Germany: towards a legal profession of specialists?

Abstract

On 1 January 2018 an omnibus law dealing with issues ranging from construction law to the use of digital seals for the land register will introduce changes to the federal law on the constitution of the courts (Gerichtsverfassungsgesetz). It will establish specialised chambers at the High Courts (Landgerichte) and specialised senates at the Courts of Appeal (Oberlandesgerichte) for a number of areas of law. Specialisation is one of the defining developments of the German legal profession of the past decades. It will for the first time make significant inroads into the courts of general jurisdiction (Gerichte der ordentlichen Gerichtsbarkeit). Disputes arising from banking and financial transactions, from construction and architectural contracts, from therapeutic treatments by health professionals and arising from relationships governed by insurance contracts will henceforth be heard at specialised chambers and senates every court has to establish pursuant to the new law. While special branches of the courts of general jurisdiction were established in the past – the family court (Familiengericht), the insolvency court (Insolvenzgericht), the criminal court (Strafgericht) – because of their specific procedural rules, no similar rationale existed for the specialisation within the main branch of the courts of general jurisdiction that hears cases according to the Code of Civil Procedure (Zivilprozessordnung). While some informal specialisation was possible through the assignment of cases to a specific chamber or senate, this was a decision each court would make independently and could alter on an annual basis. The general idea was, however, that judges should be able to hear all kinds of civil cases. This approach pretty much was in line with the traditional concept of legal practice and legal education in Germany: Well into the twentieth century, being a lawyer meant for most practitioners being a generalist dealing with various areas of law. This was, to a certain degree, the logical continuation of the philosophy behind legal education in Germany: With a state legal examination instead of university degrees in law (which typically allow students some specialisation on preferred subjects) and a post-graduate legal clerkship (Rechtsferendariat) that covers the practice of all the main legal professions