My own life story is bound up with African class struggles against social imagination, reproduction of whiteness and colonial ideologies of power. Based upon his experience, I will argue that criminalisation is not just restricted to the border context, but occurs even after migrants cross the border. Therefore, this article will pay close attention to the disruptive articulation between the rule of law and the meritocracy system’s rhetoric of merit, challenging both the assumption that race is an equal starting point for all runners and the ideal of socioeconomic equality between races. 

 

The argument is based upon data from the German labour market (using the labour market as a proxy to study institutional racism), where inequality and discrimination have risen despite a decade of litigation to reduce them. The data show a rise in discrimination of around 15% between 2018 and 2019. The absence of more consistent data on migrants’ struggles against discrimination and inequality makes it difficult to dig deeper into the reality during and after COVID-19. 

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The fundamental rights to equal treatment in Germany 

 

In 2015, Germany became one of the largest receiving countries in Western Europe, allowing in more than 1 million refugees.

 

Refugees are entitled to protection primarily by the state. According to Article 1 of the Basic Law (the German constitution, ratified in 1949 after the Second World War), the state pledges to honour and protect the dignity of every human being and to acknowledge human rights as the basis of every community. Specifically, Article 1.1 states: ‘Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.’

 

The equality of all human beings before the law is anchored in Article 3 of the Basic Law, reformed in 1994 to ensure equal rights for women and men and extend the protection of disabled persons against discrimination. These equality rights are the basis of the German legislation guaranteeing equal treatment and preventing discrimination.

 

Another important legislative measure results from four European directives: the Racial Equality Directive, the Equal Treatment in Employment and Occupation Directive, the Equal Treatment in Goods and Services Directive, and the Equal Treatment Directive. These four European directives have been incorporated into German law via the General Treatment Act (Allgemeines Gleichbehandlungsgesetz). Those directives aim to designate certain groups of people as requiring special protection, to improve their integration into the labour market, and to prevent or eliminate discrimination in the access to and supply of goods and service.

 

Criminalisation under the constitutive dimension of law and race 

 

However, integration does not only depend on the commitments, efforts, and achievements of immigrants and their offspring but also on the structure and openness of the receiving society. Racial formation theory sees race as a social construction rather than a biological one. This theory investigates how law and race mutually constitute each other in an ongoing dialectic process and also relate to broader political dynamics and state projects. This is the case of Germany’s legal system. The question here is the concept of race, or Rasse, in Germany, a term that appears in the Basic Law and since 1949 hasn’t been modified. Therefore, given Germany's national-socialist past, questions of race undoubtedly cause even more discomfort when statistics show the rise of discrimination, inequality and xenophobic crimes against migrants and refugees. 

 

Racial formation theory shows us how law intervenes in the reproduction of race ideology, and its key role in producing the racial order as well as intertwining ideas about race with class-based stereotypes. This is what historian Manning Marabel stresses when he talks about race – not as a biological or genetic category, but rather, as a way of interpreting differences between people which creates or reinforces inequalities among them. 

 

The dangers of the meritocracy system 

 

Rule of law means that government officials and citizens are bound by and abide by the law. Thus, the government will enforce the legal rules when they are breached. Under the rule of law paradigm, the ideals of fairness, individual competition and distributive justice depend on an arbitrary interpretation of individual performances. ‘Arbitrary’ here means a manifestation of power that is not constrained by a suitable framework of law. The law cannot fully prevent inequality, discrimination, and prejudice against vulnerable groups; according to psychologists Craig Haley and Aida Hurtado, the ideal of merit invalidates the equality of treatment aimed for by laws and policies of anti-discrimination. These laws are overridden by the meritocracy system, which defines fairness and prescribes individual roles to fit into a society ruled by merit. This is achieved through the discourse of individualism, a discourse that posits race as irrelevant, obscuring how social positioning impacts opportunity. Therefore, it claims that we all act independently from one another and that we have the same possibility of achieving our goals. 

 

When we consider the German labour market, before COVID-19, the rise of inequality consequence of discrimination is usually explained with two factors (see, for instance, this and this study). One is taste-based discrimination, caused not by prejudice but by social and physical distance, relative socioeconomic status, and ignorance about the discriminated’s efficiency. The second one is statistical discrimination, based on the scarcity of information about the existence and characteristics of discriminated workers and jobs. Those explanations help rationalise and justify discriminatory decisions. 

 

Conclusion 

I have gone through a long experience of prejudice to overcome the interpretations of race and individualistic arbitrary power upheld by Whiteness, present in Germany’s labour market. This is nonetheless an experience of individual struggle committed to disclosing the reasons behind rejection. The constitutive dimension of law and race, under the framework of racial formation theory, informs us of the ongoing dialectic relation between race and law that con-construct each other and ultimately reproduce and transform racial inequality in German society. At the same time, the meritocratic ideology where there is no longer a perpetrator reinforces racial inequality and prejudice against minority groups, and detracts protection and equality guarantees from the rule of law within national borders. Those elements promote the power of arbitrary freedom linked to individual Whiteness. Merit is debated here as a path that does not legitimise diversity, because it implies that inequalities are the product of a lack of merit whenever they cannot be attributed to overt discrimination or clearly identifiable discriminatory practices. For the ideology of merit, all treatment is equitable and fair in the absence of overt prejudice, rejecting any alternatives to make dominant culture standards change and evolve.

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