In the final words of his article on race and legal status in British Africa, cited as the title to the present essay, Christopher J. Lee points to the central issue underlying all three essays in this forum: how racial categories that seem clear and obvious to the legislators or judges who propound them run up against societies not amenable to such characterization. The process of differentiating among classes of citizen or subject is not an easy one, and it becomes increasingly complex with the growing complexity of societies. Making such distinctions often involves violence and caprice. Indeed, at the back of one's mind while reading these essays on racial distinctions in law are the huge, “extralegal” actions undertaken over the course of the twentieth century to categorize, to spatially reorganize, and to purge certain groups in Europe, marked especially by the population transfers in the Soviet Union and the Nazi German empire.Footnote ¹

“Extralegal” is in scare quotes above for a reason. These coercive classificatory schemes were executed through legal norms, legal commands, and a hierarchical structure of rules, but often without an established or effective system of formal legal actors such as professional lawyers and judges. In a strict sense, law as a set of norms does not require such formally trained actors.Footnote ² At the same time, in both the Nazi and Soviet cases, models of extreme violence in the last century, aspects of the formal legal system remained, even while accompanied by direct violence not subject to formal controls. And indeed the appearance of legality mattered in both: although more to Stalin, who was seeking to reestablish and consolidate central authority, than to Hitler, whose regime in a sense cannibalized the remnants of conservative statism.Footnote ³ The presence or absence of formal law and institutions does make a difference to the way the classificatory projects work out.

The articles published here show precisely how an established, formal legal apparatus affected the implementation of classificatory schemes. In all three cases, the use of “race” as a formal category of organization involved actors who made reference to nonformal criteria, criteria not clearly defined in law itself, for their decision making: the criteria of politically appointed “experts” on race, community opinion, party leaders, but also administrators and political appointments to the bench. In all cases, at issue was an attempt to shape and order society hierarchically, along the lines of precisely the concept of race that proved, in practice, so difficult. In a sense, difficulties in formal law were evaded by appealing to “reality”; the turn to reality implied the relinquishing of power (and responsibility) by formal legal authorities. I will return subsequently to the problem of what these cases show us about the organization of formal legal systems.

However, first a word on the distinctions among the cases is needed. It is a truism to note that “race” has been central to the formation of “modern” states, one of the themes that links the three articles presented here: the formation of a “color line” in the United States South, the development of different legal jurisdictions covering “natives” and “non-natives” within the British Empire, and the imposition of new racial laws by Nazi Germany.Footnote ⁴ At issue in all three cases were rights but also entitlements: access to educational institutions, access to state support, and, crucially, access to courts. At issue were also the very lives of the people involved, including their ability to act socially—or in the case of Nazi Germany to survive. And here one starts to see some crucial distinctions among the cases, which may call into question their comparability.

The phrase “racial state” oversimplifies. For the “state” is a somewhat different entity in each case. John Wertheimer et al. give us a picture of the way a community shapes itself, as one group seeks to exclude three boys from a school on racial grounds that do not correspond to the racial laws in effect in South Carolina. The initiative is from below; the decisive action occurs, however, from above, as a state supreme court justice pushes through a ruling that ignores the complexity of the case in order to proclaim a different standard for racial differentiation than what existed in law. This is not the decision of an abstract, anonymous “state”; indeed, the federal level of jurisdiction is simply absent in the story. Instead, it is the brutal and hypocritical decision of a political appointee, linked therefore with representative democracy at the level of an individual “state” (in German, one would say Gliedstaat to avoid confusion). Lee's article deals with a very different matter: in effect, the attempt of British imperial officials to deal with the fact that the apparently clear distinction between natives and non-natives in the African colonies fell apart at the level of the individual colonies. The issues in the British Empire are somewhat different, not just imposing racial categories but seeking to provide protections for “natives” and separate jurisdictions that recognize different rules of law in specific contexts. The British imperial lawyers seem to have had a real difficulty squaring a notion of the rule of law and liberalism with the realities of the colonies: Chief Justice Eugene Gary of South Carolina, by contrast, had no difficulty whatsoever in changing existing constitutional laws in order to further the cause of white supremacy. The developing racial states of colonized Africa may have parallels to the Jim Crow South, but the story told by Lee is really of the Empire, not of the colonial states. Finally, the racial state in Nazi Germany seems to be something different entirely. Here, at issue is how to separate one group out from society, how to deprive it of constitutional rights, and eventually how to exterminate it. And the political context is acutely different: a one-party dictatorship bent upon war and extreme violence against members of its own society. Thomas Kaplan shows us well how life itself was at stake in some of the paternity suits he investigates.

The political context of these legal issues therefore matters quite a lot; the political system was not incidental to the legal system, but rather central to it. That does not mean that law and politics were identical. Indeed, the three case studies here point up the importance of how politics and law relate. In the South Carolina case, local politics set the case into motion, although on the basis of Jim Crow provisions in the state constitution; a thoroughly politicized judiciary transformed the local dispute into a legal precedent, and in doing so violently removed the ambiguous position of Native Americans in the South Carolina racial system. In the German case, the Nazi dictatorship laid down new rules, which it expected the courts to enforce. But the dictatorship remained distrustful of the lawyers and also operated outside the law, directly. It reorganized the courts to permit a different kind of prosecution of such cases, it demanded that courts recognize “experts” appointed by the dictatorship and adhering to the racial beliefs of the dictatorship, and it increasingly sought to halt lawsuits as the Holocaust itself began. Within Kaplan's story there is another story of the escalating attack on legal structures by a dictatorial elite immersed in an eschatological anti-Semitism; Ernst Fraenkel's famous “dual state,” a concept he developed in the late 1930s to describe the simultaneous existence of the traditional legal system and extralegal political practices of systematic violence, looks in retrospect to have been an “order” in process of dissolution.Footnote ⁵ Finally, the British imperial administrators, whatever their own prejudices, seem more like overwhelmed managers than actors; they are, perhaps, witnessing processes at a local level that presage the end of empire.Footnote ⁶ The political system, then, entered in the form of the court itself in South Carolina; as the demand that the court consult experts in the Nazi state; and as an attempt to make sense of a complex empire that was increasingly losing its unified legal character in the British Empire.

But no matter what, politics does enter into the cases: the legal system is not an entity in itself, but part of a political project. It is the political demand for racial classification that in fact creates the difficulties that courts will see in practice; no wonder that in each of the three cases some nonformal means is found to resolve difficult problems. The case of British Africa is quite useful here. The law contained an essential ambiguity, defining “native” and “non-native” both on the basis of jus soli and of jus sanguinis, the principle of domicile and the principle of descent. The first seemed to make people of European descent born in the colonies into “natives,” the second posed the problem of “mixed-race” subjects of the crown and also raised the question of racial borders: after all, the coasts of Africa were home to a multitude of people from around the Indian Ocean, not just either “blacks” or “whites.” Add to this mixture the official liberal justification of colonialism as a project of raising ostensibly uncivilized people up to civilized status, and one is confronted with some difficult distinctions indeed. The imperial administrators fell back on culture, on “lifestyle,” as a way out, immediately raising even more problems. “Culture” seems to imply precisely the “complexity of lived experience”, and deference to it seems to do little more than assign to legal actors the challenge of intervening in and sorting out that complexity. In other words, it detracts from legal clarity and enhances judicial power, or rather the power of judicial prejudice. The turn to “culture” is even more crass in the South Carolina case, in which Chief Justice Gary, seeking to deepen the black–white divide and solidify segregation, demanded that “racial instinct” be relied upon to determine the race of an individual in lieu of any evidence. What is “racial instinct” except for unadulterated, unexamined prejudice, now raised to the level of doctrine? What is it other than the “healthy sentiment of the people” praised by the Nazis? It is notable that the German courts, even under the Nazis, did not turn toward culture in the same way, but relied instead upon racial “experts”. Nonetheless, the reliance upon experts had the same effect of handing over to a specific group the right to determine who belonged to which group on the basis of subjective opinion (e.g., evaluating the shape of a person's nose).

Even as acute differences emerge involving the different political projects involved in each of these cases, there is a similar trend in each one to shift from formal analysis of law to a nonformal examination of “life” itself. But the shift is not uniform. It would be incorrect to try to find an overall narrative of the transition from legal power to something like “biopower” or power over life, in the sense of a general process of modern state formation. The ultimate trajectories are in fact varied. The United States example is one of its states' developing separate legal cultures and separate kinds of racial orders, which would eventually run up against different needs of the federal state and United States internationalism after World War II: a more coherent legal structure, a domestic order more presentable internationally in the context of the Cold War, and a more uniformly organized economy, all factors that helped empower the victims of Jim Crow.Footnote ⁷ The British imperial order would give way to the multiple experiences of decolonization, with such dramatically different results in, for example, Kenya, Apartheid-era South Africa, and Southern Rhodesia/Zimbabwe. And the Nazi trajectory was not only toward aggression and imperialism, but also toward the ultimate destruction of formal legal institutions and expansion of the “concrete order” of the camps—and the eventual total collapse of the German state.