Judicial legitimacy and the role of courts: Explaining the transitional context of the German Border Guard Cases

Abstract

In the Border Guard Cases, the German judicial system was faced with the questions of individual guilt and accountability for state injustice. Through its decisions, the Courts unexpectedly had to raise the issues of whether German courts could help the collective process of coming to terms with the past. While some authors stressed the important purpose of such trials, others concluded that the soldiers guarding the East German border did so in conformity with East German law and that they should not have been convicted for their actions. This article argues that it was far from clear what the legal situation in East Germany was and that the German Border Guard Cases should be viewed in the larger context of transitional justice. It also argues that in transitional periods, ordinary lawmaking must cope with policy shifts caused by changes in the value judgments of legal elites and citizens. These discontinuities create problems and require us to perceive transitional justice as a distinctive topic presenting a distinctive set of moral and jurisprudential dilemmas.