National Identity, Ethnic Surnames and the State

Canadian Journal of Law and Society

Volumn 11, Issue 2, 1996, Pages 167-191

  Scassa, Teresa ^a  

^a DALHOUSIE UNIVERSITY   (Canada)

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EID: 85012557610     PISSN: 08293201     EISSN: 19110227     Source Type: Journal    
DOI: 10.1017/S0829320100004907     Document Type: Article

References (96)

1. Eva Hoffman, Lost in Translation: A Life in a New Language (New York: Penguin, 1989) at 105.
2. “Individual names usually―though not always―serve as badges of the basic group identity. By language and style, they tell us a great deal about an individual's origins and probable present associations.” Harold R. Isaacs, “Basic Group Identity: The Idols of the Tribe” in Nathan Glazer & Daniel P. Moynihan, eds., Ethnicity: Theory and Experience (Cambridge, Mass.: Harvard University Press, 1975) 29 at 50.
3. Isaacs, “Individual names usually―though not always―serve as badges of the basic group identity. By language and style, they tell us a great deal about an individual's origins and probable present associations.”. at 46.
4. “Parent's Selection of Children's Surnames” (1983) 51 George Washington L.R. 583 at 583.
5. Dale Spender writes: “In order to live in the world, we must name it. Names are essential for the construction of reality for without a name it is difficult to accept the existence of an object, an event, a feeling. Naming is the means whereby we attempt to order and structure the chaos and flux of existence which would otherwise be an undifferentiated mass. By assigning names we impose a pattern and a meaning which allows us to manipulate the world.” Dale Spender, Man Made Language, 2nd ed., (London: Routledge & Kegan Paul, 1985) at 163.
6. Philippe Nérac, La Protection du nom patronymique en droit civil: Étude de jurisprudence (Paris: Presses Universitaires de France, 1951) at 21-22.
7. For example, the transmission of surnames is related to the legitimation of children and the passage of property in many jurisdictions. The right to a name itself has also been described as a right of property sui generis. T. P. Slattery, “The Meaning and Effect of Article 56a C.C.” (1953) 13 Revue du Barreau 23 at 24.
8. In fact, with respect to the attribution of and change of names, usage or custom is frequently resorted to in most countries. Report on the Name and Physical identity, of Human Persons, vol. 25 (Montreal: Office de révision du Code civil, 1975) at 7 [hereinafter Report on the Name and Physical Identity].
9. In Switzerland this power is deemed to be exercised by both parents. This is a shift from the former rule whereby the father was given the authority to decide the name of the child. Martin Stettler, “Le Droit suisse de la filiation” in Traité de droit privé suisse, t. 2 (Fribourg: Éditions Universitaires Fribourg Suisse, 1987) at 420-22. In Turkey, where there is conflict between the father and the mother over the choice of name, the father's choice will prevail. Tugrul Ansay, “Law of Persons” in Tugral Ansay & Don Wallace Jr., eds., Introduction to Turkish Law, 3d ed., (Deventer: Kluwer Law and Taxation, 1987) 105 at 115.
10. In the former socialist bloc countries, for example, the power to name was given jointly to the parents, but in case of disagreement it reverted to the state. A. I. Pergament, “Parents and Children” in O. N. Sadikov, ed., Soviet Civil Law (New York: M. E. Sharpe, 1988) c. 44 at 457.
11. Thus, at one point, the limit in Albania was one. In Poland, Portugal, Chile and Cuba, the limit was two. Sylvie Nautré, Le Nom en droit comparé (Frankfurt: Peter Lang, 1977) at 102.
12. Germinal An. XI. Note that this law is rather loosely interpreted today. It gained publicity in a recent case where parents who wished to name their daughter “Manhattan” were refused registration of the name. Upon the refusal of the parents to choose another name, a name was imposed by the civil courts. Parental appeals of this imposition were finally rejected by the Cour de Cassation, which relied on the 1803 law. Cass. civ. 1e, 17 July 1984, Bull. civ. 1984 I, No. 234. See also Roderick Munday, “The Girl They Named Manhattan: The Law of Forenames in French and English” (1985) 5 Legal Studies 331.10.1111/j.1748-121X.1985.tb00331.x
13. Name Act, R.S.B.C. 1979, c. 295, s. 7(2).
14. The historical relationship of surnames to filiation and succession is considered in the commentaries on the proposed revisions to Quebec's Civil Code: “Because of the importance attached in the Middle Ages to the family, and the considerable legal interest aroused by filiation in the field of succession, it became necessary to be able to relate a person not only to his parents, but to his entire family in the broader sense. This was done by using the family name common to all descendants through the male line. Finally, notaries and officers of justice also contributed to the hereditary aspect of surnames by entering them on deeds and in civil registers.” Civil Code Revision Office, Report on the Quebec Civil Code, vol. 2, (Quebec: Éditeur officiel du Québec, 1977) at 5 [hereinafter Report on the Q.C.C.].
15. Nautré, The historical relationship of surnames to filiation and succession is considered in the commentaries on the proposed revisions to Quebec's Civil Code: “Because of the importance attached in the Middle Ages to the family, and the considerable legal interest aroused by filiation in the field of succession, it became necessary to be able to relate a person not only to his parents, but to his entire family in the broader sense. note 11 at 121-23.
16. See the decision in Doe v. Hancock County Board of Health, 436 N.E.2d 791, at 794-96. Some jurisdictions have traditionally recognized the limited passage of the mother's name. In Spain, for example, compound family names are composed of both a “paternal” and a “maternal” element. Nevertheless, it is the “paternal” element which is transmitted to the following generation. Nautré, The historical relationship of surnames to filiation and succession is considered in the commentaries on the proposed revisions to Quebec's Civil Code: “Because of the importance attached in the Middle Ages to the family, and the considerable legal interest aroused by filiation in the field of succession, it became necessary to be able to relate a person not only to his parents, but to his entire family in the broader sense. note 11 at 122. In the United States there is somewhat more freedom in the choice of a child's surname. Nevertheless, individual states have repeatedly enacted statutes which regulate the use and choice of surnames. Some such statutes, which codified custom by requiring the passing of the father's name to a legitimate child and the mother's name to an illegitimate child, have been found to be unconstitutional. These statutes were said to violate the right of privacy which included the right of parents to choose the name of their child. Jech v. Burch, 466 F. Supp. 714 (Dist. Ct. Hawaii 1979); O'Brien v. Tilson, 523 F.Supp. 494. (Dist. Ct. N.C. 1981))
17. For example, one author notes: “Or l'une des plus graves et de plus fondamentales inégalités consiste bien pour les femmes à ne pouvoir transmettre leur nom; c'est d'ailleurs ainsi qu'a toujours été conçue cette impossibilité: le signe de l'infériorité des femmes et leur impuissance à perpétuer une lignée par filiation. ” Mireille Castelli, “Rapport de L'O.R.C.C. sur le nom et l'identité physique de la personne humaine” (1976) 17 C. de D. 373 at 374.
18. The Report on the Quebec Civil Code acknowledged that a rule requiring that a child bear his or her mother's name would be the “ideal solution” since “it would have the advantage of placing all the children on an equal footing regardless of the circumstances surrounding their birth, and whether or not their paternal filiation is established. It would also determine the primacy of the biological tie over the legal tie.” Report on the Q.C.C., The historical relationship of surnames to filiation and succession is considered in the commentaries on the proposed revisions to Quebec's Civil Code: “Because of the importance attached in the Middle Ages to the family, and the considerable legal interest aroused by filiation in the field of succession, it became necessary to be able to relate a person not only to his parents, but to his entire family in the broader sense. note 14 at 30. However, this option was not chosen by the authors of the report because it was considered to be a “premature” disruption of an “age-old tradition.” Thus, laws relating to naming tend to codify cultural practice and serve to reflect social values. Laws which change cultural practice with respect to naming would seem by logical extension to seek to alter or reconstruct social values.
19. See the discussion in Doe v. Hancock, The Report on the Quebec Civil Code acknowledged that a rule requiring that a child bear his or her mother's name would be the “ideal solution” since “it would have the advantage of placing all the children on an equal footing regardless of the circumstances surrounding their birth, and whether or not their paternal filiation is established. It would also determine the primacy of the biological tie over the legal tie. note 16 at 792-93.
20. For example, reasons for a denial of a change of name petition may include the fact that the desired name is one which is “bizarre or unduly lengthy or which would be difficult to pronounce or would have a ridiculous or offensive connotation.” Jane M. Draper, “Circumstances Justifying Grant or Denial of Petition to Change Adult's Name”, 79 A.L.R. 562 at 569.
21. In the United States, the evaluation of the sufficiency of the reason for a change of name is left to the courts, whose discretion is generally governed by statute. The Report on the Quebec Civil Code acknowledged that a rule requiring that a child bear his or her mother's name would be the “ideal solution” since “it would have the advantage of placing all the children on an equal footing regardless of the circumstances surrounding their birth, and whether or not their paternal filiation is established. It would also determine the primacy of the biological tie over the legal tie. at 566.
22. See, for example, article 57 of the C.C.Q.
23. For example, under article 58 of the C.C.Q., the registrar of civil status may register a change in name if the name is of “foreign origin or too difficult to pronounce or write in its original form.”
24. The Nazi policy had an early precedent―in 1828 a Prussian order (later repealed) forbade Jews to use “Christian” first names, thus in a sense requiring them to bear their names as a badge of their religion.
25. Administrative regulation of the Minister of Justice of the Reich, 21 April 1938. See Nautré, The Nazi policy had an early precedent―in a Prussian order (later repealed) forbade Jews to use “Christian” first names, thus in a sense requiring them to bear their names as a badge of their religion. note 11 at 27.
26. George L. Mosse, Toward the Final Solution: A History of European Racism (London: J. M. Deut and Sons, 1978) at 211.
27. See discussion below in “Public Interest in the Retention of an Ethnic Surname.”
28. “Die bedeutenden historischen Aeitmarken eines sieben Jahrzente wahrenden Konfliktes” Frankfurter Allgemeine 8 Jan. 1991 at 8.
29. Alessandro Pizzorusso, Le Minoranze nel diritto pubblico interno (Milano: Dott. A. Giuffre Editore, 1967) at 436.
30. Pizzorusso describes this type of measure as being “intrinsically absurd.” He writes: “A prescindere dall'assurdità intrinseca di una misura del genere, la quale rappresenta il massimo grado di esasperazione cui sia pervenuto il delirio nazionalistico di Ettore Tolomei, è da osservare come fosse giuridicamente singolare imporre ai cittadini di modificare il cognome della loro famiglia, pacificamente usato magari da generazioni, senza tenere conto della volontà dei diretti interessati. Le Minoranze nel diritto pubblico interno. at 439.
31. Pizzorusso describes this type of measure as being “intrinsically absurd.”. at 436.
32. Pizzorusso describes this type of measure as being “intrinsically absurd.”.
33. This right is recognized in some domestic statutes. It is also enshrined in the American Convention on Human Rights, art. 18. In principle, this right is more akin to a property right or right of personality than a fundamental human right.
34. Yugoslavia, order of 20 October 1941; Luxembourg, order of 31 January 1941; Alsace, order of 16 August 1940; Lorraine, order of 28 September 1940.
35. The attempts to suppress non-Castilian vernaculars in Spain, including the Basque language, finally came to an end with the new Constitution of 1978. Along with the Constitution, “Language Normalization Laws” were passed regarding each language. See Juan Cobarrubias, “The Protection of Linguistic Minorities in the Autonomous Communities of Spain” in Paul Pupier & Jose Woehrling, eds., Langue et Droit/Language and Law, Proceedings of the First Conference of the International Institute of Comparative Linguistic Law (Montreal: Wilson & Lafleur, 1989) 399.
36. This right is recognized in some domestic statutes. at 409.
37. This problem can be particularly acute where the minority shares a language and ethnicity with a neighboring state.
38. “Where Names Can Kill” The Economist (2 March 1985) 50.
39. “Where Names Can Kill”. at 50.
40. Loi no 65-526 du 3 juillet 1965 relative à la francisation des noms et prénoms des personnes qui acquièrent ou se font reconnaître la nationalité française, J.O., D.1965.Lég.209. A predecessor of this law was Loi no 50-399 du 3 avril 1950, 3703, relative à la francisation du nom patronymique et du prénom des étrangers, J.O., 6 avril 1950, 3703, D. 1950.94.
41. In a decision rendered before the enactment of the 1965 law, the Paris Court of Appeal refused a petition by someone who sought to “changer son prénom à consonance Israélite pour éviter d'éventuelles persécutions dont sa famille avait souffert dans le passé.” Cour d'appel de Paris, 14 mai 1960, D.1960. 623. In setting out its brief reasons for refusal, the Court stated that “[I]l est constant et unanimement reconnu que les discriminations religieuses et les préjugés raciaux ne sévissent pas en terre française ou règne un esprit de grande tolérance.” “Where Names Can Kill”. at 623. Ironically, the same individual had earlier been successful in a petition to francise his surname, which the Court of Appeal found to present “incontestablement une consonance étrangère de nature à nuire à son intégration nationale.” “Where Names Can Kill”. at 623.
42. Mulumba Katchy, Le Droit au nom en droit zaïrois et en droit comparé (Kinshasa: Presses Universitaires du Zaire, 1979) at 88. In addition, one French official has been quoted as saying: “If we don't insist on French names, half the men in Toulouse or Marseilles would be called José or Mohammed.” “As long as they spell it right” The Economist (2 March 1985) 50.
43. Names became related to national identity quite early in the rise of nationalism. In the late 18th century, the beginnings of Welsh nationalist sentiment sparked a movement among intellectuals to adopt Welsh names: “[T]here arose the fashion among a very large number of Welsh literary figures for bardic names of charm and fantasy.” Prys Morgan, “From a Death to a View: The Hunt for the Welsh Past in the Romantic Period” in Eric Hobsbawm & Terence Ranger, eds., The Invention of Tradition (Cambridge: Cambridge University Press, 1983) 43 at 65. This was occurring at the same time as a revival in interest in the Welsh language itself. Prys Morgan notes that the decline of the Welsh language was reflected in the growing anglicization of traditional Welsh names. He writes that: “The fixed surname in place of a string of patronymics connected by the particle ap (son of), had become the norm in the 16th and 17th centuries amongst the upper classes and the ancient system, which emphasized a man's genealogy and his connection with others in his community descended from a common ancestor, survived only in remoter areas and amongst the poor.” Le Droit au nom en droit zaïrois et en droit comparé. at 52. In this particular case, therefore, the resurrection of “traditional” names is part of the revival of a language.
44. See Nautré, Names became related to national identity quite early in the rise of nationalism. note 11 at 106. This legislation governed only the adoption of a family name. Nevertheless, the nation-building and linguistic nationalism of Ataturk also had its effects on the language of given names. Under Ataturk, the Turkish language was modernized. This involved standardizing and purifying the language and removing, in particular, influences from Arabic. Even the alphabet was changed from an Arabic to a Roman one. Along with the linguistic changes went changes in names: “[I]n the nineteenth century virtually all male names contained in the lists were of Arabic origin. Today, however, it is evident that names of Turkish linguistic origin are quite common.” Richard W. Bulliet, “First Names and Political Change in Modern Turkey” (1978) 9 International Journal of Middle East Studies 489 at 493.10.1017/S002074380003066X S002074380003066X
45. Katchy, Names became related to national identity quite early in the rise of nationalism. note 43 at 214, quoting Le Progrès (28. October 1971), regarding the change of name of the Republic of Zaire. Reprinted in the Belgian weekly Spécial (3 November 1971).
46. See Isaacs, Names became related to national identity quite early in the rise of nationalism. note 2 at 51.
47. Katchy, Names became related to national identity quite early in the rise of nationalism. note 43 at 26.
48. Isaacs, Names became related to national identity quite early in the rise of nationalism. note 2 at 52.
49. Arthur Scherr, “Change-of-Name Petitions of the New York Courts: An Untapped Source in Historical Onomastics” (1986) 34 Names 284.10.1179/nam.1986.34.3.284
50. The involuntariness of this procedure is reflected in the number and nature of so-called “reverse” name change petitions documented by Scherr. In these cases immigrants who had had their names altered on official documents upon entry into the country, sought to have their names officially restored to their original form. Names became related to national identity quite early in the rise of nationalism. at 291.
51. For example, one author, writing about surnames in Quebec, noted: “D'autres fois, le nom est encombrant parce que son orthographe est compliquée et sa prononciation difficile. C'est surtout vrai des noms de personnes d'origine étrangère qui, par souci très naturel de s'assimiler au milieu, s'efforcent de conformer leur nom, quant à l'orthographe et la prononciation, à leur langue d'adoption.” Simon Georges Parent, Le Nom patronymique dans le droit québécois (Quebec: Charrier & Dugal, 1951) at 89-90. This author suggests that the assumption of a new name consistent with the new language was part of the natural process of assimilation.
52. Falcucci Name Case, 355 Pa. 588 (1947) [hereinafter Falcucci].
53. The involuntariness of this procedure is reflected in the number and nature of so-called “reverse” name change petitions documented by Scherr. at 593.
54. It is important to note that in spite of the ideology of the melting pot, only names of Anglo-Saxon origin were considered to be American. One of the conclusions of a recent study on the reliability of the use of ethnic last names as a method of demographic sampling was that current trends among American Jews have moved away from assimilative name changes: “Apparently, name-changing was more common among the immigrant generation. American-born Jews, although not identifying in traditional Jewish ways, are comfortable enough in their American status to maintain names which are distinctively Jewish in character.” Harold S. Himmelfarb, R. Michael Loar & Susan H. Mott, “Sampling by Ethnic Surnames: The Case of American Jews” (1983) 47 Public Opinion Quarterly 247 at 256.10.1086/268783
55. Scherr, It is important to note that in spite of the ideology of the melting pot, only names of Anglo-Saxon origin were considered to be American. note 51 at 286 ff.
56. H. L. Mencken, The American Language: An Inquiry into the Development of English in the United States (New York: Alfred A. Knopf, 1937) at 501.
57. Re Rezek or Rennte, [1947] O.W.N. 21 (Co.Ct) at 22.
58. The American Language: An Inquiry into the Development of English in the United States. at 27.
59. This is in contrast to the position in civil law, where, in general, the change of name “is a privilege which the State may or may not grant an individual.” Report on the Name and Physical Identity, The American Language: An Inquiry into the Development of English in the United States. note 8 at 11.
60. In Re Rusconi's Petition, 167 N.E.2d 847 (1960) at 850.
61. The use of these change-of-name cases is not without its problems. The bulk of reported change-of-name cases deal with change of names of family members after divorce or remarriage. Reported cases dealing with change-of-name petitions relating to the ethnicity of names are few and far between. The cases I have collected are, for the most part, at least three decades old. From this, one might assume that whatever problem may have existed is already past. Further, one might conclude that most change-of-name petitions are acceded to and that the reported cases are just the rare, exceptional refusals. This would make them more like freak incidents than a trend in jurisprudence worthy of discussion. Nevertheless, it is also possible that the cases are just a representative sampling of refusals; or that they have established a standard for exercise of discretion which is as yet unchallenged. Although the cases are not the best “evidence” of what the law is today, they are to some extent the only available evidence. Further, although they may represent the worst of judicial discretion, they are useful evidence of legal trends and attitudes towards names. I use the cases in this manner―that is, I do not seek to establish what the law is regarding change of name (I consider the cases bad law, in any event). Rather, I use the cases as an example of unwritten language policy, of legal attitudes towards the language of names, and of the infusion of names with legal significance based upon their language.
62. In Re Cohen, 255 N.Y.S. 616 (Sup. Ct. 1932).
63. The use of these change-of-name cases is not without its problems. at 617.
64. The use of these change-of-name cases is not without its problems. at 618. The judge noted that he would nonetheless accede to the petition so long as the petitioner deleted the reference to the name Cohen as un-American.
65. The same emphasis on the nobility of the name “Cohen” was placed by a court refusing a petition to change a name from Morris Cohen to Louis Murray Kagan. In refusing the petition, the court stated that it “will not aid him in his desire to forswear his original identity by assuming another and totally different one.” Petition of Cohen, 297 N.Y.S. 905 (1936) at 906.
66. This “blaming the victim” is common enough in racial intolerance and gender bias. The deficiency is seen as being a problem of the person who is affected by or who responds to the intolerance.
67. Conn. Supp. 342 (1936) at 343.
68. Draper, This “blaming the victim” is common enough in racial intolerance and gender bias. note 20 at 573.
69. See This “blaming the victim” is common enough in racial intolerance and gender bias. note 25 and accompanying text.
70. Application of Filoramo, 40 Misc.2d 598, 243 N.Y.S.2d 339 (Civ. Ct. 1963) [hereinafter Filoramo].
71. This “blaming the victim” is common enough in racial intolerance and gender bias. at 340.
72. This “blaming the victim” is common enough in racial intolerance and gender bias. at 339.
73. Matter of Novogorodskaya, 429 N.Y.S.2d 387 (Civ. Ct. 1980) at 388.
74. In Re Kastenbaum, 44 N.Y.S. 2 (1943) at 2.
75. Matter of Novogorodskaya. at 2. In In Re Rusconi's Petition, Matter of Novogorodskaya note 62, the Supreme Court of Massachussets overturned a lower court decision similar in effect to that in Filoramo, Matter of Novogorodskaya note 72. A husband and wife petitioned to have their name Rusconi changed to Bryan. The lower court had denied the application in the interests of a “harmonious respect of races” (at 849). Again, the court had identified some sort of public interest in compelling the petitioners to retain the badge of an ethnicity from which they sought to distance themselves. The Massachussets Supreme Court, in overruling the lower court decision, restated the broad common law freedom of change of name, and the limited discretion of courts to refuse petitions. The judge concluded that “[t]here are no findings that reveal that the petitioners are seeking a change of name for a fraudulent or other dishonest purpose, or that such a change would be inconsistent with public interests” (at 850). There was, in the view of the higher court, no public interest in compelling the petitioners to retain an Italian surname.
76. Re Rezek or Rennte, Matter of Novogorodskaya. note 59 at 24.
77. Scherr notes that “pecuniary benefit” recurred with great frequency as a ground argued for the change of a “foreign” name. Scherr, Matter of Novogorodskaya. note 51 at 286 ff.
78. N.Y.S.2d 242 (Civ.Ct. 1967).
79. Scherr notes that “pecuniary benefit” recurred with great frequency as a ground argued for the change of a “foreign” name. at 244.
80. Scherr notes that “pecuniary benefit” recurred with great frequency as a ground argued for the change of a “foreign” name. at 245.
81. Scherr notes that “pecuniary benefit” recurred with great frequency as a ground argued for the change of a “foreign” name.
82. Application of Jama, 272 N.Y.S. 2d 677.
83. Application of Jama. at 146.
84. Application of Jama.
85. Application of Jama.
86. Application of Jama.
87. Green, Application of Jama. note 80 at 245.
88. Application of Jama.
89. N.Y.S.2d 146 (Sup. Ct. 1961).
90. Application of Jama. at 147-48.
91. [1987] C.H.R.D. no. 11.
92. Application of Jama. at 5 [emphasis added].
93. Rusconi, Application of Jama. note 62 at 848-49.
94. Compare this with Falcucci, decided 12 years earlier, where the court found that “[i]t is understandable why the petitioners wished to change their surnames from Falcucci to an American name in rather frequent use.” Application of Jama. note 54 at 593.
95. Filoramo, Application of Jama. note 72 at 340.
96. For example, Green and Wing were referred to in In Re Jackson, Name Change (177 N.J. Super. 591 (1981)) as “maverick cases.” The judge in Jacbon stated that: “It is inconceivable that a court in this state would reach the same conclusion today and such cases belong in the archives of judicial artifacts. ” (at 594). Nevertheless, the cases are still cited as authorities in courts in change-of-name matters. Wing, Middleton, and Green, for example, are cited in Application of Thompson, 369 N.Y.S.2d 278 (Civ.Ct. 1975).