By Dr. Tara Van Ho, Senior Lecturer, School of Law
This is the second in a set of blog posts in which I discuss the lessons I learned in writing an article that uses a methodology from Critical Race Theory (CRT)—Bennett Capers’ “Reading Black” method—to examine modern investment law scholarship. The article is now out in the Journal of World Investment & Trade (JWIT). I reflected on what led me to use CRT to critique international legal scholarship in part 1 and will now discuss my experiences using CRT as a relatively privileged white woman, and the lessons I am taking forward as to what we as an academic community owe racialised CRT scholars.
The Process of ‘Reading Black’
Admittedly, using Bennett Capers’ methodology centres me as the reader. As I acknowledge in the article, Reading Black others’ work is form of exercising power. I, as the reader, place the narratives in the broader context I deem relevant; and I assert, using linguistics and careful textual readings, the (sometimes unintended) implicit racialised narratives that underpin others’ work. If done well (and I’m not claiming here that I have done it well), the Reading Black method advances our scholarly understanding of how linguistics and social understandings embed in legal discourse, allowing the law and legal scholarship to replicate racialised hierarchies.
Unfortunately, my first submitted draft did not do Bennett Capers justice.
The Unpleasant Middle of my Story
By January 2021, I had selected a methodology and a few pieces to Read Black. I had also begun the writing process, outlining my main arguments on paper. In a panic, I speed-read Ntina Tzouvala’s excellent Capitalism as Civilization when I discovered she also uses Capers’ ‘Reading Black’ methodology.
Then, I received numerous, explicit death threats from a White supremacist who declared me a traitor to my race.
People tend to think a death threat is a death threat. Unfortunately, I have long learned to separate ‘death threats’ from Death Threats. I’ve received the former frequently enough, and the latter less so. The ones in January 2021 were Death Threats.
I had to report the threats to campus security and police forces in two countries.
The US police brushed the threats off despite their frequency, graphic nature, and the fact that these threats happened in the same month that White nationalists attacked the US Capitol building. They told me it was probably an upset student (it wasn’t) and I shouldn’t worry (the Essex police disagreed). I found myself learning how to investigate these kinds of cases and prodding and teaching the US police force how to do their job. This drained my energy.
Because I had received Death Threats before, as a White woman I had assumed that the experience of Death Threats was relatively the same.
I was wrong.
The earlier Threats had a specific trigger so I could plan how to protect myself in advance. To the extent I could control the reality around me, I did. This time, I couldn’t.
There was no specific incident that brought this on. It was my identity – being a White woman who had spoken publicly about racism – that was the trigger. I didn’t know how to respond to that.
Women learn at an early age how to navigate unsafe spaces. The rules are culturally specific, but universally women are forced to consider how we protect ourselves from the ever-present threat of being a woman in society. In the US, we learn to stay away from men whose demeanour raises the hair on our neck. To travel in groups to the bar. To never leave our friends alone. To kindly laugh off and extricate ourselves from unwanted advances. To text our location if we’re going to have dinner at a guy’s house for the first time. We take self-defence classes and don’t drink from glasses we haven’t controlled at all times. We have to do this because society does not respond to our concerns and will generally blame us for being victims of violence.
This time, the hair on my neck was always up. It became difficult to navigate my space and time around (most) White men. I could only relax, truly relax, with a few friends and in private spaces.
I knew I needed help and sought it. I pushed my deadline as far as I could, but I was still in the middle of therapy when I hit the make-or-break submission date. I submitted a draft of something, but it is not the version you will read today.
When I look back at that first draft, I can see the trauma written into it: vacillating somewhat erratically between saying too much, almost saying something, and avoiding saying anything. The draft was sometimes on point but was equally sweeping in claims, unfocused, and unclear. At times, I shied away from analysis, fearful of what could trigger new Threats.
As I wrote, I worried that the next Threat wouldn’t come from a ‘random’ White supremacist but from someone within my field.
I recognise that fear is irrational. Hostile academics wouldn’t explicitly threaten to dismember me; they’d just silently undermine my career by marginalising my scholarship now and in the future (neither the importance of blind peer review nor the politics of citation should be lost here).
But, that isn’t as comforting as you might think. If you’re going to die for being outspoken, you at least want what you say to matter. What if backlash to this article meant my words wouldn’t matter anymore?
In truth, I could only finish even the roughest draft of that article because I had communities around me, in my department, in Business and Human Rights, and in the IEL Collective. But, I wonder how many critical ideas have been self-censored because someone didn’t have that kind of community.
A Privileged Experience
I should be clear as to why I am telling you this: as I was responding to the Threats – and as I write this now – I recognize how privileged I am. It remains rare for me to receive Threats, and rarer still to receive them on the basis of my identity as opposed to something I actively choose to do. Moreover, these threats were somewhat temporarily defined. There was a point at which the threat dissipated.
Even in the worst moments, I knew that would be true.
White supremacists are not routinely targeting me, nor can they tell when I walk down the street that I’m someone they hate. My ‘normal’ existence occurs in the relative security of a woman who has already learned, as all women do implicitly and explicitly, how to navigate unsafe spaces and a world hostile to her independence.
In contrast, I have friends and colleagues who regularly face Threats for their work. Those Threats exist on top of and in addition to the daily assault on their identity and safety that comes from both systemic and individualised racism. That is the real ‘cancel culture.’
I am telling you about my experience because I do not think (White) academia fully appreciates what it means to write CRT generally and cannot conceive of what it means to write CRT as a racialised scholar specifically. CRT theorists, particularly those from racialised backgrounds, are writing significant and challenging contributions to our existing understanding of the law. They are doing this while operating within a space that history, modern news, and likely their own lived experiences tell them they cannot trust or fully relax into. They navigate a society, which includes the academy, hostile to their existence and scholarship. As CRT has become the Scare du Jour, demonized by people who can’t describe it and mischaracterized by those who should know better, the identities of CRT’s founding lights and those who write in this space have become well-known. Which means their lives are at greater risk. Still, they write. And what they write is important, adding to our knowledge and understanding of the law even when we might disagree with their conclusions.
The result of this reality is that we, at least in law, ask a lot more of racialised scholars who write CRT than we do of other scholars. We ask them to preserve, transfer, and add to knowledge whilst enduring threats of violence that we have thus far failed to significantly address. When I look at my first draft, I don’t feel ashamed of how trauma impacted it—trauma by nature is supposed to impact us—but I do realise how much more fragile my capacity for scholarly contribution is compared to those who write CRT regularly, particularly those who do so from a racialised background.
Which returns us to the question that prompted this post:
What do we owe CRT and its Theorists?
My three-prong answer to this question is rather simple and perhaps incomplete: respect, engagement, and security.
Respect: Racialised scholars have long faced an academy that is unwilling to listen to them, to believe their experiences or accept their contributions. That has not changed (in or outside law), and is enhanced by an unwillingness to address CRT contributions within mainstream legal scholarship. That unwillingness to listen is a sign of disrespect for racialised colleagues. The only counter to that is greater respect, which requires introspection, education, and explicit allyship on both a personal and structural level. Once respect is gained, it should lead to:
Engagement. CRT (and its cousin, Third World Approaches to International Law) remain marginalised within legal scholarship. Too often, they are addressed in ‘black letter’ and ‘mainstream’ scholarship only when necessary and then only in a footnote; just as frequently, they are excluded from consideration altogether. Given what is demanded of CRT theorists, this is both unwarranted and troubling. It may, however, reflect our own insecurities as White academics. CRT intentionally disrupts the mainstream claim to an ‘unemotional’ or ‘objective’ law and in doing so undermines our belief in our own academic objectivity. One way to diminish the personal challenge CRT makes to each of us is to suggest this is a niche area of critique, one relevant only where ‘race issues’ are prevalent. In the JWIT article, I analyse how this form of ‘othering’ manifests in some modern investment law scholarship and examine how this ‘othering’ undermines the strength and rigour of the marginalising scholars’ research. We need stronger engagement with CRT (and TWAIL) even where we are not contributing to CRT ourselves. It is not enough to acknowledge that CRT theorists exist or have ideas on a topic if we do not engage with those ideas. These performative and perfunctory notes can be just as othering as ignoring the contributions altogether. Instead, we must recognise that CRT has told us something about the law, reflect on that and engage with it. Doing so is not only the minimum we owe our colleagues but it strengthens our individual scholarship and our field.
Finally, we owe them Security. How many universities have a process for responding to death threats? How many managers know how to trigger that response? Following the Threats, I asked that my office address be removed from my web profile. I received the run-around as no one knew how to do this, and no one knew whom to ask to get this done. After a few weeks, my exasperated email said something like: “I would just like the University to not provide every White supremacist in the UK with a roadmap for killing me.” It was perhaps a tad dramatic. It was also effective. It turns out that there is a process for this at my university, but no one I was speaking to knew how to trigger it. Universities need policies and processes in place to protect CRT theorists and we need to train academics on how to use these protections when they are needed.
We also need to provide security within our fields of research. Fears of being marginalised for their contributions can dissuade scholars from racialised backgrounds from publishing the kinds of insights and challenges we need to hear to strengthen the field of scholarship. It can be an impediment to the pursuit of knowledge.
We need to create and enlarge the space available for racialised scholars and CRT theorists both to intervene when and how they choose. In the aftermath of the Christchurch mosque attack, White New Zealanders flooded social media with commitments to Muslim residents and citizens too afraid to travel alone: “I’ll walk with you.” Not “I’ll agree with you.” Not even “I’ll like you.” But “I’ll walk with you.” I will make sure you are safe. That explicit guarantee of security and community matters. It is the only reason I could finish this article. Every scholar deserves the same.
We need to make clear that CRT is a legitimate and respected means of engaging with the law even when we disagree with the critique(s) it prompts. When politicians try to demonise CRT theorists, it should not be incumbent upon CRT theorists alone to defend their work or the legitimacy of their scholarship. That responsibility sits across the spectrum of legal academics. We should be hearing mainstream lawyers rise to the defence of CRT.
Unfortunately, that is rare.
We need to do better moving forward so that our mainstream becomes active interveners rather than passive bystanders, anti-racist rather than a racist structure.
A concluding note
I will not pretend, as academics can do, that either my question or the answers I offer here are particularly original. They build on and draw from decades of work done in TWAIL and CRT. But, it took 600 years of intentional efforts by writers, scholars, and politicians from a variety of places to construct the racialised beliefs we have now. Deconstructing that will require each of us to reiterate our lessons learned, and the actions we need to take to be antiracists. This post, and the article in JWIT, are merely intended to add to that practice.
You can read Part 1 of this post here.