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The Purge of Lawyers after the Breakdown of the East German Communist Regime

Published online by Cambridge University Press:  27 December 2018

Erhard Blankenburg
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Abstract

When in East Germany communist rule broke down, West Germans stood ready to take over. The end of communism also meant the end of the German Democratic Republic state; unification came as unconditional surrender to the western Federal Republic of Germany. The purge of the former regime's leaders therefore became intertwined with the West German takeover. With the takeover came Western politicians, managers, and professionals, forcing East Germans to compete fur jobs and influence. Opportunistic strategies with regard to the future buildup thus mixed with the desires for revenge and justice toward those responsible for the communist past. In this article I focus especially on the screening of the East German legal profession for reemployment in the unified Germany. In the West German tradition the legal profession forms the core of the civil services. In communist states lawyers had remained relatively marginal to the center of political power. Thus Western perceptions of the role of law account for the demise of the East German legal profession. That demise is taking place at a time when the Western regime is in need of many more legally trained people than ever worked in East Germany.

Type
Symposium: Law and Lustration: Righting the Wrongs of the Past
Information
Law & Social Inquiry , Volume 20 , Issue 1 , Winter 1995 , pp. 223 - 243
Copyright
Copyright © American Bar Foundation, 1995 

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References

1 “Nomenklatura” refers to the “system of patronage to senior positions in the bureaucracy of the Soviet Union and some other Communist states, controlled by committees at various levels of the Communist Party.”The American Heritage Dictionary of the English Language (3d ed. Boston: Houghton Mifflin Co., 1992).Google Scholar

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3 Unlike other parts of East Germany, which formed their own state (Land) within the federation, East Berlin joined with West Berlin to become one state. As the eastern part was considerably smaller than the western part, politics were dominated by West Berliners, as was typical of in the entire Federal Republic.Google Scholar

4 Rechtsstaat is often translated as “rule of law,” but as the German concept implies more substantive notions and the English-American tradition more of the procedural notions of “due process,” it is perhaps best to leave the term untranslated.Google Scholar

5 I am here following the reasoning given in the case of Gueffroy (LG Berlin Az 2 Js 48/90 (9/91)), the first decision against a GDR soldier after the unification, and the Gebardt case as confirmed by the German High Court (BGH 5 StR 370/92). The charge against Honecker was based on the same reasoning; it was dismissed in December 1992 because he was too sick to follow the proceedings and would not live long enough to receive the sentence. For an excellent document on the border-guard cases that presents the decisions as well as the doctrinal literature, see Herwig Roggemann, Systemunrecht und Strafrecht (Berlin: Verlag Amo Spitz, 1993).Google Scholar

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10 Cf. especially the polemical analysis by the prominent East Berlin lawyer F. K. Kaul, In Robe und Krawatte: vor Gerichten der BRD (Berlin: Verlag Neues Berlin, 1972).Google Scholar

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14 Einigungsvertrag, Annex I, ch. III/A/III art. 8, subsec. ee/y (amendment to the federal statute on the judiciary).Google Scholar

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23 Cf. Heiner Sauer & Hans-Otto Plumeyer, Der Salzgitter Report (Esslingen: Bechtle Verlag, 1991).Google Scholar

24 Cf. Inga Markovits, “Last Days,” 80 Cal. L. Rev. 55 (1992).CrossRefGoogle Scholar

25 Compare the ratio at the time of our comparison of 900 West German attorneys and 294 judges per million population to 320 U.S. lawyers and about 80 judges per million population.Google Scholar

26 Cf. Mieke Berends, “An Elusive Profession? Lawyers in Society,” 26 Law & Soc'y Rev. 161 (1992).CrossRefGoogle Scholar

27 The FRG has a higher rate of full-time professional judges than any neighboring country (294 compared with about 90 in the United States). Admittedly, however, any rank ordering of legal cultures depends on how national statistics define “professional judges.” Cf. Marc Galanter, “The Debased Debate on Civil Justice” (Working Paper DPRP 10-10, University of Wisconsin School of Law, 1992), as well as our indicator comparisons in “Comparing Legal Cultures,”12 Oñati Proceedings 1991.Google Scholar

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30 Unpublished survey evidence from a questionnaire administered to all GDR judges in 1989 by Dr. R. Svensson, Academy of Sciences, East Berlin.Google Scholar

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