How is race constructed by law?

Basic LawHow to deal with the term “race”?

"Nobody may be disadvantaged or preferred because of their gender, their origin, their race, their language, their homeland and origin, their beliefs, their religious or political views. Nobody may be disadvantaged because of their disability."

What is in Article 3 of the Basic Law is undisputed. It is also clear, however, that the word "race" is particularly burdened in Germany. If you are researching racism or working on it as a legal scholar, you cannot avoid this term: It is in the Basic Law: But how do you deal with it? Dr. Hendrik Cremer from the German Institute for Human Rights thinks that the word "race" should be deleted from the Basic Law. Instead, it should read: "Nobody may be racially disadvantaged or favored."

"The current wording suggests that there are different races of people, and to this extent this term triggers irritation, speechlessness and even personal injuries in those affected, because they are basically forced to assign themselves to a race because the wording is just that how it is and it then leads to the fact that basically those affected are forced to adopt racist terminology. "

Hendrik Cremer is not the only one who sees that this term from the Basic Law is no longer appropriate. Time and again there have been political initiatives to delete the term from legal texts. This has already happened in the Thuringian and Brandenburg state constitution. Initiatives from Berlin and Lower Saxony, however, have failed. The word is not only a political issue because of its German history, but is also controversial within the legal sciences.

Definition of terms not exact

Precisely because it is not clear what exactly is meant by the legal category "race", judges also do not know how to deal with it, explains Cremer:

"In any case, I see this as a problem of science and, above all, as a problem of jurisprudence, because the comments on Article 3 of the Basic Law, for example, are very poor and do not even point towards the prohibition of racist discrimination, but rather deal with the somewhat difficult question of what is meant by the term race. "

However, without realizing that the word "race" is a construction, explains Hendrik Cremer. The situation is different in the USA, where the term "race" has been dealt with for a long time. In the 1970s, critical law emerged there, in which the central assumption is that legal texts cannot be analyzed without the power structures on which they are based. In addition to this, the Critical Race Theory was formed, in which the analysis of the "Race" category is an important focus. There is no debate in the USA about whether one should use race in legal texts or in scientific texts as an analysis category.

Critical Race Theory

The English term "race" is a central analytical term in law. In contrast to Germany, there are studies in the USA that work with this term. The critical race theory is no longer only used in law, but also in sociology or educational science:

"Here in Germany we have very few studies on implicit bias."

So the implied, mostly unconscious bias. There is a big project at Harvard University that would have helped her, says Dr. Emilia Roig fest, founder of the Center for Intersectional Justice:

"We don't have that kind of thing in this country, or at least not enough. Critical Race Theory helps us to analyze these gaps and, if necessary, to close them."

Kimberley Crenshaw, a pioneer of Critical Race Theory, chairs the Center for Intersectional Justice. She developed the concept of intersectionality, i.e. the simultaneity of different forms of discrimination. In the meantime, the term intersectionality has become an indispensable part of the social sciences in Germany.

Racism as a structural and not an individual problem

For Emilia Roig, the term "race" is important as a category of legal analysis. Also in legal texts:

"I am of the opinion that if race is removed from the Basic Law, then it will be even more difficult. It will be even more difficult to talk about racism. This category has to be laid down in the same way as gender. I will not say, okay, gender is." a construct, then let's remove the gender category from the law, because the patriarchy still produces disadvantage and structural disadvantage. We would also not replace gender with 'due to sexist disadvantage'. No. "

Emilia Roig fears that as soon as the term race is deleted from the Basic Law, the fact that racism is a structural and not an individual problem will no longer play a role. The positions of those who deal with the term "race" diverge. For some it is clear that the term "race" means a social construct, without which no legal analysis can be carried out. For others, each time the term race is used, the idea is conveyed that human races really do exist. As long as there are different ideas about how legal doctrine in Germany interprets this term and fills it with definitions, the unease with the term race will remain.