Critical Race Theory, Law, and Marxism
July 18, 2022
Critical Race Theory (CRT) has its genealogical link to Marxism written into its name. The appellation locates the theoretical turn somewhere downstream of Critical Theory. In spite of this, one would be hard-pressed to find a sustained discussion of the precise relationship of CRT to Marxism in the existing secondary literature, even in those volumes that are meant to introduce the novice to the relevant arguments. Many committed socialists, for their part, have been explicitly critical of CRT, associating it with a "neoliberal theory of inequality" incompatible with a properly socialist understanding of class. These are eager to distinguish CRT from the Marxist tradition. As Vivek Chibber put it in a Jacobin interview, "Marxism is way better than Critical Race Theory." Those on the Left who embrace CRT's insights are equally convinced of its distance from Marxism, arguing for a hard-won theoretical reconciliation between the two discourses. On the other side of the political spectrum, rightwing pundits often simply conflate CRT with Marxism. Indeed, to the extent that they are familiar with it at all, most Americans encounter the critical conception of race in the context of the "culture wars" playing out on television, in school board meetings, and in Republican campaigns across the country. Reactionaries continue to insist on CRT's Marxist roots, incorporating the genealogical link into a theory of "cultural Marxism" that the Southern Poverty Law Center rightly decries as a conspiracy theory.
Intense polarization has made it especially difficult to assess the historical links between CRT and Marxism. This essay reconstructs those links as a prerequisite for determining the extent to which a critical theory of race is compatible with contemporary Marxism. Perhaps unsurprisingly, that compatibility hinges on the theory of value.
After Civil Rights
Significant methodological turns in social theory are often motivated by an experience of failure. The sense of urgency that attends so much of the CRT literature is responsive to the significant shortcomings and failures of the mid-century Civil Rights movement in the United States. That movement enjoyed considerable strategic diversity, but its most conspicuous successes were won by way of the law. These came in the form of judicial interventions, such as Brown v. Board of Education, and legislative measures, such as the Voting Rights Act of 1965. By the end of the 1970s civil rights attorneys had replaced militants as the face of the struggle for racial justice. While CRT has found an audience in many disciplines, its origins are in jurisprudence. It served as a vehicle for liberal civil rights lawyers to express disaffection with the results of the prevailing strategies for eroding endemic white supremacy and to offer lessons taken from disappointing results. Having CRT’s jurisprudential origins in mind helps clarify what is at stake in defining many of its characteristic concepts. For example, the term ‘intersectionality’ was coined by the attorney Kimberlé Crenshaw to describe a persistent challenge civil rights lawyers face in litigating workplace discrimination cases. Because the law bars discrimination on the basis of sex and race, but not both at once, a discriminatory hiring practice that systematically excludes black women (to take a not-uncommon example) is difficult to take on in court. If abstracted from its legal context, intersectionality merely indexes the fact that individuals face multiple, overlapping forms of oppression.
The limitations of civil rights law were made especially palpable in 1991, when Clarence Thomas succeeded the deceased Thurgood Marshall on the Supreme Court. Marshall had been litigating civil rights cases since the mid-1930s. His ascension to the bench symbolized the nation’s commitment to achieving racial justice through the courts. As a justice, Thomas has set himself steadfastly against this goal. Thomas denies that the state can intervene constructively on questions of race. As Corey Robin has shown in his monograph on the judge, Thomas’ legal philosophy was powerfully shaped by his early involvement in black nationalism. His libertarianism stems from his view that the state—and, by extension, its courts—can only ever be a hindrance to the efforts of black individuals to achieve prosperity. He is a pessimist about the future of race relations, seeing racism as a permanent feature of American life. The succession of Marshall by Thomas, then, signaled to many liberals that the civil rights era had come to a close.
This is precisely how Derrick Bell interpreted Thomas’ rise. Bell was a civil rights attorney who had devoted his early career to the desegregation of schools in the South. He was therefore intimately acquainted with the kind of civil rights litigation he would come to severely criticize. “The Thomas appointment,” he wrote, “virtually demands that equality advocates reconsider their racial goals.” The overwhelming electoral success enjoyed by the New Right in the 1980s gave further impetus to strategic reconsideration. Bell’s mature view, one he developed in a series of books and articles from the late 1970s to the early 1990s, was radical in the context of the legal profession. He argued that civil rights law could never successfully put an end to racist discriminatory practices. Bell, who understood himself to be on the opposite side of the political spectrum to Clarence Thomas, joined the new justice in openly questioning the effort to end segregation. In a highly influential article on school desegregation, he argued that an exclusive focus on the goal of integration had caused civil rights lawyers to overlook the interest their clients had in securing access to quality education for their children, regardless of whether or not the schools they attended were integrated.
For Bell, abstract conceptions of equality and the rule of law, the kind that necessarily underwrite the practice of civil rights law, serve to mask the political and economic forces that actually regulate social life. He suggests that desegregation efforts are not ultimately motivated by a general public interest in racial equality, but rather by the self-serving interests of the white majority. In the context of the Cold War, it was in the interest of that majority to demonstrate to both blacks at home and to actually-existing socialist governments abroad that Western democracy would not be permanently marred by racist oppression. Further, the economic development of the South necessitated “the transition from a rural plantation society to the sunbelt with all its potential and profit,” and that this could occur “only when it ended its struggle to remain divided by state-sponsored segregation.” The civil rights achievements of black Americans could only ever be symbolic, because they were only granted when it was clear to whites that they did not represent a genuine threat to their political and economic privileges. On this view, the Supreme Court’s decision in Brown v. Board of Education was not a victory of the rule of law over the vagaries of prejudice, but a political concession granted to black Americans by virtue of a convergence of their interests with those of whites.
Bell’s view reflects his embrace of the doctrine of “legal realism”. This school of jurisprudential thought holds that the law is not a politically neutral normative framework discovered through rational reflection. Rather, while the law appears formal and rational, it is in truth a tool of political power. The doctrine is native to the United States, having been adopted in the first part of the last century by liberal social reformers motivated by the prospect of using the courts to intervene constructively in society. The progress of the new social sciences led jurists of the 1920s and 30s to expose the social forces that motivate the practice of law. They contended that when those forces are properly understood the law can become a scientifically tutored agent of reform. The opposing view—"legal formalism”, or “legal positivism”—holds that the law cannot be reduced to its social functions, and that its discursive coherence guarantees its validity quite apart from the uses to which it is put. For Bell, adopting a legal realist position is a prerequisite for understanding why legal means can never achieve the end of racial justice. The practice of civil rights law can only ever be a part of a political struggle in which oppressed groups are systematically disempowered.
Bell did not inherit his legal realism directly from jurists of the early twentieth century. The doctrine had already been revived by a group of scholars who named their collective project Critical Legal Studies (CLS). These scholars were realists in the sense that they rejected a positivist view of the law, but they differed from their historical counterparts in their evaluation of the prospects for progressive reform through the courts. In the CLS literature, legal discourse as such—the rhetoric and habits of thought shared by lawyers, lawmakers, and judges—is little more than ideology. If the courts can only ever be a terrain of political struggle, then legal reasoning is a myth. The following passage from David Kairys' The Politics of Law: A Progressive Critique makes the point:
The idealized model, the notion of technical expertise, and the notion of the law as neutral, objective, and quasi-scientific lends legitimacy to the judicial process, which in turn lends a broader legitimacy to the social and power relations and ideology that are reflected, articulated, and enforced by the courts. The law serves to depoliticize—removing crucial issues from the public agenda—and to cast the structure and distribution of things as they are as somehow achieved without the need for any human agency. Decisions and social structures that have been made by people—and can be unmade or remade—are depicted as neutral, objective, preordained, or even God-given, providing a false legitimacy to existing social and power relations.
This focus on the legitimating function of the law is distinctive of CLS scholarship.
It is not immediately obvious that a Marxist should take issue with CLS’s brand of legal realism, or the critique of civil rights law that Bell makes on the basis of it. A demystification of legal reasoning by means of sociology ought to be intuitive, even familiar, to an adherent of any Marxist tendency. There is also an unmistakable echo of the Left Hegelian critique of religion in CLS’s critique of legal ideology. On this account, the legitimating function of the courts resembles the function of the church. Each depends on social constructions that must be mistaken for “neutral, objective, [and] preordained” if they are to play their role in the maintenance of the political status quo. In Bell’s writings, in particular, there is little to discourage the Marxist reader. He is sensitive to issues of social class, even pointing to the persistent correlation of racist violence to adverse economic conditions in American history. There are also nods to the anti-racist legacy of the Communist Party, and to figures like Paul Robeson.
It can come as something of a surprise, then, that the CLS literature in general, including CRT, is frequently openly hostile to Marxism. The legal theorist Alan Hunt writes that “Critical [legal] theorists are agreed on their rejection of ‘Marxist instrumentalism,’ [the error of which] lies in positing both a necessary and direct connection between class interests on the one hand and either the content of legal rules or the outcome of the legal process.” That concern is echoed in the work of many critical race theorists, who are keen to contrast their theoretical interventions with what they take to be “traditional” or “orthodox” Marxist positions on race and law. Notably, references to these latter positions are not, as a rule, accompanied by citations of Second (or even Third) International theoreticians—that is, those whose work is most likely to count as traditional or orthodox. Instead, the opposition of traditional and critical theory is borrowed from the Frankfurt School.
After Value Theory
When Max Horkheimer wrote his well-known essay, “Traditional and Critical Theory”,a he was director of an institution—the Institute for Social Research at Frankfurt University—founded to support the work of Marxist, or otherwise Left-leaning academics. It was not Horkheimer’s intention to consign Marxism to the ranks of irredeemably “traditional” theory. In fact, he tells us that Marx’s critique of political economy is his model for genuinely dialectical sociological insight. Among Horkheimer’s aims in the essay is to argue that the principal contribution of Marxism as a doctrine was not the power of its concepts to illuminate the hidden law of motion governing the capitalist mode of production, but the introduction into social theory of a critical, dialectical method. This latter did not go about subsuming (to use the Kantian term of art) the phenomena of the social world under clearly defined concepts, the validity of which is determined by formal, logical articulation and interpenetration. This is the purview of traditional theory. Rather, a dialectical social theory understands the world to be always already in conceptual shape, leaving to the theoretician the task of determining how a discursively constituted world is undergoing concrete processes of historical change. Accepting this argument makes possible outright abandonment of constitutive elements of Social Democratic orthodoxy going back to the Erfurt Program, while preserving the “spirit”, so to speak, of Marxist theory.
The first of these elements to be jettisoned by the critical theorists of the Frankfurt School was Marx’s theory of value. Like the classical political economists who preceded him, Marx argued that the value of commodities was determined by labor. For Marx, the perpetual exchange of commodities on the market can take place because the commodities exchanged are taken to be bearers of a quantum of socially necessary labor, measured in time. Those who own no means with which to produce commodities, and who otherwise have no access to the means of subsistence, are nonetheless able to sell their capacity to work—their labor power—to a commodity producer. The value of labor power is determined by that of the basket of commodities the worker requires to reproduce his productive capacity day after day. The commodity producer is drawn to purchase labor power on the market because the quantum of social labor taken to inhere in his finished commodities outstrips the value of his purchase. The surplus, in value terms, never leaves the producer’s possession. It forms the basis for profit in enterprise. The extraction of profit from commodity production makes a capitalist of the commodity producer. Insofar as the production process resembles a species of buying low to sell high, social production takes on a capitalist character. However, behind the backs of individuals who believe themselves to be making fair value purchases and sales, there arises a system that exploits workers. Far from being determined by a conscious plan, profitability comes to determine which commodities are produced and in what quantities. The distribution and allocation of social labor in a market society is, then, determined by the exchange relationships between things.
Over time, the demands placed by competition on individual firms incentivizes them to revolutionize the means of production with an eye to creating efficiencies. Labor-saving innovations are adopted by individual firms, which allows them to cut back on the purchase of labor power. This also has the effect of reducing the quantum of socially necessary labor understood to inhere in their product. That reduction creates the conditions for innovative firms to undersell their competitors and thereby acquire greater market share. What is perfectly rational for any given firm, however, may not be rational for the surplus value-extracting system as a whole. When generalized, reducing the proportion of investment in labor power relative to means of production negatively impacts profitability. This has the consequence of disincentivizing productive investment. While crises can temporarily restore propitious conditions for profitability, they do so at a tremendous social cost. Marx demonstrates that crises are a necessary feature of the capitalist system. This feature points the way to its conscious replacement by a system of directly social, planned production carried out by voluntarily associated workers.
Horkheimer’s criteria for a critical theory are all prominent features of Marx’s theory of value. Value is a social construction that is conceptually determined prior to theorization. Not only does the market come to determine social production absent any conscious plan, but also key features of the system—such as the nature of value and the origin of profit—remain inscrutable even to capitalists. Further, value theory analyzes capital in terms of a concrete historical process, and does not assume that its categories—value, surplus-value, socially necessary labor time, rate of exploitation—are natural kinds. In fact, the whole system of exploitation upon which capitalist profit depends contains the seeds of its own undoing. A tendency for the rate of profit to fall as industry matures constantly undermines the long-term viability of the social relations that regulate this mode of production. Marx’s theory is dialectical, critical, and concrete in the relevant senses.
Horkheimer had at least two reasons to reject the contents of Marx’s critique of political economy, even while he admired and recommended its form. The first was the widespread view in social democratic circles that the concentration of capital in the form of joint-stock companies, vertically integrated firms and an increasingly sophisticated financial system had successfully mitigated the crisis tendencies of capital. Accepting this view entailed abandoning the dialectical core of Marx’s value theory, which tied the laws of motion of the system to its revolutionary self-overcoming. In fact, when Eduard Bernstein articulated an early version of the thesis, he paired his empirical findings with an attack on Marx’s dialectical method. A second reason was the presence of an alternative political economic theory, that of Horkheimer’s longtime friend and co-thinker, Friedrich Pollock. Deeply affected by his experiences traveling in the USSR, Pollock maintained that the endpoint of capitalist development was not socialism, but a kind of totalitarian state capitalism. State intervention in the economy, which had become commonplace since the First World War, could permanently stabilize the industrial system. The results of this form of state capitalism could be worse than those of a devaluation and disinvestment crisis. The success of fascism in the interwar period appeared to confirm Pollock’s position. These circumstances convinced Horkheimer and the Frankfurt School academics he oversaw that Marx’s value theory had become an anachronism. What was required to meet the new historical moment was a critical theory of society that was not a value theory. It is in this sense that we can identify the Critical Theory tradition as post-Marxist.
Taking its cue from the Frankfurt School, CLS drew a parallel between “traditional” theory and legal formalism. The unified system of propositions that traditional theory understood to underwrite scientific inquiry was analogized to the system of legal norms positivists assume underwrites the course of justice. Given Frankfurt School theorists’ association of traditional theory with Kant’s account of concept use, the parallel was an especially intuitive one. Kant explicitly modeled his theory of knowledge on legal procedure, identifying the elements of objective cognition not with the passive acquisition of mental representations, but with acts of judgment. For the critical theorist, judgments are acts of domination, even while they appear neutral and rational to the judging subject. Critical Theory unmasked the non-dialectical concept as a tool of power. All that was left for CLS was to extend the critique to the legal system.
If CLS borrowed from Critical Theory the resources it needed to mount a critique of legal reason, it did not go so far as to take up the challenge of introducing a novel social theory. That task was embraced by scholars publishing outside the pages of law reviews. Among these, the Puerto Rican sociologist Eduardo Bonilla-Silva has been particularly influential. In his now-classic Racism Without Racists: Color-Blind Racism and the Persistence of Racial Inequality in the United States, he criticizes social theorists who “are still snarled in the prejudice problematic and thus interpret actors’ racial views as individual psychological dispositions.” His own model, by contrast, “is based on a materialist interpretation of racial matters and thus sees the views of actors as corresponding to their systematic location.” The nod to historical materialism is unmarked—there are vanishingly few references to Marx in the text and none to classical Marxists—but transparent. Like the class system, which in capitalism operates through participants who see themselves as doing little more than exchanging equivalents, Bonilla-Silva’s race system exploits non-whites regardless of the conscious intentions of individuals.
The extent to which the author relies on Marx’s method can be seen in the following passage, which summarizes the core of his account of white supremacy: “When the white race emerged in human history, it formed a social structure (a racialized social system) that awarded systemic privileges to Europeans (the people who became “white”) over non-Europeans (the peoples who became “nonwhite”). Racialized social systems, or white supremacy for short, became global and affected all societies where Europeans extended their reach. I, therefore, conceive a society’s racial structure as the totality of the social relations and practices that reinforce white privilege. Accordingly, the task of analysts interested in studying racial structures is to uncover the particular social, economic, political, social control, and ideological mechanisms responsible for the reproduction of racial privilege in a society” (Bonilla-Silva, 2006, 9). One of those ideological mechanisms is the law, which serves, in turn, to naturalize and obscure the functions of white supremacy. Taking his cue from Bell and others, Bonilla-Silva has developed a critical race theory worthy of the name. It is critical insofar as it adopts the form of Marx’s critique of political economy. Rather than focusing on “the totality of [the] relations of production which constitutes the economic structure of society,” his analysis is centered on “the totality of the social relations and practices that reinforce white privilege.” His is a theory of the social dynamic that makes necessary the legitimating function of the legal system.
Bonilla-Silva’s critical theory of race is not the only one of its kind. Indeed, CRT never benefited from a standard canon and there are, at times, significant theoretical incompatibilities among its most widely read exponents. Other contenders are waiting in the wings. In Intersectionality as Critical Social Theory, the sociologist Patricia Hill Collins argues that
…intersectionality is well on its way to becoming a critical social theory that can address contemporary social problems and the social changes needed to solve them. But it can do so only if its practitioners simultaneously understand and cultivate intersectionality as a critical social theory. A form of critical inquiry and praxis, intersectionality has not yet realized its potential as a critical social theory, nor has it adequately democratized its own processes for producing knowledge. But the foundations are there.
In her book, Collins explicitly relates her concept of a critical social theory to the Frankfurt School, arguing that the CRT-inspired notion of intersectionality can only fulfill its theoretical potential if it is understood as an alternative to Marxism.
As we have seen, Critical Race Theory’s relationship to Marxism can be established historically. This is useful because it is hardly intuitive that a debate internal to legal studies about the legacy of civil rights law should give rise to a body of literature that encompasses fields across the social sciences and humanities. What made this possible was the reception on the part of law professors of specific elements of the Critical Theory tradition; in particular, the idea that a critical theory of society that was not a theory of value could and ought to be developed as an alternative to traditional Marxism. This alternative would complement CLS’s idiosyncratic brand of legal realism and help bury the idea, so dear to liberal civil rights leaders, that genuine racial justice could be won through the rule of law. There is, then, no question about continuity, in terms of theoretical commitments, between CRT and Marxism. CRT is not merely critical of the Marxist tradition—the very intelligibility of its discourse depends on a rejection of Marxism’s foundational theoretical claims.
Even so, there is no consensus about the appropriate stance contemporary Marxists should take with respect to CRT. A consensus is especially elusive given that the nature of Marxism has undergone profound change since the end of the Cold War. From the 1890s to the collapse of the Second International, German Social Democracy modeled Marxist politics internationally. From 1918 to 1991, Bolshevism represented the largest and most prominent political tendency to embrace Marxism as its core theoretical doctrine. Bolshevism took up the mantel following the success of the October Revolution and the emergence of a Third International under Soviet leadership. To be sure, internal splits divided Marxists—that between “official” Communism and Trotskyist parties is paradigmatic—but Marxism as a political tendency remained closely associated with Bolshevism. Its centrality was plain even to its opponents. For example, Paul Mattick, a council communist, characterized his politics as “anti-Bolshevik communism.”
With the fall of the USSR, Bolshevism ceased to be a living political tendency. Trotskyist parties either transformed or dissolved. The Communist Party of the United States pivoted to uncritical support for China. For Cold War anti-Communists, who tended to conflate Marxism with Bolshevism, Marxism seemed to have disappeared from the political map entirely. However, only a couple of decades after Marxism was pronounced dead, the sudden eruption of the 2008-9 Financial Crisis refocused the attention of the Left on the irrepressibility of capitalism’s crisis tendency. A decade of insecurity, unemployment, and inequality, combined with unprecedented actions on the part of capitalist states to float the system by way of both monetary and fiscal policy, have convinced many that a return to a Marxism centered on political economy is both appropriate and necessary. This new moment in Marxism has not only inspired a return to Capital and value theory, but also to the legacy of the Second International. A steady stream of new translations has allowed contemporary Marxists to access and evaluate an ever-expanding list of once-canonical texts. The increasing popularity of so-called “Neo-Kautskyism” serves as a symbol for how far the center of gravity of Marxist theory has shifted since the Second World War. Today, Marxists of a decidedly traditional type represent a growing proportion of socialists in the United States.
As contemporary Marxists have turned with mounting interest to Second International Marxism and the finer-grained details of value theory, much of what was assumed about this theoretical legacy during the period of Bolshevik dominance has revealed itself to be a stereotype. For example, the work of Lars Lih has transformed our understanding of Leninism. Lih explodes the myth that Lenin broke with the political strategy of German Social Democracy in favor of a “party of a new type,” which would be organized by a conspiracy of “professional revolutionaries” skeptical of the spontaneous political mobilization of workers. Lih argues instead that Lenin was an orthodox “Erfurtian” who took the SPD as his model for party organization. Similarly, newly available texts by Isaak Rubin and Evlad Ilyenkov have given the lie to the long-held assumption that a sophisticated, Hegelian, Western Marxism can meaningfully be counterposed to a mechanistic, scientistic, Soviet variety. Indeed, the demise of Bolshevism has led to a kind of renaissance in Marxist intellectual life.
Today we are able to see that many social theorists of the Cold War period who understood themselves to be breaking from Marxism did not have a full, or even realistic, conception of the tradition in mind. This can have serious consequences for their contributions. Take, for example, Cedric Robinson’s highly influential concept of “racial capitalism”. The project of Robinson’s most important text, Black Marxism: The Making of the Black Radical Tradition, is to give its readers sufficient reasons to break with Marxism in favor of a Black Radical tradition, the contours of which the author devotes the bulk of his text to tracing. His strategy hinges on the claim that Marx and Engels falsely predicted “that bourgeois society would rationalize social relations and demystify social consciousness.” Instead, “the development, organization, and expansion of capitalist society pursued essentially racial directions, so too did social ideology.” He employs “the term ‘racial capitalism’ to refer to this development and to the subsequent structure as a historical agency." Robinson’s view is that Marxism, with its pretentions to scientific inquiry and its exclusive focus on class relations, misunderstood and underestimated the force of racialist ideology in history. Myopia born of dogmatism led Marxists to unwittingly make common cause with “the apologists for power” in resisting Black radicalism and obscuring the necessary, constitutive role racism plays in capitalist society. Robinson’s influence has convinced many that it would be little more than willful ignorance to deny that capitalism is always “racial capitalism”.
Robinson means for his concept of “racial capitalism” to expand on the understanding of the mode of production we inherit from Marx. He neither develops nor endorses an alternative political economic theory. That said, Robinson does not discuss value theory at all, leaving aside the topic of exploitation entirely. One might expect his argument to touch on Rosa Luxemburg’s account of the role of explicitly racist colonial policy in overcoming what she took to be crises of overproduction, as this remains a model for understanding the functional role of racialist ideology in the progress of capital accumulation. Instead, Luxemburg is cited for her writings on Polish nationalism in order to characterize her as an economic determinist. This reading of Luxemburg adheres to a longstanding Bolshevik line about her legacy.
This is symptomatic of Robinson’s overall conception of Marxism, which is primarily informed by Bolshevism, and especially that of the CPUSA. Karl Kautsky does not appear in the book (he is, after all, a renegade), while Earl Browder and Henry Winston, both key figures in postwar American Communism, are cited. His own description of Marxism makes plain the limitations to his understanding. He writes that “Marxism was founded on the study of the capitalist expropriation and exploitation of labor as first taken up by Engels, then elaborated by Marx’s ‘material theory of history,’ his recognition of the evolving systems of capitalist production and the inevitability of class struggle later augmented by Lenin’s conceptions of imperialism, the state, the ‘dictatorship of the proletariat,’ and the role of the revolutionary party”. Leaving aside the question of where Robinson plucked the phrase “material theory of history” (the phrase does not appear in either Marx or Engels), nearly every aspect of this description is either wrong or misleading.
First, expropriation and exploitation are very different concepts. Capitalists are able to exploit labor without expropriating workers. Furthermore, Engels specifically denies that expropriation is a cause of poverty in his The Condition of the Working Class in England, the book Robinson presumably has in mind. Hal Draper’s research has allowed for a more sophisticated understanding of the phrase “dictatorship of the proletariat,” which was not coined by Lenin, and, as mentioned above, Lenin’s concept of the revolutionary party can no longer be assumed to have been either unique or novel. Perhaps most telling is Robinson’s assumption that Marxism just is Marxism-Leninism, an equation that cannot be sustained today. Finally, Robinson’s claim that Marx predicted a rationalization of social relations and a demystification of social consciousness is dubious, at best. The concept of rationalization is not proper to Marx, but rather to Weber’s sociology. It is not clear that the notion has an obvious parallel in either Marx or Engels, who did not conceive of either the development of technology or revolutions in the mode of production primarily in terms of concept use. As for demystification, it ought to be noted that commodity fetishism is endemic to capitalist societies and is a clear instance of mystified social consciousness. There is nary a page in Marx’s mature work that can be cited to argue that he expected racism would evaporate with the spread of industry. And, indeed, Robinson does not cite one. In the end, what contemporary Marxists are able to learn from Robinson’s critique of the tradition is severely attenuated by the Cold War framing he adopts. If the category of “racial capitalism” is to broaden or correct Marx’s critique of political economy, the relevant concept of capitalism must be clearly related to the laws of motion of bourgeois society as they appear in Capital. If not, “capitalism” as it appears in Marxist discourse and the “capitalism” of “racial capitalism” are merely homonyms.
Even scholars who are keen to bridge the gap between Marxism and CRT (indeed, “identity politics” generally) are sometimes led to identify Marxism with twentieth-century Communism. One of these is Ashley Bohrer, who argues that the divide between identity politics and Marxism is illusory, a product of an insufficiently critical historiography. In her monograph on the subject, she insists that what she identifies as intersectional thinking has overlapped with Marxism for much of the last century. Bohrer is particularly interested in the way anti-capitalism features in the work of anti-racist feminists, as well as the way that black women Communists articulated their role in the movements they formed part of. The likes of Claudia Jones and Audre Lorde feature prominently as “intellectual precursors of intersectionality.” Their position in a Marxist (or, to use her term, “Marx-ish”) tradition is historical, not theoretical. Nonetheless, there are theoretical stakes to uncovering this discursive strand. Bohrer understands racist oppression as having played so essential a role in the historical emergence of capitalism that a genuinely concrete understanding of the system cannot dispense with a theory of race. Indeed, a theory of capitalism that abstracts from race would result in an account that stands to a theory of intersectional oppressions as Feuerbach’s humanism stands to Marx’s materialism. However, Bohrer, like Robinson, says little about the nature of capital itself. She speaks of “different arrangements of exploitation” in a “vast and varied topography of capitalism” and is loath to embrace stable definitions for fear of reifying internally complex concepts. Presumably, Bohrer reckons the threat of abstracting from particulars as bigger than that of employing vague or contradictory concepts. Her refusal to engage on the topic of political economy ultimately undermines her critique of economistic Marxism. This latter is interpreted as privileging the category of class at the expense of other relevant social categories. However, it is not clear how this privileging relates to Marx’s Capital, a book that, strictly speaking, contains no theory of class.
It is intuitive that Marxists should seek to expand on the theory they inherit to address social phenomena that are not adequately explained by its founders. The emergence of CLS, for example, highlights the need for a Marxist theory of law. The new focus on early orthodoxy is particularly helpful on this front. One might assume, for example, that Marxists have always embraced a realist approach to theorizing the law. After all, the classical exposition of the doctrine of historical materialism, Marx’s 1859 Preface to A Contribution to the Critique of Political Economy, locates the legal system in society’s superstructure, not its base. However, traditional Marxism’s most influential authors on the subject rejected legal realism. The first major Marxist text on the law was Karl Renner’s 1904 treatise, The Institutions of Private Law and Their Social Functions. Renner does not deny that the legal system in capitalist societies functions to defend private property and suppress worker militancy, but he is careful to distinguish between the social functions of the law and the positive content of legal norms. He contrasts his sociological approach with “positive legal analysis.” The goal of the latter is “to analyze the legal norms contained in the sum total of positive legal provisions, arranging them in accordance with their inherent nature, and to reduce them to a system.” The author sees his approach as a complement to that project. The positive content of the law is neutral with respect to its social functions in the context of changing modes of production. One and the same legal norm can retain its formal validity even while its social function shifts. For Renner, the function of the law is its role in the production and reproduction of society. “All legal institutions taken as a whole,” he writes, “fulfill one function which comprises all the others, that of the preservation of the species.” Renner does not see the law as a political instrument, but as a necessary element of any society. As a consequence, he denies that the law will wither with the state at the moment socialist supersedes capitalist production.
Renner’s remained the only serious work on the subject until Evgeny Pashukanis published Law and Marxism: A General Theory in 1924. Pashukanis is critical of Renner’s separation of the law’s normative content from its social function. He argues that the law is a direct expression of social relations in production. He identifies the rights-bearing individual—the legal subject—as “the atom of legal theory, its simplest, irreducible element.” This element arises in the context of commodity production, in which individuals control the means of production and are able to alienate their products. The same act of exchange that transforms the labor required for producing a commodity into social labor also creates the legal subject, a bearer of private interests. When these private interests come into conflict with one another, there is a need for a resolution mechanism. Pashukanis writes that “it is dispute, conflict of interest, which creates the legal form, the legal superstructure,” and that “the court is the legal superstructure par excellence.” Of course, this is not how the law appears in subjective experience, where legal norms seem to have their foundation in either reason or nature. The Soviet author likens this systematic misapprehension to commodity fetishism: “The sphere of dominance which has taken on the form of subject law is a social phenomenon attributed to the individuals the same way that value—likewise a social phenomenon—is attributed to the object as a product of labor. Legal fetishism complements commodity fetishism.” Against Renner, Pashukanis argues that the law, like the fetishism of commodities, withers away with the state as a socialist economy replaces capitalist production.
Importantly, for all their differences, neither Renner nor Pashukanis interprets the law in a capitalist state as merely an instrument of class power, a view frequently ascribed to “traditional” Marxism. Kimberlé Crenshaw, for example, writes that “traditional Marxist accounts present law as a tool of oppression serving to pacify the working class.” Similarly, the editors of The Politics of Law state that “a common orthodox Marxist explanation is that law is a ‘superstructural’ phenomena [sic] that is mysteriously governed and determined by an underlying ‘base’ of economic relations and/or instrumentally controlled by the ruling elite or class.” Neither cite any sources. As Marxist discourse continues to be enriched by engagement with older sources, one can expect that these stereotypes will fade.
Marxist Optimism or Afro-Pessimism?
While there is currently no consensus about the extent to which Marxism ought to be open to influence or correction from CRT, a stable bridge between these competing discourses is unlikely to hold. Perhaps the most significant discontinuity lies in the attitude to politics that each inspires. Marxism, by virtue of its model of historical progress, is naturally optimistic. Because they are caught in an antagonistic relationship with their employers, workers are compelled to organize to secure concessions from the buyers of their labor-power. When this tendency to organization is joined with the conscious insight on the part of workers that the proletarian struggle is part of a global transformation of the relations of production that fits these to the level of productive power available to society at large, the workers movement transforms into an engine of political transformation. The goal of Marxist strategy is to expand as far as possible the circles of properly-oriented militant workers while, at the same time, defending political liberty so as to make the battle for common ownership of the means of production as easily won as practically possible. The forces that drive capitalism toward socialism are, for Marxists, inherent to capitalist social relations themselves. For all the setbacks the proletarian movement has suffered since it arose as a distinct political tendency in the middle of the nineteenth century, the hope for the victory of socialism over capitalism remains rational given Marxist theoretical commitments.
By contrast, the political mood inspired by CRT is decidedly pessimistic. The critique of the civil rights strategy for achieving racial justice did not offer an alternative strategy. Rather, critical race theorists routinely guide their readers toward an acceptance of the inevitability of political failure. Derrick Bell argues that racism in the United States is permanent. He writes that “the practice of using blacks as scapegoats for failed economic or political politics works every time. The effectiveness of this ‘racial bonding’ by whites requires that blacks seek a new and more realistic goal for our civil rights activism. It is time we concede that a commitment to racial equality merely perpetuates our disempowerment. Rather, we need a mechanism to make life bearable in a society where blacks are a permanent, subordinate class."
Unlike the labor movement, the struggle for racial equality is by its very nature a struggle of a minority against the majority, and CRT does not identify a social force inherent to the system of white supremacy that drives that system toward progressive transformation. Given the hopeless situation that faces the victims of racist oppression, Crenshaw defends the failed civil rights strategy as the only viable strategy for securing a modicum of always-fleeting relief from racial injustice. The writer Frank B. Wilderson III has given the anti-racist politics of hopelessness a name: Afro-Pessimism. Wilderson goes so far as to argue that emancipatory politics as such depends on anti-Black racism for its very coherence. “Blacks do not function as political subjects;” he writes, “instead, our flesh and energies are instrumentalized for postcolonial, immigrant, feminist, LGBTQ, transgender, and workers’ agendas." The politics of hopelessness lends the anti-racist struggle a noble appeal. Fighting for a just cause while being aware of the certainty of failure is a romantic gesture. Bell calls on black Americans to “realize, as our slave forebears did that the struggle for freedom is, at the bottom, a manifestation of our humanity which survives and grows stronger through resistance to oppression, even if that oppression is never overcome.”
A Marxist might point out that CRT’s political pessimism is founded on another kind of optimism. The permanence of racism in the United States assumes the permanence of the United States. The anti-racist struggle can only maintain its romanticism if the institutions in which racism is entrenched are not in the process of disintegration and delegitimization. Given the combined political and economic crisis facing the U.S. at the present time, maintaining this degree of confidence in the stability of the system could be confused for patriotic optimism.