Legal Definitions - masking

Masking

In critical legal studies, masking refers to the act or instance where legal rules, institutions, or doctrines appear neutral, fair, or objective on the surface, but in reality, they serve to conceal or obscure underlying power imbalances, social inequalities, or political agendas. It suggests that the stated purpose or effect of a legal concept is not its true, deeper function, which often benefits dominant groups or maintains existing hierarchies.

Here are some examples illustrating the concept of masking:

• Property Law and Historical Injustice: Modern property laws often focus on protecting current ownership rights and facilitating transactions. However, from a critical perspective, these laws can be seen as masking the historical injustices—such as colonial land grabs or forced displacement—through which much of that property was originally acquired. The legal framework, by focusing solely on present-day ownership, avoids confronting the often violent or exploitative origins of wealth and land distribution.

• Contract Law and Unequal Bargaining Power: The principle of "freedom of contract" suggests that individuals are free to negotiate and agree to terms, implying a level playing field. However, this principle can mask the significant power imbalances that often exist between parties, such as a large corporation and an individual consumer or employee. While the law treats both parties as equally capable of consenting, the reality is that one party may have vastly superior resources, information, and legal expertise, leading to contracts that disproportionately favor the stronger party.

• Criminal Justice System and Systemic Bias: The criminal justice system is designed to apply laws equally to all individuals, aiming for "blind justice." Yet, critics argue that the system's seemingly neutral procedures—like sentencing guidelines or police discretion—can sometimes mask underlying systemic biases that lead to disproportionate arrests, convictions, and harsher penalties for certain racial or socioeconomic groups. The appearance of impartiality can hide the reality of unequal outcomes influenced by factors beyond individual culpability.