New essay on the ethics of Critical (Race) Theory

I recently had an essay, “Can Critical Theory, and Critical Race Theory, Ground Human Dignity, Justice, and Equality?” published in the Southern Baptist Journal of Theology. In it, I argue that “CT” and “CRT” seem to appeal to several moral absolutes, such as the treatment of all humans with dignity, respect, equality, and justice, as well as the protection of minority groups from oppression and domination by the majority group. Arguably, these positions presuppose that humans are intrinsically valuable.

Yet, I will argue that CT and CRT have no basis for that presupposition, nor for its other moral stances, due to their rejection of essences, including that humans are made in God’s image. Indeed, our “common humanity,” which must be merely material ontologically, and our self-conceptualizations (or, senses of our identities) are inadequate bases for rights, leaving our moral value as just a result of hegemonic power, the very position that CT and CRT reject.

To help show this, first I will provide an overview of CT and then CRT, along with a general survey of their core ethical positions. Next, I will begin my assessment with a survey of some of these theories’ strengths. Then I will critically examine these theories’ abilities to preserve their key moral positions. Last, I will draw some conclusions particularly for Christians.

You can read that essay here.

New academic book:

Exposing the Roots of Constructivism: Nominalism and the Ontology of Knowledge

My newest academic book has been published by Lexington. I examine the prospects of nominalism (trope, austere, and metalinguistic) to be able to preserve the qualities of reality. However, I argue that it cannot preserve them, and so we will not be able to have any knowledge (& we wouldn’t even exist).

I then apply my findings to a number of disciplines, such as science, ethics, religion, and several other disciplines.

Yet, surely we do know many things. Since that is so, there must be a different ontology that is true other than nominalism. I argue instead for a type of Platonic universals.

The book is a culmination and extension of my many essays and presentations on nominalism.

New philosophy book!

From Roman & Littlefield, the publisher’s website:

Constructivism dominates over other theories of knowledge in much of western academia, especially the humanities and social sciences. In Exposing the Roots of Constructivism: Nominalism and the Ontology of Knowledge, R. Scott Smith argues that constructivism is linked to the embrace of nominalism, the theory that everything is particular and located in space and time. Indeed, nominalism is sufficient for a view to be constructivist.

However, the natural sciences still enjoy great prestige from the “fact-value split.” They are often perceived as giving us knowledge of the facts of reality, and not merely our constructs. In contrast, ethics and religion, which also have been greatly influenced by nominalism, usually are perceived as giving us just our constructs and opinions.

Yet, even the natural sciences have embraced nominalism, and Smith shows that this will undermine knowledge in those disciplines as well. Indeed, the author demonstrates that, at best, nominalism leaves us with only interpretations, but at worst, it undermines all knowledge whatsoever. However, there are many clear examples of knowledge we do have in the many different disciplines, and therefore those must be due to a different ontology of properties. Thus, nominalism should be rejected. In its place, the author defends a kind of Platonic realism about properties.

Critical Race Theory and Relativism

Introduction

Thus far, I have explored several issues with CRT, including its antiessentialism and materialism, and some key implications for ethics. Though Crits appeal to some core moral principles and virtues, such as the need to do justice, and the dignity and equality of all humans, morals on CRT cannot be intrinsically right or wrong. Nor is there an essence beyond their own constructs that grounds and defines these morals as what they are. Instead, these and other morals are their products, being just their interpretations.

There is another implication of their views for ethics, and we can see this most clearly by examining some of Ibram Kendi’s claims about antiracism and its relationship to cultural relativism.

Kendi on Antiracism and Cultural Relativism

Kendi writes that “a racist idea is any idea that suggests one racial group is inferior or superior to another racial group in any way.”[1] Kendi rejects the use of any arbitrary cultural standards as the universal measure of “success” or morality. Since he thinks there are no universal standards, measuring one racial group’s “standing” vis-à-vis another racial group is racist. Even more strongly, he asserts that cultural relativity is the essence of cultural antiracism. That is, “when we see cultural difference, we are seeing cultural difference – nothing more, nothing less.”[2]

Assessing Kendi’s Claim

Now, in light of Christianity, all humans are made in God’s image and thus are intrinsically valuable. In that respect, it is true that people of a given racial group are not inferior to those of another – all are equal in that crucial sense. Yet, on CRT’s antiessentialism, there is no room for appeals to essences that could ground our intrinsic value.

Furthermore, there may be more morals that are held in common across cultures than Kendi might realize. He and others I have been discussing stress the importance of equality, dignity, justice, respect, and more, all of which seem to be deeply held principles that people simply seem to know are valid. Consider a bit more in detail the importance of treating other humans with respect. How that core moral is worked out in a given cultural setting may look quite different than in another one. For instance, many Asian cultures have been deeply influenced by Confucian teachings, especially in terms of filial piety. So, children, even when adults, are expected to show a deep deference to the wishes of the family patriarch. Yet, in other cultures, respect may be shown quite differently. Eskimos honor and respect their elderly by sending them off on an ice flow. Here, there is a common moral principle, yet a difference in a secondary sense, in how that principle should be applied.

However, as we have seen on CRT, there is no room for any essences and universal principles. So, even the core morals that he and others appeal to, like justice, respect, and human dignity, and particulars to a given group. Moreover, these morals are just their interpretations. That means that the morals themselves for which they advocate are relative to a given group. However, that undermines the strength of his and others’ moral contentions, including that racism is wrong, and not just according to them, and justice is good, and so forth.

Since morals are just the products of particular groups, there is no basis why others should also believe and act as he and others do. Moreover, he and others lack a moral basis for critiquing some clearly racist groups, e.g., the Ku Klux Klan. Furthermore, even for Kendi, it does not seem to be the case that cultural differences are just cultural differences. Take the Jim Crow laws of the southern U. S. states. According to this claim of his, it seems those laws were just cultural, descriptive differences, yet that does not do justice to the fact that these laws were deeply immoral.

So, on Kendi’s view, even if a minority group believes that racism is wrong, but the majority doesn’t, there is no shared moral basis to show that the majority’s position is immoral. It would be immoral only to the minority, for its morals are relative to it. Nor would the majority would be immoral, for it constructed its morals as its members saw fit.

Instead, what Kendi and others need to make their many important moral claims stick is a grounding in universal morals, which have an essential nature. And, humans need to be intrinsically valuable due to their essential nature. Yet, since they have forsaken these grounds, his and other Crits’ arguments simply cannot sustain themselves.

[1] Ibram X. Kendi, How to be an Antiracist (New York: One World, 2019), 20. Now, he prefers the description of being antiracist to being a Crit. Nevertheless, Kendi does seem to be embracing the core ideas of CRT, and so here I will consider him under that description.

[2] Kendi, 91.

Assessing Critical Race Theory’s Views about Knowledge

Introduction

Earlier, I described CRT’s approach to knowledge as one in which we are situated historically and contingently, such that no one can achieve a neutral, unbiased standpoint to gaze directly into reality and know it as such. Instead, to even have an experience requires interpretation. We may call this a kind of standpoint epistemology: we always gain knowledge from our particular, limited standpoints, which have been shaped by the aforementioned kinds of factors. Moreover, drawing from people like Nietzsche and Foucault, Crits hold that claims to have knowledge of objective truth really reflect our provisional interpretive grids and our wills to power.

Now, as I have noted earlier, there are some key strengths to their view. Here are two. First, Crits call our attention to actual, concrete human lives, and not abstractions, to see how actions and policies may harm them. The colorblind model can contribute to this effect, for it influences people to not notice the specific ways blacks and other minorities experience and suffer from racism by treating all people in a generalized way. Second, CRT helps researchers by calling attention to systems and institutions, to see ifthere are cases of racism therein.

But there also are some key problems, ones which threaten to undermine CRT itself and its contributions.

Problems with CRT’s Standpoint Epistemology

Let me start with a conceptual problem. If everything is interpretation, then it is not possible to even have an experience of the world without that involving interpretation. Now, I do think it is very important that we interpret our experiences. Yet, CRT is not saying just that. It espouses the view that all our experiences themselves are interpretation- (or theory-) laden. It is as though our interpretive lenses are glued to our faces, and so we cannot remove them.

Suppose this is the case, and we experience a situation in which it seems to us that a white police officer racially profiled a black driver. Yet, if everything is interpretation, we cannot access what actually is the case. We are so constrained by our situatedness that apparently all we can access is our interpretation thereof. But, then we face a further problem: we cannot even access that interpretation as it is, for it too is interpreted. Evidently, then, a second interpretation is involved. However, the same requirement repeats again and again, without any way in principle to stop a regress of interpretations. Knowledge, much less interpretations, cannot even get started, it seems.

If so, then it seems that this result undermines all of CRT’s claims whatsoever, for they too can be nothing other than its particular interpretations. So, it seems Crits could not even begin to form the core concepts of CRT, such as the realities of white supremacy, systemic racism, oppression of racial minorities, inequality, injustice, and more. Nor could we know that these concepts match up with reality. If so, why should others listen to Crits?

We also should consider how Crits tend to argue strenuously for their positions, and they supply good, descriptive support for many points. They want others (non-Crits) to see that their view is correct and should be adopted. However, if CRT cannot even begin to give us knowledge of how things really are in society, why should others give allegiance to its interpretations? Moreover, since CRT must be just a particular interpretation of justice, then it seems that national policy, which would apply to all people therein, should not be set on the basis of CRT.

Still more can be written against the presupposition that interpretation goes “all the way down.” It does not seem to be true descriptively. While it is true that we are shaped by a number of factors, which do contribute to our “interpretive grid,” it still seems possible (even actual) that we can learn to pay attention to other things that we may not have noticed before. J. P. Moreland explains that due to “attentive influence,” we can become habituated in terms of what we pay attention to, which also can lead to habituated interpretations. Yet, over time, we can fall into ruts and not pay attention to other phenomena. Still, we can develop new habits and begin to notice other things, even though it may be difficult.[1]

In my own case, I come from a Caucasian, middle-class family, and I did not experience racial profiling by police. Now, my growing up in that kind of home obviously is very different than one in which someone is a racial minority and has experienced much racial profiling. While I have not had the same experiences of such a person, it still seems I can seek to develop habits that would enable me to become more attentive to such incidents and how they happen. Part of that can occur by my getting to know and listening to stories of people of color who have experienced profiling, which I have tried to do even in my classes.  

Another issue is that according to CRT, all its views must be contingent; they are not necessary, a priori truths, for there are no essences. So, for example, when we come to Crits’ claims of widespread, systemic racism, we should not interpret this as an in-principle truth claim. Rather, to be consistent, it must be an a posteriori claim, one that would be known empirically and be so due to various contingencies.

Nevertheless, that is not how Crits always argue. For instance, consider Ibram Kendi’s claim that “to oppose reparations is to be racist. To support reparations is to be anti-racist.”[2] His wording suggests he intends it as a blanket, universal truth claim. Rhetorically, it is powerful and, if true, no one could oppose reparations and yet not be a racist. However, that is not true, for George Yancey, who himself is black, is a counterexample. Yancey provides reasons against reparations that are not racist and has worked toward racial reconciliation.[3] So even this claim is not true in principle. It, along with other CRT claims, has to be investigated and found to be true in fact. Moreover, like I argued above, this and other such claims can be only Crits’ interpretations, yet without being able to know if they are in line with reality.

Conclusion

This is but a brief assessment of issues related to CRT and standpoint epistemology. But in the next post, I will try to explore more issues from CRT for ethics.

[1] J. P. Moreland, “Two Areas of Reflection and Dialogue with John Franke,” Philosophia Christi 8:2:  307–12.

[2] Ibram X. Kendi, “There Is No Middle Ground on Reparations,” The Atlantic, https://www.theatlantic.com/ideas/archive/2019/06/ibram-x-kendi-opposing-reparations-racist/592060/, June 19, 2019, accessed February 2, 2022. Note: while Kendi uses “antiracist” as a self-description, nonetheless his views do seem to draw deeply from CRT.

[3] George Yancey, Beyond Racial Gridlock: Embracing Mutual Responsibility (Downers Grove: IVP Books, 2006), 105–106.

More Problems for Critical Race Theory from Nominalism

Introduction

As I have discussed in this series, CRT is antiessentialist; it has no room for any essential natures. Why? If they were real, they would exist objectively, yet not be material, thus overriding CRT’s commitment to materialism. Also, an essence would be something natural and real beyond our constructs, which would thereby constrain our freedom to define our identities, i.e., our “true selves.”

On the other hand, if there were essences, then it seems that all humans actually would have an identical set of essential qualities present in each of them. Moreover, a moral virtue like justice would be identical essentially in just people. The moral principle that humans should be treated with dignity also should apply to all humans. These are examples of universals, one thing itself, and yet which can have many instances. And, when a human being exemplifies the virtue of justice, that human is a complex entity, being an individual human who also has the quality of justice.

However, without essences, there would not be any real, universal qualities. Instead, it seems those qualities would be particulars. This is a nominalist position, and since everything is particular on it, there are no complex entities; each and everything is simple – just one thing, and not the union of two or more things. Further, while we may call several similar traits by the same name or description (say, human, or justice), nonetheless those traits literally would be distinct because each one is particular. On this view, things are what they are in name only.

So, CRT is a nominalist view. What are some implications of that?

CRT and Nominalism

Let me being by probing the very assumptions of nominalism, to see if it can do the work that Crits think it can do for them and their theories. They are banking on it to support their many claims of injustice, inequality, and the domination by whites of minorities, to name a few. And, indeed, we can look into actual cases where such things have occurred. Yet, can nominalism sustain these charges?

Let’s focus on the core nominalist position, that everything is particular. So, despite how we may conceive of two or more things that seem similar, actually there do not exist any numerically identical qualities between any two things, whether cases of injustice or anything else. Plus, there are no complex entities; everything is simple (just one thing). So, to help illustrate that, let’s consider a person named Micah who is black, transgender, and courageous. By the way I have written out these descriptions, it might seem that there is Micah who has these qualities. If so, Micah would be a complex entity. But, on nominalism, Micah must be just one thing, so I will illustrate that by hyphens: Micah-a-courageous-black-transgender.

Notice that while we may conceive of Micah in these various ways, nonetheless there is just one “thing” here. Thus, all the “qualities” included in that description really do not exist; there is just the concrete object Micah-a-courageous-black-transgender. Moreover, pick any “quality”; it is identical to any other “quality” in the description, for in reality there is just one, simple thing, not a complex entity. So, for example, Micah’s being black ends up being identical to Micah’s being transgender or courageous. Furthermore, Micah’s being black is identical with the name Micah. If so, then we can eliminate all these other “qualities” and be left with just black. But that is a color that is not particularized. Instead, it seems to be an abstract, universal quality, which would be anathema to nominalism.

Alternatively, suppose we start with Micah’s being courageous. But, the same kinds of results happen; accordingly, there is no reason in principle why the other “qualities” cannot be eliminated without any loss in reality. At best we are left with an abstract object (one that is not particularized) that seems to be a universal, a result that undermines nominalism. At worst, there are no qualities whatsoever to any particular object.

In any of these cases, it seems nominalism cannot sustain in reality the thing or its qualities. But if that is the case, then it seems CRT’s core contentions cannot be sustained either, such as: there are real people who really are being oppressed by the white majority; racism is real, and there are real, systemic injustices; justice, dignity, and equality are good, whereas racism is wrong.

Indeed, even just taking nominalism literally as nameism, then all the qualities of CRT are just names (words) Crits have given to express their interpretations of actions in reality. But, based on nominalism, their interpretations are particular to them. If so, why should others accept their interpretations as the “gospel” truth? Literally, their meanings cannot be before others’ minds, for there are not even any interpretations – they too can be reduced away, just as we saw above.

There’s another reason why people literally cannot have these interpretations before their minds. It seems that ability presupposes what nominalism denies – that humans are not simple; instead, they are complex beings who can have different qualities present in them. Indeed, if not, how could someone be the same person throughout a reasoning process, who comes to change his or her mind from a more traditional view to that of CRT? Beforehand, on nominalism, that person could be characterized as that-traditionalist-person, but afterwards as a that-Crit-person. Yet, they are not identical, and so the person before that process occurred cannot be the same person as the one when it concluded.

Conclusion

So, applying nominalism to CRT, morals like justice, human dignity and equality, and racism’s wrongness are just what they are in name only, and names are particulars. Thus, we are not even talking about the same thing when two different groups discuss matters of justice. There is no essence to any of these morals, and so they (and people too) become nothing but the constructs of particular groups. It is no wonder, then, that with CRT’s strong influence in societal discourse, we are seeing more and more assertions of power to get what people want. After all, what else is left to turn to, if there are no essential, universal qualities (including meanings) that define what something is?

Ironically, though, while CRT advertises itself as the means by which people can be set free (liberated) from their oppression, actually it can do nothing of the sort. Based on its antiessentialism and nominalism, it leads us to think we can define reality, when in fact those two positions would undermine reality, including ourselves and our moral worth.  

More Problems from Critical Race Theory’s Antiessentialism

Introduction

In previous posts, I have assessed CRT from a couple main standpoints. First, CRT’s rejection of essences leaves core moral principles, like justice and equality, as nothing but our constructs. We get to define them as we see fit. So, these core morals also end up being just the results of hegemonic power, the very thing Crits decry. Second, CRT bases the value of humans on their self-conceptualizations (their “true selves”), but this basis cannot preserve our dignity and equality. It substitutes our constructs for intrinsic value. And, if people construct their value, others can deconstruct it and take it away.

While these problems are serious, they are not the only ones due to CRT’s antiessentialism. Here I will look at two more. In the next blog, I will raise a third issue stemming from what kind of thing morals (& humans) are according to CRT. These problems undermine even CRT’s good ethical claims.

The Problem for Autonomy

A major point of appeal of CRT is that humans should be free to define their “true selves” by their own self-conceptualizations. To do this, they must throw off the categories of the majority’s ideology.

Now, surely we have abilities to form our identities (i.e., our self-concepts), and we do this all the time. People may understand themselves (their “sense of identity”) primarily in terms of various self-chosen concepts and categories, whether those be job-, race-, gender-, class-, religion-, or other-related. Christians do this, too, in that they are to see themselves first and foremost as disciples of Jesus, versus under some other aspect that could take priority (e.g., one’s achievements, wealth, etc.)

But, CRT posits that we are nothing but material beings, without an essential nature, which would be the soul. As such, we would seem to be completely subject to the laws of physical state-state causation. In short, it seems we would be exhaustively determined in our choices and actions, such that we would not have any freedom of the will, which is presupposed by, and necessary for, our being autonomous.

However, perhaps a compatibilist view about freedom of the will could be used to help preserve our freedom, all the while we are beings that are subjects of state-state causation. How? Compatibilism asserts that freedom is consistent with being determined. In terms of ability, compatibilism claims that at any given time, a person can do only one thing, which depends upon the state that person happens to be in. In terms of control, of a previous chain of states produces one’s choices and actions. Last, in terms of reason, does not originate anything, like new thoughts or inquiries; it is passive.

In short, compatibilism is consistent with a view of a materialist view of humans. They are just bundles of properties that pass on what they receive from prior states. Thus, at the very least, it is very hard to see how there is any room for a self to originate any kinds of thought or desires, much less freely define one’s true self. If these things are so, then it seems CRT cannot adequately ground its own appeals to our autonomy, which is one of its major “selling points.”

The Problem for Justice

The second issue I will explore in this blog is an implication for justice. Not only is justice up to us, I also think it is impossible to achieve on CRT. Here I will explore one aspect of this issue.

Why would justice be impossible to achieve on CRT? For justice to be done for someone, it presupposes that that person can be identified by us and, even more importantly, is the very one who was treated unjustly before. Then, legally, society can bring remedies to correct that injustice.

But, it seems impossible for there to be any continuity of a given self through time and change on CRT. This issue involves what is called personal identity: what is it that makes a given person the same one through time and change? This is different from CRT’s frequent appeal to one’s sense of identity, which is our way of defining and conceiving of ourselves. Since CRT rejects essences, they cannot be the basis for one’s personal identity. Instead, CRT seems left with appealing to possible solutions that can fit with materialism. What might those include?

I will focus on two main possibilities. The first is that the sameness of person is grounded in sameness of memories. If a person P2 has the memories of someone (P1) who was treated unjustly in the past, then P2 is the same person as P1.

Now, since the law of identity requires that for two things to be identical (there is really only one thing, not two), all their properties must be in common. Now, is this true in the case of P1 and P2? Even if P2 has the same memories of that injustice as P1, P2 & P1 have different temporal properties. Suppose, for example, that P2 is now 45 years old, whereas P1 was treated unjustly (say, for being discriminated against by the practice of redlining in real estate) at age 30. Also, P2 has earned a master degree, whereas P1 had only a bachelor’s degree. Moreover, P2 has been divorced and also does not have his appendix, while P1 was married and had his appendix.

Clearly, then, there are things true of P2 that are not true of P1. Following the law of identity, they are not the same person. Moreover, on a materialist view, it seems that persons are just bundles of material properties, including their memories. There is no underlying essence that would make them the same person, despite differences of temporal or other kinds of properties and parts.

The second option for personal identity on a materialist view is sameness of story. If the story of P2 is identical to the story of P1, then they are the same person. But this too cannot be the case; surely P2 has more details in his story than that of P1, even if the rest of P2’s story matches completely that of P1’s. Again, the law of identity forces us to conclude that they are not the same person.

Is it possible then for a person who was treated unjustly in the past to have that injustice remedied? It seems it would not on CRT, for it lacks a basis for the sameness of persons through time and change. Literally, there is no continuity of persons on CRT’s materialism, and so there is no possibility for justice to be meted out to people.

Of course, many will object to this, perhaps by appealing to our common sense understanding that surely P1 & P2 are the same person. Again, they might do this by appealing to memories, or perhaps to a set of sufficient commonalities of body parts to justify the claim that they are the same person. But all this does is establish for others how we may know that P1 & P2 are the same person. Our knowledge does not make P1 & P2 the same person; rather, that knowledge depends upon their being the same person. And that issue is the one that materialists seem unable to provide.

In the next blog, I will turn to issues posed by their nominalism (i.e., everything is particular and is what it is in name only) for morals and humans.

Critical Race Theory and the Undermining of Human Dignity

Introduction

In a previous post, I argued that though I have not seen Crits (those who advocate for CRT) claim explicitly that humans are intrinsically valuable, nonetheless it is evident that they presuppose it. For instance, Ibram X. Kendi argues that due to their “common humanity,” people of color simply should be treated with justice, dignity, and equality.[1] Crits also appeal to oppression of humans (especially of minority groups) as wrong, and they seem to treat this as a deontological principle that is right in itself. Moreover, they seem to argue very similarly with their positions that all humans should be treated with equality, respect, dignity, and justice, as well as that humans should be free to self-define (auto-nomos) their “true selves.” That self-definition is not to be according to the majority’s ideology but their own particular conceptualizations.

Yet, intrinsic value means that we are valuable simply in virtue of the kind of being we are (human), and not based upon our functional abilities, our value in the eyes of others, or even how we conceive of ourselves. This requires essences, that we are valuable due to our essential nature. However, CRT also is explicitly antiessentialist. What then are the implications of CRT for preserving human dignity, value, etc.?

CRT and the Basis for Law

CRT seeks to shift power away from the dominant group to peoples who have been marginalized and oppressed. In part, this happens by their defining their “true selves.” In turn, these conceptions, or identities, become the basis for law and public policy. While for the moral reasons noted above, such appeals seem to presuppose that humans are intrinsically valuable, they do not attempt to ground rights in that basis. Instead, legislation and judicial rulings attempt to give rights and dignity to people based on their chosen, constructed identities.

Now, I am not surprised by their not grounding rights and dignity in the intrinsic value of humans, for in the west we largely have given up on the reality of essential natures, at least as far as law and policy goes. Why? Many take as axiomatic that the fact-value split is right. According to it, science, which uses empirically verifiable means, has the “corner of the market” on giving us knowledge of facts. But, we cannot know immaterial things like essences with our five senses, so those do not count as real. Moreover, to be “orthodox,” science needs to be Darwinian, which also rejects a need for essential natures.

Relegated to the value side are things that seem to be what science cannot verify, which includes religion, ethics, and metaphysical things like souls and essential natures. Instead of being things we can know are real, they are just opinions, preferences, or our constructs. Without recourse to an objectively real, intrinsic value of humans, another basis is needed to attempt to secure human dignity, equality, etc. Since such things are our constructs, and, on CRT, the oppressed need to be liberated from their oppression, the clear alternative is to base rights and morals in our chosen, constructed identities.  

We should notice how this view stands in contrast to the mindset adopted in the Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” Here, these rights cannot be taken away because they apply to all humans due to the kind of thing we are. Moreover, these rights are objectively real; they are not human products. In short, these are natural rights, due to our nature as humans.

We can witness principles found in CRT also at work in what is called the “new dignity jurisprudence” (NDJ). Both CRT and NDJ hold that law is a matter of power, and not a recognition and application of substantive, universal morals with their essential natures to humans with their natures. Justice Oliver Wendell Holmes helped express and champion this view in law when he claimed that “[a] law should be called good if it reflects the will of the dominant forces of the community even if it will take us to hell.”[2] Since on both CRT and NDJ law is basically power, the oppressed should be liberated from their oppression by seizing power.

Like CRT, NDJ finds “a deep connection between dignity and the autonomy of the inner self that seeks to realize its potential through a preferred lifestyle.”[3] According to Angus Menuge, we can see this development in American jurisprudence through two key Supreme Court cases. The first one, Planned Parenthood v. Casey, held that “at the heart of liberty is the right to define one’s own concept of existence, of meaning ….”[4] Importantly, here, dignity is not intrinsic to all humans; rather, it varies to “the degree to which the state allows people to make their own choices,” which makes it “an entitlement of our liberty.” That is, we have a right to define our “true selves,”[5] lest we be harmed.

In the second case, Obergefell v. Hodges, the Court held that “the state’s constitutional obligation  to uphold equal protection under the law means that it must strike down any laws that humiliate or demean people by denying them the recognition and benefits available to other citizens, because of their chosen lifestyle.”[6] According to Justice Kennedy’s majority opinion, denying same-sex couples the right to marry “would disparage their choices and diminish their personhood.”[7] Here, personhood, as well as dignity, is not intrinsic to humans.

NDJ utilizes five principles which align very closely with CRT. First, due to our autonomy, “all people have the right to choose [without limitation or interference] a preferred lifestyle provided it does not infringe on the autonomy of others.”[8] That is, as long as we do not harm others’ autonomy, our right to self-definition is secure. Second, we self-define our identities by “certain fundamental choices about how we live our lives.”[9] Together, these align with CRT’s principle of autonomy to become our “true selves.” 

Third, we are entitled to privacy, for society has “no right to interfere with one’s personal choices about how to live and who one is.”[10] Fourth, society should not infringe on “one’s fundamental rights of autonomy and self-definition”; doing so humiliates that person and inflicts “dignitary wounds.”[11] Fifth, the law can, and should, construct human dignity by “creating a private sphere in which autonomy and self-definition can operate without the humiliation of social intrusion.”[12]

CRT and the Undermining of Human Value

There is a good aspect to CRT’s influence on law and public policy. Crits rightly recognize that many groups (and not just racial ones) have been discriminated against and need protection. As just a few examples, we can think of African Americans, Native Americans, and women. Of course, CRT focuses on systemic racism and injustices, and while it draws our attention to the possibilities of such discrimination at work, we should not assume a priori that that is indeed the case in any given set of circumstances. (Why not? If we did, we would be importing an essentialist claim into CRT, namely, that systems are in principle racist. But that would make CRT internally contradictory.) We need to investigate and see if that is the case, and if so, then to bring remedies.

However, there is something very important to notice. On the one hand, CRT presupposes that humans are intrinsically valuable, as are certain morals (justice, human dignity and equality, etc.). On the other, CRT needs essences to preserve these intrinsic (essential) qualities. Yet, CRT rejects essences. This means that on CRT, human value, as well as the goodness and rightness of these morals, is nothing but our constructs. Our self-conceptions are what make us valuable. Thus, simply being a member of a common humanity is not sufficient to be valuable. Furthermore, several humans, such as the unborn, infants, people suffering from dementia, and those with severe mental illnesses, may not have self-concepts and thus would not be valuable. If so, it seems they could be mistreated, and perhaps even be killed.

That our value is just a construct also fits with CRT’s nominalism, too, for, as that term suggests, morals, including human value, is in name only. They are just a matter of the words to frame our conceptualizations. But, as the saying goes, talk is cheap, and without a deeper grounding for these morals, CRT cannot sustain them, regardless of the words we employ.

Moreover, according to CRT’s use of standpoint epistemology, all we know is from our limited, historically situated standpoints. We cannot “rise above” them and somehow gain a vantage point from which we can know what is objectively real and true. Instead, everything we claim to know is just our interpretation. But, of what? If somehow we cannot know what is indeed the case in reality, even if not exhaustively but at least accurately, then it seems we are working only with our interpretations. Moreover, these interpretations are just particular to given people groups, according to their interpretive “lenses.” But, if so, there is no objective truth of the matter, even of the many claims of CRT. Thus, why should one group (even the dominant group) give heed to the interpretations of another group, if it does not fit the former’s interpretive grid?

So, CRT (as well as NDJ) cannot preserve the very values and morals that Crits and others rightly presuppose – that humans are intrinsically valuable, and morals like justice are good. Indeed, taken consistently, on CRT humans are not intrinsically valuable; they have value only insofar as they conceive of themselves as valuable. Yet, Crits do not seem to live consistently with this view. They do not affirm the moral equality of all self-conceptualizations. For example, if someone on a job were to choose to self-define as a white supremacist, very likely that person would be ordered to take racial sensitivity training and perhaps be fired.

Moreover, why should others value someone’s (or some group’s) identity? On CRT, it is not because that group’s members are intrinsically valuable; rather, it seems it is because that without it, others are inflicting dignity wounds on those members. Indeed, this is why CRT leads to a demand for affirmation, and not mere tolerance, of someone’s chosen identity. It is a positive rights claim, not a negative one. For without such positive affirmation, we wound their very dignity.

Practically speaking, what does CRT imply? As mere humans, we are not intrinsically valuable. Yet, we know we deeply need it and even crave it, so much so that Crits cannot get away from it – they even presuppose we are intrinsically valuable. But, on CRT, that is a myth. So, we must (desperately) create our own value, and we must require that others affirm our construct of dignity, lest we be exposed as not having any.

Conclusion for Law and Public Policy

This result is incredibly ironic and sad. In law and policy making, we want to protect minorities from immoral discrimination, yet often we are doing so on the basis of CRT and NDJ’s principles. These principles hold that “we are valuable because we are ___,” where we get to fill in the blank with our chosen identities. Two brief examples include the Obergefell decision, and a recent bill that would allow children who self-identify as transgender to come to California to transition while being protected as wards of the court, even without parental approval.[13] They are members of an oppressed minority, and their parents (if they oppose those actions) could well be seen as the oppressors. Moreover, we must affirm these children’s self-concept(s). Yet, this basis can never preserve our dignity and equality, for it substitutes our constructs for intrinsic value. And, if people construct their value, others can deconstruct it and take it away.

[1] Ibram X. Kendi, How to be an Antiracist (New York: One World, 2019), 54, 198. While Kendi prefers the label “antiracist,” nonetheless I think his views draw deeply from CRT.

[2] Letter from Holmes to Felix Frankfurter, 1914, in Albert Alschuler, Law Without Values: The Life, Work, and Legacy of Justice Holmes (Chicago: The University of Chicago Press, 2000), 59.

[3] Angus Menuge, “The New Dignity Jurisprudence: A Critique,” in Barry W. Bussey and Angus J. L. Menuge, eds., The Inherence of Human Dignity: Law and Religious Liberty Vol. 2 (London: Anthem Press, 2021), 75.

[4] Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), § 851.

[5] Menuge, 76.

[6] Ibid., 77.

[7] Anthony Kennedy, majority opinion, Obergefell v. Hodges (2015) 14-556 U. S. Supreme Court. https://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf, 19 (italics added).

[8] Menuge, 78-79 (italics added).

[9] Menuge, 79.

[10] Ibid.

[11] Ibid.

[12] Ibid.

[13] See https://twitter.com/Scott_Wiener/status/1516475367845892099?ref_src=twsrc%255Etfw%257Ctwcamp%255Etweetembed%257Ctwterm%255E1516475367845892099%257Ctwgr%255E%257Ctwcon%255Es1_&ref_url=https%253A%252F%252Fwww.them.us%252Fstory%252Fcalifornia-trans-refuge-bill-safe-haven-trans-youth. Accessed August 11, 2022.