Benjamin Hett (#5: The Rule of Law)

(Hunter College & CUNY Grad Center))

These are the remarks of someone who was trained as a Canadian lawyer many years ago, practiced law in Toronto for a little while, and then somehow became a historian of Germany. I have ended up writing a lot about German criminal law. I will suggest there is an avenue through to bring those constitutional feelings that Ute talked about to bear in our current legal predicament.

When I was a law student at the University of Toronto I took a course called The Practice of Criminal Law from the late Edward Greenspan, one of Canada’s leading defense attorneys. Mr. Greenspan would sometimes growl, “If you want to see democracy in action, forget elections. Go sit for a day in provincial court and watch how hard it is for the state to put someone in jail.” For democracy, this is where the rubber hits the road.

Now in the English-speaking world, there’s what we call an adversarial system. Continental European countries have what is called an inquisitorial system. They are profoundly different. So, let me talk a little bit about Germany.

Certain features of a German criminal trial are quite striking from a North American perspective. Germany doesn’t have a party-driven system. German trials are run by the judge and the prosecutor (Staatsanwalt) is not considered a party. Courtroom architecture reinforces this point. The Staatsanwalt sits on a bench with the judge or judges. The defense attorney is usually seated in a well below. The law itself reinforces the point. There are essentially no laws of evidence in Germany, certainly not in comparison to the vast and complex body of evidentiary law in the English-speaking world. This is related to the absence of juries (our evidence law mainly exists to shelter juries) abolished in Germany in 1924 because they were too likely to acquit.

The 1924 reform made it harder for dissident views to be presented in court. Unsurprisingly, this tendency got worse under the Nazis. They introduced special courts (Sondergerichte) which went even further in eliminating ways to bring independent arguments or evidence into the courtroom. After 1940 a defense attorney was not required. Trials were intended to be speedy. There was no right of appeal. Executions often followed immediately after the trial.

Now, I want to mention a matter of culture. This gets closer to what Ute was saying about constitutional feelings. There are cultures around how trials are conducted – cultural norms about what will and won’t happen. Sometimes, culture can augment or undo rights that are formally guaranteed in black-letter law. My favorite example: in Germany the 1877 Code Criminal Procedure (stop) clearly stated that the accused had the right to remain silent both during investigation and at trial. But in 1892, two lawyers were dragged before their professional disciplinary tribunal for having told their clients exactly that. The attitude of the judiciary and bar was: Sure, a criminal defendant has the right to remain silent, but you cannot tell them that. They are criminals! They won’t testify and we won’t get convictions. Even though the right in the law, the culture said it should not be exercised. Legal culture shapes what rights actually mean in practice.

So, what does all this have to do with where we are now?

The United States, like all English-speaking countries, has an adversarial criminal justice system where the judge or jury is supposed to be passive, and where evidence and argument are presented by two distinct parties: prosecution and defense. This means there are more concrete and structured ways to introduce evidence and argument into proceedings. It also means it is harder for the state to control what happens. In an Anglo-American court, there are multiple power centers. That matters. I think what we are learning right now in the United States and what we are likely to learn even more over the next years is how crucial those different power centers are. It matters if there are parts of the system an administration cannot capture.

I will return to something Mr. Greenspan said back in that Toronto classroom. “There has never been a dictatorship with an adversarial system of justice.” Empirically, I think that’s still true. In the United States in the 2020s we are putting that proposition to the test. I think our culture, the rule of law, our constitutional feelings will get us through this moment – just.

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