UNIT: SOCIAL FOUNDATIONS OF LAW

UNIT CODE: LLB 100 A

STUDENTS: GROUP SIX MEMBERS

INSTRUCTOR: MS. L. NAMIINDA

GROUP SIX MEMBERS

MARIAN MANDI 22-1381

MONICA MWAURA 22-2794

LINET MAINA 22-2815

DEBORAH J. BOSIBORI 22-2712

RISPER KITHINJI 22-2808

DAVID MBALUKA 22-3052

VICTOR MUNDATI 22-3867

According to the Legal Defense Fund blog, the Critical Race Theory is an academic and legal
framework that denotes the systemic racism in societies – from education and housing to
employment and healthcare, especially in the United States of America and the United Kingdom.
We can date the history of this theory under the following:1

Critical Race Theory began in the mid 19th century when many intellectuals
perceived that the civil rights movement of the 1960s had ended and that in
fact many of its gains were being turned back. As a result, they began to
develop new theories and concepts that would allow them to understand the
causes and implications of these new developments. Like Critical Legal
Studies, Critical Race Theory gathers disparate scholars and theorists under a
common heading. However, Critical Race Theory is a less formally
organized school of thought than Critical Legal Studies. Leading critical race
theorists include Derrick Albert Bell JR., Alan D. Freeman, and Patricia J.
Williams.

Critical race theorists share a number of themes. Like Critical Legal Studies,
Critical Race Theory finds major faults in liberalism and particular features of
liberal jurisprudence that bear on race, including affirmative action, neutrality,
and "color blindness." Many Critical Race Theory writers, for example, dispute
that the Constitution is or ever can be "color-blind." They also assert that
supposed breakthroughs in the area of racial rights by the Supreme Court serve
only to validate an unjust political system by creating the illusion that racial
inequalities are being ended when in fact they are not.

The theory has five major tenets first and foremost, the notion that racism is ordinary and not
aberrational; secondly, the idea of an interest convergence; thirdly, the social construction of
race; consequently, the idea of storytelling and counter-storytelling and lastly the notion that

1
<https://law.jrank.org/pages/5890/Critical-Legal-Studies-Critical-Race-Theory-
CRT.html#ixzz7l5bvU2CE>
whites have actually been recipients of civil rights legislation. 2 At greater length the first tenet of
this theory argues that the ethos of majority culture promotes and regulates a notion of ‘color
blindness’ and ‘meritocracy’. The color-blindness and meritocratic rhetoric serve two primary
functions; first, they allow whites to feel consciously irresponsible for the hardships people of
color face and encounter daily and, secondly, they also maintain whites’ power and stronghold
within society.

Secondly, the theory of interest convergence is a critical component within the cogs of critical
race theory. Common sense beliefs are formulated by the majority ‘status quo’. The critical race
theory focuses on informing the public how certain stories act to serve to silence and distort
certain enclaves of people and cultures.

Thirdly, race has been set up socially, much to the disservice of people of color which has been
one of the hallmark issues. Consequently, the idea of storytelling comes from its powerful,
persuasive and explanatory ability to unlearn beliefs that are commonly believed to be true. This
division – storytelling and counter-storytelling – is predicated upon the belief that schools are
neutral spaces that treat everyone justly; however close examination refutes this: simply
evaluating graduation rates accomplishes this.

Lastly, whites have been recipients of civil rights legislations.3

It is worth citing Taylor (2009) at length: Fifty years post Brown, de jure
separation has been replaced by de facto segregation, as White flight from
public schools has created a two-tiered system in many cities and student
assignments have shifted from mandatory busing to neighborhood
preferences. Most children of color currently attend schools with relatively
few Whites; very few White children attend schools where they are the
minority. Clarenton, South Carolina, one of the case schools used by civil

2
ND Hartlep Critical Race Theory: An Examination of its Past, Present and Future
Implications( University of Wisconsin, 2011)
3
ibid
 rights lawyers Thurgood Marshall and Charles Houston, remains as
segregated as it was before 1954. The educational progress of African
Americans that has occurred has thus been allowed only if it is perceived by
the majority as cost-free, or nearly so. Preferably, these changes have come
incrementally, and without social disruptions such as marches, boycotts, and
riots. Importantly, for most Whites, advances must come without affirmative
action. (p. 6-7)

Derrick Albert Bell is one of the proposers of this theory and is as far seen as the brains behind
the Critical Race Theory. He furthers the argument that racism is permanent. Bell’s critique
represented a challenge to the dominant liberal and conservatives.

Critical race theory questions the very foundations of the liberal order including equality theory,
legal reasoning, enlightenment rationalism and the neutral principles of constitutional law. The
proponents assume racism is ever present and they search for it critically till they find it. One of
the proponents, Patricia J. Williams has the view that this school of thought emphasizes race as a
fundamental determinant of the American legal system.4In an eloquent autobiographical essay,
she reflects on the intersection of race, gender and class. 5Using the tools of critical literary and
legal theory, she sets out her views of contemporary popular culture and current events. She
perceives the laws as fabled texts which the powers of commerce and the constitution, wealth
and poverty, sanity and insanity, wage wars across complex and overlapping boundaries of
disclosure.

4
Wikipedia
5
PJ Williams The Alchemy of Race and Rights (Harvard University Press 1991)
REFERENCES

<https://law.jrank.org/pages/5890/Critical-Legal-Studies-Critical-Race-Theory-
CRT.html#ixzz7l5bvU2CE>
ND Hartlep Critical Race Theory: An Examination of its Past, Present and Future
Implications(University of Wisconsin, 2011)
PJ Williams The Alchemy of Race and Rights (Harvard University Press 1991)
Wikipedia