The Racial Contract

The theory that Charles Mills puts forth in The Racial Contract constitutes a philosophical bridge between two well-known and highly influential traditions in political thought—Social Contract Theory (SCT) and Critical Race Theory (CRT). While SCT is considered one of the oldest philosophical traditions, with arguments about a social contract being put forth by ancient philosophers like Socrates and Aristotle, it is associated with modern moral and political philosophers who gave the theory its full explanation during the Age of Enlightenment (Friend). In short, SCT refers to the idea that the legitimacy of political authority and moral norms are derived from mutual agreement and consent between those governed by the state and the moral norms, i.e., the parties to the contract. While the articulations and contents of various theorists differ, they share two fundamental elements: a state of nature that exists prior to the agreement and the establishment of civil society and the assumed rationality and motivations of those who enter the agreement to establish civil society (Cudd, Ann and Seena Eftekhari. “Contractarianism,” Stanford Encyclopedia of Philosophy, 2021). The former presupposes the latter.

The most well-known classic social contract theorists include Thomas Hobbes, John Locke, Jean-Jacques Rousseau, and Immanuel Kant. Another important figure in SCT is John Rawls, a 20th century theorist who essentially revived the tradition in the academy with his publication of A Theory of Justice (1971). While Rawls’s highly abstracted articulation uses contract as “a normative tool, a conceptual device to elicit our intuitions about justice” (5), a usage that became popular in mainstream studies, the classic contract theorists relied on contract as a descriptive and explanatory tool regarding “the actual genesis of the society and the state, the way society is structured, the way government functions, and people’s moral psychology” (5). As Mills explains in the Introduction, his usage of contract is more aligned with that of classic theorists.

While Mills’s work engages with that of classic contract theorists and attempts to correct for their theoretical and practical errors, as well as the oversights of contemporary mainstream scholars who analyze and develop upon the classic theory, The Racial Contract also embodies a much newer tradition in the academy, Critical Race Theory (CRT). Emerging in the 1980s among law students and legal theorists of color, CRT refers to an interdisciplinary field that examines the role of law in constructing and maintaining white supremacy. An important antecedent to CRT was the emergence of Critical Legal Studies (CLS) in the 1970s among white leftist legal scholars who were frustrated with the limitations of reigning legal paradigms and sought to articulate the ways that law created and upheld an unjust society (Crenshaw, et. al.). A significant distinction between CRT and CLS, however, is CRT naming white supremacy as the social and political structure embedded in the legal and institutional apparatus of America and seeing the law not as rational or apolitical but designed precisely to uphold that particular system of social power and privilege. The identification and indictment of white supremacy against a mainstream discourse that obscures its role in injustice is one of the ways that Mills exhibits that his work falls within the CRT tradition.

Another way that Mills demonstrates his alignment with CRT is in his concluding chapter where he asserts that his theory “recognizes the actuality of the world we live in, relates the construction of ideals, and the nonrealization of these ideals […] and points to what would be necessary for achieving them” (130). CRT, although relatively new, is a part of a longer tradition of oppositional Black theory, which seeks not to obliterate the theory of white Western thinkers or render it futile but rather is embedded in and dialogues with white Western thought to close the gap between the reality and the ideal through oppositional, non-dominant readings that are informed by the experience of being Black in a racist society. This tradition is exemplified in the work of Black thinkers like Frederick Douglass, W.E.B. DuBois, and Richard Wright, all of whom Mills cites in The Racial Contract. In the Foreword of Critical Race Theory: The Key Writings that Formed the Movement (The New Press, 1996), Cornel West articulates that CRT “puts forward novel readings of a hidden past that disclose the flagrant shortcomings of the treacherous present in the light of unrealized—though not unrealizable—possibilities for human freedom and equality” (xi-xii). Similarly, Crenshaw et. al. indicates in the introduction to Critical Race Theory that CRT constitutes an oppositional, interventionist vision that pushes American law towards its ideals (xxvii). 

Thus, The Racial Contract draws together classic SCT and CRT, exemplifying Mills’s engagement with the ideas and ideals of Western philosophy through a novel reading of the theory that is both descriptive and prescriptive. It is not meant to suggest that classic contract theory is not useful, but rather to demonstrate that the theory itself and the dominant discourse surrounding it are underwritten by an obscured racial contract that hampers the realization of the ideals to which the social contract purportedly adheres and advocates for a just society.