Ethno-racial identity (politics) by law: “Fraud” and “choice”

Abstract

Following an introduction to the changes in how ethno-racial identity is conceptualized in the social sciences and humanities by the destabilization of categorical frameworks, the author looks at how law reacts to these discussions and paradigm shifts, and argues that legal and administrative approaches face severe linguistic and conceptual limitations by operating within a “choice” and “fraud” binary. The article then questions if the free choice of identity exists as a principle of international minority protection law, a legal field that arguably represents a global political and ethical consensus. The author makes two claims. First, according to the basic tenet of legal logic, a proper right to free choice of identity allowing people to opt out of racial, ethnic, or national (minority) communities would necessitate the freedom to opt in to the majority or to any chosen group. The second claim, however, is that international law would not actually construct an approach to opting in. Thus, the right to free choice of identity is not an autonomous,sui generisright under international law.

Conceptualizing and Operationalizing Identity, Race, Ethnicity, and Nationality by Law: An Introduction

“…The broader aim of this project is to map the role and potential of law to conceptualize and operationalize (i) race, ethnicity, and nationality; (ii) the various types and forms of political and legal institutions, as well as policies built on these social constructs; (iii) and the role of identity and modes of identification in the conceptualization and operationalization. As argued earlier (Pap 2017 andBrubaker 2015), the past decades brought transformative changes in how the meaning of the terms of (first of all gender, but also) ethno-racial identity are assigned and conceptualized in social sciences and humanities, and to a certain degree in politics and law. Brubaker (2015) emphasizes the lack of linguistic and conceptual resources, cultural tools, and proper vocabulary for thinking about racial identity.…”

“…In most cases, a formalized self-declaration suffices for eligibility to receive collective rights, with occasional additional objective requirements such as proven ancestry (by some sort of official documents) or the proven knowledge of the minority language. Curiously, states are more reluctant to define membership criteria for domestic minority groups than for the titular majority population, a practice often followed in legislation implementing ethnicized concepts for external dual citizenship or Diaspora provisions similar to those of status law (Pap 2015;Pap 2017).…”