Transitional Judges:
The Impact of the Post-Reunification Recomposition of the Judiciary on Personnel Structures and Jurisprudence

With German reunification on October 3, 1990, two fundamental changes affected judges in the accession area. First, the law they had to apply changed, as the law of the Federal Republic of Germany was largely adopted. Second, the status of judges changed: in the five new federal states, GDR judges were granted provisional authority to judge until the completion of reviews by judge selection committees. However, this did not apply to GDR judges working in the eastern parts of Berlin. They all became probationary judges and had to wait for the proceedings of the judge selection committees—a process that took several years. Meanwhile, the judiciary was reorganized and restaffed with support from the western Länder. As of January 1, 1993, the judiciary in the new federal states comprised approximately 28% former GDR judges, 37% newly appointed West German lawyers, and 31% judges transferred or seconded from the West.

If reunification had a decisive influence on the composition of the new judiciary, it follows that it also had an impact on the jurisprudence in the accession area. Based on this observation, my dissertation project asks: What was the impact of the post-reunification recomposition of the judiciary in the accession territory on personnel structures and jurisprudence, and does it still have an impact today? Concerning the personnel three thinks are noticeable: First, there are indications that the transfer of GDR judges, as well as the secondments, transfers, and new appointments of West German judges, diverge according to jurisdiction and instance. Second, new appointments are still noticeable today in the disproportionately higher number of judges retiring in the new federal states than in the old federal states. Third, in 2023, only about 4.4 percent of presiding federal judges and about 7.1 percent of all federal judges were born in East Germany (including Berlin), whereas 20 percent of the German population was born in East Germany.

Concerning jurisprudence, I am particularly interested how the newly composed courts dealt with the reappraisal of GDR law and injustice. For example, the labor courts faced a large influx of cases following the wave of dismissals after reunification. Statistics indicate that a particularly large number of judges were taken on by the labor courts. How did judges, socialised and trained under the GDR system, manage the transition from socialist labour law shaped by a planned economy to the market-oriented labour law of the Federal Republic of Germany? In contrast, criminal chambers were staffed almost entirely with judges from the West, owing to the significant historical encumbrances in this field, who were responsible for adjudicating rehabilitation and cassation cases. How did these judges employ the new legal framework to confront and come to terms with past injustices they were encountering for the first time? Even decades after reunification courts are still dealing the consequences of reunification, even for their own staff, e.g., the Federal Constitutional Court on unequal remuneration for judges in the accession area