Translated from Sozialistische Gruppe – Hochschulgruppe Erlangen/Nürnberg

The study of public force 1

Law in their heads – power behind them

Lawyers are odd people: They deliberately flirt with the difference between what they do and the ordinary everyday life of society. When budding lawyers in a basic civil law course are confronted with, for example, a last will and testament which was chiseled in ice with the last once of strength of somebody who fell off a glacier into the sea, which has come floating up to the surface after 200 years and been discovered – what a coincidence – by the rightful heirs (formally valid?); rack their brains over a dog that loves to eat the mail (delivered?); or are presented with unusually tall German barmaids in Tokyo nightclubs who appear monstrous to the smaller Japanese instead of – in accordance with the requirements of their employment – stimulating (misleading about the features of the person?) – then they really should have some doubts about their professor’s state of mind or the logic of the law. No one outside a law school lecture hall thinks of seriously dealing with the cabinet of curiosities that the vivid imagination of the representatives of this faculty, who are notorious for being dry, produce on a daily basis. If law students complete their education, which consists of dealing with such nonsense, not with disapproval but with appreciative smirks, there is no reason to doubt their intelligence. It’s worse: They have learned to use all their intelligence in applying the law.

Anna in the thicket of subsections, or: turning an incident into a case

Where law professors let their imagination run wild inventing cases that did not occur in real life, it is certainly not a question of thinking about the “vicissitudes of life” and their reasons. Rather, one must take the view that in principle anything is possible in order to learn to measure all real or invented events by a yardstick that has just as much to do with what happens in the world as the freak frozen will has to do with a skier who has had an accident. Studying law is therefore about practicing and perfecting a way of seeing and thinking that is, on the one hand, ignorant of the events themselves, but, on the other hand, very interested in examining them to determine which laws should be applied to them. From the outset, a “correct” legal judgment has nothing to do with the criterion of a scientific judgment about whether an idea is correct or not; and just as little to do with the distinction between “beneficial or harmful” which is inherent in a practical view of the world, but rather represents a very particular attitude towards the world: Lawyers are only interested in the question of whether the “right” laws are being applied “correctly.” Why the law is such a beautiful thing and is always becoming better and better – such questions are reserved for courses accompanying the study of law such as legal history, philosophy, and sociology, which give the legal craft its legitimacy along with a touch of participation in the rest of academic life, but detract from the actual professional training (and are therefore only occassionally cited, especially in basic courses, to emphasize the responsibility of lawyers).

How does legal thinking work? While the everyday citizen, for example, imagines the frustration of being physically disabled in the not entirely everyday incident of a pregnant woman being hit by a car and her baby being born with cerebral palsy as a result, or grumbles about the hoodlum driver who should be put in jail, the law student in the lecture hall has to free himself from this sort of sympathy for an “individual fate” – neither to share nor criticize it, but to despise it as an uneducated, “purely emotional” or calculating reaction of the “layman,” and to learn to think completely differently:

“Does E., the embryo, have a claim? The basis of the claim would be § 823 I. However, it is problematic whether E. can be the bearer of claims, whether he is even a legal entity, because § 1 of the German Civil Code (which is why there is a case like this at the beginning of the basic course) stipulates: ‘The legal capacity of a human being begins on the completion of birth.’”

Mind you, “claim” does not mean that the child now probably needs a few things to at least compensate for the disability – such practical, self-evident facts are of course irrelevant to the law. Rather, it is about a legal claim, i.e. whether the law stipulates that the child can assert a claim – and that is a completely open question. The “basis of the claim” in the legal sense is not the disability, but whether it can be exploited for the purpose of invoking any §§. The incident as such and its consequences are thus off the table; they are pure material for legal provisions, and the unfortunately not quite normal baby is transformed into a not quite normal §§ case (can the baby be identified as a legal entity at the time of the accident?), which is solved by rummaging through the textbook to see whether any §§ allow an unborn child to be defined as §§-worthy and thus a creature eligible for a claim. The child, who does not know what is happening to him (and not only him), is compared, regardless of losses, with the definitions of the law which prescribe how the lawyers must theoretically (and then not only theoretically) treat the child, and through this comparison is made into a completely different being, one whose existence depends on whether §§ apply or not.

And the driver of the car? Transported from the scene of the accident to the law school lecture hall, his involvement in the accident is only taken into account to the extent that it is “significant” for the determination of § 823 of the civil code. The fact that he has run over the woman is not the verdict on him (there would indeed be no consequences at all without a law). Conversely, the fact that he did not intend to do it does not exclude his guilt in court. Why he caused the accident, whether he didn’t get his broken brakes fixed due to a lack of money or was drunk after a marital dispute, etc. – the lawyer is only interested in this from the point of view of the extent to which he was at fault in causing the accident in a way encompassed under the §. For him, the determination of “intentional or negligent” is therefore made “relevant” within the meaning of § 823, i.e. the question is not why he wanted to drive home despite having alcohol in his blood, for example, but only whether he wanted to. From the perspective of the law, all that remains is an abstract will – wanted to, did not want to – whereby the poor condition of his brakes, a not quite clear head due to a previous moderate binge, the worry about being late to the hospital for the birth of his first son, etc., are considered to be the same. The hot question is whether his actions deviate from the established legal situation and as such should be “criticized” by a lawyer. What counts in court is not what a person has done, nor what he has achieved; a verdict is sought regardless of his actions and their consequences. His will – regardless of what he actually wanted – is examined to see whether it is permitted or forbidden by the state. Perhaps he was even entitled to run over the woman – that could well be the case under the law. If the opposite is the case, he is treated as if he had run over the law – and then the law is entitled and obliged to harm him, regardless of whether E. and his mother, who were harmed by him, get any benefit from it. You must imagine this back and forth with a standard that does not derive from an act of God – it would immediately be totally absurd!

To put it logically once again: if the students or the professor go through the incident in all its details in order to use it only as material for a comparison with §§, then they only do so in order to abstract from it and tautologically reinterpret it so that it becomes a legal case: What the law stipulates about it, that is what it is and only that, which is why one must find again in what it is what it actually is, that is, legally. In the case of E., who was born with cerebral palsy, therefore becomes the not clearly codified legal status of an embryo. He has contracted the legal offense of “bodily injury” – a disease that is only known under Section 823, but which no doctor has yet treated. This makes E. a possible claimant under Section 823. All that remains of the driver in the case is his capacity as a “driver” and, furthermore, the legal provisions “injuring party” and “defendant,” which are defined as his characteristics by § 823 I. Initially, the mother does not exist at all; in an extra examination, however, she herself can be given the legal existence of an “injured party” because she is a “bodily injured party.” The injury to the mother and her unborn child has thus become a violation of the law and the world has been turned upside down.

Cafeteria food – a positive breach of contract

A strange way of thinking that strips the circumstances of a case of all supposedly “incidental and unnecessary padding,” which leads a legal instructor to concede that this seems “very abstract and unrealistic” to the beginner in order to break as quickly as possible his common sense habit of shaking his head at this kind of observation. It’s a way of thinking that – to put it in legal terms – constitutes fraudulent misrepresentation, if not insult and deliberate mental injury, because it insists that the legal categories of an incident are the essential thing, when in fact the accident only becomes a “legal result,” a case, if all the legal provisions are attributed to it. Nobody calls the police and reports a bodily injury with possible compensation for damages. It is only because the world runs according to laws other than those in law textbooks that training must be provided in “subsumption,” which in German means “to classify, to summarize under a rubric,” and through which the incident is arranged in such a way that it fits under a “rubric” of the law (and circumstances are not, for example, mentally arranged according to their characteristics and context).

Lawyers prove that the reckless doubling and inverting of actual events is a hallmark of their thinking not only through their confident invention of possible and impossible events for the demonstration of statutes, but also by playfully confronting their normal behavior as normal people, which they still are, with their legal assessments. “The cafeteria meal today again fulfills the elements of a positive breach of contract,” “A and B go for a walk in the park. What is the legal situation?” They flirt with the craziness of legal definitions, with the fun coming precisely from the certainty that the cafeteria meal and the walk in the park really do constitute a legal situation and can be asserted as such in practice at any time. And the professor also hopes for a laugh when he asks about the legal term for picking up bread rolls (a contract of sale in which ownership is transferred). With this, as with the exam that treats William Tell’s shot as a criminal case (attempted manslaughter, justified or excused?), or with the legal interpretation of Faust’s pact with the devil (valid contract? ), he is not only signaling to the students that people’s intentions are by no means governed by legal norms – after all, when he goes to get a bread roll, he is not thinking about problems with a sales contract, but rather about whether it is crispy – but above all that the legal assessment they must learn requires them to ignore this and treat William Tell, for example, as a possible case of manslaughter, even though everyone knows that Tell is, firstly, a creature of poetry and, as such, secondly, a hero of freedom who had anything but legal problems when he was shooting. That is legal logic. And it only works because it has a power behind it that makes it valid.

Breathing life into “dead subsections”

The problem that the still unborn E. presents to the students is not to therefore find out what is actually meant by Section 1 of the German Civil Code, which denies that embryos are “others” in the sense of Section 823 I, even though E. was an embryo that became something, namely E. with cerebral palsy; but rather the question is whether a substitute existence can be found for E. in the legal world. If Anna had only been run over “after the birth was completed,” it would be undisputed that not only had she been run over, but that a legal entity had been physically injured along with her. However, the way the case is (of course specially) designed, the beginner struggles with the difference between the everyday world in which there are embryos that become E.s and the world of §§, in which all people (just not embryos from the outset) walk around as schemas that are only made subjects by virtue of the law, are all equal before the law, and consist only of real and possible duties and rights, i.e. of abstract legal definitions. In doing so, he learns the “interpretation” and “exegesis” of the “norms,” i.e. the art of moving back and forth in this doubled world and comparing what is – accidents happen all the time – with what should (not) be – with the legal postulate: “violations of the body” are “tortious acts” and should not happen. He could just as easily comment on the occurrence of swine fever by pointing out that it is forbidden! He is like the medicine man who expounds on impending naturals disaster by praying strenously each time – may the relevant idol prevent it – except that he is not dealing with extraordinary natural disasters, but with everyday social occurrences, and his incantations take the form of a strictly regulated subsumption of these occurrences under fixed legal provisions, although or precisely because the §§ are not the laws of action. The universality of the law, which is supposed to constitute the progress of society, is the exact opposite of what is otherwise understood by a law. As long as the earth turns, an apple does not fly upwards of its own accord, but falls obediently to the ground. But as long as there are state laws, they do not apply on their own, but must always first be made to apply to and against every action, and indeed – as we have seen – quite recklessly. The laws provide lawyers with the basis for crediting them with having the ideal quality of being part of a legal system, insensible to everything and everyone in society, in order to then measure everything and everyone by this ideal yardstick. If they find – what a surprise – that E. does not correspond to it, they then stipulate, strictly according to the provisions of the law, that E. must obey it. In the texts of the law they therefore hold the key for treating the whole world which would scoff at any explanation and would be considered insane if it could not and were not recognized by everyone.

When, therefore, the lawyers who deliberately confuse an animal with an object, who treat the activity of a doctor as bodily harm, who pretend as if anything in the world is possible because only the §§ are needed, under which everything real and unreal can be subsumed, who regard every real event as random because they disregard the reasons and only judge the individual will detached from its content in relation to the provisions of the law, when, therefore, those who treat reality in such a confidently reckless way give themselves credit for their objectivity, then this is certainly not based on a certainty that their thinking is correct, but rather on their certainty that it by no means matters.

What’s valid is valid

This crazy idealism, for which legal abstractions are everything and reality nothing, is – unfortunately! – not a random flight of fantasy, neither “unworldly” and “unrealistic” nor “schematic,” for the simple reason that it is backed by state violence, which not only provides it with its yardstick, but also gives it practical validity. And not just when the police or other law enforcement agencies get involved. The state simply assumes, on the basis of its omnipresent legal force, that people run around as subjects of the law who basically comply with the standards it dictates. And whenever an action needs to be checked against these standards, either retrospectively or in advance, lawyers come onto the scene. In their studies, they learn to free themselves from the subjective judgment that the world should go one way or another, and instead theoretically carry out the brutal assessment of the world as it should be according to the law and prepare for its violent enforcement. There is a method to this madness, and it needs to be learned. This is why beginners have to demonstrate the transformation of the real world step by step according to the letter and spirit of the law in the “expert style” (“Here ... the following could be the case, the prerequisite ... could be fulfilled if ...”) and then rattle off all these abstractions backwards as a valid judgment (“Since the following ... the prerequisite is fulfilled, it’s valid ...”)

So their idealism definitely corresponds in principle to that of the medicine man, but while his trust in the all-powerful Vitzliputzli is rarely rewarded, they can rely on the state power to enforce their judgment. Their intellectual achievement therefore does not consist of arguments, but is impressive because, faithful to state maxims, they theoretically anticipate and prepare to slam them shut.

Because the state provides the standard for their narrow-minded judgments about the world and practices them, the only theoretical problem in solving a case is to adhere faithfully to this standard, i.e. to observe the uniformity of the legal interpretation. The spirit of the law does not tolerate arbitrariness because it is the sole and universally valid arbitrariness of the state. The beginner therefore learns to develop the embryo case in this spirit:

“If the embryo were to be denied legal capacity and thus the prerequisite for making claims, this would contradict § 1923 II and § 844 II BGB as well as the legislator’s general interest in protecting unborn life as expressed in § 218 StGB.”

A “non-uniform” standard would no longer be a valid one, so the lawyer must learn to eliminate the clash of sections, while the clashes of the bourgeois world, which are experienced on a daily basis and codified in law, must leave him cold. It is clear who gives the ruling: one must adhere to the applicable case law, even when discussing minority opinions. Once a decision has been made, it is valid law and there is no way around it, and any contending interpretation will sooner or later be resolved by the decision-making power of the superior courts. In the course of his studies, the aspiring lawyer also learns that the freedom to create a possible spirit of the law from the thicket of §§ is not only limited by the §§ themselves, but is also invalidated with each landmark ruling. The embryo case has been decided:

“in the applicable law, the nasciturus pro iam nato habetur, when it is specifically ordered by statutory provision (cf. also §§ 1923 II, 844 II, 2176 BGB). According to prevailing opinion, the nasciturus enjoys the protection of § 823 I (in analogous application) even if he was not yet conceived (BGHZ 8,243) or born (BGHZ 58,48) at the time of the event causing the damage (e.g. the mother’s traffic accident).” (Baumann)

What’s valid is simply valid, even if the interpretation of the law is presented as an opinion – we live in a democracy, after all. It is the ruling opinion, and a lawyer has to get used to its validity – which is by no means relative.

To each his own, regardless

So for a proper lawyer, all is right with the world because he represents the law and thereby creates order. His practical idealism also provides him with the brutal ideology that the force of the law is a blessing for humanity and unavoidable precisely because it is so often not obeyed. He considers the blindfolded eyes of Justice, symbolzing everyone’s equality before the law regardless of who they are, to be social progress, and thus denies that it is precisely equal treatment under the law that constantly creates social differences because it ignores them. This is precisely outside his remit. So whether the the child with cerebral plasy actually needs anything, whether the driver has something – he is proud to stay away from this. And whether it would be fair if Anna now has nothing, but also gets nothing because the driver, the actually rich factory owner F., transferred his company to his wife and allegedly no longer has any income – to make an objection that a lawyer has obviously advised a clever lie here is not something you can afford for long in law school. “That’s the law. You must abide by it.” The professor will then frown at any moral objections to legally correct case solutions and advise you to change your course of studies if you don’t want to get into the habit of this narrow-minded cynicism of accepting everything with the sole argument that it’s the law because it is the law. The fact that Anna gets nothing, even though she needs help and the factory owner has the means, or that Anna’s claim against the driver F. is enforced so that he is left only with his bare subsistence, even though she, as a child of rich parents, doesn’t need it, or that neither of them gets anything because neither of them has anything – you have to be blind to all this. That is the justice of equal treatment.

A decent jurist must be immune to the morality that demands rights for all and by this means their own benefit. After all, the law and jurisprudence ensure that everyone can pursue their benefit within the common good – in which it can be noticed that this does not coincide with the benefit of each individual – more likely, just the opposite! The jurist, however, is correct in his reply that all get their due, and he can therefore also reject the call for more justice. But that justice is therefore a chance is still far from true. If everyone only gets their due, and in many cases don’t even want it, but are condemned to observe what justice demands (e.g. in prison), then only one authority has an unconditonal interest in justice: the state, which makes the law and determines in its legal codes how and how far each person gets anywhere.

The fact that the state power is so undeniably successful in enforcing its interests (i.e. enforcing the law) that people, in pursuing their interests, are mostly guided by what the state permits or prohibits, does not make things any better, but it does tempt a seasoned lawyer, in cultivating his professional pride, to add a second section to the one titled “enjoying the difference from the everyday consciousness of the common people”: Enjoying the power behind the officers of the courts because the “ordinary people” submit to it and even base their moral standards on it.