Germany’s problem with the Abstraktionsprinzip

Bias can be manufactured when act and thought are conflated

The case of Christian D. in Erfurt reads like a Wimbledon men’s final. Dramatic lob followed by thrilling net play and a questionable line call. First, a summary of the facts.

In 2021, Christian D., a judge in the family court in Erfurt in the state of Thuringia (Germany) handed down a judgment in which he declared the mask and other measures ordained to combat the spread of Covid 19 to be unconstitutional. As far as they applied to two schools within his court’s jurisdiction, in Weimar, he removed the restrictions. There were many members of the public in Weimar who were overjoyed at the decision. But the local prosecutor’s office was not one of them.

A criminal case was raised against Christian D. (“D.”) for abuse of his office, and the prosecution won. As of 2023, he is temporarily suspended and, with the conviction confirmed on appeal, he loses his pension rights, his job and his status as a public official (Beamter). The two-year prison sentence that hangs over him is suspended, and would likely remain so, but he would have a criminal record that disbarred him from ever sitting on the bench again. He’s in his 60s.

I was made aware of the case by Paul Cudenec, here.

The case report he refers to is here. Its headline is misleading, in my view: Judge faces suspended jail sentence for challenging COVID mask rules. He wasn’t prosecuted for challenging COVID mask rules but because he judged in a case in which he was biased. What the headline means is that, in the reporter’s view, the prosecution was only raised because of the nature of the judge’s bias.

The original German-language report from the Legal Tribune Online is here.

Let’s start with the end.

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D. is a member of the Verein der kritischen Richter und Staatsanwälte: the purpose of this union was precisely to obviate the risks run by judges and prosecutors who take objection to underlying currents in the law of Germany. The idea is that the union can take up a stance and yet be free from accusations of contrary interests, whereas its individual members can’t.

If we now return to the start of the story, D. bucked that advice by handing down the decision that started the whole sorry saga. Some say that was silly of him. But what I would say, in the first of quite a few second-guessing exercises, is that, by being silly, D. demonstrated the conviction with which he acted (he’s a judge; he isn’t stupid). As a family court judge, he ruled that the Covid measures were unconstitutional, and while I’ve not read his judgment as such (given that description of what it did is not disputed), it was not on that ruling per se that he was prosecuted.

A half-volley here: yes, it was on that ruling that he was prosecuted: while the question of whether a family court can hand down a judgment as to the constitutionality of the measure on which the ruling is based is open to question, that’s not why he was prosecuted. He was prosecuted because he was befangen—biased. However, it must immediately be pointed out that, if you think that a court’s decision is flawed, whether on grounds of judicial bias or otherwise, the appropriate procedure to institute is (as was pointed out last year by Justice Roberts of the Supreme Court of the United States) that of appeal, not to prosecute the judge.

D. had undertaken activities in his private life that demonstrated his leanings towards a certain view on Covid measures. He’d even realised that an accusation of Befangenheit—bias—could possibly be made against him as a result, and had desisted from those activities.

Overhead lob: D. showed that he was of a view that the Covid measures were legally unconstitutional, but also that they were medical nonsense. The two are separate, but happened to unite conveniently in his mind as turning him personally against the measures. He acted, therefore, in accordance with what he believed to be the law; the accusation against him is that he did so because of the manifest bias in his mind.

Now, as an illustrative aside, German law knows the Abstraktionsprinzip, which determines that a contract is made up of three expressions of will (Willenserklärungen): the agreement by party A to, say, sell the car; the agreement by party B to buy the car; and the agreement between parties A and B that each of them acquiesces in the agreement of the other party. Yes, I know, it’s complicated, maybe even unnecessarily so. Yet, the Erfurt Amtsgericht before which the prosecution against D. was brought did, with some facility, far from abstracting the mental process of the party before it, lump together the private and public lives of the accused judge by attributing the judicial decision by D. to some pre-existing opinion fixed in his mind and, while the two are de facto compatible, the criminal court deemed the link to exist to such an extent as to prove beyond reasonable doubt the judge’s unsuitability for his office. In other words, because D. had an opinion, it made him unsuitable to judge in a court of law. Quite honestly, I think that would make most judges unsuitable for office, in Germany or anywhere else.

As an observer, my question has to be (aside from the unconstitutionality of the legislation subject to D.’s ruling): was he medically right to be of the view that the Covid measures were bunkum? Here comes our next second-guessing exercise, as our tennis ball lands right on the white line. Any line call on that ball will be met with a McEnroe-like You cannot be serious,¹ regardless of how it’s decided. Perhaps that’s of no relevance. It’s not about what opinion the judge had; it’s about whether that opinion affected his judgment and, more broadly, whether a judge can allow any opinion to affect any judgment of his or hers.

Either (i) I can view the fact that the case against D. was pursued with such persistence as evidence that Covid was a medical emergency so dire that no chink could be allowed to open up in the State’s armour of protection for the vulnerable population. Or (ii) I can view this unstinting effort to force compliance with the legislation as evidence of the fallacy on which the legislation was based (i.e. it needed to be forced in order to be enforced). The third second-guessing exercise comes at this point: whilst it remains open to debate as to whether the enforcement of Covid measures was intended ultimately to procure the enforcement of those measures and nothing more, or as a means to institute a system of enforcement that is much farther reaching, whichever of (i) and (ii), above, is right, one is left with that one lingering aspect to this case: what constitutes bias?

D. is a judge. He is a man. He has a brain and he lives a life and, like it or not, anyone who takes up a seat on the judiciary must be expected to leave as much as possible of their own life behind as they do so. It is pretty much the same as when an actor leaves himself in the wings of the theatre and appears on stage as the character, from top to toe. In one of my early plays, I was instructed that “If the whole scenery comes crashing down around you, Lady Bracknell (it was a boys’ school) must remain in character!” I think that’s asking a lot for a 16-year-old schoolboy. And I think it’s asking a lot for a 60-year-old family court judge as well. I don’t think it’s exaggerating to describe what was happening during the pandemic as the whole scenery crashing down around us.

The final smash in this tennis rally is, I believe, this: every judge, no matter how deeply stoical they are at excluding all consideration of their own life’s experience from their judgments, judges not as an automaton applying the letter of the law. They judge with conscience, the conscience that their maker bestowed on them, to instruct them not on what is legally right and wrong, but what is innately right and wrong.

The German courts have handed down a conviction of their judge based on bias that is itself a product of the man’s convictions. A bias that arose out of the man’s conscience. By weaponising conscience, the German courts have established a simple means to negate any judgment that falls foul of their government’s own agenda, already a breach of the separation of powers between executive, legislature and judiciary. For there will always be some act, action, thought, association, friendship, mistake (dare I say), that will entitle a higher court to accuse the lower judge of such bias. And, if judges are to be but the pen-pushers of legislators, then why do we have courts at all?

Much criticism, on the one hand, and praise, on the other, has been expressed at the judiciary in the U.S. for the stands it has taken against the government, with individual judges repeatedly receiving death threats, or actual physical harm, and being the subject of wild accusations issued from government and its ministries—even invocations to hang certain judges from the president himself. The independent judiciary is under attack the world over, truth be told. Even the British government is unable to appreciate the clear reasoning of the Palestine Action case. It has been ruled that the government was wrong to proscribe the organisation for engaging simply in peaceful protest that involved only property damage. Now the government is appealing, as if it cannot, or will not, brook being contradicted by the judiciary and thwarted in its illegal policy goals. The very existence of appeal courts is founded in the idea that judges can be wrong. Yet appeal is a procedure that governments and corporations use time and again to wear down their dissenters and get their way, through downright attrition and expense. The right of appeal can indeed be a double-edged sword. It doesn’t need a third edge in the form of prosecuting the judges, however.

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Let us end with where I started: at the end. The rationale for the founding of Germany’s Association of Critical Judges and Prosecutors is set out as follows:²

“To protect members from disciplinary action, an association should be founded under the name KRiStA [Critical Judges and Prosecutors]. This way, opinions and viewpoints are also protected by article 9 of the Constitution. Furthermore, individuals will no longer have to excessively expose themselves. Instead of individuals speaking out, the association as a whole will do so. Currently, every individual faces the specific risk of disciplinary repercussions and measures, particularly with regard to the requirement for restraint.”

No one needs maverick judges. But a disaster in quite another area of German life highlighted the iniquity of punishing dissent instead of instituting pathways by which dissent can be heard, considered and taken on board. That was the airliner accident of Germanwings flight 9525. What Petter Hörnfeldt brings out forcefully in his excellent video about the disaster is how hopelessly trapped the suicidal pilot in that case must have felt himself. Hörnfeldt is adamant that no-blame escalation routes must be made available to airline flight crews, to be able to escalate mistakes that they make without being harshly dealt with, so that escalation is even encouraged, thus allowing lessons to be learned from potentially defective procedures, which would otherwise go uncorrected.

I don’t think that any lesser consideration should apply for the judiciary: by tying the judge to policy and punishing any attempt to rethink it, when the judge is the party on the ground who is directly involved in policy’s application in the field, far removed from the lawmakers in their ivory towers, then disaster is ultimately not restricted just to the jetliner industry.

Petter Hörnfeldt’s video can be seen here:

1. I believe that the occurrence involving John McEnroe in 1981 does itself have lessons for us in terms of the administration of justice. See here.

2. “Zum dienstrechtlichen Schutz soll ein Verein KriStA [kritische Richter und Staatanwälte] gegründet werden. Auf diese Weise sind Meinungen und Standpunkte auch durch Art. 9 GG geschützt. Auch muss sich der Einzelne dann nicht zu sehr exponieren. Nicht mehr der Einzelne tritt mehr nach außen auf, sondern der Verein als Ganzes. Bisher besteht für jeden Einzelnen die konkrete Gefahr dienstrechtlicher Repressalien und Maßnahmen, insbesondere in Hinblick auf das zu beachtende Mäßigungsgebot.”