Race in the Shadow of Law

State Violence in Contemporary Europe

Eddie Bruce-Jones

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317233275
• Edition: 1
• Topic: Diritto
• Subtopic: Teoria e pratica del diritto

Race in the Shadow of Law offers a critical legal analysis of European responses to institutional racism. It draws connections between contemporary legal knowledge practices and colonial systems of thought, arguing that many people of colour experience the law as a part of a racial problem, rather than a solution, to racial injustice. Based on a critical legal ethnography of anti-racism work in Europe, and with an emphasis on the German context, the book positions Black and anti-racist perspectives at the centre, rather than the margins, of critically thinking through the intersection of race and law. Combining this ethnography with comparative legal analysis, discourse analysis and critical race theory, the book develops a critical discussion of the European legal frameworks aimed at regulating racism, and particularly institutional racism, in policy and policing. In linking this critique to the transformative potential of social movements, however, it goes on to examine the strategic and creative possibility of disrupting conventional modes of engaging, and resisting, law.

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Part I
Between the lines and at the margins

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Chapter 1
Structural racism and the law in Europe

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Race is not a singular concept in Europe. It does not occupy a singular social position and nor does it enjoy a central or stable definition across European countries. One might expect there to be more internal coherence to the legal concept of race in Europe than currently exists, due to the overlapping histories and legal jurisdictions among European countries. However, despite various common discussions about racism taking place in Europe, race remains highly contextually contingent, dynamic and contentious. One commonality across much of Europe, however, is that race as such is frequently framed in a language that minimises its importance as an analytical concept. This is not to deny the importance of other identity traits and status positions, such as citizenship status, gender, sexuality and religion as constituent co-valences of systemic marginalisation. The issue is that in various settings across Europe, race is discussed as something of an American relic, part of a clunky imported vernacular unfit to serve as framework for understanding the European context. With this undercurrent of thought as a backdrop, the work of self-identified anti-racism activism can be difficult to describe to a broad public. This difficulty is sharpened in the current times of growing nationalism, xenophobia and racism throughout Europe. Rising nationalism and overt racism is dangerous not only for the threat that it represents to immigrants and people of colour, but also for the ways it distracts us from seeing forms of structural and institutional racism. In other words, it is difficult to focus social energy on identifying and countering obscured structural exclusion when overt racism captivates and monopolises the public imagination. This form of distraction is not new, but it is certainly a dynamic that must be considered in contemporary Europe, particularly now.

Perhaps race, on its own, is a somewhat anachronistic as an organising analytical lens for examining social and political marginalisation in Europe, given intense interrelatedness between race and other social categories. But then again, this is not a problem peculiar to race; any single frame of marginalisation or oppression would be insufficient to describe systems, processes or indeed experiences of social exclusion. Moreover, Europe is certainly not an exceptional sphere in which race cannot be identified among the existing hierarchies of domination. It is important to note, however, that even as we recognise that race features prominently in an operant set of logics of exclusion in Europe, and that Europe does not enjoy an exceptionalism marked by the absence of race, it would be unwise to limit the discussion of European forms of racism and anti-racist work to a doggedly local or specific set of issues. Attention must be paid to the colonial logics that continue to racialise people in Europe, from imperial legal and economic structures to border policies, nativist social ideologies and concepts of the public good vis-à-vis the foreign other. Additionally, anti-racism work in other parts of the world influences and exchanges with such work in Europe. Notably, in the context of Black-led anti-racism work in Germany, movements in the United States and the United Kingdom around police violence and decolonial projects from various places in the global south are in deep and sustained conversation with the German work (for example, Fanon 1967, Grosfoguel 2007, Nghi Ha 2007, Kilomba 2008).

While the interface of race and the law is vast and complex, it is helpful to distil a few concepts, legal provisions and criticisms that are persistently debated in Europe – a basic overview of terrain of the legal regulation of race.

The landscape of equal protection in Europe

When comparing the various legal regimes that exist in Europe for recognising and regulating racial discrimination, aside from analysing policy and case law, it is imperative to scrutinise two aspects. The first is the way in which race, as a category, is conceptualised legally and socially. Without doing this, it is difficult to understand the aims of the relevant legislation and policy. Second, a critical understanding of the application of the law is, of course, crucial to evaluating the laws’ effects in society.

European countries vary widely in their approaches to the legal recognition and regulation of race. This range can be explained in a number of ways, including the historical place of race in society in each country, political circumstances that have shaped the debate around legal forms of protection, and the flexibility afforded the member states of the European Union when implementing the EU Race Directive.

National equality laws

There are several models of anti-discrimination and equality legislation in European countries, and one cannot generalise the form that anti-discrimination laws take across Europe without losing a great deal of nuance. There are some regional similarities and similar approaches, but there are also significant differences. The differences in legal approaches are, of course, contextualised within very different social understandings of racial difference and its relevance. It is perhaps helpful to outline several European approaches in order to demonstrate a bit of the range.

The French model

France takes a unique view on racial discrimination, and it is close to what can be described as a colour-blind approach. French law bans the use of the category of race, imposing a criminal sanction for its use in the employment context (Bruce-Jones 2008). This approach, of criminalising use of the category, is aligned with the ideals of French Republicanism, which asserts that the unifying prospect of French national identity is an important principle for counterbalancing the various other forms of group identification that exist within French identity. Differences, in this way, are seen as divisions in the first place, rather than richness, and are subverted within in the national ideology of Liberté, egalité, fraternité. The specific aim for criminalising the category is to send the message that race is a dangerous social fiction that should not be perpetuated. Rather than to name the categorical fiction and regulate the discrimination stemming from it, the French model bans the naming of race and attempts, in this way, to stem discriminatory behaviour.

There are some clear problems with the French model. First, on an ideological level, the criminalisation of the category of race on the basis that it is a scientific fiction does nothing to address race as a lived, social reality. In some ways, it creates a new fiction, one that denies the social experience of racialisation. It also suggests that the law can affect complex social phenomena by banning aspects of language, which may be only partially true. Simply because employers do not use the term race does not mean that they are not making what might otherwise be understood as racial distinctions. Second, because the categorical ban of race carries criminal sanctions, complaints against employers are handled by the Ministry of Labour. Complaints are filtered through a federal agency, removed from the ambit of individual legal claims. Because allegations of racism by the Ministry of Labour are of serious concern, they are not brought lightly. There is some indication that they are brought more as a last resort, which may mean that the legal mechanisms for dealing with discrimination claims are rarely utilised.¹ Third, the prohibition of the use of race means that statistics about race are not collected by official bodies, and there are only a few exceptions in which such statistics can be collected by private parties. This makes it difficult to collect evidence for identifying patterns of racism. As most discrimination does not involve the declaratory admission of identity-based maltreatment, identifying the disparate impact of policies and practices on protected groups is extremely important to effectively combating discrimination.

The German model

The German model consists of a general constitutional provision on equal protection (Art 3 German Basic Law) and a statutory provision that covers the fields of employment, vocational training, education and social welfare (Sec. 2. AGG). The constitutional provision covers discrimination on the basis of ‘Rasse’ which is translated into English as race but which recalls in the German language the biological race thinking of Nationalsozialismus or National Socialism (NS) rather than the social construct of race. For this reason, the continued use of the term ‘Rasse’ in constitutional matters is controversial. The provision itself is a general one, informing the rest of German law (including the National Policing Law)² as well as Germany’s compliance with European and international laws. The statute, the Allgemeines Gleichbehandlungsgesetz or General Law on Equal Treatment (AGG), which covers several grounds of prohibited discrimination aside from race, was adopted in 2006, but it has been used on only very few occasions to bring claims of racial discrimination.

Similar to in France, German officials do not collect or utilise racial statistics when assessing how public duties are conducted or for examining patterns of discrimination. There is not, as in France, an express prohibition on collecting these data. The lack of collecting racial statistics leaves civil society groups to do the work of tracking discrimination themselves.

The United Kingdom model

The United Kingdom has no written constitution but has enshrined its equality principles in statutes. In contrast to most other countries in Europe, the UK developed race-specific anti-discrimination protections as early as 1965, when it passed the Race Relations Act of 1965 (Solanke 2009, Fredman 2011). This act outlawed racial discrimination in public places. With subsequent amendments, the act was expanded in scope and the protections against racial discrimination became more nuanced. Having been developed alongside the US American Civil Rights Act, racial discrimination provisions in the UK are among the oldest in Europe.

Today, the UK has an integrated anti-discrimination statute, the Equality Act 2010, which includes racial discrimination. The provisions are among the most extensive in coverage in Europe. Anecdotally, one can also assume that the provisions are the most regularly utilised among national equality laws across Europe. Under UK law, individuals may rely directly on the Act, bringing employers, service providers or public bodies before tribunals when challenging their compliance with the Act.

European law provisions

On the European level, there are two main bodies of law that affect racial discrimination in European countries. The first is European Union law, which relates to the primary and secondary legislation and case law from the European Union. The second is the European Convention on Human Rights (ECHR), as adjudicated by the European Court of Human Rights, the judgments of which are binding on members of the Council of Europe. The main difference, other than the fact that the Council of Europe comprises almost twice the number of countries as the European Union, is that the discrimination provisions found in the ECHR are only applicable in relation to the provisions of the ECHR, rather than as stand-alone provisions on equality. In contrast, the scope of the anti-discrimination prohibitions in the treaties and directives of the European Union enjoy a much wider scope of applicability. For this reason, the laws of the European Union are most relevant when characterising equality law at the European level.³

The primary legislation of the European Union, its founding treaties, includes general prohibitions on racial discrimination. The Treaty on the Functioning of the European Union (TFEU) expressly covers racial discrimination in (Art. 19). Additionally, the EU Charter of Fundamental Rights and Freedoms expounds a principle of racial non-discrimination (Art. 20).

While the primary legislation states the EU principles of equality law, it is the secondary legislation, and more precisely, the Race Directive 2000/43/EC, that details the specific terms of identifying and combating racial discrimination. The Race Directive is one of a number of directives and regulations prohibiting discrimination, but it is the one dedicated specifically to racial discrimination and other similar grounds. The Race Directive has a broad scope of applicability, which includes the areas of employment, vocational training, education, the acquisition of goods and services, and social welfare. The Directive defines both direct and indirect discrimination.

There is one very large area of discretion that states have when extending European Union directives on discrimination to the member states, and that is in the ways they choose to transpose the laws into their respective national legal frameworks. In the UK context, the structure and content of the Equality Act 2010 resembles equality directives considerably, in terms of structure, scope of coverage ...