In a Barbie world – Constitutional blog

There is no sexual violence, no reproduction either, and everyone is allowed to decide for themselves about their own bodies: This is not only how the world looks in Greta Gerwig’s film “Barbie”, but also in legal education. But studying law doesn’t feel like a happy utopia. The fact that sexism hardly appears in the curriculum is not a theoretical problem, but makes sexist interpretation and application of the law more likely. This affects people in the real world and not just Mattel figures in Barbie WorldThe demand is not new: instead of rose-tinted glasses, a power-critical perspective is urgently needed in law studies.

I am a Barbie girl in a Barbie world

Article 3 Paragraph 2 of the Basic Law promises: “Men and women have equal rights.” This promise is far from being fulfilled. And the further a person deviates from the normative subject of the white cis man without disabilities, the deeper the (intersectional) gap becomes between the promised equality and the reality of life. We are a long way from equal pay for work, headscarf bans exclude Muslim women from legal professions, criminal law punishes people without prospects and without means instead of effectively protecting them from gender-based violence, etc., etc. You learn little about all of this in your studies, while the cat king reigns in the first semester and you only have to drop a hairdryer into the bath water to see the star Sirius. The way we die Barbie World Law school also imitates the real world, but often leaves out the ugly parts.

In this article, I would like to limit myself to two gender-related topics, ignore legal education, show the consequences of this and finally make concrete suggestions as to what needs to change.

Life in plastic is fantastic

Barbie has no genitals, and it is safe to assume that she also lacks reproductive organs. The plastic doll thus embodies exactly two gaps in legal education: reproductive rights and sexual criminal law.

Reproductive rights have played an important role in human rights discourse since the 1990s, but have not yet made it into the highest court rulings and are only occasionally addressed by German legal scholars. Reproduction encompasses the entire area of ​​life, from education, contraception and abortions to pre-, peri- and postnatal health care and reproductive technologies to daycare places and social benefits for parents. This broad understanding makes it clear that reproductive decisions – or constraints – shape private and professional biographies, and ideal and material living conditions in the long term.

But the course never addresses reproductive issues in its entirety, and if it does, then only marginally. The Federal Constitutional Court’s decisions on abortion are used in the lecture on fundamental rights to show where the duty of protection and the prohibition of under-measurement come from, but not what understanding of autonomy lies behind them and what image of women is constructed. Family law mainly deals with material questions relating to maintenance or the community of accrued gains, without addressing their social consequences. Reproduction is an area of ​​life that is particularly sensitive to fundamental rights because it is intimate and affects us all, but not equally: an abortion (which costs around 350 to 600 euros according to the counseling regulations) is a matter of action, it is affordable, disabled women are effectively forced to undergo sterilization, and the law still does not recognize two women who love each other and want a child as equal parents. This relates to the equality dimension of reproduction. It is also a social question and therefore a matter of justice. It is little consolation that those studying law are taught early on that law and justice are not the same thing.

You can brush my hair, undress me anywhere

Sexual violence is also not part of the curriculum. Why?

Some people point to the danger of retraumatizing students with experiences of violence. This is a surprising justification given that the course otherwise shows little concern for the mental health of its subjects. This justification should also apply to the extremely graphic descriptions of particularly perverse cases that are not directed against sexual self-determination, but against life and physical integrity. However, this is not the case.

Two other reasons are more plausible.

Firstly, it is complicated. In order to talk about sex, you have to explain complex concepts such as consent. This requires social science knowledge that is not taught in law school. However, the fact that a topic is complex is not an exclusion criterion for the curriculum, but rather is presented as a quality feature.

In addition to the conceptual complexity of sexual criminal law, human emotions seem to me to be more important: shame and fear. Anyone who teaches sexual criminal law must talk explicitly about sex, about intervention and arousal. The professors, who are still predominantly male, may feel uncomfortable in front of the young students, who are now predominantly female. But talking about sex can be learned (this does not only apply to law professors, but is a – very worthwhile – lesson for society as a whole).

In any case, we have to pay close attention to which stories are told and how. Dana Valentiner’s study on “(Gender) role stereotypes in legal training cases” highlighted the urgent need for action eight years ago. It’s not just about annoying issues: stereotypes shape the legal perspective beyond the course of study. Anyone who has spent years reading about hysterical, lying women will later be more inclined in criminal court not to believe a woman in criminal proceedings for sexual violence.

Imagination, life is your creation

But another law degree is possible – even if the Conference of Justice Ministers (JuMiKo) only agreed in June that “there is no need for fundamental reform”. At least the discussion about missing content has gained momentum in recent years. In 2021, the German Judges Act was even amended. Section 5a, paragraph 3, sentence 1 now states: “The content of the course takes into account the ethical foundations of the law and promotes the ability to critically reflect on the law”. Three years later, critical reflection is still not very advanced. There are now a few lectures on anti-discrimination law and legal theory, but the former is not comprehensive and the latter is only an elective subject. In any case, sexism and other forms of discrimination cannot simply be dealt with in block seminars and then that’s it.

Rather, what is needed is a power-critical perspective, which is naturally included in every civil law lecture, every criminal law group, and every key qualification.

If you talk to students from the USA or Great Britain, it becomes clear that Germany is lagging behind by decades. The findings of the Critical legal studies date back to the 1960s and 1970s, and feminist legal scholars have thankfully imported them to Germany – albeit only in the 1980s and 1990s. But this knowledge is still dismissed as ideological instead of being integrated into the curriculum. This leaves German legal science somewhat embarrassed internationally. Nevertheless, it continues to perform the “God Trick“, also acts as if there is a “View from nowhere“ – also “objective” knowledge that falls from the sky rather than being made by people. In fact, however, the structures of male law schools design the curriculum, just as the male CEOs of Mattel Barbie World.

As is particularly the case in the Anglo- and South American regions, legal science must be understood and taught in an inherently interdisciplinary manner, because law unfolds in social reality. One should therefore know this well and not just know about cat kings. In the words of Dieter Suhr: “Just as a good builder does not want to build his house according to drawings that incorrectly represent the terrain, a good legal dogmatist must be careful that the concepts he works with reflect the social world with which he is dealing. [sic]not only half or distortedly reflect” (Development of Man by Man, p. 118). Law that knows and reflects the social reality to which it applies is more precise and therefore better law. Social reality is constantly in motion. In order to understand these movements, law and future lawyers must remain dynamic, and also critical.

Self-organized initiatives have long been making up for what legal education fails to offer from a more critical perspective. The “Feminist Lawyers’ Day” is overwhelmed with applications and is growing every year, and the student initiative “Summer Academy for Feminist Legal Studies” regularly has more than three times as many applications as places. The blog “Üble Nachlese” offers consolation, and mentoring programs based on the model of Freiburg’s “Justitia Mentoring” create solidarity among young female lawyers.

Student engagement is important, but it cannot and should not solve the problem. On the one hand, because engagement is always a question of resources: those who work alongside their studies have less time to organize a reading group on Audre Lorde. On the other hand, because it is simply not the students’ sole responsibility to bring about structural change. They will not be able to bring it about alone, because the decisions are still made by the faculties and the Justice Ministers’ Conferences.

Let’s assume that there is important content in the course: How do you motivate students to deal with topics if they are not relevant to the exam? Well, you can make them relevant to the exam, for example by asking additional questions to demand a socially critical perspective on the norms applied. You can also repeatedly give students a practical insight into how the application of law affects social reality in order to motivate them intrinsically. This is where imagination and creativity are required. Reading circles have great potential as a teaching format because they open up space for critical reflection in small groups. In other disciplines, lecture courses have long been included in every bachelor’s module handbook. Unfortunately, the interesting books are not on the front shelf in law libraries, and if you don’t look for them, you won’t find them. However, concepts for reading circles for critical lawyers can be easily collected and shared, and critical lawyers are doing important work here.

The forms of examination could also be tweaked: instead of having to solve absurd issues in written exams using expert opinions, one could require essays in which students have to think about the law in question. Admittedly, all of this would not primarily demand more from the students, but from the teaching staff. This is why more mobility between disciplines is needed. In concrete terms, law faculties must be more open to teachers without state examinations who can bring important interdisciplinary perspectives to the training.

Even if the JuMiKo sees it differently: The reform of legal education has been implemented for everyone and the legal system as a whole is indispensable. What is more: Legal education also bears democratic responsibility. When right-wing forces enter the lawmaking and jurisprudence, critical lawyers are all the more important in order to prevent an anti-democratic restructuring from within. A sexism-critical perspective is essential here, because experience shows that authoritarian-populist governments strategically abolish sexual and reproductive rights in order to “[d]ie restore natural order[zu]And this order is certainly not Barbie World.