German Judges Research Articles

Cui bono? Judicial decision-making in the era of AI: A qualitative study on the expectations of judges in Germany

Despite substantial artificial intelligence (AI) research in various domains, limited attention has been given to its impact on the judiciary, and studies directly involving judges are rare. We address this gap by using 20 in-depth interviews to investigate German judges’ perspectives on AI. The exploratory study examines (1) the integration of AI in court proceedings by 2040, (2) the impact of increased use of AI on the role and independence of judges, and (3) whether AI decisions should supersede human judgments if they were superior to them. The findings reveal an expected trend toward further court digitalization and various AI use scenarios. Notably, opinions differ on the influence of AI on judicial independence and the precedence of machine decisions over human judgments. Overall, the judges surveyed hold diverse perspectives without a clear trend emerging, although a tendency toward a positive and less critical evaluation of AI in the judiciary is discernible.

A Short History of Prosecuting Crimes under International Law in Germany

Abstract This article takes the 20th anniversary of the entering into force of the German Code of Crimes against International Law (Völkerstrafgesetzbuch, CCAIL) as an opportunity to offer a historical review of the prosecution of international crimes in (West-)Germany. Starting from the post-World War II period, it flags early milestones, including efforts to hold accountable before German courts those involved in Nazi atrocities, in state oppression in the German Democratic Republic, in violations of international humanitarian law during the Yugoslav wars, and in dictatorship crimes in Argentina. This article then focuses on the practical implementation of the CCAIL and presents, at a glance, major trends, flaws and lessons learned over the past 20 years. It identifies four major phases: standstill, build-up, implementation and consolidation. This article concludes with a call for German judges and prosecutors to step up their efforts to contribute to a uniform and universal enforcement of international criminal law.

독일의 형사 공판 기록의 디지털화 추진의 의미와 시사

Germany is implementing a plan to digitally video or audio record what happens in the trial court of criminal proceedings. Many German judges also have animosity or concerns about video recording of trial proceedings. However, a bill aimed mandatory recording and discretionary video recording was submitted with the goal of mandating digital video recording or recording and automatic creation of transcript records in all courts by 2030. Even in Germany, various arguments for and against this bill were presented. As Mosbacher, a judge in the criminal division of the German Federal Supreme Court, said, it is no longer a matter of wether but how, and the details have become subject to compromise.
 In this article, we looked at the contents of the related German bill, the pros and cons, especially the judges' positions and counterarguments of scholars and criminal lawyers, and looked for the implications this can have on our situation.
 Ignoring the basis of the legitimacy of the existence of criminal trials and advancing modern technology may ultimately lead to the collapse of criminal justice per se.
 The way to become a court trusted by the public, to be evaluated as a criminal judgment acceptable to the parties, and to drastically reduce the overflow of appeal cases depends, above all, on how faithfully and transparently the first trial procedures and rulings that deal with the facts are made.
 Rather than clinging to the old-fashioned slogan that video trials cannot be permitted, it is important to know where, what, and how to change in our criminal trial in order to become a functioning criminal justice system that can meet the unique challenges of criminal trials as much as possible while efficiently using the limited national budget. We have to think about it.

Making sense of noncitizens’ rights claims in asylum appeal hearings: practices and sentiments of procedural justice among German administrative judges

ABSTRACT Ethnographically exploring how German judges in administrative courts of first instance navigate the practical, political, legal and ethical dilemmas of deciding on asylum appeals, this article identifies the oral hearing in asylum adjudication as a site of citizenship struggles in which rights claims by noncitizens undergo subtle transformations through the manner in which procedural rules are interpreted and enacted. Building on observations of asylum appeal hearings, conversations and focus group discussions with judges, I show that practices and sentiments of procedural justice among asylum appeal judges are at the core of these transformations. Hence, I argue for renewed analytical and conceptual attention to citizenship struggles that take place in webs of social relations within the realm of state law and across a graduated set of formal legal statuses for noncitizens.

Judging as Crime: A Transatlantic Perspective on Criminalizing Excesses of Judicial Discretion

Abstract Drawing on over a century and a half of Germany’s experience with a statute that criminalizes (mis)judging, this Article seeks to substantiate that criminal penalties for judges were largely ineffectual, and that courts proved ill-suited to police themselves even with a judiciary-specific criminal statute in place. To reach this conclusion, this post hoc longitudinal study examines German statutory foundations for the crime of “law bending” (Rechtsbeugung), related legal history, and jurisprudence during three distinct periods: (1) the codification of Rechtsbeugung in 1851 through the end of World War II; (2) Rechtsbeugung jurisprudence in postwar Germany, particularly as related to Nazi-era judicial actions; and (3) Rechtsbeugung legislative changes and jurisprudence leading up to and following Germany’s reunification. The German experience with Rechtsbeugung provides a cautionary tale of judges’ unwillingness to hold other judges criminally responsible, even for the worst of judicial transgressions, such as those committed by judges in Nazi Germany. Following German reunification, the court was less lenient in cases of East German judges. In this context, the court came to renounce its postwar Rechtsbeugung jurisprudence in clear and decisive terms, and affirmed convictions of East German judges. Yet, German high court jurisprudence remains elusive to this day.

The Bundesverfassungsgericht’s Glaring and Deliberate Breaches of EU Law Based on ‘Unintelligible’ and ‘Arbitrary’ Grounds

The authors believe that the judgment of the German Federal Constitutional Court contains serious breaches of EU law and is manifestly erroneous. The German judges refuse to apply the CJEU’s judgment and arrogate the power to assess the legality of European Central Bank (ECB) decisions and to review the reasoning of the CJEU, which they qualify as being ‘unintelligible and arbitrary’ for the sole purpose of declaring it ‘ultra vires’. They use the principle of proportionality in a legally incorrect way, ignoring the difference in scope between the latter and the principle of conferral. They make highly questionable use of the principle of democracy and of economic analysis to assess the merits of ECB decisions. A careful analysis of the judgment leads us to wish for the initiation of an infringement procedure. Breach of EU law by the judiciary conferral, democratic principle, dialogue between courts, EU competences, infringement procedure, manifest error, primacy, proportionality, ultravires

Zu einigen problematischen Fragen der Fachsprachenvermittlung am Beispiel des Deutschunterrichts bei Juristen

This article deals with the subject of language teaching using the example of German lessons for lawyers. As part of the “Justice for Development” project, free language teaching was offered to judges, prosecutors, lawyers, police and other Latvian legal system employees in 2018. The language selection was limited to 3 foreign languages: English, German and French. Because it was teaching of the professional language (language for special purposes), no beginner groups were formed, and no beginner lessons offered. The participants should at least have knowledge of German at level A 2 with the prospect of offering the opportunity to further develop their knowledge at other levels. Before the beginning of the project, the needs assessment was also carried out internally and the teachers were presented the results of this analysis in a summarized form, where they could see the main topics and wishes of the participants. The following thematic groups were predominant: Civil Law, Commercial Law and Criminal Law. Most of the group members were judges. The main aims of the participants: to learn German were to be able to attend German conferences and to communicate privately, and to read legal documents. During the teaching process arose several problems, which were discussed in more detail in the article, which were the lack of appropriate teaching and learning materials, different fields of interest of the participants and also little experience in the legal field of the teacher. Working with original documents is still difficult in A2 level German classes. Existing textbooks specializing in legal language are difficult to access, limited number, published 10–20 years ago, are morally obsolete, and contain institutional and phenomenon designations that no longer exist. Materials published in Germany or on the Internet can present the German legal system, but in Latvia the judicial system differs. These materials can only be used in contrast. It is also advisable to use feature films about German judges and attorneys, where you can also learn the necessary legal vocabulary when relaxing. Co-operation between the lecturer and the group members is also highly recommended, as their rich legal experience enables them to improve the quality of German language lessons. The learning process should also emphasize the importance of autonomous learning and the differentiation/ individualization of teaching and learning.

Neuroscientific and Genetic Evidence in Criminal Cases: A Double-Edged Sword in Germany but Not in the United States?

Aim of the StudyThe study examines how neurobiological and genetic explanations of psychopathy influence decision-making of German law students about legal and moral responsibility and sentencing of a defendant in a case of manslaughter. Previous studies from the United States and Germany have been criticized because they partly contradict legal analyses of real-world criminal cases. With a modified design, which integrates the main criticism, we re-examined the impact of biological explanations for psychopathy on decision-making in the courtroom.MethodsWe developed an improved quasi-experimental design to probe three case vignettes presenting different explanations of psychopathy in a criminal case of manslaughter. All three vignettes present the same information about a forensic expert’s testimony that is said to report compelling evidence for the diagnosis of “psychopathy.” The independent variable being manipulated is the type of information supporting the expert diagnosis: either no biological explanation of “psychopathy” versus a neurological explanation (brain injury) versus a genetic explanation (MAOA gene). The outcome measure is a questionnaire on legal and moral responsibility, free will, the type of custody, and the duration of the sentence. The study is adequately powered. We openly publish the data and all statistical analyses as reproducible R scripts.ResultsThe answers of German law students (n = 317) indicate that the omission of a neurobiological explanation is significantly associated with higher ratings of legal responsibility while compared to no biological explanation. However, there was no significant difference on the prison sentencing and type of custody assigned. Furthermore, there was no difference in the self-reported impact of the explanation of psychopathy on the participants’ decision-making.ConclusionOur findings from German law students corroborates previous research on German judges but is markedly distinct from studies on United States judges. Whereas in the United States, biological information seems to have a mitigating effect, it seems to increase the rate of involuntary commitment to forensic psychiatric hospitals in Germany.

Ustrój i prawo w Generalnym Gubernatorstwie w poglądach prawników niemieckich na łamach czasopisma „Deutsches Recht” w czasie II wojny światowej

<p>„Deutsches Recht” to niemieckie czasopismo, które w okresie II wojny światowej miało istotne znaczenie dla prawników w III Rzeszy. Na łamach tego periodyku, obok opracowań dotyczących prawa obowiązującego w Niemczech, publikowano także teksty odnoszące się do ustroju i prawa Generalnego Gubernatorstwa. Te ostatnie miały głównie charakter propagandowy, a w mniejszym stopniu – merytoryczny. Wśród autorów tych publikacji przeważały osoby związane z realizacją niemieckiej polityki okupacyjnej w GG (niemieccy funkcjonariusze administracji okupacyjnej, niemieccy sędziowie i adwokaci).</p>

German Constitutional Law in the UK Supreme Court

The outgoing tide of EU law will be Britain’s most significant constitutional change in recent times. In an era of uncertainties, the UK Supreme Court proved to be a guardian of the constitutional role of Parliament. The case of Miller, decided in the UK Supreme Court in 2017, proved that point. The highest court in the UK has therefore gained an important place in the global community of Constitutional Courts. This global community finds its legitimacy in the recognition of common values as well as the recognition of national variations. This article analyses to which extent common values, and in particular those found in German law, have influenced decisions in the House of Lords and UK Supreme Court. To do so, the author analyses decisions by the House of Lords and the Supreme Court and extrajudicial speeches by the Justices of the Supreme Court for references to German constitutional law. It identifies and maps the themes that have attracted the attention of the justices of the Supreme Court. More recently, the UK Supreme Court has referred to judgments and extrajudicial writing by German Constitutional Court judges. This was in the context of constitutional questions relating to the tension between membership within the EU and national identity, a theme which has occupied German judges for some time. As well as that, the interpretation of the European Convention on Human Rights has sparked an interest in German jurisprudence, in particular in the principle of proportionality.

Trafficked women’s presentation of self before the German courts

The analysis in this article provides an alternative interpretation of trafficked women’s self-presentation before the courts. I use complete observations of German judges deposing women in camera who are witnesses in criminal proceedings against their traffickers. My objective is to develop and inform a different account of the women’s self-presentation by prioritising the narrative accounts of their ‘lived’ experiences of trafficking. Invoking Judith Butler’s analysis of the complex transactions between subjectification and subversive agency and emerging debates in the health arena in psychosocial theory on resilience, I ask: How is trafficked women’s self-presentation in criminal proceedings an expression of their agency and resilience?

The dark side of institutionalism: Carl Schmitt reading Santi Romano

ABSTRACTThis article analyzes and compares the institutionalist theories of law developed by Santi Romano and Carl Schmitt. In the early 1930s, Schmitt referred to Romano to explain his own conversion to an institutionalist jurisprudence, which he preferred to call ‘concrete order thinking’. Both Romano and Schmitt criticized the normativist approach to law characteristic of legal positivism. Instead, they developed an institutionalist approach that regarded legal norms as secondary phenomena, pointing at the importance of the underlying institutional order, which shaped and informed these norms. More particularly, both Romano and Schmitt believed that the crisis of the modern state could only be overcome by recognizing the juristic character of non-state institutions and their legal orders. However, unlike Romano, Schmitt used ‘concrete order thinking’ to advocate an ideological reinterpretation of law: he thus presented the National-Socialist Führerprinzip as a ‘great example’ of ‘concrete order thinking’ and called upon German judges to reinterpret the so-called ‘general clauses’ in statutes in line with the National-Socialist ideology. While Schmitt developed ‘concrete order thinking’ into a theoretical justification of the totalitarian state, Romano emphasized the neutral and descriptive character of his institutionalist theory. Unlike Schmitt, he concluded that non-state institutions and their legal orders could never be completely incorporated into the state, but continued to exist and develop in its shadows.

Supply Chain Liability: Pushing the Boundaries of the Common Law?

AbstractOn 29 August 2016, in a claim by Pakistani survivors and legal heirs against German retailer KiK for injuries and deaths during a fire at a factory supplying jeans in Karachi, German judges accepted jurisdiction and granted legal aid to the Pakistani claimants to cover the legal fees. The case pending before the German court thus poses the question of supply chain liability. Taking the lawsuit by the Pakistani plaintiffs against KiK in Germany as a case study, this article provides an analysis of the available legal grounds for such liability. Economic changes have ushered in linkages between purchasers and suppliers that call for strong principles of liability – principles that are already embedded in the law but which need fresh articulation and application. English courts have only recently recognised that under certain circumstances, liability might attach to a parent company under the tort of negligence for damage to third parties ostensibly caused by its subsidiary. The KiK case is testing the extension of such liability to certain supply chain relationships. Beyond that, the case is also testing the application of the rules on non-delegable duties and vicarious liability in the supply chain context. Even if the court disagrees with the claimants’ position, the novel arguments advanced in this case are likely to be the starting point for an important debate about the proper fit between traditional tort law and the fast changing commercial and employment relationships of the 21st century.

Wissen im Asylprozess. Rechtsvergleichende Betrachtungen zum Vereinigten Königreich und zu Deutschland

This article deals with the realm of generating knowledge needed within the judicial procedure of refugee status determinations. In reviewing asylum cases, judges are in need of country of origin information. This information is regularly difficult to find due to the relevant events’ extraterritoriality as well as the constant changes in political circumstances. If the generation of knowledge remains uncoordinated between different judges, a risk of inconsistencies arises regarding the consequences drawn from differing countries of origin information and consequently of a lack of legal certainty and legal equality. In the UK, these issues have been addressed by establishing the so-called country guidance procedure. By global comparison, it constitutes the most elaborate procedure of judicial knowledge generation in the field of asylum. The country guidance determinations resulting from such procedures are leading cases which set so-called factual precedents and thereby contribute to more coherent decision making. The article compares this system of generating knowledge with the one in German judicial proceedings. It shows that German judges have difficulties in the generation of knowledge since comprehensive structures and instruments for cognitive tasks are missing. As a result, the legal comparison indicates which elements a judicial generation of knowledge should include, also in reference to the German constitutional law.

Punishing the “Others”

AbstractDespite ongoing debates on the continued legal significance of citizenship in a globalized world, international comparative tests of the salience of citizenship under the law have yet to be undertaken. This article combines data from US and German courts with interviews of judges from both countries to 1) estimate the punishment consequences of lacking state membership; 2) compare the sentencing gap across international contexts, and; 3) identify and explicate the mechanisms linking citizenship to punishment considerations. Findings show noncitizens receive increased punishment in US and German courts net of legal factors, but this effect is less pronounced in Germany. The interviews suggest that a variety of intervening mechanisms explain these results. Prominent among these is that judges in both countries resent the fact that noncitizens compound their immigrant status with criminal transgressions. However, German judges place greater emphasis on consistency and proportionality at sentencing, thus guarding against overly harsh and disparate punishments.

The impossible constitutional reconciliation of the BVerfG and the ECJ in the OMT case. A legal analysis of the first preliminary referral of the BVerfG

Abstract In Gauweiler v. ECB, the German Constitutional Court referred for the first time a case to the European Court of Justice. The BVerfG openly doubted the legality of the OMT program of the European Central Bank, one of the most effective European instruments in counteracting the effects of the Euro-crisis. Despite the apparent willingness of the BVerfG to accept the referring decision of the ECJ, it is clear that the German judges have a different constitutional interpretation of the monetary mandate of the ECB. This article will focus on the different conceptions of European Monetary Union and in particular of the ECB proposed by the two Supreme Courts in their case-law, and will explain why the legality of the ECB’s activity will be re-examined in the near future.

Prosecutorial Accountability in the Rechtsstaat: The Tension between Law, Politics, and the Public Interest.

During the past two decades, scholars, politicians, and legal practitioners in the United States have criticized American prosecutors for adopting a “conviction mentality” that diverges from their ethical duty to pursue justice. Most notably, critics have alleged and, in some cases shown, that prosecutors have suppressed exculpatory evidence, applied the law selectively, used their sentencing leverage to force plea bargains, and have helped fuel America’s incarceration epidemic. These criticisms locate the origin of these problems in prosecutors’ lack of accountability, the inefficiency of elections, non-transparent decision-making processes, and prosecutors’ desire for political gain. In contrast to this robust criticism of American prosecutors, the German prosecution service is not under fire. This lack of criticism is due to several striking differences not only between the institutional role played prosecutors in both countries, but also between each state’s vision of governance, democratic accountability, and the law itself. Perhaps, most tellingly, it has been the German judges and the prosecutors themselves have launched the most visible calls for reform. service. Moreover, the reformers aim not to make prosecutors more accountable, but rather to increase their political independence. The divergent directions of these calls for reform in Germany and the U.S. contradicts the narrative that, despite differences between the adversarial and inquisitorial traditions, there are significant points of convergence between prosecutorial practices in both countries. To cite one example, although Germany was once hailed as the land without plea-bargaining, today “confession-bargaining” is used to settle a rising percentage of criminal cases. The existence of these superficial similarities, however, obscures deeper and more durable differences between the two systems. These differences are not fully captured by analyses that argue that adversarial systems are becoming more inquisitorial and inquisitorial systems have adopted some adversarial procedures. Although a significant body of scholarship in the field of comparative criminal procedure has focused on the functional, normative, and institutional differences between adversarial and inquisitorial systems, this chapter aims to break new ground by exploring the tension between democratic accountability and independence that undergirds the institutional position of German prosecution offices within an inquisitorial framework.

Creative Expression and Its Evaluation on Work‐Related Verbal Tasks: A Comparison of Chinese and German Samples

AbstractTwo studies comparing Chinese and German samples by using work‐related verbal creativity tasks examined the role of culture in creative expression thereby also exploring culture's potential influence on creativity judgements. In Study 1, German participants (N = 60) scored higher than Chinese respondents (N = 60) in a work‐related unusual uses test on all objective creativity measures. Study 2 (Chinese: N = 59, German: N = 52) replicated these findings by applying an occupational creative problem‐solving task evaluated by using the Consensual Assessment Technique with judges from China as well as Germany. We observed high consensus among judges of each country as well as between the two cultures. Both German and Chinese judges rated the German respondents’ outcomes higher on most creativity dimensions (e.g., originality). Overall, German judges provided lower ratings. Our research extends previous intercultural findings solely based on art‐based creative performance to the occupational domain and indicates that higher creativity ascriptions toward the performance of Western people cannot be explained by assessments from Western raters.

Neurogenetic evidence in the courtroom: a randomised controlled trial with German judges

BackgroundProminent court decisions and recent research suggest that introduction of neurogenetic evidence, for example, monoamine oxidase A alleles, may reduce the sentence of convicted psychopaths. Here, we are aiming to...

Creating EU law judges: the role of generational differences, legal education and judicial career paths in national judges' assessment regarding EU law knowledge

ABSTRACTThe judicial protection system in the European Union (EU) is premised on the fact that national judges are supposed to act as decentralized EU judges. This role is exercised through tools enshrined in, inter alia, primacy, direct and indirect effect of EU law, and the preliminary ruling procedure. However, a number of studies show that national judges experience difficulties in exercising EU competences due to their lack of knowledge in the field of EU law. In this contribution we study the differences in the level of self-evaluation of EU law knowledge among judges, which consequently influence the way judges approach EU law. For that purpose we question the relevance of several institutional and socio-legal factors, such as organization of the judiciary, generation, the system of legal education and judicial training and practical experience with EU law. Our analysis is based on data collected from German, Dutch, Polish and Spanish judges.