Race in mainland European legal analysis: towards a European critical race theory

Abstract

Critical Race Theory (CRT), an American legal theory, has been known for bringing race into left-wing legal analysis and for introducing power- and domination-related arguments into more traditional civil rights scholarship. So far, continental European legal literature has barely heeded CRT. This article seeks to assess CRT's potential contribution in analysing the relationship between race and law in the European context which is characterized by the invisibilization of race and by the narrow legal view of what constitutes racism. The case of French Republican colour-blindness illustrates the European model's contradictions with regard to the (non-)use of race. Instead of eliminating race, a more race-conscious legal analysis, as proposed by CRT in the United States, better addresses the lived experience of racism by people of colour in Europe.

Keywords:

• Critical Race Theory
• race
• racism
• discrimination
• France
• colour-blindness

Notes

1. The term ‘people of colour’ refers to anyone who is perceived to be visibly different from the mainstream white, Christian European population, and not only refers to the skin colour but also includes for example Muslim women wearing the headscarf. The Canadian term ‘visible minorities’ could also be used in this context.

2. The United Kingdom and Ireland's different approach to race is also the reason why these two countries are distinguished from continental Europe and not considered in this article.

3. Similar disclaimers are almost a must for (continental) scholars writing on race and ethnicity if they want to avoid being accused of racism.

4. Corte di assise di appello di Milano, 2 November 2010.

5. Cour d'Assises du Rhône, 29 January 2009.

6. Les Cahiers du Conseil constitutionnel, 2008, no. 24, p. 13.

7. Recourse to the Cour de cassation on file with the author.

8. Cour de cassation, décision de non-admission, pourvoi no. G 03-87.649, 11 May 2004.

9. Intersectionality theory's main critique is that anti-discrimination law and social movements tend to focus on single grounds of discrimination, thus ignoring how these categories often tend to intersect and get compounded in veritable systems of oppression.