Śledzińska-Simon, Anna

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The End of the German Legal Culture?Anna #ledzi#ska-Simon 2020-10-14T12:00:27In this post, I argue that: (I) the influence of German jurisprudence on the legalsystems in Central and Eastern Europe results from transfers of legal knowledgeand “cooperative adaptation” of elites in the new democracies; (II) the German legalhegemony is in fact a hegemony of reason and a culture of justification; (III) thedecision of Bundesverfassungsgericht in PSPP is an attempt to maintain the cultureof justification in view of its inevitable end.I. The Role of German Foundations and Transfers ofLegal KnowledgeIn Central and Eastern Europe (CEE), the question of German hegemony mayappear unseemly. However, it is hard to deny that German legal doctrine was animportant source of influence and inspiration in this part of the world – at least untilrecently.  It is therefore more appropriate to talk about the influence of German legalculture on the legal systems in the new democracies after the regime change, aswell as on the European institutions. The principle of proportionality is an exampleof exporting German legal culture but not as a commodity but as knowledge (art ofthinking).In post-communist Poland, the constitution contained solutions inspired byGrundgesetz (such as the rule of law and social justice, political pluralism, churchautonomy, protection of fundamental rights, albeit subject to limitations andprohibition of encroachment upon their essential core, the procedure for appointingthe Council of Ministers, or a constitutional complaint to the Constitutional Tribunal).However, the detailed layout of the afore-mentioned institutions in the law, and itsinterpretation and application remained in the hands of the locals, driven by thepolitical animosities of the time, the fears (of the past) and social amnesia, all outsidethe control of the “hegemon”.  Due to the geographical proximity of Germany as awell-established democracy, some Poles, Czechs or Hungarians took the opportunityto learn constitutional craftsmanship in Germany. These processes of knowledgetransfers served the mutual interest in establishing friendly neighborly relations andreliable conditions for trade and investment.The German academic, political and religious foundations should therefore bepraised for creating educational, research, training and professional cooperationprograms for Eastern Europeans. In the perception of the fellows, usually bornafter 1945, and their families, Germans could finally be good neighbors andfriends, not invaders. Additionally, participation in such exchange programs wasusually an advantage in the evaluation of candidates for various posts in the publicadministration. As a result, lawyers with research experience in Germany heldmany important positions, including the positions on the benches of the newly- 1 -established constitutional courts in the region. For them, German jurisprudence wasa natural source of reference, but not the only one. For example, in 1598 judgmentsof the Polish Constitutional Court issued since 1987, 86 cases refer to the FederalConstitutional Court (FCC), and 164 – to the case-law of the European Court ofHuman Rights.However, the “elite” of Polish lawyers with some professional experience acquired inGermany did not change the local culture based on authority and not on justification.It was therefore the authority of the Federal Constitutional Court or the Europeancourts, rather than their argumentation that was adopted as a new dogma, often forpragmatic reasons. In a Gramscian sense, the German legal cultural hegemony didnot touch the “masses” that had not received civic legal education for generations.Even in law schools, the work of Robert Alexy or Jürgen Habermas was presentedas an authority to be quoted, and not an invitation to critical thinking and self-reflection. In other words, the Socratic contestation method was not part of theeducational systems in Poland (and, as I assume, in other Central and EasternEuropean countries), even in law schools. Although in recent decades the socialspirit has begun to change due to increased social mobility, the new politicalcircumstances of authoritarian, ethnonationalist populism, which requires politicalloyalty and subordination, have strengthened the culturally rooted inclination tobelieve in charismatic leaders rather than in legal-rational power (and institutions).To conclude, the transfer of legal knowledge to the Polish legal elite did not andcould not transplant the “German mindset,” shaped by the philosophy of ImmanuelKant and his successors, or change the dominating attitude in the Polish nation(or other nations in Central and Eastern Europe), which had lacked statehood forcenturies and inherited the experience of a phantom state.1)Jan Sowa, Fantomowecia#o króla. Nowoczesne zmagania z form#, Universitas 2011. Therefore, theacceptance of legal authority – the rule of law and bureaucratic (and later European)institutions – is a form of “cooperative adaptation”, but in essence, yet anotherform of surrender. Although on both sides of the Oder River human dignity is afundamental constitutional principle, in Poland human dignity is read in accordancewith the teachings of John Paul II and Christian personalism. Given the attachmentof Poles to Christian tradition, in particular cases, human dignity may meansomething different than in Germany.II. Hegemony of Reason and Culture of JustificationPostwar Germany itself was subject to the legal cultural hegemony of the UnitedStates. The German legal system created after 1945 was based on “continentalpositivism (…), but with a strong position of legal expert bodies – the high courtsof law and constitutional courts in particular”.2)Adam Sulikowski, „Apolityczno##w prawoznawstwie : kryzys idei a zjawisko populizmu,” Archiwum Filozofii Prawai Filozofii Spo#ecznej 3 (2018), pp. 74-85. Its creation was supported by legalsciences, which promoted the idea of apolitical law and remained uncritical of liberalstrategies of legal expert bodies. The liberal order therefore gained a hegemonicposition and gave meaning to legal texts, including constitutions, and consequently,- 2 -to the concept of justice. The postwar liberal world order relied on the idea of politicalconsensus and the power of reason.As Moshe Cohen-Elya and Iddo Porat pointly explain, the hegemony of reasoncould develop “as result of the combination of four influences and processes, withthe first two the product of the traumatic effects of WWII: 1) decline of nationalismand the rise of humanism and internationalism; 2) elitism and suspicion towardpopular democracy; 3) the traditional European organic conception of the state;and 4) a European-based deep-seated and optimistic belief in legal objectivity andrationalism”.3)Moshe Cohen-Eliya, Iddo Porat, “Proportionality and the Culture ofJustification”, American Journal of Comparative Law 59 (2011), pp 463-490.  Theculture of justification was to a large extent created by judicial and expert bodieswhose role was to control decisions of the “Sovereign” and its representatives. In thisproject, the courts were perceived as “bulwarks of reason” and it was assumed thatthey are “immune from populism, biases, and irrational motives”.4) Ibid.Notably, confidence in rationality and objectivity of judges derived from the Germantradition of viewing law as a science. Yet, paradoxically, for the same reasons,theology can be considered a science.5)Leszek Nowak, „Metodologiczne kryteriumdemarkacji i problem statusu teologii,” Nauka 3 (2004). On the one hand, the cultureof justification assumes that legal interpretation is a scientific undertaking basedon logic, and on the other hand, it resembles interpretation of a sacred text, whichadopts a certain dogma (rationality of law and law-makers). It is also blind to thefact that decoding the core values of the law may not always be perceived as strictlyscientific, but political, especially if it goes beyond the legal text or the intent of itsdrafters.Proportionality as a principle of law has a central role in the culture of justification.Due to its global spread as a standard of judicial review, in particular in the areaof rights adjudication, proportionality has become a tool for promoting judicialpower and judicial “coercion of liberal values”. The standard proportionality analysisentails three questions regarding the government measure in terms of its suitability,necessity and proportionality in the strict sense. However, there is no uniformstandard of application of proportionality review in courts that followed the exampleof the German Federal Constitutional Court. Even Bundesverfassungsgerichtoccasionally departs from the model proportionality analysis, merging or skippingthe subtests for pragmatic reasons.6)Andrej Lang, „Proportionality Analysis bythe German Federal Constitutional Court”, in: Kremnitzer/Lang/Steiner (eds.),Proportionality in Action: Comparative and Empirical Perspectives on the JudicialPractice, CUP 2020. Moreover, its case-law has gradually shifted the focus onthe last subtest of proportionality analysis which requires balancing between thecolliding values and is more susceptible to ideological preferences of judges than thefact-based assessment of suitability or necessity.7)Raanan Sulitzeanu, MordechaiKremnitzer, Shalon Alon, “Facts, Preferences, and Doctrine: An Empirical Analysis ofProportionality Judgment,” Law & Society Review 50(2) (2016), pp. 348–382.- 3 -III. The End of the Age of ReasonThe PSPP decision (2 BvR 859/15) is the voice of the legal elite represented inBundesverfassungsgericht which seeks to maintain its position as the ultimate arbiterover constitutional matters but disregards the role of the CJEU as the highest judicialauthority in the European Union. By granting itself, in particular, but also, indirectly,other constitutional courts of the Member States the power to carry out ultra viresreview in areas that undoubtedly fall within the competence of the EU, the FCCfails to recognize that only the CJEU may declare invalid acts of EU law that violatethe principle of proportionality.8)Editorial Comments, Common Market Law Review57(2020), pp. 965–978.Labelling the CJEU’s decision as “not comprehensible and therefore objectivelyarbitrary,” the FCC insisted that the burden of proportionality analysis in Weissshould have been in the balancing stage. Yet, not only the wording of Article 5(4)TEU, but also the strategy of judicial restraint requires that the CJEU does notengage in assessments that rely on the attribution of values to policy choices whichare not clearly arbitrary or which clearly require expert knowledge. Therefore, limitingits assessment to the suitability and necessity stages, the CJEU recognizes the limitsof its own competence.On a more general level, the Weiss/PSPP controversy marks the end of the cultureof justification as we know it. Today, public discourse is dominated not by justification(or reason), but by plurality of conflicting authorities. What matters, then, is not thequestion “why?” but “who is the expert?” or “what is the source of the expertise?”.Now that populism and other anti-systemic movements are challenging the existingliberal status quo, the struggle to maintain the power of the last word continues. Inparticular, populism seeks to ensure the primacy of political power over rationalizedprocedures and discourses of legal expert bodies. In countries like Poland, thedelegitimization of institutions controlled by allegedly apolitical professionals bythe populists is relatively easy to implement in conditions where authority had itscultural roots in tradition and charismatic leadership rather than reasons and rationalargumentation. More recently, however, the global pandemic has revealed a crisis ofpolitical representation whose function is often limited to appointing proper experts orusing proper expertise.We are therefore witnessing the end of the age of reason, while governments areseizing the opportunity to govern human fear, hatred and uncertainty of tomorrow.In such conditions, we understand less and less what is happening here, who isgoverning us, and even less so WHY we have to follow rules that are often not evenprovided for by statutory law.The question concerning the path of European legal scholarship is thus open.Although reason will continue to strive for hegemony, in many parts of the world, thepolitically captured courts will only pretend to be guided by public reason and in factobey the political majority. If, however, emotions win the battle for the hegemon’sthrone, solidarity should take the place of reason. There is an opportunity for Europeand Germany to deepen this idea, even at the cost of changing the current mindset.- 4 -References• 1. Jan Sowa, Fantomowe cia#o króla. Nowoczesne zmagania z form#,Universitas 2011.• 2. Adam Sulikowski, „Apolityczno## w prawoznawstwie : kryzys idei a zjawiskopopulizmu,” Archiwum Filozofii Prawa i Filozofii Spo#ecznej 3 (2018), pp. 74-85.• 3. Moshe Cohen-Eliya, Iddo Porat, “Proportionality and the Culture ofJustification”, American Journal of Comparative Law 59 (2011), pp 463-490.• 4. Ibid.• 5. Leszek Nowak, „Metodologiczne kryterium demarkacji i problem statusuteologii,” Nauka 3 (2004).• 6. Andrej Lang, „Proportionality Analysis by the German Federal ConstitutionalCourt”, in: Kremnitzer/Lang/Steiner (eds.), Proportionality in Action: Comparativeand Empirical Perspectives on the Judicial Practice, CUP 2020.• 7. Raanan Sulitzeanu, Mordechai Kremnitzer, Shalon Alon, “Facts, Preferences,and Doctrine: An Empirical Analysis of Proportionality Judgment,” Law & SocietyReview 50(2) (2016), pp. 348–382.• 8. Editorial Comments, Common Market Law Review 57(2020), pp. 965–978.- 5 -

The End of the German Legal Culture?

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The End of the German Legal Culture?

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