"Germany's Judge" and the country's neutrality of judges paradigm

It took a while for the blogster to get its* understanding of German to the exacting standards you unfortunately receive from perfectionist parenting. We'll write about that one later.

This post is about the German concept of "neutrality of judges" , which requires judges to keep any public appearances and comments from giving rise to any impression that their neutrality in legal matters might be tarnished, that they might hold preconceived opinions which could affect their work on the bench.

While Lady Justice is blind, German judges are supposedly held to even higher standards, something like the judicial version of "see nothing, hear nothing, say nothing". Of course, the blogster does not condone use of the monkey image in this context.

Compare this to the U.S., and you get a good sense of a legal divide wider and deeper than the ocean between the two countries.

From Scotusblog to senate confirmation hearings to epic soap opera style dealings with the life and opinions of America's top judges, there is enough news and commentary for everyone. 

In Germany, on the other hand, there is only one: Thomas Fischer, presiding judge of one of the five criminal panels of the German Federal Court of Justice.

He is a prolific author, and his weekly column in DIE ZEIT has irked some media outlets, politicians, and judges because - so they claim - it undermines the essential concept of judicial neutrality.

The blogster, intellectually challenged and devoid of substantial legal knowledge, has always maintained that the concept is largely fiction. At best, a standard to strive for; at worst, a sorry excuse for punishing folks without accepting an ounce of personal responsibility for a sentence.

When a person of undisputed skills in the field writes a widely read column that acknowledges what most humans know, it will raise questions and can create push back. In the case of judge Fischer, the main outlet of this public push back has been the daily Frankfurter Allgemeine. The row took off in 2015.

You know where this is going, right?


The paper looked for a suitable person to uphold the cherished neutrality and found him in a judge from Berlin, who penned a strongly worded piece.

The result was another pointed column of Mr. Fischer in Die Zeit. The blogster cannot describe and translate all of it, but you will understand how it played out after this opening line: Even if the law was a natural science, and even if determining what is right was the same as determining what is real, things would be quite complicated.**

Instead of walking away, the paper had one of its own legal journalists write another piece in 2016. In an ironic corroboration that "the law" is very much about power, it became obvious that the valiant journalistic effort made no dent. If you know German, see the entertaining comments section of that article to get my point.

* Gender neutral, folks. It works.
** Wäre das Recht eine Naturwissenschaft und die Erkenntnis des Richtigen dasselbe wie die des Realen, wäre die Sache schon schwierig genug.