Rassialisierte Differenz im antirassistischen Rechtsstaat - 10.1628/aoer-2021-0004 - Mohr Siebeck
Rechtswissenschaft

Doris Liebscher

Rassialisierte Differenz im antirassistischen Rechtsstaat

Zu Genealogie und Verfasstheit von Rasse als gleichheitsrechtlicher Kategorie in Artikel 3 Absatz 3 Satz 1 Grundgesetz – und zu den Vorteilen einer postkategorialen Alternative

Jahrgang 146 () / Heft 1, S. 87-129 (43)
Publiziert 06.09.2021

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Racist discrimination is a problem – and Germany is no exception. In response, Article 3 (3) 1 Basic Law prohibits discrimination »because of one's race.« But what is meant by »race«? And which arguments support and oppose replacing it with the terms »racist discrimination,« »racial grounds,« or »ethnic origin,« as is currently being discussed? In order to answer that question, this article analyzes the genealogy and meanings of the term race in international and supranational anti-discrimination law as well as in German case law and literature. Since the end of World War II, principles of non-discrimination have been codified internationally, for example, in the Universal Declaration of Human Rights, the European Convention on Human Rights, and the UN Convention on Racism. From the outset, the use of the term race and its definitions were discussed controversially. Since the adoption of the EU-Anti-Racism Directive RL 43 / 2000 / EC in 2000, the debate has intensified. While there is international agreement that the concept of race emerged from a global history of colonial racism and antisemitism, there is no coherent international legal definition of the term. Especially in the European context, the use of race as a legal category is increasingly contested, leading to its substitution by other terms, such as ethnicity. In the application of antidiscrimination law either based on race or ethnicity, judges and jurists often focus on common ancestry, or tradition, of the victims of discrimination. This focus is problematic, as it reproduces and naturalizes socially produced inequality, rather than overcoming essentialist categorizations. This problem becomes particularly clear by analyzing the genealogy and legal interpretation of race in Article 3 (3) 1 Basic Law. The analysis reveals patterns of continuous racist knowledge extending into the present; even today, legal decisions and publications are not entirely free of racist terms and conceptualizations. At the same time, however, there is an increasing understanding that race is neither a fixed biological or cultural characteristic, but rather a social attribution deriving from historical inequalities and resulting in structural disadvantage. In line with this materialist approach, the article ends by arguing (1) for the post-categorical formulation »racist discrimination« in Article 3 (3) 1 Basic Law, (2) for a broad interpretation of racist discrimination, in a way that encompasses biologist manifestations as well as culturalized articulations of racism and antisemitism, and (3) for an interdisciplinary informed juris-prudence that deduces its understanding of racist discrimination not from natural science, but from the social sciences. All things considered, amending Article 3 (3) 1 Basic Law is not a mere symbolic measure, but opens the possibility of higher jurisprudential attention to racist discrimination and, no less important, to an effective application of the law.
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