The New Boogey Man

Webster’s defines boogeyman as  “bogeyman, noun, bo·gey·man | \ ˈbu̇-gē-ˌman  , ˈbō-, ˈbü-, ˈbu̇-gər-  \

variants: or less commonly bogyman
Definition of bogeyman
1: a monstrous imaginary figure used in threatening children
2: a terrifying or dreaded person or thing

George Soros, Nancy Pelosi, AOC, Mexican rapists.

These are just a handful of boogeymen that the Right Wing in the United States throw out to frighten, energize, and mobilize their most ardent followers and supporters.  These people become the poster-children for why there is no God in the classroom, there is no respect for the Stars and Stripes, and there are no jobs in the once-thriving steel belt of America.

Now there is a new boogeyman in town:  Critical Race Theory. 

In what comes as no shock to informed people, this new Devil is neither new, nor a Boogeyman.

Critical Race Theory is decades old.  It has been one of a myriad of tools in the academic tool box for more than two generations.

Critical Race Theory is one of many descendants of critical legal studies. At its core, Critical Legal Studies posits that law is not objective, determinate and politically neutral.   This jurisprudence appears antithetical to those foundational concepts that we in the legal world pride ourselves upon when thinking about, analyzing, and discussing the law.

Back in the 1970s, critical legal theorists opined that even when we think about the law as neutral and objective, there may be biases and political prejudices that affect the laws that legislators draft and that courts interpret.

If this sounds familiar, that’s because it is exactly what right wing pundits have been saying for four years:  That all laws are political and come with inherent biases which one must be aware of when drafting and interpreting laws.

The boogeyman is politics, not the theory itself.

Critical legal studies can be broken into many facets:  Feminist critical legal theory, Racial critical legal theory, Marxist critical legal theory, etc. just to name a few.

Critical legal theorists believe that legal doctrines – even ones that are hundreds of years old – are socially and historically contingent.  By this, they mean that once the social and historical context changes, so can the rules and standards of the legal system itself.

While this may seem to turn the world upside down, what it really does, in a very, very limited way, is simply make scholars and philosophers question political assumptions and norms.  In many ways, this is what the Reactionary Right in America is doing at the moment, and have for the last four years under Trumpian leadership.

The American Right-Wing has trashed norms of governmental conduct and laws in favor of whatever the political expediency of the base requires. For example, if history unmasks the true political nature of monuments to relics of the Southern Confederacy, then that history must be thrown out and replaced by ones that fit their social and historical contingent.

And critical legal theory goes even deeper.  Using methods from European philosophy, literary deconstructive techniques, methods of post-structuralism, and Freudian psychoanalytical theory, critical legal theorists turn most assumptions of legal theory on their proverbial head, and throw out the baby with the bathwater, to mix two metaphors. That is something that even the most critical analysts and scholars on the left do not want to do.  Nor does the legal profession.

Society, lawyers, judges, legislators and operate on norms that they all agree upon for the most part.  They like consistency, precedence and authority.  They do not like the world of anarchy and unpredictability.

Critical legal theorists however, evaluate every decision in the law (or education, or philosophy) in a political manner.  They analyze it through either a Marxian, feminist, or racial lens.  They look at the political consequences of legal doctrines, theories and statutes through colored lenses to see the impact on certain elements of society, even when the law claims to be neutral and color-blind.

For those of us trained in the Anglo-American concept of legal neutrality and the doctrines of legal positivism, natural law, and the like, this radical approach was almost immediately poo-pooed and dismissed out of hand.  But then, upon closer reflection at judicial opinions and statute drafting, there was no way to avoid examining the notion that, while we desire our system of laws and legal interpretation to be objective and neutral to race, creed, gender, and socio-economic condition, it simply cannot be.

Why?  Because the laws are written and interpreted by people with political ideas, prejudices and experiences which shape them and how they look at the law.

In The Yale Law Journal in 1984, Professor Joseph William Singer put it quite succinctly, when he wrote “…law is not neutral:  It is a mechanism for creating and legitimating configurations of economic and political power.  We have done this by exploring the relation over time between the legal system and the social structure.”

The reason the American Right Wing is so up in arms about Critical Race Theory is not that it will be taught in the primary and secondary schools of America (which it is not, nor can be).  Rather, they are upset because the simple idea that laws and rules and regulations must be examined as to how they will affect groups of Americans who are non-White, Anglo-Saxon Protestant males, means that their own power will be diminished.  The reason they fight so hard is to prop up the system that doesn’t look at how laws disproportionately affect those not as privileged.

Sure, the Right Wing agitates and screams about how they are now being unfairly treated, but that is a red herring to avert the public’s gaze to the real issue:  The American Right Wing’s desire to wrest control of all democratic institutions from the people.  They are the ones who quite truly see every decision of law and government as political decisions. And now that they are not in the majority, they are frightened:  and they should be.  If the reason for holding onto power is in order to maintain privilege that was not fairly earned, they need to get back in their lane and learn how to deal in a multi-racial, multi-ethnic America that seeks equality for all under the law and in society.

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