Two books on the state of the law in Germany

VPresumably everyone, be it as a person affected or as a sympathetic observer, can report on legal acts that he found unjust, even outrageous, and this not in China or Russia, but in the constitutional state of the Federal Republic. But the legal system does not only produce individual disappointments. Social criticism, especially left-wing ones, is also expressed as legal criticism. In many cases, however, this represents little more than a moral wellness program. It does give the critics the comforting feeling of standing on the right side and standing up bravely for the damned of this earth. Those criticized, however, shake off the protests they are being met with, accusing him of being blind to the inherent logic of legal arguments and the practical constraints of applying the law.

How fine the line is between committed criticism and mere edification literature can be studied in the anthology “Recht gegen Rechts” (right against the right). More than thirty authors prepare themselves there for the “resistance” against the “enemies of democracy” proclaimed in the foreword by means of brief descriptions of cases. In accordance with the consciously unbounded term “right”, the spectrum of topics covered is very broad. As expected, one focus is dealing with the AfD. Otherwise, the essays range from the official and judicial handling of right-wing extremist murders to practices for protecting the EU’s external borders to German ancestry policies. Of course, this means that the critics of the refugee policy of 2015 and the defenders of a traditional family image are pigeonholed in the same terminology as the murderer of Walter Lübcke and the assassin in Halle. Legal differentiation looks different.

The insulted, reproachful undertone is out of place

Of course, the moral and political self-righteousness of most of the contributors only tolerates clear black-and-white images. Decisions that do not suit the authors are horrified as “scandalous” (Florian Nustede) or “cynical” (Anika Grotjohann/Fatou Sillah). Again and again, especially when it comes to institutions such as the police or the public prosecutor’s office, which the authors view with suspicion, it is whispered that the mistakes complained about could not be mere slip-ups. Rather, the “alleged breakdowns” (Malene Gürgen) were “systematic” (Tore Vetter) and therefore gave “a deep look” (Nele Austermann). It seems that not only lateral thinkers, but also some leftists have a penchant for conspiracy theories.

“Right vs. Right”. Report 2022.

Image: S. Fischer Verlag

What is most irritating, however, is the lack of understanding on the part of a number of authors for the limited task of legal, in particular criminal, proceedings and their willingness to put fundamental constitutional guarantees at disposal in favor of what they consider to be the correct content. The decision of the Naumburg Higher Regional Court against the Halle assassin is criticized as discouraged and depoliticizing because the court failed to take the historical and social embedding of the act into account (Kati Lang). The criminal lawyer is inclined to reply: Fortunately, it has. The task of a criminal court is to decide the individual guilt of the perpetrator for the alleged act. Its rules of procedure are tailored to this and the specific professional competence of those working on it is limited to this. If society wants to know more, it has to resort to other forums, such as a committee of inquiry.

Also misplaced is the insulted, reproachful undertone with which some articles comment on acquittals or lenient sentences against “right-wing” perpetrators because the court considered the evidence to be too thin (Antonie Rietzschel, Kati Lang) or because a provocative statement too could not be interpreted in a way that was inflammatory (Andreas Gutmann). Should the iron rule of law principle “in case of doubt for the accused” be suspended in such cases? Anyone who is willing to wage the “fight against the right” in this way is by no means the do-gooder he presents himself as, but in his own way hardly less dangerous than the one against whom he is directed; the legal system must also be protected against its tendency to exaltation.