Progressive legalism enables neocolonialism and violence through a seemingly benign use of the law to codify racist, gendered, and colonialist practices

The role of law—and the rule of law—are key features of the accumulation structures and histories we etched above. As Michel Foucault observed, “[i]n Western societies since the Middle Ages, the exercise of power has always been formulated in terms of law.” 58 In continuing to help contextualize Crenshaw’s opening query—“why law?”—we trace in this section how the historical use and misuse of law within the nation-state system emerge as the substantive and structural glue for the status quo that we examine here. For centuries, during the consolidation of the nation-state world system, human “progress” was the express project of national law. 59 The path toward progress, toward civilization, toward modern, rational, enlightened, and just problem solving, lay in the making of new, more, and better law: law by custom, law by codification, law by regulation, law by adjudication, law by reformation and restatement. Over time, law has become ever-more entangled with every other major social institution— with magic before it became religion, with religion before it became culture, with culture before it became nation, with nation before it became market. Law thus became central to the consolidation of personal identities, social groups and larger communities into the modern nation- state, even as it is now central to the consolidation of nation-states into an increasingly globalized international socio-legal system, formally based on liberal democratic values, such as liberty, property, equality, dignity, and self-determination. Law, in short, consistently has been at the core of modernity’s constitution. But this historical process also exploited within and across the emergent nation-states the weaknesses of the human being. 60 Laws repeatedly were crafted to prevent the individual human from fulfilling primal needs without paying a stiff price. So law was constructed to facilitate exploitation of the poor by the rich—of the less able by the more—as an integral element of the formation of nation-states, and even as the emergent ruling elites proclaimed commitments to diametrically opposite values, again like democracy, equality, and autonomy. 61 Similarly, law was constructed to facilitate the exploitation of the non- white by the white, and of the woman by the man, etc. Overtly, law was a liberal and democratic force but covertly it was designed to produce and perpetuate particular systems of stratification and subordination. This was “civilization.” Today, we call it global neoliberalism. From this perspective, we might describe the twentieth century as the time during which humanity perfected its tools and techniques of oppression within the nation-state, and emplaced the conditions for the development of new tools and techniques suited to the imperatives of corporate globalization. During the twentieth century, crude tools like formal (neo)enslavement and explicit exclusion began to give way to the more sophisticated techniques that today travel under the banners of colorblindness (in legal discourses) and post-racialism (in popular discourses). 62 Of course, the crudeness of those rudimentary tools lay in their bare and naked contradiction of the very essence claimed by the identity-obsessed elites of this nation-state for its unique national character: a democracy dedicated in fact to equal justice under law. Their crudity lay in their undisguised, unadulterated hypocrisy but, as such, they also testify to the power of ruling elites over this nation-state in cultural and material terms during those formative decades. It was this type of contradiction—a fundamental and gigantic contradiction—that enabled raced and gendered elites of past centuries simultaneously to proclaim and enact laws purporting noble purposes with systems and structures of outright subjugation and exploitation. This sort of gigantic contradiction—or hypocrisy—accounts for much of the grief and conflict in the histories that follow. This foundational and operational contradiction in the institutionalization of national law gave rise in the past few centuries to the idealized yet simultaneously corrupted form of the modern liberal democracy—corrupted by and because of the systemic, structural dissonance generated constantly by this kind of contradiction (and the imperative of maintaining their force materially and culturally in society). In the case of legal consciousness and Critical Race Theory, one relevant example is the dissonance of a society based explicitly, vociferously and simultaneously on slavery and “liberty” as expressed and enforced by formal law at the most sacred constitutional planes. 63 Today this gigantic contradiction means that law oftentimes is used mainly if not merely to launder politics. It is used to launder the dirtiest kinds of self-interested factional politics, often repackaged as identiarian politics, which in turn produce yet more “law”—in its many forms— oftentimes mainly to sustain traditional patterns of stratification and inter- group subordination. 64 As a result, law (as we know it) too often is rendered the servant of the “traditional” politics of neocolonialism and subordination rather than the agent of human values and rights formally endorsed by “modern” liberal democracies in their founding charters and related monuments. And, ditto, now, at the international level. Perversely, then, law becomes the tool for implementing expressly repudiated values—like structural, law-based, identity-oriented inequality—and for deflecting formally endorsed social goals, like equal opportunity for all. Through the centuries, this gigantic contradiction has spurred historical and continuing justice claims seeking to harmonize law’s material or cultural effects with society’s overtly professed values.