Law plays a pivotal role in the “construction” of diversity as it allows the legalization of exclusion and discrimination. Part of the historiography concerns itself with the events which devastated the Jewish population in the 1940s and maintains that the requirements of the death camps have to be found in the law, suggesting a reflection on the specific responsability of those who drew up such legislation. At the beginning of the 1940s, when anti-Semitic legislation reached its highest territorial extension, European jurisprudence was engaged in a common reflection on the formation of a new geo-political order and on a new legal order essentially focused upon “anthropical elements”. The present essay proposes to reflect on the contribution of jurisprudence in the construction of racial differences, paying heed to the ideas by which the architects of such laws came to articulate a juridical discourse founded upon ethnic data. Attention is also paid to the experience of fascist Italy and to that of Vichy France,
which have been long considered by historians as mere reproductions of the National Socialist model, with much attention paid to legislative texts as well as to the theoretical constructions originated by racist doctrine. We show how lawyers, who were engaged in racial fascist politics and in that of Vichy anti-Semitism, succeeded in giving voice to the binomial race and rights. These same lawyers constantly integrated biological, anthropological and political data when dealing with law, thereby contributing to the improvement of racial legislation. We focus then on the original character of the solutions which were proposed by Italian and French legislators, illustrating how the integration of the racial data within the law took place along the backdrop of a constant adaptation of the single national juridical experience: some traditional liberal and republican ideas and categories – first and foremost “the principle of equality” – were then rethought and made compatible with the new criteria of “inequality of racial origins”.
