Anti-Racism Law and its Limits

By drawing upon insights of sociolegal thought, feminism and the US social context, this contribution argues that anti-racism law’s apparent ineffectiveness stems from its reliance on the inherently vague concept of “race”.  This vagueness has ultimately has numbing effects on legal practice and the law’s potential to combat racism. The contribution then suggests that anti-racism law might do better to focus on the implicit and widespread “racial common sense” regarding the nature of those targeted by racism instead. An example gleaned from the jurisprudence of Germany’s Federal Constitutional Court indicates that such an approach, while yet to be refined fully, might indeed be promising.

Introduction

Despite a proliferation of anti-racism laws over the past decades, racism seems forever on the rise. This gloomy assessment gives rise to gloomy questions. Do we expect too much of anti-racism law? Or is anti-racism law as such inherently flawed? Put differently: is the law the problem or are we – i.e. is society – the problem? Finding a definite answer to this question is impossible. Then again, finding a definite answer might not even be necessary. While tackling the elusive legal theory of American Legal Realism, Grant Gilmore once pointed out that “[i]ntellectual discussion can be made too tidy; when our categories become over-defined we lose touch with reality.” In what follows, Gilmore’s well-founded exasperation might prove to be a starting point not only for productive theorizing on elusive theories, but also on elusive social phenomena. This contribution will argue that anti-racism law’s ineffectiveness stems from its reliance on the concept of race, a reliance by virtue of which it falls prey to the concept’s inherently “blurry” nature. Seen this way, anti-racism law is perpetually tangled up in the futile endeavour of clarifying “what” lies at its core, thereby losing sight of “who” it is to protect, ultimately helping nobody. There might be a way out of this quandary, however: by substituting the abstract concept of race at its core with a reliance on society’s peculiarly specific “racial common sense” (i.e., implicit knowledge on who is usually targeted by racism), anti-racism law might gain the clarity it so desperately needs.

To make sense of this cryptic proposal, and in keeping with Gilmore’s call for a certain blurriness in intellectual discussion, it will be necessary to delve into those areas where the law and race themselves appear blurry. This contribution will hence discuss the law’s limits, the limits of race and the limits of anti-racism law before elaborating an approximative sketch of how these limits might be utilised to establish a new perspective on the question underlying anti-racism law. The contribution will conclude by illustrating how the knowledge gleaned from the study of conceptual and other limits might be applied to the German context.

Law and its limits

What is the law? Answering this question is a near-impossible task, so much so that no attempt will be made here. This contribution shall make do with an approximative and makeshift answer: “the law” is a social phenomenon that structures society in general and individual lives in particular in a myriad of ways, chiefly, however, by allocating force and meaning, i.e. determining and constituting social practices and social beliefs. This definition echoes what Christopher Tomlins has named the “of/by slogan underlying socio-legal thought: the law, by virtue of its being a social phenomenon, is “at one and the same time constitutive of and constituted by society”. Definitions of this kind are prone to criticism, notably that of conflating distinct entities to the extent they seem to disappear entirely. Such criticism is surely valid; the limited space of this submission may, however, be taken as an excuse to forgo a detailed assessment of its merits or any attempt at its refutation. What is important for now is that the “of/by slogan” is not entirely implausible as a description of the law and its place in social reality. Envisioning law as a purely autonomous, abstract entity completely divorced from anything else seems just as outdated and overly utopian as the notion of law being a mere accessory to social power seems cruel and overly dystopian.

What follows from the above? If the law is a social phenomenon that is constituted by and structures society, it only “works” to the extent that it mirrors what individuals think about themselves and others. Here, then, lie its limits: to some extent, the law depends on what is thought in the society it pertains to. What does this mean for race?

Race and its limits

What is race? A glance at relevant contemporary scholarship suggests that answering this question is no more possible than tackling that of the law’s “true nature”. Notions of human races being an objective biological feature of our reality have been refuted over the past century, and this refutation, in turn, has precluded the emergence of any stable consensus on what race and racism are. Race is held to be both an illusion and a defining feature of any social setup, unequivocally existent, albeit not in a “biological”, but rather in a “social” sense. This confusion surrounding race has understandably given rise to the conclusion that race is a “more or less vacuous concept”. To complicate things, the vacuity ascribed to race is also deemed expressive of race (and racism’s) context-bound nature. As put by the anthropologist Ann Stoler, contemporary scholarship on race insists that “that there is no single object called racism, but a plurality of racisms which are not rehearsals of one another but distinct systems of practice and belief.” Stoler’s observation exposes the dizzying status quo of race in contemporary scholarship: it seems that race has no “real” meaning but is tied up within specific systems of meaning that render it meaningless “in a specific way”.

What follows from the above? Negating the existence of race – while tempting – seems implausible; race has some kind of social existence. Any truth beyond that is, however, up for grabs. The limits of race appear to be that it has no real limits. What does this mean for anti-racism law?

Anti-racism law, its limits, and the “conceptual blurriness” of race

The brief inquiries into law and race have hinted at the problems lying at the heart of anti-racism law. Anti-racism law is tasked with combatting inequalities stemming from race. As law, it is subject to law’s limits: it is dependent upon what is thought in society. The effectiveness of anti-racism law thus depends upon what is thought about race; race, in turn, is held to be a meaningless concept. Seen this way, it is hardly surprising that anti-racism laws fail to combat racism effectively: they face the impossible task of combatting an enemy that is simultaneously existent and non-existent.

Received wisdom appears to lead contemplation on race, racism, and the law to a dead end. This need not be the end of the story, however: contemporary scholarship on race and racism also offers a modest path out of the quandary outlined above. Stoler’s observation on race and racisms implies that there is a specificity to race’s meaninglessness. As a social phenomenon that owes its existence to society’s collective belief in its existence, race might be vague, but is not necessarily “vacuous”. Put harshly and following the (famous) words of Collette Guillaumin, “[r]ace does not exist. But it does kill people. It also continues to provide the backbone of some ferocious systems of domination”, and, in both cases, is not as arbitrary as one might suspect a “vacuous concept” to be. Race doesn’t kill and dominate just anyone. There appears to be a horrid stringency that implies some palpable notion of race on part of the respective perpetrators. Race is a blurry concept: it appears without clear contours when seen up close, but when seen from afar it seems to present a clear image, nonetheless. When acknowledged as such, this “conceptual blurriness” of race might offer a means for strengthening anti-racism law.

Contemplating the “conceptual blurriness” of race: not “what”, but “who”

How can the notion of “conceptual blurriness” help strengthen anti-racism law? The answer is counterintuitive: by rephrasing one of the main questions underlying anti-racism law. If anti-racism law is primarily tasked with combatting certain injustices, it has to ask “what” distinguishes these injustices from others that might be equally deplorable but society has chosen to live with: race. If, however, the conceptual blurriness of race teaches us that knowing “what” race is appears to be of lesser importance for determining “who” is targeted on account of race, it seems fair to assume that knowing “what” race is might be of lesser importance for determining who needs anti-racism law’s protection. The rephrasing inherent in this shift of perspectives is not new: Lorna Finlayson has proposed a similar shift regarding feminism’s struggle in determining “what” women are: “we shouldn’t be too intimidated by this kind of fancy analytic footwork, I think. We have a pretty good idea, as a society and as individuals, who women are. After all, how else would we know who to subordinate?” The insight into the conceptual blurriness of race presumes that regardless of race’s ontological status, some knowledge of race is always present in society, and this knowledge seems to translate into tangible action affecting specific persons and groups in a specific way. If anti-racism law wants to protect these persons and groups, it would hence do well to focus on “knowing who”. But how?

At this point, a brief comparative view might help. In a sweeping study on race and ethnicity in US sociology, German sociologist Matthias Bös discusses the second edition of Michael Omi and Howard Winant’s classic “Racial Formation in the United States”. One conclusion he draws resonates with the above. Bös notes that “Racial Formation in the United States” is remarkable because the book poignantly assesses how racism has sculpted US history without defining race at all; the implicit concept of race is, nonetheless, “intuitively obvious, since – as the authors themselves emphasise – it forms a central part of every American’s self-definition” (own translation). A key means of rendering this self-definition – i.e. the “who” – visible is by asking those concerned what they identify as, i.e. by collating antidiscrimination data. It is thus hardly surprising that the United States regularly produces census data that seems to paint a viable demographic picture. While this approach comes with a host of related questions of a methodological, legal and ethical nature that cannot be discussed here, it seems plausible. If one wants to know who is targeted by racism in order to unravelling society’s perspectives on race, what better way than to ask? Census data and quantitative empirical research specifically asking for self-identification in racial terms could yield information on the composition of the population that may, in turn, be correlated with relevant socioeconomic and public health data to indicate just who is situated where in society and, in the process, render visible society’s “racial common sense”.

Conclusion

The winding thoughts presented on the issue of race, the law and anti-racism law have now come full circle. I began by considering the law’s limits: being “constitutive of and constituted by society”, law’s potential to structure thoughts and conduct is limited by what society thinks and does. This limit is put to the test by race, a concept that is notoriously difficult to grasp, appearing not to exist at all while being a fixture in society all the same. The challenge faced by anti-racism law is obvious: how should it, as law, tackle a social phenomenon that appears to lack any tangible meaning? I have argued that race might indeed be vague, but not vacuous. Society might not know what to think of race, but it does know who to target on account of race. Race is a blurry concept, without meaning from up close, but vague and somewhat discernible from afar. Anti-racism law hence might do well to ask who needs its protection. Answers to this question might be found in census data and/or quantitative empirical research.

What does this approach mean for the German context? A sketch of relevant implications may comfortably allude to Germany’s Federal Constitutional Court and recent developments in research on racism in Germany. In 2020 the Court, inter alia, had to assess if addressing a Black man with sounds reminiscent of primates is racist and did so without referring to race. Instead of discussing race, to what extent Black people constitute a race and then getting caught up in in race’s vacuity and questions of its (non-)existence, the Court simply relied on our implicit knowledge not of race, but of race’s “who”. It examined the insult’s addressee, drew upon the “racial common sense” that black people are frequently targeted for racial abuse, particularly (as is reliably demonstrated in association football) by being likened to primates. In other words: gaining a deeper understanding of which persons are generally deemed targets for racial discrimination can make meaningful efforts in combatting racial discrimination possible without subjecting these efforts to the numbing effect of race’s “fancy analytic footwork”. It is, thus, particularly promising that there is currently a surge of interest in quantitative empirical research on matters of racism in Germany that is also beginning to tackle issues of identification and the composition of the population. Insights gleaned here could lead to results that might be incorporated in legal reasoning in anti-racism law, for example as part of a test geared towards determining cases of discrimination.

The suggestion above could be rebutted as an overt acknowledgement of defeat in face of race’s uncertainty that is unbefitting of the law’s function as a supreme organiser and sculptor of all things social. American Legal Realism and Critical Legal Studies have, however, elaborately pointed out that the law is forever meddling in uncertainty, not in the least because it embodies that uncertainty in its attempt to make sense of and structure social reality. The “conceptual blurriness” of race teaches us that if this uncertainty is inevitable, we might as well embrace it.

The author would like to thank Professor Thoko Kaime for the invitation to participate in this symposium as well as Professor Payandeh for valuable comments.