LatCrit
Theory: Some Preliminary Notes Towards a Transatlantic Dialogue
by Elizabeth M. Iglesias*
I.
Introduction...
A.
A
(Brief) LatCritical Narrative: From Critical Legal Studies (CLS) to Critical Race Theory (CRT).
B.
Feminist
Critical Legal Theory and Critical Race Feminism.
C.
Asian
Pacific American Critical Legal Scholarship and Chicana/o Studies.....
D.
Queer
Legal Theory
II.
Conclusion.....
In June of 1999, American LatCrit scholars from law
schools throughout the United States and Spanish legal scholars from the
Universidad de Málaga gathered together for the first international colloquium
ever convened to explore points of intersection between LatCrit legal theory
and Spanish legal history, culture and institutions.1 The impetus for this initial exchange was a
two-fold objective. The first was to
introduce Spanish legal scholars to the evolving theoretical perspectives,
political aspirations, normative commitments and critical methodologies of
LatCrit legal theory as thus far articulated in the American legal academy.2 The second was to expand the scope and depth of LatCrit discourse
through a substantive exchange with Spanish legal scholars, who are
particularly well positioned to explain the role of law in Spanish society and to
provide Spanish perspectives on the way LatCrit theory takes up the many
questions raised by the impact of Spanish history and current-day projects on
the complex configuration of Latina/o identities and realities, both within the
United States and throughout Latin America.
That Spain, its history and current-day realities should
emerge as topics of profound interest to many LatCrit scholars is hardly
surprising. The term “LatCrit” is an
abbreviation for “Latina and Latino Critical Legal Theory” and references a
collective project initially launched in 1995 for the express purpose of combating
the relative invisibility of Latinas and Latinos in American critical legal
theory and discourse.3 In the “LatCrit” designation, the term “Lat”
reflects a commitment to examine law and legal institutions in a way that
seriously engages the particular histories and realities of Latinas/os, both
within and beyond the territorial boundaries of the United States. The term “Crit” reflects an equally central
commitment to perform this identity-based critique in solidarity with the
various pre-existing networks of scholars and activists, who seek to promote
progressive social change through the critical analysis of law and legal
discourse.4
Drawing on theoretical frameworks and conceptual
resources developed across many different disciplines, the LatCrit project
seeks to marshal critical analysis to expose and transform the ways in which
law institutionalizes relations of domination and subordination around
essentialist categories such as race, class, gender, sexual orientation,
language, national origin and immigration status. Increasingly, this project has called for a new kind of
coalitional theory – one that transcends the limitations of inherited
categories of essentialist identity and grounds the achievement of substantive
justice in an anti-essentialist vision of human interconnection, without
borders or boundaries.5 This is, in part, because the LatCrit
project has effectively revealed how the marginality of Latinas/os and other
intersectional and transnational identities, both within and beyond the U.S.
domestic legal system, is directly linked to the deployment of essentialist
categories of identity, in the articulation both of public policies and of
popular cultural understandings.6 Indeed, the impact of essentialism is also
reflected in the fact that international law, transnational identities and
solidarity networks, as well as the international human rights movement have
been relatively marginal to, and often completely absent from, the domestic
political and legal agendas pursued by key social justice movements within the
United States, including but not limited to the American civil rights movement,
the labor movement and the women’s rights movement.7
Against this backdrop, the LatCrit project emerged as a
collective effort to expand the depth of American critical legal theories and
the breadth of substantive topics marked for anti-subordination critique by
focusing on the particular realities confronting Latina/o communities. Latina/o communities and identities
constitute a useful point of departure for fostering an expansive
anti-essentialist agenda in and through the articulation of coalitional theory
because Latinas/os come from many different races, ethnicities, genders,
classes and national origins.8 Indeed, the transnationality and
intersectionality of Latina/o identities and communities makes the articulation
of an inclusive anti-subordination agenda both extremely difficult and
extremely important. This is precisely
because both elements trigger immediate confrontations with the realities of
intra-group differences.9 Transcending these differences within and
between Latina/o communities requires the production of a new political vision
of substantive justice because it requires a critical perspective that can
resist the tendency to fragment coalitional solidarities along the lines of
class, race, ethnicity, gender, national origin and other essentialist identity
constructions. 10
In this vein, the unique role of Spanish history and
culture in the configuration of Latina/o identities and communities makes Spain
a subject of obvious and increasing interest among many LatCrit scholars. Though the everyday realities currently
confronting Latinas/os in the United States and throughout Latin America may be
most directly and immediately determined by the impact of American domestic and
foreign policies, it should never be forgotten that today’s Latina/o
communities were spawned during Spain’s colonial supremacy and through the
physical and cultural impact of the Hispanic conquest on indigenous communities
in Latin America and throughout much of the southwestern United States. It is no surprise, therefore, that the
continuing legacy of the Hispanic conquest has already emerged as a central
theme and concern among some LatCrit scholars, nor that it continues to mark an
important field of inquiry worth further LatCrit attention.11
At the same time, as LatCrit scholars continue to
confront the consequences and to explore the implications of increasing
globalization, Spain, its legal system, history, culture and current-day
projects offer a relatively unexplored avenue through which to engage the
critical insights of post-colonial theory and cultural studies, to grapple with
the meaning and significance of Europe and Africa in the articulation of
LatCrit theory and its social justice agendas, and to excavate these new
insights in tandem with, and in relationship to, our critical analysis of
international and comparative law, legal institutions and procedures. From this
future oriented perspective, Spain offers a valuable point of reference for
examining a host of pending issues that are especially germane to Latinas/os
and to other political identity groups committed to the articulation of an
expansive anti-subordination agenda without borders or boundaries. These issues
include such matters as the continuing repercussions of Spanish colonialism and
the future of democracy in Latin America, the configuration of interstate power
relations within the European Union, and Spain’s role in current-day projects
to promote sustainable economic development, social justice and democratic
freedom in the countries of Africa and Latin America.12
Given the potential pay-offs of this transatlantic
dialogue, the purpose of this essay is to provide some preliminary notes for
facilitating a meaningful substantive dialogue between American LatCrit
scholars and Spanish legal scholars interested in exploring the implications of
LatCrit theory from a Spanish perspective.
The intellectual and political value of this transatlantic collaboration
is clearly evidenced by the essays in this Colloquium. Consistent with the exploratory purposes of
this initial dialogue, the essays span a broad range of important topics,
providing significant new insights into the comparative impact of regional
integration on national identities and the rights of citizenship,13 the status of gender in a comparative analysis of public/private
regimes,14 the objectives of legal education,15 and the relationship between Spain and Latin America in
redressing the impact and combating the impunity of military dictatorships and
colonial expropriations.16
The success of this project does, however, face
significant obstacles, not least of which is the matter of cross-cultural
translation. Fostering a genuine
understanding between American LatCrit and Spanish legal scholars means
successfully negotiating the vast range of historical, cultural and structural
differences that distinguish legal consciousness, practices and institutions in
Spain and the United States, as well as an equally vast range of relatively
unexplored differences in the way Spanish and American cultures configure
Hispanic/Latina/o identities. At the same time, understanding the emergence and
broader significance of LatCrit theory in the American legal academy requires
understanding both the genealogy of the series of conferences and events that
today constitute the recorded history of the LatCrit project, as well as the
broader historical backdrop of critical legal scholarship that preceded the
emergence of LatCrit theory. It also
requires a vision of the kinds of issues and substantive themes that can and
should be explored through a transnational, cross-cultural exchange of this
sort.
Accordingly, the purpose of this essay is to provide a
brief sketch of (some of) the critical legal discourses and theoretical
currents that preceded the emergence, and currently inform the articulation, of
LatCrit theory. More specifically, my
objective is to situate LatCrit theory in and against seven strains of critical
legal discourse, whose theoretical perspectives, analytical methodologies and
political aspirations are particularly relevant to, and evident in, the body of
LatCrit scholarship and discourse thus far produced. These seven strains are Critical Legal Studies, Critical Race
Theory, Feminist Legal Theory, Critical Race Feminism, Asian Pacific American
Critical Legal Scholarship, Chicana/o Studies and Queer Legal Theory. With the exception of Chicana/o Studies,
each of these discourses emerged in the American legal academy within the last
twenty-five years; each constitutes a critical intervention aimed specifically
at the production of legal scholarship; each subjects law and legal
institutions to critical analysis for the express purpose of producing a more
just and egalitarian society; and each articulates a different, though often — but not always — allied, perspective on what justice and equality ought to mean.
My purpose here is not to provide a comprehensive account
of any of these discourses, but rather to provide a much more controversial,
though I think, ultimately, more helpful account of the way each discourse
emerged in response to and as a reaction against perceived limitations in the
critical project mapped out by its predecessors. The purpose of this genealogy is to provide Spanish legal
scholars with an intelligible narrative of the intellectual and political
background that informs LatCrit theory.
This genealogy will be controversial among American critical legal
scholars precisely because it recounts the relationship between these various
strains of critical legal discourses from a specifically LatCrit perspective, that is, from a perspective that foregrounds
the ways in which LatCrit theory has sought to acknowledge and incorporate the
advances achieved by its predecessors, even as it seeks to identify and
transcend their limitations in order to produce a more inclusive, expansive and
distinctively LatCritical agenda.
There is no question that this genealogical narrative is
partial and incomplete; that it excludes important networks of scholars, whose
efforts have informed the understandings and assisted the professional
development of individual scholars now associated with the LatCrit movement;
nor that the genealogical relationship among these various strains of critical
legal scholarship would undoubtedly be told very differently by non-LatCrit
scholars, and even by other LatCritters.17 All these caveats are good reasons not to attempt a narrative project that
is so thoroughly doomed from the get-go to trigger criticisms from so many
different, though entirely predictable, directions; and yet, in this context,
at this moment, a story must be told.
It must be told for two reasons.
First, to introduce LatCrit theory in a cross-cultural,
transnational context without even trying
to explain the relationship between LatCrit theory and the substantial
tradition of critical legal discourses that informs and enabled its emergence
would be arrogant in the extreme.18 LatCrit theory is neither fully developed,
nor self-contained. It is profoundly
indebted to, enriched by, and invested in the continued evolution of the
critical discourses that predate it.
This is precisely because LatCrit theory is the collective work product
of a diverse array of scholars and activists, who are contributing to the
development of LatCrit discourse from a wide variety of positions and
perspectives, even as they remain grounded in and committed to the further
development of other critical discourses and transformative projects.19 Any effort to introduce LatCrit theory to scholars and activists
in another country must acknowledge and, at least, attempt to explain these
interconnections in an intelligible way because these interconnections are
substantively significant to an accurate understanding of the critical project
that is currently underway in LatCrit theory.
The second reason for doing this genealogy is more
abstract, but nevertheless compelling.
Undoubtedly, the relationship among these seven strains of critical
legal discourse is susceptible to multiple interpretations. I would venture,
however, that there is no American
legal scholar working in any of these seven strains of critical discourse, who
does not have some narrative
understanding of the historical and theoretical relationship between these
various discourses and projects —
however partial and incomplete, informed or uninformed, developed or
underdeveloped that narrative may be.
As a result, any cross-jurisprudential engagement among American
critical legal scholars is always potentially impacted by the degree to which
these pre-given understandings are activated, as well as by the way their
different perspectives are addressed and resolved in any particular encounter.
This essay is, however, specifically addressed to Spanish
legal scholars, whose points of reference and theoretical frameworks are as
unfamiliar to most LatCrit scholars as the historical development of critical
legal theories in the American legal academy may be to them. Therein precisely lie the anticipated
learning and new discoveries promised by this collaborative project of mutual
engagement and cross-cultural exchange.
Therein also lies the challenge of making LatCrit theory
intelligible. Since LatCrit theory does
not exist in a vacuum separate or apart from the advances already made, and the
obstacles already encountered, in and through the efforts of scholars working
in other critical discourses, it cannot be rendered intelligible except in relationship
to these prior movements. It is thus,
from this perspective — informed by a keen awareness of the inherent
contingency and partiality of any attempted genealogical narrative – that I
have nevertheless concluded that, in launching such a transnational and
cross-cultural project, it is more important at the beginning to get it
“wrong,” than to not get it at all.
A. A (Brief) LatCritical Narrative of the Evolution from
Critical Legal Studies [CLS] to Critical Race Theory [CRT]
Critical Legal Studies emerged as a loosely aligned and
radically progressive network of scholars working in the American legal academy
in the latter half of the 1970s. Since
then, CLS scholars have produced a rich and complex body of legal scholarship
that reflects a broad range of theoretical perspectives and critical
methodologies, including the influences of American legal realism, Marxian and
neo-Marxian social theory, phenomenology, semiotics, structuralism,
post-structuralism and the deconstructive techniques of post-modern literary
criticism.20 Early CLS scholars sought to inject these
diverse theoretical perspectives into the production of legal scholarship as
part of a broader political project to reveal the role of law in the social
production of class hierarchies and human alienation. Their critical analysis targeted a wide range of legal fields
and, in the process, launched a wholesale and highly controversial critique of
American style liberalism. Indeed,
their critiques profoundly challenged many received understandings in the
American legal academy precisely because they triggered significant doubts
about the transformative potential of liberal rights consciousness, the
objectivity of judicial interpretation, as well as the internal coherence and
normative legitimacy of the way public/private rights regimes have been
structured by the articulation of liberal theory in American legal discourse
and doctrine.21
For purposes of this genealogy, I want to focus
specifically on two key elements of CLS scholarship that are particularly
relevant to understanding LatCrit theory and its historical origins. The first is the CLS practice of applying
deconstructive techniques to the critical analysis of legal reasoning and
doctrine; the second is the CLS critique of liberal rights consciousness.22 These two elements are, for both substantive and historical
reasons, of particular relevance in understanding the genealogy and future
trajectories of LatCrit theory. At a substantive
level, this is because many LatCrit scholars today articulate their critical
interventions in terms that reflect the influence of CLS deconstructive
methodologies. At a historical level,
these two elements also played a central role in the ruptures and disjunctures
that provided the immediate impetus for, and gave initial shape to, the
emergence of Critical Race Theory.
Since LatCrit theory, itself, emerged most immediately and proximately
in response to perceived limitations of the Critical Race Theory Workshop,23 a narrative account of the
origins of Critical Race Theory in and against the CLS project is particularly
salient to understanding LatCrit theory’s genealogy, as well as to
understanding the many challenges awaiting our collective attention as we move
to launch this collaborative project of cross-cultural exchange between LatCrit
and Spanish legal scholars.
Initially, Spanish legal scholars may find it difficult
to understand what CLS deconstruction aims to accomplish because its political
and epistemological objectives are very much embedded in and, more importantly,
are reacting against a legal ideology that is particularly American. This
ideology projects an image of law as an apolitical medium for the objective
resolution of disputes. It casts law as the application of reason to limit the
exercise of arbitrary power and legal process as a vehicle through which
fundamental social conflicts and intergroup antagonisms are incrementally
resolved through the evolution of a well-reasoned and ever more comprehensive
body of rules developed in and through the careful adjudication of specific
cases.
Viewed against the civil law systems in countries such as
Spain and in Latin American countries that have incorporated Spanish civil
codes and legal traditions, this American legal ideology reflects the legacy of
the British common law tradition, which was transplanted to the American
colonies during the colonial period that preceded the American Revolution. In the common law tradition, the vast corpus
of private law doctrines evolves, not through the enactment of comprehensive
codes, but rather through a process of adjudication in which binding legal
precedents are judicially articulated to resolve specific cases and
controversies. In the United States,
the legal doctrines articulated through this process of adjudication are also
binding on all future cases within the relevant jurisdiction. As a result, in the U.S. legal system,
judges wield enormous power to decide what the law is and thus to define and
redefine the existing structure of rights and obligations in ways that have
profound impact on the organization of social relations within (and beyond)
American society. Judges in the U.S.
legal system also enjoy an unprecedented degree of independence from the
legislative and executive branches of government, and have the legal authority
to declare the actions of these other branches unconstitutional.
Given the unprecedented scope of judicial power, the
perceived legitimacy of the American judicial system and its ability to
effectively settle disputes depends importantly on a belief in the objectivity
of judicial interpretation and the process of adjudication. Indeed much of liberal legal theory is aimed
at fortifying this belief. Judicial
independence is cast as a fundamental prerequisite for institutionalizing “the
rule of law,” which is itself sharply distinguished from the exercise of
arbitrary power, otherwise known as “the rule of men,” and heralded as an
indispensable element of democratic self-government.
Against this backdrop, CLS scholars consciously and
deliberately imported deconstructive methodologies into the production of legal
scholarship in order to reveal the incoherence, arbitrariness and deeply rooted
biases of judicial interpretation — as reflected in the indeterminacy of
American legal doctrines and the structure of rights and obligations these
doctrines tend to institutionalize. In
particular, CLS scholars targeted the judicial practice of precedential
analysis through which the appropriate legal outcome of an adjudicated dispute
is supposedly determined by analogical reasoning from previously decided cases
raising similar issues under similar circumstances. Taking on a vast range of substantive legal fields, CLS scholars
developed a series of profoundly compelling critiques that effectively revealed
the indeterminacy of some of the most basic and foundational doctrines of
American property, contract and tort law;24
they exposed the role of judicial reasoning in “de-radicalizing” American labor
rights legislation and thereby suppressing the possibilities for progressive
social transformation embedded in the early New Deal labor laws; 25 and they revealed how the
indeterminacy of legal doctrine renders law an instrument through which the
fundamental contradictions and social antagonisms repeatedly reflected in
routine cases appearing before the courts, are displaced — rather than
resolved — through the process of
adjudication.26
This broad scale attack on the internal coherence and
purported objectivity of judicial interpretation challenged the liberal
distinction between law and politics in profound and material ways. The reaction was immediate and intense.27 Many CLS scholars were purged from elite law schools, attacked as
anarchists and declared unfit to teach law in the American legal academy. Despite these assaults and the individual
careers that were sacrificed to the forces of reaction, many CLS scholars today
remain tenured, though marginalized, in law schools throughout the
country. Though they have bequeathed no
institutional or programmatic legacy, the critical insights and methodologies
they pioneered continue to provide an important source of insight, inspiration
and direction to new scholars interested in a deeper understanding of the many
disjunctures between the aspiration for substantive social justice and human
solidarity, on the one hand, and the limits of positive law and legal process,
on the other. Indeed, CLS perspectives, methodologies and critical formulations
are readily apparent today in the work of various LatCrit scholars.28
Although the theoretical and political disjunctures that
produced the ruptures that, in turn, gave rise to the emergence of Critical
Race Theory are profoundly complex, multidimensional, and informed, as all
things human, by the strengths, weaknesses and personal idiosyncrasies of the
particular individuals involved at that particular moment in history, there is
no question that the CLS critique of liberal rights consciousness played a
central role in the CLS-CRT rupture.29 The reasons are easy to understand when the
CLS rights critique is read against the history of the American civil rights
movement and its historical struggles to combat the racial dictatorship of
white supremacy in the United States.
To reduce the civil rights movement to a series of legal
struggles over the constitutionality of racial segregation and the
Congressional enactment of civil rights legislation would be a gross
misrepresentation of the profound political, spiritual and moral awakening produced
by the non-violent protests and individual courage through which Black people
in this country rose up to challenge the gross injustices of American racial
apartheid.30 Nevertheless, this movement did have a
profound impact on American rights consciousness precisely because this
anti-racist movement also took the form of a struggle for civil and political
rights. As Black citizens sought
increasingly and proactively to assert their rights to freedom of speech and
assembly, to vote, to due process and to the equal protection of law, the sheer
lawlessness and impunity with which white citizens and State law enforcement
officials throughout the South conspired to deprive them of these rights
triggered a crisis in the perceived legitimacy of the state and the effective
viability of the rule of law.31 Through the symbolic power of non-violent
protest and effective legal and political advocacy, the civil rights movement
exposed a nation to itself, by revealing the systemic and effective hypocrisy
of its purported commitment to individual dignity, liberty and equality, and
even to the rule of law. The
Congressional enactment of civil rights legislation in the mid-1960s was thus
viewed by many as a significant victory, not only for the civil rights
movement, but also for liberal political aspirations to vindicate the American
experiment in democratic self-governance and to reaffirm the primacy of the
rule of law.
Against this backdrop, it is not surprising that the CLS
critique of legal indeterminacy and liberal rights consciousness would prove
profoundly disturbing to many legal scholars of color, particularly those whose
own personal commitment to the study and practice of law drew its energy and
inspiration from the history of the civil rights movement. Though many scholars of color could readily
appreciate the power of deconstructive legal analysis and its usefulness in
revealing the indeterminacy of legal reasoning and the ideological biases
reflected in judicial interpretation, these same scholars were understandably
hesitant to embrace the more radical implications of the CLS critique.
One particularly controversial implication drawn from the
CLS critique of legal indeterminacy was the notion that rights consciousness
was an obstacle to, rather than an instrument for, the
progressive transformation of society.32 The CLS critique of legal indeterminacy and
judicial subjectivity was so thoroughly devastating to the liberal vision of
law as a neutral instrument of rational dispute resolution and objective
justice precisely because it directly challenged the notion that fundamental
social change could, in fact, be effected through law. On the contrary, rather than limiting the
exercise of arbitrary power by dominant social interests, legal adjudication
was exposed as a process that enabled judicial ideology to disguise its own
complicity in the reproduction of social hierarchies through the interpretative
manipulation of a fundamentally indeterminate and ultimately incoherent body of
legal doctrines. Though “the law,”
understood specifically as judicial adjudication and enforcement of fundamental
legal rights, was purportedly above or beyond politics, CLS scholarship
repeatedly revealed that judicial adjudication was simply another forum and
venue of political contestation, a venue that was particularly elitist,
exclusionary and inaccessible to the kinds of claims truly democratic and
transformative social movements might want and need to demand.
Although the ruptures that produced the CRT break from CLS
span a much wider breadth of issues than those implicated in the debate over
the role of law and rights consciousness in the process of social
transformation, this perspective does provide a useful vehicle for articulating
points of theoretical convergence and divergence. These points, in turn, may illuminate some of the aspirations
invested in the current LatCrit project and may also help to guide its future
evolution, particularly at the threshold of this new initiative to produce a
collaborative cross-cultural, transnational dialogue between American LatCrit
scholars and Spanish legal scholars.33 In this vein and in the context of this very
brief genealogical narrative, it may suffice simply to note that LatCrit
scholars can neither abandon, nor fully embrace, the dominant civil rights
paradigm, nor the rule of law ideologies through which its limitations are
excused. Indeed, the emerging body of
LatCrit scholarship reflects precisely this dynamic tension.
Like CLS scholars, many LatCrit scholars have expressed
profound dissatisfaction with the U.S. domestic civil rights paradigm. This expressed dissatisfaction has thus far
centered on three key elements: (1) the
domestic myopia that truncates U.S. civil rights discourse and consciousness
within a domestic framework;34
(2) the failure of U.S. civil rights paradigm to incorporate social and
economic rights and to deal adequately with the realities of class
subordination and the centrality of poverty in the reproduction of racial
subordination both within and beyond the United States;35 and (3) the fact that the
U.S. civil rights paradigm is truncated by an ideology of color-blind
individualism36 and, more
particularly, by the tendency to view issues of racial inequality and
subordination through the limited framework of a Black/White binary of race and
race relations, which fails to address the cultural, economic and political
dimensions of white supremacy as it operates specifically in the subordination
of identities and communities that are neither black, nor white.37
Although the highly critical perspective with which
LatCrit scholars have assessed the viability and legitimacy of the current
civil rights paradigm marks important points of convergence with earlier CLS
critiques of legal indeterminacy and liberal rights consciousness, there are
significant divergences. As with CRT
scholars, many of the issues and concerns that have occupied LatCrit attention
counsel grave caution in the way we use, and the inferences we draw from, the
CLS critique of the role of law and legal rights consciousness in the process
of social transformation. To give just one example, LatCrit scholars have from
the very beginning sought to articulate LatCrit theory and social justice
agendas in ways that acknowledge and effectively respond to the transnational
dimensions of Latina/o identities and communities.38 As a result, LatCrit theory is interested in challenging both
the ways in which transnational identities are particularly oppressed by the
current structure of domestic U.S. legal regimes, as well as the realities of
subordination that are currently manifested in third world countries from which
these transnational identities originate.
The first interest is reflected in LatCrit challenges to
the failures of the domestic civil rights paradigm to incorporate social
justice issues like the struggle for language rights or to challenge the ways
in which U.S. immigration laws and policy legitimate the systematic violation
of basic human rights through the deployment of essentialist legal constructs
like the citizen/alien dichotomy.39 The second interest is reflected in the
attention LatCrit scholars have devoted to the problems confronting Latinas/os
and other transnational, intersectional and marginal identities throughout
Latin America and the third world.40
At the same time, the anti-subordination commitments at
the heart of the LatCrit movement counsel grave caution in addressing social
justice issues in countries other than the United States, “lest we are too quickly
seduced or reduced to thinking in terms of the readily available
blame-the-victim discourses of Third World corruption, authoritarian
traditions, and bureaucratic impotence.”41
In this vein, a LatCrit sensibility also warrants caution regarding any
proposal to transplant the more radical versions of the CLS rights critique to
third world countries where the “rule of law” is hardly a dominant ideology. The history and continuing instances of
gross human rights abuses, impunity, and corruption in countries such as
Guatemala, Nicaragua, Colombia, Peru, and Haiti provide a frightening window
into the possible consequences of the wholesale deconstruction and
delegitimation of rule of law ideologies.
Although it is certainly true that the indeterminacy of
law and the limitations of liberal rights regimes render law of limited
instrumental value as a tool in the struggle for social and racial justice,
nevertheless the brutality and impunity of elites the world over makes law a
fundamental stake in any struggle that takes seriously the hopes and
aspirations of third world peoples, both within and beyond the United
States. Put differently, while law is
ultimately insufficient to change existing structures of power and privilege,
any emancipatory movement must seek to render power at least minimally
accountable, and to do so, it will need law, and more specifically, it will
need rights. As a result, the future of
LatCrit theory and its prospects for producing a theoretical intervention that
is truly relevant to the compelling problems facing third world peoples
throughout Latin America and elsewhere depends importantly on its ability to
invite collaborative dialogue with third world legal scholars and advocates,
who currently are deeply and practically invested in projects designed to
institutionalize the very same rule of law ideologies that CLS scholars have so
effectively debunked.42 At the same time, there is no question that
the substantive parameters of a LatCritical
rights consciousness must continue to expand our collective understanding of
the meaning and prerequisites of social justice beyond the current limitations
of the domestic U.S. civil rights paradigm.
B. Feminist Critical Legal Theory and Critical Race Feminism:
Intersectionality and Anti-Essentialism in the Configuration of a LatCritical Identity Politics
No genealogical narrative of the theoretical perspectives
and political commitments that currently are converging in the LatCrit project
would be complete without reference to the contributions of FemCrit legal
theory and Critical Race Feminism.43 Similar to CLS and CRT, these two
theoretical discourses produced a rich and complex body of scholarship, whose
contributions to the critical analysis of law, legal institutions and legal
process cannot fairly, nor fully, be captured by a genealogical narrative as
brief as this one aspires to remain.
Accordingly, rather than provide an abstract overview, my purpose here
is to offer a partial, and therefore unavoidably controversial, account of some
of the ways in which these two currents of critical legal discourse have
contributed to the theoretical perspectives and political commitments that
today inform the articulation of LatCrit theory.
FemCrit legal theory emerged in the American legal
academy shortly after the emergence of Critical Legal Studies and reflected a
self-conscious determination to advance two distinct but interconnected
projects: (1) to incorporate the
critical perspectives and methodologies of CLS into the evolving body of
feminist scholarship, so as to give liberal feminism a more critical edge in
the academy, and (2) to incorporate a feminist perspective into the
articulation of CLS scholarship, so as to center the issue of male supremacy
and the impact of male supremacist ideologies on legal interpretation and on
the reproduction of gender inequality across all legally mediated social
relations. Thus, FemCrit scholarship
was both a radical intervention in the development of mainstream feminist
theory and a feminist intervention in the CLS movement — in both instances
aimed at the deconstruction of male supremacy.44
Early FemCrit scholarship reflects this dual objective in
its application of CLS-style deconstructive methodologies to reveal the
limitations of liberal rights consciousness, legal doctrines and legal process
from a specifically feminist perspective.45 Mapping out a broad agenda of critical
analysis and law reform initiatives, feminist legal scholars worked to reveal
and combat the impact of male supremacist ideologies in virtually, and
increasingly, almost every field of law, including criminal law and procedure,46 family law,47 employment law,48 and public benefits.49 They also worked to develop new legal theories to address
incidents and practices of sex-based subordination and oppression that were not
then cognizable under existing legal doctrines. Three notable examples are reflected in feminist legal struggles
to expand the scope of federal anti-discrimination laws in order to allow new
causes of action for comparable worth claims, which challenge the suppression
of wage structures in jobs cast as “women’s work,”50 to create legal remedies
for instances of sexual harassment directed at women in the workplace,51 and to challenge the impact
of the production and dissemination of pornography on women’s equality rights.52
Though LatCrit theory draws more directly from the
theoretical perspectives articulated in and through the subsequent emergence of
Critical Race Feminism, early FemCrit theory made significant contributions to
the evolution of American critical legal discourse, and the conceptual power of
these contributions still resonates today in the theoretical perspectives
informing the LatCrit project. To understand
this connection between early FemCrit theory and the more recent advances in
LatCrit scholarship, it is important to remember the particular challenge
feminist legal theory directed at the settled understandings underpinning
American equal protection doctrine and anti-discrimination laws. Informed by a vision of formal rights
equality, American legal discourse and consciousness predicated
anti-discrimination laws on the liberal consensus that equals should be treated
equally. However, in defining
discrimination as the unequal treatment of similarly situated persons, liberal
rights consciousness produced a truncated vision of equality that ignored the
many ways in which sex and gender based subordination are organized around the
discriminatory treatment of difference, particularly the differences between
men and women.
Indeed, this truncated formulation of the equality norm
has produced truly absurd moments in the history of American equal protection
jurisprudence. In one particularly
ridiculous string of cases, the U.S. Supreme Court held that the exclusion of
pregnancy-related disabilities from an employer’s disability benefits plan did
not violate the Equal Protection Clause of the U.S. Constitution or Title VII’s
statutory prohibitions against sex-based employment discrimination, absent
evidence that the exclusion of pregnancy disability benefits was a pretext for
discriminating against women.53 Despite the fact that only women can become
pregnant, the Court refused to recognize pregnancy-related discrimination as
sex-based discrimination, arguing that pregnancy discrimination does not
discriminate between men and women, but rather discriminates only as between
pregnant persons and non-pregnant persons.54 Although Congress shortly thereafter
overruled the Court’s interpretation as applied to Title VII,55 the Court’s reasoning
reveals the profound obstacles confronting any feminist project to promote sex
equality through law, so long as the right to equal treatment and respect is
thought to depend upon and derive from women’s similarities to men.
Blind-sided by the superficial logic of this formalistic
equality norm and by the fact that women’s differences were often used to
justify their subordination and exclusion from the opportunities available to
men, many women initially responded by denying the “objective” reality and
ultimate relevance of sex and gender based differences. These differences were said to be socially
and culturally constructed differences that did not constitute fundamental or
necessary limitations on women’s ability to be equal to men. However, this approach — as evident from the
Supreme Court’s treatment of pregnancy discrimination — soon proved seriously
inadequate to the challenge of promoting women’s equality, particularly as
women began affirmatively to embrace and re-value their differences from men
and to articulate new demands for an equality of respect, rather than of
treatment.
Early FemCrit theory was absolutely central to this
gestalt shift in perspective.56 Admitting women’s differences from men,
FemCrit scholars launched a reasoned attack on the role that “women’s differences” were allowed to
play in legitimating women’s subordination and suppressing women’s
opportunities. After all, while women
are certainly different from men, so too are men different from women. Why then should women have to prove they are
like men? Perhaps men should have to
prove instead that they are like women.
Requiring women to be the same as men reduces the meaning of “equality”
to nothing less than a blatantly discriminatory demand that women assimilate to
a male norm. Thus was launched the
so-called “sameness/difference debate” in the struggle over the meaning
sex-discrimination and the requirements of equal protection.57 Its significance cannot be overstated, nor should its profound
relevance to the LatCrit project be overlooked.
Certainly, one reason why the sameness/difference debate
pioneered by FemCrit scholars is so relevant to LatCrit theory is because
LatCrit theory aspires to articulate a broad and inclusive vision of social
justice, which necessarily must, and already has, incorporated the struggle for
gender equality and the dismantlement of male supremacy as a key element of its
emancipatory project. However, this
debate has profound implications for a much wider array of LatCrit concerns
precisely because LatCrit theory grounds its commitment to anti-essentialist
intergroup justice on a respect for difference, rather than a requirement of
sameness. It could not do otherwise,
given the attention LatCrit scholars have devoted to matters like language
rights.58 This is because the struggle against the suppression of languages
other than English cannot effectively rebut the claim that different degrees of
language proficiency do constitute meaningful grounds for discriminating among
persons — absent a vision of equality and individual dignity that transcends
the requirement of sameness.59
Despite its significant contributions and its aspirations
to define a common agenda for the universal liberation of women, FemCrit theory
floundered on the racial, ethnic, class and cultural essentialisms of its
pre-dominantly white, upper-middle class, First World perspectives.60 Many Black and Third World feminists soon complained that matters
of particular significance to women of color were marginalized, in and by the
exclusive attention white feminist scholars directed at issues related to sex
and gender based oppression. Though
rape, sexual harassment, pregnancy discrimination, and pornography are
certainly matters of compelling concern to women of color, a genuinely
inclusive and universal feminism would have to join the struggle against the
racism, cultural imperialism and economic exploitation through which women of
color are particularly oppressed.
This type of criticism is well illustrated in accounts of
the United Nations’ Conference in Copenhagen in the mid-1980s.61 When First World feminists condemned the practice of female
genital mutilation, Third World feminists objected that problems of nutrition,
infant mortality, illiteracy, health care delivery, and skilled training were
as important to them as women as the
issue of female circumcision.
Addressing these problems would, however, require feminists to take an
anti-imperialist position, and according to at least one commentator, many
Third World women felt their self-defined needs were not addressed as priority
items in the international feminist agenda, which was dominated by a white
Western feminist perspective and inattentive to issues of imperialist
domination. 62
Closer to home, attention to the particular forms and
contexts of discrimination experienced by women of color provided significant
new insights into the limitations of American equal rights consciousness and
federal anti-discrimination laws. For
example, the process of proving a discrimination claim was particularly and
uniquely problematic for Black women alleging employment discrimination because
the prohibitions against employment discrimination based on race and sex failed
to take women of color into account as a distinct, legally cognizable
category. As a result, an employer who
discriminated by refusing to employ any Black women at all, nevertheless, might
easily escape Title VII liability by showing that he employed white women (and
therefore did not discriminate on the basis of sex) and that he employed black
men (and therefore did not discriminate on the basis of race). The failure to recognize women of color, as
such, in the classification of categories protected by federal
anti-discrimination statutes, meant that the systematic exclusion of Black
women from a place of employment could be done with virtual impunity.63
Although some white feminist scholars acknowledged the
need to expand the scope of the feminist legal agenda to enable new avenues and
possibilities for anti-racist solidarity with women of color, anti-imperialist
solidarity with Third World women and anti-classist solidarity with poor women
of all colors, others continued to propound a universal feminist agenda based
on abstract assertions about the common interest of all women in the
elimination of sex and gender-based oppression, even as they continued to
marginalize the particular forms of oppression experienced specifically by
women of color.64 Thus, Critical Race Feminism was born from
the felt need among women of color to articulate a feminist legal theory
grounded specifically in the particular experiences of women of color at the
intersection of multiple practices of oppression and the convergent impact of
racism, sexism and class exploitation.65
Like LatCrit theory, Critical Race Feminism challenges
the Black/White paradigm of American racial consciousness.66 It does so by interpolating issues of sex and gender into the
analysis of racial discrimination even as it invites all women of color to
develop a collective political identity and to forge an inclusive
anti-subordination agenda across the divisions of race, class and ethnicity.
C. Asian Pacific
American Critical Legal Scholarship and Chicana/o Studies
No genealogical account of the emergence of LatCrit
theory could fully and effectively convey the substantive scope of LatCrit
aspirations to articulate a broadly inclusive anti-essentialist,
anti-subordination theory without noting the contributions of Asian Pacific
American Critical Legal Scholarship [APACrit] and Chicana/o Studies. These two
movements made significant contributions, both within and beyond the
institutional and programmatic parameters of the LatCrit project. At the same time, each movement presents a
distinct, but ultimately inter-related, challenge because each movements calls
in different ways for LatCrit scholars to ensure that the future development of
LatCrit theory retains its substantive commitment to intra- and inter-group
justice. In this respect, the long tradition of Chicana/o studies and activism
challenges LatCrit scholars to attend to the particularities of intra-Latina/o
differences,67 even as the
more recent interventions of APACrit scholarship illustrate why LatCrit
scholars cannot limit the parameters of our theoretical concerns or
solidaristic commitments to an essentialist construction of Latina/o identity,
nor even to the more inclusive politics of Latina/o pan-ethnicity.68 Each movement, thus, presents LatCrit scholars with a ready
opportunity to ground the production of LatCrit theory on a genuine respect for
and engagement in the convergent liberation aspirations and struggles that have
thus far been truncated by the essentialist manipulation of intra- and
inter-group differences. A few brief
observations may illustrate these points.
Asian and Pacific American scholars have for some time
been examining the complex relationship between the U.S. legal system and the
particularities of Asian Pacific American experiences in and beyond the United
States. 69 Nevertheless, the proposal to launch “an
Asian American Moment” and, thereby, to initiate a collective project aimed
specifically and self-consciously at articulating common themes and points of
critical legal intervention around the particular experiences of Asian and
Pacific Americans was a profoundly significant moment in the development of
American critical legal discourse and, more specifically, in the subsequent
emergence of LatCrit theory. 70 Its significance to LatCrit theory derives
both from the new theoretical insights and the important intergroup
commonalities revealed by the emergence of APACrit scholarship and from the
generous contributions Asian and Pacific American scholars have been making to
the development of LatCrit theory since its inception.71
LatCrit theory and APACrit
scholarship share ready points of convergence.72 Both movements seek to reveal
historical and contemporary aspects of white supremacy that have thus far been
suppressed and marginalized by the Black/White paradigm of American racial
consciousness, even as each acknowledges and stands in opposition to the
particular and pervasive forms of racial discrimination suffered by Black
persons, both within and beyond the United States.73 Both movements, by definition, center marginal, transnational and
intersectional identities and attempt to articulate a common agenda for
progressive social transformation out of an imagined act of solidarity among
individuals and communities otherwise separated by profound differences of
language, culture, class, ethnicity and national origins. Both link the identities they center to a
profound critique of the limitations of the domestic U.S. civil rights paradigm
and seek to import issues arising out of U.S. immigration laws and policies,
the suppression of languages other than English, and the structural failures of
international law and institutions into the critical analysis of white
supremacy and its articulation in legal norms, process and institutions. As a
result, both have made significant contributions to the development of an
anti-essentialist moment in the production of Critical Race Theory and to the
evolution of American critical legal theory, even as each promises to reveal an
ever broader and more comprehensive understanding of the way relations of
domination and subordination are mapped across the globe and institutionalized
in American law and policy.
The long history of Chicana/o studies and activism, by
contrast, dates back to the 1960s and 1970s and informs the substantive themes
and concerns of LatCrit theory in profound and particular ways.74 Unlike other Latina/o groups, most Chicanas/os never crossed the
U.S. border; rather “the border” crossed over them. The history of Chicana/o subordination and dispossession is
directly linked to the history of Anglo-American settlers, whose westward
expansion was cast as Manifest Destiny and whose acquisition of the vast
territories of the southwestern United States marks a history of war, theft and
judicial lawlessness of unprecedented proportions.75 Thus, a Chicana/o perspective brings to
LatCrit theory a unique set of issues arising out of current legal struggles
over this history of stolen lands and U.S. treaty violations, even as the
struggle to combat Chicana/o poverty in cities along the U.S.-Mexico border
calls for proposals and strategies that address the current distribution and
regulation of land ownership, that promote enforcement of labor and
environmental standards in the Maquilladora industry across the Mexican border,
and that combat the militarization of the United States border patrol.76
D. Queer Legal Theory
Once again, as with other strains of critical discourse
that currently are contributing to and reflected in the evolving record of
LatCrit theory, no genealogy as brief as this can convey the full scope of
contributions made by QueerCrit scholars to the LatCrit project, both in
ensuring the authenticity of its asserted commitment to a broad and inclusive emancipatory
project, and in mapping out new sites of legal intervention in the struggle to
produce a more just and humane society.77 Although the richness and extensive
potential of the two-directional project, through which Queer LatCrit scholars
are seeking to articulate a QueerCrit intervention in LatCrit theory and a
LatCrit intervention in QueerCrit theory, is still at an embryonic stage of
development, it is important for Spanish legal scholars interested in
understanding the full scope and significance of the anti-essentialist,
anti-subordination commitments of the LatCrit project to understand the reasons
why QueerCrit discourse constitutes a central component in and for the future
development of LatCrit theory.
It is easiest to understand this jurisprudential
interconnection if one understands that “Queer” identity constitutes an
imagined political identity embraced primarily, but not exclusively, by gays and lesbians.78 Indeed, like “LatCrit” identity, “Queer” identity seeks to
articulate an anti-subordination position and perspective that is authentically
and broadly inclusive precisely insofar as it opposes all of the many ways in which the suppression, repression and
reglementation of the human capacity for sexual/spiritual interconnection is
culturally inscribed and legally enforced by straight, white, and male
supremacist ideologies and practices.
In this respect, the Queer liberation project marks
important points of solidarity and interconnection with LatCrit feminist
perspectives and emancipatory aspirations.
Women, in general, and Latinas, in particular, suffer significant
oppression as a result of the ways in which sexuality is culturally
represented, socially organized, and legally regulated.79 Because the regulation of sexuality is so central to the
particular ways in which women are subordinated in male supremacist regimes,
the substantial and increasing body of Queer scholarship criticizing the essentialist
and oppressive aspects of heterosexual institutions such as “marriage” and “the
family” constitute important theoretical resources for LatCrit theory.80 Though “marriage” is cast as a sacred institution, the bedrock of
Christian civilization, marriage also and often constitutes the site of
violence, abuse, and material exploitation of women (and their labor power) by
the men to whom they are married.81 Sexist representations of women also infuse
the adjudication of child custody disputes and the determination of welfare
eligibility in ways directly calculated to compel women’s conformity with male
supremacist notions of female dependence on and attachment to a heterosexual
male partner (preferably her husband).82 As a result, both Queers and women share a
common interest in deconstructing the sexist assumptions inscribed in current
understandings of the meaning and social, spiritual and psychological
significance of marriage and family.
At the same time, the pervasive and particularly virulent
forms of homophobic oppression expressed in and across all of the various
communities of color that are currently invested in the further evolution of
LatCrit anti-essentialist anti-subordination theory and praxis makes it
normatively and politically imperative that LatCrit scholars attend to the
problem of homophobia in Latina/o cultures and communities, and particularly to
the ways in which Queer Latinas/os are subordinated in and through the
limitations of American rights consciousness.
Although Queer activists achieved some successes in and through the
increasing recognition of the human rights implicated by homophobic practices,
institutions and ideologies,83
the struggle for a full recognition of the human dignity and equal rights of
Queer persons continues. LatCrit
scholars have a particular responsibility to participate in this struggle
precisely to the extent that LatCrit theory propounds a commitment to a broadly
inclusive, anti-essentialist vision of Latina/o liberation, specifically, and
human liberation in general.
LatCrit scholars also have a distinct perspective to
offer in ensuring that this struggle recognizes the particular ways in which
Latinas/os, and other transnational and intersectional identities, are doubly
burdened for being Queer, and for failing to embody the American cultural and
national identity that shields the white, Anglo-American citizen from such
particular forms of homophobic repression as those embedded in the failure of
domestic immigration laws and policies to recognize and accord equal treatment
to gay families.84 Although this brief narrative only sketches
the contested terrain negotiated by the project to produce legal theory at the
intersections of Queer/LatCrit positionalities and perspectives, it does
provide important insights into the ways in which this particular project
implicates, and is implicated in, other emancipatory projects within the
LatCrit movement, that is specifically, the project to dismantle the oppression
of male supremacy, as well as to achieve transborder justice for the marginal
and intersectional transnational identities at the center of LatCritical identity-based critiques of
law, legal process and legal institutions.
These preliminary notes have sought to orient Spanish
legal scholars interested in understanding the purposes, methodologies,
aspirations and future trajectories of American LatCrit legal theory. Despite the many challenges confronting any
effort for genuine dialogue and mutual understanding across cultural, national
and historical divides, the First Annual LatCrit/Spain Colloquium hosted by the
Universidad de Málaga Facultad de Derecho and co-sponsored by the University of
Miami Center for Hispanic and Caribbean Legal Studies in June of 1999, marked
the beginning of a rich and enriching exchange which inspired much excitement
and enthusiasm among American LatCrit scholars. It is my deepest hope that this admittedly brief overview of the
historical development of critical legal theory in the American legal academy
and the position and perspectives of LatCrit theory within that evolving tradition
will spark the interest and enthusiasm among Spanish legal scholars, as the
prospects of this cross-cultural exchange have inspired in LatCrit scholars.
* Professor of Law and Co-Director of the Center for Hispanic and
Caribbean Legal Studies, University of Miami School of Law. Special thanks to Dean Jose Manuel Ruíz-Rico
Ruíz of the Universidad de Málaga for generously convening this
Colloquium. Thanks also to the
Colloquium participants: Kevin Johnson, Juan Luis Millán Pereira, Ediberto
Román, Celina Romany, Ángel Rodríguez-Vergara Díaz, Lundy Langston, Yolanda de
Lucchi López-Tapia, Magdalena Maria Martín Martínez. Special thanks to Ana Salinas de Frías and to my friend and
colleague, Frank Valdes.
1 This Colloquium was hosted by the Universidad de Málaga Facultad de
Derecho and co-sponsored by the University of Miami Center for Hispanic and
Caribbean Legal Studies as a collaborative project to produce a first ever
simultaneous publication of LatCrit scholarship in Spain and the United
States. Accordingly, the colloquium
papers published by the Universidad de Málaga Press also appear in this volume
of the University of Miami International
and Comparative Law Review.
2 Although LatCrit Legal Theory is a relatively recent intervention in
the evolution of American critical legal scholarship, in the last five years,
LatCrit scholarship has developed at an unprecedented pace. See,
e.g., Symposium, LatCrit Theory,
Latinas/os and the Law, 85 Cal. L.
Rev. 1087 (1997), 10 La Raza L.J.
1 (1998); Colloquium, Representing
Latina/o Communities: Critical Race Theory and Practice, 9 La Raza L.J. 1 (1996); Symposium, LatCrit Theory: Naming and Launching a New
Discourse of Critical Legal Scholarship, 2 Harv. Latino L. Rev. 1 (1997) [LatCrit I]; Symposium, International Law, Human Rights and LatCrit
Theory, 28 U. Miami Inter-Am. L.
Rev. 1 (1997); Symposium, Difference,
Solidarity and Law: Building Latina/o Communities Through LatCrit Theory,
19 Chicano-Latino L. Rev. 1
(1998) [LatCrit II]; Symposium, Comparative
Latinas/os: Identity, Law and Policy in
LatCrit Theory, 53 U. Miami L. Rev.
575 (1999) [LatCrit III]; Symposium, Rotating Centers, Expanding Frontiers:
LatCrit Theory and Marginal Intersections, 33 U.C. Davis L. Rev. (forthcoming Spring 2000) [LatCrit IV];
Symposium, Class in LatCrit: Theory and
Praxis in a World of Economic Inequality (forthcoming U. Denver L. Rev.;
Harv. Latino L. Rev. 2001) [LatCrit V].
3 Francisco Valdes, Foreword:
LatCrit Theory: Naming and Launching a New Discourse of Critical Legal
Scholarship, 2 Harv. Latino L. Rev.
1, 3 n. 5 (1997) (tracing genealogy of “LatCrit” legal studies to initial
colloquium organized in conjunction with the 1995 Hispanic National Bar
Association’s Annual Conference in Puerto Rico and designed specifically to
explore the place of Latinas/os in Critical Race Theory).
4 LatCrit theory draws upon a rich and varied intellectual inheritance
because it is the evolving work product of a widely diverse group of critical
legal scholars. See Elizabeth M. Iglesias, Foreword:
Identity, Democracy, Communicative Power, Inter/National Labor Rights and the
Evolution of LatCrit Theory and Community, 53 U. Miami L. Rev. 575, 584 (1999) (noting that “LatCrit Theory
finds its intellectual roots in Critical Race Theory, Critical Race Feminism,
Chicana/o Studies, Law and Society and Critical Legal Studies precisely because
these various strains of critical discourse are the intellectual roots of the
individuals whose energy drives the LatCrit project and secures its continued
evolution.”) [hereinafter, Iglesias, Foreword:
LatCrit III].
5 “Essentialism” and “anti-essentialism” are key concepts in LatCrit
theory, however, both terms mean different things in different contexts. Generally, “essentialism” is a label applied
to claims that a particular perspective reflects the common experiences and
interests of a broader group, as when working class men purport to define the
class interests of “workers,” or white women purport to define the interests of
all “women,” without acknowledging intragroup differences of position and
perspective. Indeed, essentialist categories are routinely invoked precisely .in order to suppress attention to
intragroup differences, and thereby to consolidate a group’s agenda around the
preferences of the group’s internal elites.
By contrast, “anti-essentialist” theory seeks to reveal intragroup
differences precisely in order to expose relations of subordination and
domination that may exist within and among the members of any particular
group. See, e.g., Elizabeth M. Iglesias, Structures of Subordination: Women of Color at the Intersection of
Title VII and the NLRA. Not! 28 Harv. C.R.-C.L. L. Rev. 395 (1993)
(revealing how essentialist categories of race and class underpinning American
labor and employment law regimes enable women of color to be both excluded
from, and/or submerged within, majoritarian labor unions — thus making the
struggle for collective empowerment and recognition a matter of reunifying
collective political identities that have been fragmented and fragmenting
identities that have been unified through the deployment of race and gender
essentialist categories) [hereinafter Iglesias, Structures of Subordination].
Though anti-essentialist theory has routinely been attacked for
fragmenting, that is “Balkanizing,” group solidarity and undermining more
universal struggles for progressive social transformation, anti-essentialist
theory seeks rather to ground collective solidarity on substantive inter and
intragroup justice. Iglesias, Foreword:
LatCrit III, supra note 4, at 629.
To be sure, the fact that these terms are embedded in, and arise from,
the particular conflicts and controversies that have occupied the American
left, both within and beyond the legal academy, provides a ready reminder of
the challenges confronting any cross-cultural exchange. See,
e.g., Sharon K. Hom, Lexicon Dreams and Chinese Rock and Roll:
Thoughts on Culture, Language, and Translation as Strategies of Resistance and
Reconstruction, 53 U. Miami L. Rev.
1003 (1999) (on the cross-cultural difficulties of translating feminist legal
terms from English into Chinese).
6 </