Social Theory: Mari J. Matsuda
31st Oct 2022 by Simon Mabon
By Meray Maddah. Meray is a PhD researcher at the Politics and Public Administration Department at the University of Konstanz. She is part of the Working Group, “Legislatures in International Politics” lead by Dr. Thomas Malang. Currently, she is also a Global Fellow at Brown University’s Center for Human Rights and Humanitarian Studies.
Professor Mari Matsuda is a civil rights lawyer, peace activist, and an established scholar. Her academic contribution is rooted in the American legal discourse, jurisprudence of the outsider, feminist critique of law and, not in the least, Critical Race Theory (CRT). Merited as one of the founding thinkers and practitioners behind Critical Race Theory, Matsuda’s lawyerly work coalesces the academic and the practical. As a critical race theorist, she examined the legacy of the American legal system, and its historical establishment, from a bottom-up outlook (Matsuda, 1987). Reinforcing the victim’s perception against institutionalised disparities, Matsuda sided with the underdog. Her work emphasised that only through the scrutiny of the legal system can there be a viability for historical reparations, justice, and most importantly, peace for all society’s factions.
Intellectual context
Empowered by the founding figures of CRT, like Kimberlé Crenshaw, Derrick Bell, Richard Delgado, and Jean Stefancic, Matsuda’s scholarship advanced the discourse on the interplay of race, power, and law. Nonetheless, an examination of CRT’s history requires an understanding of how this legal critique originated, which is, through the Critical Legal Studies movement.
Described as a peripheral legal theory, the Critical Legal Studies movement (CLS) emerged in the late-1970s. The movement’s first conference was at the University of Wisconsin-Madison in 1989 through a group of “legal radicals and New Leftist professors” (Baumgardner, 2021, p. 7). The inception period of the CLS movement was greatly influenced by the protests against the Vietnam War, the rise of women faculty members in academic bodies, and the overriding by-products of the civil rights movement.
Commonly referred to its advocates and members as the ‘Crits’, the CLS movement was an outgrowth of the Legal Realism school with a combination of feminist, philosophical and post-modernistic interpretations (Tushnet, 1991, pp. 1516-1518). Notwithstanding the American context of the CLS movement’s birth, the Crits acquiesced, in a lesser extent, with European social theorems through a nod to Max Weber’s concept of legitimation and the Frankfurt School of Critical Theory (Trubek, 1984, pp. 595-607). Still, the left leaning CLS movement, at its core, deviated away from the traditionally defined Marxist arguments (Boyle, 1985, pp. 721-725; Hunter, 2021, p. 390).
Viewed as disrupters to the normative legal curriculum, CLS scholars adopted the indeterminacy thesis in law, inasmuch, they rejected the assuming ideals of formalism as well as objectivism and its constructive development. These arguments were painstakingly clear in CLS associate Roberto Mangabeira Unger’s manuscript, “The Critical Legal Studies Movement” which is one of the marking documents in the movement’s history, its contextualisation and further development (Unger, 1983).
Departing from the CLS movement, it informs us about the foundations of CRT. As articulated by notable CRT scholars, Delgado and Stefancic, “critical race theory [is a movement that] questions the very foundations of the liberal order, including equality theory, legal reasoning, Enlightenment rationalism, and neutral principles of constitutional law.” (Delgado et al., 1995, pp. 28-29). In essence, CRT orbits around the nexus of race, racism, and law. It theorizes that not only is race, a social construct, demonstrated by individual biases through racism; but also, this prejudice is entrenched in the legal system and adversely affects people of colour in all corners of life.
Key arguments
Like her peers, Matsuda’s writings and work on race, racism, and power dynamics is informed by an intersectional approach. Using feminist critique to analyse the notion of abstractionism proposed by John Rawls’ Theory of Justice, Matsuda contests the foundation of America’s liberalism, based on ideology, insofar she highlights the lack of that very foundation to begin with. She underscores that abstract theory-building fails without a “contextual understanding” all while leaning on feminist anthologies that the human personality is not a fixed force majeure incapable of alternative conceptions of justice (Matsuda, 1986, pp. 617-624; 1989b, p. 9). In one of her clearest interpretations of feminist arguments, she reminds us that, “[in the] primary tenet of feminist theory, the personal is political” (Matsuda, 1986, p. 614).
For Matsuda, themes of inclusion and community-based work resonate deeply in her scholarship. As Janine Young Kim points out, while revisiting the scholar’s Looking to the Bottom essay, “Sometimes the best theories are those that seem to tell us what is obvious but unspoken” (Kim, 2014, p. 101), while adding that, “[Matsuda]spoke to the ideas of diversity and inclusion in ways that advanced the material situation of racial minorities.” (Kim, 2014, p. 103). She invites the reader to have a hands-on experience with communities and to imagine how everyday struggles look like, especially when racial hierarchies have the power to pollute consciousness.
Furthermore, Matsuda’s Asian-American heritage is featured prominently and intertwines with her work on CRT and its manifestations. In a keynote talk to the Asian Law Caucus, she addressed “racial bourgeoise” and “Asian bashing” when fearmongering is turned against the Asian-American community (Matsuda, 1990b, pp. 79, 82). She writes how the Asian-American experience was traditionally shaped as an American scapegoat, “the oriental menace” as she puts it; still, she reiterates that upholding affirmative action is a successful tool for Asian-Americans to attain educational opportunities and leadership goals (Matsuda, 1990b, p. 81)
As a critical race theorist, Matsuda’s wisdom combines the personal and the professional to make light of historical injustices. She dissects racial structures and the subhuman narratives while borrowing stories from her mother’s past growing up on a sugar plantation in Hawaii. She employs her Okinawan heritage to connect to other people of colour and their fight against racism while declaring that “law is essentially political” in matters of “street wisdom” (Matsuda, 1989a, p. 2324). She recounts the lynching of the Chinese and the burning down of several Chinatowns in 1871 Los Angeles while illustrating how the legal system is laced with racial discrimination, thus, connecting it to the African American familiarity and history of slavery (Matsuda, 2001, pp. 169-186).
In similar importance, Matsuda’s work challenges the absence of openly queer scholars in academic spaces (Matsuda, 1990a, p. 1765). As an intersectional feminist, she often spoke of how the legal industrial complex, in many ways than none, was a foe to queer communities and sexual minorities. She did not shy away, however, from pointing out the homophobia present in Asian-American communities. Per her arguments, this homophobia is rooted in the intolerance and fear of that community against any additional difference practiced by the white society (Matsuda, 1990b, p. 82). In one of her familiar stories, Matsuda uses her personal experience again and wishes that, one day, she would dance at her gay cousin’s wedding (Matsuda, 2005, p. 188).
In her Love, Change essay, she writes about her pedagogy when teaching law to her students and how matters of the heart and wanting to be loved weave into the legal. As a result, the CRT scholar that she is, Matsuda reaffirms that, “Law is how we make claims both for social meaning and for ultimate validation of our personhood” (Matsuda, 2005, p. 194). For this reason and many others, the brilliance of Matsuda’s work lies in its simplicity yet veracity as she always stood up for the “talented outsider” (Williams, 1991, p. 298) and defied principles of neutrality which fundamentally made her a beacon of academic and cultural influence.
In application
Discussions on racial fault-lines and race-based discrimination are often associated with the Global North/Western context and particularly in the American scope. Nonetheless, beyond the binaries of black-and-white, racism is a prevalent issue in the Middle East and North Africa region (MENA). Racial hierarchies dominate countless systems of governance, judicial branches, and how residents and citizens interact with one another in the MENA region. Not to mention relevant topics on sense of belonging, colourism, and indigenous groups.
On the structures of racism, Matsuda cautions us how institutional bodies can preserve and spread both covert and overt forms of racism in different ways (Matsuda, 1993, p. 34). Racist hate messaging and propaganda, as well as physical violence are easy to spot given their outward effects. However, when the ruling systems are entrenched with covert designs aimed for self-fulfilling gain and power, policies that are based on racial and ethnic discrimination become the default. Departing from this note, Matsuda’s insights become less foreign to Middle Eastern literature and more intertwined with conversations on which dominant group holds the power and for what purpose.
In the MENA, one of the most pronounced effects of racial hierarchies in legal structures is the kafala system. This system of sponsorship, for the recruitment purposes of migrant workers, is a notorious and a heavily scrutinized subject in a variety of MENA countries. Studies at length have illustrated how the kafala system is inhumane at best, whereby its repercussions are nothing short of human rights violence and the complete humiliation of migrant workers and their status. Furthermore, the kafala system performs as an extension of capitalistic endeavours in modern day societies. Thus, to think of Matsuda’s work is to think of how much capitalism is engrained in several of the region’s political economies and incidents of labour exploitation.
Even when labour provisions preside in MENA countries, the harm by the employer, and by the state’s legal system at large, makes kafala a ‘law-like’ institutionalised form of exploitation and abuse (Khan & Harroff-Tavel, 2011, pp. 297-299). Here, we are reminded by Matsuda’s statement on how critical scholars recognize that, “[law] consists of language, ideals, signs, and structures that have material and moral consequences.” (Matsuda, 1987, p. 337).
Likewise, a bastardized version of racial hierarchies in the MENA is through sectarianism. And like racism, the nature of sectarianism is based on social constructs. As experienced by populations in countries like Iraq and Lebanon, ethno-sectarian cleavages govern ruling systems and regulations through sect-appointed elites. Whether it was called al- Muhasasa Ta'ifia or al-Tawafuq al-Siyasi, it is safe to argue that in these countries, sectarian power-sharing dynamics have been the bedrock of their institutions.
Sectarianism, in these MENA countries, seeped through every branch of society, and government, and instilled a sense of fear among people wherewith state-society relations became its primary victim. As a result, a deep sense of distrust and intolerance emerged towards the other. This tactic of othering is one of Matsuda’s points in examining the theory of subordination and patterns of oppression. However, an antidote to this oppression, as illustrated by Matsuda, simply lies in “asking the other question” (Matsuda, 1991, pp. 1188-1190). She uses this method as form of dismantling the powers of domination while wielding coalition forces to gauge levels of subordination.
Also within the MENA, socioeconomic divisions and issues of mobility caused by sectarianism can be traced back to the region’s history with colonialism (AlShehabi, 2017). With this in mind, colonialism has been the backdrop of many of Matsuda’s writings and, most importantly, personal heritage. A Hawaiian scholar with a Japanese ancestry, she notifies us that it would be a “misreading” of critical race theory if it was divorced from the critique on both colonialism and capitalism (Matsuda, 2021). Therefore, when examining ethno-sectarian tensions in the MENA, the theory of critical race is an applicable mean to unpack grievances and everyday issues experienced by the region’s population.
In summary, Professor Matsuda’s impact on social theory, principally through CRT and feminist analysis, moves beyond geographical borders, political circles, and legal chambers. Her scholarship continues to influence the field of social sciences through the prism of community-based work and scholarly activism.
Issues to be aware of
The history of CRT and its development, however, did not come to life without controversies. Afterall, no social theory is immune to critiques and CRT was not an exception to this rule. Yet, the most recent criticism against CRT was not within academic spaces, rather, in mainstream media.
During the tenure of former U.S. President Donald Trump, CRT debates made news headlines, specifically in right-wing media. Conservative pundits claimed that CRT defied the chief principles of the First Amendment and promoted the obsession over ‘woke’ politics. Other analysts created online trackers to see if state legislatures introduced bills regarding K-12 school syllabi and CRT-influenced education. Similarly, during that period, an executive order, and notices to federal agencies were made as an attempt to fight the “divisive” rhetoric that racism and racial bias are baked into American institutions and laws.
Nonetheless in 2021, an Ipsos/Reuters national survey was conducted to see the percentage of Americans that are familiar with CRT, the arguments surrounding it, and to what extent do they agree or disagree with CRT’s main principles. The results conveyed that about 43 percent, of those surveyed, were somewhat familiar with the term; and among this group, only 5 percent answered correctly when it comes to the history and teachings of CRT. Not only do the results signify that very few understand what CRT really is; but also, they represent considerable misconceptions of CRT and its core meaning.
In hindsight of this discussion and divisions concerning CRT and what it stands for, it raises significant questions, one of them being as to how countries and their corresponding institutions reckon with the history of violence and oppression. More so, it creates a dialogue as to what extent should laws and procedures be re-examined when minority groups are affected by racial hierarchies in a variety of ways. Ultimately, CRT is not meant to advocate for a blaming ideology. On the contrary, it encourages citizens alike to revisit history, recognise the volatility of oppressive behaviours, and commence solutions that equally benefit all of society’s diverse groups.
References
AlShehabi, O. H. (2017). Contested modernity: divided rule and the birth of sectarianism, nationalism, and absolutism in Bahrain. British Journal of Middle Eastern Studies, 44(3), 333-355. https://doi.org/10.1080/13530194.2016.1185937
Baumgardner, P. (2021). The Birth of the CLS Movement. In Critical Legal Studies and the Campaign for American Law Schools: A Revolution to Break the Liberal Consensus (pp. 7). Palgrave Macmillan. https://doi.org/https://doi.org/10.1007/978-3-030-82378-8
Boyle, J. (1985). The Politics of Reason: Critical Legal Theory and Local Social Thought. University of Pennsylvania Law Review, 133(4), 721-725. https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=4036&context=penn_law_review
Delgado, R., Stefancic, J., & Harris, A. (1995). What Is Critical Race Theory? In Critical Race Theory, An Introduction (Second Edition ed., pp. 28-29). New York University Press. http://www.jstor.org/stable/j.ctt9qg9h2
Hunter, R. (2021). Critical Legal Studies and Marx’s Critique: A Reappraisal. Yale Journal of Law & the Humanities, Vol. 31:2, 390. http://hdl.handle.net/20.500.13051/7578
Khan, A., & Harroff-Tavel, H. (2011). Reforming the Kafala: Challenges and Opportunities in Moving Forward. Asian and Pacific Migration Journal, 20(3-4), 297-299. https://doi.org/10.1177/011719681102000303
Kim, J. Y. (2014). Resistance and Transformation: Re-Reading Mari Matsuda in the Postracial Era. UCLA Asian Pacific American Law Journal 35 (2012-2013), 18(35), 101, 103. https://ssrn.com/abstract=2487436
Matsuda, M. J. (1986). Liberal Jurisprudence and Abstracted Visions of Human Nature: A Feminist Critique of Rawls' Theory of Justice. New Mexico Law Review, 16(3), 614, 617-624. https://digitalrepository.unm.edu/nmlr/vol16/iss3/18/
Matsuda, M. J. (1987). Looking to the Bottom: Critical Legal Studies and Reparations Minority Critiques of the Critical Legal Studies Movement. Harvard Civil Rights-Civil Liberties Law Review, 22(2), 323-400, 337. https://heinonline.org/HOL/P?h=hein.journals/hcrcl22&i=329
Matsuda, M. J. (1989a). Public Response to Racist Speech: Considering the Victim's Story. Michigan Law Review, 87(8), 2324. https://doi.org/10.2307/1289306
Matsuda, M. J. (1989b). When the First Quail Calls: Multiple Consciousness as Jurisprudential Method [Kyenote presentation]. Women's Rights Law Reporter, 11(1), 9. https://scholarspace.manoa.hawaii.edu/bitstreams/98224637-8c6b-4fa0-a31e-13fe5939db27/download
Matsuda, M. J. (1990a). Pragmatism Modified and the False Consciousness Problem. Southern California Law Review, 63, 1765. https://scholarspace.manoa.hawaii.edu/bitstreams/0df2ce83-7ab2-4f8b-bb73-bffa1ccf440f/download
Matsuda, M. J. (1990b). Voices of the Community: We Will Not Be Used. Asian American & Pacific Islands Law Journal, 81, 79, 82. https://scholarspace.manoa.hawaii.edu/bitstreams/21dacf7a-38df-497c-8d75-ecc85a6c51a9/download
Matsuda, M. J. (1991). Beside My Sister, Facing the Enemy: Legal Theory out of Coalition. Stanford Law Review, 43(6), 1188-1190. https://doi.org/10.2307/1229035
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Matsuda, M. J. (2005). Love, Change. The Yale Journal of Law and Feminism, 17, 188, 194. https://scholarship.law.georgetown.edu/facpub/895
Matsuda, M. J. (2021, 19 January 2021). Politics In, Of, And Through The Legal Academy: Akbar Interviews Matsuda [Interview]. The Law and Political Economy (LPE). https://lpeproject.org/blog/politics-in-of-and-through-the-legal-academy-akbar-interviews-matsuda-part-2/
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