Topic 2022

Knowing what is right: How does the justice system leap into the digital age?

The diesel scandal has brought a core problem of German jurisprudence back to the attention of the (professional) public: Very few court decisions are published at all. Many citizens consider the court system to be a “closed book”, and a recent study shows that the proportion of published judgments has practically never exceeded 1 per cent of all decisions handed down since 1971. So if even legal experts do not (or cannot) know 99 out of 100 court decisions, what does that mean for our legal system?

On the one hand, it means that economically motivated actors “from outside” can influence which decisions see the light of day – and which do not. On the other hand, it creates incentives for judges to control “from within” which of their decisions become visible and thus open to criticism. (Not only) In the diesel scandal, an interplay of these and other factors led to a distortion of our knowledge about the law created by the judiciary that is inscrutable even for experts.

So far, this state of affairs has been justified primarily with two claims that are rarely questioned: On the one hand, it is said to be inadmissible for reasons of data protection to publish court decisions without elaborate anonymisation; on the other hand, even in a democratic constitutional state, only that which is “worthy of publication” must be published.

Are these claims convincing? What (other) hurdles can be identified for the lack of digitisation of the German judiciary? (Who) Is interested at all in what German district courts decide? (How) Can inhibitions be reduced and incentives created to make the judiciary more transparent? Who should finance this, and are there practicable alternatives to a central official publication platform? Which social actors could shape the change most sustainably – and how?