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 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 [of this word] in 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." which 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.