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Legal Education in Germany:becoming a Lawyer, Judge, and Professor
Philip Leith*
Reader in Law, Queen's University of Belfast, Belfast BT7 1NNNorthern Ireland.
< P.Leith@uk.ac.qub>
Copyright © 1995 Philip Leith
First Published in Web Journal of Current Legal Issues in association with Blackstone Press
Ltd.
*This material for this paper was collected during a sabbatical at the University of Munich in 1994/95, and I thank, Professor Dr Lothar Philipps of the Institut für Rechtsphilosophie and Rechtsinformatik for being my host. Financial support for this study was provided by the Acadmic Purposes Fund of the Society for Public Teachers of Law and the Deutsche Akademischer Austauschdienst. Figures used in this article were supplied by Dr K. Weber, Ministerialrat, Bayerisches Staatministerium der Justiz Landesjustizprüfungsamt, München whom I also thank. Information was also supplied to me by Professor Philipps, Dr Roland Hefendehl and Andreas Homouth, all of whom I thank.
Web JCLI | [1995] 4 Web JCLI | Download this file.
Contents
- Introduction
- Conception of a Lawyer: To First State Examination
- Education Outside the Formal System: The Repetitor
- Legal Training: The Rechtsreferendare
- Becoming a Law Professor: to Privatdozent.
- Becoming a Law Professor: from Privatdozent.
- Conclusion: The Culture of German Law Schools
- Conception of a Lawyer: To First State Examination
Introduction
The UK and the German legal education systems stand almost at the opposite ends of a continuum, with perhaps only the Italian system being further from the British. Yet despite the growing interest in transnational university education (through schemes such as the EU Erasmus Exchange Programme) and growing interest in the international study of lawyers, the English language literature on German lawyers is almost negligible in size. An absence of such basic information is a severe handicap to the researcher who is trying to understand the different attitudes and structures of the legal profession in the EU countries and, of course, the social pressures which affect legal thinking in the different countries. In this paper an outline of the German legal system to date is given. It will be seen that there is indeed a striking difference in basic philosophy and in mode of teaching between the UK and the German models: one, with relatively small numbers of students, driven by the needs of the legal profession itself and the other, with large student numbers, driven by the Ministry of Justice - one directed at producing lawyers (who will then rise to the judiciary) and one directed at selecting judges from the very best of those who exit legal training.Note that there are regional differences between the various States which make up the German Federation, as there are between individual law schools in each State. My picture most closely describes that at the Juristische Facultät of the University of Munich and the Bavarian implementation of legal education. Since Munich is one of the largest and most prestigious law schools in the country, it can be argued that using this as the 'descriptive model' cannot provide too errant a picture.
Conception of a Lawyer: To First State Examination.
The process which produces a German lawyer begins at an early age. The school system is one which - to British eyes - begins streaming and examining of children for academic aptitude at an early point. Having started Grundschule (1) at the age of around 6 (prior to that they attend either kindergarten or Vorschule (2)) they are tested during classwork and streamed at age 10 where they enter either the Hauptschule, Realschule or Gymnasium. The Hauptschule is the lowest level, the Realschule is the 'trade' or non-university stream, while the Gymnasium is for those directed towards further education (Figure 1). Some 60% of pupils will enter the two non-university streams, with only 40% attending the Gymnasium. However, entrance to the Gymnasium does not necessarily mean completing school education there, since continual testing will remove some pupils to the Realschule stream. The final school examination (taken at age 19) is the Abitur (3) and provides the pupil with the necessary qualification to enter university.
There are several reasons for the popularity of law degrees in Germany, which are not to do with wanting to be lawyers or judges - primarily being that it is a degree found to be useful for the 'managing class' and also as an important part of the education of senior civil servants. This has ensured that there is competition to take law at university, as there is in the UK. In 1990 all prospective students who wished to undertake a German law degree were able to do so, but a total limit of students (applied by the Ministry of Justice) has since been reached and not all students are presently able to undertake law studies. While some universities are looked upon as 'better' places to study than others (both for academic and social reasons) the student will be allocated, rather than choose, a university through a central distribution scheme. The student will now be around 20 years of age at university entrance point. Female students, having to do no military service will be younger than male students who are required to do this.(4) The student will study law for a period of approximately 4 or 5 years (though this can be longer) before they take the first formal examination in their legal career (Figure 2). Education at university is free of charge to the student, though subsistence is not provided in the form of a grant. Given the high cost of accommodation in some German cities and university towns, this is not a negligible sum and many students find it necessary to remain living at home
The period at law school will be spent alongside a large number of students (the smaller law schools will have 1,500, and the larger 5,000 students enrolled at any one point in time(5)) with, to British eyes, a high student to staff ratio.
In the law faculty at University of Munich, for example, there are 25 professors who hold the post of Lehrstuhl (C4 grade - discussed below). There are a further 6 Grade C3 professors and 3 C2 professors. A number of honorary and guest professors are also linked to the school. However, this provides only 34 permanent teaching staff for a student population of 5,000. However, there are also around 34 assistants in the post of Mitarbeiter and Assistant, as discussed below.
The taught subjects concentrate upon basic areas of German law which are formally required by legislation:(6) civil, criminal, public, labour, business, European and procedural law. The students also have optional subjects(7) from which subjects are chosen. Altogether, the student will complete around 9 semesters worth of subjects. The student having completed each of his or her semesters will be awarded a Schein (8) which will have been gained through completing written work or essays for assessment of the courses undertaken. These Scheine will not be used in the calculation of the final degree marking. It is generally considered that these tests are not difficult to pass - certainly not in comparison with the degree examinations. This effectively means that no searching, formal examinations will be undertaken during the student's university career, until the final examinations which decide awarding of the Law degree. The system is rather like the older style of British degree where the only examinations which really counted were 'finals'.
The final examination is the First State Examination(9) and is the responsibility of the Ministry of Justice in each of the sixteen Länder(10) which make up the German Federal system. The German Deutsches Richtergesetz lays down in abbreviated form(11) the outline form of this examination system, and each of the States provides its own detailed legislation for the organisation of the system. These are roughly similar, but differ in the number of papers set etc.(12) The examination system, though State based, is not limited to each State: all States recognise each other's examinations as equivalent.
Students are normally allowed to sit this first examination twice. Failure on the second attempt ends the student's legal career. Recently attempts have been made to encourage students to complete courses in a shorter time period: the prime means of encouragement has been allowing those who attempt the State Examination early (e.g. after eight semesters) a third opportunity to sit the examination should the first two end in error.(13) This, it seems, has been a successful tactic. The overall success rate (which differs each year, rather than being set at a specific ratio) is around 35% failure and 65% pass. Repeating an examination normally means having to take all papers again.
The Ministry of Justice has a department (Landesjustizprüfungsamt (14)) responsible for the setting and administering of examinations in law. Though it is formally free from the influence of the Minister of Justice, the head of this department is his employee. The Ministry of Justice has an important part in the education of lawyers.(15) Some might say that it has a more important role than that of many law professors who, unlike in the UK, have no direct input to the examination process which will award degrees to students. Of course, the examination questions are set by professors and not by the Ministry of Justice itself. Some professors who hold a Lehrstuhl (a 'senior professor') will be requested to provide questions on each of the three areas of law. These will be considered by a committee (Prüfungsauschluss) consisting of professors, judges and civil servants who will conjoin the questions together into a coherent and well structured examination to test all of the desired areas. The view which the Ministry of Justice has of this process is it is necessary for control and harmonisation.
A typical question paper will be composed of a problem (around one page or so, A4, in length) together with several questions indicating the general nature of the problem. The time to complete will be 5 hours. The Ministry will also provide a detailed 'solution' of 9 or 10 pages which will be used by those marking the question papers. The Bavarian State Examination at this first level is composed of 8 such questions, each to be answered in 5 hours. All law students in Bavaria will undertake the same examination questions.
As well as written papers, orals are held. In these the form of the written papers is followed: the students - four or five at a time - are given a problem by one of a panel of examiners (usually with 2 professors, and 2 others - judges, civil servants or lawyers) and have to answer questions on this problem. The questioner can move from one student to another at will, so for the period of 4 hours or so (there is a break after 2 hours) the students must keep their wits about them. These orals are held in public;(16) for both the panel and the students, they can be gruelling work. In Bavaria, the oral counts for one third of the mark allocated for the First State Examination. For the judge or civil servant who takes part in this process (as well as in the Second State Examination) it is considered to be useful to their careers.
Those who fail will have wasted their 4 or 5 years of study, for there is no 'compensatory award' for failure. Those who have passed this First State Examination will almost certainly undertake the second phase of legal education, which is directed towards legal training in a practical sense. However, before we look at this, the institution of the Repetitor is an important one to understand.
Education Outside the Formal System: The Repetitor
The most crude definition of the Repetorium is that it is a cramming college for university students which they attend in parallel with their university classes. However, those teachers who work in the Repetorium, the Repetitors, will point to the long history of cohabitation between continental university education and their teaching which indicate that the relationship is more complicated. The Repetitor, this history tells, began in the law school in Bologna in the 13th and 14th century and moved north, across the Alps, to become an intrinsic part of the German educational system - particularly in law. Though many subjects now have Repetitors who provide education (e.g. medicine, languages etc.) it is law which makes most use of them. Other subjects have more stringent examinations during the degree course(17) which provide feedback to the student whereas those in law do not do this.The Repetitor exists to solve a particular problem. It is one where the professor at the university has very large classes (sometimes 1,000 students) and very little possibility of contact with individual students. The students themselves, flung into these large classes find it difficult to relate to other students and to gain feedback on the how their education is progressing.(18) Given that about one third of students will fail their First State Examination, there is an understandable pressure upon students to try and overcome this problem of detachment. It has been suggested to me that 95% of students will make use of a Repetitor at some time during their university career: an indication of the nature of the problem. If this figure is correct, it indicates that many professors must have - in their student days - have had some contact with Repetitors.
Repetorium are commercial companies. These might be composed of a single- person, or be of university town, state or national size.(19) Usually with the larger companies, the teaching staff have self-employed status and pay their own taxes etc.. The Repitorium can be solely devoted to teaching, or can be a combination of a law practice together with student teaching (this is deemed to be attractive to students). Though the students use companies, the contact they have is with an individual Repetitor who will teach them the relevant part of the course (i.e. Civil, Public etc.) which is directed towards the examination. Students hear, from word of mouth, who the best Repetitors are and try to get into their classes: there is almost a 'fan club' for some.
The ideal time for students to start to attend the Repetorium is about 2 years before the State Examination. Before that time, the students will try to complete as many of their university assessments (Scheine) as possible so that they can concentrate upon the workload given by the Repetitor. Though many students will only use part of the courses offered by a Repetitorium, and some leave things, too late, an 'ideal' timetable as suggested by a Repetitor will be:
15 months attendance at civil law courses;
12 months attendance at public law courses;
5 months attendance at criminal law courses;
3½ months attendance for their chosen subject from the
Wahlfachgruppen (see note 8, above).
where the courses will all end 6 months prior to the First State Examination to allow students independent revision. The Repetitor also provide support for students who undertake the Second State Examination (see below) and an 'ideal' timetable for this is:
6 months civil law
6 months public law
5 months criminal law
2 ½ months taxation
3 ½ months Wahlfachgruppen
where the courses will all end 3 or 4 months before the examination in order to provide personal revision time. The student will attend classes of about 3 to 4 hours duration, once per week. Nearing their examination, they could be attending 4 weekly groups for 3½ months: this might mean 16 hours per week.
The classes which the students attend can be of various sizes - size being dependant upon cost. Those Repetitors who work with small groups (of around 12) are held to be best, but the cost can be 150 DM per month per course. Larger groups (and these can be between 80 and 100 students) cost less - 80 DM perhaps. This means that for a student who follows the ideal timetable for the first examination and attends small group classes, his or her total cost will be over 5,000 DM.(20) For the Second State Examination, the cost will be less - about 3,500 DM. Of course, the student can - if finance is a problem - attend only those courses which they find particularly difficult or can choose to go to a less costly Repetitor.
There is, I was told from both the side of the professor and that of the Repetitor, a psychological aspect: with university education being 'free', there is a feeling that it will not be as good an education as one that the students pays for themselves. As an example of this, courses offered by professors in the university might have few takers, but those same courses offered in the Repetorium will have 20 or 30 students willing to pay.
The Repetitor's view of professorial teaching is that it is too abstract and too difficult for the student. Professors, in this view, are interested in their subjects in a 'scientific manner' and teach with their own intellectual predilections to the fore.(21) In essence, the criticism is that teach too much like 'professors', rather than carrying out low- level education. This is a problem because the examination system is much more practically than theoretically oriented: specific legal cases set the students which have to be answered both in written papers and in oral examinations. In this kind of examination system there seems to be little place for wider theoretical discussion or course, which of course, are the very kinds of subject which most academics prefer to teach. It was described to me that the Repetitor sees legal education as a 'craft' and that a good Repetitor will try to teach the 'craftsmanship of law'. This is not 'how to pass an exam', so much as 'how to solve a case'. Being able to solve a case is, of course, necessary in order to pass the examination system at both the First and Second Examinations.
The Repetitor will provide (given small groups, of course) personal attention to the student. They will in many cases be on first name terms with the students and there will be a measure of informality which is absent from the university environment. Particular problems will be given attention, and the student will have feedback on their examination technique (i.e. case solving ability) which is not got from their university Scheine. However, this is not to say that the process is error-free: if 95% of students receive attention from a Repetitor, but 30% fail, then attendance cannot be a guarantee of success.
As well as teaching the 'craft' of case solving, the Repetitorium will also provide study materials(22) for the student. These can be large and bulky: typically 750 pages of typescript for a criminal law course.(23) Little wonder that the 'ideal' timetable for using the Repetitor includes a pre-exam study period. The good Repetitor emphasises that he or she is providing a solid education of a form which the professor either cannot do due to pressures from the system, or does not have the inclination to do since it is so low level.
Some Repetitors will provide protocols which are records written by students (and paid for by the Repetitor) of the questions asked in oral examinations. For example, they will contain information on the questions which specific professors have asked in the past (e.g. 'Professor XX usually asks about a case from the local evening newspaper, so be sure to read that...'). The protocols offer the student psychological support as much as anything, but are hardly reliable - a Professor can change tack and ask questions of a sort which the protocol suggests he or she never does. Since the students cannot know who the non-Professors will be on the oral panel, such information pertaining to them cannot be useful.
The relationship between the Repetitor and professor can be of differing kinds. There are professors who simply accept that this is a historical situation and that there is little can be done about it: and, perhaps, accept the usefulness of the Repetitor. Others - the more traditional perhaps - see the Repetitors as mere 'crammers' rather than 'educators' and look down on the task. Whatever the relationship, it seems that the Repetitor is drawn to this form of parasitic university teaching because it offers contact with students (and, of course, many university staff in the UK prefer this kind of student contact to doing abstract research). It can be combined with other work, perhaps as a practising lawyer: students like to feel that their Repetitor have close contacts with real cases. And, not least, it can be well paid for the Repetitor who has a good relationship and good reputation amongst students.
Legal Training: The Rechtsreferendare
Nearly all students who pass the first State Examination will begin the second stage of their legal careers. It is important to note that this stage, the Referendarzeit,(24) is common to all lawyers whether they intend to become judges, academics or lawyers in private practise. This trainee-ship period is directly under the supervision of the Ministry of Justice, and the organisation and teaching is arranged by the Ministry. It has been suggested by various commentators that this is a form of education which is particularly judicially oriented, even though only around 10% of those who pass through it will become judges. The advantages which are posited for the common form of legal training are:(i) students have a flexibility which they do not have in other systems to change career plans or, indeed, career at a date after they begin training. Compare this with the lack of flexibility of those who undertake a barrister's training or articles in a solicitor's office in England;(ii) the students have a better appreciation of the entire gamut of law in practice rather than simply one part into which they are slotted and have little chance to escape (e.g. the difficulty of moving out of criminal chambers into a civil chambers);
(iii) for the system as a whole, lawyers better understand the whole system and should enable it to work better through this understanding;
(iv) for the wider society, since lawyers are part of a 'managing class' it is right that they have a broad appreciation of the legal system.
Of course, there are criticisms:
(i) for the students it is difficult for them to become adept at all legal areas of practice;There are three main reasons why most students will pass onto this stage of legal training. First, Article 12 of the Federal Constitution gives all students who pass their first State Examination the right to legal training in a Referendar period - this means that there is no formal mechanism for diverting students away from legal training (despite the overproduction of lawyers(25)) as in the UK with its allocation of post-law school training places. Second, a legal degree does not only allow access to a legal post. It is an entry to the Civil Service (most Civil Servants having a law degree) or management in business. Third, as already mentioned, it is a paid post - albeit not well paid in German terms. Finally, it is considered to be of little value to have passed only the first examination in job searching, when one is against so many other students who have passed both first and second examinations.(ii) students, having completed the second period of training are somewhere between 27 and 29 years old, which means that their real earning capacity only begins in their 30's;
(iii) it is expensive for the taxpayer, since each student is awarded a grant of around 1,800 to 2,000 DM a month living expenses, and the cost of training has to be met by the Ministry of Justice.
While it is not usual for this training period to be terminated, it is not difficult for the Ministry of Justice to do so when an individual student is, for example, a poor attendee.
The Referendar period lasts for 2 years. During that time the student will attend theoretical classes and also be involved in practical work. The theoretical classes are taken by judges or civil servants who spend 4 to 7 years on secondment. It can be difficult (and I was told students complain about standards) to get good teachers since many who would be good prefer to remain as judges and those who want to be teachers may not be particularly adept. The outline for the Bavarian system is:
6 Months: Civil Law
3 Months: Period with Criminal Court or Prosecution Department
7 Months: Public Law
4 Months: Period with Lawyer
After which an examination, the Second State Examination is undertaken. Finally, a 4 month practical period completes the 2 year course of study.
There is a measure of flexibility in this system. For example at the end of the period 2 and period 4, two months of each could be spent abroad. This is formalised in the state legislation. (26) This enables a student to discover how other legal systems operate (some visit legal firms in the US or UK) or to work in, for example, an EU institution. The final 4 month period can also be spent abroad, but is usually a means whereby a student can demonstrate to a potential employer their skills: being subsidised by the Government, most law practices have no hesitation in making use of students in this part of their course.
The Second State Examination(27) is even more substantial than the First. It is composed of, in Bavaria anyhow, 11 papers. These are produced by the Ministry of Justice, but rather than the questions coming from law professors, they come from judges and civil servants and illustrate that the teaching in the Referendar period is practical rather than theoretical. The examination papers are longer, too. They will typically be 7 or 8 pages in length and have more detailed factual information (often in the form of legal documents). But the student will have the same 5 hour period to answer the set questions. Once again, the Ministry of Justice also supplies a 'solution' for use by the examiners. Oral examinations are also part of the final exam. At this level the students are expected to be able to use the commentaries which are available on legal topics. (28)
Some 15% will fail this Second examination. Their careers in law will not be completely over, but will be highly restricted. They can expect to work in low level legal jobs such as with insurance companies. They can exercise their legal abilities by pursuing an appeal against their failure to the Appeal Court as appellant, with a representative from the Ministry of Justice as defendant. The most usual grounds are errors in the exam papers, difficult examination environment (e.g. noise outside the exam room), or that their answers were not incorrect, but simply represented different standard views as found in textbooks.
For the 85% who pass this examination, they will look forward to a career in a variety of locations. No-one who has passed this second examination can be refused a right to practice as a lawyer, so it is clear that for those who begin a law degree, there is a very high possibility of them attaining a position as a practising lawyer. This is unlike the situation in the UK where a falling proportion of law students beginning their careers will actually cross the barrier to solicitor or barrister. The percentages for Germans who successfully pass the Second examination and move into the various sectors is:
| Judiciary: | < 10 |
| Public Administration: (29) | 10% |
| Lawyers (Rechtsanwälte): | > 50% |
| Public Notaries: (30) | 7 or 8 per year |
| Business: | approx 30%. Increasing number each year. |
The training system for lawyers is an expensive burden to the taxpayer. (31) With the overproduction of lawyers there are certainly pressures to limit the expenditure on this support for all those who successfully pass the first examination. It may also be that the length of time spent in legal education as a whole is a factor which is being taken into account in current discussions on the future of legal education in Germany. The university system has not, it seems clear, managed to find money to provide for extra professorial posts in order to keep up with the expansion of legal education in that sector - perhaps because the second stage is so expensive to the State.
It is striking that the German lawyer in practise has so little impact upon legal education in Germany. In the UK, law schools are used to the throttling pressure they feel from the Bar Council and the Law Society over standards, core courses and suchlike. This pressure is almost totally absent from the German system of legal education. Here, it seems, the system is directed towards providing a judiciary and a civil service - a situation not too unexpected given the controlling influence of the Ministry of Justice in the entire process.
It must be remembered that there is a long tradition in Germany of civil servants (and judges are viewed as civil servants) having high status: Germans are aware themselves of their tradition of respect to authority(32) and there is little of the distaste for central organisation and authority that is found in the US and has been found in the UK in recent years. A system which educates those who will become civil servants to a high level is seen to be a valuable part of the educational system.
Becoming a Law Professor: to Privatdozent.
It is usual for those who wish to undertake the path (Figure 3) which will, hopefully, terminate in a professorial post to have undergone the Referendar training. It can be the case that students who are particularly sure of their abilities and their goals will not undertake this, but for most (well over 95%) there are advantages in having such training. First, it offers a safety net should their professorial career plans fail, but also because it is generally held to be useful for law professors to have an understanding of practice.
Unlike the UK where law schools seem to be intent upon being the very final academic area to require a PhD from its teaching staff, (33) in German law schools such a qualification is essential for a professorial role. The first aim of the student is therefore to complete their thesis successfully and to then achieve, by means of publishing, the title of Privatdozent. Since this usually takes several years to do, and requires some form of financial support, there is a structure within the law school which provides security for some, but not all, students. This is composed of two posts which carry a salary or stipend.
The first of these is the Wissenschaftlicher Mitarbeiter(34) (Mitarbeiter) which is a post where the occupant provides teaching support and aid to his or her Lehrstuhl (see below) and also studies towards their PhD or carries out post- doctoral work. The work involved can be low level (such as photocopying), or directly carrying out a professor's teaching and student contact in his or her absence. (35) Usually students will make first contact with an Assistant or Mitarbeiter before they contact a professor with a problem. The contract for this post allows 5 years (non- extendible) to the individual who occupies it.
The second post is the Wissenschaftlicher Assistant (Assistant) which is a post on a higher level than Mitarbeiter It is of Beamter status (that is, a civil service post) and allows 6 years (non-extendible) to its occupant. It is usual in many parts of Germany for the Assistant post to be occupied by someone who has already obtained a PhD, but this is not always necessary. It is possible for an individual who has completed a Mitarbeiter contract to then transfer to a Assistant post: the effect is that the individual then has a total contract for 11 years. Likewise, transferring after 1 year from a Mitarbeiter post to a Assistant post will give the individual a contract period of 7 years. It is not possible to be 'demoted' from Assistant to Mitarbeiter in order to have the Assistant's contract term extended.
Both of these posts are usually advertised, so that students interested in an academic career can apply directly for them. However, there are other - perhaps more common ways - for students to achieve these positions. For example, a student with a particular interest in one area of law can write directly to a Lehrstuhl and demonstrate his or her interest in that field and ask whether there are any positions available. Since the giving of such positions is an important aspect of the work of the professor who holds a Lehrstuhl, though, it is often thought better to have some clearer knowledge of the prospective assistant. Therefore, students who have held minor posts such as Hilfkraft(36) (where they do minor clerical work for the professor) can bring themselves and their keenness to the notice of that professor and hopefully achieve a post in this way. Knowing the student reduces the risk for the professor of making an employment mistake (though, of course, can't remove it).
Having one of these two posts is not an essential element in a career, since the student can carry out their PhD and post-doctoral research at their own (or parent's) expense. However, it does have the advantage of providing the student with teaching experience within a university itself.
The examination of a PhD thesis, when completed, is usually carried out by two professors from within the law school (one of whom is the student's supervisor). These examiners produce reports (of about 10 pages) on the thesis and award it one of five possible marks. (37) The thesis is then made available to all the professors in the law school, each of whom has a possible veto (this is dilatory only, requiring correction of the thesis). It is not usual for more than a 'flick' through the thesis to be carried out by those professors with little knowledge of the field, but it is a factor of which the student is no doubt aware. (38)
Having passed these two stages, the student is given an oral examination (with three professors, covering the three basic areas of German law, and including the supervisor). A mark is given for this oral which is then, in a complicated calculation, joined with the earlier mark for the final grade. Having passed this, the student is then awarded the doctoral title.
The PhD is the first step in the process to Privatdozent. The next stage is the publishing of two books. The first is usually a reworking of the PhD. The second book, termed the Habilitationschrift(39) requires much more work than the PhD, and is intellectually and physically more substantial than the PhD. The student is effectively having to produce two works of PhD standard or above to be considered for a future professorial post. On publishing of this second book, the student has reached the end of the first stage towards a professorship - they are awarded the title of Privatdozent. They might now be in their early to mid-30s, having received only the relatively lowly salary of an Assistant in their entire career to date.
In some disciplines - such as science - I have been told that it is not expected of students to publish articles before their PhD has been completed. This does not seem to hold in law: indeed, in order to produce a fuller and more attractive CV, the Assistant or Mitarbeiter has to be positively thinking of publishing in order to extend the rather limited fields which are usually covered by their PhD and second book.
Becoming a Law Professor: from Privatdozent.
There are three possible scenarios for the Privatdozent. He or she is now in a position to take up a professorship at a university but, of course, these are dependant upon availability, and they are also dependant upon the goals of the student, and where in the professorial hierarchy he wishes to aim.There are three levels of professor in German law schools. (40) They are graded, in descending order, C4 to C2 (C1 is the level of Assistant). C4 is the grade of Lehrstuhl, which is the most prestigious professorial post. It is the Lehrstuhl who has control of the rooms, secretary, budget, library and all assistants' posts. The C3 post is one which is usually supported to some extent by the Faculty (e.g. with an annual budget) but need not be. In this latter case, the C3 post is reliant upon the Lehrstuhl for access to facilities (including secretaries and use of assistants). The most lowly professor is the C2 who has no facilities apart from those he is allowed by the Lehrstuhl. (Currently, there are plans to abolish the C2 post). Ideally, the student therefore wants a Lehrstuhl, although these are by their very nature sought after.
The first scenario is that a Privatdozent is, in times of availability of posts, offered a C4 or C3 post(41) almost immediately that he reaches that status. During re-unification was such a 'very good' time, and with the current retiring of many professors who were employed in the 1960s the present is 'good'. At periods, though, it can be difficult to achieve such a post. Even in 'good' periods, many professors will also be keen to move between universities - a Lehrstuhl at one university may be attracted by the prestige of another such post at another university, or it may be than another university offers a larger budget or more assistant posts with that Lehrstuhl. The new Privatdozent therefore has to compete with these more senior people.
The second scenario is that the Privatdozent is not able to achieve a permanent professorship immediately. He or she will then consider a temporary post which a university might make available on the retiring of a professor. For both the university and the Privatdozent, such a 1 or 2 year contract can be useful. The university can try out the professor and the temporary professor can show their best light in the hope of their contract being made permanent. If it doesn't work, then application can be made elsewhere.
The third scenario is that the Privatdozent has not managed to find a suitable post and the funding associated with their university Assistant post is ending. At this point, it is possible for a further stipendiary post to be applied for - that of Ober Assistant, though such a post is not usual in Law Schools. The contract period is 3 years, at termination of which the prospective professor may be nearing, or be past, his or her 40th birthday. (42)
Conclusion: The Culture of German Law Schools.
It is not my intention here to provide a profile of the social-psychology of professor and student in the German law school, but for those who are used to UK law schools with relatively low numbers of students(43) and low student/staff ratio, the difference in the general flavour of German law schools is striking.Part of the equation seems to be that there is a detachment which both sides of the system feel towards law school education. The professors have, of course, little input into the awarding of degrees and thus an individual - though he might enjoy teaching his own sub- fields - cannot have this made a core part of the curriculum for examination purposes. For most law schools in the UK, we can see that there are particular reasons why students might want to go to that particular institution: some will emphasise traditional teaching and others will be less traditional; some will have teaching staff with a particular bent (e.g. socio-legal studies, feminism or commercial law) which will run through both the course and the examinations. Therefore, there is a reason for students to try to find out about individual law schools before they fill in their application forms. (44) This reason cannot be so pronounced in German law schools, because it is not the professoriate who decide what is examined but the Ministry of Justice. Such a situation, not unexpectedly, can lead to a sense of detachment from staff.
It is also the case that detachment from control of the educational programme can lead to a detachment from the needs of students. One law school(45) was described to me (by a holder of one of its Lehrstuhl) as being composed of more than 50% professors involved in legal history. Whenever one retired, their numerical control of Faculty ensured that another legal historian was brought in as a replacement. My informant suggested that the main topic at Faculty meetings was whether courses should be taught within a Roman Law or a Medieval framework. (46) The Wahlfachgruppen subjects are those where the 'hobby' courses of the Professors will be found, but the core subjects have to be taught, too. It is therefore not difficult to understand that there may be some discussion and debate amongst the Professors before the final teaching allocation is determined.
Prior to the student troubles of the 1960s, the average age of a professor upon taking up a chair was 53.6 years (Craig 1991, p171) when a measure of intellectual conservatism might well be expected. Though this has been reduced by 20 years or so, it is still the case that access to a chair is the only means whereby a permanent university post can be achieved. Compare this with the UK where someone in his early or mid-twenties can be given a permanent teaching post, whether or not he or she will ever be amongst the 10% who achieve professorial status.
Detachment by the students, too, has been commented upon by observers. Rueschemeyer, in his comparative analysis of the German and US legal professions (Rueschemeyer 1973) suggested that secondary schools in Germany have a relatively formal (i.e. highly structured) approach to education. It is one where self-motivation of the student is emphasised and where 'family education', too, is stressed. He suggested that this caused particular problems for the university student:
During his three and a half to four and a half years of university studies the prospective lawyer is exposed to a system of lecture and discussion courses, both often crowded by hundreds of students, which imposes few sanctions against underachievement. Competitive, hard study is not particularly characteristic of German law students - a fact that corresponds to the secondary role of competition in the ideals and the actual life of the profession. The combination of sudden academic freedom after highly regimented high school studies with a completely new subject matter, which is not presented in ways to make it attractive to the uninitiated, often leads to a crisis that is resolved by most students in one of three ways: they leave university altogether, they change their field of studies, or they stay in law school, but they withdraw their energies more or less from the offerings and ideals of the university and turn to commercial cram schools and correspondence courses. (47)
Student fraternities, perhaps, provide an environment for students to demonstrate the involvement which they cannot feel to their law studies. These mirror those found in the US, and while they might not have the same initiation rituals as US student fraternities, there are - I have been told - three universities in Germany where some fraternities combine to employ 'fencing masters' to teach students the art of standing still while their prospective fraternal colleagues strike them with swords. (48) More usually, though, such societies have roles such as in providing student housing.
For the Mitarbeiter or Assistant, too, there is a sense of detachment: tied to the needs and foibles of the Lehrstuhl and also unsure whether their career plans of rising to a professorship will be achieved. It is difficult to plan in the longer term, and though they have the opportunity to teach and research, their responsibilities include tasks which my junior colleagues would refuse to carry out: photocopying, looking after the Lehrstuhl library etc.. Of course, PhD students in the UK are at the bottom of the hierarchy (secretaries usually treat them simply as a nuisance) and if we look upon the posts of Mitarbeiter and Assistant more as research studentships than junior lecturers, then perhaps their life is not so bad. The major difference is simply that they are older when their studies finally finish.
Perhaps the defining aspect of German law school is that it is simply seen as stage one of a process to become legally qualified, and perhaps not the most important stage. Since the educational control is in the hands of the State (who control finance, the curriculum, the examination system and the second stage of training) it would not be surprising that the State is less than lavish when funding law schools. And since the State also has a requirement to ensure that the standard of judicial and public appointment is kept high, it would not be surprising if it saw - as many allege - the real role of legal education and training to be the production of judges(49) and public administrators, leaving the position of lawyer an almost accidental offshoot, though one whose training has been directed to understanding the problems of the judge rather than the needs of his or her future client. (50) Certainly, the working courtroom style of the German lawyer is radically different from that of the common lawyer: there is less confrontation and more desire to help the judge arrive at a conclusion. (51) It is a moot point, but perhaps one of current interest as the users of the legal system complain more and more vociferously about the cost of litigation and its 'kidnapping' by lawyers, (52) there might be more to learn from German legal education than we first think.
Bibliography
Bayerisches Staatsministerium der Justiz, (1993), "Justiz in Bayern: Eine Information aus dem Bayerischen Staatsministerium der Justiz", Munchen.
Craig, GA (1991) The Germans, (Harmondsworth: Penguin).
Rueschemeyer, D (1973) Lawyers and their Society: a comparative study of the legal profession in Germany and in the United States, (Cambridge: Harvard University Press).
Weber K (1987) "175 Jahre Zentralexamen in Bayern: ein Beitrag zur Geschichte des Landesjustizprüfungsamtes", BayVBI 1987, 168-176.
Footnotes
(1) Literally, 'Ground School'. Back to text.
(2) Literally, 'Before School'. Back to text.
(3) These are the equivalent of English 'A' levels or Scots 'Highers'. The system is more complex, though, requiring all subjects in the 12th and 13th years of the Gymnasium to count towards the final result. A typical student will take two major courses (Leitungskurs) and two minor courses (Grundkurs) with written exams for both the major courses and one written and one oral examination for the minor courses. Other required subjects will be taken into account through a calculation which provides a final mark for the Abitur. Back to text.
(4) There is a system which allows those not wishing to serve in the military to do a form of social service (working in hospitals etc..) Those taking this option have to spend a longer period in this service than those undertaking military service. Back to text.
(5) The law student population in, for example, Bavaria as a whole in 1992/3 was 17,453. This was split amongst 7 law schools (Augsburg, Bayreuth, Erlangen-Nürnberg, München, Passau, Regensburg and Würzburg). Munich had 5,023 while the rest varied between 1535 (Bayreuth) to 2751 (Würzburg). Munich is certainly one of the most expensive cities in terms of accommodation for students in Germany. Back to text.
(6) This, JAPO (Juristen Ausbildungs und Prüfungsordnung), is the basic piece of legislation which sets out courses, options and form of examinations for the entire student's legal education. Back to text.
(7) From the Wahlfachgruppen - literally 'group of elected subjects'. This group is relatively large including sociology of law, philosophy, criminology, international law etc. Back to text.
(8) This is a certificate of successful completion of the course. Back to text.
(9) Simply termed the 'Erste Juristiche Staatsprüfung'. Back to text.
(10) Basically, 'State'. Back to text.
(11) See §5 of the Deutsches Richtergesetz (DRiG). Back to text.
(12) For example, Bavaria has 8 papers in its first state examination which is more than other states. The Bavarians are, of course, sure that this indicates a better law degree. There can be other differences. For example, in the calculation of the final examination mark, there is a difference in final allocation for written and oral work. Some require Hausarbeit ('home work') to be carried out. Back to text.
(13) Students have informally termed this, Freischuss: literally, 'free shot'. There is a conceptual link with Weber's opera of the same name. Back to text.
(14) Literally, 'State Justice Examination Office'. Back to text.
(15) The history has been long: see (Weber 1987) It is not only law where the examination system is tied to the State: teachers, too, have to undergo a similar externally regulated examination system. Back to text.
(16) This is a 'relative' public - usually only relations or students above a certain level in the degree course are allowed. It would not be possible for a student to take his own lawyer along to judge the behaviour and standard of the panel - the lawyer would be asked to leave. Back to text.
(17) Termed, Zwischenprüfung, literally 'intermediate exam'. Back to text.
(18) I was told that students would feel 'very alone in not going' to a Repetitor. Back to text.
(19) At least one publishes its own magazine for its students. Its teaching publications are advertised in this magazine as well as 'hints' on coping with exams and law courses. Back to text.
(20) Around £2,400. Back to text.
(21) Note that, unlike in the common law countries, the German professor has had a marked impact upon the development of legal ideas. The judiciary, being recruited rather than promoted from the bar, are not averse to reading the textbooks and commentaries written by Professors. It is not uncommon to find a PhD student who is hopeful that his research will be read by judges and might - though the odds he or she will accept are low - be cited in a judgement by a higher court. I have not yet met a UK legal PhD student with that perspective. It may partly be that in the UK, the teaching model is more accepted because the professor has so few opportunities to affect judicial reasoning. Back to text.
(22) These will be used by all Repetitors in the company and will be updated annually. Back to text.
(23) These materials are usually in A4 format. It has been suggested to me that many of them are of poor quality - certainly of lower standard than a good textbook - but their attraction to the student is that they are in a different physical format from that of a law textbook which students find difficulty in reading. Back to text.
(24) Equivalent to 'articles'. Back to text.
(25) There are some 18,000 lawyers in Bavaria for a population of 11.5 Million, though at the end of 1992 there were 11,326 who practised as lawyers (Rechtsanwälte). The figure for 1972 was 4,507. See (Bayerisches Staatsministerium der Justiz 1993). The problem of overproduction was temporarily solved with re-unification. Many lawyers moved to the East to take up posts in Universities, Judiciary, Government Offices and in private practice, too. That 'sponge' has now been saturated and the problems of overproduction remain. Back to text.
(26) § 36 JAPO. Back to text.
(27) The 'Zweite Juristische Staatsprüfung'. Back to text.
(28) These are of high status being composed by senior judges and professors. There is no equivalent in the common law tradition for these commentaries. Back to text.
(29) This will include work in the State or more local administrations. Back to text.
(30) The number of Notaries in limited by the Ministry of Justice to 454. This means that only a small number can enter this part of the profession each year. Back to text.
(31) In 1992 the Bavarian tax-payer was supporting 5,075 students during their Referendarzeit. In 1982 it had been only 2,346. Nationally there were 24,000 in 1992 of which around 40% were female. Back to text.
(32) The term, Obrigkeitstaat, refers to the general tendency towards an 'authoritarian state'. This is perhaps too strong a term in English, but the society is certainly well-ordered and displays hierarchy in many situations, including the academic and professional. Back to text.
(33) And some might argue that possession of a PhD is held against prospective staff - perhaps because so few law teachers in the UK have such a qualification themselves. Back to text.
(34) Literally 'Academic employee'. Back to text.
(35) This is considered an exceptional circumstance rather than an everyday one. Back to text.
(36) This is the post occupied by an undergraduate student 'helper'. Back to text.
(37) They are, in descending order or merit, Summa Cum Laude, Magna Cum Laude, Cum Laude, Vite, and Fail. Back to text.
(38) It was indicated to me that in 5% of thesis, this veto is used: this is non-negligible. Back to text.
(39) The Habilitation is the term given to ceremony at which the student is awarded their post- doctoral lecturing qualification. Back to text.
(40) Applicants for a chair are finally decided by the Faculty as a whole. Only a numerical majority is required in a vote, not total approval. This is seen as one of the most important decisions a Faculty can make. Back to text.
(41) C2 posts, I have been told, will not normally now be available or advertised. Back to text.
(42) Should it seem unduly harsh that the Privatdozent may not achieve his professorial ambitions, we need only think of the tenure seeking problems of academic staff in the US and the continual short-term contracts for research staff in the UK. I have no figures for those seeking a German professorial post who do not achieve it, but it numerically cannot be the case that all Mitarbeiter or Assistants will become professors. Back to text.
(43) Where, in my own law school, there are one or two colleagues who can remember practically every student who has ever passed through their hands. Back to text.
(44) Not to say, of course, that they necessarily do this - especially given the fact that it is a new subject which they will be meeting for the first time. Back to text.
(45) This was not the University of Munich. Back to text.
(46) I suspect that he was exaggerating . Back to text.
(47) At page 102. Back to text.
(48) I have not seen this myself, but one of my own students on an exchange programme witnessed this in 1993 at the University of Tübingen. The ritual is not related to entry to all fraternities - indeed only a small minority of these require this. Catholic students were banned from taking part in this by the Pope and the ritual is found only amongst certain Protestant fraternities. The applicant is allowed two flinches: on a final third recoil at the swing of the sword his 'application' is deemed denied. Protection is worn, and there does not seem to be the same desire to have one's cheek cut to make a public statement of the matter as in the past. Back to text.
(49) It has been suggested by a number of writers that most German law textbooks look at legal problems from the perspective of the judge rather than the lawyer. Back to text.
(50) Rueschemeyer notes: "... the facts that future Rechtsanwälte constitute a minority among their peers who aspire to become judges, public prosecutors, and public administrators and that they spend several years of apprenticeship as if they were to become judges and civil servants should have a profound impact on the subculture of the German Rechtsanwältschaft." (p103/104) Back to text.
(51) Shown by judges phoning lawyers at home to sort difficult points out, and lawyers being under a duty to reduce the points to be determined by the judge before going to trial. I was observer during a court appearance when a lawyer was told off by the judge for writing too much. He blamed his client (for wanting to answer every point made by the opponent) but was told by the judge that he was too good a lawyer not to be able to control his client. This was all carried out with some humour. Back to text.
(52) I am currently examining the patent system in Europe and notice that UK users consistently point to the effectiveness and low cost of German litigation in comparison with that of the UK - eg the Trade Marks Patents and Designs Federation's response to Lord Woolf's review of the Civil Justice System. Back to text.