About the child and the bath

Since it recently became known how great the influence of politics is on the appointment of top judges (and all top administrative posts) in Austria, the Republic has outdone itself in cries of horror and suggestions for improvement.

The undermining of the separation of powers through massive party-political influence on the appointment of higher-ranking judges is, of course, to be condemned. Nevertheless, the general outrage is unjustified. This system has existed at least since the Second World War; it is even partly stipulated in the constitution. What is new, at most, is that "evidence" is on the table for the first time. In any case, many of those who are raising their voices today have themselves come to their top function in precisely this way. Presumably, they are also too young to still remember the clarification of the AKH scandal.

It is also exciting that only coalition parties and members of the federal government are ever mentioned. Yet it is precisely the Federal President who, as an elected politician, has the last word according to the B-VG - and highly respected former Federal Presidents knew how to make extensive use of this possibility by a simple trick: they perfected the art of not signing.

So now, according to one proposal, judges and prosecutors should only be able to be appointed by judicial nomination during their entire career path. At first glance, this sounds tempting, but it overlooks two key facts:

First, judges are human beings, too, and thus not free of political persuasion. Influence, which will certainly continue to be desired by politicians, then shifts to another level.

Secondly, with all due respect and completely disregarding the specific individuals currently acting, the following should also be considered: Systems, which complete themselves exclusively from themselves, tend generally to petrification. Not every passing over of a line-up proposal has to be politically motivated, there can also be solid reasons for it. In any case, quite abstractly, and again emphasized, without looking at any concrete persons, it cannot be assumed that change agents make it into those positions in the judiciary and the administration of justice that enable them to have such an effect even if the "system" itself decides on its supplementation.

So much for the cause and for the sake of the cause. There are certainly ways to unite both goals in a meaningful and objective way.

Justice as a gamechanger

Today I was interviewed by the agile Nerds of Law Katharina Bisset und Michael Lanzinger for their podcast. As often, the question was, will legal tech become more widespread? What will that mean for the legal profession?

For the most part, there are fairly balancing answers to that question. For once, I'd like to spin a polarizing thought:

"The gamechanger" par excellence in Austria was the justice system. It began deep in the 20th century with the introduction of the form-based dunning action and the digitization of the land register, and a little later the company register. Mandatory electronic legal transactions with the courts gave Austria a decades-long head start. What if the justice system were once again the driving force, and what might that look like?

A thought experiment: laws would be written in machine-readable German, i.e., with clear logical relationships and well-defined terms. There would even be room for discretionary leeway, but we would have to dispense with undefined legal terms and systematic loopholes. The jurisprudence of all courts would be analyzed in depth by machine and connected to the new laws by means of connectors. THAT would be a game changer, but one that would not please many of those involved in the legal system (lawyers, judges, even experts), because many court proceedings could be automated or simply eliminated.

Is the idea absurd? No, research on legal language is plentiful. The bigger issue would certainly be the connection of the jurisdiction, but at least it would not fail today because of the computing power.

Not to be misunderstood: This is not a proposal, but a thought experiment. But the underlying thesis is a fact: Digitization in Austria runs through the justice system!