East, West - law is best

Imperfect Justice
March 1, 1996

This is an unusual book about the disappearance of a legal system and its reverberations. It is also timely, since its publication coincides with a wave of cases brought against former GDR jurists and officials. The author, a Texan law professor with German roots, provides an assessment of the phasing-out of East German law and the takeover by the legal system of unified Germany.

For almost a year, during the eventful pre-history and infancy of German unity, beginning in September 1990 with the impending suspension of legal personnel in Berlin, Inga Markovits closely observed the demise of socialist law and its protagonists in and around Berlin. As a member of a personnel review committee at the law faculty of Humboldt University in East Berlin, she witnessed legal history in the making.

She charts the developments in diary form, recording numerous interviews with East (and some West) German jurists. The people whose stories fill the pages of this diary appear strikingly real, the events, registered during meetings and court sessions, are uniquely characteristic of this period of transformation: the fare-dodger who refuses to pay his fine in Deutschmark instead of Ostmark; the discarded textbooks, destined for the scrapyard of history like many of their former owners. It is not by chance that the book's cover shows dustbins.

GDR legal practice, history and training are thrown into relief by the description of their downfall. Almost every facet is here, from legal theory to civil, administrative or criminal law, interpreted through personal life-achievements, careers, political convictions. The fostering of harmony, the pedagogic ambitions of GDR law, the preference of collective over private solutions, the comprehensibility of the law for and dependence on lay people are shown as features of a legal concept that placed public order above individual rights.

Investigations of political conformity and independence are the leitmotif of the book. How were Ausreiser-cases dealt with? Did court inspections and "telephone justice" transform GDR judges into lackeys of an Unrechtsstaat or was resistance against interference in itself a measure of independence? Was critical scholarship muted since the 1950s or did it survive underground? The need for a more discriminating view of GDR law becomes apparent, as examples of creativity, obedience and coping with limited room for manoeuvre are brought to light. Markovits's observations about the "masculinity" and "femininity" of law, touching on language and gender issues, reveal new perceptions of the legal process and styles of adjudication.

The second pillar of the book is the situation after the legal Stunde Null. GDR personnel were often faced not only with a new legal framework, but with an everything-will-have-to-go-attitude by parts of the western legal establishment. Markovits provides an impressive account of the obstacles facing examiners and candidates alike in the hit-or-miss process of de- Stasification of the judiciary. Rivalry between candidates and condescension by examiners are but two examples. "But they are children!" one western judge is quoted as having exclaimed; "they do not fit in" is the resigned explanation of another official.

This is a book against stereotypes. It asks the question, why differentiate between degrees of contamination by a system that should be rejected in its entirety? And it answers that such differentiation is fair and necessary in order to avoid the danger of human dignity once more taking second place to political expedience.

Georg Wiessala is senior lecturer in European Studies and German, De Montfort University, Bedford.

Imperfect Justice: An East-West German Diary

Author - Inga Markovits
ISBN - 0 19 825814 3
Publisher - Clarendon Press, Oxford
Price - £25.00
Pages - 204

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