Somewhere between social and legal theory: Race and Law

Research Assistant Daniel-Thabani Ncube on critiquing race, law, and the interplay between both.

My Research

My research focuses on questions and issues situated somewhere between social and legal theory, with a special emphasis on the social phenomenon of “race” and its intricate relationship with the social phenomenon of “law”.  It is thus no surprise that my doctoral thesis is an attempt at a comprehensive comparative analysis between two American schools of sociolegal thought that tackle precisely these issues.

The first, Critical Legal Studies (CLS), emerged at US law schools in the 1970s and successively blended Marxist political theory, doctrinal analysis, and continental social thought in an attempt to critique core tenets of liberal political theory – chiefly the notion that law is a neutral, objective force entirely dissociated from politics. Instead of being the arbiter liberalism perceives law to be necessary to a free and just society, it must rather, so the critical argument goes, be understood as the very source of oppression and inequality.

Critical Race Theory

The second of the approaches I examine – Critical Race Theory (CRT) – fully divorced itself from CLS after the latter reached an intellectual peak some time in the mid-1980s, picking up where CLS left off by focusing not only on the law but also on race as a distinctive form of societal domination. My doctoral thesis aims to compare both approaches, thereby introducing them to a German legal audience, and – hopefully – generating insights useful to debates that are slowly gaining momentum in Germany.

My interest in CRT arose while I was studying law and persistently grappling with the question why so many norms posit that everyone is equal while so much empirical evidence, be it personal experience or periodic surveys, posits the opposite. In pondering this jarring dissonance, I stumbled across an introduction to CRT and decided to pursue doctoral research to find some – any – form of intellectual peace.

My quest led me to my supervising professor at Bucerius Law School, Professor Dr Mehrdad Payandeh, who is an accomplished scholar of public international law, anti-discrimination law and constitutional theory, and was recently elected to serve as a member of the United Nations Committee on the Elimination of Racial Discrimination.

The law’s promise of equality and social reality’s corrosion

Recent events such as the Black Lives Matter protests in the USA and Europe suggest that the unease I experienced vis-à-vis law’s promise of equality and social reality’s corrosion of the same is widespread. Subsequent attempts by Western societies to subject their pasts and presents to stricter scrutiny in matters concerning racism have begun to jolt certainties, revealing – as put by the poet Amanda Gorman – that the “norms and notions of what ‘just is’ isn’t always justice”.

The relevance

These senses of unease are both the causal factor for my thesis as well as the source of its relevance. In keeping with an observation made by social theorist Zygmunt Bauman, I hold that social orders become visible and susceptible to critique in the moments they tremble and falter. It is my (somewhat Kuhnian) conviction that these moments then open avenues for introspection, call for a revision of questions basic to our socio-political architecture – in other words, a return to social and legal theory – and, in doing so, ultimately set the stage for emancipatory insights.

CLS and CRT seem particularly apt candidates for profound, creative study in this sense because they deal with fundamental issues – law and society, freedom and coercion – on both very abstract and very concrete levels, attempt (at least in part) to present alternatives, and exhibit an enormous variance of opinions and convictions.

A synthesis should hence deliver ample food for societal thought, especially in Germany. Recent debates concerning the deletion and replacement of the word “race” (“Rasse”) in the German constitution, alongside heated discussions regarding racial quotas and attempts at introducing more robust forms of antidiscrimination law have shown that Germany is both in for lessons only it can learn as well as lessons already learned in the USA.

A research stay abroad – counterintuitive?

In light of this notion, the fact that I decided to pursue a research stay in a continental European country, although my doctoral thesis deals with US approaches to law and racism, should not seem counterintuitive. As mentioned above, both CLS and CRT are an eclectic blend mainly of continental social thought as regards social theory.

Viewing them less as distinctly US approaches and more as particularly vocal US variants of contemporary critical theory inspired by Gramsci, Habermas, Foucault, Derrida and the like, suffused with US social science, seems more promising if they are to be fully appreciated in a (German civil law) scientific context that prides itself on theoretical rigour and views “movement scholarship” sceptically.

The university of Vienna – an ideal destination

Considering these constraining considerations – the need for an interdisciplinary research environment steeped in legal and social theory and situated in a society not all too remote from the one I live and work in – the University of Vienna in general and its Department of Legal Philosophy in particular seemed ideal destinations.

My research stay in Vienna

Looking back, I was not disappointed. In Vienna, I stumbled into a department with three chairs devoted solely to questions of legal philosophy of various hues, be it feminist jurisprudence or classical or critical legal theory. Research assistants I met were not only trained as lawyers, but also held additional degrees in subjects as varied as philosophy and art history. This devotion to interdisciplinary thought and the conception of legal philosophy as a fully-fledged academic discipline rather than a colourful, but ultimately irrelevant, addition to a given university’s department of law proved immensely inspiring and, ultimately, productive.

I was finally able to reconceptualize some of my thesis’ trickier parts and motivated enough to tackle those very abstract questions I had been trying to evade for several months, probably for fear of having to conclude that I am not up to the task after all. Vienna and my research stay proved me wrong. It is for these reasons that I am very grateful to Bucerius Law School for funding my research stay abroad, as well as to Professor Mehrdad Payandeh and the University of Vienna for making it possible.


Daniel-Thabani Ncube