A Defense of Rights Discourse

Comparing CRT and CLS Scholarship

Critical Race Theory (CRT) is a discipline that evolved out of conflicts with the beliefs and progress of the Critical Legal Studies (CLS) movement. The principle concern that CRT scholars had of CLS is it fails to give due consideration to the importance of race and racism. Specifically, there is a belief in CLS scholarship that civil rights discourse is an ineffective means of social change. This paper draws on the works of various race theorists to deconstruct CLS scholarship’s criticism of rights discourse and to show how such a criticism actually runs counter the principal ideals upon which the CLS movement is founded.

Critical Legal Studies is a discipline that applies tenets of Critical Theory to legal analysis. As described by Kimberle Williams Crenshaw (1995) in Race Reform and Retrenchment: Transformation and Legitimation in Antidiscrimination Law,

“CLS scholars have attempted to analyze legal ideology and discourse as … social artifacts that operate to recreate and legitimate American society”(108).

Using an analysis of the law that rejects legal objectivity, CLS scholars attempt to display the inherent inconsistencies and contradictions of the law. Crenshaw states,

“[CLS] exposes the ways in which legal ideology has helped to create, support, and legitimate America’s present class structure”(108).

This view of the law partially takes its influence from neo-Marxist Antonio Gramsci, whose notion of hegemony, which Crenshaw describes as

“the means by which a system of attitudes and beliefs, permeating both popular consciousness and the ideology of elites, reinforces existing social arrangements and convinces the dominated classes that the existing order is inevitable,”

CLS scholars believe the law plays a fundamental role in maintaining (108).

Though many CLS scholars agree with the concept of racial equality, they criticize political discourse that is engaged in attempting to gain civil rights. Because the law is a central pillar of hegemony, they argue, engaging in rights discourse is harmful in that, by working through the law, it condones the very system that perpetuates oppression in the first place. As a result of this, CLS scholars believe rights discourse will never achieve more encompassing social change. In other words, the thought process goes, because the system is bad, anything that works within it must also be bad.

In a different explanation of the critique CLS has of rights discourse, Patricia Williams (1991) writes,

“The CLS [rights] disutility argument is premised on the assumption that rights’ rigid systematizing may keep one at a permanent distance from situations that could profit from closeness and informality”(151).

The closeness and informality mentioned in this excerpt is referencing a story detailed earlier in the chapter about how Williams and Peter Gabel, her white, male colleague who is a prominent figure in CLS scholarship, had very different experiences and perceptions of engaging in a contract for an apartment rental. While Peter built trust with his future landlords by handing over cash without signing a lease (“because [a lease] imposed too much formality”), Patricia, as a black woman, felt the need to conduct the process very formally — in a way that CLS scholars would perhaps consider “rigid systematizing” (146). The purpose of illustrating this story, Williams states, is to highlight how a similar event can be experienced in drastically differing ways by members who occupy different ends of the power structure, and, by extension, to show that members of minority groups are not afforded the “closeness and informality” for which CLS scholars advocate.

Williams’s focusing on the difference of perception of scenarios as related to differences in social group status is a fundamental premise of CRT and its criticism of CLS arguments about rights discourse. Applying the importance of subjective experience to the discussion about legal formality in the above contract example: “closeness and informality” necessitate that both parties of the legal engagement are willing to buy into such a model. Many people will do so when engaging with a member of (a) privileged group(s); less so for those of minority groups. To argue for a discarding of “rigid systematizing” is to take the privileged position of believing that everyone can both afford to buy into closeness and be afforded it in turn.

An example that Williams gives as what CLS scholars would view as an alternate to rights discourse is “restyling … arguments about rights to shelter for the homeless into arguments about the needs of the homeless.” This argument in favor of focusing on needs as opposed to rights is one that Williams criticizes heavily: “Such statements about the relative utility of needs over rights discourse overlook that blacks have been describing their needs for generations”(151). Blacks’ descriptions of need have only been allowed to take the form of artistic expression through the form of literature, music, speeches, etc. Blacks’ statements of need have been admired for their entertainment value but have hardly been taken seriously as valid forms of political expression. Thus, CLS arguments for a discourse based on need ignores both history and practicality.

But it is also theoretically flawed as well. In Native Voices American Indian Identity and Resistance, a book that pays homage to Vine Deloria Jr, Ines Hernandez-Avila writes about the importance of preserving native languages and quotes Jeanette Armstrong when she says of native languages:

“In-depth study of these vocabularies [according to Bonfil Batalla] will provide information of singular importance about the diverse principles and codes that Mesoamerican peoples have employed to classify and understand the natural world in which they live”(2003: 60).

What is implicitly stated in the above excerpt is the notion that language is a reflection of the way peoples and societies perceive of the world around them. When CLS scholars argue for a civil progress discourse based on needs, the linguistic distinction they make in emphasizing needs over rights highlights the way such scholars “understand the world in which they live.” This understanding of language corresponds with that of J. Hillis Miller and other poststructuralist scholars, whose methodology relies on the parsing and deconstruction of language to better understand meaning in texts (see Miller, Critic as Host for reference). We can apply this linguistic framework offered by both Native and Western scholars to uncover the underlying hegemonic aspects of CLS perspectives on rights discourse.

Within the word “needs” as it relates to the advancement of black people is a pejorative connotation that is evocative of the “white man’s burden.” Framing discourse about access to water, food, shelter, physical security in terms of needs implies that blacks do not deserve the listed things, but are rather given them by the charity and generosity of those with the power to do so. One need only think of the phrase “poor and needy” to understand this implication. Furthermore, formulating a discourse around needs but without rights fundamentally reduces the agency of those who are in need. Inherently, the word need indicates a dependence on external factors. If one has a need but does not have a right to that which he needs, then the ability to have that need met solely relies on a benevolent other. In this way, a needs-based discourse perpetuates a Gramscian form of hegemony — the very system which Critical Legal Studies is premised upon dismantling. In enforcing a black dependence upon whites, a needs-based discourse “reinforces existing social arrangements” in a way that prevents the subordinated from revolting, for, after all, they have their needs met.

In the second book of Patrick Rothfuss’s acclaimed fantasy series The Kingkiller Chronicles, Kvothe, the protagonist, has a discussion with the Maer (ruler) of a country about conceptions of power. The Maer says to him:

“There are two types of power: inherent and granted. Inherent power you possess as a part of yourself. Granted power is lent or given by other people” (380).

The two go on to discuss forms of inherent power: the ability to walk, think, talk (for those who are able-bodied, of course) and forms of granted power: the ability to rule, to collect taxes, have others do things on your behalf, etc. The Maer, in making a distinction between these two types of power, points out a Count walking nearby:

“If you asked him about his title, he would say . . . it is a part of him as much as his own blood. But he’s wrong. It is not inherent power. It is granted. I could take away his lands and leave him a pauper on the street”(382).

Williams, alluding to Shakespeare’s King Lear, gives another critique of a discourse around needs that again points out the privilege inherent in it:

The white left is perhaps in the position of King Lear, when he discovered in himself a ‘poor, bare, forked animal’ who needed no silks, furs, or retinue, only food, water, and straw to sleep on. The insight of this experience also freed him to see the wight, the constrictions, that his due as king had imposed on him . . . Blacks, however, may symbolize that King Lear who was pushed to the point of madness: who did not find his essential humanity while retaining some reference point to an identity as social being temporarily lost in the wilderness — and who ultimately lost everything including a sense of self(153).

The white left, who are in the initial position of King Lear are also in the position of the Count: they believe their ability to meet their needs is an inherent one. Their privilege allows them to discount rights and view a lack of power as a temporary thing, that “free[s] [them] to see the .. constrictions that [their] due as [members of the ruling class] had imposed on [them].” For if their power is inherent, then any setback is merely a temporary one. The image evoked by Williams’s analogy is of a ruling class American youth going on a “service” trip to a “third world” country. He can live in impoverished conditions for a few weeks because to him his privilege “is a part of him as much as his own blood” — he’ll always have it.

To blacks, all power is granted; they understand any position they have as a tenuous one, one that can be stripped away at any moment. Such is the reason why a rights discourse is crucial; for while whites can view rights as “keep[ing] one at a permanent distance” because all rights are inherent to them, blacks are “that King Lear who was pushed to the point of madness . . . who ultimately lost everything including a sense of self.” Focusing on a discourse based on rights would lessen this disparity, and let what blacks now view as their granted powers to become, as Jefferson wrote, “unalienable Rights”(The Declaration of Independence).

The possibility for this shift in the form of power available to blacks is encoded, as the above excerpt from The Declaration of Independence indicates, in the fundamental ideology of the nation. This is one truth that undermines much of the commentary CLS scholars have against rights discourse. CLS critiques of civil rights discourse are centered on two premises, one explicit, one implicit. The explicit premise is that because rights discourse works through the law, the central agent of hegemonic perpetuation, it both precludes itself from making substantial gains and also affirms the legitimacy of the hegemonic power structure.

The first explicit criticism — that working through the law precludes rights discourse from making real changes — is a fundamentally racist assumption that stems from the implicit premise of CLS scholarship: that class struggle supersedes all other struggles. Crenshaw addresses this when she writes:

“The failure of CLS scholars to consider race in their account of law and legitimacy is not a minor oversight: race consciousness is central not only to the domination of blacks but also to whites’ acceptance of the legitimacy of hierarchy and their identity with elite interest.”

The base assumption, then, of a CLS critique of rights discourse is that it does not matter whether the racial hierarchy is overthrown, but this assumption once more buys into hegemonic notions, for as Winant (2001) writes in The World is a Ghetto:

“The interaction (and tension) among processes of capital accumulation, techniques of state-building and political rule, and general understandings that explained (or rationalized) the conflicts this emerging system entailed, were all deeply shaped by race”(39).

If we take Winant’s reading of history to be accurate, then our modern class structure is inherently predicated on our racial hierarchy, which means that to disregard the fundamentality of racism and racialization is to be complicit in the very form of hegemony that CLS scholarship tries to dismantle. This criticism of CLS scholarship’s base assumptions is based in a theory that should not have to be necessary, for it provides explanation for what black Americans experience in every waking moment of their lives. But, to appropriate a phrase from Crenshaw, arguments “that do not reflect the institutional logic … will probably be ineffective” (111).

The second explicit premise of CLS scholarship’s criticism of rights discourse — that working within the law to gain rights necessarily reaffirms a hegemonic structure — is flawed on a few counts. The first is that this criticism is entirely theoretical. CLS criticism of rights discourse does not supply a viable alternative (see Crenshaw 111), and, as pointed out in multiple ways in this paper, the alternatives it does propose actively promote hegemony. But the theory is also flawed. Not everything that exists within a bad system is bad. Something can exist inside of a system that it actively attempts to dismantle and still be productive. Arguments to the contrary imply that no white Americans can attempt to combat racism because their very being is complicit in it. Verifiably untrue.

Furthermore, the argument that rights discourse promotes hegemony actively misunderstands the definition of hegemony. Hegemony is premised on “convinc[ing] the dominated classes that the existing order is inevitable”(Crenshaw 108). To engage in rights discourse is to fight for something that you understand you do not have and to believe that the current situation is not “inevitable,” otherwise, why waste your time? In this way, rights discourse is actually counter-hegemonic, for it actively rejects the notion that the status quo must always exist.

Another theoretical criticism of the CLS perspective on rights discourse comes from the fact that there is a disparity between the stated ideology of this nation that is encoded in the Constitution and the Declaration of Independence and the way this ideology is implemented into the form of rule people experience daily. In a way this disparity is what creates hegemony, for if there exists somewhere in the nation’s founding documents’ rhetoric that states that all are created equal, then people are willfully deluded into ignoring their oppression. The implication of this, though, is that within the system that produces hegemony, there is a key to undermine
 it. If hegemony is produced through a tension between what is stated to be true and what is actually true, then the more that gap lessens, the more hegemony is undermined. Or as Crenshaw states while paraphrasing Frances Fox Piven and Richard Cloward: “People can demand change only in ways that reflect the logic of the institutions they are challenging” (111). Thus rather than promoting hegemony, rights rhetoric is perhaps the one form of salvation from it.

Wililams’s discussion of the needs vs. rights debate comes in a chapter that is presumably about contract law. After discussing CLS perspectives on rights discourse, Williams tells a story about her experience teaching a property class about Pierson v. Post, a case about two hunters fighting over the rights to a fox:

One day a student gave me a version of the case as reinterpreted by her six-year-old, written from the perspective of the wild fox. In some ways it resembled Peter Rabbit with an unhappy ending; most important, it was a tale retold from the doomed prey’s point of view, the hunted reviewing the hunter. It was about this time that I began studying something that may have been the contract of sale of my great-great- grandmother as well as a census accounting that does list her, along with other, inanimate evidence of wealth, as the ‘personal property’ of Austin Miller (156).

Williams goes on to say, that in both the case of the fox and of her great-great-grandmother, neither being was ever the “owner” of their identity. Rather than having rights of their own, others had the property rights to them. What is intended through the juxtaposition of this story and a commentary on rights discourse is that civil rights can be perceived in some way as an extension of property rights, but rather than someone else owning the deed to your personhood, you do. This implication can be taken beyond its initial reading. Just as the government has the right to take away one’s property rights, it too, in the case of incarceration, has the right to take away one’s civil rights. And, for much of American history overtly (and for current America covertly) owning property was what defined citizenship, so the notion of those without civil rights as second-class citizens is thus reaffirmed by this connection. Under this perspective, the CLS criticism of rights discourse falls by the wayside, because, rather than introducing the notion of rights into the legal system (and consequently affirming the legal system), civil rights operates within a discourse of rights that has always been present in law — property rights (though, frankly, one could argue effectively that civil rights discourse itself has always been in the law). So, again, civil rights discourse become counter-hegemonic in redefining beings from “unowned” or “owned” to “owner”(Williams 152). As Williams writes, “The task for Critical Legal Studies . . . is to expand private property rights into a conception of civil rights, into the right to expect civility from others”(164–165).

In the end of book two of The Kingkiller Chronicles, Kvothe attempts to learn the language Yllish and in doing so encounters cognitive dissonance when learning about its grammatical structure. Kvothe describes the language:

“You couldn’t merely say ‘the Chancellor’s socks.’ Oh no. Too simple. All ownership was oddly dual: as if the Chancellor owned his socks, but at the same time the socks somehow also gained ownership of the Chancellor. This altered the use of both words in complex grammatical ways. As if the simple act of owning socks somehow fundamentally changed the nature of a person” (949).

The Yll’s conception of possession reflects “the diverse principles and codes that [they] have employed to classify and understand the natural world in which they live.” It necessitates that people conceive of ownership as something that is mutual and reciprocated, implicitly creating a sense of responsibility surrounding property and rights. What might be possible if we could conceive of possession the way the Yll do? Williams ends her chapter:

“In discarding rights all together, one discards a symbol too deeply enmeshed in the psyche of the oppressed to lose without trauma and much resistance. Instead, society must give them away. Unlock them from reification by giving them to slaves. Give them to trees. Give them to cows. Give them to history. Give them to rivers and rocks. Give to all of society’s objects and untouchables the rights of privacy, integrity, and self- assertion; give them distance and respect. Flood them with the animating spirit that rights mythology fires in this country’s most oppressed psyches, and wash away the shrouds of inanimate-object status, so that we may say not that we own gold but that a luminous golden spirit owns us” (165).

What better way to subvert hegemony than to disregard our own solipsistic anthropomorphism? Critical Legal Studies, in critiquing a civil progress discourse based on rights and promoting one based on need, operates counter to its founding ideals and supports hegemonic notions. In advocating for progress based on needs, CLS scholarship takes a position of privilege and both ignores the fact that blacks have always been stating their needs and implicitly advocates for a “white man’s burden” view of progress. Arguments against rights discourse are flawed because they fail to see the ways in which it is fundamentally counter-hegemonic. Ultimately, a fundamental shift in the way we view the notion of rights and ownership may be an effective solution to achieving a form of racial equality, and through that, perhaps economic equality as well.

 Crenshaw, Kimberle. 1995. Critical Race Theory: the Key Writings That Formed the Movement. New York: New Press.

Hernández-Ávila, Inés ( Nez). 2003. “The Power Of Native Languages and the
 Performance of Indigenous Autonomy.” in Native Voices American Indian Identity & Resistance. Lawrence, Kansas: University Press of Kansas.

Miller, J. Hillis. 1977. “The Critic As Host.” CRIT INQUIRY Critical Inquiry 439–39.

Rothfuss, Patrick. 2011. The Wise Man’s Fear. New York: DAW Books ;

Williams, Patricia J. 1991. The Alchemy of Race and Rights. Cambridge, Mass.: Harvard University Press.

Winant, Howard. 2001. The World Is a Ghetto: Race and Democracy since World War II. New York: Basic Books.