Traversing Borders in Family Law
Anne Röthel is on the lookout for law and society’s tipping points
Her path to the study of law was one marked by indirect routes. Initially, she was more interested in language, literature, philosophy, and theatre. From an early age she had seen herself writing and teaching, and her decision to study law was originally a decision against the uncertain rewards of other alternatives. Anne Röthel retained her openness to other disciplines, and her route into academia was a gradual one, featuring stations in Brussels, Oxford, and Paris, among other places. Established as professor at Bucerius Law School, she was offered a leadership position at the Institute. Since 1 January 2024, she has taken her place as one of its Directors.
Her academic work focuses on current and future issues relating to the law of the person, the family, and private life. With her interdisciplinary and internationally oriented research agenda, she pursues a forward-thinking approach. “Law,” she explains, “is not something that just happens to us.” It is this understanding which is the starting point for an analysis of the interplay of the constellations and forces involved in the ongoing development of the law. “We have to try to work through the dogma and discourse and interpretations in order to describe the institutions and underlying conceptions, to capture the narratives and traditions, to analyse the values and effects, and, ultimately, to cautiously identify possible cycles and tipping points.”
Of interest to her are those elements that make up what we know as the human form of life: childhood and ageing, physicality and illness, intimacy and relationships, parenthood and kinship, origin and identity. “I am interested, for example, in what part the law plays in self-perception and in what appears to be normal or natural in each case. What causes such perceptions to change? What role do courts play in this process, and what role does legal scholarship play? Are similar legal developments being witnessed in other societies having a similar focus on self-determination and liberty?”
„We have to try to work through the dogma and discourse and interpretations in order to describe the institutions and underlying conceptions, to capture the narratives and traditions, to analyse the values and effects, and, ultimately, to cautiously identify possible cycles and tipping points.“
– Institute director Anne Röthel –
She warns us to not overlook the impact of non-legal forces, and she stresses the importance of a multidisciplinary approach: “In order to gain insights into the developmental forces at work in family law, it is essential to incorporate research on the historical origins of family and to consider the field of family sociology. Otherwise there is the risk of falling prey to prejudices, stereotypes, and clichés.”
In family law’s current developments, Röthel sees an emerging international movement that is pushing for the legal recognition of other forms of family life. In many places, marriage already exists for couples of the same sex. New legal institutions functioning alongside marriage have been created or are in the process of being developed. We are witnessing how legal systems are establishing additional parental rights extending beyond biological parentage. And in Germany, the introduction of a community of responsibility is being debated. At the same time, Röthel notes that this is not a universal movement: “Recognition and de-recognition are taking place simultaneously. Other legal systems are moving in an opposite direction. Homosexual lifestyles are being recriminalized, and it is possible that expansions of marriage will be reined in.”
Accordingly, she sees family law – considered by many to be a complicated and confusing discipline – as a fascinating field of research. In her inaugural lecture, she explained how emancipation, ageing, and migration challenge many contemporary family law regimes and pose as yet unresolved questions. As regards the criticism that the field is subject to incessant change, she sees this essentially as a complaint about not being able to decipher the present. “And here we face the task that Max Weber believed to be incumbent on legal scholarship: to understand the development of law as social action and to explain the shifting nature of its course and effects.”
In terms of the law of personhood – which sees people classified according to characteristics such as gender, origin, age, or neurotypicality, with legal consequences subsequently attached to this classification – Röthel observes a process of de-categorization: “Categorizing law is criticized as embodying adultism and ableism, or it is criticized because of its implicit hierarchies. This has resulted in a push for completely new regulatory structures. And, for many, perhaps the intuitive rejection of new approaches is so strong precisely because it is currently impossible to imagine how this could work.” Would a personal law without such categories be feasible? What would gender-neutral family law look like? Here, it is important to create a basis for examining just which categories are legitimate and necessary – so as, for example, to protect people who are not capable of self-determination – and which might be dispensable.
On the aspect of family law’s treatment of private life, she notes that in Germany, for example, the boundaries between inside and outside, between family and society, and between private and public are becoming increasingly porous: “A large portion of those legal concepts that construed the family as a shielded space and which thus consolidated and legitimized intra-family power relations have lost their persuasive power. At the same time, privacy is increasingly seen as a prerequisite for a self-determined life.” It is these transformations that she seeks to investigate.
Röthel says that her career has not followed a master plan; rather, it is a path that has been made by the walking. With her move to the Institute, she has embarked on a new leg. Eager and inquisitive, she looks forward to the tipping points that may be encountered along the way.
Image: © Max Planck Institute for Comparative and International Private Law / Patrice Lange
