Humboldt-Universität zu Berlin - Prof. Dr. Dr. h.c. Susanne Baer

Critical Approaches within Legal Studies

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...information on critical approaches within legal studies.

‘The law’ is often perceived as neutral, objective and just. Legal education teaches primarily 'pure' dogmatics or doctrine guided by court decisions, commentaries or treatises, and – more often than not – by mainstream dominant opinion (herrschende Meinung – 'h.M.'). Social and cultural preconceptions which form legal discourse and which are intern constructed by it (and by other factors) are often passed over.

Linguistic work and legal theory, however, show that the ‘belief’ in a clear-cut and objectively determinable meaning of legal terms remains but a myth that – consciously or unconsciously – masks the political, social or cultural aspects of law. Critical approaches within the legal field try to expose the societal and political imprints, but also the exclusions and reductions in legal discourses.

Gender studies in law, or legal gender studies (in the U.S.: critical legal feminism, feminist legal studies) have shown that norms often presuppose a male and heterosexual ‘normal subject’ and thus privilege the interests of certain people, while also pre-shaping our thinking in a binary-coded gender order. Comparable critiques have been developed by critical race theory and queer legal theory.

A deconstruction of such social and cultural effects is possible if the immanent (intra-disciplinary) perspective of ‘dogmatic’ law is broadened by a trans-disciplinary approach. In this perspective, ‘the law’ appears as a social phenomenon, a cultural discourse, or also as a theoretical construction that can be questioned.

Critique is therefore not to be understood in a merely destructive way, rejecting law as a mechanism of power and order. It is about the engagement with the cultural and social premises of seemingly ‘neutral’ norms. This leads to a better understanding and to further development, maybe even to re-orientation, and thus to a reconstruction of law.

From a critical perspective, the law cannot ignore existing differences and exclusions in society, but has to take them into account in order to come to a 'just‘ decision. This is why ‘our’ Justitia or Lady Justice is not blindfolded as a sign of her neutrality. Her decisions are not founded on the sword (the authority of the state), but on knowledge and insight (symbolized by the book).

More on these issues...

  • Joerges, Christian/ Trubek, David (Eds.), Critical Legal Thought: An American-German Debate, 1989

  • Minda, Garry, Postmodern Legal Movements “Law an Jurisprudence at Century´s End", 1995

  • Ward, Ian, An Introduction to Critical Legal Theory, 1998

  • Bartlett, Katharine T., Feminist legal theory: readings in law and gender, Boulder, 1991

  • Bottomley, A / Conaghan, J. (Hg.), Feminist Theory and Legal Strategy, 1993

  • Crenshaw, Kimberly/Gotanda, Neil /Peller, Gary /Thomas, Kendall (eds.), Critical Race Theory. The Key Writings that Formed the Movement, 1995

  • Floßmann, Ursula (Hg.), Feministische Jurisprudenz: Blicke und Skizzen, 1995

  • Holzleitner, Elisabeth, Recht Macht Geschlecht. Einführung in die Legal Gender Studies, 2002