By Eddie Bruce-Jones

Emergent Conversation 19

This essay is part of the series PoLAR Online Emergent Conversation 19 on Racism and Policing in Global Perspective

“No Justice—No Peace.” Posters found in Berlin, Germany during the time of Black Lives Matter series of protests in June 2020. Visual metaphor, broken scales (justice) and dead dove (peace). By Alejandro Lecuna. CC BY SA 4.0.

The word in German for the number of unreported instances of an event, usually the commission of a crime, is Dunkelziffer. It is a word for the unknown, one which provides the conceptual terrain for addressing a knowledge gap by calling attention to itself. Setting aside the obvious linguistic associations of the word, which literally means “dark figure”—figure in the sense of numerical value—the term provides a vocabulary for naming an unknown quantity that is of potential significance. In the context of German policing, there are several unknowns worth considering. There is a lack of basic data on racial disparities of, for example, the prevalence of police identity checks carried out on people of color as compared to the majority white German population, or on the prevalence of disproportionate use of police force against people of color go uncounted. Germany’s lack of racial disparities data stems from contested views about the governance of race and about the state’s role in providing legal and political redress for racism. This short reflection considers several such contested views, the corresponding gaps they leave in our knowledge about racism, and the open questions of where to go from here.

First, there is the concept of race itself and the potential missed opportunities in failing to use race as an analytical category. The concept of race in Germany is contested and contentious, and for good reason—it does not translate so smoothly to the German word, Rasse. There are profound discursive preoccupations that many German scholars and lawmakers have with Rasse, since the German term strongly connotes the biologically-rooted idea of race as ancestral pedigree or innate difference. Given this fairly singular connotation, Rasse is often associated with eugenics and National Socialism, recalling the painful taxonomies of the nineteenth and early twentieth centuries. This term, unlike its rough English translation, race, has not undergone the type of rehabilitation that would the specter of biological determinism in brackets and allow the term more space for expressing the social experience of racial stratification. This means two things. First, social and academic discourses on race in Germany often do not use the term Rasse, but rather often use the proxy categories of ethnische Herkunft or nationale Herkunft (ethnicity or national origin), and sometimes even defer to using the English term “race” instead. Ethnicity, national origin and race are categories of experience that, while related, are not interchangeable, and so not naming race leaves certain areas of social experience unaccounted for.

Second, some legal experts and politicians have proposed striking the term Rasse from the German Basic Law (Federal Constitution) and replacing it with a different word (e.g., racial discrimination), which has generated an extensive debate on the very terms of combating racism. Article 3 of the German Basic Law is the Equal Protection provision, similar to the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution. The provision lists sex, ancestry, race (Rasse), language, national origin, beliefs and religious or political views as characteristics that are specifically guaranteed protection under the principle of equality. The U.S. Fourteenth Amendment, in contrast, does not include a list of protected characteristics, and so it does not refer to race in an analogous way to the German provision. Instead, the details of those characteristics which are protected have been established through courts, and in particular, the U.S. Supreme Court in interpreting the country’s constitutional guarantees. Perhaps one way to explain this difference is that it is arguably more important to have an explicit, statutorily defined list of protected characteristics in Civil Law jurisdictions like Germany, where in general codes rather than courts determine the way law is understood and implemented.

Legal scholar Cengiz Barskanmaz examines some of the problems that might arise if Rasse is removed from the German Basic Law (Barskanmaz and Samour 2022; Barskanmaz 2011), as it was indeed removed from the French constitution in 2018 (LaBreck 2021; Roig and Barskanmaz 2013). The French case is predicated upon a longstanding legal and social understanding of race in France within the context of French Republicanism, in which there is social pressure to abandon the use of race as a category of social difference (Patrick 2008). Barskanmaz and Samour argue that removing the term Rasse from the German Basic Law will frustrate the ability for German lawyers and scholars to articulate the interconnectedness of racialization to other aspects of social life, as well as the intersectional dimensions of race and racism within equality law, because it undermines the ability to use Rasse (or race) as an analytical category in legal and social discourse (2022). The proposition that Rasse be removed from the constitution is premised on the idea that, scientifically speaking, people cannot be divided into racial categories and that it is dangerous to promulgate such misapprehension (Cremer 2020). It is not straightforward to compare this approach to the approach of other European countries, given the uneven translation of race, conceptually and legally, across languages, but in the German context, Rasse is highly politicized in social discourse because of its strong association with the National Socialist era. Barskanmaz evaluates the deployment of scientific arguments against using the social concept of race as rooted in a theory of the performativity of language that must be considered in a nuanced way. He argues that, while it may be worth thinking about how language shapes reality, race is produced by racism and the category of race should not be considered obsolete in a world where racism continues to exist (Barskanmaz 2011, citing Ahmed 2004). By extension, eliminating race from the vocabulary of legal protection may render certain forms of racism unspeakable and unaddressable There is a range of approaches taken by activists and communities of color; while some groups seek to erase the heavy footprint of biological racism in the language of constitutional law by contesting law’s complicity in using the word Rasse, Barskanmaz understands the word as a tool that has real legal and political uses, despite its drawbacks (Barskanmaz 2020).

The debates on the term Rasse in Germany, while fraught, have been productive if for no other reason than it has maintained a public focus on the topic of race and racism in a time of sustained mobilization of far-right political activity. This is important for both scholarly and popular debates on racism in many aspects of social life, but particularly in the context of understanding institutional and structural forms of racism. The question remains—what obstacles would result if we could not refer to race, in its noun form, in the legal sphere?

Popular engagement in Germany with the concepts of structural or institutional racism is relatively recent, and in much popular discourse, racism is still understood as intentional, individual bias. This risks flattening the concept of racism. The work of racial justice activists and bereaved families in recent years has been bolstered by a decades-long history of intellectual groundwork and political and social mobilization to dismantle facets of modern western criminal justice institutions by such scholars and organizers as Angela Davis (2003), Ruth Wilson Gilmore (2007) and Mariame Kaba (2021). This has ensured that the racial dimension of policing has occupied a prominent space on the agendas of many governments and civil society organizations. While the impetus to examine race and policing has tended to be understood as a U.S.-centric one, dominated by the particular stories of George Floyd, Breonna Taylor, and others, organizers, marginalized communities, advocates and scholars around the globe have utilized the highly-reported U.S. examples of policing-related deaths as a vehicle for highlighting local stories (Bruce-Jones 2020). The German context demonstrates one in which social mobilization around policing-related deaths, disproportionate use of force, and racial profiling, had been well underway prior to the global prominence of the Black Lives Matter instantiation of racial justice politics. These include initiatives like the Initiative in Remembrance of the Death of Oury Jalloh and the Initiative Christy Schwundeck, which were community-led organizations formed to examine the circumstances of the custodial deaths of two people of African descent in Dessau in 2005 and Frankfurt am Main in 2011, respectively. There is also KOP Berlin (Campaign for Victims of Police Brutality) and Copwatch Frankfurt, which are civil-society organizations that research, document and analyze racial profiling and policing violence. International organizations also intervene in criminal justice and policing practice—for example, Amnesty International has this year reported that the 2022 blanket ban in Berlin of demonstrations critical of the Israeli occupation of Palestine risks stigmatizing “young people from the Arab diaspora as prone to violence” and that this is “exemplary of institutional racism” (Amnesty International 2023). These organizations, among many others, have co-ordinated to inform and sustain public awareness and debate on structural and institutional forms of racism in German policing.

To focus on one strand of this global conversation, legal scholar Max Pichl (2022) outlines some of the ways that scholarship and public debate in Germany stands to benefit from comparative work on race and racism, and institutional racism in state institutions more specifically (580-81). For instance, he examines the usefulness of ethnographic research in policing institutions (e.g. Didier Fassin 2013) and non-legal activist and advocacy collectives (e.g. Alice Goffmann 2014) in helping to articulate that police do not only enforce law and order, but they service and create a type of stratification and racialization in certain social spaces, and that such racial stratification is made visible through the work of anti-racism activist networks. Given that it is already cumbersome to discuss race in German legal settings, given the sociolinguistic obstacles described earlier, scholarship on race and policing needs to be more methodologically attentive to addressing issues faced by vulnerable communities, and this means extending legal scholarship into ethnography and social science, and examining the work of non-legal actors in describing the problem of racism.

Third, there is contestation around whether and how to measure the disparate impact of institutions, including policing institutions, on people in communities that are vulnerable to racial oppression. Racial profiling across Europe is a common and well-researched phenomenon (Open Society Institute 2009), but how it is perceived, understood and indeed measured varies from country to country. There is a presumptive prohibition of collecting racial data, with some exceptions, in much of Europe (Farkas 2017). In some places, such as the United Kingdom, data is collected relatively widely, including in policing scenarios such as instances of stop-and-search (UK Government Website 2022). In France, where a model of French Republicanism has meant that racial difference is both legally and socially discouraged, data on racial and ethnic groups in policing scenarios is difficult to attain (Simon 2008). In Germany, data disaggregated by race on policing stops, identity checks, instances of policing violence or other policing engagements is not collected centrally (Farkas 2017).

The German National Anti-Discrimination Office, which is tasked with promoting equality in Germany, describes on its official website a scene that may be familiar to Germans either from having witnessed it or having read about similar cases in the news. It describes a person of color being singled out by police on a train to present identification documents (Antidiskriminierungsstelle des Bundes 2022). This scene mirrors a very similar case which was decided at the European Court of Human Rights (ECtHR) in 2022, where the court held that the potential for racial discrimination had arisen when a German family of Indian heritage was singled out and asked to produce identification documents on a train and this potentially discriminatory act should have been more carefully examined; failure to examine this potential resulted in a breach of the guarantees of the European Convention on Human Rights (Basu v. Germany 2022). The Court, while sending a signal that racial discrimination must be properly investigated, did not uphold the presumption that the singling out of this family, on the facts presented, constituted a violation of their dignity such as to amount to impermissible discrimination. So there is arguably still significant room for courts to shift towards more recognition of the deleterious effects of racial discrimination (Barskanmaz 2022). There have been other claims upheld at the ECtHR, confirming violations of Article 3 of the European Convention on Human Rights (prohibition of inhuman or degrading treatment) by police of people from vulnerable communities, such as in the case of Women’s Initiatives Supporting Group and Others v. Georgia (2022; where police failed to adequately protect LGBTI people and supporters from violence); Jalloh v. Germany (2006; where police were found to have violated a Sierra Leonean man’s human rights when they forcibly administered an emetic to remove drugs from his body); and particularly in regard to Roma claimants, as in Moldovan No. 2 and Others v. Romania (2015; where police were ruled to have incited violence and the destruction of property by non-Roma villagers); and Bekos and Koutropoulos v. Greece (2005; where police physically and verbally abused applicants in the process of an interrogation).

While it is relatively recent that institutional racism has been used in public discourse as a framing logic for certain types of policing praxis in Germany, scholars in law, sociology and anthropology are grappling with and applying the term nore frequently (Bruce-Jones 2017; Graevskaia 2022; Thompson 2020). For example, interdisciplinary social scientist Vanessa Eileen Thompson argues that institutional racism is an important lens for helping better describe what racism actually is as a social phenomenon—that the practice of racial profiling is premised on maintaining longstanding and deeply rooted logics of a relatively homogenous society that should fear and thus control those at its margins (2020). As institutional discrimination is a conception of discriminatory praxis that goes beyond intentional, individually-motivated acts, one must examine patterns, logics and impacts of policies and practices (including omissions) to understand the “institutional” part of the term.

Institutional racism, to use MacPherson’s (1999) definition from the Stephen Lawrence inquiry report in the U.K., is “[t]he collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture, or ethnic origin. It can be seen or detected in processes, attitudes and behaviour which amount to discrimination through unwitting prejudice, ignorance, thoughtlessness and racist stereotyping which disadvantage minority ethnic people” (6.6). To establish that a collective failure exists, and that unwitting prejudice, ignorance or thoughtlessness are embedded in practices, it is important to be able to identify patterns of disadvantage. Such patterns rely on some basis for comparison, which in turn relies on a basis in statistical data. It also relies on a reasoned nexus between the data on difference and the type of treatment that one might deem legally impermissible or discriminatory. Ultimately, then, the way we conceive of, measure and assign value to race, as a category of analysis, will play a role in to the extent to which we are able to combat racism, in policing institutions and elsewhere.

Eddie Bruce-Jones is Professor of Law at SOAS, University of London. He is author of Race in the Shadow of Law: State Violence in Contemporary Europe. He earned his PhD from the Institute for European Ethnology at Humboldt-Universität zu Berlin.

Works Cited

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