Is the Law Inherently Racist?

Critical race theory (CRT), the view that the law and legal institutions are inherently racist and that race itself, instead of being biologically grounded and natural, is a socially constructed concept that is used by white people to further their economic and political interests at the expense of people of colour.

Encyclopedia Britannica

Two articles were brought to my attention this week on critical race theory; one a decent if incomplete engagement with the issues by Kelly Hamren[1] and the other a disturbing explanation of “how Christians ought to think” on this issue (they should reject it completely).  The second article was disturbing, not so much in its portrayal of critical race theory (which was disturbing enough), but in its portrayal of a Christianity which cannot begin to interact with the potential insights of critical theory in general or any insights outside of its own narrow view of reality. The author pits critical race theory against Christianity as two competing worldviews, closed off to one another, with critical race theory seeking liberation from oppression, and Christianity seeking to save from sin (no mention is made of the liberating motifs of Scripture). Sin, in this understanding has nothing to do with real-world oppression but with the fact that we “stand condemned before a holy God.” The author presumes his authority derives from the Bible and that oppressed groups (minorities, women, etc.) cannot claim any particular insight over and against those who would oppress (white men?). If we allow for this claim, he argues, we subtract from biblical authority and rational understanding. The author portrays a complete incapacity to question his own access to reason and the Bible “as the final arbiter of truth.”

It is precisely this truncated version of Christianity that Kelly Hamren critiques in her more balanced article defending certain aspects of critical race theory. Her article brings a breath of fresh air into the discussion and my critique may seem to be quibbling, but seeks to address a key missing element in her article. She imagines that the primary contrast between Christianity and Marxism pertains to belief in a soul and what she means by soul is an entity separable from its environment or circumstance. She is working with the notion (I presume both authors are working within the same broad evangelical (Augustinian and Calvinist) framework) that sin, in her description, “originates in the human heart” or the notion that “circumstances don’t cause sin.” While she wants to allow for a more in-depth engagement with social structures, she shares the understanding that the heart and soul are primary and social structures are secondary (as if inward and outward or soul and body can be arranged in this way). She does not see Christianity as directly addressing societal issues as part of salvation but she sees Christianity as requiring that Christians, once they are saved, be “good stewards of the society in which we live.”

The initial question is whether Christ came to change the human heart or whether he came to change the human circumstance? That is, can hearts can be changed apart from a holistic change in circumstance? If hearts or souls can be redeemed apart from their circumstance, then what is the necessity of Christ intervening historically, culturally, bodily, in the human condition? In the view that the soul is isolated, one need not be saved from bigotry or racism (or any other outward manifestation of the inward problem) as these only indirectly pertain to the main problem in the heart. In this understanding, if one is saved it is proper to be anti-racist but this anti-racism is not itself part of salvation. In Hamren’s depiction, one should be a good steward of society but society and its redemption are not integral to salvation.

This understanding passes over the entire historical, socio-political sweep of biblical history, and does not fit with Paul’s picture of a unified nation (bringing together Jews and Gentiles or all people) as synonymous with the work of the Gospel. Salvation through the body of Christ, the Church, is social in that it pertains to a new economy, a new politic, and a new culture. This social salvation certainly addresses the reconstitution of the soul. Christianity, however, does not skip right to the private soul (a notion lacking in the Bible) and bypass social structures but it presumes that God’s kingdom work, first through Israel and then through the Church, shapes the individual (the soul) through a renewed social and corporate entity – the Body of Christ, the Church, the Kingdom of God. This understanding is an opening to the insights of critical race theory and to a variety of fields pertaining to the human condition.

Critical race theory works from a Marxist framework in assuming that the way to change people is to change society (the project of Lenin and Mao) but this is not reason enough, as Hamren points out, to reject it in its entirety. The error of Marxism is to imagine that human manipulation alone can engineer this utopia. Marxism is unbiblical or un-Christian in the absolute weight that it lends to human social structure, in the final trust it extends to human powers to engineer and manipulate, and in its materialistic determinism, but Marxism and critical race theory are most biblical in linking oppression (whether that of class or race) to the deep structures of legal theory. In fact, I would suggest that this is something on the order of a theological recognition, borrowed from a biblical insight, into the working of law.

Jewish law and the formation of the Jewish people cannot be extracted from one another, as Jews are a people established through Jewish law (circumcision, the laws surrounding the tabernacle, etc.). But in establishing the Jews, Jewish law is necessarily not adequate for universal justice or adequate to establish universal egalitarianism. Of course the Jewish problem (ethnocentrism, exclusiveness, the notion they alone are saved) is the human problem.  The Jewish error, the archetype of the universal error, is to imagine that law alone makes them right (righteous or that law establishes justice). Or to state it in Pauline terms, the human error is to imagine there is life in the law, when the law is inherently unstable (it was never meant to be an end in itself or a foundation) and ultimately deals only in death. Paul (in Romans 7) depicts his encounter with law as giving rise to sin and death and depicts the law as giving rise to an internal hostility within him (he is against himself). In Ephesians and Galatians he depicts a social hostility between Jews and Gentiles as a result of the law. In the Gospels, Roman and Jewish legal authorities converged in their agreement that killing Christ was a necessity (that the nation might be saved according to Caiaphas). The very source of life was crucified by those who would gain life through the law. So on both a corporate and an individual level there is a structural problem which pertains to the law and human orientation to the law.

The recognition that this country’s law and legal institutions not only privilege one race but serve to establish that race is simply another manifestation of the biblical depiction of the function and malfunction of the law. Jewish privilege and Gentile exclusion constitutes a hostility built into the law (the wall in the temple was a concrete representation of the law as a dividing wall of hostility). White privilege (or receiving unwarranted advantage) and black and brown exclusion from privilege, it should not be a surprise, is structural and legal. It is not those who receive the privilege but those who are denied it (Gentiles, slaves, and women, in Paul’s description) or those made to suffer under the law which notice its disparities. As long as the Jews insisted on law keeping, entailing their privileged position, and as long as they insisted on the primacy of the law, this excluded them from Christian salvation (freedom from the law). Christians should be most sensitive to the hostile divisions incorporated into law undone only in Christ. The notion that justice and righteousness (life) are enshrined in law in this country, the very definition of sin in Paul’s depiction, is a case in point of the universal deception. Christians are those who are no longer deceived by this sin in regard to the law (Romans 7:8).

In summary and conclusion, critical race theory, like Marxism, may be misguided in the absolute weight that it lends to human social structure but this is not in contrast to belief in an isolated soul, rather, it is in contrast with belief in God. That is, the choice is not between social redemption or the salvation of souls. Both Christianity and critical race theory recognize the primacy of the social, with the obvious difference that for Christians the social includes the spiritual and the divine. Marxism and critical race theory contrast with Christianity, not in embrace of the social but in privileging law, to the exclusion of God, as foundational to the social.  The Christian God is Trinitarian and social so that invitation into participation in Trinity is invitation into an eternally grounded society which suspends the law. Salvation is not private or pertaining only to isolated souls but neither is it simply a manipulation of human society through law. Salvation grounds human relations in the divine society, so that to be formed by the law or, what is the same thing, to be racist or ethnocentric, entails exclusion from this ultimate and universal social relation.


[1] Kelly Hamren, “Social Justice, Critical Race Theory, Marxism, and Biblical Ethics Looking at Marxism and Critical Race Theory in light of the problem of racism in America” in Christianity Today, https://www.christianitytoday.com/edstetzer/2020/june/reflections-from-christian-scholar-on-social-justice-critic.html?fbclid=IwAR0ta2KlaisOzYLg1u1MwqBa9PkBeMvUQxZ

Author: Paul Axton

Paul V. Axton spent 30 years in higher education teaching theology, philosophy, and Bible. Paul’s Ph.D. work and book bring together biblical and psychoanalytic understandings of peace and the blog, podcast, and PBI are shaped by this emphasis.