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

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.     

Coming to Terms with the Past in Germany after 1945 and 1989: Public Judgments on Procedures and Justice

Germany presents the unique case of a society that has been forced to come to terms with its past twice within a fifty‐year period. This double experience can contribute to our understanding of the legal processes of lustration. This paper examines a largely neglected dimension of this phenomenon: justice judgments by the general population. Justice judgments about the Nuremberg Trials and denazification after 1945 are compared to analogous procedures that took place in post‐communist East Germany after 1989. The study uses two theoretical models in its comparative approach: the Leventhal model, and the "group value" model of procedural justice set forth by Lind and Tyler. The analysis is based on survey data collected by the Office of the Military Government of the U.S. (OMGUS) from 1945 to 1949, and survey data taken in East Germany from 1989 to 1994. The results lend support to the "group value" model for the specific situation of social transition. During both periods justice judgments developed according to analogous patterns. The German experience yields some important lessons for legal policies of lustration.     

Trends in the Experience of Injustice: Justice Indexes About Earnings in Six Societies, 1991–1996

This paper examines trends in the experience of injustice in six societies—Bulgaria, Czech Republic, East and West Germany, Hungary, and Russia—between 1991 and 1996. Using data collected by the International Social Justice Project, we estimate the justice index, JI1, and its decomposition into the amount of injustice attributable to poverty and the amount of injustice attributable to inequality; and we also examine gender differences in the justice index and its decomposition. The justice index is a summary measure of individuals' justice evaluations, and therefore the paper also takes a preliminary look at the two basic quantities that underlie the justice evaluation—actual earnings and just earnings—and their determinants, investigating, for the men of East and West Germany, the actual and just returns to schooling and experience in 1991 and 1996.     

Enter Ghost: Haunted Courts and Haunting Judgments in Transitional Justice

How can we account for trials in which the judgment speaks not only to and about the defendants and their deeds, but also about injustices from a more distant past? Building on approaches to ghosts and haunting by Jacques Derrida and Avery Gordon, I propose to examine a set of the German post-1990 trials for human rights violations committed in the former East Germany as instances of haunted justice. Here, the courts not only adjudicated the present cases, but also tried to ‘go back and make whole what has been smashed’ (Benjamin 1969) by their own lack of judgment in the failed trials of the Nazi perpetrators. In this instance, the ‘time is out of joint’, and we see the ghosts of the failed trials of Nazi perpetrators standing next to the inheritance of impunity fostered in West German courts, and next to the now present East German perpetrators. What can justice mean in such a complex constellation of injustices? I argue that the ghostly dimension of these cases point to a need for a kind of justice and engagement that can ultimately not be found in courts—yet the courts’ engagement with this ghostly matter is nevertheless important.     

The Nuremberg Trial and its Impact on Germany

The impact of the Nuremberg trial on Germany has changed overtime. It is not only a question of evolving legal debate, butalso a correlation of historical, political and moral developments.The author considers the reception of the International MilitaryTribunal (IMT) trial during the Cold War. West Germany rejectedNuremberg's historic precedent, principally on the grounds thatthe Allies had enforced victors’ justice, and that theTribunal had applied ex post facto law by violating the nullumcrimen principle. Meanwhile, East Germany seemingly took upthe cause of Nuremberg by prosecuting minor Nazi perpetrators.However, this affirmation was politically motivated, and itled to inhumane abuses of power, exemplified by the Waldheimtrials. The reunification of Germany marked the beginning ofa positive approach to the Nuremberg legacy: the new generationof judges, politicians and academics was increasingly sympatheticto international criminal justice, and adopted the Nurembergprecedent by dealing judicially with crimes committed in theEast during the Cold War. The study goes on to deal with therelevance of West German legal critique for modern internationalcriminal law. The author suggests that a distinction shouldbe made between true victims of international crimes and thosewho wish to revise history by portraying themselves as such,as many West Germans did after World War II. Moreover, the ‘victors’justice’ argument must not be used to conceal the factthat justice has indeed been administered. However, the criticismof the IMT's violation of the nullum crimen principle is firmlygrounded in the German, as opposed to Anglo-American, legaltradition.     

Criminal justice in the Middle East

Criminal justice in the Middle East conjures up images of severed hands, religious police, and qadi justice. Yet those seeking a more accurate picture find few sources. Conventional treatments of the region focus on Islamic law, although few Middle Eastern states actually base their legal systems on Islamic law. This article argues that in the Middle East as elsewhere, rulers use criminal justice to achieve two related ends: to maintain order generally, and to maintain a particular order — to preserve the regime in power and the interests and values of those who support it. A comparative historical analysis of the emergence of the police and judiciary links these two ends, and these two institutions.     

Justice as solidarity: A study of the political socialization of adolescents from East and West Germany within the theoretical framework of Durkheim's sociology of morality

The contemporary transformations in western societies confront us with a problem already stated by Durkheim a century ago: What enables members of society to practice social solidarity while becoming increasingly more individualistic? This question is analyzed in view of the political socialization of adolescents and its developmental implications. In line with the Durkheimian tradition in developmental psychology established by Piaget and elaborated by Kohlberg, it is claimed that the development of moral autonomy gives rise to a justice-related sense of responsibility that may foster bonds of solidarity within society. This developmental model was tested against the impact of socialization variables in a sample of East and West Germany adolescents, aged 15 and 18 (N=348). Analyses of the data revealed a substantial relationship between the development of moral autonomy and the readiness to take responsibility for others in response to justice concerns. The impact of the development of moral autonomy on the formation of a justice-related sense of responsibility depended only minimally on background indicators of political socialization in adolescence (e.g., East or West German origin, the socioeconomic status of parents). In the context of current social conditions a developmental approach to political socialization appears crucial to explain the emergence of justice concerns giving rise to solidarity.     

Perceived Injustice in Unified Germany and Mental Health

In a questionnaire study, 929 West Germans and 1275 East Germans were asked to appraise East–West differences in life quality on the labor market 7 years after the German unification. Judgments included perceived East–West differences, the justice of East-West differences, and temporal comparisons (changes since the unification and expectations in East and West Germany). Changes and expectations for East and West Germany were combined to obtain social-temporal comparisons. Negative emotions (envy, anxiety, moral outrage, guilt, hopelessness) and positive emotions (gratefulness, pride) regarding the situation of the labor market were also assessed. Mental health indicators included measures of depression, self-esteem, and psychosomatic well-being. Parameters of a path model were estimated by regressing (i) mental health on emotions and judgments and (ii) emotions on judgments. Mental health of East Germans is associated negatively with envy, anxiety, and hopelessness. Moral outrage has a positive suppressor effect. Mental health of West Germans is linked negatively with envy, anxiety, and existential guilt whereas pride, the perception of unfair privileges, and optimistic expectations have positive path effects. Appraising East–West differences as unjust plays a core role in predicting emotions in both samples. Social comparisons and social-temporal comparisons are superior to egocentric temporal comparisons for predicting social emotions (envy, moral outrage, guilt) while egocentric temporal comparisons are generally more important for predicting nonsocial emotions (anxiety, hopelessness). Theoretical and practical implications of the findings are discussed.     

从“问题中国”到“理解中国”——当下中国司法理论研究立场的转换

当＂司法＂日渐成为一个公共话题,有关司法问题的讨论就不再只是一个单纯的技术或者专业问题,而成为一个日常性的生活话题;有关司法问题的理论研究也不再只是一种纯粹的学术活动,而更是一种公共知识的生产与再生产活动。这意味着当下中国有关司法问题理论研究的立场必须要从＂问题中国＂转向＂理解中国＂,既要从中国社会转型以及中、西方互动交往的宏大场景出发,也要在当下社会现实生活的微观场域里来理解当下中国司法的问题。同样,有关司法的理论既要从中国人的生活哲学与生存性智慧中获致论证资源,也要在中、西方的共识中夯实司法知识的基础。唯有此,当下中国的司法理论研究才能够生产和再生产出具有公共性的司法知识产品,才能够更好地服务于日常生活的同时建构起自身的理论体系。     

Social Inequality and the Perceived Income Justice Gap

This paper attempts to answer the question whether justice evaluations of income inequality in a society are determined more by country differences or by the social position an observer occupies. In very general terms what we study is whether, in shaping justice beliefs, cultural factors are more important than social-structural ones, or vice versa. In view of transformation societies, country differences are conflated with differences in the transformation processes the countries are experiencing. This is why we distinguish different types of transmations with regard to the postcommunist countries of Eastern and Central Europe testing empirically whether these transformation types exert influence on the justice beliefs, and how this influence compares to that of positional effects. With International Social Justice Project (ISJP) data of 1991 and 1996, we study the Czech Republic, Hungary, Russia, Bulgaria, East Germany, and—as a western referent society—West Germany. Main results are that in the early phase of transformation the different transformation types as well as social positions matter in shaping justice evaluations, over time, however, the types of transformation clearly lose influence. In 1996, compared to 5 years earlier, the countries have become similar in that most of the variation in the perception of the income justice must now be attributed to the positional differences of individuals. We conclude that the characteristics of the transformation processes decrease in importance for determining public views about social justice. In this respect, the transformation societies of Eastern and Central Europe may well be on the route to becoming more like western societies.     

Equity,relative deprivation,and the value consensus paradox

This paper addresses the question of why respondents, when asked to specify an income they would be willing to accept as just, settle for an amount that, in most case, does not deviate strongly from what they actually receive. The phenomenon is illustrated by data from West Germany. It is argued that relative deprivation theory must be extended to incorporate processes of social hierarchy perception because inasmuch as this perception is contorted it creates illusory justice evaluations. Empirical evidence of misperceiving social distributions is given by social grading studies based on large German samples. The structural causes of the distributional misperceptions are discussed, one of these causes being the value consensus paradox, i.e., the paradox that, in a stratified society, value consensus will produce different social perceptions.     

State Crimes of Previous Regimes: Knowledge, Accountability, and the Policing of the Past

The policy of lustration is set in the context of responses to abuses of power by previous regimes. Using examples from three recent forms of social reconstruction (in Latin America, the former communist states, and South Africa), the author reviews the “justice in transition” debate. How do societies going through democratization confront the human rights violations committed by the previous regime? Five aspects of this debate are reviewed: (1) truth: establishing and confronting the knowledge of what happened in the past; (2) justice: making offenders accountable for their past violations through three possible methods: punishment through the criminal law, compensation and restitution, and mass disqualification such as lustration; (3) impunity: giving amnesty to previous offenders; (4) expiation; and (5) reconciliation and reconstruction. A concluding discussion raises the implications of the subject for the study of time and social control.     

司法自由裁量权的现实分析

如果运用得当,自由裁量权能够很好地沟通形式正义和实体正义.但是,如果自由裁量权赖以存在的制度基础并未巩固,那么广泛赋予法官这种权力反而会削弱法律信仰并摧毁新理念.因此,在法官的职业素质、职业伦理和独立性尚存缺陷的环境里,应诉诸立法理性、奉行规则中心主义.     

The Morality of Compensation through Tort Law

In this paper, I will focus on the normative structure of tort law. Only by elucidating the point or rationale of holding the wrongdoer responsible to the victim can we understand the value of having tort law instead of establishing other mechanisms of redress, such as a social insurance scheme. Ultimately, I will argue that the value of interpersonal justice, which underlies tort law, might not suffice to fully justify it in a given community. It all depends on whether victims of accidents are able to vindicate their rights against wrongdoers on a regular basis. If social conditions make this unlikely, then the state might be morally required to implement other forms of compensation, either replacing tort law altogether or supplementing it with social insurance in cases where private justice mechanisms tend to fail more dramatically.     

The German Federal Prosecutor's Decision not to Prosecute a Former Uzbek Minister: Missed Opportunity or Prosecutorial Wisdom?

At the end of 2005, reports indicated that the former Ministerof Internal Affairs of Uzbekistan was in Germany to receivemedical treatment. Victims of crimes allegedly committed bytroops under his control filed a complaint against him withthe competent German authorities. Meanwhile the suspect leftGermany. On grounds of his absence the Federal Prosecutor refusedto open official proceedings based on universal jurisdictionin absentia and dropped the case. While this decision mightbe considered prudent in that it foregoes ‘purely symbolicprosecution’, it is problematic in so far it leaves thepursuit of justice at the mercy of considerations of policyand expediency that run counter to the spirit of the GermanCode of Crimes Against International Law.     

"It's Darwinism – Survival of the Fittest:" How Markets and Reputations Shape the Ways in Which Plaintiffs' Lawyers Obtain Clients

The survival of a plaintiffs' lawyer's practice depends upon the generation of an ongoing flow of clients with injuries that the civil justice system will compensate adequately. If this requirement is not met, lawyers will leave this aspect of the legal market for more promising ones. If they do, legal services for injured people will be diminished as a result. In order to find out how this personal services legal market is defined and developed, we interviewed ninety‐five plaintiffs' lawyers in Texas. These lawyers use four major strategies to get clients: client referrals, lawyer referrals, direct marketing, and other referrals. What any particular lawyer does is shaped by the geographic market from which clients are drawn, and by the lawyer's reputation. Our findings provide fresh insights for the empirical literature on plaintiffs' lawyers, and they provide an empirical context for assessing the potential impact of changes in the civil justice system, like tort reform, on the ability of plaintiffs' lawyers to obtain clients.     

The potential for the growth of organized crime in Central and Eastern Europe

Conclusions There is a clear potential for growth in organized crime in Central and Eastern Europe. The criminal justice system in most countries in the region is undergoing a crisis in morale, resources and direction, sapping its possibility to respond effectively. One of the fears in Western Europe is that organized crime will begin to cross the borders from the East. So far, this appears to have occurred only on a small scale, primarily in connection with organized theft, drug-trafficking and the illegal sale of firearms. The slow pace of this development may be due to the lack of suitable international contacts, and to the fact that sufficient profits appear to be available in the domestic market. Furthermore, operating in the West has drawbacks and dangers: it is more expensive, there may be competition from local organized crime, and the police may be more efficient.The danger posed by organized crime in Central and Eastern Europe nonetheless remains, both to the countries themselves and to the West. This has already been recognized, as shown by the growing network of bilateral and multilateral agreements, as well as by the strengthening of informal contacts among the police. Many Western European countries are providing technical assistance to Central and Eastern Europe in the form of training, consultation and the exchange of information. Sadly, organized crime control even in the West has lagged behind organized crime; both East and West have a long way to go.Director of the Helsinki Institute for Crime Prevention and Control, affiliated with the United Nations (Heuni), Turunlinnantie 8, Helsinki, Finland. Parts of this article have previously appeared inCriminal Justice International (vol. 9, no. 2, 1993, pp. 11–18).     

Social justice and women leaving prison: beyond punishment and exclusion

Questions related to social justice are often considered frivolous or irrelevant in the context of people who come into conflict with the law. Young (1990, Justice and the politics of difference, Princeton University Press) has pointed to the importance of social justice, especially in societies where the dominant perspective of the privileged is regarded as neutral (and presumably fair), while others remain oppressed and excluded. We investigate the relevance of social justice in the treatment of women who are in prison. Based on more than a decade of practice and four years of research with women in one of Canada's federal prisons for women, we explore the question of social justice in the context of a recreation and leisure initiative whose aim is to assist women not only while they are incarcerated but most especially on release. The social recreation program is brought into the prison by a restorative justice community‐based organization. Men and women from the community come into the prison to recreate together and, in that context of natural conversation, relaxation and dialogue, Circles of support may develop. If a Circle is formed, volunteer members then follow the woman into the community and support her efforts to live as a participating citizen on release. The relevance of the work of Circles in furthering social justice within a system that, despite recent potentially innovative approaches to incarcerating women, has struggled to move beyond traditional practices of punishment and exclusion, which tend not to encourage strong and healthy community life, will be explored.