Crenshaw’s Intersectionality Theories Of Justice & Law
I Introduction
II Crenshaw’s Intersectionality Theories Of Justice & Law
1. Concepts Of Intersectionality
In intersectional feminist theories, it is widely argued that females are facing multiple, intersecting oppression. This view claims this oppression is not a single process or binary political relationship. It is constituted by multiple, converging, and intertwined systems. The term 'intersection' originated in anti-racist feminist criticism that the oppression of females was always analysed of gender to capture alone.
According to Crenshaw, there are three concepts of intersectionality. The first one is 'structural intersectionality'. It is usually referred to as 'how women of colour's position at the intersection of race and gender make their experience of domestic violence, rape, and remedial reform qualitatively different from that of white women'.
The second one is 'Political intersectionality'. It is based on the historical view, describing that feminist and anti-racist politics had worked synergistically to marginalize the issues facing black women in the United States. On this point, Crenshaw believed that women of colour are located in two subordinate groups that often pursue conflicting political agendas. However, these two agendas are neither structured around women of colour's experiences, needs, or political visions.
The third concept is 'Representational intersectionality'. It deals with producing images of women of colour based on sexist and racist narrative tropes and how criticism of these representations marginalizes or reproduces the objectification of women of colour.
The most fundamental principle of intersectionality is that social categories are not independent and one-dimensional but multiple, interdependent, and mutually constitutive. Although this idea originated in black feminism, it is widely used as a research method or theoretical framework. Leslie McCall believes intersectionality is "by far the most important theoretical contribution of women's studies to related fields". Although this view is generally accepted, many theorists still believe intersectionality has an evident theoretical, political and methodological ambiguity. Nevertheless, it is undeniable that these vague fields also provide the impetus and space for the development and expansion of intersectional theory.
2. Advantages & Characters
The intersectionality view argues that multiple co-constituent categories of analysis are equally important in structuring institutionalized time and lived experience. A unified theory of oppression prioritizes one level category, ignores another category, or simply superimposes. Therefore, intersectionality is considered to have four main analytical advantages: simultaneity, complexity, irreducibility, and inclusiveness.
The structural intersectionality under Crenshaw's concept seeks to point out the visual phenomenological experiences of those who are facing multiple forms of oppression. Instead of fragmenting these experiences via categorical exclusion. This structure aims to give equal explanatory significance to these social structures, which are conceptualised as interlocking by their ontological anchors.
Unlike monadic approaches, intersectionality explains or captures the complexities of experience and structure. Cross-category methods focus on the complexity of analyzing relationships between multiple social groups within and across categories. Intra-category methods examine complexity within social groups. Located at the "neglected intersections" of the axis of oppression, these groups are studied through a lens within a category to reveal the complexities of their members' lived experiences. The third crossover approach is the "anti-classification" approach, which is based on a methodology that deconstructs categories of analysis. Because social life is complex, there is no way to make fixed categories other than to simplify social fiction.
Meanwhile, inclusivity is a considerable advantage of intersectionality. As a theoretical paradigm, intersectionality can act as a corrective to white solipsism, heteronormativity, elitism, and dominant power-capable and hegemonic feminist theories by making social position and experience visible, because they make visible social positions and experiences that are enclosed in essentialist and exclusive constructions.
3. Drawbacks & Difficulties
Although the construction of intersections can contain almost all the oppressive factors that can be listed, because of this too broad scope, it leads to the difficulty of definition and choice in construction. Because society is complex and changing, and under the influence of history, the occurrence of reforms, the alternation of old and new laws, and cultural changes, the resulting pluralistic oppression will change dramatically at any time.
Intersections theorist Ludvig argues that the infinity of differences is a weakness of intersectionality. This point of view reflects the issue of intersectionality; that is, under the framework of intersectionality, on what basis should the law and society judge which categories are prominent and which discrimination should be specifically identified? Because this process does not resolve, it cannot resolve the theoretical conundrum of intersection, that is, who defines when, where, what, and why specific differences are recognized but others are not.
The solution to this problem is unlikely to be achieved purely by mathematical modelling or framework construction because the underlying cause of it is a value judgment. The judgment and choice of value are closely related to social, economic, cultural, political and other factors and will continually change. As a dynamic variable, it seems challenging to integrate into a legal system that pursues stability, efficiency and fairness. In order to adapt to this variable, it seems complicated for the entire judicial system to find a dynamic solution under the existing framework. Another question that arises is 'is the ever-changing law the law'? To sum up, constructing and choosing variables is a essential problem faced by intersectional theories.
Another critical point of view is the normative goal of intersecting 'inclusion'. Crenshaw believes not in thinking of an identity-based group as a whole but as a coalition of internal differences and commonalities. However, the viability of this commitment to changing politics by concentrating on the experiences of multiple oppressed groups has not been widely recognized. While intersectionality can overcome essentialist-based identity construction, it is argued that it ultimately leads to the division of women because it excludes common goals. It is a retrograde identity politics that can create segregation, where women of colour may only speak out for their own group, not all women.
4. Demands of Intersectionality in Law & Legal Practice
One of Crenshaw's essential views on intersectionality is how the law addresses issues of gender and racial discrimination. The particular legal challenge is that anti-discrimination laws treat gender and race separately, so black women’s experience overlapping forms of discrimination, and the law does not know how to combine the two.
Also, the attempts by anti-discrimination laws and judicial systems to remedy discrimination are limited and operated on a single axis. When cross-cutting issues are raised in court, one form of discrimination cannot be proven without the other, then there is no violation of the law. The law defines discrimination as a single case where one can only be discriminated against based on one thing.
Crenshaw defined monistic discrimination, which treats gender and race as mutually exclusive categories. It ignores the simultaneous experience of gender and race. Moreover, the law and judge would not accept 'compound' discrimination. She argues that if the law of discrimination needs to revise as a remedy for historical oppression and structural oppression, the discrimination must be reconceptualised to refer to the particular experience of women of colour.
The most famous application of Crenshaw's theory is DeGraffenreid v. General Motors. In this case, a group of black women argued that they were receiving compound discrimination that excluded them from employment opportunities. While women were eligible for office and secretarial jobs, those positions were only available to white women.
Regarding the core issues of this case, the main reasoning and conclusions reached by the court include: (1) Black women do not constitute a particular category of special protection. If the accused is discriminated against, they have the right to a remedy. However, they are not allowed to combine statutory remedies to create a new 'super remedy' that gives them relief beyond the intent of the relevant law. (2) Upon examination of the General Motors employee policy, it was found that it complies with Missouri laws governing the employment of women and that there were female employees in the company during the period.
Thus, the court weighed allegations of racial and gender discrimination separately, finding that hiring black male workers countered racial discrimination and hiring white female office workers countered gender discrimination. The court refused to consider compound discrimination and dismissed the case.
This case is extraordinarily representative and reflects that in judicial practice, especially under the framework of the current legal system, it is difficult to obtain the prepared judgment and recognition of the judicial system for the "injustice" caused by the superposition of various factors. Although there is intentional discrimination against a particular category, the court's thinking cannot consider it discrimination against gender or race, so it is unlikely to conclude that it violates the existing law. It is even considered that if compensation is made for this situation, it is a 'super compensation' that is beyond the scope. This also reflects the limitations of intersecting legal claims to a certain extent. It needs to rely on the existing legal system, but in many cases, it cannot obtain support from the existing laws.
III Consistency & Difference With Marx's Theory Of Justice & Law
Crenshaw's theory of intersectionality does not seem to be frequently compared with Marx's theory of justice and law because of various factors such as differences in time, content, and perspective. However, intersectionality theory does not reduce the phenomenon of oppression to a fundamental explanatory category, such as class, and ontologically privileges that category, but argues that oppression is the interaction of multiple, decentralized and co-constituted axes effects produced. This contradicts the orthodox Marxist approach. Thus, Marxist feminists became the first group to criticize intersectionality theory.
Intersectionality is marked by the need to address all oppression, and its assertion of irreducibility as an epistemic value refutes the causal or interpretive priority that some Marxists give to "class" or "economic basis." Nonetheless, by comparing the two theories, it can be found that the two have many similarities in their goals and connotations of pursuing justice and opposing oppression.
Although in terms of representative groups, intersectionality theory is more inclined toward minority groups in which the oppression obtained is more diverse, and the overlapping items are more. However, Marx emphasized the injustice brought about by the capitalist system of exploitation from the perspective of the more comprehensive the proletariat and the working class. Nonetheless, Crenshaw's theory started from the perspective of black women and was later extended to many fields such as feminism, LGBT, environmental protection, disability, etc. The groups and contents that intersectionality concerned were not the 'bourgeoisie' class Marx described as having a privileged and dominant position.
On the contrary, this group of people can better represent the disadvantage of the working class. Not only do they not enjoy labour materials, but they even have difficulty obtaining labour opportunities. So the multiple oppressed groups in intersectionalism, and even the more exploited and more diverse minorities of the exploited groups depicted in Marxism. Solving the problem of justice for these people can become an integral part of realizing Marxism Justice.
Also, in distributive justice, Marx proposed a different distributive criterion in which people are concrete, unique and substantial rather than abstract units, quoting Louis Brown: "From each according to his ability, to each according to his needed." That is, a distribution system based on needs rather than contribution. However, one difficulty with the requirements principle is defining ‘needs’ and determining what can be allocated to address those needs. Humans can agree on certain things, such as the necessities of life (air, food, water, shelter), but how immaterial needs will be determined (dignity, time, culture, ideas) is a difficult question.
Intersectionality theory might be an appropriate method to address individual needs, and their inclusivity and constructs seem to achieve the goal of defining specific individual needs. Under the system of cross-applicability, individuals and groups affected by different elements and multiple influences can specifically describe their needs in distributive justice. The aggregation of these needs, or the methodological solution, how to use intersectional theory to determine the social order, and how to meet the needs in the law and remedy, can at least manifest the needs themselves. Whether this need is a need for life necessities or a non-material need, it can be reflected in the intersectionality as well. The fit point between intersectionality and Marxism may be that intersectionality provides a practical method for constructing Marxist distributive justice.Conversely, if Marxist distributive justice is assumed to be achieved, that is, all groups and individuals can meet their needs. Then, the demands of intersectional justice can also be realized. Because under the premise that any demands can be satisfied, no matter what the injustice caused by what intersection of factors can be solved, their unique needs can be satisfied.IV The Development & Influence Of Intersectionality In Other Areas
As mentioned above, intersectionality is widely adopted and developed in other fields because of its practicality. Its methodology can define, explain and seek remedies for various inequalities caused by multiple factors. Therefore, many groups use intersectionality theory to clarify their needs and expand their solutions.
1. Environmental & Public Health Movement
For the past century, traditional environmental groups have been primarily led by white group, especially higher-class groups. However, spurred by intersectionality theory and feminism, a diverse environmental movement led by people of colour and women has flourished.
Because these disadvantaged groups work and live in harsher environments, obtaining clean water, air, communities, and a well-protected working environment like the upper classes is not easy. The impact of environmental damage on these groups will be more prominent. Mainstream environmental groups have not focused on this widespread problem.
The same problem arises in public health. Because of the impact of the harsh environment and the problem of medical security, these disadvantaged groups under multiple oppression will be more difficult to resist in the face of disease. Therefore, the intersectional demands, environmental protection demands and public health demands can find a point of convergence, and the remedial approaches and methods can be sought through the intersectional methodology.
First, the core principles of intersectionality most relevant to environmental protection and public health are as follows: (1) social identities are not independent and unidimensional but multiple and intersecting, (2) come from multiple historically oppressed, and People from marginalized groups are the focal point or starting point, and (3) multiple social identities at the micro level (i.e. the intersection of race, gender and socioeconomic status) intersect with structural factors at the macro level (i.e. poverty, racism and sexism), to illustrate or produce different results.
Furthermore, a central consideration of intersectionality is how multiple social identities at the level of individual experience intersect with multiple levels of social inequality at the macro-structural level. One of the greatest strengths of intersectionality is its broad embrace of multiple intersecting identities and multiple chains of privilege and oppression. From an intersectionality perspective, no social category or form of social inequality is more prominent than another. Social categories are not attached and therefore cannot be ranked. The intersection is thus an instrumental but tragically underutilized critical theoretical framework for public health.
2. Disability & Education
Intersection theory has also been drawn extensively in disability research and education. Disability as an object of oppression and discrimination, is an essential component of complex social factors. The study of disability combined with intersectional theory can make up for intersectional feminism and what other feminism lacks. Disability status should not be viewed as a single factor but should be understood and addressed in conjunction with multiple factors such as race, gender, and socioeconomic status. Likewise, unfair distribution of educational resources is under the same circumstance.
Theoretical analyses of intersectionality that can reinforce social models of disability can provide "counter-narratives" that challenge categorical and fixed understandings of disability identity. Other counter-narratives that compete with public narratives of gender, "race," sexual orientation, age, etc., are also critical for many otherwise marginalized disabled group because they are women, coloured, or older. These constitute other elements of their self-identity but do not exist in a separate psychological department and therefore cannot be considered outside or irrelevant to disability politics.
The intersectional understanding of disability and special educational needs provides the rationale for mobilizing social justice reform agendas to correct power inequalities and oppressive and ideological institutions. The primary concern for future policy development should focus on shifting the focus from individuals to hindering social and educational norms. Instead, it emphasizes "the need for cross-thinking in policy and research to develop and implement joint policies that can mitigate inequalities affecting areas such as disability and education.
V Conclusion
After the complete text evaluation, Crenshaw's intersectionality theory has shown its unique advantages. Due to its vital inclusiveness and strong practicality, the intersectional theory can be applied in the broader dimension and can be developed in combination with other theories. Furthermore, its inner core is to eliminate the oppression caused by multiple factors, which is not in conflict with most theories of justice and law.
However, it is evident that the intersectionality theory still has massive flaws, and the intersectionality theory cannot be perfected until the core problem of the inclusion and exclusion of oppression factors can be solved theoretically. Moreover, it is subject to the current judicial system, with certain obstacles to realising its goals. This essay agrees with Collins' view that "despite the widespread belief that intersectionality has arrived, the field is still in its infancy".
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作者简介
于百溪
西南政法大学经济法本科，澳大利亚新南威尔士大学法学职业博士（UNSW Juris Doctor），澳大利亚新南威尔士州Solicitor。
有多年行政执法工作和办理经济类犯罪案件经验。
现专注经济法类，经济类犯罪，行政、刑法交叉案件，刑事合规和涉外案件。
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