30/06/2015
In recent years, France has engaged in a profound national discussion regarding the presence of the word 'race' within its foundational legal text, the Constitution. This debate culminated in significant legislative action, reflecting a desire to align the nation's legal framework with contemporary understandings of human diversity and equality. However, the move has also sparked considerable debate among legal scholars, social scientists, and activists, raising crucial questions about the efficacy of such a change in addressing the complex realities of discrimination and systemic racism.
The Constitutional Shift: A Historical Overview
For decades, Article 1 of the French Constitution of the Fifth Republic proudly declared: "France is an indivisible, secular, democratic and social Republic. It ensures equality before the law of all citizens without distinction of origin, race or religion." This phrasing, particularly the inclusion of 'race', became a focal point for those who argued that its very presence, even in a prohibitory context, implicitly legitimised the concept of distinct human races.
The journey towards its removal has been protracted. An earlier attempt was made on 16 May 2013, when a law proposal sought to eradicate the term 'race' from broader French legislation, including the Penal Code and the Law on Press Freedom. This proposal, originating from the Left Front, aimed to replace 'race' and 'racial' with 'racism' and 'racist', viewing it as a crucial step in combating racism by undermining its conceptual basis. However, this particular bill never progressed to the Senate for examination.
A more decisive moment arrived on 12 July 2018. During the review of a substantial package of constitutional amendments in the National Assembly, a new proposal specifically targeting the word 'race' in the constitutional text itself was put to a vote. This amendment was adopted unanimously by the deputies present (119 out of 577), marking a significant victory for a long-standing demand. The new formulation of Article 1 of the Constitution, as a result of this vote, states: "France is an indivisible, secular, democratic and social Republic. It ensures equality before the law of all citizens without distinction of sex, origin or religion." This change effectively removed the explicit mention of 'race' from the fundamental principle of equality. While the vote occurred in 2018, the formal constitutional bill proposing this deletion was deposited on Thursday, 8 July 2021, signifying the ongoing legislative process to enshrine this change definitively.
Arguments for Deletion: The Eliminativist Stance
The proponents of removing 'race' from the Constitution largely adopted an "eliminativist" position, believing that to effectively combat racism, the term itself and the underlying idea of race must be expunged from public discourse and thought. Their arguments primarily rested on two pillars: ontological and historical.
The Ontological Argument: "Races Do Not Exist"
The primary justification put forward was that the Constitution should reflect scientific truth: human races do not exist. This argument unfolded in two variants:
- Natural Science Perspective: Advocates cited modern scientific consensus, particularly from molecular biology and genetic research, which unequivocally states that human biological races are a fallacy. Nicole Belloubet, the then Keeper of the Seals, emphasised, "on a biological level, there is no longer any doubt today, since the categorisation of individuals, established in the 18th century, is refuted by scientific research and contemporary molecular biology. We know today that all humans share 99.9% of their genetic heritage: the human species is truly unique and indivisible."
- Anthropological Perspective: This variant asserted that removing the word would bring the Constitution into line with the fundamental anthropological truth of humanity's unity and indivisibility. Citing Claude Lévi-Strauss, some deputies argued that there is only one human race: humanity in its entirety, culture, and dignity.
From this perspective, the continued presence of 'race' in the Constitution, even to prohibit discrimination, paradoxically validated the false belief in distinct human races. By removing it, the law would cease to lend credence to a scientifically discredited concept.
The Historical Argument: "A Relic of a Dark Past"
The second major argument centred on the historical baggage associated with the term 'race'. Deputies highlighted its deep entanglement with horrific ideologies and practices, including slavery, colonialism, and the atrocities of Nazism. Éric Coquerel noted his joy "at the suppression of the word race... in the name of which the worst theories in human history were not only concocted but applied during the first half of the 20th century." M'jid El Guerrab reminded the assembly of its "distant roots in the legal order going back to the Code Noir, promulgated in 1685" and its instrumentalisation in Vichy-era antisemitic laws.
For many, removing 'race' was a symbolic act of repudiation, a definitive break with a past where the concept was used to justify systemic exploitation and extermination. Furthermore, some argued the word had become obsolete in contemporary French society, belonging to a moral and discursive community that no longer exists. They contended that its inclusion in the 1958 Constitution was primarily a response to the horrors of Nazism, a context no longer relevant in the same way today. The belief was that without the word 'race', state-sanctioned racism would become impossible.
Critiques of the Eliminativist Position: A Deeper Look
Despite the apparent consensus, the eliminativist approach faced significant academic and political scrutiny. Critics argued that while well-intentioned, simply removing the word might not address the underlying societal issues of racism and could even hinder efforts to combat it effectively.
Challenging the Ontological Argument
The main critique here revolves around the distinction between the biological and socio-constructivist understandings of race. While science has indeed debunked biological races, social scientists argue that race exists as a powerful social construct. It designates groups socially defined by their particular positioning within power relations, often through processes of 'racialisation' where differences are imputed biologically, leading to discrimination and stigmatisation.
As the sociologist Colette Guillaumin pointed out, race is not a concept of natural science but of social science. Therefore, its validity should be tested against social, not natural, criteria. To assert that races do not exist, purely based on biological arguments, is to ignore this crucial socio-constructivist understanding. This oversight, often labelled an "epistemology of ignorance" or "white ignorance" by scholars like Charles Mills, prioritises interpretations that serve to maintain structures of privilege by downplaying the social reality of race.
Furthermore, critics highlighted a fundamental confusion between scientific (descriptive) and legal (normative) discourse. The law's purpose is to regulate societal behaviour and uphold values, not merely to reflect scientific facts. The legal system can define terms based on societal usage and normative goals, independent of scientific classification. A prominent US example, Nix v. Hedden (1893), illustrates this point: the Supreme Court ruled that a tomato, though botanically a fruit, was legally a vegetable for customs purposes due to its popular culinary use. Similarly, the legal concept of 'race' can exist to address social discrimination, even if biological races do not. Removing the word based solely on biological non-existence fails to acknowledge its continued social and political salience.
Rebutting the Historical Argument
The historical argument, while acknowledging the horrific past, was criticised for being overly simplistic. The core counter-argument is that racism does not require the explicit use of the word 'race' to operate. Discriminatory practices can manifest through cultural, ethnic, or nationalist references, subtly perpetuating racialised inequalities. As Guillaumin noted, categories like 'culture' or 'ethnicity' can serve as unconscious substitutes for 'race' in racist discourse.
The risk, therefore, is that removing the word 'race' from the Constitution might inadvertently weaken the legal tools available to identify and combat institutional and systemic racism. If the explicit term is absent, it could become harder to prosecute discrimination that, while not using the word 'race', is fundamentally racial in its impact. Some deputies, like Éric Coquerel, argued for alternative formulations, such as "so-called race" (prétendue race) or "origins" in the plural, to acknowledge the persistent sociological distinctions and ongoing discriminations without legitimising biological race.
Ultimately, even the Keeper of the Seals, Nicole Belloubet, acknowledged that despite the deletion, other legal safeguards against discrimination remain in the French legal framework, including the preamble to the 1958 Constitution, the 1946 preamble, and various international treaties and conventions. This admission implicitly recognises that 'race', or the concept of racial discrimination, remains a necessary legal tool for achieving racial justice, even if the explicit word is removed from Article 1.
Critical Race Theory and the French Context
The debates in France resonate with the principles of Critical Race Theory (CRT), a legal movement that originated in the United States. CRT scholars argue that traditional anti-discrimination law often falls short because it fails to adequately address systemic racism embedded within legal structures and societal norms. They advocate for a more explicit engagement with the concept of race to mobilise law more effectively for real equality.
While the transposition of CRT to the French context is complex due to historical differences (e.g., the US's binary racial divide versus France's more intricate colonial and antisemitic history) and different concepts of citizenship (liberal in the US vs. republican in France), many of CRT's critiques are highly relevant. CRT's critique of "colorblindness" – the idea that ignoring race will lead to equality – finds a strong echo in the French republican anti-racism, which often prioritises universalism and individual equality over recognition of group differences. CRT scholars argue that formal colourblindness can perpetuate racial inequalities by ignoring the lived experiences of racialised groups.
The French debate, particularly the eliminativist stance, exemplifies the challenge of confronting racism without explicitly naming race. CRT, conversely, prescribes mobilising the concept of race for an emancipatory purpose, arguing that ignoring racial categories makes it impossible to address the specific forms of oppression and discrimination that racialised groups face. The critique from CRT suggests that the French constituent's decision, while symbolic, risks fostering a form of "racial innocence" that overlooks the persistent social construction of race and its impact on individuals' lives.
Comparative Perspectives
The French approach to 'race' in law stands in contrast to legal frameworks in other nations, particularly the United States, where 'race' is explicitly recognised and discussed in legal and administrative contexts for purposes of anti-discrimination and affirmative action. This table highlights some key differences:
| Feature | France | United States |
|---|---|---|
| Constitutional Mention of 'Race' | Removed (previously present for prohibition) | Explicitly recognised (e.g., 14th Amendment, Civil Rights Act) |
| Concept of Citizenship | Republican (universal, individual equality, assimilation) | Liberal (recognises group diversity, individual rights within groups) |
| Approach to Discrimination | Emphasis on individual, universal equality; 'colourblindness' often preferred | Explicit recognition of racial discrimination; affirmative action often used |
| Data Collection on Race | Generally prohibited in official statistics | Common in official statistics for monitoring inequality |
Frequently Asked Questions (FAQs)
When was the proposal to remove 'race' from the French Constitution deposited?
The constitutional bill proposing the removal of the word 'race' from Article 1 of the Constitution was formally deposited on Thursday, 8 July 2021. However, the National Assembly had already voted in favour of such an amendment on 12 July 2018, which was a significant step in the process.
Biologically, the scientific consensus is that distinct human races do not exist. Genetic research shows that human genetic variation is continuous and that traditional racial categories are not supported by biological evidence. In contrast, the social construct of race refers to the idea that 'race' is a concept created by societies to categorise people based on perceived physical differences, often leading to social hierarchies, power imbalances, and discrimination. While not biologically real, these social constructs have very real consequences for individuals and groups.
Why did some legal experts and activists argue against removing the word 'race'?
Critics argued that simply removing the word 'race' from the Constitution might not eliminate racism itself. They contend that racism can persist and manifest through other terms (like 'origin', 'culture', or 'ethnicity') and that a clear legal term for 'race' is necessary to identify, prosecute, and combat specific forms of racial discrimination, particularly systemic racism. They feared it could weaken legal tools for addressing the social reality of racialised experiences.
How does this debate relate to Critical Race Theory?
Critical Race Theory (CRT) suggests that legal systems can perpetuate racial inequality even in the absence of explicit racist laws. CRT scholars argue against 'colourblind' approaches, asserting that ignoring race makes it impossible to address the unique challenges faced by racialised groups. In the French context, CRT's insights highlight the potential pitfalls of removing the word 'race' without sufficiently acknowledging and addressing the ongoing social construction of race and its impact on discrimination.
Conclusion
The decision to remove the word 'race' from Article 1 of the French Constitution represents a significant symbolic and legal gesture. It reflects a national desire to move beyond a concept historically associated with division and oppression, aligning the fundamental law with contemporary scientific understanding of human unity. However, as the extensive debates surrounding this change reveal, the eradication of a word does not automatically dismantle the complex structures of racism and discrimination that persist in society.
The tension between the eliminativist aspiration and the socio-constructivist reality of race highlights a continuing challenge. While the intent to combat racism is clear, the effectiveness of this particular measure remains a subject of ongoing discussion. For many, the true fight against discrimination requires not just the removal of problematic terminology but a deeper engagement with how racialisation operates in practice, ensuring that legal frameworks remain robust enough to address and redress the lived experiences of inequality, regardless of the words used to describe them.
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