The Decay of the Legal Profession

German Lawyers and Judges have gone A.W.O.L.

One of, if not the, core achievements of European civilisation was the realisation of what is commonly called the rule of law. In German, this phrase translates into Rechtsstaat. It didn’t happen overnight, it didn’t come for free, and it didn’t happen without pushback from those on top of the socio-economic hierarchy.

No worries, this isn’t a History class, but ask yourself: why is the rule of law (still) essential?

To me, it’s the one and only thing that keeps (we) the people from the predatory proclivities of the ruling elites. Yet, in the past 18-19 months, it would appear that the judiciary and the multitudes of lawyers are not doing what they are supposed to do: act as a check on executive (and parliamentary) overreach. Yet, the legal profession hasn’t been up to their job recently.

Take, say, the ‘conventional’ way of foot-dragging, which is very much apparent in Germany. Here’s Dietrich Murswiek, professor emeritus of constitutional law at the University of Freiburg, who sued the government’s intrusive ‘emergency stop-gap measures’, after the supreme court in Karlsruhe denied his standing (the below information is from a recent interview). And this happened despite the fact that the government’s argument—overcrowded ICU—have not been borne out by the facts:

‘In the Corona crisis, the constitutional rights of the entire population have been restricted to such an extent as has never been seen before under the rule of law [Rechtsstaat] in peacetime…the Federal Constitutional Court, after almost one and a half years, has still not provided guidelines for the legal handling of such an exceptional situation…in the pandemic, the principle was reversed that it is the state that must justify restrictions on civil liberties and prove the facts that serve to justify them. Now the citizen has to prove that he or she is not dangerous and, from October, also bear the costs of proving it—in the form of a Corona test. In addition, the internet corporations, with the benevolent approval of the government, have drastically restricted the freedom of expression.’

In the German state of Hessen, the government recently declared that only recovered and vaccinated may enter supermarkets; in fact, the government ‘outsourced’ responsibility to supermarket managers who were given permission to deny access to the ‘unvaccinated’. This is, of course, illegal and very much against the constitutional rights, but these days, it appears that anything goes is the motto.

Speaking of the courts, here’s a belated discovery by the Bavarian Administrative Court (Verwaltungsgerichtshof) that ruled, in early October of this year, that the ‘lockdowns’ instituted in early 2020, were in fact unconstitutional:

‘It is not evident why the danger of the formation of gatherings should justify a nationwide exit restriction, especially since this danger may only have existed at heavily frequented localities.’

According to the Administrative Court, it is ‘in itself epidemiologically insignificant’ whether a person spends time outdoors alone or with members of their own household outside their own home.

By now, however, the cognitive dissonance is so great that the politicians ‘still [hold] the opinion that the restrictions were correct to the full extent’.

Let’s leave the lower courts and state governments behind. The backlog in the judiciary is also telling in the federal courts. At least the Federal Constitutional Court promised that decisions will be forthcoming in November. In the meantime, many injunctions have been denied, which begs the question why it’s relevant to decide on past matters.

Yet, think about what that means: something legally questionable is done by the government and the courts don’t rule on it only after the fact—this means that there emerges a law-less state of affairs. By now, the rule of law has decayed to such a degree that Chancellor Merkel and Chief Justice Stephan Harbarth met over dinner in late June to discuss the upcoming judicial review season. As an aside, Mr. Harbarth has been asked to clarify his role in these matters.

This is why there are media reports that call into question the independence of the judiciary, alleging that Germany’s judges are wearing tin-foil hats:

‘Curfews are overturned, contact restrictions rejected: Have Germany’s administrative judges gone among the “Querdenker” [the German equivalent of “conspiracy theorists”]? No, they are only trying to do their best and apply existing law, however, their principles are now putting the brakes on new ways of effectively combating the pandemic.’

‘Even’ the left-liberal (sic) Tageszeitung mentions a certain ‘wild-west mentality’ emerging in Germany—albeit from an ideologically-charged perspective: the (self-declared) left levels these charges to score political points. There’s but the far right that claims, disingenuously so, to care about the rule of law.

Tragically, neither the elected representatives in parliaments nor the judiciary is very likely to come to the people’s rescue anytime soon. And if history is any guide, if the greater good is invoked by all sides of the debate, things may turn ugly rather sooner than later.