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Speaking Law: Towards a Nuanced Analysis of “Cases”

Published online by Cambridge University Press:  06 March 2019

Susanne Baer

Abstract

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“The headscarf case” is more than just a case. Talking law is often talking cases, but we need to understand law more specifically as a powerful practice of regulation. Law is also not only another discourse, or just text, or politics, with fundamental rights as “an issue,” or a promise, or just an idea. Instead, to protect fundamental rights, it is necessary to understand how in reacting to a conflict, we in fact speak rights today—Rechtsprechung—as a form of practice. The German Federal Constitutional Court's decision in the conflict about female teachers wearing headscarves in German public schools may be used to illustrate the pluralities of law—understood here as legal pluralism. This pluralism includes actors and legal arguments as frames to the speaking of law. In addition, it becomes clear that any analytical focus on gender, based on the current state of the art, further illuminates these issues. As such, interdisciplinary legal studies become inherently critical to the protection of fundamental rights.

Type
Pluralistic Approaches to Constitutional Interpretation
Information
German Law Journal , Volume 18 , Issue 2: Special Issue Law's Pluralities , 01 March 2017 , pp. 271 - 292
Copyright
Copyright © 2017 by German Law Journal, Inc. 

References

1 See Goodale, Mark, Toward a Critical Anthropology of Human Rights, 47 Current Anthropology 485 (2006); Susanne Baer, Privatizing Religion, 20 Human Rights Politics, Constellations 68 (2013).Google Scholar

2 “Regulation” is often used to describe a specific set of norms that are directed at infrastructure. In contrast, I use the term to mark the nature of law as a process of intervention. See generally Baer, Susanne, Rechtssoziologie (2d ed. 2013); see also Lacey, Nicola, Criminalisation as Regulation, in Regulating Law 144 (C. Parker et al. eds., 2004).Google Scholar

3 See Baer, Susanne, Praxen des Verfassungsrechts, in Demokratie-Perspektiven 3 (Michael Bäuerle et al. eds., 2013).Google Scholar

4 See Locating Law (Elizabeth Comack, 2d ed. 2006) (discussing Canadian cases in the context of race, class, and gender to understand the role played by law in maintaining or undoing inequalities).Google Scholar

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6 See generally Collings, Justin, Democracy's Guardians: A History of the German Federal Constitutional Court, 1951–2001 (2015).Google Scholar

7 For a summary of these perspectives with further references, see generally Baer, supra note 3.Google Scholar

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15 See generally Unger, Roberto M., The Critical Legal Studies Movement (2015) (providing the classic critical position on adjudicatory issues); see also Hunter, Rosemary, The Feminist Judgments Project: Legal Fiction as Critique and Praxis, 5 Int'l Critical Thought 501 (2015) (providing an interesting attempt to rewrite judicial decisions).Google Scholar

16 The German Federal Constitutional Court has two sets of Justices (the First and Second Senate), consisting of eight Justices each, each serving for a twelve-year term.Google Scholar