Race (French Constitution)

The term '' race'' as used in Article One of the French Constitution, which states that France "ensures equality for all citizens without distinction of origin, race, or religion", has been the subject of numerous challenges from across the political spectrum. Nevertheless, no amendments to this wording have been successful since the 2000s.

One challenge arises because the noun ''race'' is not defined in official texts and has taken on many meanings in French. It is a common term, a technical term in the natural sciences, a pseudo-concept in racist discourse, a reference to The Holocaust, and a sociological and legal tool. The proposed removal of the term from the Constitution—and more broadly from French criminal law—is driven by a desire to erase the legitimizing effect that mentioning race confers to the concept. However, this removal also risks weakening the denunciation of racism.

In France, this debate has been a significant point of contention among anti-racist activists and political figures for decades. Arguments for and against removing the term from the Constitution have persisted since the early 1990s, and the discussions are often highly charged. Some have criticized the word ''race'' for its historical connotations or its evocation of a supposed biological reality that has been disproven by scientific evidence. In contrast, others have employed the term in its sociological sense, emphasizing its utility in combating racism.

Origin of the text

The phrase "without distinction of race" was originally located in the first paragraph of . It was later relocated to by the constitutional amendment of 4 August 1995.

The term ''race'' was not included in the preliminary draft of 29 July 1958, adopted by the government and drafted under the authority of General de Gaulle and the Minister of Justice, Michel Debré. However, the Council of Ministers incorporated it into the final draft on 3 September, possibly as a last-minute addition to circumvent potential controversy surrounding its absence. The identity of the minister who proposed this modification remains uncertain.

The 1946 Constitution only used the word ''race'' in the first sentence of its preamble: "…the French people proclaim again that every human being, without distinction of race, religion, or belief, possesses inalienable and sacred rights." This sentence was added by the Constitutional Commission chaired by socialist André Philip, and the wording of the first paragraph was adopted by a show of hands on 28 August 1946, without anyone in the Assembly perceiving it as anything other than a condemnation of racism. A few months earlier, in the April 1946 draft prepared in March, three attempts to include ''race'' or ''racial discrimination'' had been rejected.

Article 1 of the Declaration of the Rights of Man and of the Citizen of 1789, which constitutes part of the constitutional framework, states that "men are born and remain free and equal in rights" and that "social distinctions may only be based on common utility." This assertion was in contradiction with the continued practice of slavery, which was not abolished until 1794 and definitively in 1848. Some members of the Assembly were concerned that questioning slavery and the slave trade would result in the collapse of the kingdom and a return to the Ancien régime.

Semantic analyses

From a linguistic standpoint, the wording of Article One is open to interpretation. It can be interpreted as "some classify humanity into races; French law does not recognize this classification", or "There are races, but the French Republic does not consider them in its treatment of citizens." The positioning of the word ''race'' within the list of origin/race/religion lends implicit validation to the existence of such races. This closed list affords significant weight to each of the three terms.

The term ''race'' was included in this list when the notion was widely accepted as a biological reality. It is juxtaposed with religion, which is not of the same nature, because, unlike differences in political opinions or languages, race and religion are frequently the basis for discrimination.

According to Arthur Joyeux, the phrase "without distinction of..." does not clarify the meaning of the sentence, as its beginning already states that it concerns "every human being." It merely emphasizes opposition to the decisions made by the Vichy regime.

Early reservations

As early as 1950, shortly after the adoption of the Universal Declaration of Human Rights on 10 December 1948—which mentions ''race'' twiceUniversal Declaration of Human Rights: "Everyone is entitled to all the rights and freedoms outlined in this Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status. (Article 2) From the marriageable age, men and women, without any restriction based on race, nationality, or religion, have the right to marry and found a family. They have equal rights concerning marriage, during marriage, and at its dissolution. (Article 16)"—UNESCO experts argued that "the serious errors caused by the use f this wordin common language make it desirable to abandon this term when applied to the human species." They recommended using "ethnic groups" instead, although this term is equally difficult to define.

In France, the complete elimination of the term ''race'' from legal texts became the subject of public debate from 1990 onwards, with the publication of the implementing decree for the Data Protection and Liberties Law :Article 31 of : "It is prohibited to store or retain in computerized memory, unless the person concerned expressly agrees, nominative data that directly or indirectly reveal racial origins, political, philosophical, or religious opinions, or trade union affiliations of individuals." the legislation permitted judicial and administrative authorities to retain data that revealed an individual's "racial origins." The term ''race'' was further discredited by the resurgence of the concept of "ethnic cleansing" during the Bosnian War and by the rediscovery of the " Jewish file" in Fontenay-sous-Bois.

The debate regularly resurfaced in Parliament from the early 2000s.

Historico-legal background

The question of removing the concept of race from the Constitution inevitably gives rise to the issue of amending the entire body of legislation, particularly criminal law. The term ''race'' first emerged in French legislation in 1928 and subsequently in the period preceding World War II. It was subsequently employed by proponents and opponents of racist theories. To emphasize that the concept of the human race is biologically irrelevant, the term has been gradually replaced in anti-racist legislation by expressions such as "true or supposed race" or "so-called race."

The term ''race'', which had long been absent from French legal vocabulary, first appeared in the Journal Officiel with the decree of 8 November 1928. Decree of 8 November 1928:

Article 1: "Any individual born on the territory of Indochina, of parents, one of whom remains legally unknown, is presumed to be of French race, and may, by the provisions of this decree, obtain recognition of French nationality."

Article 2: "The presumption that the father or mother, who remains legally unknown, is of French origin and race may be established by all means. The main elements of assessment are the name borne by the child, the fact that they have received a French education, training, and culture, and their position in society." This was even though the concept of race had been present in French society for centuries. The decree permitted the naturalization of children born in Indochina to a French father who had not acknowledged them and an indigenous mother, contingent upon the presentation of evidence in court substantiating their affiliation with the "French race." This designation encompassed both biological and cultural criteria. To substantiate their claim to "Frenchness", legal experts considered a range of physical characteristics, including skin pigmentation, as well as cultural attributes such as politeness, participation in sports, and preferences for coastal or mountainous locales.

The term ''race'' was subsequently employed in the , Official Journal, 25 April 1939, p. 5295: "No reason based on race or religion can disrupt the equality of citizens; no exception arising from a hereditary circumstance can affect, concerning any one of them, the feeling of fraternity that unites all members of the French family (Report to the President of the French Republic). Article 1: Articles 32 and 33 of the law of July 29, 1881 on press freedom are amended as follows: Article 32: Defamation ..committed against a group of people ..who belong, by their origin, to a particular race or religion, shall be punished." of 21 April 1939, which were designed to restrict Nazi propaganda by imposing penalties on defamation in the press against "a group of persons belonging by their origin to a particular race or religion with the intent of inciting hatred among citizens." The explanatory text for this decree indicated that race or religion was to be understood based on origin ("a hereditary circumstance").

The Vichy regime revoked the Marchandeau decrees and enacted the law that established the "status of Jews." This law employed the term ''race'' to implement antisemitic policies by defining the criteria for belonging to the "Jewish race."

The inclusion of the phrase "without distinction of race" in the preamble of the 1946 Constitution and later in the 1958 Constitution was a direct response to the racial theories that had been used to justify the Holocaust and which had underpinned Nazism.

The legislation enacted on 1 July 1972, which was designed to combat racism, prohibited the consideration of an individual's racial identity. This prohibition was not intended to establish an objective or official definition of race; rather, it was intended to prevent the targeting of specific groups of people based on their racial identity. Consequently, the assertion that "races" are inherently unequal, as Jean-Marie Le Pen said in 1996, remains a valid position.

By the late 1970s, the scientific community had reached a consensus that the concept of race is irrelevant when applied to the human species. During the trial of Klaus Barbie, Albert Jacquard posited that the term "human race" is devoid of meaning, as it is impossible to define races without falling into complete scientific arbitrariness.

The term "belonging, true or supposed, to a race" was introduced into French legislation on 7 June 1977, as a complement to the 1972 law. Nevertheless, the Gayssot Law of 13 July 1990, proscribed "any discrimination based on belonging or not belonging to an ethnic group, nation, race, or religion."Similarly, the introduced in 1982 in the Labor Code a provision prohibiting the sanctioning or dismissal of an employee "on the grounds of their origin ��or their belonging to an ethnicity, nation, or race" (Article L. 122-45). The law of 13 July 1983, regarding the rights and obligations of civil servants reiterates the prohibition against making distinctions between civil servants "on the grounds of their opinions ��or their ethnic affiliation." The expression "true or supposed race" was only generalized after the 1994 criminal code reform led by Robert Badinter. Clémence Lavigne posited that the adjective "true" introduced ambiguity and should be removed. Bernard Herszberg, a representative of the association Galilée 90, which advocates for the removal of the word ''race'' from the Constitution, expressed regret that the formulation "belonging ��to a particular race"—whether "true or supposed"—relativized the notion of belonging without affecting the race itself.

In a 2007 ruling on the , the Constitutional Council stated that the prohibition on distinctions outlined in Article One of the Constitution barred the collection of statistical data based on "ethnic origin or race", even for research purposes.

The expression "so-called race", which underscores the notion that "races" are a mere construct and that it is not French lawmakers who invoke the concept of "race", but rather those who espouse racist ideologies, has been used in Belgian legislation since 2003. However, it was only in 2016 that this terminology was introduced in French legislation. (dissolution of associations), Penal Code (in 2016 for the article on discrimination, in 2017 for "hate crimes" and non-public hate speech), the 2008 transversal anti-discrimination law (in 2016) and the Labor Code (in 2017).

In 2021, French anti-racist legislation was expanded to prohibit not only the consideration of so-called "race" as a basis for discrimination, but also any consideration of this so-called race, even for affirmative action.

The decree of 10 October 2023, concerning the implementation of the "Information System for Monitoring Priority Criminal Policies" (SISPoPP), authorizes the collection of "data revealing racial or ethnic origin." This authorization has prompted several unions and associations to petition the Council of State to ban the system.

Arguments pro and con

Since the 1990s, a number of proposals have been put forth to remove the term ''race'' from either all legislative texts or solely from Article One of the Constitution. An examination of the proceedings of a 1992 symposium dedicated to this issue reveals that the arguments and counterarguments presented have remained largely unchanged. While there is a consensus that the negative connotations associated with the term ''race'' should be condemned, there is also a recognition that the removal of the term could potentially have the unintended consequence of undermining anti-racist efforts.

Historical

Public law professor Gwénaële Calvès notes the pervasiveness of historical references in discussions surrounding the removal of the term ''race'' from legal discourse. , the president of LICRA since 2017, articulated in 2018 that the term ''race'' should be eliminated from the legal framework, emphasizing that its presence in the Constitution reflects a historical era when its usage was prevalent. The Constitution was drafted during a period when racial distinctions were widely accepted as factual.

Magali Bessone offers a counterargument, proposing that racism persists because it is not merely an issue of outdated concepts and values. Calvès asserts that the historical argument is inadequate for justifying a revision of Article 1, as it is evident that the term is not employed in its genocidal sense within the French law context. In contrast to the Vichy regime, where race was defined in legal texts, it is currently used in a context of negation. Legal scholar Clémence Lavigne posits that this usage implies that lawmakers do not recognize any classification of humanity into different races.

Biological

This argument posits that, since the scientific validity of the concept of the human race has been refuted, using the word race in the Constitution creates a contradiction between law and science that must be resolved.

A variation of this argument seeks to align the Constitution with a fundamental anthropological truth:

In contrast, the drafters of the 1972 law on combating racism (commonly, though inaccurately, referred to as the ''Pleven Law''

*
* ) — initiated to align French legislation with the International Convention on the Elimination of All Forms of Racial Discrimination — and the Gayssot Law (1990) asserted that the law must provide the means to combat racism precisely because race does not exist.

Some legal scholars posit that the law does not merely reflect reality; rather, it is the law that creates the world, particularly through fundamental principles such as the declaration that "all men are born and remain free and equal in rights." It is therefore imperative that the discourses of science and law be kept distinct: racism is not penalized because it is a false theory, but rather because it is deemed inimical to the democratic values enshrined in the Constitution. Geneticist Albert Jacquard also posits that "the issue of racism is not a scientific problem but a philosophical and moral challenge." Furthermore, he asserts that the scientific evidence disproving the existence of biological races is unlikely to persuade those who perceive differences in others daily. Jacquard adds that biology cannot provide a scientific foundation for the philosophical conviction of equal human dignity.

Moreover, the possibility of essentializing the concept of race persists, including in scientific literature. Many researchers caution that relying on biological arguments is a double-edged sword. If new scientific discoveries were to validate the notion of "biological race", it would challenge the notion that racism must be repressed on the grounds of its falsehood.

Pedagogical

In 2013, communist deputy François Asensi addressed the National Assembly, explaining that the presence of the word in the law contributes to "normalizing its use, even among the youngest of our citizens," and gives "racist discourse form of legitimization."

As posited by Gwénaële Calvès, the notion that racism is correlated with a dearth of knowledge regarding scientific advancement may have been a pivotal factor in the discussions that culminated in the criminalization of in 1990.

Symbolic

This argument posits that the reformulation is performative, whereby the act of removing the term ''race'' from the equation is an explicit expression of equality among all citizens.

In contrast, philosopher Étienne Balibar posits that the symbol would be negative. He encourages consideration of the implications of a potential constitutional amendment in France that would remove the existing stipulation of equality before the law without distinction of race. Such a move, he argues, would symbolically eliminate a significant expression and condemnation of discrimination, as well as one of the key means of resisting its institutionalization. Constitutionalist posits that the removal of a word from our Constitution, which was originally introduced in reaction to Nazism and to condemn racial discrimination in the constitutions of all states and all international human rights treaties, would inevitably be interpreted in a manner contrary to the intentions of its proponents.

Regarding the aspiration of the expressivist interpretation of the law, political theory professor Cécile Laborde posits that "the crucial point is not what the government intends to convey, nor how citizens subjectively perceive the messages, but rather whether the government's messages objectively reflect appropriate attitudes towards citizens." In the context of Critical race theory, many scholars in France and the United States argue that eliminating race is an act of ignorance and the disqualification of situated knowledge, rather than a gesture of emancipation. They contend that the act of "naming race" (in its constructivist sense) most clearly expresses anti-racism. They further assert that removing the word means refusing to take the perspective of those concerned and risks erasing the trace of their discrimination.

Universalist

The elimination of the term is consistent with France's " color-blind" policy, which is based on the that combating racism necessitates the elimination of all attention to racial criteria.

, the president of the LICRA, posits that the removal of the term ''race'' would assist in "countering those who endeavor to suggest the existence of a form of 'state racism' in France by citing Article 1 of our Constitution." He further posits that this is particularly crucial at a juncture when "identity-based threats" are giving rise to a resurgence of "neo-colonial" discourse, thereby reinvigorating the very concept of "race" and its attendant terminology, including "racialized workshops", "racially segregated union training", and "racial whiteness."

Legal scholar offers a contrasting perspective, proposing that universalism should be conceptualized not as a preexisting state, but as a goal to be pursued. She posits that universalism must be constructed upon accepting plural identities, rather than their negation. Lochak asserts that attempts to erase the concept of race are akin to a form of political correctness that creates the impression of action while failing to address the underlying issues. She situates herself within the ongoing discourse between those who advocate for a universalist anti-racism approach, which some critics have labeled as "moral", and those who favor a political anti-racism stance, which others have characterized as "identity-based." Lochak also cautions against the phenomenon of "reverse essentialism", which she believes risks confining individuals to fixed and exclusive identities.

Sociological

The assertion that " human races do not exist" is predicated on a naturalistic interpretation of the concept, while simultaneously disregarding its socio-constructivist interpretation, which has been the dominant paradigm in French social sciences since the seminal work of sociologist Colette Guillaumin. Despite the lack of biological legitimacy attributed to race, it is a social construct and a social reality. Contemporary sociologists employ the concepts of racialization and racialism to describe race, emphasizing the racist process of othering.

In this context, the term ''race'' is widely used in the social sciences to describe a "powerful imaginary category" that serves to justify social hierarchies. and Pierre Fiala posit that "the imaginary race has real effects in social practices, and Article 2 of the Constitution denies any legal validity to this imaginary race." Philosopher Chantal Delsol further asserts that "the law must not ignore social reality; it must account for even invented or irrational differences, especially those that matter."

Historian Pap Ndiaye defends the retention of the term ''race'' in the Constitution, emphasizing that the use of the racial category does not imply a questionable ontological commitment by legislators or scholars to the existence of "races." Rather, he asserts, it is a pragmatic use of a situated category to describe discriminatory phenomena.

Pragmatic

Many commentators have drawn attention to the potential risks associated with the weakening of anti-racist legislation if the term ''race'' is removed. These include constitutional scholar , law professors and , philosopher Éric Deschavanne, and historian Pap Ndiaye, who, in 2018, expressed opposition to the removal of the controversial term from Article 1, arguing that it would represent "one of those grand legislative gestures full of good intentions but with negative consequences."

Philosopher Pierre-André Taguieff characterizes the removal as a "symbolic victory", suggesting that it would also necessitate the removal of derivative terms like "racist", which could be interpreted as implying that racial discrimination is no longer prohibited. In 2013, Dominique Baudis, then the Defender of Rights, was consulted regarding a proposal to eliminate the concept of race from French legislation. He acknowledged the symbolic value of the project but expressed concern about its practical consequences. Similarly, philosopher Antonia Soulez warns that "the explicit denial, especially in a constitutional text, has the effective force of a stance against race as a criterion." She further states that "if the denial disappears, along with the word 'race,' the Constitution will no longer respond when, in the face of resurgent racism, it is needed."

Nevertheless, some scholars contend that the legal framework would remain robust even if race were removed from Article 1. In 1992, constitutional scholar Olivier Duhamel posited that incorporating a "rejection of racism" into the Constitution would permit the exclusion of race without compromising the efficacy of anti-racist legislation. In 2018, Minister of Justice Nicole Belloubet underscored the multitude of legal safeguards enshrined in the 1958 Constitution, which cites the 1946 Constitution and the 1789 Declaration of the Rights of Man and the Citizen, both of which are integral to the constitutional block. Nevertheless, Magali Bessone observes that Belloubet's remarks indicate that race is not an inherently antiquated category but rather a crucial legal instrument. Conversely, Françoise Vergès posits that the 1946 Constitution's preamble, which has never been invoked to challenge racial discrimination before the Constitutional Council, does not afford the same protection against racism as Article 1 of the 1958 Constitution.

Attempts to remove the word

Legislative

Since 2002, at least ten legislative initiatives have been proposed to remove the term ''race'' from the French Constitution or penal code. Among these, one may cite a bill passed by the National Assembly in 2013 but never debated in the Senate, as well as a constitutional revision abandoned in 2018.

In November 2002, during the review of the constitutional bill on the decentralized organization of the Republic, Socialist Victorin Lurel proposed an amendment to remove the reference to race from the Constitution. This proposal was rejected by the UMP group. In March 2003, Communist deputy Michel Vaxès proposed an amendment to replace the terms ''race'' and ''racial'' in French legislation with "ethnicity" and "ethnic." However, the right-wing majority rejected this amendment, arguing that it would weaken the requirement to combat racism. In the same year, the Communist and Republican group in the National Assembly introduced a bill intending to remove the term ''race'' from French legislation. However, they specified that they had elected not to propose amendments to the preambles of the 1946 Constitution and the 1958 Constitution, which they regarded as the foundational texts of the Republic and therefore of historical significance. In 2004 and 2007, Victorin Lurel and the Socialist group once again presented a constitutional bill to eliminate the term ''race'' from Article 1 of the Constitution. Additionally, an amendment was proposed to replace the term ''race'' with "origins." These two initiatives were ultimately rejected by the National Assembly. On 15 May 2008, Arnaud Montebourg

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