Identity politics and comparative law

1. Introduction

The notion of ‘personal identity’ refers to the persistence of an individual's identity across time, for example, how one experiences a sameness of consciousness and memory about one's life. ¹ This type of identity does not necessarily depend on other people: for example, such personal identity would also be relevant for a person who lives alone on a desert island. In practice, of course, humans are social beings and, in this context too, the notion of identity is used, namely in the form of social and collective identities. ² These latter group identities are the types of identities that are meant when both supporters and critics use the term of ‘identity politics’ (despite some disagreement, as explained in this paper). Thus identity politics refers to the notion that social and collective identities should be a fundamental focus of politics.

In the comparative law literature, the topic of ‘identity politics’ featured in some papers of a Symposium on ‘New Approaches to Comparative Law’, published in 1997. ³ The subsequent years have also seen some publications that have addressed how certain forms of group identity relate to comparative law. ⁴ This paper aims to go beyond such specific examples in order to discuss the general relationship between identity politics and comparative law. It is suggested that comparative law provides two points of connection to identity politics. A first set of questions is about the laws reflecting identity politics. This can, for example, examine how different legal systems approach topics of identity politics and the effect any such rules may have. A second question is of a more radical nature as it asks whether insights from identity politics may challenge comparative law. For example, it may be argued that a radical view of identity politics may argue against the ability to understand, or even to transplant, legal ideas and rules across identity groups.

This paper proceeds as follows: having outlined the notion of ‘identity politics’ and its use in some further detail (section 2), it addresses the aforementioned topics of identity politics as part of comparative law analysis (section 3) and identity politics as a challenge to comparative law (section 4), followed by a conclusion (section 5).

2. Identity politics and its use in a nutshell

Since the early 1990s, the use of the term ‘identity politics’ is on the rise. ⁵ Despite, or perhaps because of this, there is some uncertainty about the meaning and appraisal of this term, specifically whether it is a term of the political left or the political right, and whether it is a term that has a positive or negative connotation.

It is often said that the term ‘identity politics’ was, for the first time, prominently used in a political campaign by an organization of Black feminist socialists, the Combahee River Collective. Having explained their aim as a ‘political movement to combat the manifold and simultaneous oppressions that all women of color face’, their 1977 manifesto states:

This focusing upon our own oppression is embodied in the concept of identity politics. We believe that the most profound and potentially most radical politics come directly out of our own identity, as opposed to working to end somebody else's oppression. In the case of Black women this is a particularly repugnant, dangerous, threatening, and therefore revolutionary concept because it is obvious from looking at all the political movements that have preceded us that anyone is more worthy of liberation than ourselves (…). ⁶

Yet in recent years we also observe the tendency for the term ‘identity politics’ of this left-wing variant to be used in a derogatory manner. ⁹ Such criticism comes from a variety of political directions. For example, a Marxist critique is that in identity politics ‘class is often ignored’ while Marxism is said to be able to explain ‘different forms of oppression, while also recognising that each exist within and because of the domination of one social class by another’. ¹⁰ From the perspective of liberal centrists, Mark Lilla equates identity politics with having ‘a resentful, disuniting rhetoric’, ¹¹ while Greg Lukianoff and Jonathan Haidt contrast a positive sense for ‘overarching common humanity’ identity politics with a destructive form of ‘common-enemy’ identity politics that sees ‘bipolar dimensions of privilege and oppression as ubiquitous in social interactions’. ¹² In the latter sense, Kwame Anthony Appiah also expresses the view that such forms of a identity politics ‘can be the enemies of human solidarity, the sources of war, horsemen of a score of apocalypses from apartheid to genocide’. ¹³

With respect to the political right, it can be argued that it is also very much engaged in identity politics. This is not only the case for the far-right ‘identitarian movement’, ¹⁴ but also mainstream variants of centre-right politics, not least since it is often a feature of conservative thought that it endorses traditional group identities. General examples are political views tied to religious groups as well as national and regional identities, including in the latter case separatist movements (e.g., in Canada and Spain). ¹⁵ In the context of US politics, it is also said that party identification on the right (and the left) is nowadays ‘a leading source of identity’, ¹⁶ and more specifically that, for example, gun ownership has emerged as a social identity of the right. ¹⁷

There are also commentators that use the term ‘identity politics’ to condemn this right-wing variant. Such a use is particularly prominent in Europe. For example, Horatia Muir Watt criticizes the ‘rise of identity politics and their shades of ethno-patriotism’ as claims of intolerance and exclusion. ¹⁸ Marlene Wind's book on the ‘tribalization of Europe’ mentions the democratic backsliding in Hungary and Poland, the UK's departure from the EU and the Catalan independence movement as examples of increased divisiveness where culture and identity are misused as being ‘impervious to critical engagement’. ¹⁹ And, applying a comparative lens, Abdul Noury and Gerard Roland contrast the use of the term ‘identity politics’ in the US, where it is associated with the political activism by minority groups, with a new and exclusionary identity politics of radical right populism in Europe. ²⁰

To conclude, identity politics is a term that denotes political positions of both the left and right according to which group identities ‘should be a fundamental focus of political work’. ²¹ The formulation ‘fundamental focus’ is important given that group identities are often also employed as secondary factors (and, thus, this responds to the conflicting slogans of whether ‘all politics is identity politics’ or ‘not all politics is identity politics’ ²² ). It is also different from anti-discrimination laws, as those laws may use identity terms precisely with the aim of guaranteeing equal treatment of anyone regardless of any group characteristics. Of course, this leaves many possible variations of laws reflecting identity politics, leading us to the topic of the next section.

3. Identity politics as part of comparative law analysis

Laws reflecting identity politics exist in many countries. Within the space of this paper, it is not possible to map all possible topics. Rather, this section proceeds as follows: first, it outlines representative examples from both left- and right-wing identity politics. As this part aims to show the range of rules that may reflect identity politics, some of these examples directly deal with group identities, while in other cases this connection is more indirect (e.g., migration rules). Second, this section discusses selective studies from other disciplines than law that aim to identify the causes and effects of such rules, setting a possible agenda for future research in this field.

Race and ethnicity appear in affirmative action policies in higher education, which can be associated with left-wing identity politics. Here, the 2023 landmark decisions of the US Supreme Court, which invalidated race-based affirmative action programmes, ²³ is also likely to trigger comparative research (while there are also already some prior comparative publications). ²⁴ By contrast, rules on migration and citizenship can be a means of right-wing identity politics, for example, as far as they contain an ethnic element through citizenship by descent and restrictions on dual citizenship. ²⁵ However, there can also be cases where race and ethnicity transcend the left-right and minority-majority divide: for example, South Africa kept the race classifications of the Apartheid era, with some rules now explicitly discriminating against the white minority of the country. ²⁶

Protection of religious beliefs may be a form of identity politics as far as lawmakers grant favourable conditions to religious communities. For example, it may be seen as a variant of right-wing identity politics if constitutions grant the majority religion of a country the status of a state religion. ²⁷ In other cases, rules on religions may be neutral and thus they may only be regarded as a case of identity politics if they were to disadvantage non-believers. However, de facto, some of such rules may mainly be relevant for minority religions and thus be classified as left-wing: for example, this may apply to country variations in the permissibility of religious private schools. ²⁸

Protection of indigenous languages and cultures is another ambiguous case. Such rules concern, for example, the protection of regional or minority languages, ²⁹ and in some countries there are special forms of intellectual property protection for traditional or indigenous knowledge. ³⁰ Some of these rules may be seen as left-wing as they protect minorities against other interests. Yet this is not necessarily the case if we consider examples of right-wing regional nationalism and situations where a country's traditional knowledge is part of a nationalist agenda. ³¹

Gender quotas are, in some countries, provided in rules for parliamentary bodies and corporate boards; yet there are many variations, for example, whether these are strict rules or recommendations, as well as details on the precise scope and requirements, which can therefore be analysed with tools of comparative law. ³² In terms of the left-right divide, these rules may typically be associated with the left as they aim to address the underrepresentation of women in politics and business. ³³ However, it has also been argued that some of the support for quotas derives from a position of ‘benevolent sexism’ that holds that women are weak and can therefore only succeed if they get protection; ³⁴ thus, such a position may be more in line with conservative views about gender (and even more so if it is regarded as progressive to treat ‘gender as choice’ ³⁵ ).

In these examples of laws reflecting identity politics, the political dimension already indicates the interdisciplinarity of this topic. Turning to the causes and effects of such rules also makes it necessary to consider research from other disciplines.

Starting with the question why countries provide rules such as affirmative action policies, a paper by Udi Sommer and Victor Asal is a good example of quantitative research in political science. It is based on data from 150 countries over a period of two decades, aiming to identity the drivers of affirmative action programmes across various fields. It finds that such programmes ‘systematically correlate with democracy, modernisation and globalisation’ while not excluding other factors such as the significance of public opinion or the role of social movements. ³⁶ A contrasting qualitative paper from higher education studies by Natasha Warikoo and Utaukwa Allen aims to understand why affirmative action in higher education emerges in different national contexts. Based on the analysis of developments in 20 countries, the paper identifies three historical pathways, namely ‘early nation-building projects, mechanisms to attenuate social inequality in response to identity based social movements, and twenty-first century “indirect” affirmative action policies’ (e.g., based on typical residence of underrepresented groups). ³⁷

The other causal question is whether laws implementing identity politics have the desired effect. Here, large-scale quantitative research in management studies has led to inconsistent findings as to the effect of corporate board quotas in different countries. ³⁸ As regards race-conscious policies (including quotas), there is a wealth of literature from the US, ³⁹ but also some comparative research. For example, a book by Erik Bleich provides a qualitative analysis of race politics in the France and the UK, exploring the origins and effect of colour-blind versus race-conscious policies respectively. The overall finding is presented as a trade-off: France's approach may be less capable of dealing with the meaningful disadvantages due to race, while it avoids dividing the population into different ‘ethnic camps’. ⁴⁰ The historical analysis in a book by Jens Heycke contains more varied case studies, from ancient Rome and early Islam to more recent ones such as Yugoslavia, Rwanda and Sri Lanka. In particular, it traces societies that have shifted between different models, finding that policies that accentuate group differences often had a negative effect for the social cohesion of the country. ⁴¹

To conclude, laws reflecting identity politics cover many topics, though we still lack a work that would present all of these topics in a cross-cutting and comparative manner. Such research may also compare how far left- and right-wing versions of identity politics share commonalities and how far they differ. ⁴² Moreover, it is suggested here that further empirical research is needed in order to explore both the causes and the effects of such rules, for example in order to tackle the problem of a possible reverse causality (which in quantitative research leads to the problem of endogeneity).

4. Identity politics as a challenge to comparative law

The previous section has shown that, in some countries and circumstances, identity politics is reflected in legal rules. It is also possible to apply its ideas to legal research, ⁴³ such as comparative law. Here it may be argued that identity politics could fundamentally challenge comparative law as it is conducted today. The following outlines and then responds to this challenge.

To start with, it is a key feature of identity politics that it asks for adequate representation of identity groups in bodies such as parliaments and corporate boards. Thus, following the frequent critique of comparative law's ‘Eurocentrism’, ⁴⁴ this would, for example, ask for better representation of scholars from all parts of the world in handbooks of comparative law. Going further, a radical version of identity politics argues that one's group identity is so essential that persons from other groups should not act as if they are of this group. ⁴⁵ Thus this would ask legal scholars not to ‘appropriate’ a foreign legal system by writing and teaching about it; ⁴⁶ and, applying it to the categories of legal families, this would argue in favour of an unbridgeable gulf between such legal traditions akin to the view that ‘men are from Mars and women are from Venus’. ⁴⁷ A radical view of both the left- and right-wing variants of identity politics may also argue that cultures should be kept relatively separate. Thus, for comparative law, this would mean that legal transplants, including citations of foreign courts, ⁴⁸ should not happen, but rather that each country should follow its own path of legal development. Finally, it is a view of some variants of identity politics that historical injustices are ever-present today as they continue in forms of systemic biases against certain identity groups. ⁴⁹ Thus in comparative law a corresponding view may regard everything related to non-Western legal traditions as permanently under attack and therefore worthy of protection against the oppressive force of Western law. ⁵⁰

The first point mentioned in the preceding paragraph can be fully endorsed. In other words, it is a good idea to broaden the scope of voices in comparative law. In a recent handbook, which aims to have a good geographical representation of contributors of all parts of the world, this point is explained as follows:

Geographical representation is relevant and important for studying comparative law because many of its core concerns relate to different ways of understanding ‘law’, not just conceptually but also how it operates in practice. For example, as comparative law delves into topics such as legal culture, legal transplants and law's role in social and economic development, it is possible that authors from different parts of the world would approach these topics from different perspectives – and these different perspectives would therefore be crucial for comparative law to consider. ⁵¹

To start with the general counterarguments, some of the radical versions of identity politics are akin to ad hominem attacks given that they care less about the substance of any problem (say, in the case of comparative legal scholarship, this may be the misrepresentation of a particular legal culture) than the person who says it. This attitude was rightly criticized in a speech by Barack Obama, namely that one should not say that some persons ‘lack standing to speak on certain matters’ because of their group identities. ⁵² It may also not be wanted by individuals of the ‘correct’ identity groups given that they may regard it as a process of essentialization that reduces them to mere spokespersons of their identity group. ⁵³

A further common problem of both left- and right-wing variants of identity politics is its tension with human commonalities and the importance such commonalities have for peaceful human coexistence. For example, human commonalities are said to be beneficial in their emphasis on openness, diversity and competition of ideas, while an emphasis on group identities can lead to localism, exclusiveness and ideological cleansing. ⁵⁴ In other words, there is the risk that identity politics creates ‘a parochial particularism that amplifies a Schmittian friend-enemy dynamic in politics by pitting different groups against one another.’ ⁵⁵

Another general problem with identity politics is that, in some variants, it asks us to come to ‘the correct’ understanding of history in order to distinguish the groups of oppressed and oppressors. Thus this position risks endless conflicts about the interpretation of historical events while it disregards the tangible challenges of the world today. ⁵⁶ As individual responsibilities can only exist for one's own past actions, it is also clear that one should not judge an individual by what their ancestors did. This can also be supported by theories of justice: for example, consider only John Rawls’ insight that people reach the most just solution on their society's basic principles if they imagine themselves behind a ‘veil of ignorance’ (i.e., in the present case not knowing which identity group of society they would belong to). ⁵⁷

Finally, counterarguments from comparative law provide further reasons to be sceptical about using identity politics as a guide to comparative law. It is well established that legal systems frequently incorporate ideas from abroad: ‘every legal system contains imported elements’ ⁵⁸ and law's evolution ‘has always been externally influenced’. ⁵⁹ Likewise, legal understanding is not restricted to members of a particular ingroup: legal systems should not be seen as ‘closed frameworks’ that foreigners can never enter ⁶⁰ and ‘borders of legal systems should not be seen as borders of knowledge acquisition’. ⁶¹ It is therefore also not appropriate to engage in forms of essentialism that create binaries between ‘us’ and ‘them’ as one explores the complexities of the legal world. ⁶² Instead, in comparative law, legal cosmopolitanism should be the way forward as it presents an openness to other experiences with the potential to integrate one's own and foreign legal cultures. ⁶³

5. Conclusion

Identity politics is on the rise. It plays a prominent role in the US, but this paper has shown that elsewhere too it is often common to use social and collective identities in both law and politics. Even external political events (such as Covid-19 and the attack by Hamas) are today often interpreted from the perspective of identity politics. ⁶⁴ Moreover, the identity politics of the political left and right stimulate each other, ⁶⁵ which is also not entirely surprising given that they share many common features.

This paper aimed to show that identity politics is relevant for comparative law as many rules in many countries address such topics. For comparative lawyers, it therefore offers an opportunity to compare such rules across topics and countries (or other legal regimes). Such work may also assess whether countries can learn from each other; yet, in this regard, comparative legal scholars may also raise concerns if ideas and laws of identity politics are treated as easily transferable regardless of the different historical, political, social and economic contexts of countries.

As far as the impact of identity politics on comparative law itself is concerned, this paper suggested a cautious approach. It is helpful to remedy the Eurocentric bias of comparative law by way of broadening the geographical representation of its scholarship. Yet this paper did not endorse forms of exclusionary identity politics that apply an essentialist position of group identities. Thus it advocated that comparative lawyers should push back against such trends and their negative impact on comparative law.