Is There a Place for 'Race' as a Legal Concept?

Abstract

What does "race" mean? The word "race" is omnipresent in American social, political, and legal discourse. The concept of "race" is central to contemporary debate about affirmative action, racial profiling, hate crimes, health inequities, and many other issues. Nevertheless, the best research in genetics, medicine, and the social sciences reveals that the concept of "race" is elusive and has no reliable definition.

This article argues that "race" is an unnecessary and potentially pernicious concept. As evidenced by the history of slavery, segregation, the Holocaust, and other human tragedies, the idea of "race" can perpetuate prejudices and misconceptions and serve as justification for systematic persecution. "Race" suggests that human beings can be divided into subspecies, some of which are morally and intellectually inferior to others. The law has important symbolic and expressive value and is often efficacious as a force that shapes public ideology. Consequently, it must undermine the notion that "race" is a legitimate mechanism by which to categorize human beings. Furthermore, the focus on rigid "racial" classifications obfuscates political discussion concerning affirmative action, scientific research, and social inequities. When we speak of "racial" diversity, discrimination, or inequality, it is unclear whether we are referring to color, socio-economic status, continent of origin, or some other factor. Because the term "race" subsumes so many different ideas in people's minds, it is not a useful platform for social discourse.

The article proposes that "race" be replaced in future statutory and jurisprudential texts by other, more precise terminology, including "color," "continent of origin," "national origin," and "descent from ancestors of a particular color, national origin, or religion." Thus, legislators would engage in more careful statutory drafting and determine their legislative goals more precisely. In addition, the law would teach that, at most, the attributes we have called "race" refer only to superficial characteristics such as skin color or birthplace of one's ancestors, a lesson that could make a valuable contribution to social progress.

Keywords: Civil rights, employment, race, discrimination, jurisprudence

JEL Classification: K10, K30, K40