The Lunatic Core of Radical Legal Egalitarianism

In rejecting racial polylogism, Ludwig von Mises argued that reason and logic are universal attributes common to all human beings. We do not all share the same race, culture, abilities, skills, intelligence, or interests, but we share in common the ability to reason and to communicate with each other based on reason and logic. Similarly, Friedrich von Hayek saw equality under the rule of law as a set of general rules common to everyone and applied in the same way to everyone without regard to race, sex, or creed. Without this ability to reason together, different groups are at each others’ throats and can only squabble endlessly without ever arriving at a resolution to their disputes.

The Austrian philosophical position, which is often described as “classical liberalism,” is rejected by postmodern identity theories. To identitarians, there is no objectively knowable reality, as reality is determined by and dependent upon one’s group identity such as race, sex, or religion. In this example from Duke Law, critical race theory rejects the notion that justice ought to be color-blind because, on the contrary, racial perspectives are deemed to be essential in achieving racial justice:

Critical race theory (CRT), a scholarly movement that began in the 1980s, challenges both the substance and style of conventional legal scholarship. Substantively, critical race scholars (“race crits”) reject formal equality, a heavy focus on individual rights, and color-blind approaches to solving legal problems. Stylistically, race crits often employ new methodologies for legal scholarship, including storytelling and narrative.

The “race crits” have revolutionized the law school curriculum, with almost all accredited law schools now teaching what Richard Posner called “radical legal egalitarianism.” This trend was well underway even before the rise of the Black Lives Matter reforms of 2020. Writing in 1997, Posner observed that, “The postmodern left is well ensconced in American universities, and even has a foothold in the law schools.” He criticized radical legal egalitarianism for rejecting formal equality and individual rights—principles foundational to the rule of law in the Western world—and instead focusing on personal stories and oppression narratives. He acknowledged that there is a “rational” aspect to radical legal egalitarianism, reflected in the desire to challenge and criticize established legal norms. However, he was more critical of what he called the “lunatic core” which rejects altogether the basic tenets of the rule of law:

Radical legal egalitarianism is distinguished by having a rational fringe and a lunatic core. The latter is constituted by the critical race theorists and the other legal academics who have swallowed postmodernism hook, line, and sinker, such as Ann Scales [the feminist jurist], who declares that “objective reality is a myth”…

A typical example of this approach, from UCLA, rejects the ideal of blind justice as the basis of the rule of law, and instead depicts the legal system as founded on racism and other forms of oppression:

Contrary to the traditional notion that racial subordination represents a deviation from the liberal legal ideal, this body of work recasts the role of law as historically central to and complicit in upholding racial hierarchy as well as hierarchies of gender, class, and sexual orientation, among others.

The lunatic core of radical legal egalitarianism upholds racial identity as the most important component of human interaction. It treats racism as “systemic,” meaning that it is not about any specific person who may be thinking or behaving in a discriminatory way, nor indeed is it even about the effect on specific individuals, but about the acts and impact of a “system” in relation to a specified group. It has no concept of the individual, and does not regard reference to specific individuals as relevant to its policy proposals. Its methodology is purely collectivist.

Examples given by Posner to illustrate the lunatic core include “if you are black or Mexican, you should flee Enlightenment-based democracies like mad, assuming you have any choice.” Democracy is also identified as a culprit, blamed by the lunatic core for “black subordination and the maintenance of a racist regime.” In this way, radical legal egalitarianism rejects the foundations of classical liberalism. As Posner explains,

[It] turns its back on the Western tradition of rational inquiry, forswearing analysis for narrative. Rather than marshal logical arguments and empirical data, critical race theorists tell stories – fictional, science-fictional, quasi-fictional, autobiographical, anecdotal – designed to expose the pervasive and debilitating racism of America today…by claiming to speak in the “Voice of Color,” critical race theorists exaggerate the difficulty of interracial discussion of social issues and discourage such discussion.

Critical race theorists dismiss classical liberal ideals by reference to the identity of the speaker. “Well, you would say that, being a white man,” or, “How can you say that as a black woman?” Anything said by white men can be rejected as “white supremacy,” while anything said by black men can be rejected as “the black face of white supremacy.” This strategy is derived from Marxist theorists: “Marxism seems to have built into the system a strategy that belies any attempt to refute it. Every disagreement is dismissed with ad hominem of sorts.” Posner was right to observe that to the lunatic core, “the group seems to be more a state of mind than a race.” Individual men of any race who deviate from the collective opinion assigned to their group are not considered relevant to the discussion of “systemic” effects on a race of people. The theorists weave stories and narratives from part truth and part fiction, and “even when stories are true, they are not a reliable basis for generalization.” Posner was scathing in his critique:

By exaggerating the plight of the groups for which they are the self-appointed spokesmen, the critical race theorists come across as whiners and wolf-criers…by embracing the politics of identity, they come across as divisive. Their grasp of social reality is weak; their diagnoses are inaccurate…their lodgment in the law schools is a disgrace to legal education, which lacks the moral courage and intellectual self-confidence to pronounce a minority movement’s scholarship bunk.

He added that he did not single out critical race theories as the only erroneous ideology worthy of censure: “there is plenty of shoddy legal scholarship. But that is hardly an excuse for the extremism, the paranoia, the hysteria, and the irrationalism of critical race theory, which are embarrassments to sober liberal egalitarians.” The “sober liberal egalitarians” are the progressives who do not reject classical liberalism altogether. They uphold the role of law in protecting individual rights and liberties, and some may even accept that individual merit is important.

But they still cling to their progressive notions of diversity and inclusiveness, and favor wealth redistribution and affirmative action programs designed to eradicate racial wealth gaps. Hence Posner argued that “the scholars of the rational fringe [of radical legal egalitarianism] are rational mainly by contrast to the core. They have plenty of goofy ideas and irresponsible dicta.” The important point about Posner’s critique is not merely that he criticized the rather ridiculous progressive mantras; on the contrary, he emphasized that the radical egalitarian attacks on the legal system are not merely goofy or amusing, but destructive and dangerous. He warned:

But that theory is not primarily comical, and in fact it has an ugly streak. Its practitioners attack conservative blacks as white men with black faces (or as slaves “willing to mimic the masters’ views,” which is Derrick Bell’s description of Clarence Thomas).

It is destructive because it rejects the ideals on which Western civilization is founded. It is dangerous because it leaves men of different races with no common ground and no basis on which to reason together when disputes arise. Hence, Mises rejected polylogism as incompatible with peaceful co-existence:

Polylogism has a peculiar method of dealing with dissenting views. If its supporters fail to unmask the background of an opponent, they simply brand him a traitor. Both Marxians and Nazis know only two categories of adversaries. The aliens—whether members of a nonproletarian class or of a non-Aryan race—are wrong because they are aliens; the opponents of proletarian or Aryan origin are wrong because they are traitors. Thus they lightly dispose of the unpleasant fact that there is dissension among the members of what they call their own class or race.