The first article of the French Constitution, written in 1958, asserts that France “shall ensure the equality of all citizens before the law, without distinction of origin, race or religion”. Recently the Socialist Party (PS) candidate for the presidential election François Hollande announced that if elected he will seek to get the Constitution changed in an attempt to fight racism. “There is no place in the [French] Republic for race,” Hollande told a meeting in Paris on 10th March. “And that is why the day after the presidential election I will ask Parliament to remove the word race from our Constitution.”
But according to Danièle Lochak, emeritus professor of public law at Paris-Ouest-Nanterre-La Défense University, this symbolic proposal results from a misreading of the constitution, which she says does not put forward the idea that different races exist – but rather that racism exists. Lochak, a former president and member of the immigration rights organisation GISTI and an activist for the human rights body the Ligue des droits de l'homme, also points out that the word “race” is enshrined in numerous European and texts to which France is a signatory, and that in no circumstances can removing the word be a substitute for a genuine policy of fighting against discrimination.
In this interview with Mediapart's Carine Fouteau, she details her reasoning.
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Mediapart: Doesn't banning discrimination based on race amount to affirming indirectly that “races” exist?
Danièle Lochak: No, it does not affirm that races exist but amounts to an acknowledgement that racism exists. It is about discrediting the comments and behaviour of those who think not only that “races” exist but that there exists between them a hierarchy that justifies discrimination in the enjoyment of fundamental rights.
In proclaiming “the equality of all citizens before the law, without distinction of origin, race or religion” the 1958 Constitution merely reproduced the terminology of the Preamble of [the]1946 [Constitution] which started with this phrase: “After victory won by free peoples over regimes that had tried to enslave and to degrade the individual, the French people declare once more that all human beings, without distinction of race, religion or beliefs, have inalienable and sacred rights.”
The context in which the reference to “race” appears leaves no ambiguity as to its target of denunciation. It is true, however, that these words are not neutral, that they can have a legitimising effect. If the prohibition of racial discrimination is a way of solemnly demonstrating that certain acts are unacceptable because they are contrary to fundamental values in our society, is there not a risk that this objective might be thwarted by the very recognition that using the word “race” in such texts confers?
It is clear that, today, we would not express the prohibition in the same way as back then. Not in France, at any rate, for in other countries that are just as actively engaged in the fight against racism there is not the same reticence in using terms that here in France smack of heresy. For example, Great Britain had no reluctance in creating a “Race Relations Act”. But you cannot rewrite history.
Mediapart: Parliamentary debates have been held on this subject. Can you outline what happened?
D. L.: A proposed law put forward by the communist and republication group at the National Assembly in 2003 called for “the removal of the word 'race' from French legislation” but the authors added “we have decided not to propose a modification of the Preamble of the 1946 Constitution and of the 1958 Constitution,which are the founding texts of our Republic and which have, as a result, an historic value”.
The following year socialist MPs proposed a constitutional law change which this time, on the contrary, intended to remove the word “race” from Article 1 of the Constitution – it's this proposal that François Hollande has taken up today. But what good is it removing the word from the 1958 Constitution if you keep it in the 1946 Preamble which, in the same way as the 1958 Constitution, is part of substantive French law?
It seems more reasonable to understand – and thus accept – the presence of the word “race” in the 1946 Preamble and its re-use in the 1958 Constitution as “memories of a tragic history” and “witnesses of past tragedies”.
Mediapart: At which point did “race” become a legal concept?
D.L.: “Race” became a legal concept from the moment that the law integrated it into its vocabulary and attached legal consequences to it. Paradoxically, at the time of colonialism legislation did not make official reference to it, though the distinction between Europeans and indigenous people, enshrined in the law, amounted to an implicit division of human groups into races and in this context racism found fertile ground in which to develop.
It was in 1939 that you see the first explicit appearance of the word in French legislation, with the Marchandeau legal decree that clamped down on defamation in the press aimed at “a group of persons belonging by origin to a given race or religion” with intent to excite hatred between citizens or residents.
In this case you can see that the term “race” is used in the manner of a denial, in the context of preventing hateful comments. But a year and a half later, having repealed the Marchandeau legal decree, the Vichy regime enacted the statue on Jews that defined a Jew as an individual belonging to the “Jewish race”. Here “race” is seen as a legal category, as it led to the application of specific rules – in this case humiliating, discriminatory and confiscatory.
Mediapart: How did the meaning of the concept evolve?
D.L.: The texts which, immediately after the war, both at a national and international level, proscribed discrimination based on “race” must thus be interpreted as a reaction against Nazism and those regimes which, like that of Vichy, followed in its path. The preamble of the 1946 text is in this respect in harmony with the Universal Declaration of Human Rights which states that everyone is entitled to the rights that it sets out “without distinction of any kind, such as race, colour... religion", a formula of words that would be taken up by all the great international conventions relating to human rights.
The post-war general declarations were gradually supplemented by more precise texts. At an international level the Convention relating to the elimination of all forms of racial discrimination was adopted in 1965, and it defined racial discrimination as that which was based “on race, colour, ancestry or national or ethnic origin”. At national level the law of July 1st, 1972 against racism criminalised racist behaviour: discriminatory comments or acts relating to a person or a group of people “by reason of their origin or their belonging or not belonging to a given ethnic group, a nation, a race or religion”.
Later the law of January 6th, 1978 on information technology and freedom banned the idea of collecting and storing information that reveal directly or indirectly the “racial origins” of people on file. The Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, adopted in 1981 by the Council of Europe, contains an analogous formulation concerning “personal data revealing racial origin”.
Mediapart: When did the most recent examples of legislation take place?
D.L.: The outlawing of racial discrimination reached the world of work; the law of December 31st, 1992 bans all disciplinary action, sackings or refusal to employ based on a person's origin, membership of an ethnic group, nationality, race or religion. The codes of practice for health professionals also contain sections reminding members that they must offer care to everyone “whatever their origin, their membership or non-membership of an ethnic group, nationality, race or religion”.
Though they have been modified the criminal law and the law relating to the workplace continue to make reference to “race”. The current wording, which talks now about the membership or non-membership, real or supposed, of an ethnic group, a nationality, a race or a religion, is undoubtedly better as it takes account of the subjective belief of the person who discriminates and acts “as if” races existed.
Mediapart: What term could be used instead of “race”?
D.L.: If you really decided to get rid of the term “race” from the Constitution, the only acceptable solution would be not to replace it. Otherwise, the alternative term that one immediately thinks of is “ethnic group”. In fact you can see that, because of the awareness of the problems that using the word race gives, there has been a tendency in recent wording to substitute the words race or racial origin with terms that, rightly or wrongly, seem less controversial, such as ethnic group or ethnic origin.
For example, the law of July 13th, 1983 on the right and duties of public servants reminds people of the ban on making any distinction between public servants by reason of their “belonging to an ethnic group” and makes no reference to race.
Mediapart: What's at stake politically and legally in this debate?
D.L.: I think that the objective is purely symbolic – not to say just for show. For even if you do reach the point of removing the word not just from the Constitution but also from all the national law previously cited, it would remain in the international and European texts to which France is party and by which it is bound.
The word features in article 10 of the Treaty on the functioning of the European Union which states that "in the laying out and putting into action of its policies and actions, the Union seeks to fight against any discrimination based on...race or ethnic origin". The Charter of Fundamental Rights of the European Union also, in article 21, outlaws “any discrimination based on any ground such as ... race, colour, ethnic or social origin...”. In particular there is the EU directive of June 21st, 2000 relating to putting into practice the principle of equality of treatment between people regardless of race or ethnic origin...a measure known as the “race directive”!
However, in the legal reasoning in this directive the authors have taken care to point out that “the European Union rejects theories which attempt to determine the existence of separate human races. The use of the term 'racial origin' in this Directive does not imply an acceptance of such theories”.
So it would hardly make sense to remove the word “race” from the French Constitution without removing it, too, from all legislation. Should we also have to rechristen the fight against “racial” discrimination that was proclaimed as a “great national cause” in 2002? Doesn't proposing the removal of the word “race” from the French Constitution amount to a form of “political correctness” which can give the illusion that one is doing something when in fact it is illusory to think that it could contribute to getting rid of racism?
It would be better to devote one's time and energy to putting into place a real policy of combating racial discrimination.