“Before we go any further, you’ll have to tell us what actually happened at your demonstration,” my colleague instructs the claimant. “You know, that’s not something we’re familiar with. We judges aren’t allowed to demonstrate.”

“What on earth…?” I think, recalling all the demonstrations I’ve attended, without ever giving it much thought. Where does she even get that from? Once again, this must be the duty of neutrality.

Neutrality is the buzzword of our time. It dominates debates about state funding for Omas gegen Rechts – a civic group of “grannies” opposing the far right –, about rainbow flags in members’ offices of the Bundestag, Germany’s federal parliament, or judges who wear a headscarf. The desire for a neutral state – and neutral judges in particular – is entirely understandable and perfectly legitimate. The principle of neutrality is meant to prevent bias and partiality and thus ensure equal treatment for all. And yet, according to a recent ARAG survey, by 2025 only just over half of respondents in Germany still believed that courts treat everyone equally. So, what is going wrong? Why does the neutrality requirement fail to deliver on its own promise?

One reason may be that neutrality is an astonishingly vague concept. Neither the German Basic Law nor the Courts Constitution Act defines it. The judicial statutes of the federal states, such as section 31a of the Lower Saxony Judiciary Act, confine themselves to the (questionable) ban on wearing, while on duty, “visible symbols or items of clothing that express a religious, ideological, or political conviction” (better known as the “headscarf ban”). For a profession that otherwise insists on precise definitions, neutrality is presented to us as a professional – and even personal – expectation with remarkably little explanation, assuming that its meaning is self-evident.

It is precisely this vagueness that makes the concept of neutrality dangerous. It enables political extremists to instrumentalize neutrality for their own ends while portraying themselves as guardians of the rule of law. And although the duty of neutrality is meant to restrain state power, it often has the opposite effect: it makes it easier for those already in positions of authority to secure their power. Its indeterminacy spares them the effort of engaging seriously with the concerns or convictions of those accused of lacking neutrality. In fact, the mere existence of convictions is most of the time enough to call a person’s integrity into question.

Neutrality is for those who conform

In public discourse, neutrality is rarely defined in positive terms. Instead, it is defined negatively – by identifying what supposedly is not neutral. Apparently, any strong commitment to a particular cause or group quickly comes to be seen as incompatible with neutrality. What is striking – not just to me – is that accusations of non-neutrality tend to arise precisely when the cause in question is marginal, or the group affected is marginalized. In other words: when it concerns interests that do not preoccupy the societal majority.

This framing implicitly treats neutrality as the default condition and marks those who advocate for so-called “special interests” as outside the norm. But are people who take no interest whatsoever in the concerns of minorities or in unpopular issues truly neutral? Everyone pursues interests – some are progressive and transformative; others are conservative and preservationist. Wanting to maintain existing structures and resist change is no more neutral than wanting to reform them. It is a clearly articulated position that benefits certain groups and disadvantages others.

At the same time, accusations of non-neutrality also arise only when someone becomes visible, takes action, and raises their voice. This, too, implies that passivity is the preferred norm. Yet silence communicates a message just as clearly: that one approves of what is happening, or at least does not object strongly enough to risk provoking disagreement. Silence is not neutral. It is political. Neutrality must not be confused with indifference or looking away. Defined in this way, neutrality becomes an effective tool for enforcing conformity and suppressing inconvenient or disruptive voices.

Neutrality as a task

If neutrality does not mean passivity, and if it is not a natural default state, then what is it? Neutrality is neither a condition nor a character trait. It is a task.

As judges, we decide who is right and who is wrong, and the law grants us considerable discretion in doing so. But judgment cannot operate without values. Every judgment we pass on others also reveals something about ourselves, probably more than we would like. We measure others against our own expectations and project our assumptions onto them. Those assumptions are not necessarily accurate or fair. We try to be fair. We do not want to privilege or disadvantage anyone. We aim to balance competing interests justly. But how can we succeed in a society where some interests are far more deeply entrenched than others? Where there are interests we do not even perceive because we move within our own social bubbles?

We are generally well acquainted with the interests of the majority, of business, and of government policy, because we encounter them constantly. They do not need to be fought for; they assert themselves almost automatically. Assumptions such as the need for economic growth, the notion that work must pay, or the imperative of border control are so omnipresent that we barely recognize them as interests at all. They appear as necessities, almost as laws of nature. By contrast, the interests of minorities, marginalized groups, animals, or the environment are not omnipresent. They lack powerful lobbies. They are quieter and easier to overlook, especially for judges, who themselves only rarely belong to marginalized groups, whether through queer identities, migration histories, or working-class backgrounds.

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Unconscious bias

Neutrality becomes possible only if we acknowledge that while we may be born neutral, we are quickly shaped by our families, social environments, schools, media, and politics into something that is anything but. This shaping is not our fault, and it is usually not even conscious. Nor is it inherently good or bad. But it carries with it stereotypes, gender roles, and discrimination in all its forms – racism, sexism, classism, violence against queer people, antisemitism, ableism, anti-Romani sentiment, social Darwinism, and more. Some of these forms of discrimination are so powerful that we internalize them, turn them against ourselves, and allow them to define who we are.

Nonetheless, there remains a widespread belief that discriminatory thinking and behavior always require malicious intent. In reality, discrimination often arises simply because we fail to reflect on our own privileges, beliefs, and bodies of knowledge, instead of treating them as self-evident. This is what is commonly referred to as “unconscious bias”. But because confronting our own prejudices and projections sounds exhausting – and because it may require admitting that we have made mistakes and wronged others – we prefer to reassure ourselves that good intentions are enough. From there, it is only a small step to denying the existence of structural or institutional racism altogether.

As long as we – judges included – do not seriously engage with our unconscious biases, challenge them, and work to unlearn them, we will never be neutral. Neutrality is a task: the effort to get as close as possible to reality. It means trying to perceive and understand not all, but at least as many different interests as possible at once. Neutrality does not simply happen. It requires active effort – not looking away, but looking closely; not remaining silent, but asking questions.

The status quo: normality instead of neutrality

Judges, however, operate under pressure. Who knows how long it will take before authoritarian populists come to power and turn their attention to the judiciary? We must not give them any ammunition. Out of fear of creating the appearance of non-neutrality, we choose not to act at all. We discipline ourselves and one another. We hammer down any nail that sticks out. Above all, we want to remain inconspicuous, to blend in. We hesitate to publish our decisions. We are reluctant to speak to the press – and when we do, we speak in a legal jargon that shuts people out. One anti-racism workshop every ten years seems sufficient, and the only conferences we attend are judges’ conferences, where we meet nothing but other judges who are just as well adjusted as we are.

We avoid demonstrations and political events. If we use social media at all, we do so anonymously. We wear no buttons and display no stickers on our laptops. Our hair is neither too short nor too long – and certainly not colorful. In our free time, we ride horses, train on racing bikes, or practice yoga. When something potentially political or polarizing occurs, we first wait to see which way the wind is blowing, so that we can later claim we always thought that way anyway. We do not speak publicly about our opinions or values – because, after all, what those are is supposedly obvious: normal.

Our image – the polished appearance of neutrality – matters more to us than neutrality itself. Only this explains our fixation on judges who wear headscarves, because you can see that they are not normal – sorry, neutral. You cannot see anything on us, and so nothing can happen to us. That this undermines transparency, that courts thus remain ivory towers and black boxes, is a price we are willing to pay. What matters most is that we do not fall from our pedestal, that people do not lose their reverence for us.

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Kritik und Reform des Jurastudiums
Christopher Paskowski & Sophie Früchtenicht (Hrsg.)

Die Rechtswissenschaft steht vor zahlreichen Herausforderungen, von den Gefahren durch den autoritären Populismus bis zur Klimakrise. Dieser Sammelband macht marginalisierte Perspektiven sichtbar, öffnet die Diskussion für interdisziplinäre Ansätze und bietet neben kleinen, „technischen“ Änderungsvorschlägen auch ganzheitlichen Perspektiven Raum.

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When it comes to migration, the EU might also find itself at odds with international law. The new draft Return Regulation envisages so-called return hubs and aims to speed up the return process. But this would weaken human-rights standards and punish desperate people, warns BERND PARUSEL (ENG).

Romania, too, punishes desperate people. Because an applicant now faces a minimum seven-year sentence for possession of small amounts of drugs for personal use, a Dutch court has refused extradition to Romania, and the “Tagu” case is now before the CJEU. EMILIA SANDRI (ENG) analyses the Advocate General’s opinion, in which Richard de la Tour proposes a new role for the two-stage test in criminal cooperation.

In neighbouring Bulgaria, the Prosecutor General has been in office since 2023, even though his mandate has expired – and despite an intervention by the Supreme Court. For ADELA KATCHAOUNOVA (ENG), the case is a wake-up call to rethink standing and rule-of-law protections.

The CJEU should also do some rethinking, argue KATARZYNA SZEPELAK and MACIEJ KUŁAK (ENG): the Court prevents NGOs from bringing public-interest litigation. But the treaties allow a different interpretation, according to the authors.

Even more contested is the standing of other, more unusual organisations. A little puzzle: black-and-yellow, but not Amnesty? We’re talking – bees! At the end of 2025, a Peruvian community recognised the legal claims of stingless bees. EVA BERNET KEMPERS (ENG) shows why this case demonstrates that rights of nature are recognised in practice in ways very different from how legal scholarship has imagined them.

Finally, we launched a new symposium this week. “Reflexive Globalisation and the Law” makes research from the eponymous Centre for Advanced Studies at Humboldt University Berlin accessible. The starting point is the idea that the globalisation of law and legal discourse has entered a reflexive phase, characterised by dynamic, multidirectional, and critical knowledge exchange. PHILIPP DANN and FLORIAN JEßBERGER (ENG) introduce the symposium, which continues next week.

Until then, we wish you a great weekend: dye your hair, dust a little, or plant a few bee sanctuaries.