IMPERFECT JUSTICE: AN EAST-WEST GERMAN DIARY by Inga Markovits. Oxford: Clarendon Press, 1995. 204 pp. Cloth $49.95. Paper $21.95. ISBN 019-825814-3.

Reviewed by Jeffrey Seitzer, School of Public and Environmental Affairs, Indiana University Northwest. E-mail: jseitzer@iunhaw1.indiana.edu.
 

On October 3, 1990, East Germany (The German Democratic Republic or GDR) was incorporated into the Federal Republic of Germany (FRG). In one fell swoop, West German law became applicable in the East, and the elaborate system of law in the East became obsolete. Of course, the East German transition to democracy was eased considerably by the fact that it was incorporated into an existing democratic state, and a highly successful one at that.

Nonetheless, the transition to democracy has not been altogether smooth. This is especially true of the transformation of the legal system. As elsewhere in the region, a united Germany faced the question of what to do with former communist officials and collaborators. But there was an additional complication in East Germany in the form of West German legal professionals. In other countries, lawyers, judges, and legal academics did not have to compete with those who had no part in the tainted system. In a unified Germany there was the question of why to retain former East German legal professionals at all, particularly given their relative lack of knowledge of West German law.

In IMPERFECT JUSTICE: AN EAST-WEST GERMAN DIARY, Inga Markovits provides a first-hand account of the assimilation of the former East German legal system into that of the Federal Republic of Germany. She spent the final weeks before the end of the German Democratic Republic observing trials, attending public forums, and speaking with lawyers, judges, and academics from both East and West. She even participated in the process herself by serving on a commission charged with making recommendations about the retention of East German academics. She recorded her reactions to this unprecedented event in a diary, first in order to keep pace with events, but also so that her reactions would retain their spontaneity. In this, she succeeded.

Markovits is also able to draw upon her extensive knowledge of East German law to provide important insights into the fundamental differences between Communist and Western legal systems. IMPERFECT JUSTICE, therefore, is not merely an engaging account of the end of a legal system and its impact on individuals, but also an insightful inquiry into the nature of contrasting systems of law.

The diary format is quite effective in conveying the human consequences of what Markovits aptly terms the "sudden death" of the East German legal system. Of course, it is certainly not hard to sympathize with those who will very probably never work again in their field. But Markovits's storytelling often provides considerably more insight than the standard fare of the news at nine. Adopting an internal perspective, she makes clear the complex, often non-obvious, reasons some East Germans might lament the passing of an admittedly dysfunctional system.

Take, for example, socialist civil law. Twenty-five years ago, Markovits wrote a book on the establishment of a socialist civil code in East Germany, so she is in her element here. She points out that much of what we consider civil law didn't make sense in a communist country like East Germany. There was very little individual autonomy, so contracts mostly involved the logistics of meeting the dictates of the Plan. This meant that civil law judges were faced with enforcing contracts, which were actually "planning instruments in civil law disguise" (53). Under such circumstances, Markovits argues, one would expect civil law judges to be very frustrated with and cynical about their work. Interestingly, though, she found quite the opposite. The fact that neither planning nor contracting worked well provided a stimulating challenge for judges. They had to develop quite creative, ad hoc solutions to make the law work. Thus, ordinary civil law judges had more opportunity for creative thought than academics.

While Markovits' use of an internal perspective helps the reader understand the rich texture of East German law and the complex motivations of those who made the system work, her account is not uncritical. But because Markovits refuses to evaluate East German law and legal professionals on the basis of strictly West German standards, her criticisms are more nuanced than those of many prominent West German critics. This is clear, for example, in her treatment of the important question of judicial independence.

East German judges considered themselves independent if they did not engage in "telephone justice:" altering a decision in response to direct party pressure in an individual case. In other words, the source and content of the standards did not matter, if the standards were applied in all such cases. As Markovits points out, however, judges routinely responded to party pressure in a roundabout way through an informal system of notification and consultation. Judges were expected to notify their superior courts of the cases before them. Eventually, party officials would be informed and might issue directives about the issues in such cases, which then would be passed down the judicial hierarchy through judicial conferences and other informal means. Lower court judges might also seek advice of superior courts in particular cases. Here, too, judges considered themselves independent, because they need not accept the advice of superior courts. But the advice might reflect party directives filtered down through the judicial hierarchy.

Though Markovits is quite critical of the East German understanding of judicial independence, she is not quite so quick to dismiss East German judges as her West German counterparts, because she sees that East and West Germans are not using the same vocabulary. This is clear in her reaction to a public exchange between Dr. Karl-Heinz Beyer, a former East German civil law judge, and Dr. Horst Sendler, President of the West German Federal High Court for Administrative Law cases. After arguing that in most cases East German judges are independent of direct political control, Beyer discussed a particularly controversial East German criminal law case in which lower courts imposed an overly lenient sentence that was later revised upward on appeal. Musing out loud about how this was possible, he asked hadn't the lower courts consulted with the higher courts before passing sentence? This produced general skepticism among the audience, which included many West German judges.

Markovits argues that Beyer might have made a stronger case for East German judges by challenging the equation judges=judges, which is the unstated premise of many Western criticisms. As Markovits explains, judges in East Germany were more comparable to social workers than to judges. Since they were expected to solve social problems, not uphold formal justice, this manner of proceeding is not as objectionable as it would be for a Western judge. For, like engineers, Markovits suggests, Eastern judges needed supervision to ensure the overall project is completed in proper form. Once this connection is made a different solution presents itself: instead of disqualifying East German judges, Markovits suggests placing them in apprentice programs, which could train them for a different role, that of judges upholding formal justice.

All Markovits' observations do not attain the same level of insight. At a few points, her remarks are a little trite. After describing the difficult conditions under which the Personnel Review Commission operated, for example, she wondered "(h)ow much harder than for us must this week have been for those we interrogated" (133). Her occasional resort to platitudes is understandable given the diary format, which presents her reactions unfiltered and unrefined. It is also probably due to the fact that Markovits sought to cover as much of the legal transition as possible, requiring her to observe and react to events outside her area of specialization: civil law, and family law in particular.

Nonetheless, Markovits provides the reader with considerable food for thought. The book is especially well-suited for nonspecialists seeking some knowledge of the contrasting legal systems, and it is ideal as a companion text to upper level undergraduate courses on comparative law and legal philosophy. Because it analyzes rival systems of law in reference to actual events, it is ready-made to provoke classroom discussions. Moreover, by examining the now defunct East German legal system in reference to the theory and practice of law in both East and West Germany, IMPERFECT JUSTICE not only shines much needed light into the previously murky world of East German law, but also encourages Western students of law to consider to what extent the efficacy of their own ideals is dependent on favorable circumstances.