Science, identity and the law: Intersecting conceptualization and operationalization of race and ethnicity

Pap, András László and Kovács Szitkay, Eszter (2023) Science, identity and the law: Intersecting conceptualization and operationalization of race and ethnicity. SOCIÉTÉS PLURIELLES, L'iden (5). pp. 3-60. ISSN 2557-9959

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Abstract

The comparative legal scholar authors, working a broad project mapping how law conceptualizes and operationalizes race, ethnicity and nationality, provide an assessment of the triadic relationship between law, identity (making and claims recognition) and science. The project focuses on race and ethnicity, excluding the discussion of gender identity, but the latter is used as a point of reference to demonstrate the transformative changes in the past years in how the meaning of the terms of identity are assigned and conceptualized in social sciences and humanities, and to a certain degree in politics and law. Yet, there is a debilitating lack of linguistic and conceptual resources, cultural tools, and a solid and proper vocabulary for thinking about racial identity, which is particularly stark in the field of law, especially international law, which habitually operates with the concepts of race, ethnicity, and nationality when set- ting forth standards for the recognition of collective rights or protection from discrimination, establishing criteria for asylum, labeling actions as genocide, or requiring a “genuine link” in citizenship law, without actually providing definitions for these groups or of membership criteria within these legal constructs. The paper provides an overview of the obstacles, challenges and controversies in the legal institutionalization. In technical terms, the operationalization of ethnic/racial/ national group affiliation can follow several options: self-identification; authority given to elected or appointed members (representatives) of the group (leaving aside legitimacy-, or ontological questions regarding the authenticity or genuineness of these actors); classification by outsiders, through the perception of the majority; or by outsiders but using “objective” criteria, such as names, residence, et cetera. The paper also provides an assessment of how “objective” criteria, data and constructions provided by science translate into the legal discourse. Case studies will be used from anthropological/historical “scientific knowledge,” and the operationalization of (performative) whiteness and otherness in the US, to contemporary examples of requiring DNA-heritage certificates in naturalization and Diaspora-programs (for example for birthright schemes in Israel); race-focused forensic datasets; and race-based medicine and reproductive technologies – where the methodology and conceptualization of “scientific race” is analyzed in a com- parative and critical framework.

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