DIVERSITY IN LAW AND LEGAL EDUCATION
Diversity enriches not only culture and society, but also the law. The reason for this and how Bucerius Law School plays a role.
DIVERSITY: EVERYONE HAS AN OPINION - WHO IS RIGHT?
There are few topics that are as controversial in this country as diversity. For many people, not only is the discourse on this subject overdue, but there is a need for legal frameworks that favor diversity. Others feel diversity is important, but not in the framework of regulations and laws. Who is right? One thing is certain: There has never been as much talk about diversity as there is today.
DIVERSITY AS AN ENRICHMENT FOR THE LEGAL SYSTEM
What is the effect of the discourse about increased diversity if this is not reflected in our law? This very question is the subject of the recently published essay Diversity in Law and Legal Practice (in German), co-authored by Professor Dr. Mehrdad Payandeh, Chair of International Law, European Law and Public Law and Deputy Equal Opportunity Administrator at Bucerius Law School. He is convinced: Our legal system benefits from greater diversity.
"Influencing the law is important," Payandeh says. "The application of law is neutral and objective only in a utopia. This also applies to the interpretation of legal norms, in which subjectivity always plays a role. Therefore, it makes a difference whether only men or also women participate in the discourse on the interpretation of legal norms and whether the knowledge and perspective of people with experiences of discrimination are also included."
Lack of diversity is also a problem for the legal system and for society, Payandeh adds. People need to feel "represented" in the system. In addition, due to this lack of diversity, the German legal system ends up losing talent, as well as an assortment of perspectives.
DIVERSITY ALREADY IN LEGAL EDUCATION
The private sector has already recognized the added value of diversity – before the academic sector, explains Mehrdad Payandeh. Furthermore, the topic plays a major role, especially in internationally active law firms or international law firms, because clients also expect and demand diversity. But how do you sensitize prospective lawyers to diversity issues? And how can we achieve greater diversity at German law schools?
CHANGE OF PERSPECTIVE SHOULD BE A RESPONSIBILITY OF PROFESSORS
In Germany, it is possible to successfully complete a legal education without being seriously confronted with issues of discrimination or privilege, according to the essay by co-author Payandeh. In the U.S., for example, there has been critical race theory since the 1970s, a judiciary movement that deals with the connection between race, racism and their legal anchoring.
Germany does not have such a theory, although it would be quite conceivable in view of its own colonial history. However, Payandeh criticizes that a critical examination of the structures anchored in law does not receive sufficient attention in legal education. "The degree program, which is tailored to the state examination, makes it difficult to deal with theoretical approaches to law in general. Theory courses from abroad have an even harder time of it." Nevertheless, he is confident that the critical view of the law can be sharpened in law school.
"At Bucerius Law School, corresponding basic and elective courses are now offered. The newly appointed colleague Felix Hanschmann, Critique of Law Chair will certainly contribute a lot to this as well." Payandeh himself also regularly offers seminars and colloquiums on topics from the field of anti-discrimination law, in which critical approaches have a place. His conclusion: "It is up to us professors to address this perspective wherever appropriate."
LIVING DIVERSITY - EASIER SAID THAN DONE
Representing diverse perspectives can prove to be difficult when that diversity is lacking in practice. The problem: All German law faculties - including Bucerius Law School - have lower percentages of women among their faculty members and rarely any with migration backgrounds.
Andrea Leuck-Baumanns, head of relations & development at Bucerius Law School and herself a lawyer, sees a strong need for development in this area: "Among our professors, we currently have 18.2% women, one of whom is fortunately at the helm of our institution.
The composition of the professors is a reflection of the general problem. "For a long time, lawmaking was dominated by white males, as was legal science and practice. Gradually, awareness of the need for greater diversity is moving in," says Leuck-Baumanns. She adds that this relates not only to course content, but also to the composition of the faculty and student body.
FACTS MUST BE CREATED, BUT HOW?
“In terms of gender distribution, the proportion of women and men in the student body of our law school is fortunately almost balanced, and in the class of 2021 it will be an even divide," said Leuck-Baumanns. She is particularly optimistic about the growing proportion of applicants from non-academic households and with an immigrant background, something which Bucerius Law School is actively trying to promote.
The quantitative assessment of diversity factors is an important building block for this point. In order to identify any under representation, the most meaningful data possible is necessary. "Only in this way can we recognize the extent to which we are living up to our claim of diversity and take appropriate action," says Leuck-Baumanns.
However, doesn't more data collection also lead to more discrimination? According to Mehrdad Payandeh, this is an ongoing issue: "This discussion has been going on for a very long time. The stigmatization problem must be taken just as seriously as the abuse problem and the issue of data protection." The legal scholar argues for a survey that is based on volunteering information, that guarantees anonymity and is focused on self-categorization by those affected and can thus tie in with international standards.
Surveys like these, adds Leuck-Baumanns, help the university to identify trends early on and get to the bottom of causes of a possible imbalance. In this way, for example, it is possible to investigate why the current proportion of students from non-academic homes is lower than the proportion of people who originally applied.
THE WAY TO MORE DIVERSITY - WHAT BUCERIUS LAW SCHOOL IS DOING
Andrea Leuck-Baumanns has been working for years to promote equal opportunities at the endowed university in Hamburg: "We are working to attract applicants with educational biographical barriers to study at Bucerius Law School. To this end, for example, we have launched the "Opportunity Fellowship" (Chancen-Stipendium) and expanded the “Germany Fellowship” (Deutschland-Stipendium). We also want to raise awareness of diversity among our own students and staff and create more diversity at all levels. In addition, we will pay more attention to this issue when filling positions and professorships and take active measures to draw the attention of women in particular to job advertisements."
In this context, Bucerius Law School is continuously working on increasing gender sensitivity, among other things, through
- lectures, workshops and public events on gender and diversity issues
- a targeted selection of speakers, panel composition and committee composition,
- unconscious bias - including training sessions
- active membership in the center for gender and diversity of the scientific institutions in Hamburg and also
- the use of gender-sensitive language
Leuck-Baumanns sees the university as "on its way.” A close exchange with those responsible for science and teaching is just as important as the exchange with the students, the student representatives, the student group WoMen in Law and the employees in the administration.
WHY IS IT THAT DIVERSITY CAN BE SUCH A SOURCE OF CONTENTION?
In particular, the issue of gender sensitive language has generated a passionate debate. Diverse opinions prevail within the university community. But how is it that the debate about a diverse language and society sometimes can become so fierce? For Andrea Leuck-Baumanns, this has to do with a fear of change coupled with a sense of feeling overwhelmed: "The discussion about diversity shakes up traditional social and power structures."
It is exhausting because it demands that individual behavior and external structures be questioned, according to Leuck-Baumanns. Mehrdad Payandeh also sees fear of changing power structures as a cause. However, he implores for greater objectivity regarding this discussion: "It's not about a moral reproach. Lack of representation of women or people of color are not only the result of sexist or racist attitudes on the part of the decision makers. The causes are complex and multifaceted."
The bottom line, says Payandeh, is that it is important to discuss the issue fairly and objectively, without making individual accusations. In many cases, he says, the first thing to do is to address the fact that there is a diversity deficit and to identify possible causes. Payandeh: "The important thing is to create equal opportunities."
SPECIFIC DEMANDS ON POLITICS ARE NEEDED
With so much objectivity as well as an objective view of the law that Payandeh calls for, it begs the question of why the mention of the term "race" in the constitution is nevertheless worthy of consideration for him, and why he recently spoke out in favor of its deletion in the Bundestag. "The problem with the term," Payandeh says, "is that it conveys ideas that people should be able to be divided according to certain characteristics."
It is not a far stretch to conclude that this classification also has an actual meaning. "We are also talking about a legal term here, courts and other law applying bodies have to define the term and apply it to a factual situation. This leads to misunderstandings, such as when insults to people of Arab or Turkish origin are not understood as racist because ‘Arabs’ or ‘Turks’ are not races.”
In the worst case, racist discrimination is reproduced in the courtroom and reinforced outside it. This happens, for example, "when a black person, who was the only one asked for her ID during a police check on a train, has to hear that this check was done because of her belonging to a certain race.” Deleting the term is thus not just symbolic, he says, but also has an impact on how we encounter and deal with people in everyday life.
Florian Helwich, translated by David Patrician