By Dr. Tara Van Ho, Senior Lecturer, School of Law
My latest publication is now out in the Journal of World Investment & Trade. In it, I use a methodology from Critical Race Theory (CRT)—Bennett Capers’ “Reading Black” method—to examine how modern investment law scholarship continues to embed and evidence historical narratives around race.
CRT is a set of methodological contributions that allow us to interrogate how the law protects, fosters, and replicates racist hierarchies. It is not, as the media would suggest, a singular narrative about race and racism. Yet it is premised on the recognition that race is a social construct, often beyond our cognition. Its founding lights, including Derrick Bell, Kimberlé Crenshaw, and Richard Delgado have pointed to how the law has been used to produce, embed, and replicate racialised narratives and beliefs so as to allow for the protection of power and privileges for White people in the US. Third World Approaches to International Law (TWAIL) has done similar work for international law.
This article brings together Capers’ methodology with the scholarship from TWAIL and other international law scholars to analyse how historically constructed narratives around race remain a part of international investment law scholarship now. I argue that by failing to guard against the impacts of socialised racism on our scholarship, we undermine the integrity, rigour, and significance of that scholarship and of our field.
I also consider how we can do better, individually and collectively, by intentionally centring critical scholars and communities of scholars in our inquiries, Reading Black our own and others’ writing, and better integrating issues of race into journals and peer-review processes.
In this two-part autoethnographic blog post (part confessional, part reflective), I explain what led me to use CRT to critique international legal scholarship (part 1), what I learned in using it as a relatively privileged white woman, and what we as an academic community owe CRT scholars, particularly those from racialised backgrounds (part 2).
It is necessary to know up front that I am a White, American woman who considers herself attuned to issues of race.
Asserting my identity as ‘White’ is itself problematic. There is no biological basis for race. Instead, Whiteness is a fluid social construct that is the result of the European need to justify colonialism and slavery.
Moving into direct control of Africa—as opposed to procuring gold and slaves through trade with North Africans—required a justification that would appease their citizens, the Church, and other European states. Writers like Gomes Eanes de Zurara (p.24), lawyers like Grotius, philosophers like Immanuel Kant, and numerous politicians and scientists, wrote and rewrote those justifications. The result is that we now have approximately 600 years of socialised belief in race and in racist narratives. At each step, the intentional socialisation of racialised hierarchies has left an implant on our language and framing choices.
In many ways, my childhood was one long education in this history and its modern impacts.
I grew up in a politically conscious family in a racially and socioeconomically diverse community (more about that here and here). In my better childhood moments, I could identify how race impacted social, economic, and political opportunity and how I benefitted from those inequalities. I could identify my own Whiteness without understanding it or having a term for it.
In my worst moments, I accepted the privileges Whiteness offered without thought and often with the belief that I deserved them.
It was not that I ever, by values, believed in racism or White supremacy. Had you asked me then, I would have pledged my allegiance to equality and diversity and pointed to my Black friends. Yet, I lived an existence that was designed to protect my Whiteness and by failing to challenge the structures that did that, I often and without intention reproduced racist beliefs and hierarchies.
When someone said something racist, I often assumed someone else (i.e., someone from a racialised background) would call them out. That was, until a friend in high school explained the exhaustion and resignation she felt every time she was left to speak up on her own. It was through this conversation that I learned the difference between being not-racist and being anti-racist: given our global history, it is not enough to, by values, be not-racist. We must be actively antiracist by action, meaning we must work to deconstruct the systems, structures, and narratives that were historically constructed for racist purposes.
At the time, I did not use that language or know that vocabulary. I merely recognised and accepted responsibility for calling out and ‘calling in’ racist statements (sometimes gently, sometimes not), and for having the discussions with White people that are forms of unseen labour for people from racialised backgrounds (no, you can’t use the N-word even though a rapper or comedian does; no, colonialism did not bring democracy to the colonised).
Given how very White my undergraduate (and law school) was, I had a lot of practice in this.
It was through these conversations, and more so through hearing White colleagues defend their privileges, that I recognised my own Whiteness and was forced to confront the worst versions of my childhood self: accepting the world as I enjoyed it as a neutral reality and ascribing blame to those who did not enjoy the same privileges.
I became comfortable having conversations about race. Until last year, however, I had never written academically on the issue.
That choice reflects a series of complicated questions I had about my place in this scholarship, starting with:
Can I Write CRT?
I have to credit Verna Williams and Emily Hough for starting me on a path to using CRT. I never took their Race and the Law class, but I started reading CRT because I was overly competitive with a small number of close friends who were taking it and wanted to sound informed when we spoke (as I said, the post is part confessional).
CRT adds to our knowledge and methods the means for interrogating, identifying, and explaining how the law and our social institutions have been and are designed to protect Whiteness from all others.
Through CRT, I was able to better understand experiences with Whiteness that I had from my earliest childhood memories through my life in Japan, Denmark, and the U.K. I consumed CRT because it answered the questions that my subconscious had clocked but I had not been able to articulate, and it gave me a vocabulary for expressing things I did understand but had difficulty explaining to others.
I never wrote on race or used CRT explicitly in my own research, however, because I never thought I had anything of interest to say. I also worried about the space I would take up if I did try to say something meaningful.
I still worry about that. And I’m glad I do.
When I think about what it means to be White talking about race, I often think of the fish in the aquarium toward the end of Finding Nemo. For those hazy on the Disney classic, Nemo is a fish taken from the ocean and brought to an aquarium where he meets other fish who have only ever lived in the aquarium. Nemo understands the constraints imposed by the aquarium and tries to explain to the other fish what the ocean is like. The aquarium fish exist in a system constructed for the purpose of protecting them, keeping them fed, but also keeping them confined and isolated from all other spaces and objects, particularly the ocean. The fish know they exist within the aquarium, they can identify the contours of the aquarium, and can see what lies immediately beyond it. But, they never know what it means to be outside the protected system, to look at it, to understand it, to escape it, or (in any knowing way) to be oppressed by it.
They could never deconstruct or explain the aquarium; at best they can offer a limited understanding of their experience and reality within it.
That’s how I feel when writing about race.
CRT has given me terminology, language, and methodologies but I was never sure if I had anything to offer it. The structures and systems invented for my ‘protection’ keep me on the inside, meaning I can never examine them from the outside and therefore can never adequately or completely critique them.
Simultaneously, not participating in the scholarly discussion unduly transfers the burden of leadership onto those from racialised backgrounds. This has two significant consequences. It reproduces an existing narrative that ‘race issues’ fall into a niche field of study for racialised scholars. This is a form of othering that centres the White experience as ‘neutral,’ an area of research that all are interested in, while the impact of the neutral reality on those that are ‘not White’ becomes irrelevant to those who are White. I have witnessed how this is used to diminish the contributions of racialised scholars, and in the JWIT article I recognise moments where this form of othering occurs in modern scholarship.
The second consequence of White scholars refusing to engage with issues of racism or CRT is that individual racialised scholars are given a mandate they may or may not want to take up.
In the two fields where I spend most of my time (Business and Human Rights, and International Investment Law), there are an increasing number of racialised scholars, but they remain disproportionately underrepresented, particularly in mainstream leadership positions. It is not unusual in either field to attend an all-White panel (or ‘Wanel,’ if you will). If we leave leadership on ‘race issues’ to the few racialised scholars, they face an unfair choice: either speak about race and nothing else or speak about other things and leave unaddressed issues associated with race and racism.
Neither of those realities are acceptable.
Continuing a Lifelong Conversation
I began the current article almost two years ago when I tweeted about a book review I found troubling for the way in which it diminished the criticisms of those writing from the ‘Global South.’ To their credit, JWIT’s Editors-in-Chief, Hélène Ruiz Fabri and Stephan Schill invited me to develop my concerns through an article. I had wanted to protect space for an early career researcher from a racialised background to co-author with me, but I couldn’t find someone willing to do this. So, I decided to do what I have long done: have a conversation about race with other White people.
Bennett Capers’ Reading Black methodology allowed me to do that.
The methodology places legal developments in their broader context to examine how cases developed, socially and linguistically, to protect and preserve a White identity that sits apart from and is superior to the identity of others.
In the JWIT article, I Read Black four pieces from modern investment law scholarship to explain how they unintentionally embed and replicate historical, racialised narratives. In developing the article, I wanted to focus on current scholarly contributions. There is a great deal to discuss on the racialised development of investment law, but it is easy to dismiss the impact of the historical developments if we do not address how they continue to manifest in our work now.
It would be easy, and wrong, to conclude that the article targets the authors or practices of those four pieces. I do not believe the authors of the four pieces are, by value or intention, racist. Yet, as I demonstrate in the article, they produced language and framings that reproduced racialised hierarchies. This was likely because they did not, and were not required to, reflect on their assumptions and develop an intentional, antiracist praxis to their work.
This is unsurprising. Success in academia often requires mimicking the ‘big names’ of a field. In investment law, those names are often White (culturally) Europeans. Replicating their work can mean ignoring significant criticisms and scholarly contributions from racialised scholars, and in doing so replicating the hierarchies the ‘big names’ constructed, accepted or reproduced themselves. That’s a problem if we ever want to do better with and by our scholarship than they did.
The article is aimed at reminding us to be as rigorous and intentional in our language and framing choices around in- and out-groups as we are in other areas of our research. In doing so, we can produce better scholarship while contributing to the normative good of combatting racism.
Using Capers’ methodology to raise these issues felt like a continuation of the conversations I learned to have as a teenager while moving those conversations into the professional circles I occupy as an adult. As with all the other conversations I’ve had on racism, I expect some will dislike the article and disagree with my conclusions. I’m comfortable with that. But, in the next part of this blog post, I explain how hate and fear almost derailed the work and how that experience can remind us of what we owe CRT theorists.
You can read Part 2 of this piece here.