portrayed as uncertain, ambiguous,
and unstable. And far from expressing rationality, the law reflects political and economic
power. Social justice is an empty promise. Since the law is irretrievably wedded to power, it

10
Article on Greek and Roman Theory.
11
Dr. Avtar Singh & Dr. Harpreet Kaur, Introduction to Jurisprudence published by Lexis Nexis, Nagpur, Ed.
4th2013.
12
Ibid.
13
Raymond wocks, Philosophy of Law published by Oxford University Press, Ed.-2nd, 2014, Pg. 126-127.
SANDEEP KUMAR 8
cannot transcend this power which is thus chiefly ideological: social relations based on power
are made to appear legitimate because they seem to be beyond power. Postmodernist critics of
the law generally proceed from the starting point that all claims of truth are questionable. No
particular reading of a text is authoritative. It is merely one of any number of possible
interpretation.

3. CRITICAL RACE THEORY & FEMINISM

Heidi Hartmann once described the relation between Marxism and feminism as analogous to
that of husband and wife under English common law: ‘Marxism and feminism are one, and
that one is Marxism14.’ In Hartmann’s view, “either we need a healthier marriage or we need
a divorce.” Responding to that metaphor, Gloria Joseph underscored the exclusion of black
women from the wedding and redescribed the interaction between Marxist, feminist, and
minority perspectives as an “incompatible menage a trois.” The relations between critical legal
studies (CLS) and feminism have provoked similar concerns15. The origins of this article are a
case in point. The piece grows out of an invitation to offer a feminist perspective for an
anthology on critical legal studies. Such invitations are problematic in several respects. Almost
any systematic statement about these two bodies of thought risks homogenizing an
extraordinarily broad range of views. Moreover, providing some single piece on the “woman
question” perpetuates a tradition of tokenism that has long characterized left political
movements. Whatever the risks of other generalizations, one threshold observation is difficult
to dispute: Feminism takes gender as a central category of analysis, while the core texts of
critical legal studies do not. To be sure, many of these texts make at least some reference to
problems of sex-based subordination, and to the existence (if not the significance) of feminist
scholarship. Yet most critical legal theory and the traditions on which it relies have not
seriously focused on gender inequality. Why then should feminists continue participating in
enterprises in which their perspectives are added but not integrated, rendered separate but not
equal? Efforts to provide the “woman’s point of view” also risk contributing to their own
marginalization. In effect, feminists are invited to explain how their perspectives differ from
others associated with critical legal studies or with more mainstream bodies of legal theory.

14
Shahrzad Mojab, an Article of Maxism & Feminism published by Radical Publishing.
15
Prof. J.E. Premer, McCoubrey & White’s JURISPRUDENCE, Ed. 5th, Pg. 225-229.
SANDEEP KUMAR 9
Such invitations impose the same limitations that have been characteristic for women’s issues
in conventional legal ideology. Analysis has fixated on how women are the same or different
from men; men have remained the unstated standard of analysis. In recent years, these concerns
have increasingly emerged within the critical legal studies movement. During the last decade,
issues of gender as well as race and ethnicity dominated the agendas of several national CLS
conferences, and feminist theorists organized regional groups around common interests. A
growing body of feminist and critical race scholarship also developed along lines that
paralleled, intersected, and challenged critical legal theory. What distinguishes feminist critical
theories from other analysis is both the focus on gender equality and the conviction that it
cannot be obtained under existing ideological and institutional structures. This theoretical
approach partly overlaps, and frequently draws upon other critical approaches, including CLS
and critical race scholarship. At the most general level, these traditions share a common goal:
to challenge existing distributions of power. They also often employ similar deconstructive or
narrative methodologies aimed at similar targets-certain organizing premises of conventional
liberal legalism. Each tradition includes both internal and external critiques. Some theorists
focus on the inadequacy of conventional legal doctrine in terms of its own criteria for
coherence, consistency, and legitimacy. Other commentators emphasize the role of legal
ideology in legitimating unjust social conditions. Yet these traditions also differ considerably
in their theories about theory, in their critiques of liberal legalism, in their strategies for change,
and in their alternative social visions.
Critical feminism, like other critical approaches, builds on recent currents in social theory that
have made theorizing increasingly problematic. Post-modern and post-structural traditions that
have influenced left legal critics presuppose the social construction of knowledge16. To varying
degrees, critics within these traditions deny the possibility of any universal foundations for
critique. Taken as a whole, their work underscores the cultural, historical, and linguistic
construction of human identity and social experience. Yet such a theoretical stance also limits
its own aspirations to authority. For feminists, this post-modern paradox creates political as
well as theoretical difficulties17. Adherents are left in the awkward position of maintaining that
gender oppression exists while challenging our capacity to document it. Such awkwardness is,
for example, especially pronounced in works that assert as unproblematic certain ‘facts’ about
the pervasiveness of sexual abuse while questioning the possibility of any objective measure.

16
Mary Hawkesworth, From Constitutive Outside to the Politics of Extinction: Critical Race Theory, Feminist
Theory, and Political Theory published by Sage publication.
17
Raymond wocks, Philosophy of Law published by Oxford University Press, Ed.-2nd, 2014, Pg. 127.
SANDEEP KUMAR 10
To take an obvious illustration, feminists have a stake both in quantifying the frequency of
rape, and in questioning the conventional definitions on which rape statistics are based. Victims
of sexual assault by acquaintances often respond to questions such as, “Have you ever been
raped?” with something like, ‘Well & not exactly.’ What occurs in the pause between ‘well’
and “not exactly” suggests the gap between the legal understanding and social experience of
rape, and the ways in which data on abuse are constructed, not simply collected. Although
responses to this dilemma vary widely, the most common feminist strategies bear mention. The
simplest approach is to decline to address the problem-at least at the level of abstraction at
which it is customarily formulated. The revolution will not be made with slogans from
Lyotard’s Postmodern Condition, and the audiences that are most in need of persuasion are
seldom interested in epistemological anxieties. Critiques of existing ideology and institutions
can proceed under their own standards without detailed discussions of the philosophy of
knowledge. Yet, even from a purely pragmatic view, it is helpful to have some self-
consciousness about the grounding for our claims about the world and the tensions between
our political and methodological commitments.
Critical feminism’s most common response to questions on its own authority has been reliance
on experiential analysis. This approach draws primarily on techniques of consciousness-raising
in contemporary feminist organizations, but also on pragmatic philosophical traditions. A
standard practice is to begin with concrete experiences, integrate these experiences into theory,
and rely on theory for a deeper understanding of the experiences. One distinctive feature of
feminist critical analysis is, as Katharine Bartlett emphasizes, grounding in practical problems
and a reliance on practical reasoning rather than working deductively from abstract principles
and overarching conceptual schemes, such analysis builds from the ground up. Many feminist
legal critics are also drawn to narrative styles that express the personal consequences of
institutionalized injustice. Even those commentators most wedded to broad categorical claims
usually situate their works in the lived experience of pornography or sexual harassment rather
than, for example, in the deep structure of Blackstone’s Commentaries or the fundamental
contradictions in Western political thought. On the more general question of what validates
any particular feminist claim, the first step is to deconstruct the dualistic framework of truth
and falsehood in which these issues are often discussed. As postmodernist theorists remind us,
all perspectives are partial, but some are more incomplete than others. To disclaim objective
standards of truth is not to disclaim all value judgments. We need not become positivists to
believe that some accounts of experience are more consistent, coherent, inclusive, self-critical,
and so forth. Critical feminism can illuminate the process by which claims about the world are
SANDEEP KUMAR 11
constituted as well as the effects of marginalizing women and other subordinate groups in that
process. Such a framework can subject traditional forms of argument and criteria of relevance
to sustained scrutiny. It can challenge exclusionary institutions in which knowledge is
constructed. And it can press for social changes that would encourage deeper understanding of
our experience and the forces that affect it. Although critical feminists by no means speak with
one voice on any of these issues, part of our strength lies in building on our differences as well
as our commonalities. Precisely because we do not share a single view on this, or other more
substantive concerns, we need theories but not Theory. Our objective should be multiple
accounts that avoid privileging any single universalist or essentialist standpoint. We need
understandings that can resonate with women’s shared experience without losing touch with
our diversity. The factors that divide us can also be a basis for enriching our theoretical
perspectives and expanding our political alliances. Any framework adequate to challenge sex-
based oppression must simultaneously condemn the other forms of injustice with which it
intersects. What allies this method with other critical accounts is its skepticism toward
everything, including skepticism. Critical feminist theories retain a commitment to locate
judgment within the patterns of social practice, to subject that judgment to continuing critique,
and to promote gender equality as a normative ideal. For CLS theorists, the most frequent
unifying theme is opposition to a common target: the dominance of liberal legalism and the
role law has played in maintaining it. On this issue, critical feminism offers more varied and
more ambivalent responses. This diversity in part reflects the diversity of perspectives within
the liberal tradition. The target appearing in many critical legal studies accounts, and in some
critical feminist analyses, is only one version of liberal legalism, generally the version favored
by law and economics commentators18. Under a more robust framework, many inequalities of
greatest concern to feminists reflect limitations less in liberal premises than in efforts to realize
liberalism’s full potential. From both a philosophical and pragmatic standpoint, feminist legal
critics have less stake in the assault on liberalism than CLS. Their primary target is gender
inequality, whatever its pedigree, and their allies in many concrete political struggles have
come as often from liberal as from radical camps19. Thus, when critical feminist theorists join
the challenge to liberal legalism, they often do soon somewhat modified grounds. Their
opposition tends to focus on the particular form of liberalism embodied in existing legal and
political structures and on the gender biases it reflects. Although they differ widely in other

18
Shahrzad Mojab, an Article of Maxism & Feminism published by Radical Publishing.
19
Ibid.
SANDEEP KUMAR 12
respects, liberal theorists generally begin from the premise that the state's central objective lies
in maximizing individuals freedom to pursue their own objectives to an extent consistent with
the same freedom for others. Implicit in this vision are several assumptions about the nature of
individuals and the subjectivity of values. As conventionally presented, the liberal state is
composed of autonomous, rational individuals. Their expressed choices reflect a stable and
coherent understanding of their independent interests. Yet, while capable of full knowledge of
their own preferences, these liberal selves lack similar knowledge about others. Accordingly,
the good society remains as neutral as possible about the meaning of the good life: It seeks
simply to provide the conditions necessary for individuals to maximize their own preferences
through voluntary transactions. Although liberal theorists differ widely about what those
background conditions entail, they share a commitment to preserving private zones for
autonomous choices, free from public intervention. Critical feminist theorists have challenged
this account along several dimensions. According to theorists such as west, these liberal legalist
selves are peculiarly masculine constructs-peculiarly capable of infallible judgments about
their own wants and peculiarly incapable of empathetic knowledge about the wants of others.
Classic liberal frameworks take contractual exchanges rather than affiliative relationships as
the norm. Such frameworks undervalue the ways social networks construct human identities
and the ways individual preferences are formed in reference to the needs and concerns of
others. For many women, a nurturing, giving self has greater normative and descriptive
resonance than an autonomous, egoistic self20. Critical feminists by no means agree about the
extent, origins, or implications of such gender differences. Some concept of autonomy has been
central to the American women's movement since its inception, autonomy from the constraints
of male authority and traditional roles. How much emphasis to place on values of self-
determination and how much to place on values of affiliation have generated continuing
controversies that cannot be resolved at the abstract level on which debate has often
foundered21. Even critical feminists who agree about the significance of difference disagree
about its causes and likely persistence. Disputes center on how much importance is attributable
to women’s intimate connection to others through childbirth and identification with primary
caretakers, how much to cultural norms that encourage women’s deference, empathy, and
disproportionate assumption of nurturing responsibilities, and how much to inequalities in
women's status and power. For critical feminism, the most promising approach is both to

20
Neeru Tandon, Feminism: A Paradigm Shift published by Atlantic Publication, Ed.-1st -2008.
21
Ibid.
SANDEEP KUMAR 13
acknowledge the indeterminate nature of rights rhetoric and to recognize that, in particular
circumstances, such rhetoric can promote concrete objectives and social empowerment. Too
often, rights have been abstracted from their social context and then criticized as abstract. Yet
however manipulable, the rubric of autonomy and equality have made enormous practical
differences in the lives of subordinate groups. Undermining the conceptual foundations of
rights like privacy, on which women’s reproductive choice has depended, involves
considerable risks. Even largely symbolic campaigns, such as the recent era struggle, can be
highly important, less because of the specific objective they seek than because of the political
mobilization they inspire. Like the suffrage movements a half century earlier, the contemporary
constitutional battle offered women invaluable instruction in both the limits of their own
influence and the strategies necessary to expand it. Whatever its inadequacies, rights rhetoric
has been the vocabulary most effective in catalyzing mass progressive movements in this
culture. It is a discourse that critical feminists are reluctant to discard in favor of ill-defined or
idealized alternatives. The central problem with rights based frameworks is not that they are
inherently limiting but that they have operated within a limited institutional and imaginative
universe. Thus, critical feminism’s central objective should be not to delegitimate such
frameworks but rather to recast their content and recognize their constraints. Since rights-
oriented campaigns can both enlarge and restrict political struggle, evaluation of their strategic
possibilities requires historically situated contextual analysis.

4. CONTRIBUTION OF CRT: A CRITIQUE

The critical race theory (CRT) movement is a collection of activists and scholars interested in
studying and transforming the relationship among race, racism, and power. The movement
considers many of the same issues that conventional civil rights and ethnic studies discourses
take up, but places them in a broader perspective that includes economics, history, context,
group- and self-interest, and even feelings and the unconscious22. Unlike traditional civil rights,
which embraces incrementalism and step-by-step progress, critical race theory questions the
very foundations of the liberal order, including equality theory, legal reasoning, Enlightenment
rationalism, and neutral principles of constitutional law. Although CRT began as a movement
in the law, it has rapidly spread beyond that discipline. Today, many in the field of education

22
The critical race theory: The Cutting Edge by Temple University Press, Ed.- 3rd.
SANDEEP KUMAR 14
consider themselves critical race theorists who use CRT’s ideas to understand issues of school
discipline and hierarchy, tracking, controversies over curriculum and history, and IQ and
achievement testing. Political scientists ponder voting strategies coined by critical race
theorists. Ethnic studies courses often include a unit on critical race theory, and American
studies departments teach material on critical white studies developed by CRT writers. Unlike
some academic disciplines, critical race theory contains an activist dimension. It not only tries
to understand our social situation, but to change it; it sets out not only to ascertain how society
organizes itself along racial lines and hierarchies, but to transform it for the better. Critical race
theory sprang up in the mid-1970s, as a number of lawyers, activists, and legal scholars across
the country realized, more or less simultaneously, that the heady advances of the civil rights
era of the 1960s had stalled and, in many respects, were being rolled back. Realizing that new
theories and strategies were needed to combat the subtler forms of racism that were gaining
ground, early writers such as Derrick Bell, Alan Freeman, and Richard Delgado (coauthor of
this primer) put their minds to the task23. They were soon joined by others, and the group held
its first conference at a convent outside Madison, Wisconsin, in the summer of 1989. Further
conferences and meetings took place. Some were closed working sessions at which the group
threshed out internal problems and struggled to clarify central issues, while others were public,
multi-day affairs with panels, plenary sessions, keynote speakers, and a broad representation
of students, activists, and scholars from a wide variety of disciplines24.
As the reader will see, critical race theory builds on the insights of two previous movements,
critical legal studies and radical feminism, to both of which it owes a large debt. It also draws
from certain European philosophers and theorists, such as Antonio Gramsci and Jacques
Derrida, as well as from the American radical tradition exemplified by such figures as
Sojourner Truth, Frederick Douglass, W.E.B. Du Bois, Cesar Chavez, Martin Luther King Jr.,
and the Black Power and Chicano movements of the sixties and early seventies25. From critical
legal studies, the group borrowed the idea of legal indeterminacy the idea that not every legal
case has one correct outcome. Instead, one can decide most cases either way, by emphasizing
one line of authority over another, or interpreting one fact differently from the way one’s
adversary does. It also incorporated the critique of triumphalist history, and the insight that
favorable precedent, like Brown v. Board of Education26, tends to deteriorate over time, cut

23
An Article written by Stephen Steinberg by University of Illinois Press. (JSTOR).
24
Raymond wocks, Philosophy of Law published by Oxford University Press, Ed.-2nd, 2014
25
Ibid. page 130-131.
26
Dr. J.N. Pandey, Constitutional Law of India published by Central Law Agency, Allahabad, Ed.-52nd- 2015.
SANDEEP KUMAR 15
back by narrow lower-court interpretation and administrative foot dragging and delay. The
group also built on feminism’s insights into the relationship between power and the
construction of social roles, as well as the unseen, largely invisible collection of patterns and
habits that make up patriarchy and other types of domination. From conventional civil rights
thought, the movement took a concern for redressing historic wrongs, as well as the insistence
that legal and social theory have practical consequences. CRT also shared with it a sympathetic
understanding of notions of nationalism and group empowerment. What do critical race
theorists believe? Probably not every member would subscribe to every tenet set out in this
book, but many would agree on the following propositions. First, that racism is ordinary, not
aberrational ‘normal science,’ the usual way society does business, the common, everyday
experience of most people of color in this country. Second, most would agree that our system
of white over color ascendancy serves important purposes, both psychic and material. The first
feature, ordinariness, means that racism is difficult to cure or address. Color-blind, or formal,
conceptions of equality, expressed in rules that insist only on treatment that is the same across
the board, can thus remedy only the most blatant forms of discrimination, such as mortgage
redlining or the refusal to hire a black Ph.D. rather than a white high school dropout, that do
stand out and attract our attention. The second feature, sometimes called “interest
convergence” or material determinism, adds a further dimension. Because racism advances the
interests of both white elites (materially) and working-class people (psychically), large
segments of society have little incentive to eradicate it. Consider, for example, Derrick Bell’s
shocking proposal that Brown v. Board of Education27—considered a great triumph of civil
rights litigation may have resulted more from the self-interest of elite whites than a desire to
help blacks. A third theme of critical race theory, the “social construction” thesis, holds that
race and races are products of social thought and relations. Not objective, inherent, or fixed,
they correspond to no biological or genetic reality; rather, races are categories that society
invents, manipulates, or retires when convenient. People with common origins share certain
physical traits, of course, such as skin color, physique, and hair texture.
But these constitute only an extremely small portion of their genetic endowment, are dwarfed
by that which we have in common, and have little or nothing to do with distinctly human,
higher order traits, such as personality, intelligence, and moral behavior. That society
frequently chooses to ignore these scientific facts, creates races, and endows them with pseudo-
permanent characteristics is of great interest to critical race theory. Another, somewhat more

27
347 U.S. 483 (1954)
SANDEEP KUMAR 16
recent, development concerns differential racialization and its many consequences. Critical
writers in law, as well as social science, have drawn attention to the ways the dominant society
racializes different minority groups at different times, in response to shifting needs such as the
labor market28. At one period, for example, society may have had little use for blacks, but much
need for Mexican or Japanese agricultural workers. At another time, the Japanese, including
citizens of long standing, may have been in intense disfavor and removed to war relocation
camps, while society cultivated other groups of color for jobs in war industry or as cannon
fodder on the front. Popular images and stereotypes of various minority groups shift over time,
as well. In one era, a group of color may be depicted as happy-go-lucky, simpleminded, and
content to serve white folks. A little later, when conditions change, that very same group may
appear in cartoons, movies, and other cultural scripts as menacing, brutish, and out of control,
requiring close monitoring and repression. Closely related to differential racialization—the
idea that each race has its own origins and ever evolving history is the notion of
intersectionality and anti-essentialism. No person has a single, easily stated, unitary identity.
A white feminist may be Jewish, or working-class, or a single mother. An African American
activist may be gay or lesbian. A Latino may be a Democrat, a Republican, or even a black
perhaps because that person’s family hails from the Caribbean. An Asian may be a recently
arrived Hmong of rural background and unfamiliar with mercantile life, or a fourth-generation
Chinese with a father who is a university professor and a mother who operates a business.
Everyone has potentially conflicting, overlapping identities, loyalties, and allegiances.
A final element concerns the notion of a unique voice of color. Coexisting in somewhat uneasy
tension with anti-essentialism, the voice-of-color thesis holds that because of their different
histories and experiences with oppression, black, Indian, Asian, and Latino writers and thinkers
may be able to communicate to their white counterparts matters that the whites are unlikely to
know. Minority status, in other words, brings with it a presumed competence to speak about
race and racism. The legal storytelling, movement urges black and brown writers to recount
their experiences with racism and the legal system and to apply their own unique perspectives
to assess law’s master narratives.
Many modern-day readers believe that racism is declining or that class today is more important
than race. And it is certainly true that lynching and other shocking expressions of racism are
less frequent than in the past. Moreover, many Euro-Americans consider themselves to have

28
An Article by Gloria Ladson-Billings & William F. Tate on ‘Toward a Critical Race Theory of Education’.

SANDEEP KUMAR 17
black, Latino, or Asian friends. Still, by every social indicator, racism continues to blight the
lives of people of color, including holders of high-echelon jobs, even judges.
Studies show that blacks and Latinos who seek loans, apartments, or jobs are much more apt
than similarly qualified whites to be rejected, often for vague or spurious reasons. The prison
population is largely black and brown; chief executive officers, surgeons, and university
presidents are almost all white. Poverty, however, has a black or brown face: black families
have, on the average, about one-tenth of the assets of their white counterparts. They pay more
for many products and services, including cars. People of color lead shorter lives, receive worse
medical care, complete fewer years of school, and occupy more menial jobs than do whites. A
recent United Nations report showed that African Americans in the United States would make
up the twenty-seventh ranked nation in the world on a combined index of social well-being;
Latinos would rank thirty-third.

5. CONCLUSION
The practice of analogizing racism to sexisrn criticized as contributing to the perpetuation of
racial discrimination by obscuring the very particular role of race as a tool of oppression in
society. This is seen to occur in several ways. For exam, pie, it is pointed out that the practice
of lumping together of socially subordinated groups tends to represent the problem of
oppression as an uniform problem, thereby obscuring the particular complexities of racism. Or,
it tends to divert attention from black people back to white issues. Or, it promotes an
essentialism that assigns exclusive categories to women and blacks that marginalizes black
women. Or, it promotes among whites a false sense that since they understand the oppression
of women they understand the oppression of race as well. This results in overemphasizing
similarities between the two and under-estimating the differences.
India got independence in 1947 and Constitution of India commenced in 1950. Member of
constituent assembly heavily emphasized on inclusion of word ‘race’ in Article 14 under head
of Fundamental Rights. The reason behind it was American famous ‘Brown case’ came into
being but till 1950 no contrary judgment to it had delivered and Indian Leader did not intend
to take any short of risk in country like India having giant diversity.
CRT and Resistance Culture For people of color, the politics of difference within the United
States can be understood within the broader context of global post-colonialism. Edward Said
has made a study of how the West justified colonialism, how colonized peoples resisted it, and

SANDEEP KUMAR 18
how the cultural dialogue between colonizer and colonized is evident in the art and literature
of each. Since the end of formal colonialism, Said argues, a distinctive “resistance culture” has
emerged from formerly colonized peoples. Resistance culture consists of three projects. First
is the reconstitution of the formerly colonized nation through consolidating a national language
and national culture (a project that is always the product of invention rather than simple
“recovery”). Second is what Said calls “the voyage in”: the “conscious effort to enter into the
discourse of Europe and the West, to mix with it, transform it, to make it acknowledge
marginalized or suppressed or forgotten histories.” Third, resistance culture involves “a
noticeable pull away from separatist nationalism toward a more integrative view of human
community and human liberation.” Reading the history of “racial minorities” in the United
States as part of the larger history of western colonialism, racecrits are involved in the project
of “resistance culture” as well. Situated within the United States, where separatist nationalism
has never been a viable alternative, the domestic politics of difference has focused on Said’s
first and second projects: the constitution or reconstitution of the subordinated community and
the transformation of the dominant community. Storytelling has contributed to much of the
first project.
Last but not least, Natural Law Theory evolved in between 17th- 18th century. A major ground
reality had evolved with new idea. People were no longer dependent on others and their mindset
evolved in regard to rights, liberty and fraternity. Jurists emphasized on natural rights which
awarded everybody by his birth; no one can take away natural rights. In ascribing “natural
force” to the law, Cicero made it clear that the mind and reason of the intelligent man was the
standard by which justice and injustice were to be measured29. Natural law recognizes human
law (lex humana) defined as “an ordinance of reason for the common god, made by him who
has care of the community, and promulgated30”. These are the concepts which evolved during
17th – 18th century but subsequently American realism taken place in 20th century in America.
American citizens were more influenced by previous described natural law philosophy.
Therefore, a resurrection taken place and people united to combat against racism and strengthen
their voice for their natural rights. Researcher presumption was proved here that Critical Legal
Theory was leveraged by natural law theory. Renaissance period in European countries known
as natural law theory which was subsequently followed by various other countries.

29
Article on “Greek and Roman Law Theory”.
30
Ibid.
SANDEEP KUMAR 19
 BIBLIOGRAPHY
1. V.D. Mahajan, Jurisprudence & Legal Theory published by Eastern Book Company,
Ed. 5th-1987.
2. Raymond wocks, Philosophy of Law published by Oxford University Press, Ed.-2nd,
2014.
3. Richard Delgado and Jean Stefancic, Article-‘Critical Race Theory: An Introduction’
published by NYU Press.
4. Mary Hawkesworth, From Constitutive Outside to the Politics of Extinction: Critical
Race Theory, Feminist Theory, and Political Theory published by Sage publication.
5. Prof. J.E. Premer, McCoubrey & White’s JURISPRUDENCE.
6. Shahrzad Mojab, an Article of Maxism & Feminism published by Radical Publishing.
7. Dr. Avtar Singh & Dr. Harpreet Kaur, Introduction to Jurisprudence published by Lexis
Nexis, Nagpur.
8. An Article by Gloria Ladson-Billings & William F. Tate on ‘Toward a Critical Race
Theory of Education’.

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SANDEEP KUMAR 21