In an op-ed piece in today’s Handelsblatt, Reinhard Gaier, a judge at the Federal Consitutional Court (Bundesverfassungsgericht), calls for a fundamental review of the entire system of civil litigation (Shaky Foundation – Unsicheres Fundament; paywalled). Last month, Gaier published a similar piece in Frankfurter Allgemeine in March, and started the year with an interview in the legal press on the topic (Ist die Zivilprozessordnung noch ein modernes Verfahrensrecht?, ZRP 2013, 27) so he is on the campaing trail. For what it’s worth, he does have my full support.
The debate about the use of English in German proceedings was, in my view, addressing the right question. It acknowledged that there is increasing competition between legal systems and judicial institutions. An there is also recognition that these institutions are of relevance to economic performance.
However, zooming in on the issue of language alone has lead to a rather superficial debate. Gaier digs deeper, and rightly so. He argues that we need a more diversified approach to civil litigation that recognizes that not all disputes are created equal. In particular, he challenges the way we think about evidence and suggests that we could learn from concepts like adjudication or the “special master”. You must bear in mind that to most German lawyers, U.S. style litigation is evil, and the adoption of anglo-saxon litigation concepts is to be avoided at any cost. Gaier hardly is mainstream here.
Germany may have earned good marks in Commissioner Reding’s recent EU justice scoreboard. But looking ahead, Gaier believes that we can not afford intellectual lethargy when it comes to judicial policies (rechtspolitische Denkfaulheit).