German Civil Judiciary

German Civil Judiciary

Viewed comparatively from the Anglo-American perspective,
the greater authority of the German judge over fact-gathering
comes at the expense of the lawyers for the parties. Adversary influence
on fact-gathering is deliberately restrained. Furthermore,
in routine civil procedure, German judges do not share power with
jurors. There is no civil jury.

Because German procedure places upon the judge the responsibility
for fact-gathering, -the danger arises that the job will not be
done well. The American system of partisan fact-gathering has the
virtue of its vices: It aligns responsibility with incentive. Each side
gathers and presents proofs according to its own calculation of selfinterest.
This privatization is an undoubted safeguard against official
sloth. After all, who among us has not been treated shabbily by
some lazy bureaucrat in a government department? And who
would want to have that ugly character in charge of one’s lawsuit?
The answer to that concern in the German tradition is
straightforward: The judicial career must be designed in a fashion
that creates incentives for diligence and excellence. The idea is to
attract very able people to the bench, and to make their path of
career advancement congruent with the legitimate interests of the
litigants.

The career judiciary

The distinguishing attribute of the
bench in Germany (and virtually everywhere else in Europe) is
that the profession of judging is separate from the profession of
lawyering. Save in exceptional circumstances, the judge is not an
ex-lawyer like his Anglo-American counterpart. Rather, he begins
his professional career as a judge.

In Germany judges and lawyers undergo a common preparatory
schooling. After completing a prescribed course of university
legal education that lasts several years, the young jurist sits a first state examination. After passing this examination satisfactorily,
he enters upon an apprenticeship that now lasts two and onehalf
years. He clerks for judges in the civil and criminal courts,
assists in the prosecutor’s office, and works in a lawyer’s office. At
the conclusion of this tour of duty, the young jurist sits a second
state examination, remotely akin to our bar examination, which
concludes the certification process. Thereafter, the career lines of
judge and lawyer diverge.

Recruitment

Although West Germany is a federal state, the
state and federal courts comprise an integrated system. The courts
of first instance and the first layer of appellate courts are state
courts, while the second (and final) layer of appellate jurisdiction
operates at the federal level.

Thus, even though the basic codes
of civil and criminal law and procedure are federal codes, the state
courts have exclusive jurisdiction until the final appellate instance.
It follows that most judges are state judges [Using data for the year 1973, Kdtz estimates that about one German lawyer in five is a
judge. “To the foreign observer,” he notes, “the most conspicuous feature of the German
legal profession is perhaps the very large judiciary …. .” Katz, Legal Profession, supra
note 8, at 71. The size of the German bench is, of course, no mystery. “The real reason that
the Germans need more judges is the same reason that they need fewer lawyers: their civil
procedure assigns to the judiciary much of the workload that we leave to private counsel.”
Langbein, Judging Foreign Judges Badly: Nose Counting Isn’t Enough, JUDGES’ J., Fall
1979, at 4, 6.]; and since appointment
to the federal bench is by way of promotion from the state
courts, except for the federal constitutional court, all entry-level recruitment to the bench occurs at the state
level.

In each of the eleven federal states, the ministry of justice is responsible for staffing the courts. Entry-level vacancies are advertised
and applications entertained from young jurists. The judiciary
is a prized career: influential, interesting, secure, and (by comparison
with practice of the bar) prestigious and not badly
compensated. “[O]nly the graduates with the best examination results
have any chance of entering the judicial corps.”91
Advancement. A candidate who is accepted begins serving as a
judge without any prior legal-professional experience, typically in his late twenties.2 At the outset his position is probationary, although
he must be promoted to tenure or dismissed within five
years. DEUTSCHES RICHTERGESETZ [DRIG] (Statute on the German Judiciary) § 12(2). DRiG
§ 22 governs the grounds for dismissing an untenured judge; see GONTHER SCHMIDTRXNTSCH,
DEUTSCHES RICHTERGESETZ § 22, at 202-08 (3d ed. 1983). There are special rules
limiting the competence of untenured judges, DRiG §§ 27-29, in order to assure litigants
that major decisional responsibility will be in the hands of tenured (i.e., unquestionably
independent) judges. See EDUARD KERN & MANFRED WOLF, GERICHTSVERFASSUNGSRECHT
138-39 (5th ed. 1975).

His first assignment may be to a court of petty jurisdiction
(Amtsgericht), or else he will become the junior member of a collegial
chamber of the main court of general jurisdiction (Landgericht,
hereafter LG), where he can receive guidance from experienced
judges. Although much of the work of a LG chamber is now assigned to a single judge for
discharge without collegial participation, see supra note 13, the basic unit of organization
remains the collegial chamber, and there is still an important residue of collegial firstinstance
business.

The work of a German judge is overseen and evaluated by his
peers throughout his career, initially in connection with his tenure
review, and thereafter for promotion through the several levels of
judicial office and salary grades. A judge knows that his every step
will be grist for the regular periodic reviews that will fill his lifelong
personnel file. His “efficiency rating”95 is based in part upon
objective factors, such as caseload discharge rates and reversal
rates, and in part on subjective peer evaluation. The presiding
judge of a chamber has special responsibility for evaluating the
work of the younger judges who serve with him, but the young
judges are rotated through various chambers in the course of their
careers, and this reduces the influence of an aberrant rating from
any one presiding judge. These evaluations by senior judges pay
particular regard to (1) a judge’s effectiveness in conducting legal proceedings, including fact-gathering, and his treatment of witnesses
and litigants; and (2) the quality of his opinions-his success
in mastering and applying the law to his cases.

This meritocratic system of review and promotion is meant to motivate the judge to perform at his best. In the main firstinstance
court (LG), which is sectioned into many three-judge
panels called chambers, the judge aspires to advance to the position
of presiding judge of a chamber, a job of greater importance
and status with corresponding salary improvement. From there the
main career path leads to the first appellate instance (Oberlandesgericht,
hereafter OLG), which is also divided into many
chambers, each led by a presiding judge who is promoted to that
job after distinguishing himself as an ordinary judge of the court.

And the final appellate instance, the federal supreme court for
nonconstitutional law (Bundesgerichtshof, hereafter BGH), is
staffed almost entirely with judges who have been promoted from
the OLG. The BGH now has more than a hundred judges and
a dozen chambers. Call to that court is perhaps not quite the prize that we might imagine
the pinnacle to be. There has been some concern that not enough of the best OLG judges
aspire to join the BGH, despite the enhancement in rank, authority, and compensation that
promotion to the BGH entails. The opportunity for promotion to the BGH usually comes
when a judge is well into his forties or fifties and long settled in his home state. The BGH
sits in Karlsruhe, an unexciting city on the southwestern fringe of the country. Some prominent
OLG judges decline to exile themselves and their families to Karlsruhe from life in
Munich, Dusseldorf, Frankfurt, or Hamburg. We can imagine the problem in American
terms by supposing that we had created a supreme court of nonconstitutional law and sited
it in Akron, Boise, or Macon; perhaps we would have found Learned Hand and Henry
Friendly not too anxious for that last round of promotion. But laying aside this peculiarity
about the BGH, it can be said with great confidence that most German judges aspire to
maximize their chances for promotion through the lower levels of the pyramid.

Meritocratic review and promotion are meant to reward and
thereby to inspire judges to be diligent in fact-gathering, to stay
current in the law, and to be fair and accurate in the conduct of
hearings and the rendering of judgments.

Specialization

I have been speaking throughout this article of
the ordinary courts. Of the 17,000 judges who were sitting in Germany
as of 1983 (…) 13,000 sat in the ordinary courts. The others served in
the specialized court systems for administrative law, tax and fiscal
matters, labor and employment law, and social security. In Germany, appeal lies from the tax court to the supreme
court for tax matters, with no possibility of review by the federal supreme court of ordinary
jurisdiction (BGH).

Further more, the Germans operate a separate supreme constitutional
court (Bundesverfassungsgericht), to which the other courts refer
some contentious constitutional business. Appointment to the constitutional
court is by design highly political; members are seldom
part of the career judiciary that I have been describing.101
The specialized courts and the constitutional court siphon off
business that Americans would expect to see in the ordinary
courts. Within the German ordinary courts of first instance there
are special divisions that have counterparts in our tradition-for
crime, for what we would call probate, for domestic relations. In
addition, commercial law matters are removed to specialized chambers.
10 2 Thus, the German ordinary courts of first instance have a
somewhat narrower diet than our own.
At the appellate level, including the first appellate instance
(OLG) that proceeds by review de novo, there is extensive specialization.
An OLG is quite large by our standards, sometimes staffed
with more than a hundred judges, who sit in chambers containing
four or five judges. Cases are allocated among these chambers on
the basis of subject matter.103 All the medical malpractice cases go
to one chamber, the maritime cases to another, and so forth. This
system permits the judges to develop over the years just that sort
of expertise in legal subspecialties that we expect of lawyers, particularly
lawyers in large-firm practice, in the United States. The litigants get judges who know something about the field, in contradistinction
to the calculated amateurism of our appellate
tradition. The case for the generalist judiciary is argued anew in RICHARD A. POSNER, THE
FEDERAL COURTS: CRISIS AND REFORM 147-60 (1985). It would entail a large digression in the
present article to detail all of my disagreements with Judge Posner’s treatment of this subject.
I find particularly unpersuasive Posner’s central claim that specialized courts are unworkable
in fields where differences of view persist among the specialists. “It is remarkable
in how few fields of modem American law there is a professional consensus on fundamental
questions.” Id. at 153. This is an exaggeration, and one that resembles in an eerie way the
all-law-is-politics theme of a contemporary legal-academic movement with which Posner is
ordinarily not associated. The truth is that even in fields like constitutional law or torts
(Posner’s examples) where much is unsettled, there are vast areas of consensus. The work of
legal doctrine is to forge consensus. The more learned the court, the more likely is the court
to do that job well.

Political influence

Judicial appointments and promotions is sue in the name of the state or federal minister of justice, who is
an important political official, usually a member of the state or
federal parliament and of the cabinet. The minister acts in consultation
with an advisory commission of senior judges;105 in some of
the German states that commission has a formal veto power.
Directly political concerns appear to be very subordinated in
the selection and advancement of judges. Because this subject is
not much ventilated in the literature, I have inquired about it
when talking with German judges and legal academics. The impression
I have gained is that political considerations do not materially
affect appointment or promotion until the level of the federal
supreme court (BGH).0 6 Party balance is given weight in BGH appointments,
but political connections do not substitute for merit.
Positions on the BGH go to judges who have distinguished themselves
on the OLG.

We must remember that the decision to isolate important
components of constitutional and administrative-law jurisdiction
outside the ordinary courts in Germany lowers the political stakes
in judicial office, by comparison with our system, in which every
federal district judge (and for that matter, every state judge) purports
to brandish the Constitution and thus to be able to wreak
major social and institutional change.

Author: John H. Langbein

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