Race and the law in the 20th century : A legal history between homeland and colony in the French and Italian empires

Falconieri Silvia, 福崎 裕子

doi:10.14989/252455

This paper will discuss the impact that legal history has been the reflections between "race" and social sciences. What does legal historical discipline tell us about the mobilization of the notion of "race"? How does legal history contributes to research in the humanities and social sciences? How can the study of the legal discourse help us to detect and to interpret the contemporary processes of racialization? I will answer these questions by focusing on the mobilization of the word "race" in different European legal systems during the 19th and 20th centuries. I will concentrate on Italian, French and German legal systems. My presentation pivots on two points : first, the legislation issued against Jews during the 1930s-1940s and, second, the colonial law on personal status of mixed race. Methodologically, my research concentrates exclusively on cases where it is possible to detect an explicit use of the word "race" in legal sources (legislation, doctrine, case-law). Legal discourse plays a key role in the creation, stabilization and fixation of racial categories within the social sciences, by giving a completely particular consistency to the "race". This paper would like to discuss the following four crucial points. 1. Firstly, "race" is a priori situated outside legal discourse, considered that each discipline has its own technical and abstract concepts. However, race is supposed to be completely absent in post-Napoleonic European law, since the idea of a single subject of law is not linked to the individual physical differences. In both the mixed-race and the Italian Anti-Jewish legislation, the notion of "race" is imported from other scientific disciplines into legal discourse. Legal scholars "have pretended" to rely on other sciences in order to justify legal racialization. 2. The introduction of "race" into the legal discourse was resulted from a selection of theories, doctrines and studies which are designed outside the law. Both scholars and legislators favored some theories over others. They deal with an empty shell and give "race" different contents in accordance to the objective and the interests of the actors. 3. The attention of legal scholars to the bodily dimension (broadly construed) of the person : the skin color, the physical features, the state of mind, the mentality, the clothes are parameters characterizing racial populations in legal discourse. In a broad sense, the body can be considered the center of imputation of the legal operations of racialization. 4. The blood law becomes the legal criterion par excellence to define the membership in a community sharing the same rights and the same obligations. When legal discourse encompasses the race-notion, the access to a normative order becomes a function of the origin and the inheritance that is of the specific characters proper to a group or to a given population. Through the use to the race, the legal discourse essentializes the enjoyment of the rights.

Race and the law in the 20th century : A legal history between homeland and colony in the French and Italian empires

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