"Juristen - böse Christen" ("law practitioners - evil Christians") said Martin Luther: because they are cantankerous and egotistical, pettifoggers and shysters, "slaves to power and money", and because – Luther's particular accusation – place the "righteousness of deeds" above the faith. In his reproval of law practitioners, Luther was not the first, and his criticism, along with most of the reasons for his judgment, has survived to this day.
You only need to take a look at Marc Galanter's book on lawyer jokes in the US to see that the qualities clients usually appreciate in their lawyers (subtlety, a predilection to objecting, the ability to talk themselves and others out of tight spots) are the same ones that cause clients to doubt the lawyers' moral integrity and their trustworthiness as people. Here is one of my favorite lawyer jokes: On a beautiful spring day, two lawyers are taking a walk in the countryside. "I see those sheep over there have recently been shorn," says one, to which the other replies: "At least on this side." Someone so determined not to go beyond the unequivocally provable has indeed no capacity for "faith."
Were the law practitioners in East Germany "evil" socialists as well, or at least untrustworthy ones? After all, the Socialist Party demanded not only obedience from their followers, but true faith, preferably free of doubt.
It is hardly surprising, therefore, that socialism had little respect for law practitioners and only grudgingly admitted a demand for them. The Marxist classics had already propounded that in the communist future, along with the market, the law of value, and performance-based distribution, law practitioners would die out. And even when this future seemed to become ever more distant and the Party began to rely more and more on the law as an important control mechanism of the state, the socialist rulers remained ever suspicious of their own law practitioners.
Eastern Bloc countries produced far fewer lawyers than their Western European neighbors. The more rigid the economic planning and the more restricted the room for diversity of opinions in an Eastern European country, the lower the number of law students. In 1984/85, for every 10,000 inhabitants, Yugoslavia had ten law students, Hungary and Poland each had six, and the USSR four. With only two law students per 10,000 inhabitants, East Germany was the bottom of the barrel of the socialist countries. At that time, West German universities had 15; French and Italian universities had 22 law students per 10,000 inhabitants.
When in that miraculous year of 1989 socialism and East Germany collapsed, the change in the political system should have meant a liberation for East German law practitioners: from a land where doubt and dissent were suspect, even punishable by law, they were released into a land where these are praised as democratic virtues. Nevertheless, East German lawyers were anything but welcome in West Germany. They were said to be staatsnah ("close to the state") – which they were indeed, as most lawyers in East Germany had been employed by the government – and thus they were deemed fit for a country where the rule of law prevailed only after careful political scrutinizing, if at all.
After the reunification, it was mostly the younger among the East German judges and prosecuting attorneys who were retained, as their legal careers in East Germany would have been too short to allow much opportunity for decisions that would be unacceptable under the rule of law. East German law professors had to submit to review commissions and were for the most part replaced with West German successors. The biographies of all East German private-practice lawyers were checked for any ties to the former secret police ("Stasi"). In West Germany, East German law practitioners were not seen as law practitioners, but as representatives of a political system that had gone bankrupt.
Rightly so? Did East German law practitioners indeed pay more heed to the Party than to the law? To answer this, I am undertaking a project that concentrates on a group of law practitioners that is sufficiently identifiable and definable so as to preclude the project from becoming unwieldy: the Humboldt University's Faculty of Law in pre-reunification East Germany. Law professors – as a rule, articulate and self-confident people – leave many traces that can provide insights into their frame of mind: essays and books; faculty meeting minutes; preliminary work for the government, as evidenced by the former East German ministries' records; plus the usual information from Party and Stasi archives. In addition, I know several members of the former HUB Faculty of Law who are willing to share their memories and explanations. Did they believe in the socialist system they were serving? And how willingly did they serve it?
In a totalitarian state, law practitioners can play a wide variety of possible roles. They can throw themselves into the arms of power – an accusation often leveled against East German law practitioners – acting as figureheads for a system of injustice. They can define themselves – as can lawyers anywhere – as guns for hire and defend their clients' standpoints (the most important client in a socialist system being the state) without qualms or scruples. They can play the formalist, and through painstaking accurateness and respect for rules at least uphold order, if not exactly justice. They can clandestinely (a fifth column of the rule of law, as it were) use positivism and strict adherence to the letter of the law to constrain the abuse of power by the government. And they can fight openly for constitutional reforms. Which of these was most typical of law experts at the HUB?
With its wealth of archived material on East German history, Berlin is the ideal place to find answers to this question. And I believe I can begin to discern the contours of where my expedition through the records will take me: to a legal system of East Germany that is going to be much more inconsistent than what we tend to expect from across the former Berlin Wall. Were my Humboldt University protagonists "evil socialists"? Hardly so. But they were not very good ones either, from what I can see up to this point.
Translated by Stephan Rothschuh. Inga Markovits is Friends of Jamail Regents Chair in Law at the University of Texas School of Law.