I have a suspicion: Perhaps lawyers are not infallible at all! When I read court decisions as a non-lawyer, I am usually first of all completely convinced of the judges’ arguments (if I understand them). Judgments are made in such a way confident tone wrote that with a layman like me there is no doubt about their correctness. Yes of course the law is unconstitutional, how could I ever suspect anything else!
Free information is a prerequisite for democracy. Hence: The “Best of Freedom of Information”, every two weeks, by Arne Semsrott. He is the project manager of FragDenStaat and a freelance journalist. He works on the subjects of freedom of information, transparency, lobbying and migration policy.
Right of the ruler
But if I then follow the legal discussion on certain judgments – be it the question of the rent cap, the constitutional questions about the climate package or the corona curfews – I always quickly notice that there is not only one well-defensible objective answer to all controversial legal questions but many. Which of these a court prefers obviously depends on more factors than just their plausibility. Important (right) political questions are always questions of worldview and thus questions of power.
If judges were always right, judgments in higher instances would never be overturned and judgments would always be unanimous. So why should the case law of the highest courts such as the Federal Constitutional Court suddenly be accepted uncritically? After all, if one wants to follow Karl Marx, the ruling law is always also the law of the ruler.
Justice has its own transparency rules
A power-critical examination of important judgments is part of a democracy. More transparency also helps. At the same time, according to the Freedom of Information Act, the Federal Constitutional Court does not issue documents from proceedings. In the area of judicial independence, information laws do not regularly apply. The judiciary has its own transparency rules.
These should change: It should become a matter of course that not only judgments, but also minutes and the pleadings from constitutional court proceedings are subsequently published – at least if the proceedings have been accepted for decision. The extensive documentation of the NPD ban proceedings from 2013 to 2017, which was recently (unfortunately only expensive in print) and summarizes all important documents of the procedure on around 850 pages. In addition to the judgment, it makes it possible to understand the entire legal and legal political discussion in its complexity.
Too much transparency is harmful
Of course, additional transparency and additional nuances also mean that constitutional judges would be more open to criticism. Concerns are often raised that the Constitutional Court could become unnecessarily politicized and polarized through more transparency, as is the case in the United States with the Supreme Court there. It seems unlikely that there could be such a high degree of personalization of decisions in Germany.
Institutions have traditionally been afraid of change. According to the constitution blog 50 years ago, when transparency was introduced through special opinions, i.e. deviating minority opinions from individual judges, there were great concerns. In the meantime, they have vanished into thin air in this country. In Austria, however, not: There the government coalition is currently planning to introduce special votes at the Constitutional Court as part of the new Freedom of Information Act. The court has already raised concerns that too much transparency is damaging the legal process.