Anglican Perspectives

A Faithful Way to Understand and Engage Critical Theories

Critical Race Theory alarms people. For those who do not research and teach in universities, it seems to have come out of nowhere. It’s confusing. Many people have a vague sense that it is racist or unjust or has a false account of history and human nature, but they cannot put their fingers directly on what they find problematic.

Critical Race Theory is one of a family of critical theories that now dominate academic discourse in our universities. Some critical theories, such as Critical Legal Studies, established themselves in elite universities in the 1970s and now count three generations among their adherents. Others, such as Intersectionality Theory and Queer Theory, are more recent. But they were not invented yesterday.

Critical theories are no longer just matters of academic interest. Graduates from elite universities tend to lead our most powerful cultural and political institutions. In their rhetoric, critical theories are confidently marching into culture and politics. Adherents of critical theories are most likely showing up in your church, the school where your children learn, and your city council meeting. They are certainly in your neighborhood.

It is important to understand critical theories. It is equally important not to caricature them. We will get nowhere in our attempts to reason with and love our neighbors unless we respond to their actual claims and concerns.

A political movement is now afoot to ban the teaching of Critical Race Theory, and many Christians support that effort. A blanket ban is seldom a good idea. The solution to bad ideas is to answer them with good ideas. This does not mean that we should tolerate indoctrination. Some practitioners of critical theories try to force their ideology on others through “cultural sensitivity” training, pronoun revelations, and other methods designed to stultify the mind. We should not submit to those efforts but should explain why we choose knowledge of truth over ideologies that obscure reality.

Furthermore, not all expressions of critical theory lack value. Some critical theorists have important things to say. And intellectual leaders—teachers and students in college and graduate school, politicians and public servants, clergy and counselors and mentors—should read critical theorists for the same reason they should read Hegel, Marx, Hitchens and other influential proponents of ideology, not to affirm them but to understand them. The most persuasive ideological writings contain kernels of truth that resonate with people. In addition, we should seek to understand the ideas that influence our neighbors, including the bad ones.

I spent several months immersed in critical theories while co-editing a textbook on jurisprudence. Reading Richard Delgado, Kimberlé Crenshaw, Judith Butler, Cheryl Harris, and their teachers and disciples introduced me to a powerful set of ideas and a profoundly different way of thinking. Though my interest is primarily in the implications of critical theories for law and human rights, the lessons I learned may translate into literary criticism, theology, science, and other bodies of knowledge as critical theories all share a method of inquiry and a small number of tenets or theoretical features.

Critical theories are incompatible with basic human rights and the rule of law because they reduce everything to human power. By way of contrast, Christianity is compatible with law and human rights because it places power below the authority of human reason and human reason below God. Christians are commanded to obey the law and to respect all other human beings as bearers of the image of God, agents of rationality and creative power with intrinsic worth. Christian teachings about human nature and law gave us the rule of law in the West. Christianity supplied the ideas about human dignity and natural human rights which motivated the first abolition of slavery in the sixth through tenth centuries and the second abolitionist movement in the eighteenth and nineteenth centuries. Christians led the first civil rights movement in the 1860s and 1870s and the second one in the 1950s and 1960s. None of that was an accident.

Christianity supplies the sine qua non (the essential condition) for the rule of law to stand above the rule of human beings, namely a source of legal authority that precedes statutes and judicial decisions. Law can stand above politics because law exists prior to politics. Christianity is not the only such source of legal authority, of course, but it is on a very short list. In the whole history of the human race, only divine law, natural law, and immemorial customary law (e.g. the nomos of ancient Greece, the common law from which we received fundamental rights such as the jury trial and free speech, and the ius gentium that has governed international commerce and maritime activities for centuries) have proven capable of supporting the rule of law. Every other concept of legal power devolves into some form of human command theory which is ultimately used to justify rule by the most powerful person or class.

Critical theories deny that any transcendent sources of authority exist. All relationships are functions of the power that some human beings exercise over other human beings. The kernel of truth here is that human beings do have a tendency to exploit and oppress each other. (Christians call this sin.) We have not understood the full implications of all our unjust acts and practices (our sin). The value in critical theories lies in their clarity about injustice. The defect in critical theories is that they move injustice to the center of human relationships and shuffle righteousness and reason to the margins, or deny their existence altogether. 

This shift rests on the method that all critical theories employ in varying degrees. In their studies, they replace essential human nature and achievements with accidental features and defective human relationships. Consider the 1619 Project’s focus on the Jamestown settlement and its failure to celebrate the slave-free settlement of Plymouth Plantation in 1620. Which of those early American settlements is more central to American ideals and institutions? How one answers that question will determine how one defines “America.”An America founded for the purpose of preserving slavery is radically different from an America whose essence is characterized by the Mayflower Compact and gratitude for Divine providence.

As I have explained at greater length elsewhere, critical theories reject essence. In their account, what is most important about being human is not the imago Dei—our capacity to reason, choose the good, and create and order the world—but rather our capacity to subject each other to oppression and inequality. For example, what is most important about law and American constitutionalism is not that our political society has (haltingly, imperfectly) achieved the rule of law over the rule of men, but rather that some powerful people have in various times and places torn down the rule of law and established systems of oppression.

Critical theories of law also share a central premise that law is an illicit discursive regime. For those who are a little rusty on their Foucault and Derrida, a discursive regime is an arbitrary linguistic and cultural construct. Powerful people make up discursive regimes not to understand or describe reality but to control the terms of discourse.

In the most thorough-going critical theories, every way of thinking is a discursive regime. There are no objective truths accessible to human reason. All communication and practical action is thus zero-sum competition between discursive regimes. Each discursive regime is designed to define other discursive regimes out of existence by defining away the conceptual categories which would make their communication and practice possible. The normative implication of this is that, in order to survive, each discursive regime must do whatever is necessary to supplant competing discursive regimes.

The American versions of critical theory (Butler, Delgado, Harris, etc.) add another important element. They divide people into identity-based groups and then identify different discursive regimes with different races, sexes, gender identities, and/or socio-economic classes. In the purest of these theories, there are no truths other than the subjective experiences or feelings of different identity groups. Consequently, the discursive regimes that now control our thought—logic, science, law, monotheistic religions—were all constructed arbitrarily by white men to define the subjective experience of less powerful identity groups out of existence.

In short, critical theories hold no reasons for action. No divine or natural law. No authority other than subjective experience. So, law may be torn down. And the existence of discursive regimes such as law threatens the subjective experience, and thus the existence, of minorities. This is why the law must be torn down.

Since all normative frameworks are discursive regimes, the only way to get rid of a discursive regime is to replace it with another discursive regime. That is what critical theorists are doing now. They feel justified in replacing law with their consequentialist ideology because in their view everything is constructed from cultural and linguistic power. There is no higher law. There are no objective truths.

Critical theories present both a challenge and an opportunity. They are moralistic theories. They reject the false moral neutrality that has dominated public discourse for the last several decades. They invite moral critiques and moral engagement. Christianity provides both.

We should fight for the civil liberties of critical theorists and religious believers not out of some misguided notion that moral neutrality is possible but instead because we know that every human being has inherent rights as a bearer of the image of God, a creature whom God created to exercise dominion over some part of the world by reasoning, choosing, and co-creating what is good. Additionally, we should insist on the rule of law because human beings fall short of God’s purposes for us; we sin. These two truths complete the center of the picture that critical theorists have begun constructing around the margins.

Adam J. MacLeod is Professor of Law at Faulkner University and Research Fellow at the Center for Religion, Culture, and Democracy. He is also a member of the AAC’s Anglican Legal Society and a Trustee of the American Anglican Council.

The Anglican Legal Society (ALS) brings together diocesan chancellors, attorneys, and others who are interested in Anglican governance and related legal issues, particularly in regards to religious freedom in North America. It is committed to developing faithful leaders in law, equipping churches to better understand and grapple with the legal implications of cultural and religious change, and reforming the Church to better develop and live into its canons. The ALS annual gathering at the Christian Legal Society meeting offers instruction, fellowship, and an opportunity to learn from each about wise practices and good order for Anglican parishes and dioceses. If you are an Anglican lawyer or chancellor and are interested in getting involved in the Anglican Legal Society, please email Canon Phil Ashey at pashey@americananglican.org.

Listen to the latest Anglican Perspective podcast, where Canon Phil talks more in-depth with Professor MacLeod:

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