The Legal Construction of the Notion of Anti-White Racism in France

in French Politics, Culture & Society
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  • 1 Legal Studies Department, Central European University, Vienna, Austria moschelm@ceu.edu

Abstract

This article focuses on the legal construction of the notion of anti-White racism in France. By analyzing cases litigated under criminal law, it describes how a right-wing NGO has been promoting this notion via a litigation strategy since the late 1980s, initially with only limited success. Public debates in mainstream media in the 2000s and intervention by more traditional antiracist NGOs in courts have since contributed to a creeping acceptance of anti-White racism both within courtrooms and in broader public discourse. This increased recognition of anti-White racism is highly problematic from a critical race and critical Whiteness perspective.

Within the burgeoning literature on Whiteness studies in France (to which this special issue also contributes),1 the theme of anti-White racism has acquired a certain prominence. This article intends to critically zoom in on this notion, especially on the so far rather hidden legal construction of anti-White racism in France.

Part 1 of this article retraces the origins of the anti-White racism trope and the events, actors, and public debates surrounding it. In fact, the idea was initially confined mainly within far-right circles, but public debates and mainstream media responses to certain events contributed to greater acceptance of the notion.

Part 2 then looks at the lesser-known legal construction of this notion by analyzing relevant cases litigated in the courts from the late 1980s onward but long before the debate on anti-White racism went public. These cases were spearheaded as part of a litigation strategy led by the far-right NGO the Alliance générale contre le racisme et pour le respect de l'identité française et chrétienne (General Alliance against Racism and for the Respect of French and Christian Identity, AGRIF). Their successes were limited. However, one can observe creeping legal acceptance of the concept of anti-White racism in courts following the later emergence of the notion in the aforementioned public debates but also due to favorable interventions by a mainstream antiracist NGO, the Ligue Internationale Contre le Racisme et l'Antisémitisme (the International League Against Racism and Antisemitism, LICRA).

Part 3 will then provide a concluding critical analysis of these developments, mostly from a critical race and critical Whiteness perspective, highlighting the dangers that the idea of anti-White racism entails but also showing how more traditional actors contributed, or are contributing, to the mainstreaming of this notion within courts and in other public arenas.

The Origins of the Notion of Anti-White Racism and Its Articulation in Public Debates

The link between Whiteness studies and anti-White racism is made explicit in France's first edited collection on Whiteness studies, which includes a chapter by Damien Charrieras on anti-White racism.2 Charrieras refers to anti-White racism as the “corollary of the discourse on ‘little Whites’” (petits blancs), that is, poor White colonists who did not live up to France's civilizing expectation.3 Essentially, the colonial notion of little Whites reappeared in debates in mainland France in reference to Whites living in the outskirts of large cities (banlieues) or in forgotten rural areas. They have been presented as abandoned by political parties on the left, only to be saved by far-right politicians who frame them as an endangered minority.4 The idea of anti-White racism thus functions as an instrument to protect what is represented as a new, unprotected minority group against the growing majority of immigrants and/or other non-White French.

As to the genealogy of the notion of anti-White racism, there are different opinions. Some scholars, such as Gérard Noiriel, trace its origins back to a late-nineteenth-century publication by Edouard Drumont, La France juive of 1866. According to Noiriel, this book already “relied on the inversion of power relations between the majority (we, the French) and the minority (them, the Jews),” where “Jews are not the victims but the aggressors” and where “the French victims of violence do not dare to complain because they are afraid.”5 He further argues that Drumont's diatribe contained elements of what constitutes the notion of anti-White racism today by extending its arguments later on to “stigmatise Gypsies (sic), immigrants and the colonial Empires’ indigènes.6 Others, however, pinpoint the appearance of the anti-White racism notion to a later date, connecting it to the vocabulary of the extreme right in France, where the expression was coined and the notion found favorable conditions. Whether this development occurred due to the decolonization of Algeria and the return of (White) French settlers to mainland France, the anticolonial struggles of France's overseas territories in the 1970s,7 or the rise of the Front National, and precisely how these events precipitated the rise of this notion, are all topics requiring further exploration. Finally, more isolated voices instead trace the notion's origins to the left, pointing to how in 1964 Pierre Paraf, then President of the antiracist NGO Mouvement contre le racisme et pour l'amitié entre les peuples (Movement against Racism and for Friendship amongst Peoples, MRAP), wrote in his book Le Racisme dans le monde that racism can be directed toward people of color as well as toward Whites.8

It is certain that the expressions “anti-French racism” or “anti-White racism” started to appear more explicitly and visibly from the early 1980s onward. Some scholars mention their use in a 1985 television intervention by Jean-Marie Le Pen, then leader of the Front National.9 In any case, most commentators locate the emergence of the anti-White racism notion on the (far-) right of the political spectrum.

The event triggering the mainstreaming of the debate on anti-White racism in France occurred in 2005.10 On 8 March of that year, a public demonstration of high schoolers against a reform of the public education system took place. At the margins of the march, some demonstrators were interrupted by a group of youth coming mostly from the banlieues, who, inter alia, took the formers’ mobile phones and pushed them to the ground. A couple of weeks later, on 25 March 2005, Hachomer Hatzaïr, a progressive Zionist youth movement, and Radio Shalom published a “manifesto” (appel). Signed by a number of French public intellectuals (Elie Chouraqui, Chahdortt Djavann, Alain Finkielkraut, Jacques Julliard, Bernard Kouchner, Pierre-André Taguieff),11 it became known as the manifesto “against White beatings” (ratonnades anti-blancs). The manifesto is short enough to be fully quoted and translated here:

Almost exactly two years ago, on 26 March 2003, some among us sounded an alarm. Four youths from the Hachomer Hatzaïr movement were attacked during a demonstration against the war in Iraq because they were Jewish. [This was] a lynching attempt in the middle of Paris, a scandal. The mobilization by the media, politicians, and simple citizens was terrific. But today, high school students’ demonstrations have become for some the pretext for what one could call “anti-White beatings” (ratonnades anti-blancs). The students, often alone, are thrown to the ground, beaten up, robbed, and their aggressors claim, smilingly, “because they are French.” This is a new plea because we do not want to accept this and because for us, David, Kader, and Sébastien have an equal right to dignity. Writing this type of text is difficult because the victims are taken over by the far right. But what goes without saying, goes better when said: for us it is not about stigmatizing any population. In our eyes, it is a question of equity. There has been talk about David, there has been talk about Kader, but who speaks about Sébastien?”12

At first sight, nothing in this call specifically mentions anti-White racism. However, the term ratonnades anti-blancs, translated here as “anti-White beatings” refers to the colonial setting of Algeria where raton used to be a pejorative term to refer to Algerians and ratonnades to paramilitary violence against them.13 The links to anti-White racism became even more explicit in newspaper coverage by the centrist Le Monde and the leftist Libération describing the attacks as lynchings perpetrated by people of color from the banlieues because the protestors were Whites, rich, and flaunted a surfer look.14

The second significant phase in the emergence of the idea of anti-White racism began in November 2012, when historian Gérard Noiriel and sociologist Stéphane Beaud published a joint op-ed article (tribune) in Le Monde.15 The two scholars denounced the discourse of anti-White racism because they see it as deriving from certain elites trying to bring to France a race-conscious perspective running afoul of the republican color-blind model. According to them, race consciousness locks young people of color into an inescapable binary racist dynamic.16

Since then, it is safe to say that discussions of anti-White racism have gone into the mainstream, the term having been used across the political spectrum to condemn actions that purportedly exclude Whites and sometimes to condemn even the mere study of Whiteness.17 One of the more recent examples of such usage comes from an event took place in September 2019, when Lilian Thuram, a former member of the French national soccer team and active antiracism advocate, was accused of anti-White racism because of the following statement: “When we talk about racism, we need to understand that the soccer world is not racist, but racism is present in Italian, French, and European culture, and more generally, in White culture. We must have the courage to say that Whites think and believe they are superior.” The strong reactions against Thuram sparked an editorial in Le Monde authored by Dominique Sopo, the President of one of France's leading antiracist NGOs, SOS Racisme. Sopo questioned and denounced the accusations of anti-White racism, rejecting the existence of such a form of racism.18

Despite the public visibility of the anti-White racism debate, academic literature and analyses have remained fairly limited. Aside from work by Alana Lentin and Gavan Titley that I referred to above in the notes,19 the most in-depth examinations of the concept can be found in articles by Michel Kokoreff and Damien Charrieras that scrutinize the 2005 events.20 Apart from problematizing such a framing in substance, an in-depth sociological analysis of the articles and debates around them also highlighted methodological issues such as the failure to consult people or activists from the banlieues, raising doubts as to the quality of the journalists’ research and sources.21 Moreover, a recent large-scale sociological survey commissioned by the French Institute for Demographic Studies (INED) took the issue into account, concluding that anti-White racism is a marginal and qualitatively different phenomenon from the racism suffered by racial minorities.22 Defending the notion instead is a short essay based on a small sample of interviewees, arguing that anti-White racism is a reality in some of the Paris banlieues,23 as well as a longer monograph by nationalist Catholic pamphlet writer Hervé Ryssen.24 Other publications provide references in passing to anti-White racism.25 In this sense, the phenomenon remains understudied. There are even fewer attempts in the scholarly literature to consider the legal battle to construct and enshrine anti-White racism into the law. The legal dimension has been mostly ignored in public debates and in academia, and will be the focus of the second part of this article.

The Legal Construction of the Notion of Anti-White Racism

Few commentators have mentioned that in the legal context there have already been fairly long-standing efforts to construct a notion of anti-White racism as a form of legally recognized racism in the courts. Two exceptions should be noted here: a 1991 article mentions the AGRIF's role in shifting the far right's strategy from its initial project of advocating the abolition of early antiracist legislation to embracing such legislation so as to push the idea of anti-French racism.26 The second is a short entry in the Dictionary of the Extreme Right crediting the Nationalist-Catholic milieus for inventing the notion of anti-White racism through a litigation strategy, which was described as legal harassment.27 What can otherwise be found in sociolegal literature are mostly passing references to single cases litigated by the AGRIF.28 One can say that the AGRIF has operated mostly in the shadows with little public information available.

Generally, the literature locates its foundation in 1984 (the same year of the foundation of another important French antiracist NGO, SOS Racisme).29 However, a court case mentions 1974 as its founding year,30 with the name being changed to its current one in 1984 so as to include the fight against racism among its goals, which is what allowed it to start its litigation strategy to push the notions of anti-French, anti-Christian, and anti-White racism described below. The name itself, a homonym of la griffe (“the claw”), indicates the aggressive legal strategy pursued by its founder and long-time president, Bernard Antony (alias Romain Marie), a long-time politician of the far-right party the Front National, but also by other members of the same party and Catholic traditionalists/nationalists, such as Wallerand de Saint-Just (a lawyer) and Serge de Beketch (Vice-President).31 The AGRIF is not the only association to pick up this issue in France. One of the first judgments by the French Supreme Court (the Cour de cassation or CdC) involving the AGRIF, which considered attempts to censor certain scenes from a movie, also mentioned the association Credo and the Office international des oeuvres de formation civique et d'action culturelle selon le droit naturel et chrétien (the International Office of Civic and Cultural Action Pursuant to Natural and Christian Law).32 More recently, in 2017, an association was created with the specific goal of combating anti-White racism, dubbed the Organization against Anti-White Racism (Organisation de Lutte contre le Racisme Anti-Blanc, ORLA).33 But the AGRIF is certainly one of the oldest and most active litigators in this domain, as will be made obvious by the cases discussed below.34

The following paragraphs will analyze how the AGRIF's litigation strategy played out, what it focused on, and where it took place. In legal terms, this litigation is almost exclusively based on the provisions of the Statute on the Freedom of Press of 29 July 1881 (the 1881 Statute) as later modified, in particular by a 1972 statute known as the loi Pleven. The 1881 Statute is not the only French statute to combat race discrimination, but it is by far the oldest. It is only much later that other important provisions of French antidiscrimination law were added: in 1994, Article 225-1 of the French Penal Code and in 2008—as a result of implementation of European Union Law—Article 1132-1 of the French Labor Code.35

Nevertheless, the AGRIF has not utilized these latter provisions to push the notion of anti-White racism in the courts so far but has centered its litigation mostly around the 1881 Statute and on Article 132-76 of the French Penal Code, which provides that committing a crime for a racist motive counts as an aggravating circumstance. In terms of the underlying facts, most of the cases involved movies, theater plays, song lyrics, advertisements, publications, and public statements, as well as actions allegedly offensive to Christian values and symbols or persons that offended France and/or White French people.36 I will first describe the case law under the 1881 Statute, and then look at litigation characterizing the facts as an aggravating circumstance of a crime under Article 132-76.

Litigation Under the 1881 Statute on the Freedom of the Press

The vast majority of the AGRIF's cases were litigated under the 1881 Statute, beginning as early as the late 1980s, with the first case reaching the Cour de cassation in October of 1986.37 It should be noted that the earliest litigation did not involve anti-White racism as such. In fact, as the AGRIF's name suggests (General Alliance against Racism and for the Respect for French and Christian Identity), the organization also seeks to protect France's Christian identity, which explains why several cases raised the claim that certain images from movies and advertisements or public statements were defamatory to Christian religion. Indeed, until the public framing of the 2005 events as anti-White racism, the debates were not so much about anti-White racism as they were about discrimination against the French and/or Catholics, as well as against Christians more broadly.

Legally speaking, some of the (early) cases focused on the procedural question on whether the AGRIF had standing to become a third-party intervener under the criminal law provisions of the 1881 Statute. Its Article 48-1 grants standing to all associations that have been regularly created at least five years before the litigated facts occurred and that have as their statutory goal the mission to combat any form of discrimination based on ancestry or membership or nonmembership in a certain race, ethnicity, nation, or religion. Article 2 of the AGRIF's statute explicitly states that the association aims to fight racism understood as including the fight for the imperiled values of French civilization and, more specifically, the fight against anti-French and anti-Christian racism. In its first case on the issue, the Cour de cassation denied standing to the AGRIF under Article 48-1 because at the time five years had not yet passed since the amendment of its statutory goals.38 However, as soon as those five years had passed, the organization was granted standing.39 In this procedural litigation, the courts rejected the argument that the AGRIF had amended its statutory objectives only so as to obtain standing under the 1881 Statute and that this might constitute an abuse of the law. Moreover, the opponents argued that the courts should have looked closer at the merits, in the sense that the AGRIF's positions, its closeness to the far right, and its particular interventions were and are in contradiction to the 1881 Statute's goals. In other words, tackling discrimination against France and Christianity was not what the framers of the 1881 Statute had in mind when they legislated on the question of granting standing to associations. The CdC rejected these arguments, accepting a formal(istic) interpretation of Article 48-1. The judges declared that, when considering whether an association has standing, only two criteria—time of creation and formal goals indicated in its statute—are to be considered. Thus, at least for narrow formalistic standing purposes under the 1881 Statute, the Cour de cassation had already accepted back in the 1990s the symmetrical reading, according to which discrimination against French and/or Christians legally amounted to a similar injury as discrimination against racial minorities.40

However, the CdC's procedural holding was not determinative when it came to the merits, that is, it did not bind the judges to find that the incriminated movies, publications, advertisements, and public statements constituted a form of discrimination against French and/or Christians. Several of the court's judgments stemmed from criminal prosecutions of incitement to racial or religious hatred under Article 24 of the 1881 Statute or of defamation against a person on the grounds of race or religion under Article 32 of the 1881 Statute. A number of these cases dealt with religious discrimination or defamation in which, according to the AGRIF, Catholicism and/or Christianity had been under attack. In most instances, the Cour de cassation did not find any violation.41 Other judgments involved civil litigation and the question of damages from related tort liability42 where the underlying (criminal) litigation pursued a similar goal, namely, to prevent the screening or publication of certain materials or to sanction certain public statements. One case that was litigated before the administrative courts involved a related issue: the AGRIF's attempt to stop the prohibition of a specific theater show via a “ministerial order” (circulaire). Nevertheless, the French Administrative Supreme Court (the Conseil d'État or CdE) upheld the validity of the order.43

In a few rare cases, the Cour de cassation held that certain images or statements could be characterized as crimes under the 1881 Statute.44 In particular, a series of judgments addressed the same underlying fact pattern—the presence of Carmelite nuns in Auschwitz and interviews containing potentially offensive statements against them.45 In one judgment, the CdC held that Article 32 of the 1881 Statute “prohibits any defamation committed against a natural person, groups of such persons, or legal entities, regardless of their magnitude,”46 meaning that the generic targeting of Christians or Catholics would and could, at least in theory, fall under the prohibition and that a dominant religious majority in a given context could also be deemed a victim of religious discrimination.

The AGRIF saw this passage as strategically and potentially relevant to cases concerning discrimination on the grounds of race, ethnicity, and/or national origin. Although more limited in numbers, these cases have multiplied lately. In a 1998 case, the AGRIF intervened in a public defamation trial involving the statement “fucking French fascists” (fachos de merde de francaoui) by the defendant. It argued that racist defamation can take place against religious or racial groups, regardless of their demographic importance. The Cour de cassation nevertheless upheld the lower court's decision that had declared the defendant's innocence because it was not clear whether his statements targeted all French, or only those who had sided with the French government in opposing Algeria's independence.47 Similarly, other cases rejected the claim of anti-White/French racism, either because such statements were not directed at all Whites but only at a specific subgroup of Whites,48 or because the words contained in certain (rap) songs calling France a slut or certain of its institutions fascist did not indicate a specific identifiable group of people composing the French nation.49

Two recent cases take on the expression français de souche, which could be translated as “people of French roots.” This term is commonly used to designate Whites without having to refer to Whiteness itself. The issue at stake is whether using that term in a derogatory way is anti-White racism.

The first such case, decided in the last instance in January 2014, reached some prominence due to the identity of the accused: Hourya Bouteldja, the leader of Les Indigènes de la République, an antiracist and anticolonialist movement. On a TV show highlighting the plight of disenfranchised and segregated minority neighborhoods and the educational difficulties which residents faced, she stated that it is Western privileged society and those that we (i.e., those combating colonialism and racism) call the souchiens or Whites who need to be educated. The word souchiens derives from the expression français de souche but sounds exactly the same as sous-chien (“underdog”). For this pun, Ms. Bouteldja was brought before the courts for anti-White and/or anti-French racism with the intervention of the AGRIF. Nevertheless, the Cour de cassation held that the broader context of the show, the ethnological rather than dehumanizing motivation of the accused, and the fact that souchien has become a neologism used regularly by the political class showed that her statement could not be characterized as a public racial insult.50

The second series of cases pertained to the joint release of a CD and book entitled Nique la France (Fuck France) by rapper Saïd Zouggagh, also known as Saïdou, and sociologist Saïd Bouamama. The CD and the book contained various statements concerning, inter alia, White French, also referred to as français de souche. Here again the court found in two separate judgments of February 2017 and December 2018 that Mr. Bouamama and Saïdou were not guilty, essentially because the terms employed did not allow identification of any specific groups51 and because the expressions, as outrageous, unfair, or vulgar as they might be, intend to denounce the racism attributed to French society, which has allegedly inherited its colonial past. Thus, the statements contribute to a public debate and do not contain, even implicitly, any incitement to hate or discrimination and thereby do not exceed the limits set to freedom of expression.52

Overall, one could say that in the domain of the press, publications, media, and public statements the notion of anti-White racism has not gained much traction … yet. Procedurally, courts have been willing to recognize it as equivalent to other forms of racism and thus have granted standing to the AGRIF. Substantively, the case law is (still) rather reluctant. The notion of freedom of expression broadly understood combined with the lack of clarity and identifiability of those who are deemed to be White or français de souche provides a certain bulwark against moving in the direction wished for by the AGRIF. This is not to underestimate the risk of being dragged in front of the courts that individuals of racialized minorities and individuals who are racialized as non-White face when daring to critique French society through public statements or artistic means via certain forms of art, such as rap,53 and this in and of itself may have a chilling effect.

Litigation on Racist Motives as an Aggravating Factor of Crimes

In other areas of litigation, the notion of anti-White racism has been slightly more successful. This has most predominantly been true under Article 132-76 of the French Penal Code, namely when a crime is considered aggravated because it was committed with a racist motive. Something of a turning point in this context occurred with the implication in anti-White racism cases of another much more established antiracism association, the LICRA. This organization was the first French antiracist association and was founded in the 1920s.54 The LICRA's status and visibility in France—as opposed to the rather low and marginal profile of the AGRIF—allowed the concept to further penetrate the various mainstream public and sociolegal debates.55 Indeed, Noiriel and Beaud's aforementioned op-ed in Le Monde was sparked in part by a case in which the LICRA had intervened as an injured civil party against a defendant accused of anti-White racism. Contrary to the litigation described so far, this case did not involve the 1881 Statute. Here, the issue was whether attacking someone with a bottle shard while insulting them as “dirty White” and “dirty French” could be characterized as an aggravated assault under Article 132-76. In June 2013, the trial court rejected this characterization based on insufficient evidence that the words had been uttered in conjunction with the aggression.56 In January 2014, the Paris Court of Appeal overturned the lower court's decision on this point, holding, on the contrary, that the aggravating circumstance applied.57 As a consequence, the LICRA was readmitted as a civil party, the accused's sentence was increased to four years in prison, and the media described the decision as the first time a court had recognized the idea of anti-White racism.58 The final stage in this judicial saga came when the Cour de cassation in December 2014 rejected the defendant's appeal challenging the application of this specific aggravating circumstance. 59

Since then, the LICRA has successfully intervened in other cases involving alleged victims of anti-White/French racism. One case arose from an altercation on a train, in which a passenger who intervened in a dispute over a ticket inspection was called “dirty White, dirty French.” Legally speaking, this was again a case involving the 1881 Statute. In July 2015, the first instance court sentenced the defendant to a €1,500 fine and granted €750 in civil damages to the LICRA.60 In March 2016, the Lyon Court of Appeal increased the penalty to three months in prison and upheld the civil damages.61

One of the most recent cases, which took place in March 2019, is possibly the most interesting one. It combines not only a civil action brought by both the LICRA and the AGRIF, but also both strands of the litigation analyzed thus far; Article 24 of the 1881 Statute and the aggravating circumstances under Article 132-76 of the French Penal Code. The dispute springs again from a rap video posted on YouTube entitled “Hang the Whites” (“Pendez les Blancs” or “PLB”). The Black author/singer Conrad Moukouri Manga Moussole (alias Nick Conrad) sings, inter alia, about entering daycares and killing White babies, inviting the audience to catch them quickly and to hang their parents, leaving them hanging from trees where these filthy fruits will constitute a fascinating show. The lyrics include references to Malcolm X, advocates inverting the triangular trade, and the chorus repeats: “Whawhawha. … whities. Hang them” (“Whawhawha. … whities. Pendez-les.”). The Paris trial court held that this video instigated people to commit violence against the life and the bodily integrity of people, noting that it was aggravated by racial motivations under Article 132-76. It fined the rapper €5,000, awarding the AGRIF and the LICRA €1,000 each in civil damages.62 The court reasoned that, although rap may allow for a certain amount of violence typical of the genre, and that some of the words and images were cultural references from Billie Holiday's “Strange Fruit” and the movies American History X (Tony Kaye, 1998) and Get Out (Jordan Peele, 2017), an internet viewer of the video would not be able to perceive the difference between a critique of racism suffered by Black people and a direct incitement to violence against Whites.

It is difficult to identify any specific trend in the courts yet, be it toward recognizing or refusing to recognize anti-White racism. However, it is clear that the LICRA's litigation of anti-White racism as an aggravating circumstance has been more successful than that of the AGRIF under the 1881 Statute. This may be because the LICRA is a more established and mainstream NGO, or because aggravating circumstances are an accessory aspect of a penalty, and thus, at least in theory, dependent on a different main crime. This could somehow make it easier for courts to acknowledge anti-White racism in consideration of this accessory aspect. This can only be raised as a hypothesis at this point.

Two recent sociological (quantitative) studies based on an analysis of 500 hate crime cases in three first-instance courts provide some indication that within the legal sphere there is some willingness to recognize anti-White racism.63 In the first study, the issue only emerges indirectly. In coding their data on racist crimes and misdemeanors, the authors take “anti-French hostility” into account, concluding that at least 8.1 percent of the cases—corresponding to 10.6 percent of the total number of cases—fall under this category.64 Their second study instead addresses the issue more in-depth, finding that anti-White racism is treated like other forms of racism by the police and prosecutors, but that it is generally neither criminalized nor recognized by the courts. Conviction rates by courts are (still) higher for anti-Semitism, Islamophobia, and/or anti-Black racism, and the researchers surmise that, at least for courts, there is a higher sensitivity to these more traditional forms of racism than to anti-White or anti-French racism.65

To a certain extent, this data overlaps with what is observed in this article—anti-White racism is only recognized as a full-blown, self-standing crime equivalent to other forms of racism in a minority of instances. However, courts have embraced it at least for formal-standing purposes and as an aggravating circumstance.

Conclusion

Why is this topic important or relevant? So far, the AGRIF's litigation strategy has not borne too much fruit. At the same time, this certainly does not mean the end of the anti-White racism notion in France. The combined analysis of the social and legal aspects surrounding the notion of anti-White racism allow for a number of interesting concluding observations and critiques.

First, it is instructive to situate the AGRIF's litigation strategy within the broader history of cause lawyering in France. The AGRIF's decision to use the courts to push a certain idea of (race) discrimination starting from the early 1980s fits within Liora Israël's analysis of social movements and legal advocacy in France. She argues that in France the turn to cause lawyering and strategic litigation occurred after 1968, rather than later through European Union laws, courts, and other international institutions. Toward the end of the 1960s and in the early 1970s, social movements, activist lawyers, and advocacy groups on the left increasingly used law and the courts to pursue progressive litigation strategies.66 What has nevertheless flown under the radar of this analysis is that right-wing and conservative cause lawyering also took off during the same time period.

Second, the AGRIF's litigation strategy is significant because it allows for a few reflections on the different understandings of what constitutes racism in the fields of sociology and the law. Nothing in this article is intended to be read as silencing or ridiculing the experience of those who claim to have been victims of anti-White racism. However, in most cases the legal system already affords them protection in the form of the law of defamation, torts, or criminal law, which would not need to turn to a distinct claim of anti-White racism. Doing so is problematic for a number of reasons.

Sociologically speaking, racism is based on domination and power relations between different groups that are defined and identified in racial terms.67 Hence, the recognition of anti-White racism as a legal claim disregards such broader and structural power relations, flattens them out, so to say, and provides a symmetrical reading of racism. In some ways, this resembles the American discussions around what the theoretical underpinning of antidiscrimination law ultimately is and which has become known as the anticlassification versus the antisubordination debate.68 Put briefly, if the problem we are trying to eliminate with antidiscrimination law is the classification of people along certain prohibited criteria (in this case, race), then a symmetrical reading of antidiscrimination law and of notions like anti-White racism is acceptable, if not warranted, because any use of race in any situation becomes problematic, even when it is supposed to help racial minorities like in affirmative action cases. If instead antisubordination is what is supposed to drive antidiscrimination law, then the underlying power dimensions become more relevant and notions of anti-White racism become much harder to justify and recognize. This is because antidiscrimination law is supposed to protect individuals and groups that are (historically) excluded from various social and political spheres, and in France this does not include White people or the majority group. The case in which the French Supreme Court provided that the 1881 Statute prohibits against “any defamation committed against a natural person, groups of such persons, or legal entities, regardless of their magnitude69 points particularly toward the anticlassification principle rather than the antisubordination one. It is unsurprising that the AGRIF utilized this notion to promote the idea that anti-White racism in France should and can be recognized by courts.

Beyond the American anticlassification–antisubordination debate, critical race theorists have also raised related critiques against color-blind and symmetrical readings of United States’ society and antidiscrimination law by the United States Supreme Court.70 Moreover, they have demonstrated that the American legal system has functioned to a large extent so as to protect Whiteness as a form of property right.71 Writing about the United States, Derrick Bell highlights that historically Whites have resented the possibility that Blacks could obtain more protection than them, for example via affirmative action measures.72

One can compare these critiques of the American reality with the (legal) battle for the recognition of anti-White racism in the French context and the symmetrical extension of antiracism protections to a racially dominant group. In France this also creates and perpetuates a color-blind myth whereby all measures, including those designed to protect racial minorities, need to apply equally to everyone; similarly amounting to an attempt to legally protect Whiteness and its privileges in a purportedly color-blind French context. This litigation also demonstrates that French Whites—and/or NGOs supposedly representing their interest—resent the fact that antiracist measures only protect racial minorities but not themselves, and therefore they strive to ensure that this is no longer the case. One could thus read the story about anti-White racism told here as a broader and internationally applicable warning about antidiscrimination law as a litigation tool—namely that it can easily be co-opted and depoliticized via a symmetrical and ateleological reading of provisions originally intended to protect minorities against racism.

However, additional dangers or problems in recognizing the notion of anti-White racism lurk behind a color-blind, anticlassification, and symmetrical reading of antiracist measures: some are specifically French, and some pertain to mainland Europe more broadly.

The first is that in mainland Europe the use of race in law is discredited or outright rejected, inter alia, on the grounds that biological races do not exist. I have referred to this position as “Continental European Colorblindness,”73 and it makes it difficult for policies, analyses, but also minority victims of racism to frame things in terms of race at all. The argument against the use of race as an analytical or legal category is that other issues such as class, poverty, ignorance, craziness from the aggressor's side, the victims of racism's own behavior, and so on are better explanatory variable(s). In contrast, the French media's framing of the 2005 and 2012 events has quickly—and almost exclusively—been that of (anti-White) racism. Now, if race is supposedly discredited as an analytical and legal criterion in favor of other ones, then surely these events could—and should—be explained in other terms as well. However, that was not exactly the case. So here we are not even speaking about a symmetrical reading of the 2005 and 2012 events but one where a racial reading of classical forms of racism is often denied; however, a racial reading of the 2005 and 2012 events in terms of anti-White racism has quickly managed to establish itself in public debates.

The second danger of anti-White racism is that presumably the legal actors involved in the criminal trials (police forces, prosecutors, judges) belong—more so in mainland Europe than in the United States—to the White, Christian majority in Europe74 and thus may be biased because they may find it easier to “identify” with White victims and thus construe those victims’ experience as racism, while failing to notice “classical” forms of racism against minorities by reverting to color-blind interpretation.75

Third, the role of various French mainstream actors in this development has also been quite clear: they took anti-White racism out of the far-right corner and provided it with a veneer of acceptability. Widely read newspapers such as Le Monde and Libération framed events in these terms quite explicitly and somewhat uncritically. More established antiracist NGOs than the AGRIF, such as the LICRA, then helped litigate toward a somewhat broader judicial acceptance of the notion of anti-White racism. There may be a peculiar French variation of “Continental European Colorblindness” here that facilitates the logic of anti-White racism as racism: the long tradition of “official” French antiracist associations, including the LICRA, that have promoted a universal and majoritarian understanding of racism and antiracism based on secular republicanism, viewing race-conscious antiracism politics as politically divisive and “communitarian.” Alana Lentin argues that in opposition to these traditionally White institutional antiracism actors—which thereby uncannily align with far-right positions in this domain—new antiracist actors with a more “Black analytical” and structural reading of racism have come to the fore, and these understandings leave no room for anti-White racism.76 One can thus better understand how the LICRA could state that “anti-White racism is also a form of racism which, despite being marginal and also invoked and appropriated by the far-right, needs to be combated as rigorously as other forms of racism.”77

What this contribution has shown instead is that it was exactly the other way around, namely, that a term developed in far-right milieus creeped its way into French public debates and courtrooms. It has also shed light on the attempts by a far-right association to push the idea of anti-White racism through courts in their legal interpretation of mostly criminal law provisions since the 1980s. The legal mobilization and strategy by the AGRIF was, at best, of limited success. It remains to be seen how far the increased public debates and acceptance of the notion of anti-White racism, as well as the pleading of anti-White racism by some more mainstream antiracist actors in court cases, might eventually change that picture.

Notes

1

See the literature overview and reference in the Introduction to this special issue.

2

Damien Charrieras, “Racisme(s)? Retour sur la polémique du ‘racisme anti-blancs’ en France,” in De quelle couleur sont les Blancs? Des “petits Blancs” des colonies au “racisme anti-Blancs,” ed. Sylvie Laurent and Thierry Leclère (Paris: La Découverte, 2013), 244–252.

3

Sylvie Laurent and Thierry Leclère, “Introduction,” in De quelle couleur sont les Blancs? Des “petits Blancs” des colonies au “racisme anti-Blancs,” ed. Sylvie Laurent and Thierry Leclère (Paris: La Découverte, 2013), 7–22, here 20.

4

Ibid., 16–17.

5

Citations from Gérard Noiriel are from “Il n'y a pas de Blancs,” in De quelle couleur sont les Blancs? Des “petits Blancs” des colonies au “racisme anti-Blancs,” ed. Sylvie Laurent and Thierry Leclère (Paris: La Découverte, 2013), 34–38, here 36.

6

Ibid.

7

See Ary Gordien, “(Auto-)marginalisation des Blancs créoles les récits historiques guadeloupéens,” in Histoires en marges: Les péripheries de l'histoire globale, ed. Hélène Le Dantec-Lowry, Matthieu Renault, Marie-Jeanne Rossignol, and Pauline Vermeren (Tours: Presses Universitaires François Rabelais, 2018), 101–124.

8

Pierre-André Taguieff, Une France antijuive? Regards sur la nouvelle configuration judéophobe (Paris: CNRS Éditions, 2015), 160.

9

Charrieras, “Racisme(s)?”, 244.

10

A detailed account and analysis of these events can be found in Michel Kokoreff, “La banalisation raciale: A propos du racisme ‘anti-blancs,’” Mouvements 41, 4 (2005): 127–135, doi:10.3917/mouv.041.0127; Damien Charrieras, “Racisme(s)? Une étude rhétorique critique de la polémique sur le racisme anti-blancs en France,” COMMposite 2007, 1 (2007): 40–73, https://scholars.cityu.edu.hk/en/publications/publication(353df653-fb30-45ef-a123-4e819b55b066).html; and Charrieras, “Racisme(s)?”, 245–247.

11

Several authors of this manifesto are part of the French-Jewish intellectual and philosophical milieus. Another name that often comes up in that connection and with similar arguments is that of Pascal Bruckner. Their argument is that the actors perpetuating anti-White racism and anti-Semitism are the same (essentially Muslims) and that anti-Semitism is a particularly virulent form of anti-White racism. On the link between these “neoreactionary” intellectuals and the far-right in France, see Graham Murray, “France: The Riots and the Republic,” Race and Class 47, 4 (2006): 26–45, here 32–35, doi:10.1177/0306396806063856.

12

The original text in French is published in Charrieras, “Racisme(s)? Une étude rhétorique,” 69; and also in Tarik Yildiz, Le Racisme anti-blanc: Ne pas en parler: un déni de réalité (Nîmes: Éditions du Puits de Roulle, 2010), 55–56.

13

See Alana Lentin and Gavan Titley, The Crises of Multiculturalism: Racism in a Neoliberal Age (London: Zed Books, 2011), 65.

14

See, for example, Luc Bronner and Marine Laronche, “À Paris, les casseurs ont frappé et volé de nombreux manifestants,” Le Monde, 10 March 2005, 11, https://www.lemonde.fr/societe/article/2005/03/09/a-paris-les-casseurs-ont-frappe-et-vole-de-nombreux-manifestants_400923_3224.html; Luc Bronner, “Manifestations lycéennes: 32 casseurs places en garde à vue,” Le Monde, 11 March 2005, 10, https://www.lemonde.fr/societe/article/2005/03/10/manifestations-lyceennes-32-casseurs-places-en-garde-a-vue_401078_3224.html; Luc Bronner, “Manifestations de lycéens: le spectre des violences anti-‘Blancs,’” Le Monde, 16 March 2005, 9, https://www.lemonde.fr/a-la-une/article/2005/03/15/manifestations-de-lyceens-le-spectre-des-violences-anti-blancs_401648_3208.html; Sophie Ernst, “Attention aux conclusions tendancieuses,” Libération, 21 March, 2005, 3, https://www.liberation.fr/evenement/2005/03/21/attention-aux-conclusions-tendancieuses_513552/; Blandine Grosjean, “Malaise après un appel contre le ‘racisme anti-Blancs,’” Libération, 26 March 2005, 14–15, https://www.liberation.fr/societe/2005/03/26/malaise-apres-un-appel-contre-le-racisme-anti-blancs_514327/; Laetitia van Eeckhout, “Un appel est ancé contre les ‘ratonnades anti-Blancs,’” Le Monde, 26 March 2005, 10, https://www.lemonde.fr/societe/article/2005/03/25/un-appel-est-lance-contre-les-ratonnades-anti-blancs_631439_3224.html; and Blandine Grosjean, “On crée des compétitions de victimes,” Libération 26–27 March 2005, 14, https://www.liberation.fr/societe/2005/03/26/on-cree-des-competitions-de-victimes_514328/.

15

Stéphane Beaud and Gérard Noiriel, “‘Racisme anti-blancs’: Non à une imposture!” Le Monde, 14 November 2012, https://www.lemonde.fr/idees/article/2012/11/14/racisme-anti-blanc-non-a-une-imposture_1790315_3232.html.

16

Noiriel, “Il n'y a pas de Blancs,” 35–36.

17

See, for some examples, Jean Beaman, “Are French People White? Towards an Understanding of Whiteness in Republican France,” Identities: Global Studies in Culture and Power 26, 5 (2019): 546–562, doi:1080/1070289X.2018.1543831, here 546–547.

18

Dominique Sopo, “La notion de racisme anti-blanc est l'héritière de ces notions de racisme anti-français ou anti-chrétien,” Le Monde, 20 September 2019, https://www.lemonde.fr/idees/article/2019/09/20/dominique-sopo-la-notion-de-racisme-anti-blanc-est-l-heritiere-de-ces-notions-de-racisme-anti-francais-ou-anti-chretien_6012390_3232.html).

19

Lentin and Titley, The Crises of Multiculturalism.

20

Kokoreff, “La banalisation raciale” ; Charrieras, “Racisme(s)?”, and Charrieras, “Racisme(s)? Une étude rhétorique”.

21

Kokoreff, “La banalisation raciale,” 129–133.

22

See, in particular, Christelle Hamel, Maud Lesné, and Jean-Luc Primon, “La place du racisme dans les études sur la discrimination,” in Trajectoires et origines: Enquête sur la diversité des populations en France, ed. Cris Beauchemin, Christelle Hamel, and Patrick Simon (Paris: INED Éditions, 2016), 463–470.

23

Yildiz, Le Racisme anti-blanc.

24

Hervé Ryssen, Le Racisme anti-blanc: Assassins d'hommes blancs, Tueurs, violeurs de femmes blanches (Levallois Perret: Baskerville, 2011).

25

Olivia C. Harrison, “Whither Anti-Racism? Farida Belghoul, Les Indigènes de la République, and the Contest for Indigeneity in France,” Diacritics 46, 3 (2018): 54–77, doi:10.1353/dia.2018.0016.

26

Pierre-André Taguieff, “Les métamorphoses idéologiques du racisme et la crise de l'antiracisme,” in Face au racisme, Vol. 2., ed. Pierre-André Taguieff (Paris: La Découverte, 1991), 13–63, 54–59.

27

Erwan Lecoeur, ed., Dictionnaire de l'extrême droite (Paris: Larousse, 2007), 50–52.

28

See Frederic Gras, “Censure et ordre public: les associations procureurs,” Légicom 58, 1 (2017): 85–91, here 85, doi:10.3917/legi.058.0085; Patrick Simon, “Rap en France et racialisation: Entretien avec Karim Hammou,” Mouvements 96, 4 (2018): 29–35, here 34, doi:10.3917/mouv.096.0029; Émilie Devriendt, Michèle Monte and Marion Sandré, “Analyse du discours et catégories ‘raciales’: problèmes, enjeux, perspectives,” Mots: Les langages du politique 116, 1 (2018): 9–37, here 12, n. 10, doi:10.4000/mots.23034; and Alana Lentin, “Charlie Hebdo: White Context and Black Analytics,” Public Culture 31, 1 (2019): 45–67, here 63, doi:10.1215/08992363-7181835.

29

Lecoeur, Dictionnaire, 50.

30

On this information, see CdC, crim., no. 90-87508, 16 April 1991.

31

Lecoeur, Dictionnaire, 50–51.

32

CdC, civ., no. 88-14235, 10 January 1990.

33

https://www.olra-asso.org/ (accessed 10 January 2021).

34

See also the AGRIF's website and the specific drop-down menu section “Defending yourself”: http://www.lagrif.fr/notre-combat/vous-defendre (accessed 26 November 2019).

35

See in more detail Articles 225-1–225-4 of the French Criminal Code, which sanction various forms of race discrimination in different contexts (employment, provision of goods and services, etc.); Article 432-7 of that same code criminalizes discrimination committed by a public official. Article 1132-1 of the French Labor Code as amended by Statute 2008-496 of 27 May 2008 sanctions racism in private employment and in the provision of goods and services.

36

The cases were identified via the Legifrance database (https://www.legifrance.gouv.fr/; accessed 10 January 2021) via the use of the search term “AGRIF” for administrative and ordinary courts. However, this database only collects supreme court and some appeals court cases. Somewhat biased information can be gleaned from the AGRIF's site, which boasts about the organization's historical successes, including first-instance court cases (http://www.lagrif.fr/notre-combat/nos-proces-historiques (accessed 10 January 2021).

37

CdC, crim., no. 85-95307, 22 October 1986.

38

Ibid.

39

See CdC, crim., no. 90-87508, 16 April 1991; CdC, crim., no. 90-87509, 16 April 1991; CdC, civ., no. 93-20663, 28 February 1996; and CdC, civ., no. 99-10778, 14 November 2000.

40

However, for a case of grave profanation such standing was rejected: CdC, crim., no.97-80142, 18 December 1997.

41

See, in chronological order, CdC, civ., no. 88-14235, 10 January 1990; CdC, crim., no. 92-84439, 7 December 1993; CdC, crim., no.95-83763, 29 January 1998; CdC, crim., no. 96-84890, 10 February 1998; CdC, crim., no. 98-83461, 8 June 1999; CdC, crim., no. 05-81932, 14 February 2006; CdC, crim., no. 06-84710, 2 May 2007; CdC, crim., no.10-82809, 15 March 2011; CdC, crim., no. 16-83968, 20 June 2017, ECLI:FR:CCASS:2017:CR01354; CdC, crim., no.16-84945; 14 November 2017, ECLI:FR:CCASS:2017:CR02666; and CdC, crim., no. 17-80524, 23 January 2018, ECLI:FR:CCASS:2018:CR03281.

42

CdC, civ., no. 93-12119, 22 March 1995; CdC, civ., no. 93-20663, 28 February 1996; CdC, civ., no. 96-16992, 28 January 1999; CdC, civ., no. 98-17574, 8 March 2001. For other civil cases, see CdC, civ., no. 90-16225, 23 June 1992; and CdC, civ., no. 90-14754, 7 January 1992.

43

CdE, no. 376107, 9 November 2015, ECLI:FR:XX:2015:376107.20151109. The underlying case was dealing with a show brimming with anti-Semitic jokes made by French comedian Dieudonné M'Bala M'Bala.

44

CdC, crim., 96-80391, 21 October 1997.

45

CdC, crim., no. 91-84653, 2 March 1993; CdC, crim., no. 92-81094, 7 December 1993; and CdC, crim., no. 94-80064, 3 October 1995. See also case no. 90-87509 cited above at note 39,w which dealt with a similar underlying fact pattern.

46

CdC, crim., no. 91-84653, 2 March 1993 (italics added).

47

CdC, crim., no. 95-85691, 10 March 1998.

48

Here the statement was that “Blacks are not authorized except in certain domains: sport and humor … and one will never be able to go any further, have any responsibilities because Blacks are only big children, clowns for the White slaveholder, the powerful capitalist; there is not a lot of difference between the owners of TF1 [the first French public TV channel] and the White who managed plantations in the Caribbean.” CdC, crim., no. 02-82288, 25 March 2003.

49

See, for example, CdC, crim., no. 06-85329, 23 January 2007; and CdC, crim., no. 08-85220, 3 February 2009.

50

CdC, crim., no. 12-88282, 14 January 2014, ECLI:FR:CCASS:2014:CR06339.

51

CdC, crim., no. 16-80522, 28 February 2017, ECLI:FR:CCASS:2017:CR00142.

52

CdC, crim., no. 18-80525, 11 December 2018, ECLI:FR:CCASS:2018:CR 02894.

53

On the link between rap, Whiteness, and race in France, see Chong J. Bretillon, “‘Ma Face Vanille’: White Rappers, ‘Black Music’ and race in France,” International Journal of Francophone Studies 17, 3–4 (2014): 421–443, doi:10.1386/ijfs.17.3-4.421_1; and Karim Hammou, “Y a-t-il une ‘question blanche’ dans le rap français,” in De quelle couleur sont les Blancs? Des “petits Blancs” des colonies au “racisme anti-Blancs,” ed. Sylvie Laurent and Thierry Leclère (Paris: La Découverte, 2013), 190-196.

54

On the history of the LICRA, see Emmanuel Debono, Aux origines de l'anti-racisme: La LICA, 1927–1940 (Paris, CNRS Éditions, 2012).

55

The inclusion of anti-White racism in the mission of another mainstream antiracist NGO, the MRAP, also seems to have supported the spread of the idea that anti-White racism is a legitimate form of racism. On this, see Taguieff, Une France antijuive? 161.

56

Tribunal Grande Instance (TGI) Paris, chambre 13-2, 21 June 2013.

57

Cour d'appel de Paris, Chambre 8-1, no. rg 13/05553, 21 January 2014.

59

CdC, crim., no. 7114, 16 December 2014.

60

TGI Villefranche-sur-Saone, no. 708.15, 8 July 2015.

61

Cour d'appel de Lyon, Chambre 4, no. 16/177, 29 March 2016.

62

TGI Paris, Chambre 17, no. 5, 19 March 2019.

63

Abdelalli Hajjat, Narguesse Keyhani, and Cécile Rodrigues, “Infraction raciste (non-)confirmée: Sociologie du traitement judiciaire des infractions racistes dans trois tribunaux correctionnels,” Revue française de science politique 69, 3 (2019), 407–438, doi: 10.3917/rfsp.693.0407; and Narguesse Keyhani, Abdelalli Hajjat, and Cécile Rodrigues, “Saisir le racisme par sa pénalisation? Apports et limites d'une analyse fondée sur des dossiers judiciaires,” Génèses 116, 3 (2019): 125–144, here 136–137, doi:10.3917/gen.116.0125.

64

Hajjat et al., “Infraction raciste (non-)confirmée,” 429.

65

Keyhani et al., “Saisir le racisme,” 137–139.

66

Liora Israël, “Rights on the Left? Social Movements, Law and Lawyers after 1968 in France,” in Rights and Courts in Pursuit of Social Change: Legal Mobilisation in the Multi-Level European System, ed. Dia Anagnostou (Oxford: Hart, 2014), 79–102.

67

On this definition, see Keyhani et al. “Saisir le racisme,” 136–137.

68

See Jack M. Balkin and Reva B. Siegel, “The American Civil Rights Tradition: Anticlassification or Antisubordination?” University of Miami Law Review 58, 9 (2003): 9–33, https://jackbalkin.yale.edu/sites/default/files/files/theamericancivilrightstradition1.pdf. I would like to thank the editors of this special issue for highlighting this point.

69

See the case cited above in note 47.

70

See: Neil Gotanda, “A Critique of ‘Our Constitution is Colorblind,’” Stanford Law Review, 44, 1 (1991): 1–68, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2306297.

71

Cheryl I. Harris, “Whiteness as Property,” Harvard Law Review 106, 8 (1993): 1707–1791, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=927850.

72

Derrick Bell, “The Space Traders,” in Derrick Bell, Faces at the Bottom of the Well (New York: Basic Books, 1992), 158–194, here 175–176.

73

Mathias Möschel, Law, Lawyers and Race: Critical Race Theory from the United States to Europe (Abingdon, UK: Routledge, 2014), 122–139.

74

See on this particularly for France: Mathilde Cohen, “Judicial Diversity in France: The Unspoken and the Unspeakable,” Law and Social Inquiry 43, 4 (2018): 1542–1578, doi:10.1111/lsi.12331.

75

Möschel, Law, Lawyers and Race, 119–122.

76

Lentin, “Charlie Hebdo,” 47–49.

Contributor Notes

Mathias Möschel is Associate Professor, Head of Department, and Director of the Doctoral Program at the Legal Studies Department of Central European University. His research, teaching, and publications fall broadly in the field of comparative (constitutional) law, international human rights law, and nondiscrimination law mainly from a critical race theory and gender perspective. Email: moschelm@ceu.edu