Speaking Out in Germany

Dissent is essential to an effective judiciary in a democratic society.

--Felix Frankfurter

More than 60% of all U.S. Supreme Court decisions are accompanied by dissenting opinions that routinely flay the majority's reasoning. By contrast, most European nations bar published judicial dissent as a threat to the authority of the law. Nowhere was this insistence on judicial orthodoxy more damaging than in Hitler's Germany, where disapproving judges had no official forum in which to voice their criticism of Nazi law.

Although legislation recently empowered Germany's highest court to publish dissents, the country's courts still tend to maintain the absolutist tradition. So it came as a singular surprise to the public last month when three judges delivered the first published dissent in the history of German national law. At issue was another new law that permits certain state agencies to monitor the mail and telephones of any West German citizen. The "tap law," which required two constitutional amendments before it could be passed, allows the monitors to operate without giving legal notice of their intentions, and without any court review of their actions. Last month a five-judge majority of the Federal Constitutional Court upheld the law as "a necessary measure for the protection of the state and the free democratic order."

Civil Courage. Judges Gregor Geller, Fabian von Schlabrendorff and Hans Rupp boldly disagreed with the majority opinion. "It is a contradiction in itself," they wrote, "to want to protect the constitution by abandoning its inviolable principles," individual privacy and judicial review.

Though upset by the court's decision, the country's civil libertarians were delighted that a dissent had finally been published. "Civil courage is somewhat underdeveloped in Germany," said Judge Rupp, a Harvard-trained jurist who has served 19 years on the court. But he and his fellow dissenters feel they may have started a minor revolution in German jurisprudence.

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