Speaking Law: Towards a Nuanced Analysis of “Cases”

Abstract

“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.