Magistrate’s Ethics and Deontology

II

Table of contents

A. Introduction ...................................................................................................................... 1

B. The law............................................................................................................................... 1

I. Right, morality and its execution ..................................................................................... 2

1. German court decisions ................................................................................................. 2

a. The deal in the criminal process ................................................................................. 3

b. The “Blauer Engel” case ........................................................................................... 3

2. Intermediary result ......................................................................................................... 4

II. Guidelines for laws ......................................................................................................... 4

1. Different law topics ..................................................................................................... 4

a. Civil law .................................................................................................................. 4

b. Criminal law ............................................................................................................ 5

c. Intermediary result................................................................................................... 5

2. Two kinds of finding justice ....................................................................................... 6

a. Natural law .................................................................................................................. 6

b. To be and ought to be .................................................................................................. 6

c. Current reference ......................................................................................................... 7

d. Intermediary result ...................................................................................................... 8

C. The practice of the law ..................................................................................................... 8

I. The theory of the judicial cognitive dissonance............................................................... 9

II. The social background .................................................................................................. 10

D. Conclusion ....................................................................................................................... 11

III

List of literature

v. Bayer, Hieronymus, Theorie der summarischen Processe nach den Grundsätzen des ge-

meinen deutschen Rechts, 7th edition, Munich 1859.

von Bethmann-Hollweg: Der Civilprozeß des gemeinen Rechts in geschichtlicher Entwick-

lung,1st volume, Bonn 1864.

Ehrlich, Eugen: Grundlegung der Soziologie des Rechts, 1913, 3rd edition 1967.

Enzensberger, Hans Magnus: Von der Unaufhaltsamkeit des Kleinbürgertums, Kursbuch 45,

1976.

Fischer, Thomas: Spuren der Strafrechtswissenschaft, FS Rissing-van Saan, p. 143-180, Ber-

lin 2011.

Gropp, Walter: Strafrecht Allgemeiner Teil, 3rd edition, Berlin 2005.

Hobbes, Thomas: Leviathan, Leviathan, England 1651.

Kantorowicz, Hermann: Rechtswissenschaft und Soziologie, 1911, Neudruck Tübingen

1962.

Kelsen, Hans: Reine Rechtslehre, 2nd edition, Vienna 1960.

Klug, Ulrich: Die reine Rechtslehre von Hans Kelsen und die formallogische Rechtfertigung

der Kritik an dem Pseudoschluß vom Sein auf das Sollen. Published in: Law, State,

and International Legal Order, Knoxville (Tennessee) 1964, Essays in Honor of Hans

Kelsen (Ed. by Salo Engel and R.A. Métall).

Prior, Artur N.: Logic and the Basic of Ethics, Oxford 1949.

Raiser, Thomas: Das lebende Recht, 2nd edition, Tübingen 1995.

von Savigny, Friedrich Carl: System des heutigen römischen Rechts, 1st volume, Berlin

1840; 5th vol., Berlin 1841

Schapp, Jan: Methodenlehre des Zivilrechts, Tübingen 1998.

IV

Schünemann, Bernd: Der Richter im Strafverfahren als manipulierter Dritter? Zur empiri-

schen Bestätigung von Perseveranz- und Schultersschlusseffekt, StV 2000, p. 159-165.

Windscheid, Bernhard: Die Actio des römischen Civilrechts, vom Standpunkte des heutigen

Rechts, Düsseldorf 1856.

1

A. Introduction

“Compulsion as a subjective right of the state needs to be ethically justified.”1

In which cases is ethics important for the judge?

Therefore, we first need a definition of ethics. By defining this subject, we are aware of the

fact that definitions already “fence out” certain values that minorities may view as ethics. This

is a problem of all definitions and finally of all laws and all judgments. Certain assumptions

within our legal system exist and the three forces – executive, legislative and judicative –

don’t question them.

We suggest the following definition of ethics, in order to reach an almost value-free defini-

tion:

“Ethics is a distinction between good and bad of a polity that is based on a common political

will, in contrast to moral, which is the distinction between good and bad of the individual.”

We omit the term evil because we want to avoid religious discussions. This term, once divid-

ing the world into the “axes of Good and Evil” only complicates seeking solutions. For it is

not helpful to blame an unknown “evil” for awkward human behaviors, we should rather see

us human beings as what we are, like Thomas Hobbes wrote:

“The natural state of men, before they entered into society, was a mere war, and that not simp-

ly, but a war of all men against all men.”2

Like Hobbes did, we should question ourselves why we have developed rules and courts. It is

the most selfish interest of each individual to find common standards for his society. There-

fore, we create rules; therefore, we empower parliamentarians and judges.

B. The law

The law contents an answer on what values we want our society to be based on.

Logically at first sight, there is no room for the judge to interpret the law by ethical standards,

because this decision has already been made by the parliament.

1 Bethmann-Hollweg, p. 4.

2 Thomas Hobbes, Chap. 13, para. 9.

2

As long as the political community does not form a new political will to value social happen-

ings in form of a new, changed the law or guideline, a differing judicial valuation would put

the judge’s moral standard on a level with an expected but indeed fictive ethic standard. Fur-

thermore, the distinction between morality and legal justice would be disavowed.

I. Right, morality and its execution

As logical as the given deduction seems to be true, the less importance it has to the real world

respectively to the process at court.

Morality and right cannot be strictly distinguished. If we understand legal justice in a narrow

sense as a law formed by the parliament, each political party and each member of parliament

votes with a certain valuation, whether this law seems him to be good or not.

However, this is only the first step of how morality influences “the right” as an ethical con-

sent. In a second step, justice needs to be pronounced.

Friedrich Carl von Savigny – one of the most respected and influential 19th-century jurists –

postulated two requirements for every lawsuit:

A right and its violation. Is the first requirement missing a violation is impossible, is the se-

cond one missing, a right cannot be formed in a lawsuit.3

This quotation may explain the difference between German and Anglo-American case law.

The German legal system is based on the idea that a legal system has already been formed in

material law and process law, and a judicial decision can be founded on more or less pure

mathematical deduction.

Like another famous German jurist, Bernhard Windscheid – probably the most influential

person to the creation of the German civil law book “Bürgerliches Gesetzbuch” – stated:

The right is the prior, the lawsuit just the consequence.4

1. German court decisions

Unfortunately, this theory is not consistent with law in action, which can be proven on the

basis of two German court decisions:

3 Savigny, V, pages 5 following.

4 Windscheid, p. 3.

3

a. The deal in the criminal process

With § 257c StPO of the German criminal process law book “Strafprozessordnung (StPO)”

there exists a rule nowadays which allows an agreement between the prosecutor and the crim-

inal under certain presumptions, for example a punishment of no more than two years if the

criminal confesses.

This law is relatively recent. It has been in force since August 4 2009.5 One could think that

before this rule was in force it was forbidden to bargain in the process and, therefore, a state

prosecutor would not bargain.

Of course, like in many other countries, bargains happened. In 2005, the common great senate

of the highest court – “Bundesgerichtshof” – finally pronounced what had already become

practical law.6 As the judge – according to article 20 subsection 3 GG – is bound to “law and

right”, he is allowed to adapt the law with creative “right seeking”.7

While the 4th

chamber of the highest civilian court8 named justice in sense of fairness as one

reason to accept such deals, the great senate argued that it is necessary for a functioning crim-

inal trial.

Ethically viewed, this highly important decision was founded on utilitarian aspects. One

could say that the judges were in a dilemma. As the legislative did not dare to pass a law, it

was urgent to make a decision.9

b. The “Blauer Engel” case

The second court decision was about infringement of “personality rights”.10

The German ac-

tress Marlene Dietrich played in a movie named The Blue Angle (“Der blaue Engel”), which

was released in 1930. In 1993 a company used this slogan for its commercial.

The highest court and the German Supreme Court – “das Bundesverfassungsgericht” – decid-

ed on damage compensation, as the right to one’s own picture could be sold and had been

infringed.

5 BGBl. I. S. 2353.

6 BGH Großer Senat für Strafsachen, Beschluss v. 3.3.2005, Az. GSSt 1/04 = BGHSt 50, 44-64.

7 BGHSt 50, 44-64.

8 BGHSt 43, 195.

9 BGHSt 50, 44-64

10 BVerfG, 1 BvR 1168/04, Aug. 22 2006.

4

The German Supreme Court argued that a law could have lost its capability to solve problems

in the present. In such cases, when the legislative is not able to react quickly enough, it would

also be the task of the judicative to adapt a law to the changed social reality.

At first sight this decision has no relevance to ethical questions. With a closer look, the right

to one’s own picture is based on freedom and dignity (Articles 1 and 2 Grundgesetz). With

this decision the judges ruled that such values are no personalized assets. So, by compelling

for damage compensation they made an ethical decision, considering the individual as a trade

able asset value even a long time after the death of this public person.

2. Intermediary result

The two briefly portrayed decisions prove that in the German legal system the right is not

always the prior and the lawsuit just the consequence. There is a free space that can be filled

with ethical decisions. Actually, each law opens space.

For instance: What about so-called uncertain legal terms, general terms? What about the lay-

out of intents, the customary usage in the trade?

As the two court decisions have demonstrated, court decisions are also a way of creating sub-

jective rights. In such cases, judges, as well as the legislative, are searching for ethically based

guidelines.

II. Guidelines for laws

If we think about guidelines for laws, we have to be aware of the differences in the topics of

law.

1. Different law topics

a. Civil law

The German civil law system is based on the idea that every individual is free to negotiate

contracts. Each person is free to decide on which goods to invest, which products to purchase

– under the assumption that people are solvent. On the one hand this means that judges have

to be cautious about interfering in contracts, as the constitution’s ethic decision is based on

individual freedom. On the other hand: Once a lawsuit comes to the conclusion that an obliga-

tion has been infringed the legal consequences follow the idea of enforceable compensation

regularly.

5

Ethically, this idea of compensation is based on the compensating justice, which goes back to

Nicomachean Ethics, founded by Aristoteles.11

However, the civil law including the civil law process exists not only to enforce rights, it also

withholds the possibility to “only” determine rights or claims (§ 256 ZPO).

Although such judicial decisions are not directly enforceable, the parties regularly follow ju-

dicial authoritative decisions. They know that the consequence of infringing an already judi-

cially determined right would in a second legal step be enforceable compensation. This means

that the civil right process withholds the possibility of prejudicial decisions in certain cases.

To put it another way: Judicial decisions in civil matter can sometimes go without “punish-

ment” by only showing one of the process-party a “yellow card”.

b. Criminal law

In opposition to civil law, the criminal law in particular needs clear and explicit rules in order

to be in line with our constitution, which in art. 103 sect. 2 “Grundgesetz” states: No punish-

ment without legal determination. Also known as: Nulla poena sine lege scripta.

In contrast to the factual findings – once the illegal action is proven – the question of how to

punish remains unclear. § 46 “Strafgesetzbuch (StGB)” only states that the guilt has to be

appropriate.12

At this part of the legal consequences there is an ongoing dispute. One theory follows the idea

of “absolute” punishment; the other main theory prefers “relative” punishment.13

A cursorily

distinction between these two theories means that the absolute theory of guilt only asks for a

just compensation of the action, while the relative theory also asks for the social background

of the criminal and aims to prevent and re-socialize.14

According to that, the Supreme Court ruled that “preventive detention” has to differ consider-

ably from the penal system, as preventive interventions in the right to freedom do not serve

the idea of guilt compensation.15

c. Intermediary result

The differences between civil law and criminal law show that the possibility of ethical influ-

ences depends on the question whether one of the parties – also the state – demands punish-

11

Aristoteles, Nicomachean Ethics, book 5, ch. 4. -9, cited from Schapp, p. 9. 12

BGHSt 50, 44-64. 13

Gropp, § 1, p. 39 ff. 14

Gropp, § 1, p. 39. 15

BVerfG, 2 BvR 2365/09, May 4 2011 headline and passage No. 98.

6

ment, a compulsion, or if the parties just want a judicial question to be answered.16

Lawmak-

ers as well as judges have to be aware of this fundamental difference.

2. Two kinds of finding justice

If we search guidelines and want to avoid copying religious rules there are kinds of finding

justice.

a. Natural law

The first kind is the so-called natural law (“Naturrecht”). It originates from the idea that cer-

tain rules exist as unwritten laws. Therefore, our reason forces us to recognize and identify

these rules. The nature of things logically leads to a norm, which ought to be.17

Parliamentary

laws then just mean a formal act of common sense. Nature based rights, for example, were

searched in the family, the freedom of the person and the private property.

In the 19th

century Bethmann-Hollweg was already part of a minority with his attempt to justi-

fy rules from the state of nature. The majority of jurisprudence asked for cases in which the

so-called “positive law” could be necessary to decide a social question with legal relevance.18

b. To be and ought to be

The second kind stands diametrically to natural law. It is based on the distinction between

being – meaning existing – and what ought to exist. Its most popular author in modern times

was Hans Kelsen, an Austrian jurist and legal philosopher.19

He founded the thesis of the “pure jurisprudence”, which states that: From what is cannot be

concluded that something ought to be, and vice versa from what ought to be cannot be con-

cluded that something is.20

For example: The capability to marry depends on a certain age because of biological factors.

The law that states the minimum age results from the nature of things.

Supporters of this dualism argue that such biological, psychological, character-logical and

intellectual facts themselves would not automatically indicate an “ought to be”.21

16

We omit the public law, because we are of the opinion that public law is a mixture of civil law and criminal

law. 17

Klug, p. 161. 18

i.e. Bayer, p. 3 ff. 19

http://en.wikipedia.org/wiki/Hans_Kelsen, accessed Apr. 13 2012. 20

Kelsen, p. 5. 21

Klug, p. 161.

7

Actually such facts would already conclude a silent premise.22

To implicate from the necessi-

ty of natural law based hypothesis the obligatory force would mean a “jump deduction”, a

mental leap, which has nothing to do with consecutive reasoning.23

No matter what premise – ontological, historical or economical – is taken, it would always

mean an assumption of what is predominantly, generally accepted.24

Vice versa – as today’s

minorities can be the majorities of tomorrow25

– the counter proposal that predominant inter-

ests should not be leading to what ought to be would be logical as well.26

Using predominant interests would always involve the danger of a “normative snob effect”,

an “elite-ethic”.27

As a consequence, norms could only be deducted from other norms.28

Therefore, it is “impos-

sible to deduce an ethical conclusion from entirely non-ethical premises”.29

c. Current reference

The debate between these two kinds has become up to date since pope Benedict XVIth said in

German Parliament: “I am delighted that Kelsen in his later years gave up the distinction of

what is and what ought to be”.30

In answer to that speech, Horst Dreier, a German law professor, purported that the pope had

misunderstood Kelsen and defended the Dualism of to be and ought to be. He argued that Kel-

sen had not given up this dualism. The changes in Kelsen’s theory were related to other as-

pects. At first, Kelsen gave up his construction of one basic norm. Then he also gave up his

belief that the relationship of norms could be solved without contradiction. According to

Dreier, the abandonment of logically solving the relationship of norms with each other did not

mean the abandonment of to be and ought be, but tightened this dualism. As a consequence,

legal science could only describe conflicts between norms instead of solving them logically.

22

Klug, p. 161 with further literary proof. 23

Klug, p. 161 f. 24

Klug, p. 165. 25

Schapp, p. 11. 26

Klug, p. 165. 27

Klug, p. 165. 28

Kelsen, p. 6 29

Prior, p. 18. 30

http://www.bundestag.de/kulturundgeschichte/geschichte/gastredner/benedict/rede.html, accessed Apr. 13

2012

8

“Provoked” by this article an Austrian law professor, Wolfgang Waldstein, criticized Dreier

for misunderstanding Kelsen.

In Waldstein’s opinion Kelsen gave up the Dualism of to be and ought to be because he

acknowledged that laws can be passed as a pure being. He quoted Kelsen: “That a norm is in

force does not mean that the norm exists.”31

From Waldstein’s point of view Kelsen wanted to

avoid justifying rules by normative religious rules, because it would be pointless to argue

about religious truths.

Despite everything, the perception of a nature given right would not depend on a certain reli-

gion. He referred to § 16 of the Austrian Civil law book, which states that each man, from

birth, has evident rights given by reason. Waldstein – a legal historian – concluded that “evi-

dent rights” did never depend on a certain religion. He argued that the Roman law acknowl-

edged nature-based law two hundred years B.C. already.

d. Intermediary result

The theory of dualism between to be and ought to be, which was predominant in the last cen-

tury, seems to be shaken. It is unclear whether judicial theory can go on justifying the law

because of its pure existence.

Still, if one is searching for the need for a legal decision, what reasons do exist?

Ethically, we believe that there are three main fields, which need legal authoritative decisions:

1. The aim to open for each individual a space of freedom as far as he does not infringe the

freedom of others.

2. The protection of the weak.

3. Preventing and, respectively undoing infringements.

Such goals can be named evident, nature given rights or simply common sense.

C. The practice of the law

After we have “lightly” touched upon the difficulties that usually concern the legislative, we

take the given laws and return to the question: How do ethical influences have an effect on

judicial decisions?

31

Waldstein, FAZ Nov. 22 2011 relating to Kelsen, Recht und Logik, in: Die Wiener rechtstheoretische Schule,

1968, p. 1472.

9

We narrow this question down to the role of the judge in a criminal process.

I. The theory of the judicial cognitive dissonance

The creation of a state prosecutor in German criminal process in the 19th century is relatively

recent. Before, it was up to the judge alone. In contrast to the American legal system, German

judges still receive the files, especially of the police hearings prior to the process. They decide

whether a trial should be held (§ 203 StPO). As the judge has already studied the police files,

he has formed his prejudicial hypothesis. According to the theory of “cognitive dissonance”

judges questioning witnesses and the accused in court can already suffer from so-called “cog-

nitive dissonance”.32

This theory states that every man strives for a balance of knowledge and opinion.33

Infor-

mation which confirms an already formed hypothesis is psychologically overestimated, while

contradictory information is underestimated.

To prove this theory 58 judges and prosecutors participated in the simulation of a trial. The

case was on the edge of sentence or acquittal. Some judges were allowed to read the police

files, some were allowed to ask the witnesses questions. In the cases the judge was allowed to

question witnesses and the accused, once he signaled that he had no further questions, the

statements which were left were presented like answers to questions of the prosecutor or the

defender.34

At the end every judge was asked to write a verdict. Afterwards, they were tested

on how precisely they remembered the witnesses’ answers.

It turned out that all 17 judges who had read the files condemned the suspect, regardless of

whether they had questioned the witnesses or not.

Those who had not read the files convicted in eight cases and pledged not guilty in ten cases.

Those who had read the files remembered on average 6.59 statements of 11 correctly, while

those who had not read the files answered 7.69 questions correctly on average.

32

Schünemann, StV 2000, p. 159 ff. 33

Schünemann, StV 2000, p. 160 with further information on this theory and its founders Festinger and Irle. 34

All possible answers of the witnesses and accused were saved in the forefield of this experiment.

10

Schünemann calls the fact that judges tend to form their prejudices by trusting the policy and

prosecutor perspective the “solidarity effect”.35

In terms of procedural justice the judge does

not seem to be a neutral person, but appears as an inquisitory authority.

II. The social background

After the given experiment has shown that the judge perceives his information not as a truly

neutral person, we ask in a second step:

How does the judge evaluate the presented facts?

At first, we must state that the process of perceiving so-called facts is already influenced by

individuals’ social determinants. A judge cannot be viewed as an autarchic person, which

means that he does not depend on social influences. As an autonomic person he his capable of

self-determination, but depends on other people to shape his personality and his morality.

This means that the judge’s opinion of ethic values depends on the influences he is under.

That starts with his childhood, continues with school, university and even the regional sur-

rounding. As the circle of family, friends and colleagues only represents a small group com-

pared to society, their common values cannot be considered ethic values, but only common

moral values.

Secondly, not only the perception of facts is based on social determinants, but also the people

who created the written law were socially influenced as well.

We must be aware of the fact that people like Windscheid36

, Heinrich Eduard von Pape37

and

Adolf Leonhardt38

- who predominantly created the German legal system - were all clerks and

sons of clerks as well. While the Frankfurt Parliament in 1848 was a mixture of professions

which wanted to create a constitution, Prussia as the predominant German power in the 19th

century neglected such ambitions. It was the organism of the Prussian state itself as its own

“juristic person” which enforced the new law, and not the people who created a legal system

based on human rights.

35

Schünemann, p. 159, 163. 36

http://en.wikipedia.org/wiki/Bernhard_Windscheid, accessed Apr. 13 2012. 37

http://de.wikipedia.org/wiki/Heinrich_Eduard_von_Pape, accessed Apr. 13 2012. 38

http://de.wikipedia.org/wiki/Adolph_Leonhardt, accessed Apr. 13 2012.

11

As a result the conservative middle class has created the legal system. This class is still repre-

sentative of jurists – magistrates as well as professors.39

The middle class, the petite bourgeoi-

sie, seems to be the center of our legal system, the center of our culture.40

Thomas Fischer

names this class the “cradle of the ruling opinion”.41

D. Conclusion

The German legal system is not built for opening doors to ethical questions. Despite every-

thing, there are several options to judges to integrate their ethical feelings, particularly in

terms of punishment.

Regularly ethical decisions in the law take place much earlier. It starts in university, in which

students start out with the notion that they are studying a certain science.

What is called the “method of case solving” actually refers to a certain schematically subsum-

ing act. The real legal science actually takes place in secondary subjects such as: Legal phi-

losophy, legal history, criminology and legal sociology.42

The relevance of these subjects tends to zero, as it is recommended to concentrate studying

cases relevant to the exam.

However, taking a closer look, the art of solving cases is a mixture of law-abiding, legal poli-

cy, individual and external experience, personal opinion, the nature of things, traditional ar-

guments, language and decisionism (meaning that one person has to decide43

). That distin-

guishes a scientist – who asks what the world is like – from the jurist – who asks how the

world is allowed to be.44

Science in its most general definition is the methodical search for the truth.45

It is establishing

communicative agreements with systematic, comprehensible standards and rules.46

According

to Eugen Ehrlich legal sociology is the only possible science of the law.47

When criminal law professors - who consider themselves scientists - publish their theories and

do not ask for the results one should be worried.48

Magistrates cannot only rely on certain

39

Fischer, p. 151. 40

Enzensberger, p.1 ff. 41

Fischer, p. 151. 42

Fischer, p. 163. 43

http://en.wikipedia.org/wiki/Decisionism, accessed Apr. 13 2012. 44

Fischer, p. 164. 45

Fischer, p. 171. 46

Fischer, p. 171. 47

Ehrlich, p. 198. 48

Fischer, p. 164.

12

theories. They have to integrate neurological, psychological, sociological and normative fac-

tors.49

If German law doctrine lacks in practical relevance and stays in its “faraday-cage” it is unsure

whether it will be adaptable to the European integration process.50

Such isolation would not be a delightful development. As more and more laws are based on

general terms and judges tend to argue with “overall circumstances”, legal theories based on

science are actually needed.

Students as future scientific assistants, professors and judges have to be skilled in criminolog-

ical, sociological and psychological aspects. Therefore, criminology and legal sociology need

to regain influence.

Only magistrates who can perceive the people at court with a deeper social comprehension are

capable of objective and independent decisions, able to communicate and rule in a way that is

socially accepted. Legal doctrine and law sociology depend on each other. An omnipotent

jurisprudence depends on practical legal science and law sociology.51

Legal doctrine without sociology is empty, sociology without legal doctrine is blind.52

49

Fischer, p. 172. 50

Fischer, p. 175. 51

Raiser, p. 33. 52

Kantorowicz, p. 139