1 “Nomenklatura” refers to the “system of patronage to senior positions in the bureaucracy of the Soviet Union and some other Communist states, controlled by committees at various levels of the Communist Party.”The American Heritage Dictionary of the English Language (3d ed. Boston: Houghton Mifflin Co., 1992).Google Scholar

2 Einigungsvertrag, Bulletin der Bundesregierung Deutschland, Az104/878-90, with Annex I on detailed regulations on introducing federal law nationwide, 991–1064; Annex II on continuing GDR statutes, 1065–1119; and Annex III with a joint declaration of both governments, 1119–20; see also “Denkschrift zum Einigungsvertrag” (comment of both governments on their intentions).Google Scholar

3 Unlike other parts of East Germany, which formed their own state (Land) within the federation, East Berlin joined with West Berlin to become one state. As the eastern part was considerably smaller than the western part, politics were dominated by West Berliners, as was typical of in the entire Federal Republic.Google Scholar

4 Rechtsstaat is often translated as “rule of law,” but as the German concept implies more substantive notions and the English-American tradition more of the procedural notions of “due process,” it is perhaps best to leave the term untranslated.Google Scholar

5 I am here following the reasoning given in the case of Gueffroy (LG Berlin Az 2 Js 48/90 (9/91)), the first decision against a GDR soldier after the unification, and the Gebardt case as confirmed by the German High Court (BGH 5 StR 370/92). The charge against Honecker was based on the same reasoning; it was dismissed in December 1992 because he was too sick to follow the proceedings and would not live long enough to receive the sentence. For an excellent document on the border-guard cases that presents the decisions as well as the doctrinal literature, see Herwig Roggemann, Systemunrecht und Strafrecht (Berlin: Verlag Amo Spitz, 1993).Google Scholar

6 LG Leipzig, Sept. 1993; the decision is still pending in appeal. Meant to establish “proletarian justice,” the “Waldheim process” had put on a Stalinist trial against 3,390 alleged Nazis, ignoring any and all defense rights and sentencing 34 of the accused to death; cf. K. W. Fricke, “Geschichte und Legende der Waldheim Prozesse,” Deutschland Archiv 1980, 1172–83.Google Scholar

7 LG Berlin, 17 June 1994; the verdict was confirmed in appeal BGH ST 40, 30–44 (LT).Google Scholar

8 A press release from the prosecutors' office at the end of 1993 speaks of “about 2000” investigatory proceedings with abuse charges against former prosecutors and judges; the majority may have to be dismissed after the Federal High Court set rather strict standards for proving abuse of law. Cf. New Juristische Wochenchrift 94, 529R (“NJW”).Google Scholar

9 Cf. the official declarations immediately after unification by the Federal Minister of Justice, Kinkel, as well as almost all ministers of justice in the new states (Länder), when announcing a “thorough judicial prosecution” of former “government crime” and “judicial abuse of law.” Cf. NJW 94, 529R.Google Scholar

10 Cf. especially the polemical analysis by the prominent East Berlin lawyer F. K. Kaul, In Robe und Krawatte: vor Gerichten der BRD (Berlin: Verlag Neues Berlin, 1972).Google Scholar

11 Gustav Radbruch is usually cited as an authority who emphasized the natural law element in positivism (after having gone through a time of inner emigration under the Nazis), even though his writings during the Weimar period had endorsed the advantages of judges adhering strictly to positive law. His autobiography Der innere Weg (Stuttgart: Koehler, 1951) shows how even a very principled legal philosopher sees cause to vary his doctrine with the political context of the time.Google Scholar

12 Continental procedure allowed the court to spend more than a year raking evidence; a verdict in first instance was arrived at in October 1993 (LG Berlin); further charges are pending in separate procedures.Google Scholar

13 Einigungsvertrag, Annex I, ch. XIX/A (amendment to the federal civil service statutes), here esp. S. III/5; for judges, ch. III/A/II/8k (amendment to the federal statute on the judiciary) is analogous.Google Scholar

14 Einigungsvertrag, Annex I, ch. III/A/III art. 8, subsec. ee/y (amendment to the federal statute on the judiciary).Google Scholar

15 Einigungsvertrag, Annex I, ch. II/B/II, art. 1 (amendment to the federal statute on archives).Google Scholar

16 The so-called Stasi-Unterlagengesetz BGBl 1991 I, 2272.Google Scholar

17 Berufsverbot means exclusion from a job or profession; the term has a special ring in West Germany, as it was used in the 1970s to screen all applicants to civil service jobs for former left-wing activities.Google Scholar

18 Except for those of the secret service academy at Potsdam-Eiche. See text at note 14.Google Scholar

19 Gesetz zur Überprüfung von Rechtsanwaltszulassungen und Notarbestellungen, BT-Drucksache 13/273 of 1992.Google Scholar

20 For the case decisions, cf. Deutsch-Deutsche Rechtszeitschrift, esp. 94,221 R & 47 R.Google Scholar

21 Gisela Shaw, in her as yet unpublished “Not All Gloom and Doom—Women Jurists and German Unification” (Bristol, 1994), points at the unexpected Cinderella experience of East German notaries when prince capitalism entered with the unification. More than half of the GDR notaries had been women.Google Scholar

22 According to the unification treaty, Annex I, III, B 1, § 4 3–5 (concerning real estate), § 6 (concerning business enterprises), any real estate transaction since 1947 involving owners who had migrated to Western Germany, as well as all those who fell under the retribution rules for victims of Nazi racism, can be challenged as to having been unduly pressured. Hundreds of thousands of retribution procedures were initiated, and it is estimated that lawyers will have clients pursuing their claims till the end of the century. Notaries have the privilege of certifying each of these transaction.Google Scholar

23 Cf. Heiner Sauer & Hans-Otto Plumeyer, Der Salzgitter Report (Esslingen: Bechtle Verlag, 1991).Google Scholar

24 Cf. Inga Markovits, “Last Days,” 80 Cal. L. Rev. 55 (1992).CrossRefGoogle Scholar

25 Compare the ratio at the time of our comparison of 900 West German attorneys and 294 judges per million population to 320 U.S. lawyers and about 80 judges per million population.Google Scholar

26 Cf. Mieke Berends, “An Elusive Profession? Lawyers in Society,” 26 Law & Soc'y Rev. 161 (1992).CrossRefGoogle Scholar

27 The FRG has a higher rate of full-time professional judges than any neighboring country (294 compared with about 90 in the United States). Admittedly, however, any rank ordering of legal cultures depends on how national statistics define “professional judges.” Cf. Marc Galanter, “The Debased Debate on Civil Justice” (Working Paper DPRP 10-10, University of Wisconsin School of Law, 1992), as well as our indicator comparisons in “Comparing Legal Cultures,”12 Oñati Proceedings 1991.Google Scholar

28 Cf. Inga Markovits, “Pursuing One's Rights under Socialism,” 38 Stan. L. Rev. 689 ff. (1986).CrossRefGoogle Scholar

29 Cf. Markovits, 80 Cal. L. Rev. (cited in note 24).Google Scholar

30 Unpublished survey evidence from a questionnaire administered to all GDR judges in 1989 by Dr. R. Svensson, Academy of Sciences, East Berlin.Google Scholar

31 This is my own estimate on the basis of a count of the membership of the East German bar when it joined with the western association at the end of 1990.Google Scholar

32 For documentation, cf. D. Maier, “Die Überprüfung von Richtern und Staat-sanwälten in der ehemaligen DDR,”Zeitchrift für Rechtspolitik 171–79 (1991).Google Scholar

33 The pension payments to former GDR pubic employees are regulated in an amendment to the West German social insurance law; cf. Sonderversorgungs-Ueberleitungsgesetz.Google Scholar

34 According to the press secretary of the Senator of Justice, there were 370 applicants; 37 judges and 9 prosecutors were reappointed; a few were allowed to reapply in the neighboring state of Brandenburg.Google Scholar

35 An estimated 800 attorneys in East Berlin plus exactly 3,284 in the other eastern states. These data were kindly communicated by the Bundesrechtsanwaltskammer.Google Scholar

36 Our study conducted with Prognos (Basel) in 1992, as yet unpublished.Google Scholar