For Germany, legal protection by the courts is so self-evident that in the discussion about current problems (duration of proceedings, digitalisation, concerns about the next generation) the essential characteristics are pushed into the background: Neutrality and easy access, decisions bound by law and justice without regard to the person. In view of the rise of authoritarian forces in democratic states in Europe and America, the question is becoming increasingly relevant here in Germany too: How vulnerable is the German judiciary already?  

The Verfassungsblog is investigating this question with its justice project. The main aim is to gain knowledge about the vulnerability and resilience of the German judiciary - in some cases for the very first time - and make it generally accessible. The central assumption is that authoritarian populist actors are working towards a state in which they can only be voted out of office with difficulty, if at all. The members of the Justice Project deliberately refer to authoritarian-populist forces in general and not (only) to a specific party. They have summarised their findings in a book entitled „The Justice Project. Vulnerability and resilience of the third estate“, which was published on 2 December 2025.

How did the Verfassungsblog proceed?

Over a period of eleven months, they conducted research interviews with judges, association representatives, academics, representatives of the public prosecutor's office and ministries of justice (including lawyers from this law firm). In questionnaires, they asked the state ministries of justice about typical processes, such as the recruitment of applicants or the preparation of budgets. They included state constitutions, laws and regulations at state and federal level in order to obtain an overview of the current legal situation. Based on these studies, they looked for existing institutional and organisational weaknesses. They worked out which levers are (or can be) used today to enforce certain interests and developed scenarios for abuse.

What is meant by such „scenarios“?

These scenarios are characterised by the fact that they could already happen today without the need for any legislative changes. These scenarios involve tried-and-tested scope in organisational and service law that exists in all federal states, which is granted to the administration for good and constitutionally viable reasons, but which represent gateways for the undermining and destabilisation of constitutional structures if decision-makers adopt an authoritarian and anti-democratic attitude. The „alternating lane scenario“ may serve as an example. It shows how the authoritarian-populist management of a state justice ministry could strategically utilise promotion, assessment and deployment decisions for its own purposes:

The career change of an applicant from the judicial service and salary scale R to the higher administrative service (salary scales A and B) regularly also significantly improves later opportunities for judicial promotion offices. If a candidate were to apply for a judgeship from the administrative service, the applicant's graded status offices currently have a greater influence on the selection decision than judicial experience. In the state of Brandenburg, the salary of a ministerial councillor (salary group B2) exceeds the salary of a presiding judge (R2). A judicial management position with supervisory duties and appraisal powers (e.g. as court president) graded at R3 could therefore theoretically be filled by a „non-specialist“. Even if objections to this could still be raised in a judicial competition dispute (cf. inter alia the procedure for filling the position of President at the OVG NRW) and exceptions to the standard consideration of the status office must be taken into account, this results in risks for an appointment intention according to which desired candidates deliberately qualify for high-ranking offices in the judiciary via the (re)route of a transfer to the ministry. This is just one example of „executive characterisation“, which gives rise to many follow-up questions.

Many other illustrative scenarios show impressively where the German judiciary is already vulnerable, particularly in the areas of the appointment of judges, the assessment and promotion system, disciplinary procedures, court organisation, non-judicial staff, IT infrastructure and the budget.

Resilience through anticipation as key findings

The authors come to the conclusion that there are various gateways that can gradually be used to delegitimise and block the judiciary. In part, this is due to inadequate or overly vague legal regulations, such as the transfer of judges to (temporary) retirement „in the interests of the administration of justice“ (Section 31 DRiG) due to the public's perception of the judge, and in part due to the judiciary's dependence on the budgets set by parliaments and budget management by the state governments. Of particular relevance is the role of the people who work in and represent the judiciary. The authors see them as a key resilience factor, because the professional ethos of the judiciary in Germany is strongly based on the ideal of independence, which determines how the rule of law and the separation of powers are practised in practice. The authors therefore propose a reform debate that should take place at a time when a parliamentary blockade by authoritarian-populist actors is not (yet) possible.

The fact that there are no simple solutions for making our justice system more resilient became clear in the ensuing discussion. After all, every instrument and every mechanism provided by the legislator can be put to valuable use, but can also be misused. One of the major challenges is to find a middle way that, on the one hand, ensures the necessary integration of the judiciary with the other powers and thus its democratic legitimisation - including through the influence of the executive in the administration of justice - while at the same time guaranteeing its sufficient independence. The dilemma is described in the book as follows: „As is the case for the liberal democratic order as a whole, the judiciary cannot close all its doors without becoming authoritarian itself.“

My conclusion:

For a law firm - and one that is also active in public law and deals with issues of service and disciplinary matters on a daily basis - the topics of the Justice Project are essential: it deals with the institutional integrity of the administration of justice and thus one of the essential foundations on which we as lawyers work. The internal structures of the judiciary have a decisive influence on the framework conditions of our work - from the duration of proceedings to the quality of legal decisions. Our professional effectiveness is therefore directly linked to the resilience of the third estate. Structural weaknesses are therefore not just an abstract systemic problem, but have a concrete impact on our procedural practice. It is precisely this broadening of perspective that makes this work so valuable for lawyers.